Filing of Suit by or against the Government or Public Officers under CPC, 1908

By | February 17, 2020
Filing of Suit by or against the Government

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Filing of Suit by or against the Government or Public Officers under CPC, 1908 | Overview

In case of a breach, even the government can sue the other party or be sued. This article shall delve into the aspects of filing of a suit by or against the government or public officers. The article shall analyse Section 79, 80 and Order XXVII under the Code of Civil Procedure, 1908.

Introduction

Article 300 of the Indian Constitution empowers the Indian government to sue any person or be sued by any person under the name of the Union. Similarly, State governments can sue or be sued by any legal person under the name of the State.

This provision creates a substantive right of filing a suit on the government by persons who are aggrieved by an action of the government and vice versa. This is a substantive provision and its purpose is to only create a right. It does not explain the procedure that needs to be followed to sue the government.

The procedure to sue is a matter of procedural or adjective law and hence, Sections 79 to 82 read with Order XXVII explains the procedure to sue or be sued by the government in detail. These procedures explain and answer several essential questions which are a sine qua non in a civil suit such as when the cause of action arises in a suit by or against the government and how the suit is to be instituted.

Analysis of Procedure under Section 79

Section 79 is a replication of the provision contained in Article 300 of the Constitution. It states that if a suit has to be filed either by the government or against the government, the title of the plaintiff and the parties who shall be impleaded as defendant shall be the ‘Union of India’, if the suit is by or against Central Government and ‘State’, if the suit is by or against State Government.

In Santhanand v. Basu-devanand[1], the court commented on Section 79 of CPC and said that it lays down the procedure for the institution of the suit but does not establish any rights or liabilities on the government. However, a simple reading of the provision clarifies that the section does not mention any procedure as to the commencement of the proceedings or how the cause of action arises. It only mentions the necessary parties in a suit involving the government or a public officer.

In Jehangir Cursetji v. Secy. of State for India[2], the Bombay High court observed that this provision does not provide the cause of action but only mentions the manner of proceeding after the cause of action has arisen. The procedure to be followed in a suit involving government has been explained and evolved by the judiciary through several leading cases.

In Dominion of India v. RCKC Nath[3], the court clarified the point of the jurisdiction of civil courts with respect to suits involving government or public officers. The court held that any suit by or against the government can be filed only before that court within the territorial jurisdiction of whose the cause of action had arisen.

If the court within whose local jurisdiction the cause of action arose is not competent to hear the case, the suit cannot be filed before such court. The court further held that expressions used in the CPC such as ‘reside, dwell or carry on business’ do not apply to suits involving government instrumentalities.

Moreover, if the suit is by or against the railway, the procedure to be followed was explained in R.C. Jall v. Union of India[4]. In this case, the apex court observed that if a rail authority is maintained by the Central or State government, a suit can be filed by or against the government itself and rail administration is not required to be impleaded as a party.

In the present case, the central government sued the appellant for collection of cess charges not paid by the appellants and the court held that railway administration need not be the plaintiff and the suit filed by the government is admissible.

Notice under Section 80

A legal notice is an instrument served by the aggrieved party upon the other party intimating it that certain legal right of the aggrieved party has been infringed by the acts of the adverse party because of which the aggrieved person seeks to take legal action against the other party unless the violation can be remedied before the suit is instituted.

There are several forms of a legal notice. The purpose of legal notice is to intimate the opposite party that a legal suit might be instituted against him and to allow him an opportunity to make right any wrong that he has committed. A legal proceeding is time-consuming and costly and therefore, service of notice assists to resolve the case before the proceeding commences.

The notice under Section 80 is called a statutory notice because it is a statutory mandate under Section 80 to issue a notice to the government or the public officer against whom a case is filed. The primary reason for a notice under Section 80 is to save the time and expense of the government and litigants. The provision lays down the manner in which the notice has to be issued and served.

The manner can be enlisted for easy understanding as follows:

  • Notice must be issued two months prior to the date of institution of the suit.
  • Notice must be in writing.
  • Notice must be either delivered through registered post or left at the office of the Secretary to the Central or State Government.
  • Notice must be delivered or left at the office of the General Manager of Railways if the suit is against the railway.

In general, the notice should contain the details of the plaintiff, the situation that led to the cause of action, time of the cause of action and the claims of the plaintiff that will remedy the injury caused. Further, in Sankar Mukherjee v. Union of India[5], the apex court held that “notice is required to convey to its recipient’s sufficient information to enable him to consider the plaintiff’s claim”[6].

As aforementioned, the legal notice issued under this provision is for the benefit of the government to allow it to resolve the dispute without expending time and money.

In Lal Chand v. Union of India[7], the court observed that since it is completely for the government, the concerned government or the public officer can waive off the issuance of notice. Nevertheless, if the notice is not duly served and the suit is filed, the government can object to it and the plaint shall be rejected by the court.

Execution of a Decree against the Government

The procedure to institute the suit has already been explained and all the prerequisites to the commencement of proceedings are dealt with. After the institution of suit, the court proceedings continue in the same manner as any other suit except the government is represented by a government pleader.

The next procedure is the execution of a decree. Suppose the plaintiff is an individual and the suit is against the central or state government or a public officer and the decree is pronounced in favour of the plaintiff. The question is would the decree be executed in the same manner as other decrees.

Section 82 (1) of the Code throws light on this question and provides that a decree obtained against a government or public officer shall be executed in accordance with the terms of Section 82 (2). According to this provision, no suit for execution can be filed against the government for three months from the date on which the decree was passed.

This period to allow the government to fulfil the requirements of the decree and remedy the wrong that it had done. If the plaintiff’s claims remain unsatisfied for three months, the execution application can be filed in accordance with the rules under Order XXI of the CPC.’


References

  1. Justice M.L. Singhal et al, Civil Procedure Code, Vol. 3.
  2. K. Takwani, Civil Procedure, (8th ed. 2018).

[1] Santhanand v. Basudevanand, AIR 1930 All 225 (FB).

[2] Jehangir Cursetji v. Secy. of State for India, (1904) ILR 27 Bom 122.

[3] Dominion of India v. RCKC Nath, AIR 1950 Cal 207.

[4] R.C. Jall v. Union of India, AIR 1962 SC 1281.

[5] Sankar Mukherjee v. Union of India, AIR 1990 SC 532.

[6] Ibid.

[7] Lal Chand v. Union of India, 12 August 2009.


  1. Commencement of a Trial under the Code of Civil Procedure, 1908
  2. Appearance And Examination of the Parties in a Civil Suit