Suit filed by and against the

Government – Section 79, 80 &

Order 27 of Civil Procedure Code

R.A. Trivedi
Dy. Director
GSJA
 SPECIAL SUITS
Perusal of the Code of Civil Procedure transpires
that the suits in question can be classified in the
two categories. (1) General Suits and (2) Special
Suits. In respect to special suits apart from the
provisions that are applicable to the General Suits
for filing, proceeding and trial, some additional
and specific provisions have also been Provided.
The suits which fall in the category of special suits
are as under:-
SUITS BY OR AGAINST GOVERNMENT OR PUBLIC
OFFICERS:- ( Section 79- 82 & O.27)
SUITS BY ALIENS (Section 83)
SUITS BY OR AGAINST FOREIGN RULERS,
AMBASSADORS AND ENVOYS (Section 84-87A)
SUITS BY OR AGAINST RULERS OF FORMER
INDIAN STATES:- (Section 87B)
SUITS BY OR AGAINST SOLDIERS, SAILORS
AND AIRMEN (Order 28)
SUITS BY OR AGAINST CORPORATION (ORDER
29)
SUITS BY OR AGAINST PARTNERSHIP FIRM (
ORDER 30)
SUITS BY OR AGAINST TRUSTEES, EXECUTORS
AND ADMINISTRATORS (Order 31)
SUITS BY OR AGAINST MINORS AND
LUNATICS (Order 32)
SUITS CONCERNING FAMILY MATTERS
(Order32A)
FRIENDLY SUITS (Section 90)
INTERPLEADER SUITS ( Section 88)
SUITS BY INDIGENT PERSONS (Order 33)
SUITS RELATING TO CONSTITUTIONAL
VALIDITY OF STATUTARY INSTRUMENTS
( Order 27B)
MORTGAGE SUITS (Order 34)
SUMMARY SUITS (Order 37)
SUITS RELATING TO PUBLIC NUISANCE (
Section 91)
SUITS RELATING TO PUBLIC TRUSTS ( Section
92)
 SUITS BY OR AGAINST GOVERNMENT
OR PUBLIC OFFICERS
• [79. Suits by or against Government.—In a
suit by or against the Government, the
authority to be named as plaintiff or
defendant, as the case may be, shall be—
• (a) in the case of a suit by or against the
Central Government, [the Union of India],
and
• (b) in the case of a suit by or against a State
Government, the State.]
• Section 2(17) “public officer” means a person falling under any of the
following descriptions, namely:—
• (a) every Judge;
• (b) every member of 5[an All India Service];
• (c) every commissioned or gazetted officer in the military 6[naval or air]
forces of 7[the Union] 8[***] while serving under the Government;
• (d) every officer of a Court of Justice whose duty it is, as such officer, to
investigate or report on any matter of law or fact, or to make, authenticate or
keep any document, or to take charge of or dispose of any property, or to
execute any judicial process, or to administer any oath, or to interpret, or to
preserve order, in the Court, and every person especially authorised by a Court
of Justice to perform any of such duties;
• (e) every person who holds any office by virtue of which he is
empowered to place or keep any person in confinement;
• (f) every officer of the Government whose duty it is, as such officer, to
prevent offences, to give information of offences, to bring offenders to justice, or
to protect the public health, safety or convenience;
• (g) every officer whose duty it is, as such officer, to take, receive, keep
or expend any property on behalf of the Government, or to make any survey,
assessment or contract on behalf of the Government, or to execute any revenue
process, or to investigate, or to report on, any matter affecting the pecuniary
interests of the Government, or to make, authenticate or keep any document
relating to the pecuniary interests of the Government, or to prevent the infraction
of any law for the protection of the pecuniary interests of the Government; and
• (h) every officer in the service or pay of the Government, or
remunerated by fees or commission for the performance of any public duty;
 • ORDER XXVII
SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC
OFFICERS IN THEIR OFFICIAL CAPACITY

• 1. Suits by or against Government.—In any suit by or against 1[the

Government], the plaint or written statement shall be signed by such person
as the Government may, by general or special order, appoint in this behalf,
and shall be verified by any person whom the Government may so appoint
and who is acquainted with the facts of the case.

