CENTRAL UNIVERSITY OF SOUTH

BIHAR
SCHOOL OF LAW AND GOVERNANCE

SUBJECT : CIVIL PROCEDURE CODE 1908

TOPIC: SUITS BY OR AGAINST GOVERNMENT

SUBMITTED TO: SUBMITTED BY :

DR. Deo. Narayan singh USHA RANI
ASSISTANT PROF. CUSB2113125124
SCHOOL OF LAW BA.LLB(hons)
AND GOVERNANCE 5th SEMESTER
Section : B

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ACKNOWLEDGEMENT

ACKNOWLEDMENT

It is a great pleasure to express my deep sense of thanks and gratitude to my

course instructor and guide DR. Deo. Narayan singh . Her dedication and keen
interest above all and her overwhelming attitude to help her students had been
solely and mainly responsible for completing my work. Her scholarly and
timely advice, meticulous scrutiny, and her logical approach has helped me to a
very great extent to accomplish my project in an excellent manner.

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 CONTENTS

1. ABSTRACT…………………………………………………………..4

2. Name of party in Suit:-………………………………………………..

3.Notice under Section 80 of Civil Procedure Code, 1908:-………………….5

4.INTRODUCTION………………………………………………………….7

5.Scope & Applicability of Section 80(1):………………………………….8

6.Public Officer:…………………………………………………………..10

7.Institution of Suit without Notice against govt. or Public officer:-………12

8.Technical defect or error in notice:………………………………………..

9.Exemption from arrest and personal appearance (Section 81)………….13

10.Execution of decree (Section 82):…………………………………………

11.PROCEDURE(Order 27):- Order 27……………………………………. 14

12. CONCLUSION………………………………………………………….16

13. REFERENCE…………………………………………………………..17

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 SUITS BY OR AGAINST GOVERNMENT

ABSTRACT

Section 79 to 82 and Order 27 of the Civil Procedure Code, 1908 lay down procedure where
suits are brought by or against the Government or Public officers. The provisions provides for
the procedure only not about rights and liabilities. Substantive right has to be find accordance
with the provisions of the Constitution. These provisions gives no cause of action but only
declares the mode of procedure when a cause of action has arisen. Under Civil Procedure
Code, 1908 Section deal with provisions of a substantive nature and lays down general
principles and Orders deals with procedure, manner and mode in which general principle can
be exercised. Similarly Section 79 to 82 provides for the general principles and Order 27
prescribe the procedure in which general rules provided under Section 79 to 82 can be
exercised.

Name of party in Suit:-

Section 79 of the Code provides that in a suit by or against the Government the
authority to be named as Plaintiff & Defendant in case of

(i) Central govt. Union of India &

(ii) State Government the State.

Section 79 being a procedural provision, substantial compliance with the requirements

thereof is Sufficient1. The Supreme Court declared that procedural law clearly specifies the
situation in which Government is required to be made a party and the law to this regard is
settled that if the Government is not made a party, the litigation cannot be proceeded.

1
AIR 1990

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( In Chief Conservator of Forests, Government of A.P. v. Collector, )

Supreme Court has observed that the requirement of provision contained in Section 79 CPC
is not merely a procedural formality, but is essentially a matter of substance and of
considerable significance whereby the special provision as to how the Central Government or
the State Government may sue or be sued has been indicated, 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.

Notice under Section 80 of Civil Procedure Code, 1908:-

In suits between individuals and individuals, notice need not be given to the defendant by the
plaintiff before filing a suit but under Section 80 it is provided that notice has to be given in a
suit against Government or public officer in respect of any act purporting to be done by such
public officer in his official capacity.

Section 80 of the Code provides that no suit shall be instituted against the Government or
against a public officer in respect of any act purporting to be done by such public office in his
official capacity until the expiration of two month next after notice in writing has been
delivered to, or left at the office of:

i) in case of the suit against the Central Govt., except where it relates to a
railway, a Secretary to that Govt;
ii) ii) in the case of a suit against the Central Govt. where it relates to a railway,
the General manager to that railway;
iii) iii) in the case of a suit against the Govt. of the State of Jammu and
Kashmir, the Chief Secretary to that Govt. or any other officer authorized
by that Govt. in that behalf;

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 iv) iv) in the case of a suit against any other state Govt.. a Secretary to that
Govt. or the Collector of the district; and
v) v) in the case of a public officer, such public officer2.
Further it provides that with the permission of the Court, a suit can be
instituted without serving the notice where an urgent or immediate relief is
needed. Provided that Court shall return the Plaint if found that there is no
need of immediate or urgent relief.

