SUBJECT: DRAFTING, PLEADING AND

CONVEYANCING

Project topic:
SUIT BY OR AGAINST GOVERNMENT

Submitted By
Sapna pandey
Roll no. 1370
4 Year , 8 Semester, B.A.LL.B(Hons.)
TH th

Submitted to
Dr. B.r.n. sharma
Faculty of D.p.c

Chanakya national Law University, Patna

APRIL, 2019

1
ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to my guide Dr.
B.R.N. Sharma for his exemplary guidance, monitoring and constant encouragement throughout
the course of this project. The blessing, help and guidance given by his from time to time shall
carry me a long way in the journey of life on which I am about to embark.

I also take this opportunity to express a deep sense of gratitude to my seniors, the library staff
and my friends for their valuable information and guidance, which helped me in completing this
task through various stages.

I would also thank my Institution and my faculty members without whom this project would
have been a distant reality. I also extend my heartfelt thanks to my family and well wishers.

Sapna pandey

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Table of Contents

1. Acknowledgement-------------------------------------------------------- -----2
2. Research Methodology--------------------------------------------------------4
3. Chapters:
Chapter-1:
Introduction----------------------------------------------------------------------------5
Chapter-2:
Procedure for suit by or against government: Analysis of Relevant
Provisions------------------------------------------------------------------------------7
Chapter-3:
Format : Drafting of suit by or against government----------------------------20
Chapter-5:
Conclusion and suggestions--------------------------------------------------------21

Bibliography-------------------------------------------------------------------------22

3
RESEARCH METHODOLOGY
 METHOD OF RESEARCH
The researcher has adopted a purely doctrinal method of research. The researcher has
made extensive and intensive use of the library at Chanakya National Law University, the
internet and published sources.

 SOURCES OF DATA
The following Sources of data have been used in this project-

Primary: Bare Act, Case laws

Secondary:

i. Books
ii. Internet
iii. Journals

 AIMS AND OBJECTIVES

The aim of the project is to-
 To understand the provisions in civil procedure code, 1908 relating to suit by or
against government.
 To make drafts for suit by or against government.

 HYPOTHESIS

The researcher believes that either party is entitled to ask the other party to disclose
whatever facts or documents they possess in order to constitute the case.

4
 Chapter -1

INTRODUCTION
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, 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 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 well as 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

5
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”.

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.

6
 Chapter -2

Procedure for suit by and against government- Analysis of Relevant

provisions

Title of Suit: Section 79:

In any suit filed against the Government, The Government or the authority against whom the
case is filed shall be named as a party in the following manner

 In case of a suit by or against the central government, the Union of India

 In the case of a suit by or against the state government, the State. 1

Statement in Plaint:

Even after the expiration of two months, a plaint can be presented before the court. This must
contain a statement which, under section 80 of the code, has a statutory notice which has been
delivered or left as per subsection (1) of section 80. An omission to make such a statement is
fatal, and in its absence, the plaint will be rejected by the court.2

Parties:

Where a suit is filed against a public officer in respect of any act purporting to be done in his
official capacity, the government should be joined as a party to the suit.3

Notice under Section 80 of CPC, 1908

Suits between individuals require no notice to be given to the defendant by the plaintiff before
filing of a suit. However as per Section 80 of the Code of Civil Procedure, 1908, no suit will be
instituted against the Government or against a public officer with regards to any act done by such
an officer in his official capacity, until the expiration of two months after the notice in writing
has been delivered to, or left at the office of:

1
State of A.P v. Gundugola Venkata AIR 1965 SC 11
2
Section 79, Civil Procedure code,1908
3
Order 27 rule 1

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  in the case of a suit against the Central Government, except where it relates to a railway,
a Secretary to that Government;
 in the case of a suit against the Central Government where it relates to a railway, the
General Manager of that railway;
 in the case of a suit against the Government of the State of Jammu and Kashmir, the
Chief Secretary to that Government or any other officer authorised by that Government in
this behalf;
 in the case of a suit against any other State Government, a Secretary to that Government
or the Collector of the district;
 in the case of a public officer, delivered to him or left at his office, stating the cause of
action, the name, description and place of residence of the plaintiff and the relief which
he claims. 4

