Project Report On

“Suits by or against Government and Public Officer

(Section 79-82)”

Civil Procedure Code, 1908

Submitted to Mrs.:Karan Jawanda Submitted By: Mayank Mohit

B.com. LL.B (Hons)

166/17

7th semester

Section C

2020-21
ACKNOWLEDGEMENT
I would like to express a deep sense of thanks and gratitude to my project
guide Mrs.: Karan Jawanda mam for guiding me immensely through the
course of the project. She always evinced keen interest in my work. Her
constructive advice and constant motivation have been responsible for the
successful completion of this project.
I also thanks to my parents for their motivation and support. I must
thanks to my classmate for their timely help and support for the
completion of this project.
Last but not least, I would like to thanks all those who had helped directly
or indirectly towards the completion of this project.

-Mayank Mohit
Table of Contents
Sr. No. Title Page. No.
1 Table of Cases 4
2 Abstract 5-6
3 Analysis 6-7
4 Scope of Section 79 7
5 Section 79 7
6 Jurisdiction 8
7 Suits Against Railways 8
8 Section 80 9
9 Section 81 9
10 Section 82 9
11 Nature and Object 10
12 Contents Of Notice 10
13 Effects Of Non-Compliance 10
14 Waiver Of Notice 11
15 Order XXVII 11-13
16 Conclusion 14-15
17 References 16-17

Table of Cases

Sr. No. Name of Cases

1. Jehangir v. Secretary of State (1903) ILR 27 Bom 189.

2. Dominion of India v. RCKC Nath & Co AIR 1950 Cal 207.

3. Union of India v. RC Jall AIR 1958 MP 425.

4. Secretary of State v. Rustom Khan 68 IA109 AIR 1941 PC 64

5. Union of India v. Shankar Stores AIR 1974 Ori 85.

6. Lalchand v. Union of India AIR 1960 Cal 270.\

7. State of Rajasthan v. Jaipur Hosiery Mills AIR 1997 Raj 10

8. Lutfar Rahman v. State of West Bengal AIR 1954 Cal 455.

Page 4

Abstract

Section 79 to 82 and Order 27 of the Civil Procedure Code, 1908 lay down
procedure where suits are brought by or against the Government or Public
officers. The provisions provides for the procedure only not about rights and
liabilities. Substantive right has to be finding accordance with the provisions
of the Constitution1.These provisions gives no cause of action but only
declares the mode of procedure when a cause of action has arisen. Under
Civil Procedure Code, 1908 Section deal with provisions of a substantive
nature and lays down general principles and Orders deals with procedure,
manner and mode in which general principle can be exercised. Similarly
Section 79 to 82 provides for the general principles and Order 27 prescribe
the procedure in which general rules provided under Section 79 to 82 can be
exercised. key words - civil procedure code , constitution, order,
government , public To analyze the immunity to the government officials
under civil procedure code. 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 2. 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 one 3, the rules involved in it
and working of Section 80 will be discussed further.

1. Bagchand v.

Secy. Of State, AIR 1927 PC 176; Sawai Singhai Nirmal Chand v. Union of India, AIR 1966

2. Ankit Vardhan, Suits by or against Government (Section 79 – 82 CPC), Legal Bites – Law and Beyond
(August 2, 2017, 12: 10 PM),

3. 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 Page 5

.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.

Analysis
 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,
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:

` Page 6

 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 those 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.

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 body 4. In the case
of Jehangir v. Secretary of State 5, 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.

4. AIR 1930 All 225 (FB)

5. (1903) ILR 27 Bom 189. Page 7

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. 6, 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 government 7.

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 Jall 8.

In the case of Secretary of State v. Rustom Khan 9, 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.

6. AIR 1950 Cal

207.

7. 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/.

8. AIR 1958 MP 425.

9. 68 IA109 AIR 1941 PC 64. Page 8

Section 80
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.

Exemption from arrest and personal

appearance (Section 81)
Section 81 of the code provides that in a suit against a public officer
of any act purporting to be done in his official capacity i.e. act of public
officer as mentioned above, he has an exemption from arrest and from
attachment of his property until execution of decree. Further if defendant
that is public officer cannot absent himself from his duty, then he has
exemption from personal appearance during ongoing suit.

Execution of decree (Section 82)

Section 82 provides that in a suit by or against govt. or public officer,
decree is passing against govt. or public officer it will not be executed
unless it remains unsatisfied for the period of three months computed from
the date of such decree. Further it provides that this provision regarding
execution of decree will apply on an order or award passed by any court or
by any other authority or if it were capable of being executed under this
code or under any other law in force as if it were a decree. The section has
been amended so as to eliminate certain cumbersome requirements. Before
amendment a court had to send a report to the state government before
ordering. The decree cannot be executed unless all the condition is complied
with.
Page 9
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
10
restitution or without recourse to court of law . 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 Stores 11. 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.

10. 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.

11. AIR 1974 Ori 85. Page 10

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 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 India 12.

