SUITS BY OR AGAINST THE GOVERNMENT [Section 79]:

“In a suit by or against the Government, the authority to be named as plaintiff or

defendant, as the case may be, shall be :-
(a) in the case of a suit by or against the Central Government, the Union of
India, and
(b)in the case of a suit by or against a State Government, the State.”
Provision contained in Section 79:
Litigation is a legal tool available to the Government. The Government is the
plaintiff in a lawsuit it files against a private party. However, in the case that
someone files a lawsuit against the government, the government will be named
as a defendant. According to Section 79, the Central Government must be
identified as "The Union of India" in the cause-title of any lawsuit in which it is
a party, whether as a plaintiff or a defendant. It further stipulates that the State
Government must be identified as "The State" in the cause-title of any lawsuit in
which it is a party, whether as a plaintiff or a defendant.
The case of Srikakulam v. Bagathi Krishna Rao established that Section 79 of
the Code of Civil Procedure addresses lawsuits brought by or against the
government. In such cases, the Union of India, the Central Government, the
State, or the State Government can be named as plaintiffs or defendants. Failure
to join the necessary party is fatal. Order XXVII, CPC, Rule 1 addresses cases
brought by or against the government or officers acting in their official
capacities. In such cases, the written statement or plaint must be signed by an
individual designated by the government and endorsed by an individual chosen
by the government. Article 300 of the Constitution grants the plaintiff or
defendant authority to be named in the suit.
NOTICE [Section 80]:
Notifying the defendant is not necessary for filing a lawsuit against another
individual, but it is required before a plaintiff can file one against the
government or a public office. Section 80 requires a declaration that the notice
has been received in the plaint. The court may permit filing a lawsuit without
providing notice in cases where prompt remedy is requested, but will not hear
from the defendant before granting any relief. The plaint will be returned if the
court determines that the suit does not require immediate relief. After meeting
the notification requirement, the plaint that has been returned in this manner
may be presented. The court will not hear from the defendant before granting
any relief in the lawsuit..
Notice is essential if the suit is filed against the Government or a public
officer:
A notice under Section 80 is required to be given when :-
(i) the suit is filed against the Government; or
(ii) the suit is filed against a public officer in respect of act done or purporting to
be done by him in his official capacity.
It may be noted that a notice is required in all the suits against the Government.
But, in case of suit against a public officer, notice is necessary only when the
suit is in respect of any act done or purporting to be done by such public officer
in discharge of his duty and not otherwise.
In State of A.P. v. Pioneer Builders, the Apex Court ruled that service of notice
is necessary unless urgent relief is needed. In such cases, a suit against the
Government or a public officer can be initiated without notice but with the
court's leave. This leave is a condition precedent and must precede the suit
without notice. The order granting the leave must indicate the ground(s) pleaded
and the application of mind thereon. The court cannot grant relief without
giving the government or public officer a reasonable opportunity to show cause.
If the court decides no urgent relief is needed, it should return the plaint for
presentation.
Non compliance with requirement of notice:
A notice under Section 80 is a pre-requisite for filing a suit against the
Government. However, the court may permit institution of suit against the
Government without notice, if an urgent or immediate relief is prayed for, but
no relief shall be granted without affording an opportunity to the Government of
hearing.
In State of Kerala v. Sudhir Kumar Sharma, the court sought urgent relief
against the Government or public officer. An application under Section 80(2)
was made for leave of court for exemption from serving notice under Section
80(1). The court had to hear both parties to determine the grave urgency of the
case and pass an order granting leave. If the application was rejected, the plaint
would be liable to be rejected under Order VII, Rule 11. However, the rejection
does not constitute a final decision. The court emphasized that the final decision
and order of court granting leave are essential for maintaining the suit without
serving notice. The defect of non-issuance of notice continues until the final
order is passed, and mere filing of the application under Section 80(2) is not
sufficient to raise a presumption regarding the grant of leave of court.
Requirements before filing of a suit against the Government :
A plain reading of the provision contained in sub-section (1) reveals that before
filing a suit against the Government, following requirements must be fulfilled-
(i) a written notice to the named officer of the Government;
(ii) delivery of such notice in the manner prescribed; and
(iii) expiration of two months period after delivery of such notice.
No suit against the Government can be filed unless above conditions are
satisfied.
Who is a public officer:
The term "Public Officer" is defined in Section 2 (17) of the Code. The
definition says that every Judge; every member of an All-India Service; every
commissioned or gazetted officer in the military, Naval or Air Forces of the
Union; and every officer of a Court of Justice and of Government who performs
the duty as mentioned, is a public officer.
