This article has been written by Karan Sharma, pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho. It has been edited by Zigishu Singh (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho). 

Introduction

The system of filing suits has long prevailed in Indian legal history. The institution of a civil suit is always preceded by the issuance of a legal notice. The legal notice is a document in which the respondent is told about the allegations that are being levied upon him, or whether he has failed to fulfill any obligation, or if he has been negligent. Order 6 Rule 11 of the Code of Civil Procedure, 1908 states that notice is basically a document where one communicates the material allegations against a person they are sending the notice to, which is usually the defendant.

The above-mentioned issuance of notice is a practice followed in a civil suit against a private individual, but, if one needs to file a suit against the Government or a public officer, then the process for the institution of suit and issuing of the notice is different. Section 80 of the Code of Civil Procedure, 1908 states that if there is a suit being initiated by the plaintiff against the Government or a public officer, then the plaintiff shall give the legal notice at least 2 months prior to the date of filing the suit in the court. This is not suggestive but a mandatory period. 

What does the Section 80 of the Code of Civil Procedure, 1908 state?

Section 80 of the Code of Civil Procedure, 1908 states the following:

• No suits shall be brought 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 professional duties, until two months have passed after notice in writing has been delivered to, or left at, the Government or public officer’s office.

Is there any exemption to waive off the 2 month statutory time period?

The Section 80(2) of the code states the following:

• That with the permission of the Court, a suit for 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 without serving any notice as required by sub-section (1); however, the Court shall not grant relief in the suit, whether interim or otherwise, unless the Government or public officer.

After understanding the role of notice for instituting a suit against the government or a public officer, we can more thoroughly understand the objective and concept of Section 80 of the Code of Civil Procedure, 1908, that is, serving the Government or a Public Servant with a legal notice before instituting a suit against them. A thorough understanding of the above-mentioned concept can be obtained by analysing the case of “BIHARI CHOWDHARY v. STATE OF BIHAR 1984 AIR 1043”

Bihari Chowdhary v. State of Bihar 

Brief facts of the case

The appellants in the above-mentioned case filed a suit for declaration of title and possession of the immovable property. One of the parties against which the suit was instituted was the state government. Antecedent to the institution of the suit, the appellants issued a notice to the State Government under Section 80 of the Code of Civil Procedure, 1908. The appellants/plaintiffs then, without waiting for the statutory period which is given in the provision to end, filed the suit in the Court before the expiry of the time period of 2 months. The representative for the State Government argued that the above-mentioned filed suit was not maintainable in the court of law as the filing of the above-mentioned suit was done before the expiration statutory period of 2 months as given in Section 80 of the Code of Civil Procedure, 1908. The State Government argued that the filing of such a suit is in contravention of the law stated in the Code of Civil Procedure, 1908. The State Government, through its representative persistently stated that as per the law, after the governing bodies have been provided any legal notice under Section 80, 2 months must elapse from the date of the notice before the institution of the suit and the suit was filed before the expiry period of the 2 months and thus the suit is not maintainable and shall be dismissed accordingly. The trial court after listening to the contesting arguments of the State Government through its representative dismissed the suit on the ground that the suit is not maintainable as the suit is filed in contravention to the governing provision. The appellants then approached the appellate court where their appeal was dismissed. Then the appellants also approached the Second Appellate Court, which was the High Court. The High Court also dismissed the appeal filed by the appellants stating that their suit is filed in contravention of the law and thus it is not maintainable. The appellants then approached the Supreme Court with the appeal regarding the maintainability of the suit. The Supreme Court also dismissed the mentioned appeal giving various reasons which will be explained further in the article below.

The Supreme Court’s reasons for dismissal of the appeal and explaining the objectives of section 80 of The Code Of Civil Procedure, 1908

The Supreme Court stated the reasons pertaining to the dismissal of the appeal. The Apex Court held the following:

1. A suit against the government or a public officer that is subject to the requirement of a prior notice under Section 80 Code of Civil Procedure, 1908 cannot be validly instituted until the expiration of the two-month period following the delivery of the notice in writing to the authorities concerned in the manner prescribed in the said section, and if filed before the expiration of that period, the suit must be dismissed as the following suit is not maintainable as per the law.
2. Prior to its amendment by Act 104 of 1976, the effect of Section 80 Code of Civil Procedure, 1908 was to expressly preclude the institution of a suit against the Government or a public person in respect of any act purportedly done by him in his official capacity until two months had passed after notice had been issued. This required requirement is plainly intended to serve the interest of the public.
3. The scheme of the Section reveals that it was enacted as a public policy measure with the goal of ensuring that before a suit is filed against the Government or a public officer, the Government or the public officer intimately involved is given an opportunity to critically analyse the claim in question and, if it is found to be a just claim, to take decisive action, thereby avoiding unnecessary litigation and wasting taxpayers’ money.
4. When the wording employed in the statute is clear and unambiguous, it is the Court’s straightforward obligation to give lasting effect to it, and hardship will not be a legitimate reason for not faithfully carrying out the legislature’s constitutional obligation.

Conclusion

The meaning and object of a “Notice” have been explained in the content above, but to summarise it, we can say that the concept of legal notice is not merely confined to alleging a person of wrongdoing but to also upholding the spirit of justice by giving the other party a chance to represent and defend themselves from such allegations. It also helps in getting the fair stage of a suit by both the parties knowing the allegations that are to be proved, disproved, and defended. The notion of Section 80 of the Code of Civil Procedure, 1908 is to provide the Government or the public officer a time to understand the problem or the grievance and act upon it instead of directly getting sued. There is no denying the fact that the courts exist such that all individuals may receive justice, but the courts are overburdened with cases. So, in that case, if providing the Government or the public officer some time to rectify the grievance helps in lowering the burden of the court, then, in that case, Section 80 of the Code of Civil Procedure, 1908, that talks about legal notices to the Government and public officer is a really helpful accessory in order to get the needful done by the Government or public officer without the interference of long and monotonous legal proceedings. Still, this provision does not bar the aggrieved from approaching the court without issuing the notice to the government official party if the solution needed is of an immediate nature.

References

1. Indian Kanoon.org for the judgment: https://indiankanoon.org/doc/764318/
2. Code of Civil Procedure, Bare Act by Universal Publications
3. Code of Civil Procedure, Bare Act by India Code: https://legislative.gov.in/sites/default/files/A1908-05.pdf
4. Civil Procedure SIXTH EDITION Justice CIC Thakker (Takwani): https://pdfcoffee.com/cpc-by-ck-takwanipdf-pdf-free.html
5. Case Summary: Bihari Chowdhary Vs. State of Bihar by E-Justice India: http://www.ejusticeindia.com/case-summary-bihari-chowdhary-vs-state-of-bihar/
6. Everything you must know about legal notice and its format by iPleaders.in: https://blog.ipleaders.in/legal-notice-format/
7. Suits brought by or against Government or Public Officers: https://www.lawctopus.com/academike/suits-brought-government-public-officers/
8. Suits By or Against Government Or Public Officers In Their Official Capacity: https://www.legalserviceindia.com/legal/article-2075-suits-by-or-against-government-or-public-officers-in-their-official-capacity.html

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