GOVERNMENT AS A PARTY IN CIVIL SUITS

A Rough Draft submitted in partial fulfilment of the

course CODE OF CIVIL PROCEDURE, 5th SEMESTER during the
Academic Year 2018-2019

SUBMITTED BY:
Gaurav Kumar Singh
Roll No. - 1621
B.B.A LL.B

SUBMITTED TO:
Dr. MEETA MOHINI
CODE OF CIVIL PROCEDURE

SEPTEMBER, 2018
CHANAKYA NATIONAL LAW UNIVERSITY, NAYAYA
NAGAR, MEETHAPUR, PATNA-800001
 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.B.A. LL.B (Hons.) Project Report entitled
“GOVERNMENT AS A PARTY IN CIVIL SUITS” submitted at Chanakya National Law
University; Patna is an authentic record of my work carried out under the supervision of Prof.
Dr. Meeta Mohini. I have not submitted this work elsewhere for any other degree or diploma.
I am fully responsible for the contents of my Project Report.

(Signature of the Candidate)

GAURAV KUMAR SINGH

Chanakya National Law University, Patna

i
 ACKNOWLEDGEMENT

“IF YOU WANT TO WALK FAST GO ALONE

IF YOU WANT TO WALK FAR GO TOGETHER”

A project is a joint endeavour which is to be accomplished with utmost compassion, diligence

and with support of all. Gratitude is a noble response of one’s soul to kindness or help
generously rendered by another and its acknowledgement is the duty and joyance. I am
overwhelmed in all humbleness and gratefulness to acknowledge from the bottom of my
heart to all those who have helped me to put these ideas, well above the level of simplicity
and into something concrete effectively and moreover on time.

This project would not have been completed without combined effort of my revered teacher
Dr. Meeta Mohini whose support and guidance was the driving force to successfully
complete this project. I express my heartfelt gratitude to him. Thanks are also due to my
parents, family, siblings, my dear friends and all those who helped me in this project in any
way. Last but not the least; I would like to express my sincere gratitude to our Code of Civil
Procedure and Limitation Act teacher for providing us with such a golden opportunity to
showcase our talents. Also this project was instrumental in making me know more about the
Government as a party in Civil Suit. This project played an important role in making me
understand more about the relation between law and economics.

Moreover, thanks to all those who helped me in any way be it words, presence,

Encouragement or blessings...

- GAURAV KUMAR SINGH

- 5th Semester

- B.BA LL.B

ii
 TABLE OF CONTENTS

Declaration……………………………………………………………………………………i

Acknowledgement…………………………………………………………………………….ii

Table of Contents…………………………………………………………....……………….iii

Aims and Objectives……………………………………………………………………….…iv

Hypothesis................................................................................................................................iv

Research Methodology......................................................................................................…..iv

1. Introduction………………………………………………………………………….1-2

2. Suits by or against government……………………….…...................................…......3

3. Distinction between Section 79 and 80..........................................................................4

4. Notice..........................................................................................................................5-8

5. Amendment........................................................................................................……....9

6. Nature and Applicability..............................................................................................10

7. Provisions under Order 27………………………………………………………11-14

8. Case Laws………………………………………………………………………........15

9. Conclusion..............................................................................................................16-17

Bibliography……………………………...………………………….....………........………18

iii
 AIMS AND OBJECTIVES

The Aims and Objectives of this project are:

1. To study about the procedure to be followed against or by government.

2. To study the benefits given to government.

HYPOTHESIS

The researcher considers the following hypothesis:

1. Even after having this act there is a need to do some amendments.

RESEARCH METHODOLOGY

For this study, primary research method was utilised. Various articles, e-articles, reports and
books from library were used extensively in framing all the data and figures in appropriate
form, essential for this study.
The method used in writing this research is primarily analytical.

iv
 INTRODUCTION
The Government enjoys certain privileges in Civil Litigation. 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.1 In ordinary suits, i.e.,
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 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. 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. 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". 2

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

1
http://www.legalservicesindia.com
2
http://www.shareyouressays.com/

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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.