• 2. Persons authorised to act for Government.—Persons being ex

officio or otherwise authorised to act for the Government in respect of any
judicial proceeding shall be deemed to be recognized agents by whom
appearances, acts and applications under this Code may be made or done
on behalf of the Government.
3. Plaints in suits by or against Government.—
In suits by or [against the Government], instead of
inserting in the plaint the name and description
and place of residence of the plaintiff or defendant,
it shall be sufficient to insert [the appropriate name
as provided in section 79

4. Agent for Government to receive process.—

The Government pleader in any Court shall be the
agent of the Government for the purpose of
receiving processes against the Government
issued by such Court.]
• 5. Fixing of day for appearance on
behalf of Government.—The Court, in
fixing the day for [the Government] to
answer to the plaint, shall allow a
reasonable time for the necessary
communication with the Government
through the proper channel, and for the
issue of instructions to the [Government
pleader] to appear and answer on behalf
of [the Government] [***], and may extend
the time at its discretion [but the time so
extended shall not exceed two months in
the aggregate].
• [5A. Government to be joined as a party in a suit against a public
officer.—Where a suit is instituted against a public officer for
damages or other relief in respect of any act alleged to have been
done by him in his official capacity, the Government shall be joined
as a party to the suit.]
• 8[5B. Duty of Court in suits against the Government or a public
officer to assist in arriving at a settlement.—(1) In every suit or
proceeding to which the Government, or a public officer acting in
his official capacity, is a party, it shall be the duty of the Court to
make, in the first instance, every endeavour, where it is possible to
do so consistently with the nature and circumstances of the case, to
assist the parties in arriving at a settlement in respect of the
subject-matter of the suit.
• (2) If, in any such suit or proceeding, at any stage, it appears to the
Court that there is a reasonable possibility of a settlement between
the parties, the Court may adjourn the proceeding for such period
as it thinks fit, to enable attempts to be made to effect such a
settlement.
• (3) The power conferred under sub-rule (2) is in addition to any
other power of the Court to adjourn proceedings.]
• 6. Attendance of person able to answer questions relating
to suit against Government.—The Court may also, in any
case in which the 9[Government pleader] is not
accompanied by any person on the part of 10[the
Government] who may be able to answer any material
questions relating to the suit, direct the attendance of such
a person.
• 7. Extension of time to enable public officer to make
reference to Government.—(1) Where the defendant is a
public officer and, on receiving the summons, considers it
proper to make a reference to the Government before
answering the plaint, he may apply to the Court to grant
such extension of the time fixed in the summons as may be
necessary to enable him to make such reference and to
receive orders thereon the proper channel.
• (2) Upon such application the Court shall extend the time
for so long as appears to it to be necessary.
• 8. Procedure in suits against public officer.—(1) Where
the Government undertakes the defence of a suit
against a public officer, the 9[Government pleader],
upon being furnished with authority to appear and
answer the plaint, shall apply to the Court, and upon
such application the Court shall cause a note of his
authority to be entered in the register of civil suits.
• (2) Where no application under sub-rule (1) is made by
the 9[Government pleader] on or before the day fixed
in the notice of the defendant to appear and answer,
the case shall proceed as in a suit between private
parties:
• Provided that the defendant shall not be liable to
arrest, nor his property to attachment, otherwise than
in execution of a decree.
• 8A. No security to be required from
Government or a public officer in certain
cases.—No such security as is mentioned in
rules 5 and 6 of Order XLI shall be required
from the Government or, where the
Government has undertaken the defence of
the suit, from any public officer sued in
respect of an act alleged to be done by him in
his official capacity.]
• It is held in case of Kanpur Jal Sansthan V
Bapu Construction reported in (2015) 5 SCC
267 that the procedure laid down in Order 27
would apply only to the Government and not
an instrumentality or agency of “State” under
article 12 of constitution of India.
• Rule governing Joinder of ordinary persons as
parties would also apply to the joinder of as
Government as a party.
• Section 79 being procedural section
substantial compliance with the
requirements thereof is sufficient.
• Section 80
• 1 [(1)] 2 [Save as otherwise provided in sub-
section (2), no suit 3 [shall be instituted]
against the Government (including the
Government of the State of Jammu and
Kashmir)] or against a public officer in
respect of any act purporting to be done by
such public officer in his official capacity,
until the expiration of two months next after
notice in writing has been 4 [delivered to, or
left at the office of-
• (a) in the case of a suit against the Central
Government, 5 [except where it it relates to a
railway], a Secretary to that Government;
• 6 [7 [(b)] in the case of a suit against the
Central Government where it relates to railway,
the General Manager of that railway;]
• 8 [(bb) in the case of a suit against the
