Suits by and against Government.pptx

Suits by and against Government.pptx

• 1.
  -Dr. Deipa Singh
• 2.
  Sections 79 to82 and Order 27 of the Code lay down the procedure where suits are brought by or against the Government or public officers. The provisions, however, prescribe procedure and machinery and do not deal with rights and liabilities enforceable by or against the Government. Substantive rights are to be determined in accordance with the provisions of the Constitution.
• 3.
  In ordinary suits,ie, suits between individuals and individuals, notice need not be given to the defendant by the plaintiff before filing a suit. Section 80 of the Code however, declares 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 officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of concerned department of the Government.
• 4.
   79. Suitsby or against Government.—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.
• 5.
   80. Notice.(1)Save as otherwise provided in sub-section  (2) no suits shall be instituted] 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 official capacity, until the expiration of two months next 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 railway] 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;  [(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorized by that Government in this behalf;  (c) in the case of a suit against any other State Government], a Secretary to that Government or the Collector of the district;
• 6.
   and, inthe 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 (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, 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 need 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.]
• 7.
   81. Exemptionfrom arrest and personal appearance.—In a suit instituted against a public officer in respect of any act purporting to be done by him in his official capacity—  (a) the defendant shall not be liable to arrest nor his property to attachment otherwise than in execution of a decree, and,  (b) where the Court is satisfied that the defendant cannot absent himself from his duty without detriment to the public service, it shall exempt him from appearing in person.
• 8.
   82. Executionof decree.—(1) Where, in a suit by or against the Government or by or against a public officer in respect of any act purporting to be done by him in his official capacity, a decree is passed against the Union of India or a State or, as the case may be, the public officer, such decree shall not be executed except in accordance with the provisions of sub-section.  (2) Execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the date of such decree.  (3) The provisions of sub-sections (1) and (2) shall apply in relation to an order or award as they apply in relation to a decree, if the order or award—  (a) is passed or made against the Union of India or a State or a public officer in respect of any such act as aforesaid, whether by a Court or by any other authority; and  (b) is capable of being executed under the provisions of this Code or of
• 9.
   1. Suitsby or against Government.—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.  2. Persons authorised to act for Government.—Persons being ex officio or otherwise authorised to act for the Government in respect of any judicial proceeding shall be deemed to be recognised agents by whom appearances, acts and applications under this Code may be made or done on behalf of the Government.  3. Plaints in suits by or against Government.—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 1 [the appropriate name as provided in section 79  4. Agent for Government to receive process.—The Government pleader in any Court shall be the agent of the Government for the purpose of receiving processes against the Government issued by such Court].
• 10.
   5. Fixingof day for appearance on behalf of Government.—The Court, in fixing the day for 1 [the Government] to answer to the plaint, shall allow a reasonable time for the necessary communication with the Government through the proper channel, and for the issue of instructions to the 7 [Government pleader] to appear and answer on behalf of 8 [the Government] 9***, and may extend the time at its discretion 10[but the time so extended shall not exceed two months in the aggregate]. 8  5A. Government to be joined as a party in a suit against a public officer.—Where a suit is instituted against a public officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the Government shall be joined as a party to the suit.  5B. Duty of Court in suits against the Government or a public officer to assist in arriving at a settlement.—(1) In every suit or proceeding to which the Government, or a public officer acting in his official capacity, is a party, it shall be the duty of the Court to make, in the first instance, every endeavour, where it is possible to do so consistently with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.
• 11.
   (2) If,in any such suit or proceeding, at any stage, it appears to the court that there is a reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit, to enable attempts to be made to effect such a settlement.  (3) The power conferred under sub-rule (2) is in addition to any other power of the Court to adjourn proceedings.].  6. Attendance of person able to answer questions relating to suit against Government.—The Court may also, in any case in which the 5 [Government pleader] is not accompanied by any person on the part of 1 [the Government] who may be able to answer any material questions relating to the suit, direct the attendance of such a person.  7. Extension of time to enable public officer to make reference to Government.— (1) Where the defendant is a public officer and, on receiving the summons, considers it proper to make a reference to the Government before answering the plaint, he may apply to the Court to grant such extension of the time fixed in the summons as may be necessary to enable him to make such reference and to receive orders thereon through the proper channel. (2) Upon such application the Court shall extend the time for so long as appears to it to be necessary.
• 12.
   8. Procedurein suits against public officer.—(1) Where the Government undertakes the defence of a suit against a public officer, the 1 [Government pleader] upon being furnished with authority to appear and answer the plaint, shall apply to the court, and upon such application the Court shall cause a note of his authority to be entered in the register of civil suits. (2) Where no application under sub-rule (1) is made by the 1 [Government pleader] on or before the day fixed in the notice for the defendant to appear and answer, the case shall proceed as in a suit between private parties: Provided that the defendant shall not be liable to arrest, nor his property to attachment, otherwise than in execution of a decree.  8A. No security to be required from Government or a public officer in certain cases.— No such security as is mentioned in rules 5 and 6 of Order XLI shall be required from the Government or, where the Government has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done by him in his official capacity. ,  8B. Definitions of “Government” and “Government pleader”.—In this Order 3 [unless otherwise expressly provided] “Government” and 1 [“Government pleader”] mean respectively—  (a) in relation to any suit by or against 4*** the Central Government, or against a public officer in the service of that Government, the Central Government and such pleader as that Government may appoint whether generally or specially for the purposes of this order;  (b)XXX deleted  (c) in relation to any suit by or against State Government or against a public officer in the service of a State. the State Government and the Government pleader 6 [as defined in clause (7) of section 2], or such other pleader as the State Government may appoint, whether generally or specially, for the purposes of this Order.].