Article 300 of the Constitution deals with legal proceedings by or against the Union of India
or State and provides that in a suit by or against the Government, the authority to be named as
plaintiff or defendant, as the case may be; in the case of the Central Government, the Union
of India and in the case of State Government, the State, which is suing or is being sued.

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 Suits by or against Government

Section 79 provides for suits by or against government. According to which, in a suit by or

against the Government, the authority to be named as plaintiff or defendant, shall be, in case
of suits against Central Government, the Union of India and in case of State Government, that
particular State.

Section 79 does not enlarge or affect the extent of the claims or liabilities enforceable by or
against the Government; they have to be determined under Articles 294-300 of the Indian
Constitution. This section simply provides the procedure where a suit is to be instituted by or
against the Government. The section gives no cause of action but only declares the mode of
procedure when a cause of action has arisen.3

The court should never extend indulgence to Government so as to give the impression to
public that it is a favoured litigant. It is equally necessary to insist that Government does its
duties efficiently so that public interest may not suffer.4

Suits lie against the Government, when it acts under the colour of legal title and not as a
sovereign authority. The Government will be liable for torts committed by its servant in the
course of their employment, provided it is not connected with the sovereign powers of the
State.5

There is no provision of the statue under which President of India can be made a party in the
civil proceedings even though the contracts or agreements are executed on behalf of the
Union of India in the name of the President as provided under Art. 299 of the Constitution,
impleading the President of India as a party is wrong and illegal and any notice served on him
is of no consequence.6

3
Jehangir v. Secretary of State, 6 Bom. L.R. 131
4
1970 Ker LJ 142
5
State of Rajasthan v. Vidyawati, AIR 1962 SC 933
6
Union of India v. Sh. Surinder Chand Mehra, AIR 1985 P. & H. 68

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 DISTINCTION BETWEEN SECTION 79 AND 80

Section 79 covers the subject of the authorities which are to be named in a suit filed by or
against the Central Government or State Government. Section 80, on the other hand, is not a
procedural provision but a substantive provision. It interdicts, inter alia, institution of suits
unless compliance is made with its provisions when the suits arise out of causes of action
against certain Governments. In Raghunath Das v. Union of India 7 it was held by the
Supreme Court that, Sec. 80 must be strictly complied with but, it was added, strict
construction does not mean that it should be construed in a pedantic manner divorced from
common sense.8

1. Suit against Railway

A suit against the Indian Railways administration has to be brought against and in the name
of the Union of India as it is owned by the Central Government.It can be sued in the Court
within whose territorial jurisdiction the headquarters of one of the railways run by the Union
is situated.9

2. Act of the State

Act of State, includes two main classes of acts – acts which are capable of being done by a
private individual and acts which only the Government can perform, such as the making the
treaties and the declaration of war. The test whether an act is or not an act of State excluding
the jurisdiction of the Court is whether it is an act of the State in those external relations,
which municipal or positive law addressed, does not profess to regulate. Acts of State,
properly so called, are never justiciable in Courts of law or municipal Courts of the country
and the State is not answerable to them. There the immunity is absolute.

Jurisdiction: A suit against the Government can only be brought in Court in the jurisdiction
of which the cause of action arises.10

7
AIR 1969 SC 674
8
Kanhaiya Lal Oswal, Messer’s v. Government of India, AIR 1975 Guwahati 37
9
Union of India v. Sri Ladulal Jain, AIR 1963 SC 1683
10
Subbaraya Mudali v. Government, 1 M.H.C.R. 286

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 NOTICE

OBJECT: The object of the notice under Section 80, is to give to the Government or the
public servant concerned an opportunity to reconsider its or his legal position and if that
course is justified to make amends or settle the claim out of court 11 so that the parties may be
saved from unnecessary litigation.12 The legislative intention behind this section is that public
money and time should not be wasted on unnecessary litigation and the Government and the
public officers should be given a reasonable opportunity to examine the claim made against
them lest they should be drawn into avoidable litigations. The section is not intended to be an
instrument of oppression against the subject.13 The primary point for consideration is whether
the notice gives sufficient information as to the nature of the claim such as would enable the
recipient to avoid litigation. So long as the notice substantially informs the defendant of the
nature of the suit and the grounds of complaint, the legal requirement would stand satisfied.14
It is the duty of the State to receive the notice under Section 80 of the Code of Civil
Procedure and also any error or defect in such a notice could not be permitted to be treated as
an excuse for defeating a just claim.15

