This article has been written by Yashika Kapoor, a student pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.
Table of Contents
Understanding the purview of special suits
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SECTION |
SUITS IN PARTICULAR CASES/SPECIAL SUITS  |
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Sec 79-82 |
Suits by or against Government or public officers in their official capacity |
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Sec 83-87A |
Suits by aliens and by or against foreign rulers, ambassadors, and envoys |
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Sec 87B |
The suit against Rulers of former Indian states |
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Sec 88 
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Interpleader |
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Sec 89 |
Arbitration |
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Sec 90 |
Special case |
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Sec 91-93 |
Public nuisances and other wrongful acts affecting the public |
Not all suites have a uniform procedure to be followed. There are some suits that follow a different and specific procedure as per the Code of Civil Procedure, 1908. Part IV of the Code of Civil Procedure, 1908 deals with Suits in Particular Cases. Based on the type of procedure involved, suits are categorized as Suits in General and Special Suits. Sections 79 to 93 of the Code of Civil Procedure, 1908 (herein referred to as ‘CPC’) govern special suits and Orders 27 to 37 of CPC deal with the procedure involved in special suits.
Suits by or against the government or public officers in their official capacity
Section 79-82 of the Code deals with suits by or against the government or public officers in their official capacity. According to Section 79 of the Code, when any suit is filed against the government, then the government shall be referred to as defendant in the suit and likewise, if any suit is filed by the government, then the government will be referred to as Plaintiff in the suit. However, it is pertinent to note that if any such suit is filed either by the Central Government or against the Central Government, then the plaintiff or defendant, as the case may be, shall be the Union of India. And, if any such suit involves State Government, then, the party to suit will be referred to as the State.
In-state of Rajasthan v Vidyawati, the Hon’ble Supreme Court observed that in case if any wrongs are committed by the government employees during their employment, then the government itself will be liable for the acts committed by its employees. However, such acts must not include the sovereign powers of the government. In Bhagchand Dagadusa vs The Secretary Of State For India on 15 August 1923, the Bombay High Court observed it was observed by the court that the procedure to deal with suits by or against the government is laid down under order 27 and Section 79-82 of the Code. However, those rights and liabilities that are enforceable either against the government or by the government are not covered by these provisions.
Requirement of notice ( Section 80(1))
In ordinary suits, i.e. suits between two or more individuals, there is no mandate to serve notice to the defendant by the plaintiff before instituting a suit. However, Section 80 is an exception to this general rule followed in ordinary suits. This is so because as per Section 80, the plaintiff can sue neither the government nor against a public officer with regards to acts that are purported to be completed by the public officers working in the official capacity. Such a suit by or against the government official can only be filed after the expiration of the next two months of receiving the notice by the government or public official in writing.
The notices can also be served in the following offices:
- In case if any suit is filed against the Central Government, excluding the cases of railway, a notice shall be served to the Secretary to that Government;
- In the case, if a suit is filed against the Central Government, involving the matters of railway, then the notice shall be served upon the General Manager of that Railway;
- In case when the suit is against the Government of the State of J&K, the notice shall be served upon the Chief Secretary to that Government or any other officer authorized by that Government on that behalf;
- In case if a suit is filed against any other state Government, then the notice shall be served upon the Secretary to that Government or the Collector of the district;
- In case if a suit is filed against a public officer, then the notice shall be served upon that public officer.
Section 80(2) is an exception to Section 80(1) of the Code as it states that when a suit is filed for obtaining immediate relief either against the government or any public officer working in its official capacity, then without serving notice on the opposite party, such suit shall be filed after taking the permission of the court. According to Section 81 of the Code, when a suit is filed against a public office due to his conduct in his official capacity, then such public officer shall neither be arrested nor will his property be attached. Furthermore, in case the court accepts that it is impossible for the public officer to appear before the court, he shall be excluded from presenting himself from the court. The execution of the decree has been explained under Section 82 of the Code. Section 82(2) strictly forbids the execution of the decree passed under 82(1) against the public officer or government, as the case may unless the decree remains unsatisfied for three months calculated from the date when the decree is passed.
It has been observed by the court in The State of Bihar And Anr. vs Jiwan Das Arya, that section identifies two types of cases: Firstly, those suits are filed against the Government; wherein the notice has to be given under all cases. Secondly, those suits filed against public officers; wherein notice is obligatory only in cases where the suit is filed in respect of any act “purporting to be done” by such public officer in the discharge of the public officer’s duty, and whereas not in other cases.
The importance of sending a notice under Section 80 (1) of the Code has been discussed by the Hon’ble Supreme Court in The State Of Madras vs C.P. Agencies And Anr where it was held that the main objective of sending a notice under section 80 before filing a suit against the concerned public official or government, is to give a chance to the respective office or government to consider their legal position and settle the claim made by the plaintiff if such claim seems to be proper. The government needs to make any decision in the interest of the public after taking legal advice and revert to the public within two months. This would not only save the public’s time and money but also help them to avoid litigation. Also, the court pointed out that the legislative intent behind such a section is to save public money and not waste it by indulging in unnecessary litigation.
