Suits by or Against Government | 10 Oct 2023

Introduction

• Section 79, Section 80 and Order XXVII of the Civil Procedure Code, 1908 (CPC) deal with the procedure where the suits are brought by or against the Government or Public officers acting in an official capacity.

Section 79, CPC

• Section 79 is a procedural provision and contains provisions in relation to the suits by or against the government.
• It states that 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.

• No cause of action is provided in this section, and it only declares the mode of the procedure when the cause of action arises.
  • In Jehangir v. Secretary of State (1904), the High Court of Bombay held that Section 79 of CPC only declares the mode of the procedure when the cause of action arises.
• Under this section, only the courts within whose local limits, the cause of action arises, have the jurisdiction to try the suit.

Section 80, CPC

• Section 80 of CPC deals with the provisions relating to notice which a condition precedent before filing a suit against the government or against a public servant.
• It states that -

(1) Save as otherwise provided in sub-section (2), no suits shall be 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, until the expiration of two months after notice in writing has been delivered to, or left at the office of—

(a) in the case of a suit against the Central Government, except where it relates to a railways, a Secretary to that Government;

(b) in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway;

(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district 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.

(2) A suit to obtain an 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 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 needs to 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 had been delivered or left at the office of the appropriate authority specified in sub-section (1), and

(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.

• The object of the notice is to give the government or public servant an opportunity to reconsider its or his legal position and to make amendments if so, advised by the legal expert.
  • In Bihari Chowdhary v. State of Bihar (1984), the Supreme Court held that the object of Section 80 of CPC is the advancement of justice.
• This Section applies to all suits whether they are suits for injunctions or suits for declarations and suits for damages.
  • It does not apply to the writs filed before the High Court or the Supreme Court.
• A notice must contain:
  • Name, description, and place of residence of the person giving notice
  • A statement of the cause of action.
  • The relief claimed by the person.

Order XXVII, CPC

• This order deals with the Suits by or against the government or public officers in their official capacity.
• Rule 1 of Order XXVII states that in any suit by or against 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.
• Rule 2 of Order XXVII states that the persons being ex officio or otherwise authorized 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.
• Rule 3 of Order XXVII states that 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 of CPC.
• Rule 4 of Order XXVII provides that the Government Pleader shall be the agent of the Government for the purpose of receiving processes against the Government by the Court.
• Rule 5 of Order XXVII provides that the Court will, in fixing the day for the Government to answer the plaint, shall allow a reasonable time for the necessary communication with the Government through the proper channel.
  • Rule 5A of Order XXVII provides that the Government will be joined as a party in a suit against a public officer in respect of any act alleged to have been done by him in his official capacity.
  • Rule 5B of Order XXVII deals with the duty of Court in suits against the Government or a public officer to assist in arriving at a settlement.
• Rule 6 of Order XVII provides that the court can direct the attendance of a person who is able to answer any material question relating to the suit against a government.
• Rule 7 of Order XVII deals with the extension of time to enable public officers to make reference to the Government.
• Rule 8 of Order XVII provides that where the government undertakes a defense of suit against a public officer, the government pleader will apply to the court for the same and court upon such application shall cause a note of his authority to be entered in the register of civil court. If no application is made by a government pleader, then the case shall proceed as in a suit between private parties:
  • Rule 8A of Order XVII provides that no such security as is mentioned in rules 5 and 6 of Order XLI shall be required from the Government.
  • Rule 8B of Order XVII contains the definition of Government and Government pleader.