PROJECT ON

SUITS BY AND AGAINST THE GOVERNMENT

SUBMITTED TO:
DR. DEO NARAYANA SINGH
FACULTY, CODE OF CIVIL PROCRDURE
ASSISTANT PROFESSOR
SCHOOL OF LAW AND GOVERNANCE
CENTRAL UNIVERSITY OF SOUTH BIHAR

SUBMITTED BY:
AYUSH KUMAR GUPTA
CUSB1813125025 (Sec- A)
BA.LLB(Hons.)
5th SEMESTER
SESSION 2018-23
SCHOOL OF LAW AND GOVERNANCE
CENTRAL UNIVERSITY OF SOUTH BIHAR

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 ACKNOWLEDGEMENT

I would like to extend my sincere thanks to Dr. Deo narayana for assigning me this project SUITS
BY AND AGAINST THE GOVERNMENT and lending her endless support and guidance
throughout the completion of the project. I also take this opportunity to thank my Parents, all my
friends and the Library Staff of CUSB for helping me in the successful completion of the project.

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 TABLE OF CONTENTS

RESEARCH METHODOLOGY………………………………………………………………4
RESEARCH METHODOLOGY………………………………………………………………4
RESEARCH QUESTION……………………………………………………………………...4
INTRODUCTION……………………………………………………………………………...5
ANALYSIS…………………………………………………………………………………….6
SCOPE OF SECTION 79……………………………………………………………………6-7
SECTION 80………………………………………………………………………………....7-8
ORDER XXVII………………………………………………………………………………..9
COMMENT AND SUGGEDDION………………………………………………………….10
CONCLUSION………………………………………………………………………………10
REFRENCES…………………………………………………………………………………11

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RESEARCH METHODOLOGY
This project is basically based on the doctrinal method of research as no firld work is done in this
topic.

SCOPE AND OBJECTIVE

Scope- The scope of this research paper is limited to understsnding and analysis of the suits by and
against the government section 79 to 80 and order 27 of the CPC.
Objective-
 To analysis the concept of suits by and against the government.
 To go through the judicial pronouncement to have a better understanding of the same

SOURCES OF DATA
This whole project is being created with the use of seondary source. the following data has been use
- Books
- websites

MODE OF SITATION
The researcher has followed a uniform mode of citation throughout the course of this project paper

RESEARCH QUESTION
1. What is suit by and againt the government?
2. What are the scope of this suit?

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 SUITS BY AND AGAINST THE GOVERNMENT

INTRODUCTION
Section 79 to 82 and Order XXVII of the Civil Procedure Code, 1908 deal with procedure for
investigation of suits by or against the government and public officers. However, these provisions
only deal with the procedural rights and liabilities that are enforceable against the government and
such persons.The substantive rights and liabilities to be followed are those as are provided by the
Constitution of India.Courts in India are governed by procedural laws which govern the trails and the
proceedings before them. While there are one sets of rulings which hold that procedure is only a
hand-maid of justice and thus should not come into play to preclude a court from ensuring
substantive justice, there are equal other sets of rulings which decree that parties not following
procedures of the court are not entitled to relief.It is in the respect of the second line of decisions that
we bring to you a recent decision of the Supreme Court which declares that a suit/claim would not be
entertained in which Government was required to be made a party to the dispute and not having so
done. Holding that it was essential to ensure that Government was made aware of the litigation by
making it a party, the Supreme Court declared that procedural law clearly specifies the situation in
which Government is required to be made a party and the law to this regard is settled that if the
Government is not made a party, the litigation cannot be proceeded.Article 300 of the Constitution
deals with legal proceedings by or against the Union of India or State and provides that in a suit by or
against the Government, the authority to be named as plaintiff or defendant, as the case may be; in
the case of the Central Government, the Union of India and in the case of State Government, the
State, which is suing or is being sued.

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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:

 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

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. In the case of Jehangir v. Secretary of State1, an important observation was made

1
(1903) ILR 27 Bom 189.

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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.2, 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 government3.

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 4.

In the case of Secretary of State v. Rustom Khan5, 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.

2
AIR 1950 Cal 207.

3
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/.

4
AIR 1958 MP 425.

5
68 IA109 AIR 1941 PC 64

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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.

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 6. 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 Stores7. 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.

6
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
7
AIR 1974 Ori 85

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 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 India8.

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 Mills 9, 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 10.

Lutfar Rahman v. State of West Bengal 11. 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

8
AIR 1960 Cal 270
9
AIR 1997 Raj 10

10
Mulla, Code of Civil Procedure (Abridged) 390-406 (ed 523)

11
AIR 1954 Cal 455

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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 12.

COMMENTS AND SUGESSIONS

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 [16]. 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.

CONCLUSION

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.

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.

12
AIR 1980 P&H 318

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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.

REFRENCES

1. Ankit Vardhan, Suits by or against Government (Section 79 – 82 CPC), Legal Bites – Law
https://www.legalbites.in/suits-by-or-against-government-section-79-82/

2. Namrata Shah, SECTION 79, 80 OF CODE OF CIVIL PROCEDURE 1908

http://www.aaptaxlaw.com/code-of-civil-procedure/section-79-80-code-of-civil-procedure-suits-byr-
against-government-notice-section-79-80-of-cpc-1908-code-of-civil-procedure.html.

3. Adarsh Gill, Code of Civil Procedure 1908 section 80,  LegalCrystal

https://www.legalcrystal.com/cases/search/name:code-of-civil-procedure-1908-section-79.

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