Abstract:

For the sake of better application, the Code of Civil Procedure has been divided into two classes,
namely, (i) suits in general and (ii) suits in special cases. The Code contains in it, the subject of
“suits by or against government or public officers in their official capacity” under sections 79 to
82, read with order XXVII of the Code. These cases fall under the category of suits in special
cases and follow certain prescribed procedure and machinery. The provisions governing this
subject do not have a retrospective effect.1 The provisions provide merely for the procedure and
do not provide for the rights and liabilities. In this article, we shall be looking into the provisions
governing these special cases in detail and analyse them.

Key Words:

Civil Procedure Code, Government, Public Officer, Notice, Government Pleader.

Meaning and Introduction:

A “public officer” means any officer falling under any of the descriptions in section 2(17) of tehe
Code.2 Every judge, member of All India Service, any Gazetted Officer, village Headman, etc.,
shall be deemed to be a public officer. However, a retired government servant, an officer of a
Corporation, etc., shall not be treated under this category.3

‘Government pleader’ includes any officer appointed by the State Government to perform all or
any of the functions expressly imposed by the CPC on the government pleader and also any
pleader acting under the directions of the government pleader. 4 A counsel for the Government
need not file a vakalatnama to appear on the Court. When a suit is instituted under section 80 of
the Code, against the government or its officers, for any act done in his official capacity and not
otherwise5, a notice must be given atleast 2 months before filing of such a suit. The suit filed

1
State of Rajasthan v. Jaipur Hosiery Mills Pvt Ltd AIR 1997 Raj 10
2
Sec 2(17), Code of Civil Procedure (1908)
3
Justice C. K. Thakker (Takwani) Civil Procedure with Limitation Act, 1963 p. 424 (8th ed., Eastern Book
Company, 2017)
4
Sec 2(7), Code of Civil Procedure (1908)
5
State of Bihar v. Jiwan Das AIR 1970 Pat 141
should relate to a series of acts ad includes in it acts of misfeasance and non-feasance. The notice
is to be served either to him in person or should be left in his office. The person giving notice for
such a suit, may withdraw the same before two months and is at the liberty to file a fresh suit.6

Critical Analysis:

What is important is to understand what kind or class of persons are entitled to receive such
notices. The list provided under Section 79 of the Code7 below enumerates a comprehensible
list of persons who are entitled to receive notices in such case:

1. When the suit is against the Central Government, but not to the Railway Department,
such notice lies with the Secretary to the Government;
2. When the suit is against the Central Government, and in relation to the Railway
Department, it lies with the General Manager of the Railways;
3. When the suit is instituted against the Government of Jammu and Kashmir, the notice to
that effect shall lie to the Chief Secretary to the Government;
4. When a suit is instituted against any other State Government, the notice is to lie to a
Secretary to such a Government, or to the Collector.
5. Lastly, where a suit has been filed against the Public Official, the notice to be given to
such Public Official.

The next question is why it is necessary for the Government to have a prior notice of two
months. The reasoning was given by the Supreme Court in the decision of State of Madras v.
C.P. Agencies referring to section 80 of the code8:

“The object of Section 80 is manifestly to give the Government or the public

officer sufficient notice of the case which is proposed to be brought against it or
him so that it or he may consider the position and decide for itself or himself
whether the claim of the plaintiff should be accepted or resisted.”

6
Guran Ditta Mal and Ors. vs Banna Mal AIR 1958 P H 469
7
Sec 79, Code of Civil Procedure (1908)
8
Sec 80, Code of Civil Procedure (1908)
The object also lies in the fact that the Government can prevent the litigant from spending
unnecessarily by not driving a person to an avoidable litigation 9 and securing public good and
advancement of justice in the process.10 Study of the reports of the Law Commission state that
there was a challenge with respect to this provision as being unequal with respect to the citizens
and the State. There have been situations whereby the notices have remained unanswered of
instances whereby the provision has been used as a defence in the court of law. However, despite
various opposing views, the Parliament decided that the provision should be kept intact in the
Code.11

The section also provides for the proper issue of notice as its pre-requisites. The notice so given
should contain the (i) name, description and place of residence of the person giving the notice;
(ii) a statement of the cause of action; and (iii) relief claimed by him. 12 It has been held to be one
of the most important areas of section 80. The section, imposes a statutory and unqualified
obligation upon the Court and in the absence of compliance with Section 80 of CPC, the suit is
not maintainable. The service of notice under Section 80 of CPC is, a condition precedent for the
institution of a suit against the Government or a public officer. 13  Where a suit is instituted
against the Government or the Public officers, “without serving a proper notice such a suit must
be deemed not to have been instituted at all.”14