Section 80 has become a ritual because the administration is often unresponsive and hardly
lives up to the Parliament's expectation in continuing Section 80 in the Code despite the
Central Law Commission's recommendations for its deletion. Indeed it should be a directive
on the part of the State to empower its law officer to take steps to compose disputes rather
than continue them in Court. This exactly is the object and purpose of giving a notice before
suit.16

SCOPE: The words used in Section 80 are wide and unambiguous; they are ‘express, explicit
and mandatory’.17 There are two parts of the section. One in regard to the institution of the
suit against the Government and the other against a public officer.

No suit can be instituted against the Government or, as a matter of that, against the State or
the Union until the expiration of two months next after notice in writing has been given to the
proper authority. It matters little whether the suit relates to the past action of the Government

11
Beohar Rajendra Sinha v. State of Madhya Pradesh, AIR 1960 SC 1256
12
New India Assurance Co. v. D. D. Authority, AIR 1991 Del 298 at 281
13
Lady Dinbai Dinshaw Petit v. The Dominion of India, AIR1951Bom72.
14
Union of India v. Jiwan Ram, AIR 1958 SC 905
15
Jesraj Subhachand v. Union of India, AIR1978Cal536.
16
Karnataka Board of Wakfs, Bangalore v. B.C. Nagaraja Rao, AIR 1991 Kant 400
17
Sawai Singhai v. Union of India, AIR 1966 S.C. 1068

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or is in relation to the threatened action or injury. But if the suit is to be filed against a public
Officer, notice is mandatory only when it is in respect of any act purporting to be done by
such public officer in his official capacity. If the act is not one purporting to be done by the
officer in his official capacity, no notice is necessary. 18 In view of the provisions of the
General Clauses Act, the expression 'act' also includes illegal omissions. Therefore if the suit
does not relate to any 'act' or 'illegal omission' purporting to be done by a public officer in his
official capacity, Section 80 will not have any application.19 Section 80 does not define the
rights of parties or confer any rights on the parties. It only provides a mode of procedure for
getting the relief in respect of a cause of action. A notice under Section should be given
before the institution of the suit.20 Where, a suit is filed before the expiration of the period of
notice contemplated by Section 80, there is no alternative to the Court but to reject the plaint
under Order VII, Rule 11(d) of the Code. Similarly where the notice has not been served as
required under the section the Court has no jurisdiction to stay the proceedings; instead the
plaint should be rejected under Rule 11 of Order VII.21

The section can obviously have no application to the continuation of a suit properly instituted
when at the time of the institution the Government was not a necessary party. If the
Government was a necessary party against whom the plaintiff sought relief or must be
deemed to have sought relief, then, the fact that the Government was not made at the
inception a party, but was subsequently added as a party would not make any difference in
principle. In such cases, the suit must be deemed to have been instituted against the
Government only when the Government is made a party, and obviously Section 80 would
apply to such a case and the Government would be entitled to the two months' notice. But in a
case where on the date of the institution of the suit, the plaintiff could not have claimed, and
did not claim, any relief against the Government and therefore no notice under Section 80
was necessary, but if it transpires during the pendency of the suit that the interest of the
defendant has devolved on the Government, either by voluntary act of the Government or by
operation of law, there is no fresh institution of the suit as against the Government. The
Government only steps into the shoes of the party whose interest has devolved on it. In such

18
State of Bihar v. Jiwan Das Arya, AIR1971Pat141.
19
Amalgamated Electricity Co v. Municipal Committee Ajmer, AIR 1969 SC 227
20
Sabhu v. Ramsa, AIR 1953 HP 123
21
State of A.P. v. G.V. Surya Narayana, AIR 1965 SC 11

