Suits by or against Government (Section 79 – 82 CPC)
In a suit, the Central Government may sue or be sued as the Union of India and a State Government as the State.
Section 80 provides that where a suit is to be instituted against the Government or any public official for any act purported to be done in his official capacity, the person filing the suit must give a notice of at least 2 months before filing the suit. The difference in the case of a public official is that the suit must be instituted for acts purported to be done by him in his official capacity. It means a series of acts and is applicable even in cases of misfeasance or non-feasance. The act must be such as is done or would have been done in the normal course of his official duties. The notice must either be served on the person concerned or left at their office.
The person entitled to receive the notice in such cases is –
Where a suit is instituted against the Central Government but not the Railway department, a Secretary to the Government;
Where a suit is instituted against the Central Government and it relates to the Railway, the General Manager of Railways;
Where a suit is instituted against the Government of Jammu and Kashmir, the Chief Secretary to the Government;
Where a suit is instituted against any other State Government, a Secretary to such Government or the Collector;
Where a suit is instituted against any public official, such public official.
The notice must state the cause of action, the name, description, and place of residence of the plaintiff and the relief sought by him. It must be stated in the plaint that such a notice has been sent.
Provisions under 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.
Rule 4 states that the government pleader shall be the agent of the government for receiving all court processes.
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 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.
Rule 5B states that 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.
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. No security is required to be furnished by the government or the public official.
Suits by or Against the Government and Public Officers in Their Official Capacity
1. Date—Order XXVII, Rule 5, of the Code of Civil Procedure prescribed that in fixing the date for the hearing of a suit against the Government, the Court shall allow a reasonable time for the necessary communication with the department concerned through the proper channel. The period required will depend upon circumstances, and no invariable rule can be laid down on the point, but in most cases a period of two months will probably be suitable.
2. (i) Extension of time—In fixing the period in any case, the representations of the officer who receives the summons or who is conducting the case on behalf of the Government should meet with due consideration, as the Code of Civil Procedure clearly contemplates that reference to Government, through the proper departmental channel, involving a certain delay shall be allowed for, and an extension of time should be given on reasonable cause being shown but on the other hand, the Civil Courts should be cautious to prevent undue delays, in these as in all other classes of suits.
(ii) Priority—Cases in which Government Departments are concerned and in which officials have to attend, should be disposed of promptly, care being taken to give due notice, where it is necessary for any reason to adjourn the case.
3. Two months institution of notice before institution of suit—It should further be remembered that Section 80 of the Code of Civil Procedure provides that no suit shall be instituted against the Government or a Public Officer in respect of an official act, unless two month’s notice has been given of the intention to bring such suit, and that the plaint must contain a statement that such notice has been duly given. Plaints of the nature indicated above which do not contain the required statement, should not be accepted, but should be returned for amendment or be rejected according as it may appear from the statement of the person presenting the plaint that notice has or has not been given.
4. Trials of case and persons to whom notice is to be given—The changes effected in Section 79 of the Civil Procedure Code by the Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948, and Adaptation of Laws Order, 1950 as to the authority to be named as plaintiff or defendant in suit by or against the Government and in Section 80 of the Code by the Code of Civil Procedure (Amendment) Act, 1948 (No. VI of 1948) as to the person to whom notice is to be given in suits intended to be instituted against the Government or against a Public Officer should be borne in mind.
Now, in a suit by or against the Central Government the Union of India, should be named as the plaintiff or defendant, and in a suit by or against a State Government, the State should be named as plaintiff or defendant. A notice in writing under Section 80 C.P.C. has to be delivered to or life at the office of Secretary to the Government when the suit is against the Central Government but where it relates to a railway the notice has to be delivered or left at the office of the General Manager of that Railway. In the case of a suit against a State Government the notice has to be delivered to or left at the office of a Secretary to the Government or the Collector of the district.
5. Definition of Government and Government Pleader—The provision of Rule 8-B of Order XXVII, of the Code of Civil Procedure, which defines the terms, „Government? and “Government Pleader” for the purposes of that orders, may be carefully studied.
6. Hearing of suits etc. against the Government—To avoid delays in the disposal of suits and proceeding against the Government and to prevent inconvenience to the law Officers of the Government the following directions should be observed:—
(1) No suit against the Government or public officer as such should be heard by a Court away from the headquarters of the District.
(2) Priority—Suits and proceedings in which Government is a party should be given priority of hearing; and such cases should, when possible, be heard continuously until completion; and
(3) Timely notice of adjournment—If a date is fixed in a suit affecting the Government, and the Court is not prepared to hear the case on that date, timely notice if necessary by telegram, should be given to the Law Officer concerned by the Court.
7. Where in a suit by or against the Government or a public officer in his official capacity, a decree is passed against the Union of India or a State or, as the case may be, the public officer (the execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the date of such decrees). (For the execution of such decrees see rule 7 of Chapter 12-C).
8. The following notifications issued by the various Government under the Code of Civil Procedure are published for information:—
I. Punjab Government Notification No. 1-C, dated the 1st January, 1909
1. Government Pleader—With reference to the definition of the expression “Government Pleader” contained in Section 2(7) of the Code of Civil Procedure (V of 1908), the Lieutenant Governor is pleased to appoint the Legal Remembrancer to the Punjab Government, the Government Advocate, Punjab, and the Assistant Legal Remembrancer, Punjab, respectively, to perform all or any of the functions expressly imposed by the said Code on the Government pleader except the functions specified in Order XXXIII, Rule 6, and in Order XXVII, Rule 4
2. The Deputy Commissioner for the time being of every district in the Punjab is appointed to be the Government Pleader for his district for the purposes of Order XXXIII, Rule 6, and of Order XXVII, Rule 4, of the Code of Civil Procedure.
3. Nothing in this notification shall be deemed to affect the provision No. I-H, dated the 1st January, 1909 (now superseded by Punjab Government Notification No. 1073-J-37/13015, dated the 1st April, 1937, given below), regarding the recognised agents of Government under Order XVII, Rule 2, of the Code of Civil Procedure.
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