CENTRAL UNIVERSITY OF SOUTH BIHAR

SCHOOL OF LAW & GOVERNANCE

UNDER THE SUPERVISION-

Submitted by-
Arvind Kumar
B.A.LL.B (Hons.)
Enrollment no.-CUSB1813125021

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 CONTENT
S. no. CONTENT PAGE No.

1 CHAPTER-1 03-04
Introduction
2 CHAPTER-2 04
Section 79
3 CHAPTER-3 05-11
Section 80
4 CHAPTER-4 12
Order XXXVII
5 CHAPTER-5 12
Scope
6 CHAPTER-6 13-14
CONCLUSION AND SUGGESTIONS
7 CHAPTER – 7 14
BIBLIOGRAPHY

CHAPTER-1
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 INTRODUCTION

Under the Civil Procedure Code, the subject of suits by or against public officers in their
official capacity has been recognized under Section 79, Section 80 and Order 27 of CPC.
Firstly, it should be understood that Section 79 of CPC is a procedural provision and hence,
it does not deal with rights and liabilities enforceable by or against the government 1. But at
the same time, it declares a mode of the procedure when the cause of action arises. On the
other hand, Section-80 of CPC is not a procedural provision but a substantive one2, the rules
involved in it and working of Section 80 will be discussed further. Lastly, Order 27, includes
under its ambit various rules and subjects like that of recognized agents, attorney general and
the procedure to be followed while the suit is being filed by or against the government or
public officers in their official capacity. This article tries to analyze the three sections in
detail and provide an overview of the same in a clear-cut way.

Section 79 and 80 are defined as follows under the Procedure of Civil Code-

Section 79- This Section defines the concept of suits by or against the government:
Whenever a case is filed against a government or if it is filed by the government, the plaintiff
and the defendant who will be named in the case will be as provided under:

 Whenever the case is instituted by or against the central government, the Union of
India will be represented as the required plaintiff or defendant respectively.

 Whenever the suit is filed by or against the state government, the state government
will be required to act as the plaintiff or the defendant.

Section 80- This section deals with the concept of Notice. According to this Section, there
exists no onus for the institution of a suit against the government without issuing a notice
regarding the same, this includes the state of Jammu and Kashmir. With respect to institution
of a suit against a public officer with respect to the act done by him in his official capacity,

1
Ankit Vardhan, Suits by or against Government (Section 79 – 82 CPC), Legal Bites – Law and Beyond
(August 2, 2017, 12: 10 PM), https://www.legalbites.in/suits-by-or-against-government-section-79-82/

2
Namrata Shah, SECTION 79, 80 OF CODE OF CIVIL PROCEDURE 1908, Aaptaxlaw  (JUNE 7, 2016, 11:
30 AM), http://www.aaptaxlaw.com/code-of-civil-procedure/section-79-80-code-of-civil-procedure-suits-by-
or-against-government-notice-section-79-80-of-cpc-1908-code-of-civil-procedure.html.

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there is again a need for issuance of notice regarding the same. Further, the notice should be
served two months prior to the institution of the suit and it should be made sure that such a
notice was delivered or left at the office of:

 Whenever the case is against the central government, and it does not relate to the
railways then, the notice should be delivered to the secretary of the government.

 Whenever a case has been instituted against the central government and it relates to
the railways then, the notice is to be served to the general manager of that railways.

 Whenever the case is instituted against any of the state governments then, the notice
is to be served either to the secretary to that government or to the collector of the
district.

Scope of Section 79

For the purpose of better understanding of Section 79 of Civil Procedure Code, there arises a
need for further fragmentation of the Section into various subtopics like that of the
jurisdiction of Section 79 and the institution of suit against the railways which will be looked
into in the next part of this article.

CHAPTER-2

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Section 79

Section 79 lays down the procedure whereby the suits are brought by or against the
government but at the same time, it does not deal with the rights and liabilities enforceable
by or against the government body3. In the case of Jehangir v. Secretary of State4, an
important observation was made which was that this section gives no cause of action but
only declares the mode of the procedure when the cause of action arises.

Jurisdiction

Under Section 79, only the court within whose local limits, the cause of action arose, has the
jurisdiction to try the suit and otherwise it cannot. In the case of Dominion of India v. RCKC
Nath & Co.5, it was held that words like ‘dwell’ or ‘reside’ or ‘carry on business’ which are
mentioned in Section 18, 19 and 20 of code, do not apply to the government6.