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case there is no institution of a suit against the Government at the time when it is brought on
record in the pending suit, Section 80 cannot have any application.22

The notice must be reasonably construed. Any unimportant error or defect cannot be
permitted to be treated as an excuse for defeating a just claim. In considering whether the
provisions of the statute are complied with, the Court must take into account the following
matters in each case (1) whether the name, description and residence of the Plaintiff are given
so as to enable the authorities to identify the person serving the notice; (2) whether the cause
of action and the relief which the Plaintiff claims are not set out with sufficient particularity:
(3) whether a notice in writing has been delivered to or left at the office of the appropriate
authority mentioned in the section: and (4) whether the suit is instituted after the expiration of
two months next after notice has been served, and the plaint contains a statement that such a
notice has been so delivered or left.23

Public sector undertakings are not Government e.g. State Electricity Board is not Government
for the purposes of this section or its officers are public servants.24

CONTENTS OF NOTICE: Notice under Section 80 must contain the following facts:-

(i) Name, and sufficient address to identify the Plaintiff,

(ii) Reasonably sufficient particulars disclosing cause of action and
(iii) All reliefs claimed.
With regard to the requirement (ii) and (iii) it must be admitted that the notice under Section
80, Code of Civil Procedure is not a pleading and need not be a verbatim copy of the plaint,
but having regard to the object for which Section 80 is enacted, it must contain such details of
facts which will be sufficient to inform the parties regarding the nature and basis of the claim
and the relief sought. If the notice is not in full compliance with the requirement of Section
80, Code of Civil Procedure it becomes invalid. The position then would be as if no notice
under Section 80, Code of Civil Procedure had at all been issued and consequently, the suit is
bound to fail.
'Cause of action' in the context of Section 80 Civil Procedure Code must be given a "popular"
meaning, namely, that it is that act by doing which or by not doing which the defendant
furnishes the Plaintiff, so to speak, the motive to file a suit.25

22
S.S.Velayudham Pillai v. The Governor General in Council, AIR1952Mad783.
23
Beohar Rajendra Sinha v. State of M. P., AIR 1960 SC 1256
24
V. Padmanabhan v. Kerala S. E. B., AIR 1989 Ker 86.

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Section 80 requires to state the cause of action and the plaint is to contain a statement that
notice has been delivered or left. The service of notice may form a part of the cause of action
for the purpose of jurisdiction. However, if the delivery of the notice was part of the cause of
action then how the whole cause of action could be stated in the notice because it would have
to be stated before the notice was sent.26

Section 80 does not require that the name or any other particular of the Defendant should be
furnished. It only requires that the notice must be delivered to the proper authority or person
mentioned in the section. Apart from this notice must be served to the proper person at his
appropriate office.

Section 80, according to its plain meaning requires that there should be identity of the person
who issues the notice with the person who brings the suit. Where an individual carries on
business in some name and style the notice has to be given by the individual in his own name,
for the suit can only be filed in the name of the individual.27

In case it is not necessary for the Plaintiff to give particulars of negligence or misconduct in
the plaint, it would not be necessary to give such particulars in the notice, and a mere
allegation of negligence or misconduct shall be sufficient and the notice under Section 80,
Code of Civil Procedure not containing particulars thereof shall be valid. When it is not
necessary for the Plaintiff to give particulars of negligence or misconduct in the notice, the
giving of incomplete or insufficient particulars shall not invalidate the notice.28

REQUIREMENT OF NOTICE IN CASE OF UT’S: Section 55 of the Union Territory Act,

1963 makes it clear that all suits and proceedings in connection with administration of Union
territory are to be instituted against the Government of India. The expression "Government of
India" cannot refer anything other than the Central Government and as such a notice under
Section 80 of the Code of Civil Procedure must be given through its Chief Secretary to the
Government of the union territory against whom the suit is filed by impleading Union of
India as the defendant.29

25
Dominion of India v. L. Badu Lal, AIR 1962 All 461
26
Jaharlal Pagalia v. Union of India, AIR1959Cal273
27
S.N. Dutt v. Union of India, AIR 1961 SC 1449
28
Sahu Vanaspati Traders v. Union of India (UOI), AIR 1966 All 333
29
Kanhaiya Lal v. Government of India, AIR 1975 Gau 37