Government of the State of Jammu and Kashmir,
the Chief Secretary to that
• 8 [(bb) in the case of a suit against the
Government of the State of Jammu and Kashmir,
the Chief Secretary to that Government or any
other officer authorised by that Government in
this behalf;]
• 12 [(2) A suit to obtain an urgent or
immediate relief against the Government
(including the Government of the State of
Jammu and Kashmir) or any public officer in
respect of any act purporting to be done by
such public officer in his official capacity,
• may be instituted, with the leave of the
Court, without serving any notice as required
by sub-section (1); but the Court shall not
grant relief in the suit, whether interim or
otherwise, except after giving to the
Government or public officer, as the
• case may be, a reasonable opportunity of
showing cause in respect of the relief prayed
for in the suit:
• Provided that the Court shall, if it is
satisfied, after hearing the parties, that no
urgent or immediate relief need be granted
• in the suit, return the plaint for presentation
to it after complying with the requirements
of sub-section (1).
• (3) No suit instituted against the
Government or against a public officer in
respect of any act purporting to be done by
• such public officer in his official capacity shall be
dismissed merely by reason of any error or
defect in the notice referred to in sub-section
(1), if in such notice--
• (a) the name, description and the residence
of the plaintiff had been so given as to enable
the appropriate authority or the public officer to
identify the person serving the notice and such
notice has been delivered or left at the office of
the appropriate authority in sub-section (1), and
• (b) the cause of action and the relief claimed by
the plaintiff had been substantially indicated.
• (c) in the case of suit against 9 [any other
State Government], a Secretary to that
Government or the Collector of the district;
10 [***]
• 11 [***]
• and, in the case of a public officer, delivered
to him or left at his office, stating the cause
of action, the name, description and place of
residence of the plaintiff and the relief which
he claims; and the plaint shall contain a
statement that such notice has been so
delivered or left.
• In any suit against Railways Union of India is
necessary Party and suit by pleading General
Manager alone is not maintainable. The state
of Kerela V/S The General Manager Southern
Railways Madras AIR 1976 SC 2538.
In Dhian Singh Sobha Singh v. Union of India,
1958 SCR 781 at p. 795 this Court observed
that while the terms of Section 80 of the Civil
Procedure Code must be strictly complied
with that does not mean that the terms of the
section should be construed in a pedantic
manner or in a manner completely divorced
from common-sense. The relevant passage
from that judgment is set out below:
• "We are constrained to observe that the approach of
the High Court to this question was not well founded.
The Privy Council no doubt laid down in Bhagchand
Dagadusa v. Secretary of State, AIR 1927 PC 176 that
the terms of section should be strictly complied with.
That does not however mean that the terms of the
notice should be scrutinised in a pedantic manner or in
a manner completely divorced from common-sense. As
was stated by Pollock, C. B., in Jones v.Nicholls, (1844)
13 M & W 361=153 ER 149 "we must import a little
common sense into notices of this kind." Beaumont, C.
j., also observed in Chandu Lal Vadilal v. Government of
Bombay, AIR 1943 Bom 138 "One must construe
Section 80 with some regard to common-sense and to
the object with which it appears to have been passed."
• Object of Section 80 of CPC:-
• a statutory notice of the proposed action under this Section is
intended to alert the State to negotiate a just settlement or at least
have the Courtesy to tell the potential outside why the claim is being
resisted - State of Punjab v. M/s. Geeta Iron & Brass Work Ltd.,
AIR 1978 SC 1608. The object of the notice contemplated by this
Section is to give to the concerned Government and public officers
to reconsider the legal position and to make amends or settle the
claim, if so advised, without litigation. The legislative intention
behind this Section is that public money and time should not be
wasted on unnecessary litigation and the Government and the public
officers should be given a reasonable opportunity to examine the
claim made against them lest they should be thrown into avoidable
litigations. The purpose of law is advancement of justice. The
provisions are not intended to be used as boobytraps against
ignorant and illiterate persons – Raghunath Das v. Union of India,
AIR 1969 SC 674. This Section does not define the rights of the
parties nor confer any rights on the parties, it only provides a mode
of procedure forgetting the relief in respect of a cause of action. It is
a part of the machinery for obtaining legal rights, i.e. a machinery as
distinguished from its products - State of Seraikella v. Union of India,
AIR 1951 SC 253.
• Strict Compliance thereof:-
• The Privy Council no doubt laid down in Bhagchand Dagadusa v.
Secretary of State, 54 Ind App 338, that the terms of this section
should be strictly compile with. That does not however mean that
the terms of the notice should be scrutinized in a pedantic manner
or in a manner completely divorced from common sense. As was
stated by Pollock C. B. in Jones v. Nicholls, (1844) 13 M & W 361
(363): "We must import a little common sense into notices of this
kind." Beaumont, C. J., also observed in Chandu Lal Vaduilal v.
Government of Bombay, ILR 1943 Bom 128:

• "One must construe S. 80 with some regard to common sense

and to the object with which it appears to have been passed....."

• If the terms of the notice in question be scrutinized in this

manner it is abundantly clear that the relief claimed by the
appellant was the re-delivery of the said two trucks or in the
• alternative payment of Rs. 3,500 being the value thereof. The value which was placed by the
appellants on the trucks was the then value according to them - a value as on August 1,1942, the
date on which the delivery of the trucks ought to have been given by the respondent to the
appellants. The appellant could only have demanded that sum as on the date of that notice. They
could not sensibly enough have demanded any other sum. If the respondent had compiled with
the terms of that notice then and there and re-delivered the trucks to the appellant, nothing further
needed to be done. If on the other hand instead of re-delivering the trucks it paid to the appellants
the value thereof then also it need not have paid anything more than Rs. 3,500 to the appellants,
on that alternative. If, however, the respondent failed and neglected to comply with the requisitions
contained in that notice the appellants would certainly be entitled to recover from the respondent
the value of the said trucks in the alternative on the failure of the respondent to re-deliver the
same to the appellants in accordance with the terms of the decree ultimately passed by the Court
in their favour. That date could certainly not be foreseen by the appellants and it is contrary to all
reason and common sense to expect the appellants to have made a claim for the alternative value
of the said two trucks as of that date. The respondent was and ought to have been well aware of
the situation as it would develop as a result of its non-compliance with the terms of that notice and
if on January 8, 1943, the appellants in the suit which they filed for wrongful detention of the said
trucks claimed re-delivery of the said trucks or in the alternative Rs. 3,500 as their value and
reserved their right to claim the further appreciation in the value of the trucks by reason of the rise
in prices thereof up to the date of the decree by paying additional court-fee in that behalf, it could
not be laid at their door that they had not made the specific demand in their notice to the
respondent under S.80 of the Code of Civil Procedure and that therefore their claim to recover
anything beyond Rs. 3,500 was barred under that section. A common sense reading of the notice
under S.80 would lead any Court to the conclusion that the strict requirements of that section had
been complied with and that there was no defect in .he same such as to disentitle the appellants
from recovering from the respondent the appreciated value of the said two trucks as at the date of
the judgment. It is relevant to note that neither was this point taken by the respondent in the
written statement with it filed in answer to the appellants claim nor was any issue framed in that
behalf by the Trial Court and this may justify the inference that the objection under S.80 had been
waived. The point apears to have been taken for the first time before the High Court which
negatived the claim of the appellants for the appreciated value of the said trucks.
• ESSENTIALS OF VALID NOTICE:-
• 11. In The State of Andhra Pradesh Vs. Gundugola Venkata
Suryanarayana Garu, AIR 1965 SC 11 at P. 15, Their Lordships
referring to the scope, form, sufficiency of the notice and Its
construction have observed in Paragraph 11 of the judgment, which
it will be useful to reproduce below:-