Amendment

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. 5

4
Civil Procedure, Justice C. K. Thakker (Takwani), 7th edn., Eastern Book Company, Lucknow
5
New India Assurance Co. Ltd v. Delhi Development authority A 1991 Del 298,301

8
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.6 Although it has been
said that substantive rights are to be determined in accordance with the provision of the
Constitution7, Section 80 of the Code is not a procedural provision, but a substantive one.8

A statutory body may be an instrumentality of the state within the meaning of Art. 12 of the
Constitution9, nevertheless, it would not answer the description of ‘government’ as it is
understood in law and in the context of S. 80.10

This section is explicit and mandatory and admits of no implications or exceptions.11 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).12

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-wise13, after the serving of
notice as per S. 80(1) is not maintainable. 14

Law Commission Of India

The Law Commission of India did not favour in retaining the provision of issuing notice under S.
80 before filing a suit by the aggrieved party. It cited as a reason, inter alia, the hardship involved
in a large number of cases where immediate relief was needed. The evidence disclosed that in a

6
State of Maharashtra v. Chander Kant, (1977) 1 SCC 257
7
Nirmal Chand v. Union of India, AIR 1966 SC 1068
8
Kanhayalal Osawl v. Govt. of India, AIR 1974 Guj 37
9
Sukhdev Singh v. Bhagat Ram, AIR 1975 SC 1331.
10
Minakshi Patra v. Secretary, Irrigation and Power, Court of Orissa, AIR 1999 Ori 137.
11
Ramabrahma v. Dominion of India AIR 1958 Cal 183.
12
Jagadish Chandra v. Debendraprasad AIR 1931 Cal 503.
13
Laxmi Narain v. State AIR 1977 Pat 73.
14
Bihari Chowdhry v. State of Bihar AIR 1984 SC 1043.

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large majority of cases, the Government or the public officer made no use of the opportunity
afforded by the section. In most cases the notice remained unanswered.15 In large number of
cases, Government and public officers utilised the provision as a “technical defence” and in a
number of cases, the objection has been upheld by the Court defeating just claims of the
citizens.16

The matter was again considered by the third Law commission in the twenty-seventh report
where it noted that it was unable to find a parallel provision in any other country governed by the
Anglo-Saxon system of law. It opined that in a democratic country like India there should
ordinarily be no distinction, as is created by Section 80, between the citizen and the State.17

The Joint Committee of Parliament however has, in “public interest”18, favoured the retention of
the issuance of notice under S. 80, after having considered the reasoning and recommendations
of the Law Commissions.

Essentials

A notice under S. 80 must contain

 name, description and place of residence of the person giving notice;

 a statement of the cause of action; and
 relief claimed by him.

In considering whether the essential requirements of the section have been complied with, the
Court should ask the following questions: 19

 Whether the name, description and residence of the plaintiff are given so as to enable the
authorities to identify the person giving the notice?
 Whether the cause of action and the relief which the plaintiff claims have been set out
with sufficient particulars?

15
Civil Procedure, Justice C. K. Thakker (Takwani), 7th edn., Eastern Book Company, Lucknow, p. 428.
16
Law Commission’s Fourteenth Report, pp. 475-476.
17
Law Commission’s Twenty-seventh Report, pp. 21-22.
18
Report of the Joint Committee.
19
State of A.P. v. Gundugola Venkata, AIR 1965 SC 11.

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  Whether such notice in writing has been delivered to or left at the office of the
appropriate authority mentioned in the section? ; and
 Whether the suit has been instituted after the expiration of two months after notice has
been served, and the plaint contains a statement that such a notice has been so delivered
or left?

Notice Whether Empty Formality?

The statutory notice served in pursuance of section 80, serves the objective of providing an
opportunity to the government or a public officer to take the matter in the reconsideration and
take an appropriate decision which is in accordance with law. The notice by itself was not
intended to be an empty formality but it has become one. The administration is often
unresponsive and shows no courtesy even to intimate the aggrieved party why his claim is not
accepted20.The reason behind enactment of this section was as a measure of public policy, the
purpose was the advancement of justice and securing of good of the people by avoiding
unnecessary litigation.