Suits by aliens
This section discusses those cases wherein aliens will be permitted to institute a suit. According to Section 83 of CPC, the alien enemies residing in India, after seeking permission from the Central Government as well as the alien friends are allowed to sue as if they were citizens of India. The alien enemies can file the suit in any court competent to try a suit of a citizen. However, it is pertinent to note that the alien enemies residing in India without permission of the Central Government or residing in a foreign country are not allowed to sue in any court of India. Furthermore, Section 84 of the code permits the foreign state to institute a suit incompetent court.
Section 85 of the Code states that the government shall appoint specific persons for either prosecution of the foreign rulers or their defense. Here, the term ‘Government’ ideally refers to the Central Government. Such appointed persons shall be deemed to be the recognized agents working on behalf of the foreign rulers. Section 86 further deals with those suits that are instituted against foreign rulers, ambassadors, and envoys whereas Section 87 states the style or patterns of such foreign rulers as parties to suit. According to this provision, it is specified that the ruler of a foreign state can both sue as can be sued, however in the name of their state. For a better understanding of the terms Foreign State and Ruler, reference must be given to Section 87A that provides its definition. Any state which is outside the boundaries of India but at the same it is recognized by the Central Government, then such state shall come under the purview of ‘Foreign State’ and whereas the person acting as the head of the Foreign State, appointed and recognized by the Central Government, is a Ruler. Section 87B of the Code provides suits instituted against rulers of Former Indian States that means when any suit is instituted by the state which depends upon a cause of action that arose before the origination of the Indian Constitution, then the aforesaid provisions (Section 85 and Section 86) will be applied with respect to such ruler of former India states.
Interpleader suits
Section 88 of CPC, 1908 provides for interpleader suits. The word ‘To Interpleader’ implies ‘to litigate with each other to settle a point concerning the third party. The procedure to institute an Interpleader Suit is given under Order 35 of CPC, 1908. An interpleader suit is defined as a suit wherein no dispute is between the parties; namely the plaintiff and the defendant, but the dispute is actually between the defendants themselves, who inter-plead against each other. One can differentiate between an original suit and an interpleader suit as the former is a dispute between plaintiff and defendant whereas the latter is between defendants. In such types of suits, the plaintiff is least attentive towards knowing the subject matter of the suit. However, the plaintiff in such a suit must be in a position of impartiality/ non-arbitrariness.
The reason behind filing an interpleader suit is to get the claims of rival defendants adjudicated. In the case of Groundnut Extractions Export Development Association vs State Bank Of India, “the interpleader suit was understood as a process wherein the plaintiff calls upon the rival claimants to appear before the court and get their respective claims decided. The decision of the court in an interpleader suit affords indemnity to the plaintiff on payment of money or delivery of property to the person whose claim has been upheld by the court”.
Test
To decide whether a suit is an interpleader suit or not, the court must specifically look into the prayer clause in the plaint. In Groundnut Extractions Export Development Association vs State Bank Of India, the court opined that “A suit does not become an interpleader suit merely because the plaintiff requires the defendants to interplead with each other as regards one of the prayers in the plaint”.
Who can file interpleader suits?
In National Insurance Co. Ltd. vs Dhirendra Nath Banerjee And Anr, it was observed that one can file an interpleader suit in case there exists two or more than two individuals claiming adversely to one another for some debt, money, movable property, or immovable property, from a person who does not claim any interest therein expect the charges and costs incurred by him that person is also ready to pay the same to the rightful claimant. In simple terms, an interpleader suit can be filed by: Any person who has no interest in any debt, money, or, other property (movable or immovable), the person excludes the charges and costs incurred by him and lastly that person is also ready to pay the debt, money, or, other property to the rightful claimant.
Who cannot file interpleader suits?
Order 35, Rule 5 of the CPC, 1908 provides that, neither an agent can sue his principal, nor a tenant can sue his landlord to compel the principals and landlords to interplead with persons other than persons claiming through these principals and landlords.
Procedure
The procedure to file an interpleader suit is given under Order 35 CPC. 1908. Order 35 Rule 1, 1908 provides that the interpleader must particularly mention in his plaint that,
(i) The plaintiff do not claim any interest in the subject matter of the dispute except the costs and charges
(ii) The claims that are mentioned by the defendants severally
(iii) No collusion is observed between the plaintiff and any of the defendants.
Apart from the aforementioned claim, the interpleader can also mention other statements as well.
- Order 35, Rule 2 of CPC, 1908, gives the court discretionary power whereby if a thing is claimed and it is capable of being paid into the court, then, the plaintiff has to deposit such an amount or thing before the court. In case, such a thing is a property, then the property shall be placed in court.
- Order 35, Rule 3 of CPC, 1908 provides that in an interpleader suit if any of the defendants sue the plaintiff with regards to the subject matter of the suit, then in such case, the court where the suit is instituted against the plaintiff is pending, will stay the proceedings in that suit as against the plaintiff.