The Section enumerates two types of case:

(1) Suit against Government; and

(2) Suit against public officers in respect of acts done or purporting to be done by such
public officers in their official capacity.

Regarding the first class of cases the notice must be given in all cases. Regarding the second
class of cases, however, notice is necessary only where the suit is in respect of any act
“purporting to be done” by such public officer in the discharge of his duty, and not
otherwise3.

The three essential requirements of S. 80 are:

first, the addressee should be identified and must have received the communication;

secondly, there should be no vagueness or indefiniteness about the person giving the notice,
who must also be the person filing the suit and the notice must also give the details which are
specified in S. 80; and,

thirdly, the two months’ time allowed must expire before the suit is laid. Once these
requirements are fulfilled minor details like the misdescription of the person to whom the
communication is addressed should not make it an improper notice which does not comply
with the requirements of S. 80, C.P.C4.

INTRODUCTION

2
Sec 80(1) of Civil Procedure Code, 1908
3
State of Bihar v. Jiwa das, AIR 1971
4
Santanu Dey, Legal Provisions of Section 80 of Code of Civil Procedure 1908

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The object of the notice required by this section is to give the Secretary of State or the public
officer an opportunity to reconsider his legal position and make amends or settle the claim, if
so advised, without litigation5 or afford restitution without recourse to a court of law. When a
statutory notice is issued to public authorities, they must take the notice in all seriousness and
they should not sit over it and force the citizen to the vagaries of litigation. They are expected
to let the claimant (who has given notice), know, what stand they take, within the statutory
period, or, in any case before the plaintiff embarks upon litigation.

The Government, unlike private parties, is expected to consider the matter covered by the
notice in a most objective manner, after obtaining such legal advice as they may think fit, and
take a decision in public interest within the period of two months allowed by the section as to
whether the claim is just and reasonable and the contemplated suit should, therefore, be
avoided by speedy negotiations and settlement or whether the claim should be resisted by
fighting out the suit if and when it is instituted6 The aim is to that the researcher focused on
salient features of limitation Act it also deals with objectives and Halsbury‟s laws in
England which relates with case laws.

(Bihari Chowdhary v. State Of Bihar7)

Supreme Court has Highlighted the object of Section 80(1) of Civil Procedure Code as
“When we examine the scheme of the Section it becomes obvious that the Section has been
enacted as a measure of public policy with the object of ensuring that before a suit is
instituted against the Government or a public officer, the Government or the officer
concerned is afforded an opportunity to scrutinize the claim in respect of which the suit is
proposed to be filed and if it be found to be a just claim, to take immediate action and thereby
avoid unnecessary litigation and save public time and money by settling the claim without
driving the person, who has issued the notice, to institute the suit involving considerable
expenditure and delay. The Government, unlike private parties, is expected to consider the
matter covered by the notice in a most objective manner, after obtaining such legal advice as
they may think fit, and take a decision in public interest within the period of two months
allowed by the Section as to whether the claim is just and reasonable and the contemplated
suit should, therefore, be avoided by speedy negotiations and settlement or whether the claim
5
Province of Bihar v. Kamakshya Naran Singh, AIR 1950
6

7
AIR 1984 SC 1043

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should be resisted by fighting out the suit if and when it is instituted. There is clearly a public
purpose underlying the mandatory provision contained in the Section insisting on the
issuance of a notice setting out the particulars of the proposed suit and giving two months’
time to Government or a public officer before a suit can be instituted against them. The object
of the Section is the advancement of justice and the securing of public good by avoidance of
unnecessary litigation.

Scope & Applicability of Section 80(1):-

This section is explicit and mandatory and admits of no implications or exceptions. The
language of this section is imperative and absolutely debars a court from entertaining a suit
instituted without compliance with its provisions. If the provisions of the section are not
complied with, the plaint must be rejected under O. 7, r. 11(d). Notice under Section 80(1)
of CPC, 1908 is the first step in the ligation against govt. or public officer.8

A statutory body may be an instrumentality of the state within the meaning of Art. 12 of the
Constitution, nevertheless, it would not answer the description of ‘government’ as it is
understood in law and in the context of Section. 80.

A notice given before the cause of action has arisen is invalid. Issuance of a notice is a
condition precedent for the institution of a suit but it does not become a part of the cause of
action. Whether or not a notice forms an integral part of the cause of action against the govt.
depends upon the scheme of the relevant statue and no rule of universal application can be
laid down.