Suit against Railway

If the railway is administered by the union of India or a State, then any suit to enforce a
claim against railway administration can be brought against the Union of India or State, and
this may not include making the railway administration a part of the suit. But on the other
hand whenever there is a requirement for a suit for freight for carrying goods, then such a
suit can be instituted by the Union of India, and this was held in the landmark case of Union
of India v. RC Jall7.

In the case of Secretary of State v. Rustom Khan8, there was a significant observation made
regarding the liability to be sued, under Section 79 of CPC. No suit could lie against the East
India Company in respect of the act of state or acts of sovereignty, and therefore no suit in
respect of such acts would be competent.

Section 80

3
AIR 1930 All 225 (FB)
4
(1903) ILR 27 Bom 189.
5
AIR 1950 Cal 207.
6
Devika, Section 79 CPC detailed, The SCC Online Blog (October 5, 2018, 10: 10 AM),
https://blog.scconline.com/post/2018/10/05/order-27-rule-5-cpc-mandates-the-court-to-ensure-disputes-
concerning-public-undertakings-are-resolved-amicably-arbitrator-appointed-therefor-sc/.
7
AIR 1958 MP 425.
8
68 IA109 AIR 1941 PC 64.

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This part of the article will include under its ambit the detailed analysis of Section 80 of
Civil Procedure Code, and for the purpose of better understanding, the subtopics are to be
studied by breaking them down under the Section of nature and liability, contents of the
notice, effect of non-compliance and waiver of notice.

Nature and Object

The object laid down by this Section is- there should be an opportunity conferred on the part
of the Secretary of the State or the Public officer to reconsider his legal position in order to
make amends or settle down the claim if so advised. This can further be done without
litigation or afford restitution or without recourse to court of law 9. Whenever a statutory
notice is issued to public authorizes, they are required to further take notice in all seriousness
and they are not required to sit over it and force the citizen to the redundancy of litigation.

Contents of the Notice

Notice under Section 80, is required to contain the following aspects: name, description,
residence of the plaintiff, the cause of action and lastly the relief which the plaintiff claims.
Also, the notice is required to convey to its recipients, sufficient information to enable him to
consider the claim, which was held in Union of India v. Shankar Stores10. The above-
mentioned particulars should be given in such a way that, it enables the authorities to
identify the person giving the notice.

Effect of Non-Compliance

Non-compliance with the requisites of this Section or any omission in the plaint which is
required would result in the rejection of the plaint under Order 7, Rule 11.  If the suit is
against a public official and a private individual, and no notice is served on the public
officer, the plaint is not to be rejected but the suit is carried on with the name of the public
officer struck off.

Waiver of Notice

As the requirement of the notice is just procedural and not substantive, and as it is for the
benefit of the public officer or the government, it is open to government and public officers
9
Adarsh Gill, Code of Civil Procedure 1908 section 80,  LegalCrystal (MAR 03, 2011, 2:45
PM), https://www.legalcrystal.com/cases/search/name:code-of-civil-procedure-1908-section-79.
10
AIR 1974 Ori 85.

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to waive it. If the defendant wants to rely on the invalidity of the notice, it is for him to raise
a specific issue on the point, this was held in the case of Lalchand v. Union of India11.

11
AIR 1960 Cal 270

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 CHAPTER-3

Order XXVII

1- Suits by or against the government- It should be noted that in any suit by or against the
government, the plaint or the written statement should be signed by such a person, as the
government by general or special order, appoint in this behalf. State of Rajasthan v. Jaipur
Hosiery Mills12, in this case, it was held that the sanction to sign must be prior to the
institution, and if not complied with this, the signing shall be by an incompetent person, and
further, issuing of a retrospective sanction will not preserve the defect.

Government pleader is an agent under the order 27 of CPC. The government pleader acts as
an agent for receiving processes issued against the government. Also he is the only person to
intimate the court that he is representing the government and no stamped power of attorney
or vakalatnama is required for the same.

Lutfar Rahman v. State of West Bengal. In the aforementioned case, it was held that when a
person other than the government pleader wants to act as an agent, it is possible only when
the government agent intimates the Court that the former is acting under his directions. Rule
5 of Order 27, has been discussed in the next segment of this article.

