This article has been written by Namrata Kandankovi, student of Symbiosis Law School, Pune. The author of the article has discussed the concept of institution of suit by or against the government or public officers. In addition to this, the article provides an analysis of numerous subtopics associated with Section 79, Section 80 and Order 27 of Civil Procedure Code.

Abstract

Under the Civil Procedure Code, the subject of suits by or against public officers in their official capacity has been recognized under Section 79, Section 80 and Order 27 of CPC. Firstly, it should be understood that Section 79 of CPC is a procedural provision and hence, it does not deal with rights and liabilities enforceable by or against the government [1]. But at the same time, it declares a mode of the procedure when the cause of action arises. On the other hand, Section-80 of CPC is not a procedural provision but a substantive one [2], the rules involved in it and working of Section 80 will be discussed further. Lastly, Order 27, includes under its ambit various rules and subjects like that of recognized agents, attorney general and the procedure to be followed while the suit is being filed by or against the government or public officers in their official capacity. This article tries to analyze the three sections in detail and provide an overview of the same in a clear-cut way.

Analysis

Section 79 and 80 are defined as follows under the Procedure of Civil Code-

Section 79- This Section defines the concept of suits by or against the government: Whenever a case is filed against a government or if it is filed by the government, the plaintiff and the defendant who will be named in the case will be as provided under:

• Whenever the case is instituted by or against the central government, the Union of India will be represented as the required plaintiff or defendant respectively.
• Whenever the suit is filed by or against the state government, the state government will be required to act as the plaintiff or the defendant.

Section 80- This section deals with the concept of Notice. According to this Section, there exists no onus for the institution of a suit against the government without issuing a notice regarding the same, this includes the state of Jammu and Kashmir. With respect to institution of a suit against a public officer with respect to the act done by him in his official capacity, there is again a need for issuance of notice regarding the same. Further, the notice should be served two months prior to the institution of the suit and it should be made sure that such a notice was delivered or left at the office of:

• Whenever the case is against the central government, and it does not relate to the railways then, the notice should be delivered to the secretary of the government.
• Whenever a case has been instituted against the central government and it relates to the railways then, the notice is to be served to the general manager of that railways.
• Whenever the case is instituted against any of the state governments then, the notice is to be served either to the secretary to that government or to the collector of the district.

Scope of Section 79

For the purpose of better understanding of Section 79 of Civil Procedure Code, there arises a need for further fragmentation of the Section into various subtopics like that of the jurisdiction of Section 79 and the institution of suit against the railways which will be looked into in the next part of this article.

Section 79

Section 79 lays down the procedure whereby the suits are brought by or against the government but at the same time, it does not deal with the rights and liabilities enforceable by or against the government body [3]. In the case of Jehangir v. Secretary of State [4], an important observation was made which was that this section gives no cause of action but only declares the mode of the procedure when the cause of action arises.

Jurisdiction

Under Section 79, only the court within whose local limits, the cause of action arose, has the jurisdiction to try the suit and otherwise it cannot. In the case of Dominion of India v. RCKC Nath & Co. [5], it was held that words like ‘dwell’ or ‘reside’ or ‘carry on business’ which are mentioned in Section 18, 19 and 20 of code, do not apply to the government [6].

Suit against Railway

If the railway is administered by the union of India or a State, then any suit to enforce a claim against railway administration can be brought against the Union of India or State, and this may not include making the railway administration a part of the suit. But on the other hand whenever there is a requirement for a suit for freight for carrying goods, then such a suit can be instituted by the Union of India, and this was held in the landmark case of Union of India v. RC Jall [7].

In the case of Secretary of State v. Rustom Khan [8], there was a significant observation made regarding the liability to be sued, under Section 79 of CPC. No suit could lie against the East India Company in respect of the act of state or acts of sovereignty, and therefore no suit in respect of such acts would be competent.

Section 80

This part of the article will include under its ambit the detailed analysis of Section 80 of Civil Procedure Code, and for the purpose of better understanding, the subtopics are to be studied by breaking them down under the Section of nature and liability, contents of the notice, effect of non-compliance and waiver of notice.

Nature and Object

The object laid down by this Section is- there should be an opportunity conferred on the part of the Secretary of the State or the Public officer to reconsider his legal position in order to make amends or settle down the claim if so advised. This can further be done without litigation or afford restitution or without recourse to court of law [9]. Whenever a statutory notice is issued to public authorizes, they are required to further take notice in all seriousness and they are not required to sit over it and force the citizen to the redundancy of litigation.

Contents of the Notice

Notice under Section 80, is required to contain the following aspects: name, description, residence of the plaintiff, the cause of action and lastly the relief which the plaintiff claims. Also, the notice is required to convey to its recipients, sufficient information to enable him to consider the claim, which was held in Union of India v. Shankar Stores [10]. The above-mentioned particulars should be given in such a way that, it enables the authorities to identify the person giving the notice.

Effect of Non-Compliance

Non-compliance with the requisites of this Section or any omission in the plaint which is required would result in the rejection of the plaint under Order 7, Rule 11.  If the suit is against a public official and a private individual, and no notice is served on the public officer, the plaint is not to be rejected but the suit is carried on with the name of the public officer struck off.