• "The object of the notice under section 80 is to give to the

Government or the public servant concerned an opportunity to
reconsider its or his legal position and if that course is justified to
make amends or settle the claim out of Court. The section is
imperative and must undoubtedly be strictly construed failure to
serve a notice complying with the requirements of the statute will
entail dismissal of the suit. But the notice must be reasonably
construed. Every venial error or defect cannot be permitted to be
treated as a peg to hang a defence to defeat a just claim. In each
case in considering whether the imperative provisions of the statute
are complied with, the Court must face the following questions:-
• (1) Whether the name, description and residence of the plaintiff are
given so to enable the authorities to identify the person serving the
notice;

• (2) Whether the cause of action and the relief which the
plaintiff claims are set out with sufficient particularity;
• (3) Whether the notice in writing has been delivered to or left at
the office of the appropriate authority mentioned in the section;
and

• (4) Whether the suit is instituted after the expiration of two

months, next after notice has been served, and the plaint contains a
statement that such a notice has been so delivered or left.
• In construing the notice the Court cannot ignore the object of the
Legislature to give to the Government or the public servant
concerned an opportunity to reconsider its or his legal position. If
on a reasonable reading but not so as to make undue assumptions
the plaintiff is shown to have given the information which the
statute requires him to give, any incidental defects or errors may be
ignored."
• Variance in the notice and plaint if material:-
• Amar Nath Dogra Versus Union of India 1963 0 AIR(SC) 424

• There was, therefore a radical difference between the state of

circumstances when the impugned notice was issued and when the plaint
was filed which is reflected in the allegations made in the two documents
and the reliefs claimed in each. In summary, the notice was based on the
breach of stipulations in a contracts which had not been broken and was
still subsisting. In that sense, It would be the items claimed in respect of
each breach that would constitute a cause of action in the technical sense
and it was on their account that the sum of Rs. 74,935/8/3 was claimed as
damages. In the plaint, however, the cause of action was different. By that
date the allegation was that the contract had been broken by the
government repudiating it and taking over the shops after cancelling the
licence. The cause of action then was the breach of the entire contract
and the items set out in the plaint were the heads of claim under which
the damages were computed. In view of these circumstances we have no
hesitation in holding that even on a very narrow and strict view of S. 80
there was no compliance with its terms.
• If suit is withdrawn with leave to file to fresh suit in which
notice is given then requirement of fresh notice will not be
there if the plaint of the suit meets the requirements – AIR
1963 SC 424 Amar Nath Dogra Versus Union of India

• Concept of Public officer defined in section 2(17) (h) is

explained neatly in case of Coal Mines Provident Fund
Commissioner V/S Ramesh Chander Jha AIR 1990 SC 648:-

• If without passing order below application filed by plaintiff

craving leave to file suit without notice for urgent relief the
court dismisses the application of respondent- defendant
filed under o 7 r 11 of CPC the order is not proper. - State
of Kerela V/S Sudhir Kumar Sharma (2013) 10 SCC 178
• Reiterated by Gujarat High Court in CRA 453 of 2016 dated
10.08.2017
• Suit for urgent relief with leave of court to be
instituted without notice :
• Judgment of Justice Pardiwala in First Appeal
No: 1952/2016
• Shakriben Lavjibhai Gohel Thru Legal Heir V/S
District Collector dated 31.07.2018.
• To be discussed.
THANK YOU