2- Attendance of person being able to answer the questions related to suits against the
government- The court may, in any case where government pleader is not accompanied by
person on the part of the government and if he is able to answer the questions relating to suit,
the court may direct the attendance of that person13.

12
AIR 1997 Raj 10.
13

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 CHAPTER-4

Scope

Sections 79-82 and Order 27 of the Code of Civil Procedure, 1908 14, a deal with the
procedure which needs to be followed in the process of filing of a suit against the
government or public officials. Code of civil procedures prescribes only the procedures.
The rights and liabilities of the parties are dealt by the Constitution of India, 1950.

The first step in the process of filing of suit in this case is service of notice to the
defendant. A Section 80 of the Code of Civil Procedure, 190815 a states that only after the
expiry of two months from the date of service of notice to the government officials, a
plaint can be filed in the Court of law.

In the case where the defendant is the Central Government the notice should be served to
the Secretary to the Government, in case the defendant is the Railways the General
Manager, in case of State Government the Secretary to that Government or to the
Collector of the District, in case of public officer the notice should be served to him and
in case the defendant is the State of Jammu and Kashmir the notice should be served to
the Chief Secretary of the Government or any other officer authorized by the
government.

The main intention of the Legislative in the insertion of this section and adding this
process in the filing of suit is to make sure that the Government or the Public Officer
knows the reasons, demands or the concern of the Plaintiff for which the suit shall be
instituted. By knowing the distress of the Plaintiff, the Public official can act upon it and
rectify the situation. The time period of two months is also provided for the same reason.

The main objective of government is to serve the public and protect their rights. By
providing the notice along with the necessary time they can give more importance to the
problem and settle the dispute by not approaching the Court. This shall not only save the
time of the Court, but also of the government and the unnecessary legal expenses.

14
Code of Civil Procedure, 1908, Section 79 – 82, Order 21
15
Code of Civil Procedure, 1908, Section 80

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 In the case of State of Madras v. C.P. Agency16, A the Court had also given this
reasoning as well as the Supreme Court supported this by giving its own analysis in the
case of  Bihari Chowdhary v. State of Bihar17. This provision helps the Government, the
Court of law as well as the public however misuse of this provision can also occur which
would demolish the main objective of law i.e. to impart justice.

In the Fourteenth Law Commission Report, the commission witnessed how the

The government is for the people, by the people and of the people. Hence it is essential
that they should be accountable and they should serve to their best. However no
amendment had come to amend this section and hence it is still in use.

Section 80 of the Code of Civil Procedure, 1908 also states the contents of the notice
which should be served to the government of the public official. The most essential
contents of the notice should have the name, description, place of residence of the
plaintiff and the cause of action and the relief sought. The service of the notice should be
delivered to the office of the concerned person or served directly to him.

After the expiry of two months if the aggrieved party wishes to file the suit in the Court
of law, he or she would need to produce a written statement which should state the way
in which the notice was served.  The service of the notice has a strict application and is
mandatory process. It should be done expressly and not impliedly. The Supreme Court
had held so in the case of State of A.P. v. Gundugola Venkata 18 and also expressed that if
proper service of the notice does not happen then the suit would entail a dismissal.

16
State of Madras v. C.P. Agency [AIR 1960 SC 1309]
17
Bihari Chowdhary v. State of Bihar [AIR 1984 SC 1043]
18
State of A.P. v. Gundugola Venkata [AIR 1965 SC 11]

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 However this statute should be reasonably construed and should be interpreted by
looking at the objective of it. Mere error not affecting the objective of it should not result
in dismissal of the plaint19.

The notice should comply with the minimum requirements according to the statute.  If
the case is against a public officer and the relief is prayed for an act which the officer
will have to do in near future, proper service of notice becomes mandatory. The sentence
act to be done by the Public Officer includes those acts which can be done in his Official
capacity. It does not include acts which are beyond his or her official capacity.

The service of notice is of a procedural form and it is not a substantive statute. The object
of the service of notice is to make sure that the government is aware of the problems of
the Plaintiff and the course of action which he intends for. The service of notice is for the
benefit of the government and it is upon the government to take support of it. If the
government does not require the service and expresses it, the Court may allow the plaint
without the service of notice. However this totally depends upon the facts and
circumstances of the case20.