Krishna Iyer J. has stated “ We like to emphasize that Governments must be made accountable
by Parliamentary social audit for wasteful litigation expenditure inflicted on the community by
inaction. A statutory notice of the proposed action under S. 80 C.P.C. is intended to alert the
State to negotiate a just settlement or at least have the courtesy to tell the potential outsider why
the claim is being resisted. Now S. 80 has become a ritual because the administration is often
unresponsive and hardly lives up to the Parliament’s expectation in continuing s. 80 in the Code
despite the Central Law Commission’s recommendations for its deletion” 21

The law commission was in fact against the provision of issuing a notice under section 80, before
more than fifty years it has noticed that the section had inflicted hardship in cases where
immediate relief was needed and in most of cases the notice remained unanswered.

Notice Whether Mandatory?

20
Bihari Chowdhary v. State of Bihar ,(1984) 2 SCC 627
21
State Of Punjab v. M/S. Geeta Iron & Brass Works Ltd, 1978 AIR 1608

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The provisions in section 80 are express and explicit by themselves and make the serving of
notice mandatory by not admitting any implications or exceptions. They are imperative in nature
and must be strictly complied with. Notice whether under section 80 is the first step in the
litigation.22A court cannot entertain any suit unless the notice is duly served to the public official
under section 80(1). If a section had done injustice, it is a matter which can be rectified by the
legislature and not by a court.23

A plaintiff filed a suit to stop the tax officer from selling the suit property he purchased from the
defendant, who was in arrears of income tax, it was held by the court that the central government
was a necessary party to the suit. Hence unless a notice has been served under section 80,the suit
will not be maintainable. 24

The section is imperative and must undoubtbly be strictly construed; failure to serve a notice
complying with the requirements of the statute will entail dismissal of the suit.25

Construction of Notice:

As mentioned before the compliance with section 80 by serving a notice is mandatory. But it is a
procedural provision, a means by which the court impart justice. A notice under this section must
should not be construed in a pedantic manner divorced from common sense.26

Pollock has stated that “We must import a little common sense into notice of this kind. A
statutory notice must be reasonably construed, keeping in mind the ultimate objective that an
interpretation should not lead to injustice .Every venial defect or error not going to the root of the
matter cannot be allowed to defeat justice or to afford an excuse to the government or a public
officer to deny just claim of an aggrieved party”27

The question has to be decided by reading the whole notice in totality and in a reasonable
manner. If the notice on such a reading the court is satisfied that the information which was
necessarily to be provided to the defendants by the plaintiff was in fact provided, inconsequential

22
State of Seraikella v. Union of India 1951 SCR 474
23
Bhagchand v. Secy. Of State AIR 1927 PC 176
24
Prakash textiles v.Tax recovery Officer AIR (1983) kant 174.
25
Ghanshyam Dass v.Dominion of India 1984 3 SCC 46.
26
State of Madras v. C.P. Agencies AIR 1960 SC 1309
27
Jones v.Nicholls, (1844) 13 M & W 361:153 ER 149

12
defects or error is immaterial and will not vitiate the notice. The provisions of the section are not
intended to be use as booby-traps against ignorant and illiterate persons.28

Act Purporting To Be In Official Capacity

The expression “any act to be done by such public officer in his official capacity” takes within its
sweep acts as also illegal omission .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 therein29.If the allegations in the plaint relate to an
act which was purported to be done by a public officer in his official capacity means that the said
act must be such that it could be done ordinarily by a person in the ordinary course of his official
duties .It does not cover acts outside the sphere of his duties. 30There must be something in the
very nature of the act complained of which attaches to the official character of the person doing
it.31

The test to be applied in these cases is that whether the officer can reasonably claim protection
for the acts that he commits or that it was performed by him purely in his private or individual
capacity. In the case of him claiming protection a notice under section 80 is necessary, and in
case it was performed by him purely in his private or individual capacity it is not.32

