CPC Sec. 79-82(1) Order 27

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SUITS BY OR AGAINST GOVERNMENT OR PUBLIC OFFICERS: SECTIONS 79-82; ORDER 27

How a suit can be instituted against the Government or public servant?

What is the prime objective behind the provision of notice as provided under section 80(1)? What is the form prescribed for such notice?

What would be the effect of technical defect in notice?

Is requirement of notice an empty formality? Whether an order passed under section 80 CPC is appealable or revisable?

Whether requirement of notice can be waived? Whether is it necessary to serve notice in case of writs also?

Whether suit can be filed in any case against the government even without serving notice?

Sections 79 to 82 and Order 27 of the Code lay down procedure where suits are brought by or against the Government or public officers. In this regard section 80 (1) provides 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 the authorities mentioned in the section itself.

THE PRIMARY OBJECT underlying Section 80 is to afford an opportunity to the Government or public officer to consider the legal position and to settle the claim of the plaintiff if the same appears to be just and proper. [State of Punjab v. Geeta Iron & Brass Works Ltd., (1978) 1 SCC 68: AIR 1978 SC 1608.] , In Bihari Chowdhary v. State of Bihar, [(1984) 2 SCC 627]. Such notice must contain name, description and place of residence of the person giving notice, a statement of the cause of action; andrelief claimed by him.

FORM OF NOTICE A notice under Section 80 need not be in a particular form as no form has been prescribed by the Code for the purpose. It is sufficient if the notice complies with the requirements of the section.

TECHNICAL DEFECT IN NOTICE: SECTION 80(3) ..

Further Sub-section (3) to Section 80 clarifies that no 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, name, description and place of residence of the person giving notice , a statement of the cause of action; and relief claimed by him are given properly.

Such notice can either be served personally or be sent by registered post.

Statutory notice is NOT AN EMPTY FORMALITY (In State of Punjab v. Geeta Iron & Brass Works Ltd ,AIR 1978 SC 1608 at p. 1609. ) and it is MANDATORY PROVISION.

Failure to serve a notice will entail dismissal of the suit. (Ghanshyam Dassv. Dominion of India, AIR 1984 SC 1004.].

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. [Bihari Chowdhary v. State of Bihar, (1984) 2 SCC 627 at p. 631: AIR 1984 SC 1043 at p. 1045.]

An order passed under Section 80 is neither a "decree" nor an appealable order and, hence, no appeal lies against such order.

An order under Section 80 of the Code is a "case decided" under Section 115 of the Code and is, therefore, revisable.

WAIVER OF NOTICE. A notice under Section 80 is for the benefit of the Government or public officer. It is, therefore, open to the Government or public officer to waive such benefit.

In computing the period of limitation for instituting a suit against the Government or public officer, the period of notice has to be excluded.

Writ petition ..A writ petition under Article 32 or 226 of the Constitution cannot be said to be a "suit" within the meaning of Section 80 of the Code. Hence, giving of prior notice to the Government or public officer is not necessary before filing a petition in the Supreme Court or in a High Court.

In urgent cases, according to section 80(2) the plaintiff may institute suit with the leave of the court even without serving notice to the Government or public officer.

Sub-section (2), however, enacts that in such a case, the court shall not grant relief, whether interim or otherwise, without giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit.

TITLE OF SUIT: 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:

in the case of a suit by or against the Central Government, the Union of India; and

in the case of a suit by or against the State Government, the State.

STATEMENT IN PLAINT

A plaint can be presented after the expiration of two months of notice, which must contain a statement that a statutory notice under Section 80 of the Code has been delivered or left as required by sub-section (1) of the said section.

An omission to make such a statement is FATAL and, in its absence, the plaint will be REJECTED by the court. [S. 79; see also, Or. 27 Rr. 3, 5-A.]

PARTIES….Where a suit is filed against a public officer in respect of any act purporting to be done by him in his official capacity, the Government should be joined as a party to the suit. [Or. 27 R. 1.]

PROCEDURE: ORDER 27

In a suit by or against the Government, the plaint or written statement shall be signed by any person appointed by the Government who is acquainted with the facts of the case.[R.2.]

Persons authorized to act for the Government shall be deemed to be recognized agents under the Code. [R.4.]

A Government Pleader can receive summons on behalf of the Government. [R.5.]

A counsel for the State need not file a vakalatnama. Reasonable time should be granted to the Government for filing a written statement.[Ss. 81,82; Or. 27;

In all suits against the Government or public officers, it is the duty of the court to assist in arriving at a settlement. [R. 5-B; see also S. 89, as inserted by the Amendment Act of 1999.]

Order 27-A provides that in a suit (or appeal) in which substantial question of law relating to interpretation of the Constitution is involved, the court must issue notice to the ATTORNEY GENERAL OF INDIA if the question of law concerns the Central Government and to the Advocate General of the State if the question concerns the State Government.

OTHER PRIVILEGES

Rule 5-A provides that when a suit is filed against a public officer in respect of any act alleged to have been done by him in his official capacity, the government should be joined as a party to the suit. Rule 5-B casts a duty on the Court in suits against the Government or public officers to assist in arriving at a settlement.

Rule 7 provides for extension of time to enable a public officer to make a reference to the Government where he is the defendant.

Rule 8-A provides that no security shall be required from the Government or from any public officer sued in respect of an act alleged to have been done by him in his official capacity.

Section 81 provides that in a suit filed against a public officer in respect of any act purporting to be done by him in his official capacity, the court shall exempt him from appearing in person if it is satisfied that he cannot absent himself from his duty without detriment to the public service. He shall not be liable to arrest, nor his property shall be liable to be attached otherwise than in execution of a decree.

Section 82 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 the decree. [S. 82.]

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