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 AMENDMENTS

The amendment to this section had made some changes in 1976.By the amending act of 1976
section 80 has been extensively amended. Main changes consists of in the insertion of sub
section (2) and (3) which are totally new. Sub-section (2) has been inserted to permit the
institution of a suit without notice but subject to the important restriction prohibiting the grant
of ‘relief in the suit whether interim or otherwise’ except after giving a reasonable
opportunity of showing cause in respect of the relief prayed for in the suit. Sub section (3)
prohibits dismissal of a suit where the notice, has been given, but suffers from certain
technical deficiencies.

It is expected from public authorities that they will let the plaintiff know their stand within
the statutory period or in any case if has chooses to take up litigation. In certain cases the
court may be obliged to draw an adverse presumption if the notice is not acknowledged or
telling the plaintiff of its stand and if no stand is taken during trial it may be considered as an
afterthought.

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 NATURE AND APPLICABILITY

Section 80 enumerates two types of cases i) suits against the government; and ii) suits against
public officers in respect of acts done or purporting to be done by such public officers in their
official capacity. Regarding the former, the notice is required to be given in all cases.
Regarding the latter, notice is necessary only when the suit is in respect of any act
“Purporting to be done” by the public officer in the discharge of his duty, not in any other
cases. Although it has been said that substantive rights are to be determined in accordance
with the provision of the Constitution, Section 80 of the Code is not a procedural provision,
but a substantive one.

A statutory body may be an instrumentality of the state within the meaning of Art. 12 of the
Constitution, nevertheless, it would not answer the description of ‘government’ as it is
understood in law and in the context of S. 80.

This section is explicit and mandatory and admits of no implications or exceptions. The
language of this section is imperative and absolutely debars a court from entertaining a suit
instituted without compliance with its provisions. If the provisions of the section are not
complied with, the plaint must be rejected under O. 7, r. 11(d)

Section 80 is mandatory and a suit filed before the expiry of the period of two months, which
does not necessarily mean 60 days but has to be calculated month-wise, after the serving of
notice as per S. 80(1) is not maintainable.30

30
www.lacctopus.com

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 PROVISIONS UNDER ORDER 27

In the case where there is a suit filed by or against the Government, then such a plaint will
have to be signed by any authorized person appointed by the Government. It is also necessary
that this person is well versed with facts of the case. If such a person is authorized by the
government, then he shall be deemed to be a recognized agent of the Government as per the
Civil procedure code. It has also been given in the code that multiple summons may be issued
to a government pleader. There is no need for the state counsel to file
a Vakalatnama. Reasonable time should be granted to the government for filing a written
statement.The courts, in all cases must assist the Government to arrive at a settlement in all
cases where it is a party. This is considered as one of the main duties of the court. There are
instances where the suit filed may have a substantial question of law or that it may require the
interpretation of law or the constitution. In such cases, the court will need to send a notice to
the attorney General, if the question is regarding a central law or it will need to send a notice
to the advocate general if the suit deals with a state law. This has been given in Order 27-A of
the Code.
Rule 1 provides that in case of a suit by or against the government, the plaint or written
statement shall be signed by any person appointed by the government in this regard by way of
a general or special order. The plaint or written statement shall be verified by a person
appointed by the government and who is aware of the facts of the case.
In State Of Punjab vs Amar Chand31, in a suit against the Punjab Government by one of its
employees, the Inspector-General of Police, Punjab, had signed the written statement filed on
behalf of the Government as a person authorised by notification for the purpose of O. 27, R.
1, Civil P. C. as the case related to the Police Department. An application was then moved on
behalf of the Inspector-General of Police, Punjab that a Superintendent of his office who was
a gazetted officer and was well conversant with the facts of the case, would appear in Court
to assist the Court. This application was treated by the trial Court as an application for review
of its order. The trial Court rejected this application and additionally observed that since the
Inspector-General of Police, Punjab had signed the written statement and he was one of the
persons who had been notified for the purpose of R. 1 of O. 27, C.P.C., it shows that he was
the only person who could appear for effecting a settlement in the case on behalf of the
Government.