Waiver Of Notice

Although, Under Section 80 of the civil procedure code mandates issuance of a notice for the
institution of notice, it is considered to be a mere procedural requirement and not a substantive
need. This is because the issuance of a notice does not necessarily affect the jurisdiction of the
court in question. In the case of Dhina Singh v. Union Of India, It was held that this notice is
for the benefit of the government or the public officer, it is the prerogative of the government to
choose to waive the right.33 Furthermore in the case, Commr. Of taxes v. Golak Nath, it was

28
Raghunath Das v. Union of India AIR 1969 SC 674;
29
Samanthalal Koti v. Pothuri Subbiah AIR 1918 Mad 62
30
Ibid.
31
State of Maharastra v. Chander Kant (1977) 1 SCC 257 at p.260
32
Amalgamated Electricity co.(Belagaum) Ltd. v Municipal committee Ajmer AIR 1969 SC 227
33
AIR 1958 SC 274

13
held by the courts that the facts of the particular case was vital to see if the right could be
waivered or not.34

Form Of Notice

No particular has been prescribed under the code. Due to the above, there is no need to give it in
any particular form to give a notice under Section 80. The mere satisfaction of all conditions
prescribed in this section is sufficient. Also, in the Amar Nath v. Union of India, it was held that
the notice must merely inform the opposite party about the nature and the basis of the claim and
relief sought.35

Mode Of Service

A notice submitted under section 80 of the civil procedure code must be given to, or left at the
office of, the appropriate authority specified. This was held in the State of A.P V. Gundugola
Venkata.36 IT has been specified in the code as to who the appropriate authority is under section
80. As per the section, it must be given to the secretary of the department or the collector of the
district. Under this section, personal delivery of the notice is not necessary, thus making the
words “left at the office” redundant. The section however does not prohibit the personal deliver
of the notice. It further allows the notice to be sent through registered post.

Technical Defect In Notice: Section 80(3)

The Code of Civil Procedure (amendment) act, 1976 gives a lot of clarity on a suit issued against
the government if there is a defect in the notice issued. The Amendment added Subsection 3 to
section 80 whereby it has been explicitly stated that no suit against the government has be
dismissed merely on the ground of a defective notice. It also adds that in such a case the name,
residence or the residence of the plaintiff is specified in the notice, allowing for the identification
of the plaintiff in the notice delivered or left at the authority or public officer and the cause of
action and the relief claimed by the plaintiff had been substantially indicated therein. This means
that if the notice contained basic details, it would be sufficient.

34
AIR 1979 Gau 10
35
AIR 1963 SC 424
36
AIR 1965 SC 11

14
The above amendment to the code was made with the intention that justice is not denied to the
aggravated parties on the grounds of technical defects. Therefore, a notice under section 80
cannot be held to be invalid and no suit can be dismissed on the grounds that there has been a
certain technical defect or error in the notice delivered or on the ground that such notice was
served in an improper way. 37

Also, the joint committee stated the following

“The committee also feels that with a view to seeing that the just claims of many persons are not
defeated on technical grounds, the suit against the government or the public officer should not be
dismissed merely by reason of any technical defect or error in the notice or any irregularity in the
service of the notice if the name, description and residence of the plaintiff have been so given in
the notice as to enable the appropriate authority or public officer to identify the person serving
the notice, and the notice had been delivered or left in the appropriate authority, and the cause of
action and the relief claimed has been properly indicated in the notice.”38In copulating the period
of limitation for instituting a suit against the government or public officer, the period of notice
has to be excluded. 39

Leave Of Court: Section 80(2)

Through the amendment made to the civil procedure code in 1976, subsection 2 was added to
section 80. As per this, the aggrieved party can institute a suit against the government for
obtaining urgent or immediate relief with the leave of the court even without serving the notice
to the government or public office.40This subsection, thus, engrafts an exception to the rule laid
down in subsection (1) of section 80 and allows the plaintiff to obtain urgent relief in grave cases
even without issuing notice. 41

The main objective of this is to prevent any failure or miscarriage of injustice in urgent cases. It
is the urgency and immediate relief which would weigh with the court while dealing with a

37
Section 80 of the Indian Procedure Code
38
Report of the joint committee, gazette on India dt. 1-4-1976
39
S.15, Limitation Act, 1963.
40
Ghanshyam Das v. Dominion of India AIR 1984 SC 1004
41
Ibid.