A notice under these section is for the benefit of the Government or the public officer. It is
therefore open to the government or the public officer to waive off such a benefit. 15 To avoid the
benefit of ‘technical errors’ an amendment to the section was made and addition of section 80 (3)
was made to the Code. The section prevents the plaintiff’s notice from being dismissed merely
on grounds of technical errors, provided that the notice contains name and description of the
person filing such suit and the cause of action, sufficient enough for the Government or the
public officer, to identify such person serving the notice and such notice had been delivered or

9
Secretary of State v. Perumal (1910) ILR 24 Mad 279
10
Bihari Chowdhary v. State of Bihar (1984) 2 SCC 627, at p. 629-30
11
State of Punjab v .Geetha Iron and Brass Works AIR 1978 SC 1608
12
Justice C. K. Thakker (Takwani) Civil Procedure with Limitation Act, 1963 p. 424 (8th ed., Eastern Book
Company, 2017)
13
Bhagaban Khatua and Ors. Vs. State of Orissa and Ors.  MANU/OR/0666/2017
14
Good Will India Limited and Anr. v. The Union Of India ILR 1968 Delhi 462
15
Dhian Singh v. Union of India AIR 1958 SC 274
left at the office or public officer. 16 The section is merely substantive one and not procedural in
nature.17

Section 8118 exempts the public officers from arrest and from attachment of property with
respect to the suit instituted, provided that the same is not in the course of execution of a decree.
Moreover, he may be exempted from personal appearance if the Court feels that such an
appearance would be detrimental to public policy. Section 8219 provides that any decree passed
against the Government, shall not be executed until it remains unsatisfied for a period of three
months, provided the same has been passed a competent court authorized to pass such a decree.20

The procedure for the filing of the suit by or against the Government, is laid down under Order
XXVII of the Code.21 The procedure provides for the pleadings to be signed by any person who
has been appointed by the Government, provided that such a person is well acquainted with the
facts of the case. This procedure shall be applicable only to those who come under the umbrella
of “State” as described under Art. 12 of the Constitution. 22 A Government pleader shall be the
agent of the Government for receiving of the court processes.23 The Allahabad High Court
in Rohtas Singh vs Commissioner, it was held that a person 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.24 Notice shall be issued to the Attorney General of India in
cases involving substantial question of law. The pleader is entitled to receive reasonable time to
prepare a reply to the plaint so filed. 25 However, such time frame should not exceed a period of 2
months. This benefit is to be exercised provided that an appearance has been made on behalf of
the Government. Though the public officer is exempted from appearance, the Court may direct
the attendance of the officer in order to answer material question in the suit.26

16
Union of India v. Shankar Stores and Anr. AIR 1974 Ori 85
17
Laksmivaram v. State AIR 1977 Pat 73
18
Sec 81, Code of Civil Procedure (1908)
19
Sec 82, Code of Civil Procedure (1908)
20
State v. Abdul Rahman AIR 1960 J&K
21
O 27, Code of Civil Procedure (1908)
22
Art. 12, Constitution of India, Kanpur Jal Sansthan v. Bapu Constructions (2015) 5 SCC 267
23
O 27 rule 4, Code of Civil Procedure (1908)
24
Rohtas Singh vs Commissioner, AIR 1997 All 278
25
O 27 rule 5, Code of Civil Procedure (1908)
26
O 27 rule 6, Code of Civil Procedure (1908)
Conclusion and Recommendations:

The article summaries by defining the various provisions and laying down the procedure
involved in a suit filed by or against the Government or the public officer. It begins by laying
down the various instances under sec.79, where a suit lies with the Government or the public
officer being one of the parties. It goes on explaining the object to keeping these suits under the
category of special suits through sec. 80. Furthermore, it lays down the benefits that the
Government and the public officers receive for the fact of them being in such a position. These
benefits have been laid down in sec. 80, 81 and 82, and have been discussed in the article above.
The only exception to the benefits enshrined is laid down under clause 2 of sec. 80, which was
added by the Amendment of 1976. The article talks of the fact that the rights and benefits may be
waived and in way ways can the notices be served. Lastly, Order XXVII lays down the mandate
procedure that needs to be followed while dealing with such issues. Hence, the topic elucidates
the various aspects involved in the suits by and against the Government and the public officers.