The question has to be decided by reading the whole notice in totality and in a reasonable
manner. If the notice on such a reading the court is satisfied that the information which was
necessarily to be provided to the defendants by the plaintiff was in fact provided,
inconsequential defects or error is immaterial and will not vitiate the notice.

The provisions of the section are not intended to be use as booby-traps against ignorant and
illiterate persons. A plaintiff who gives notice under Section 80 and institutes a suit before
two month, but is allowed to withdraw the same with liberty to file a fresh suit, is entitled to
institute a fresh suit without a fresh notice.

8
State of Seraikella v. Union of India, AIR 1951 Sc

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Where notice of a proposed suit is once given, it is not necessary to give a fresh notice of two
month, if the plaint has to be amended owing to discovery of facts not within the plaintiff‟s
knowledge at the time of institution of the suit or for adding further grounds for the case of
action already discovered or when new facts have arisen subsequent to the suit.But no
amendment will be allowed if the effect of the amendment is to convert the suit into another
of a different character. The suit must be brought after giving fresh notice as required by this
section9.

A writ petition under Article 32 or 226 of the Constitution cannot be said to be a “suit” within
the meaning of Section 80 of the Code. Hence giving prior notice to the government or public
officer is not necessary before filing a petition in the Supreme Court or in a High Court.

Section 80 provision is made for the benefit of the party, namely, the State or the public
officer, as the case may be and in a given case it is open to the party for whose benefit the
provision has been made to waive the compliance with the requirements of such a provision.

The Judicial Committee held that Section 80 of the Code of Civil Procedure was explicit and
mandatory; but still it held that it could be waived by the authority for whose benefit that was
provided. There is no reason why the notice should not be waived if the authority concerned
thinks fit to waive it.

This provision cast an implied duty on all concerned governments and States and statutory
authorities to send appropriate reply to such notices. Having regard to the existing state of
affairs, Court has direct all concerned governments, Central or State or other authorities,
whenever any statute requires service of notice as a condition precedent for filing of suit or
other proceedings against it, to nominate, an officer who shall be made responsible to ensure
that replies to notices under Section 80 or similar provisions are sent within the period
stipulated in a particular legislation. The replies shall be sent after due application of mind.
Despite such nomination, if the Court finds that either the notice has not been replied or reply
is evasive and vague and has been sent without proper application of mind, the Court shall
ordinarily award heavy cost against the Government.

( In Jones v. Nicholls) Justice Pollock has stated “We must import a little common sense into
notice of this kind. A statutory notice must be reasonably construed, keeping in mind the
ultimate objective that an interpretation should not lead to injustice .

9
Province of Madras v. RB Poddar Firm, AIR 1949 Mad

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Every venial defect or error not going to the root of the matter cannot be allowed to defeat
justice or to afford an excuse to the government or a public officer to deny just claim of an
aggrieved party”

The question has to be decided by reading the whole notice in totality and in a reasonable
manner. If the notice on such a reading the court is satisfied that the information which was
necessarily to be provided to the defendants by the plaintiff was in fact provided,
inconsequential defects or error is immaterial and will not vitiate the notice. The provisions of
the section are not intended to be use as booby-traps against ignorant and illiterate persons.

A plaintiff who gives notice under Section 80 and institutes a suit before two month, but
is allowed to withdraw the same with liberty to file a fresh suit, is entitled to institute a
fresh suit without a fresh notice.

Where notice of a proposed suit is once given, it is not necessary to give a fresh notice of
two month, if the plaint has to be amended owing to discovery of facts not within the
plaintiff’s knowledge at the time of institution of the suit or for adding further grounds
for the case of action already discover ed or when new facts have arisen subsequent to
the suit. But no amendment will be allowed if the effect of the amendment is to convert
the suit into another of a different character. The suit must be brought after giving fresh
notice as required by this section.

Public Officer:-

Section 2(17) of CPC, 1908 provides for the exhaustive list of public officer. It provides
that who all are public officer.

According to that list this Section applies on Public Officers. According to the concise
Oxford Dictionary, to “purport” in this context means to “be intended to seem”. Applying this
meaning, the word “any act purporting to be done by such public officer in his official
capacity10” means any act “intended to seem” to be done by him in his official capacity. If the
act was one such as is ordinarily done by officer in the course of his official duties, and he
considered himself to be acting as a public officer and desired other persons to consider that

10
Nand Kumar Sinha v. pasupati Ghosh, AIR 1941 13

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he was so acting, the act clearly “purports to be done in his official capacity” within the
ordinary meaning of the term “purport. It follows that notice to a public officer is not
necessary where the act done by him is not within his sphere of duties.