15
prayer to dispense with the requirement of a notice and not the merits of the case.42Subsection
(2) however, is enacted in such a way that in this type of case, the court will not have any
authority to grant a relief, interim or otherwise, unless a reasonable opportunity has been given to
the government to show cause in respect of the relief prayed for in the suit.

Writ Petition

As per Section 80 of the code, it can be stated that a writ petition filed under article 32 and article
226 of the constitution does not constitute a suit as per the definition and scope of this section.
Hence, prior notice to the government or public officer is not necessary before filing a petition in
the Supreme Court or in a high court.43

Computation of Suit:

In computing the period of limitation for filing a suit, the period of notice should be excluded. 44

Premature Suit:

A suit instituted before the expiry of two months of notice as required by section 80 of the code
is liable to be dismissed only on that ground.45

Appeal:

An order passed under section 80 is neither a decree nor an appealable order, and hence, no
appeal lies against the order. 46

Revision:

Under Section 115 of the code, an order given under Section 80 is revisable as it considered as a
“case decided”. If a court subordinate to the High Court makes an order which is patently illegal
and suffers from jurisdictional error, then it can be rectified by the High Court.47

Exemption from arrest and personal appearance

42
Civil Procedure, Justice C. K. Thakker (Takwani), 7th edn., Eastern Book Company, Lucknow
43
Province of Bombay v. Khushaldas S Advani AIR 1950 SC 222
44
S.15(2) Limitation act,1963
45
Bihari Chowdhary v. State of Bihar AIR 1984 SC 1043
46
Kailash Chandra v. State of MP AIR 1992 MP 242
47
Muktarei Devi v State of Manipur AIR 1978 Gau 17

16
Section 81 is also considered as an important privilege given to a public servant. It allows the
court to exempt the public servant form appearing before the court. It can do this only if believes
that by making the person absenting himself from his duty, there is a loss caused to the public.

Execution of Decree

It has also been stated under section 82 that no execution will be entertained by any court against
any decree passed by the government is a public officer. The only condition that must be fulfilled
for seeking this is that it must be unsatisfied for three months since the date the decree was
passed.

Procedure (Order 27)

 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.
 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
recognized agent who shall make appearances, applications and do acts on behalf of the
government.
 The government pleader shall be the agent of the government for receiving all court
processes. (Rule 4)
 In fixing the date for the hearing, the court must have due to regard to the
communications made to the government, issue of instructions to the government pleader
to appear, etc. (Rule 5) Such time limit may be extended by the court but not beyond 2
months in aggregate.
 An extension may also be granted where a public official is a defendant and he takes
leave from the court to make a reference to the government before he answers the
allegations in the plaint. (Rule 7). This is also because, in every suit against a public
officer, the government is deemed to have been joined as a party. (Rule 5-A)
 Where the government decides to take defense for acts done by a public official, the
government pleader after having been authorized in this regard shall make an application

17
 to the court and the court shall cause his name to be entered into the register of civil suits.
(Rule 8) Where no such application is made by the government pleader on or before the
date of hearing as fixed by the notice, the proceedings shall be deemed to be as between
private parties. However, the public official in such case cannot be arrested or his
property cannot be attached, except where it is for execution of a decree.

The court also has the duty to assist the parties in arriving at a settlement where it is of the
opinion that such settlement is possible. It may also grant an adjournment for such purpose.
(Rule 5-B)

The court may even direct the attendance of any person who may be able to answer material
questions as regards the matter on behalf of the government where such person doesn’t appear in
court without the government pleader. (Rule 6) No security is required to be furnished by the
government or the public official.

18
 Chapter -3
Format: Drafting Of Suits By Or Against Government

I. Notice Of Suit Under Section 80, Code Of Civil Procedure

By Registered A.D.

……………………………..

Advocate

……………………………..

……………… …………….

Date ……………………….