Order XXVII

Order 27 Rule 1 of CPC, 1908 provides that in a suit by or against

govt. a plaint or written statement shall be signed by a person who has
appointed for this by govt. Further it shall be verified by a person who is
acquainted with the facts and appointed by govt. for verification.
The sanction to sign must be prior to the institution otherwise the
signing shall be by an incompetent person. A retrospective sanction cannot
cure the defect.13
Order 27 Rule 2 provides that Person authorized to act for the Govt. in
respect of any judicial proceeding shall be deemed to be recognized agent
by whom appearance, acts and applications under this code may be made or
done on behalf of Govt.
Order 27 Rule 3 provides that in a plaint of a suit by or against govt.
instead of providing all detail of plaintiff or defendant it is sufficient to
insert appropriate name as provided in section 79 of CPC, 1908.
Order 27 Rule 4 provides that Government Pleader shall be the agent
of Govt. for the purpose of receiving processes against the Govt. by Court.
Govt. Pleader is only to intimate the court that he is representing the Govt.
No stamped power of attorney or vakalatnama is required.

12. AIR 1960 Cal

270.\
13. State of Rajasthan v. Jaipur Hosiery Mills Pvt Ltd., AIR 1997 Page 11
A person other than the Govt. pleader can act only when the latter intimates
to the court that the former is acting under his direction. The Government
like any other litigant can engage as many as advocates as it thinks
necessary.
Order 27 Rule 5 provides that court will allow a reasonably time to
govt. to answer the plaint so as to make necessary communication between
govt. and govt. pleader. The time shall not be exceeded more than 2 months.
The benefit of Rule 5 is available to the govt. after it has made it
appearance also.
Order 27 Rule 5A provides that in suit against a public officer in
respect of any act alleged to have been done by him in his official capacity,
the govt. shall be joined as a party to a suit.
Order 27 Rule 5B provides that it is a duty of a court in any case
against a govt. or public officer acting in his official capacity to make
attempt at first instance for the settlement of disputes between parties.
Further if finds at any stage of proceeding that there is reasonable possibility
for settlement between parties court will adjourn the case for such a time to
enable attempt to solve a dispute.
Order 27 Rule 6 provides that court can direct attendance of person
who is able to answer any material question relating to the suit against a
govt. 14
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 Mills 15, 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.

14. State Of
Punjab vs Amar Chand Walia, AIR 1980
15. AIR 1997 Raj 10 Page 12

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 16.

Lutfar Rahman v. State of West Bengal 17 .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.

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 person 18.

16. Mulla, Code

of Civil Procedure (Abridged) 390-406 (ed 523)
17. AIR 1954 Cal 455.

18. AIR 1980 P&H 318. Page 13

Conclusion

The Article has defined the process of suit by or against a govt. and
public officer acting in purporting to his official duty. Article has
explained the provisions in detail about the litigation against and by
govt. and public officer acting in purporting to his official duty. After
examining there provision as mentioned we have understand that for
any suit against a govt. first of all it is necessary that party should be
name according to section 79 of CPC. Further to institutive a suit
against govt. or public officer acting in purporting to his official duty it
is mandatory to give prior notice of 2 month. The only exception to this
rule is provided by addition of 80(2) after the amendment of 1976. The
amendment is helping hand so that justice can be done as early as
possible. After concluding the above topics, this Article attempts to
elucidate about the various aspects of these types of suits. It speaks
about whether rights granted under this can be waived, the forms in
which notices can be served and also the modes in which these have to
be served. Moreover Article has provided us about procedure given
under rule 27 and other privileges given to parties i.e. under Section 81
& 82 of the code. 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 17. 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.
 Page 14

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 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.
 Page 15

References

1. https://www.lawteacher.net/free-law-
essays/administrative-law/suits-by-and-againstgovernment-
administrative-law-essay.php
2. 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/.
3. 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.
4. AIR 1930 All 225 (FB)
5. (1903) ILR 27 Bom 189.
6. AIR 1950 Cal 207.
7. 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/.
8. AIR 1958 MP 425.
9. 68 IA109 AIR 1941 PC 64.
10. 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.
11. AIR 1974 Ori 85.
12. AIR 1960 Cal 270.
13. AIR 1997 Raj 10.

Page 16
14. Mulla, Code of Civil Procedure (Abridged) 390-406 (ed
523)
15. AIR 1954 Cal 455.
16. AIR 1980 P&H 318.
17. 7 C.K Takwani, Civil Procedure with limitation Act, 1963
426-37 (ed 347.05).
18. Dr.Lakshmi T and Rajeshkumar S “In Vitro Evaluation of
Anticariogenic Activity of Acacia Catechu against Selected
Microbes”, International Research Journal of Multidisciplinary
Science & Technology, Volume No. 3 , Issue No. 3, P.No 20-25,
March 2018.
19. Trishala A , Lakshmi T and Rajeshkumar S,“
Physicochemical profile of Acacia catechu bark extract –An In vitro
study”, International Research Journal of Multidisciplinary Science
& Technology, Volume No. 3 , Issue No. 4, P.No 26-30, April 2018
20. State Of Punjab vs Amar Chand Walia, AIR 1980
Page 17