• 13.
  Section 80 ofthe Code enacts a rule of procedure and clarifies that no suit shall be instituted against the Government or against a public officer until a statutory notice required by the section is served. The section enumerates two types of cases:  Suits against the Government; and  Suits against public officers in respect of acts done or purporting to be done by such public officers in their official capacity.
• 14.
   Regarding thefirst 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 otherwise.  The expression “any act purporting to be done by such public officer in his official capacity” takes within its sweep acts as also illegal omissions. Likewise, it also covers past as well as future acts
• 15.
   All actsdone or which could have been done under the colour or guise by an officer in the ordinary course of his official duties would be included therein.  If the allegations in the plaint relate to an act purporting to be done by a public officer, whatever the relief prayed for, the section is attracted and a notice is mandatory.  Again, act does not mean any particular specific or instantaneous act of a person but denotes a series of acts.  Such acts must be bona fide and they must have some nexus with the duty of the officer.  The expression “any act purporting to be done by such public officer in his official capacity” connotes that the act must be such as could ordinarily be done by a person in the ordinary course of his official duties. It does not cover acts outside the sphere of his duties.  “There must be something in the nature of the act complained of which attaches to the official character of the person doing it”.
• 16.
   The primaryobject underlying Section 80 is to afford an opportunity to the Government or the public officer to consider the legal position and to settle the claim put forward by the prospective plaintiff if the same appears to be just and proper.  The Government, unlike private parties, is expected to consider the matter objectively and dispassionately and after obtaining proper legal advice, it can take an appropriate decision in the public interest within a period of two months allowed by the section by saving public time and money and without driving a person to avoidable litigation.  The legislative intent behind the provision is that public money should not be wasted for unnecessary litigation. The section has been intended to alert the Government or public officer to negotiate just claims and to settle them if well- founded without adopting an unreasonable attitude by inflicting wasteful expenditure on the public exchequer.
• 17.
   A noticeunder Section 80 must contain i. name, description and place of residence of the person giving notice; ii. a statement of the cause of action; and iii. Relief claimed by him.  In considering whether the essential requirements of the section have been complied with, the court should ask the following questions:  Whether the name, description and residence of the plaintiff are given so as to enable the authorities to identify the person giving the notice?  Whether the cause of action and the relief which the plaintiff claims have been set out with sufficient particulars?  Whether such notice in writing has been delivered to or left at the office of the appropriate authority mentioned in the section? And  Whether the suit has been instituted after the expiration of two months after notice has been served and the plaint contains a statement that such a notice has been deliever of left?
• 18.
   Statutory noticeis not an empty formality. The object is to afford an opportunity to the Government or a public officer to reconsider the matter in the light of the settled legal position and take an appropriate decision in accordance with law. Such notice has, however, become an empty formality. The administration is often unresponsive and shows no courtesy even to intimate the aggrieved party why his claim is not accepted.  The provisions of Section 80 are express, explicit and mandatory and admit no implications or exceptions. They are imperative in nature and must be strictly complied with. They impose absolute and unqualified obligation on the court. No court can entertain a suit unless the notice is duly served under sub-section (1) of Section 80. If the section has done injustice, it is a matter which can be rectified by a Legislature and not by a court.  The provisions of Section 80 of the Code must be strictly complied with. But it cannot be overlooked that it is a procedural provision, a machinery by which courts impart justice A notice under this section, therefore, should not be construed in a pedantic manner divorced from common sense.
• 19.
   The questionhas to be decided by reading the notice as a whole in a reasonable manner. If on such reading, the court is satisfied that the plaintiff has shown to have given the necessary information which the statute requires him to give to the defendants, inconsequential defect or error is immaterial and it will not vitiate the notice. As observed by the Supreme Court, the provisions of the section are not intended to be used as boobytraps against ignorant and illiterate persons.  Sub-section (2) of Section 80 is inserted by the Code of Civil Procedure (Amendment) Act, 1976 enables the plaintiff to institute a suit against the Government or public officer for obtaining urgent or immediate relief with the leave of the court even without serving notice to the Government or public officer. This sub-section, thus, engrafts an exception to the rule laid down in sub-section (1) of Section 80 and allows the plaintiff to obtain urgent relief in grave cases even without issuing notice.
• 20.
   Due towidespread misuse and abuse by the Government and Public officers of this section to dispose of litigation on grounds of technicalities, sub-section (3) to Section was inserted by the Code of Civil Procedure (Amendment) Act, 1976.  It clarifies that not suit instituted against the Government or public officer shall be dismissed merely on the ground of error or defect in the notice, if, in such notice, the name, description and residence of plaintiff had been so given as to enable the authority or public officer to identify the person serving the notice and such notice has been delivered or left the officer of authority or public officer concerned.