- Order 35, Rule 4 of CPC, 1908 gives the court discretionary power to declare at the first hearing itself, the fact that the plaintiff is discharged from all liabilities and award the plaintiff his costs and dismiss him from the suit. But, in case the court believes that to uphold justice, propriety, and convenience, the inclusion of all parties (plaintiff and defendant) to the suit be retained, then, the court in such will not discharge the plaintiff till the final disposal of the suit.
- Order 35, Rule 5 of CPC, 1908 states that the agents, as well as the tenants, won’t be permitted to file an interpleader suit against their principles or landlords respectively.
Arbitration
Section 89 of the CPC, 1908 provides for the settlement of disputes outside the courts. It is one of the most important provisions given in the Code, This section makes it necessary for the parties to resolve their disputes falling under the domain of civil litigation through the mechanisms of Alternative Dispute Resolution. In cases where the court observes that there is the existence of such elements of a settlement acceptable and favorable to both parties, then the court refers to such cases for arbitration, conciliation, Lok Adalat, or mediation. Section 89(2) provides the procedure followed in different mechanisms of Alternative Dispute Resolution i.e. arbitration, conciliation, Lok Adalat, or mediation. In case the parties to suit are unable to resolve their dispute by using the modes of ADR, the matter will then continue in the same court in which such a suit was instituted earlier. For further reading click, refer to this link (https://bit.ly/2QEfXjT).
Friendly suits
A special type of suit namely a friendly suit is defined under Section 90 of the CPC and Order 36 lays down its procedure. It is a special kind of suit wherein the plaintiff and defendant do not approach the court and the plaintiff in such suits does not present a complaint. The procedure used in ordinary civil litigation is different from that in friendly suits. The parties in friendly suits are concerned about the decision on any question of fact or law. For determining the question of law or question of fact, both parties agree in writing whereby they state these questions similar to the manner a case is filed. The same is done to obtain the opinion of the court. The court may decide the question if it is satisfied that such a question is fit to be decided. Order 36 Rule 1-6 lays down the procedure for special cases or friendly suits.
According to Order 36 Rule 1, certain conditions are to be satisfied for the case to qualify as a friendly suit under Section 90 of CPC.
- The agreement must be duly executed between the plaintiff and defendant.
- The case is fit to be decided.
- Plaintiff and Defendant have a bonafide interest in the question so asked.
It is important to note that as a decree passed in a friendly suit under Section 90 is like a compromise decree, henceforth the same is not appealable.
Order 36, Rule 2 of CPC, 1908 provides that in cases where the agreement pertains to the delivery of property, or it involves a case where one party is stopping the other party from doing an act, then in such cases, it is compulsory to state in the agreement the estimated value of the property that needs to be delivered, or in other case expected value of the act mentioned hereinabove. Furthermore, as per Rule 3, if such an agreement is made following all the rules laid down in Order 36, then it shall be filed along with an application before the court having territorial and pecuniary jurisdiction to deal with it. The said application will be treated as a suit following which notice shall be served upon the parties to the agreement, however excluding the party who originally made the application in the court. Rule 4 and Rule 5 deal with the jurisdiction of the court and hearing and disposal of the case respectively. Order 37 summary suits and Order 33 suits by indigent persons are also covered under the purview of special suits.
Public nuisances and other wrongful acts affecting the public
Section 91 deals with suits concerning public nuisances and any other wrongful acts affecting the public. It states that in the case when public nuisance or any wrongful act that is harming the public at large is observed, then an Advocate General can file a suit for declaration and injunction shall be made. Even two or more two persons can institute a suit against such nuisance even if no harm is caused to them with the permission of the court.
Section 92 deals with suits instituted in the case of public charities. According to this provision, if any express or constructive trust is created for public use having a religious or charitable nature is likely to have been breached, or otherwise requires the direction of the court for the purpose of administering the trust, then in such an Advocate General or two or more than two persons possessing an interest in the trust can institute a suit before the principal civil court having original jurisdiction or in any other court. The suit shall be filed to attain decree for various reasons like; appointment of a new trustee, removal of any trustee, direction of accounts and inquiries, settling scheme, or granting relief as mentioned in the section.
Conclusion
We have discussed several cases which come under the purview of special suits. Each special case enumerates its own imperative features. Under Section 79 of the code, the plaintiff has to keep in mind that he is required to serve notices upon the Government or any public officer before instituting suit against them. Section 89 of the code talks about Alternative Dispute Resolution under Civil litigation. The conflicting parties can easily resolve their dispute by utilizing this provision. This will not only save litigation costs and time for the parties but also save the court’s crucial time. One of the very interesting suits which have been discussed includes the friendly suit under Section 90 of the Code. The fascinating part of this special kind of suit is that neither the parties approach the court nor the plaintiff presents a plaint. Suits concerning public nuisances and other wrongful acts affecting the public have also been discussed. These special suites have a crucial role to play as they involve public interest. The decisions made in these suits have an impact on the public at large. Hence, all such cases falling under the purview of special suits are of great significance and so are defined extensively in the Code.
References
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