suits by government

1. -Dr. Deipa Singh

2. Sections 79 to 82 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. Suits by 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, 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 (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. Exemption from 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. Execution of 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. Suits by 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. Fixing of 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. Procedure in 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 of the 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 the first 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 acts done 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 primary object 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 notice under 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 notice is 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 question has 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 to widespread 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.