The Suits referred to in section are suits against the public officer personally in respect of
acts done in his official capacity. The public officer cannot be sued in his official name,
unless he is a corporation sole11.

The latest decisions of all the High Courts are in favor of the view that notice is necessary
even if the act is done mala fide; and it has been held that a notice is necessary when a suit is
filed against a police officer for malicious prosecution12.

Institution of Suit without Notice against govt. or Public officer:-

Section 80(2) is in the nature of an exception to Section 80(1) and enables the plaintiff to
file a suit to obtain an urgent and immediate relief without serving any notice as
required by Subsection (1) subject to the condition that such a suit has to be filed with leave
of the Court.

The most important condition envisaged under Section 80(2) is relating to urgency in the
matter. Where the Court is satisfied that urgent on immediate relief is required and the
plaintiff would not be in a position to wail for the period of notice to expire, leave may be
granted to a plaintiff to file suit against the State without service of notice contemplated under
Section 80(1). Even in such cases where leave is granted, the Court is enjoined not to grant
relief in the suit, whether interim or otherwise, without giving the State reasonable
opportunity of showing cause in respect of the relief sought for in the suit. As indicated in the
proviso, if upon hearing the parties, the Court is satisfied that no urgent or immediate relief
need be granted, the Court is to return the plaint for presentation after complying with the
requirement regarding service of notice contemplated under Section 80(1).

While considering the application under Section 80(2), CPC, and plaintiff must plead and
prove that the suit is filed to obtain urgent or immediate relief against the Government or any
public officer in respect of any act purporting to be done by such public officer in his official

11
Sheriff of Bombay v. Hakmaji, AIR 1927
12
Mohammad Sharif v. Nasir Ali, AIR 1930

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capacity, suit can be instituted with the leave of the Court. Thus, it is necessary to consider
urgency and immediate relief against the Government or public officer. Basic requirement is
that if such urgent and immediate relief is not granted then the plaintiff is likely to suffer
irreparable injury or loss which cannot be compensated. In the matter of recovery, if some
amount is paid, that is liable to be refunded. As such, there was no urgency in the matter.
Until and unless urgency or immediate relief is shown to the Court, the Court cannot grant
permission mechanically The mode or form of request or grant are not material. What is
material is only the substance, whether there was a proper request and whether it was
considered and granted. Request with grounds, if any, must be there and there need only be
indications as to whether it is allowed or not, even though a reasoned order may be good and
an application is also appreciable.

A plaintiff intending to institute a suit against the Govt. has two options before him, either he
may file a suit after serving two months' notice under Section 80 C.P.C. or he may file the suit
without serving the notice but in that event he must satisfy the court that an urgent and
immediate relief is required and also obtain previous leave of the court. In the event of the
first course being adopted the suit cannot be filed before the expiry of the two months of
giving of the notice and this explains the reason for using the word 'shall' in Sub-clause (1) of
Section 80 C.P.C. by the Parliament. However, in the second case he has the choice to file the
suit without giving the requisite notice but only after obtaining leave of the court and it is for
this purpose that the word 'may' has been used in Clause (2) of Section 80 C.P.C.

Further in computing the period of limitation, the period of notice would be mandatorily
excluded provided notice s given within limitation period.

Technical defect or error in notice:

Section 80(3):- Section 80(3) provides that no suit instituted against the Govt. or Public
officer shall be dismissed merely on ground of error or defect in the notice, if, in such,
the name, description and residence of the plaintiff had been so given as to enable the
authority or public officer to identify the person serving the notice and such notice had been
delivered or left at the office of the authority or public officer and the cause of action and the
relief claimed by the plaintiff had been substantially indicated therein. The amendment to
the code was made with the intention that justice is not denied to the aggravated parties
on the grounds of technical defects. Therefore, a notice under section 80 cannot be held to

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be invalid and no suit can be dismissed on the grounds that there has been a certain
technical defect or error in the notice delivered or on the ground that such notice was
served in an improper way13.

Exemption from arrest and personal appearance (Section 81):-

Section 81 of the code provides that in a suit against a public officer of any act purporting
to be done in his official capacity i.e. act of public officer as mentioned above, he has an
exemption from arrest and from attachment of his property until execution of decree.
Further if defendant that is public officer cannot absent himself from his duty, then he
has exemption from personal appearance during ongoing suit. Section 81 is considered
as an important privilege given to a public servant. It allows the court to exempt the
public servant form appearing before the court. It can do this only if believes that by
making the person absenting himself from his duty, there is a loss caused to the public.