TO,

The Secretary to the Govt. of ……………………

………………….. Dept.,

Dear Sir,

Re: Notice under section 80, Code of Civil Procedure

Under instructions from my client Shri ………………….. resident of …………………… I

hereby give you notice that my client Shri ………………….. shall file a civil suit against the
Government in the court of competent jurisdiction after the expiry of two months from the date
of service of this notice for the cause of action and reliefs mentioned in the draft plaint enclosed
herewith, which may be treated as part of this notice.

19
Yours faithfully,

………………….

Advocate

Enclosure: Plaint

II. Notice under section 80, code 0f civil procedure Against public officer

……………………………..

Advocate

……………………………..

Date ……………………….

TO,

Shri ……………………

Medical Superintendent,

………………….. Hospital,

Re: Notice under section 80, Code of Civil Procedure

Dear Sir,

Under instructions and on behalf of my client Shri ……………. resident of ………………….. I

hereby give you notice as follows:

1. On or about ………………….. you were the Medical Superintendent of

………………….. Hospital . ………………….. and you were also the Head of
the Deptt. of Surgery of the said hospital.

20
2. Shri ……………. was admitted to the said ………………. Hospital on
…………….. for surgical operation for removal of stones in the kidneys under
your care and supervision and ……………. was fixed the date of operation of the
said Shri ………………
3. When the said Shri ……………. was being operated, you were personally present
in the operation theatre and doing the operation with the assistance of junior
doctors.
4. After removing the stones, you, while undertaking stitching, had negligently,
carelessly and willfully left a big piece of cotton inside the body, due to which my
client started to complain severe pain in the kidneys for which you had prescribed
some antibiotics on various visits.
5. When my client could not get treatment for his pain, he went to
………………….. and consulted Dr. ……………… of ………….. Nursing
Home ……………… who opined that there is some foreign element around the
kidney, for which my client was operated on ……………… in ……………….
Nursing Home and a piece of cotton was removed from inside the body and after
the removal of the cotton, my client had got relief from pain.
6. My client Shri ………………….. had to undergo physical and mental suffering
for the negligence, carelessness and mistake committed by you and he had to
spend lot of money for treatment of pain, which was caused due to leaving the
piece of cotton inside the body by you, while undertaking operation for removal
of stones in the kidney.
7. The said ……………. therefore demands from you Rs. ………….. as damages
for physical and mental suffering, Rs. ………………….. as expenses incurred by
him in the operation and treatment, Rs. ………………. as expenses incurred by
him in transport, hotel, etc. totaling Rs. ……….. and I hereby give you notice that
if the said amount is not paid, the said ………………….. will, on the expiry of
two months from the date of service of this notice, file a suit against you for the
recovery of Rs. …………… as damages and expenses incurred by him, at your
entire risk as to cost and consequences.

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 Yours faithfully,

……Advocate

Chapter -4
Conclusion and Suggestions

This project has explained what suits against the government and public officials are. The project
starts off by saying what exactly is stated in Section 80(1) which explains how a suit must be
filed. After this, it was felt that there had to be a special emphasis given to the amendment and
how it changed the whole sections pertinent to the above topic. There is also a mention about the
nature and applicability of such suits with a mention about the various essentials mentioned
under Section 80. This project also tries to answer some of the questions with respect to this
topic such as whether notices in this matter is just a mere formality or if they are mandatory. As
this is with respect to government and public officers, this project also speaks about what
happens to acts that are conducted in an official capacity. After concluding the above topics, this
project 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. As Justice Sen stated “laws can survive only on
technicality.” Keeping in view with it, this project speaks about some of the technicality of law,
like what happens when there is a technical defection in the notice, or about the exclusion period
of the notice or when there is a need for a judgment on an urgent basis. Additionally, this project
talks about the procedure when writs are filed, or when there is a premature suit, on appeal or if
there is a revision. In conclusion, this project speaks about procedure given under rule 27 and
other privileges given to parties.

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

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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.

BIBLIOGRAPHY
BOOKS

1. Civil Procedure, Justice C. K. Thakker (Takwani), 7th edn., Eastern Book Company,
Lucknow

REPORTS
1. Law Commission’s Fourteenth Report.
2. Law Commission’s Twenty-seventh Report.
3. Report of the Joint Committee.

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