Requirements before filing of a suit against the public officer
For instituting a suit against a public officer in respect of any act purporting to
be done by him in his official capacity, it is necessary to ensure that
(i) a notice in writing is served upon such public officer;
(ii) such notice is dilivered to the public officer in the manner prescribed; and
(iii) two months period has expired after delivery of such notice.
The court states that no suit can be filed against a public officer unless certain
conditions are met, specifically relating to an act done or purported to be done
by the officer in his official capacity. If the suit is not about an act done or
purported to be done by a public officer, notice under Section 80 is not required.
The term "an act done or purporting to be done by a public officer in his official
capacity" includes both past and future acts, and all acts done or potentially
done by a public officer under his official duties.
Contents of notice:
A statutory notice must be in writing and must contain following particulars :
(i) name, description and residential address of plaintiff so that the noticee may
identify him;
(ii) cause of action; and
(ili) relief sought.
It is not necessary that the notice is in a particular form. If the notice sufficiently
discloses the identity of the plaintiff, the nature and basis of claim and relief
sought, it is valid. No suit shall be dismissed merely because there is any error
or defect in the notice.
Suit shall not be dismissed on the ground of technical defects in the notice:
There is no prescribed form for a notice under Section 80. What is necessary is
that the notice must contain the identity of the plaintiff and the particulars
relating to cause of action and relief claimed and it must be delivered to the
defendant. If there is an error or a technical defect in the notice, the suit against
the Government or the public officer shall not be dismissed on that ground
alone.
Modes of delivery of statutory notice:
No suit against the Government or a public officer for an act in his official
capacity shall be instituted unless a written notice thereof is served and months
time has expired since such service. The service of notice two months time has
expired since service. The service of notice may be effected by personal
delivery, by leaving the notice at the office of the noticee or by sending it
through registered post. The modes in which the notice may be served are as
under.
Suit against the Central Government, except Railway:
In case of a suit against the Central Government, except railway, the notice may
be delivered to or left at the office of the Secretary to that Government.
Suit against Railway :
In case of a suit against Railway, the notice may be delivered to or left at the
office of the General Manager of that Railway.
Suit against the Government of the State of Jammu and Kashmir:
In case of a suit against the Government of the State of Jammu and Kashmir, the
notice may be delivered to or left at the office of the Chief Secretary or any
other officer authorised by that Government in this behalf.
Suit against any other State Government :
In case of a suit against any other State Government, except the Government of
the State of Jammu and Kashmir, the notice may be delivered to or left at the
office of the Secretary to that Government or the Collector of the District.
Suit against a public officer :
In case of a suit against a public officer, the notice may be delivered to -him or
left at his office.
Statement in the plaint :
A plaint can be presented only upon expiration of two months after the notice
has been duly served upon the Government or the public officer. The plaint
must contain a statement that a notice prescribed by Section 80 has been served
upon the defendant Government or public officer. In the absence of such
statement, the court will reject the plaint.
Requirement of notice may be dispensed with in case of urgency:
In the cases where an urgent relief is needed, a suit may be filed against the
Government or any public officer without giving statutory notice under Section
80. However, leave of court is necessary. But in that case, no relief shall be
granted without hearing the defendant. If upon hearing the parties the court is
satisfied that no immediate relief is required, it shall return the plaint. The plaint
so returned may be presented after complying with the requirement of notice.
Object of statutory notice under Section 80:
Statutory notice is a formal process that allows the government or public officer
to reconsider a claim based on a settled legal position. If the claim is just and
proper, the government or officer can settle within two months, saving time and
money, and avoiding litigation. Section 80 provisions are mandatory and must
be strictly complied with.
EXEMPTION FROM ARREST AND PERSONAL APPEARANCE
[Section 81]:
In a suit instituted against a public officer in respect of any act purporting to be
done by him in his official capacity-
(a) the defendant shall not be liable to arrest nor his property to attachment
otherwise than in execution of a decree, and
(b) where the Court is satisfied that the defendant cannot absent himself from
his duty without detriment to the public service, it shall exempt him from
appearing in person.
Provision contained in Section 81:
Section 81 grants certain exemptions to a defendant public officer in a suit
instituted against him in respect of any act purporting to be done by him in his
official capacity.
Exemptions enjoyed by a public officer:
In a suit instituted against a public officer in respect of any act purporting to be
done by him in his official capacity :-
(i) the defendant public officer shall not be liable to arrest;
(ii) the property of such public officer shall not be liable to attachment; and
(iii) such public officer shall be exempt from personal appearance
if the court is satisfied that his absence from duty would cause detriment to the
public service.
Conditions to be fulfilled:
Following conditions must be fulfilled in order to enjoy the exemptions under
Section 81:-
(i) Defendant must be a public officer.
(ii) Suit must have been filed against him.
(iii) Suit must relate to an act done by the public officer in his official capacity
and not personal.
(iv) Personal appearance to be exempt when absence from duty is detrimental to
public service.