31
AIR 1980 P H 318

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Rule 2 provides that any person who is ex officio entitled to represent the government in
judicial proceedings or is authorized by the government in this regard shall be the recognised
agent who shall makes appearances, applications and do acts on behalf of the government.
The court pointed out in Firm Mohanlal Ramchandra vs The Union Of India32. There are two
distinct rules under Order 27 namely Rules 1 and 2. Under Rule 1 only a limited authority to
sign and verify pleadings is given. It is only a person authorised to act without any such
limitation who can present a memorandum of appeal.
As per the Hon’ble scupreme court in State Of Uttar Pradesh v. Janki Saran Kailash
Chandra33, it is hardly open to the State Government to plead that the District Government
Counsel was not authorised to seek adjournment on its behalf for this purpose. It will be
somewhat irrational and perhaps incongruous to permit the State, after having taken the
benefit of this adjournment, to plead that the application for adjournment was not made on
instructions and was unauthorised. To accede to the State Government the right to do so
would clearly be unjust to the opposite party which could have rightfully objected to the
adjournment, had there been any indication that the prayer was not being made on
instructions from the State Government.
Also, a recognized agent like the District Government Counsel can scarcely be considered to
appear voluntarily in a case on behalf of the Government in the sense of being unauthorised
by his client for the simple reason that he is authorised by virtue of statute to appear, act and
make applications on behalf of the Government.
Also in Rohtas Singh vs Commissioner, Agra34, under Order XXVII, Rule 2, CPC persons,
being ex officio or otherwise authorized to act for the Government in respect of any judicial
proceeding shall be deemed to be the recognised agents by whom appearances, acts and
applications under CPC maybe made or done on behalf of the Government, under Rule 4 of
Order XXVII CPC 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. Under Rule 4 of Order III, CPC – No, pleader shall act for any person in any Court,
unless he has been appointed for the purpose by such person and every such appointment
shall be filed in Court and shall be deemed to be in force until determined with the leave of
the Court by a writing signed by the client or the pleader as the case may be and filed in

32
AIR 1972 Raj 152
33
1973 AIR 2071
34
AIR 1997 All 278

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Court, or until the client or the pleader dies, or until all proceedings in me suit are ended so-
far” as regards the client.
Thus, as per the above referred provisions of Civil Procedure Code once a counsel is engaged
for the State he shall continue to remain authorised agent for the State until his engagement is
determined by the client or pleader in writing with me leave of the Court, therefore, State
Law Officers
As per Rule 4, the government pleader shall be the agent of the government for receiving all
court processes. In Mundrika Prasad Sinha v. State Of Bihar35, the Hon’ble Supreme Court
stated that as per section 2(7) of the CPC, ‘Government Pleader’ includes any officer
appointed by the State Government to perform all or any of the functions expressly imposed
by this Code on the Government Pleader and also any pleader acting under the directions of
the Government Pleader.”
Manifestly, this is an inclusive definition and, read along with Order 27 Rule (4) and (8) B(c),
clearly yields the inference that Government may have as many Government Pleaders as it
likes to conduct its cases even as any client, who has a crowd of cases to be conducted, my
engage a battery of lawyers. Government is in no worse position that an ordinary litigant and
is not bound to encourage monopoly within the profession. Indeed, the root cause of the
petitioner’s desire to corner all the litigation of the Government is that its policy of legal
remuneration has neither distributive bias nor socially sober ceiling. Some States have
already adopted such a policy. Indeed, the State must evolve a policy in regard to its Law
Officers which concedes to counsel freedom to recommend settlement of cases if they feel it
just to do so and further practises distributive justice which pre-empts the need for
adjournment because of absence of counsel and, lastly, sets a limit on the total fee payable for
government work executed.
Section 2(7) of the Code of Civil Procedure being an inclusive definition allows any number
of Government pleaders. It vests no sole control on one Government pleader over others and
Government is perfectly free to put a particular Government pleader in charge of particular
cases. Each one of them is a Government Pleader and may depute other lawyers and exercise
control over such surrogates. In this view, there is no error in the summary despatch
deservedly given by the High Court to the writ petition whose main merit was daring novelty.