Waiver of Notice

As the requirement of the notice is just procedural and not substantive, and as it is for the benefit of the public officer or the government, it is open to government and public officers to waive it. If the defendant wants to rely on the invalidity of the notice, it is for him to raise a specific issue on the point, this was held in the case of Lalchand v. Union of India [11].

Order XXVII

1- Suits by or against the government- It should be noted that in any suit by or against the government, the plaint or the written statement should be signed by such a person, as the government by general or special order, appoint in this behalf. State of Rajasthan v. Jaipur Hosiery Mills [12], in this case, it was held that the sanction to sign must be prior to the institution, and if not complied with this, the signing shall be by an incompetent person, and further, issuing of a retrospective sanction will not preserve the defect.

Government pleader is an agent under the order 27 of CPC. The government pleader acts as an agent for receiving processes issued against the government. Also he is the only person to intimate the court that he is representing the government and no stamped power of attorney or vakalatnama is required for the same [13].

Lutfar Rahman v. State of West Bengal [14]. In the aforementioned case, it was held that when a person other than the government pleader wants to act as an agent, it is possible only when the government agent intimates the Court that the former is acting under his directions. Rule 5 of Order 27, has been discussed in the next segment of this article.

2- Attendance of person being able to answer the questions related to suits against the government- The court may, in any case where government pleader is not accompanied by person on the part of the government and if he is able to answer the questions relating to suit, the court may direct the attendance of that person [15].

Comments and Suggestions

The amendment made in Section 80 is seen as that of a significant one, as it has acted as an added advantage while dealing with the case, clause (2) and (3) were added to Section 80 by the amendment of 1976. Sub Clause (2) has been inserted to permit the institution of the suit without notice, but it must be accepted only after giving a reasonable opportunity of showing cause in respect of relief claimed [16]. Sub-section (3) on the other hand prohibits the dismissal of a suit where the notice has been served but suffers from certain technical deficiencies.

It should also be taken into consideration that there exist various instances where there were widespread abuse and misuse of the concerned section by the government and public officials in order to dispose of the litigation on the grounds of technicality, and this aspect of the provision should be given more attention in order to overcome the negative aspects which exist in it. Moreover, sub-section (3) was included in the Section in order to offer a better clarification that no suit against the government or a public officer can be dismissed merely on the grounds of existence of defect or error in the notice.

Conclusion

Hence, all the three provisions which bring to light the various procedures and rules involved in the suit by or against the government or a public officer have been discussed and analyzed in detail. It can be said that the applicability of these sections must be determined by the law as it stands [17]. Further, if the procedure lay down by the rule in these sections is not followed, then the court is to proceed with the footing that there is no appearance of government pleader on behalf of the public officer. And lastly, the rules laid down in Order 27 are to be strictly abided by while filing a suit.

In addition to all the above-mentioned aspects, the sections regarding suits by or against the government and public officers also specify the procedure to be followed while filing of a writ and also what steps to be taken when there is permanent suit on appeal or if there is a revision.

There is also mention of the nature and applicability of Section 80 of the civil procedure code, and this section drags its attention towards the matter whether the serving of notice is a mere formality or is it a mandatory aspect under the section. Lastly, the section also deals with the aspect of what acts come under the arena of official capacity.

References

1. Ankit Vardhan, Suits by or against Government (Section 79 – 82 CPC), Legal Bites – Law and Beyond (August 2, 2017, 12: 10 PM), https://www.legalbites.in/suits-by-or-against-government-section-79-82/.
2. Namrata Shah, SECTION 79, 80 OF CODE OF CIVIL PROCEDURE 1908, Aaptaxlaw  (JUNE 7, 2016, 11: 30 AM), http://www.aaptaxlaw.com/code-of-civil-procedure/section-79-80-code-of-civil-procedure-suits-by-or-against-government-notice-section-79-80-of-cpc-1908-code-of-civil-procedure.html.
3. AIR 1930 All 225 (FB)
4. (1903) ILR 27 Bom 189.
5. AIR 1950 Cal 207.
6. Devika, Section 79 CPC detailed, The SCC Online Blog (October 5, 2018, 10: 10 AM), https://blog.scconline.com/post/2018/10/05/order-27-rule-5-cpc-mandates-the-court-to-ensure-disputes-concerning-public-undertakings-are-resolved-amicably-arbitrator-appointed-therefor-sc/.
7. AIR 1958 MP 425.
8. 68 IA109 AIR 1941 PC 64.
9. Adarsh Gill, Code of Civil Procedure 1908 section 80,  LegalCrystal (MAR 03, 2011, 2:45 PM), https://www.legalcrystal.com/cases/search/name:code-of-civil-procedure-1908-section-79.
10. AIR 1974 Ori 85.
11. AIR 1960 Cal 270.
12. AIR 1997 Raj 10.
13. Mulla, Code of Civil Procedure (Abridged) 390-406 (ed 523)
14. AIR 1954 Cal 455.
15. AIR 1980 P&H 318.
16. 3 Justice M.L. Singhal, Suranjan Chakraverti, Bholeshwar Nath,  Civil Procedure Code 412-35 (ed 347.05).
17. 7 C.K Takwani, Civil Procedure with limitation Act, 1963 426-37 (ed 347.05)