Execution of decree (Section 82):-

Section 82 provides that in a suit by or against govt. or public officer, decree is pass
against govt. or public officer it will not be executed unless it remains unsatisfied for the
period of three months computed from the date of such decree. Further it provides that
this provision regarding execution of decree will apply on an order or award passed by any
court or by any other authority or if it were capable of being executed under this code or
under any other law in force as if it were a decree.

The section has been amended so as to eliminate certain cumbersome requirements. Before
amendment a court had to send a report to the state government before ordering.

The decree cannot be executed unless all the condition are complied with14 .

PROCEDURE(Order 27):- Order 27

13
Disha Construction & Ors V. State of Goa & Anr., AIR 2012 SC
14
State v. Abdur Rahman, AIR 1960 J & k

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Rule 1 of CPC, 1908 provides that in a suit by or against govt. a plaint or written statement
shall be signed by a person who has appointed for this by govt. Further it shall be verified by
a person who is acquainted with the facts and appointed by govt. for verification.

The sanction to sign must be prior to the institution otherwise the signing shall be by an
incompetent person. A retrospective sanction cannot cure the defect15.

Order 27 Rule 2 provides that Person authorized to act for the Govt. in respect of any
judicial proceeding shall be deemed to be recognized agent by whom appearance, acts and
applications under this code may be made or done on behalf of Govt.

Order 27 Rule 3 provides that in a plaint of a suit by or against govt. instead of providing all
detail of plaintiff or defendant it is sufficient to insert appropriate name as provided in section
79 of CPC, 1908.

Order 27 Rule 4 provides that Government Pleader shall be the agent of Govt. for the
purpose of receiving processes against the Govt. by Court.

Govt Pleader is only to intimate the court that he is representing the Govt. No stamped power
of attorney or vakalatnama is required. A person other that the Govt. pleader can act only
when the latter intimates to the court that the former is acting under his direction.The
Government like any other litigant can engage as many as advocates as it thinks necessary.

Order 27 Rule 5 provides that court will allow a reasonably time to govt. to answer the
plaint so as to make necessary communication between govt. and govt. pleader. The time
shall not be exceeded more than 2 months.

The benefit of Rule 5 is available to the govt. after it has made it appearance also.49 Order
27 Rule 5A provides that in suit against a public officer in respect of any act alleged to have
been done by him in his official capacity, the govt. shall be joined as a party to a suit.

Order 27 Rule 5B provides that it is a duty of a court in any case against a govt. or public
officer acting in his official capacity to make attempt at first instance for the settlement of
disputes between parties. Further if finds at any stage of proceeding that there is reasonable
possibility for settlement between parties court will adjourn the case for such a time to enable
attempt to solve a dispute Order 27 Rule 6 provides that court can direct attendance of person
who is able to answer any material question relating to the suit against a gov.

15
State of Rajasthan v. Jaipur Hosiery Mills Pvt Ltd., AIR 1997

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.

Conclusion:-

The Article has defined the process of suit by or against a govt. and public officer acting in
purporting to his official duty. Article has explained the provisions in detail about the
litigation against and by govt. and public officer acting in purporting to his official duty. After
examining there provision as mentioned we have understand that for any suit against a govt.
first of all it is necessary that party should be name according to section 79 of CPC. Further
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to institutive a suit against govt. or public officer acting in purporting to his official duty it is
mandatory to give prior notice of 2 month. The only exception to this rule is provided by
addition of 80(2) after the amendment of 1976. The amendment is helping hand so that
justice can be done as early as possible. After concluding the above topics, this Article
attempts to elucidate about the various aspects of these types of suits. It speaks about whether
rights granted under this can be waived, the forms in which notices can be served and also the
modes in which these have to be served. Moreover Article has provided us about procedure
given under rule 27 and other privileges given to parties i.e. under Section 81 & 82 of the
Code.

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REFERENCES

1. https://www.lawteacher.net/free-law-essays/administrative-law/suits-by-and-
againstgovernment-administrative-law-essay.php .

2.https://www.legalbites.in/suits-by-or-against-government-section-79-82/ 14.
3.http://www.shareyouressays.com/knowledge/legal-provisions-of-section-80-of-codeof-civil-
procedure-1908-c-p-c-india-notice/114371.

4. Civil Procedure, Justice C. K. Thakker (Takwani), 7th edn., Eastern Book Company, Lucknow.

5. Mulla on the Code of Civil Procedure, J.M. Shelat, 18th edn., LexisNexis Butterworths.

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