35
1979 AIR 1871

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It was further opined by the Madras High Court in V.K. Elayalwar vs The Registrar36, that
under Order 27, Rule 4, Civil Procedure Code, the Government Pleader is the agent of the
Government for the purpose of receiving the process against the Government” issued by such
Court “. Obviously, the service of a copy by the petitioner upon the Government Pleader even
before his writ petition is admitted and entertained by the Court cannot be effective service
within the meaning of Order 27, Rule 4, Civil Procedure Code, for it cannot be regarded as a
process issued by the Court.
According to Rule 5, for the purpose of fixing the date for the hearing, the court must have
due regard to the communications made to the government, issue of instructions to the
government pleader to appear, etc. Such time limit may be extended by the court but not
beyond 2 months in aggregate. In pursuant with Rule 7, an extension may also be granted
where a public official is the defendant and he takes leave from the court to make a reference
to the government before he answers the allegations in the plaint. This is also because as per
Rule 5A, in every suit against a public officer, the government is deemed to have been joined
as a party.

36
(1970) 2 MLJ 343

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 Case Laws

State of Rajasthan vs Rikhabchand Dhariwal 37 , it was stated that whenever it is deemed

necessary to implead the State or any one of its Departments as a defendant in a civil suit, it
shall be mandatory to comply with the provision of Section 80 of the Civil Procedure Code.
Yet again in Chief Conservator of Forests, Government of A.P. Vs. Collector38, the Court had
drawn the analogy from Section 79 CPC, which directs that the State shall be the authority to
be named as plaintiff or defendant in a suit by or against the Government and Section 80
thereof directs notice to the Secretary of that State or the Collector of the district before the
institution of the suit and Rule 1 of Order XXVII lays down as to who should sign the
pleadings. No individual officer of the Government under the scheme neither of the
constitution nor under the CPC, can file a suit nor initiate any proceeding in the name and the
post he is holding, who is not a juristic person.
Section 81 provides that where a suit is instituted against a public official for act(s) purported
to be done in his official capacity, he shall not be arrested and his property shall not be
attached, unless the same is for execution of a decree. Further, he cannot be called upon to
attend the proceedings of the court where the court is of the opinion that such attendance
would be a detriment to public service.

37
AIR 1961 Raj 64
38
AIR 2003 SC 1805

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 CONCLUSION

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.
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.
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.
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. 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

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must be something in the nature of the act complained of which attaches to the official
character of the person doing it".
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.
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.

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 BIBLIOGRAPHY

Statutes
1. The Code of Civil Procedure, 1908

Books
1. Justice Takwani, CK; Civil Procedure (CPC) with Limitation Act, 1963; (Eastern
Book Co. (EBC); 2016 edition 2016)
2. Sir Mulla, Dinshaw Fardunji; Mulla’s the Code of Civil Procedure; (Lexis Nexis;
Nineteenth edition 18 July 2017)
3. Jain, MP; The Code Of Civil Procedure-Incorporating The Commercial Courts,
Commercial Division And Commercial Appellate Division Of High Courts Act, 2015
As Applicable To Commercial Disputes; (Lexis Nexis; First edition 26 August 2016)
4. Dr. Rao, Rega Surya; Lectures on the Code of Civil Procedure and The Limitation
Act; (Asia Law House; 1ST edition 2016)

Websites
1. http://www.shareyouressays.com/
2. http://www.legalservicesindia.com
3. https://www.lawteacher.net/free-law-essays/administrative-law/suits-by-and-against-
government-administrative-law-essay.php
4. http://law.galgotiasuniversity.edu.in/pdf/
5. https://www.lawctopus.com/academike/suits-brought-government-public-officers/
6. https://litigation.findlaw.com/filing-a-lawsuit/civil-cases-vs-criminal-cases-key-
differences.html
7. https://www.fjc.gov/history/courts/jurisdiction-civil-united-states-party

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