EXECUTION OF DECREE [Section 82]:
Section 82 deals with execution of a decree against the Government or the
public officer. It enacts that no execution shall be issued on any decree passed
against the Government or a public officer unless it remains unsatisfied for three
months from the date of decree. It further provides that the provision shall apply
to an order or award if it is passed against the Government or a public officer
and is capable of being executed as a decree.
PROCEDURE FOR INSTITUTION OF SUIT BY OR AGAINST THE
GOVERNMENT AND PUBLIC OFFICERS [Order XXVII] :
Order XXVII of the Code provides for the procedure to be followed when a suit
is instituted by or against the Government and public officers.
SUITS BY OR AGAINST THE GOVERNMENT [Order XXVII, Rules 1,
2, 3, 4, 5, 5-B, 6 and 8-A]:
Rules 1, 2, 3, 4, 5, 5-B, 6 and 8-A of Order XXVII deal with the suits by or
against the Government.
Signing the plaint or written statement [Order XXVII, Rule 1]:
The government becomes the plaintiff in a suit, with the plaint signed by an
appointed person and verified by someone familiar with the case's facts. The
government becomes the defendant in a suit filed by an individual, with the
written statement signed by the appointed person and verified by someone
familiar with the case's facts.
Persons authorized to act for Government [Order XXVII, Rules 2 and 41:
The persons authorized to act for the Government in respect of any judicial
proceeding shall be deemed to be the recognized agents. Such recognized agents
shall be competent to make applications and appearances and to act on behalf of
the Government. The Government Pleader in any court shall be the agent of the
Government for the purpose of receiving processes against the Government
issued by such Court.
Name in cause title if Government is a party [Order XXVII, Rule 3]:
Ordinarily, the name, description and place of residence of the plaintiff and
defendant are given in the cause-title of the plaint. But, where the plaintiff or
defendant is Central Government, it shall be named as "The Union of India and
where it is the State Government, it shall be named as "The State".
Fixing of day for appearance on behalf of Government [Order XXVII, Rule
5]:
The court shall fix the day for the Government to answer to the plaint. The court
shall so fix the day as to allow a reasonable time for necessary communication
with Government and instructions to the Government Pleader to appear and
answer on behalf of the Government. The court may extend the time at its
discretion but the time so extended shall not exceed two months in the
aggregate.
Court to assist in settlement in suits against the Government [Order
XXVII, Rule 5-B]:
In every suit to which the Government is a party, the court in the first instance
shall make every effort to assist the parties in arriving at a settlement. Even at a
subsequent stage, if any possibility of a settlement is found, the court may
adjourn the proceeding to enable the parties to attempt for such a settlement.
Attendance of person able to answer questions [Order XXVII, Rule 6]:
If the Government Pleader is not accompanied by a person able to answer any
material questions relating to the suit against the Government, the court may
direct the attendance of such a person.
No security to be required from Government [Order XXVII, Rule 8-A]:
The security mentioned in, Rules 5 and 6 of Order XL shall not be required
from the Government.
SUITS BY OR AGAINST THE PUBLIC OFFICER [Order XXVII, Rules
5-A, 5-B, 7, 8 and 8-A]:
Rules 5-A, 5-B, 7, 8 and 8-A of Order XXVII deal with the suits by or against
the public officer for an act done or purporting to be done by him in his official
capacity.
Government to be joined as party in a suit against a public officer [Order
XXVII, Rule 5-A]:
When a suit is filed against a public officer in respect of an act done or
purporting to be done by him in his official capacity, the Government shall be
joined as a party in a suit.
Court to assist in settlement in suits against the public officer [Order
XXVII, Rule 5-B]:
In a suit to which a public officer acting in his official capacity is a party, the
court shall make every effort to assist the parties in arriving at a settlement. If at
any stage, it appears to the court that there is a possibility of a settlement; the
proceeding may be adjourned to enable the parties to attempt for such a
settlement.
Extension of time to make reference to the Government [Order XXVII,
Rule 71:
If a public officer is the defendant and before answering the plaint, he desires to
make a reference to the Government, he may apply to the court for extension of
the time fixed in the summons. Upon such application the court shall extend the
time for so long as appears to be necessary.
Procedure in suits against public officer [Order XXVII, Rule 8] :
The Government Pleader is authorized to defend a suit against a public officer,
and must apply to the court to answer the plaint. If no application is made, the
case proceeds as a private party suit, with the defendant not liable for arrest or
property attachment. The court will enter his authority.
No security to be required from public officer [Order XXVII, Rule 8-A]:
If the Government has undertaken to defend the suit against a public officer in
respect of an act alleged to be done by him in his official capacity, the security
under, Rules 5 and 6 of Order XL shall not be required from him.