Section 80(2) of the Code of Civil Procedure, 1970 allows private individuals to file a
suit against the government without serving the notice to the public officer if the matter
is of an urgent nature. This section acts as an exception for sub-section 1 of Section 80 of
the Act. The main objective of inserting this exception is to make sure that miscarriage of
justice does not happen in urgent cases by delay in the proceedings. The urgency of the
matter is judged by the Court by considering the facts and circumstances. The Court
should hear both the private individual and the government in judging whether the matter
is of an urgent nature.

Writ Petitions against the Government is exempted from the service of notice under
Section 80 of CPC as writ petitions do not fall under the category of suits. Writ Petitions
are filed under Article 32 and 226 to the Supreme Court and High Court respectively.

After filing of suit against the government, the plaint and the written statement should be
19
Ghanshyam Dass v. Dominion of India [AIR 1984 SC 1004]
20
Vasant Ambadas v. Bombay Municipal Corpn. [ AIR 1981 Bom 394]

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signed by a person appointed by the government. The person should be authorized and be
a recognized agent according to the Code. The agent shall have the power to receive
summons and the government does not need to attach the Vakalatnama.

A proper and reasonable time is given to the Government to file the Written Statement
and in every suit against the government the court needs to assist the government in
coming to a settlement with the private individual. The procedure under Order 27 of the
Code of Civil Procedure, 1908 applies to only government and not to other agents or
instruments which falls under the category of State according to Article 12 of the
Constitution of India, 1950. If the suit proved a substantial question of law related to the
interpretation of the Constitution, the Court needs to issue a notice to the Attorney
General of India if the question related to the Central Government and to the Attorney
General of the concerned State if it relates to a State Government.

Section 81 of the Code of Civil Procedure, 1908 exempts the public officer to appear in
person in the Court against whom the case has been filed. This exception is acceptable
only if the Court is satisfied if the Court is convinced to the need of the Officer to be
present in his duty related to Public Service. The code also grants protection from arrest
and from attachment of his property in execution of the decree.

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 CHAPTER-5

Conclusion and Suggestions

The amendment made in Section 80 is seen as that of a significant one, as it has acted as an
added advantage while dealing with the case, clause (2) and (3) were added to Section 80 by
the amendment of 1976. Sub Clause (2) has been inserted to permit the institution of the suit
without notice, but it must be accepted only after giving a reasonable opportunity of showing
cause in respect of relief claimed. Sub-section (3) on the other hand prohibits the dismissal
of a suit where the notice has been served but suffers from certain technical deficiencies.

It should also be taken into consideration that there exist various instances where there were
widespread abuse and misuse of the concerned section by the government and public
officials in order to dispose of the litigation on the grounds of technicality, and this aspect of
the provision should be given more attention in order to overcome the negative aspects
which exist in it. Moreover, sub-section (3) was included in the Section in order to offer a
better clarification that no suit against the government or a public officer can be dismissed
merely on the grounds of existence of defect or error in the notice.

Hence, all the three provisions which bring to light the various procedures and rules involved
in the suit by or against the government or a public officer have been discussed and analyzed
in detail. It can be said that the applicability of these sections must be determined by the law
as it stands. Further, if the procedure lay down by the rule in these sections is not followed,
then the court is to proceed with the footing that there is no appearance of government
pleader on behalf of the public officer. And lastly, the rules laid down in Order 27 are to be
strictly abided by while filing a suit.

In addition to all the above-mentioned aspects, the sections regarding suits by or against the
government and public officers also specify the procedure to be followed while filing of a
writ and also what steps to be taken when there is permanent suit on appeal or if there is a
revision.

There is also mention of the nature and applicability of Section 80 of the civil procedure
code, and this section drags its attention towards the matter whether the serving of notice is a

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mere formality or is it a mandatory aspect under the section. Lastly, the section also deals
with the aspect of what acts come under the arena of official capacity.

CHAPTER-6

Bibliography
BOOKS-

 Civil Procedure, CK Takwani, 8th Edition

Website-

 www.legalbites.in
 www.indiankanoon.in
 www.advocatekhoj.com
 www.indianjudiciary.com
 http://www.legalservicesindia.com

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