Under the purview of the Civil Procedure Code 1908, the topic of cases filed by or against public officers has been identified and laid out under Section 79, Section 80 and Order XXVII of the Code.
Firstly, it ought to be noted that Section 79 of the Civil Procedure Code deals with a procedure-based aspect and thus, it doesn’t address rights and liabilities that can be enforced by or against the government. However, it states the manner in which the procedure is to be followed when the cause of action arises.
Whereas, Section 80 of the Civil Procedure Code is a substantive section of rules and operations of which shall be delved into further.
Lastly, Order XXVII of the Civil Procedure Code, within its ambit, caters for numerous rules and concepts such as recognized agents, attorney general and the requisite procedural aspects to be followed when the case is being instituted by or against the government or public officers in their official capacity. This assignment seeks to examine the aforementioned provisions in an in-depth manner and sum up an overview of the same in a comprehensive manner.
Section 79 of the Civil Procedure Code, 1908
Section 79 of the Civil Procedure Code, 1908 provides that whenever the government files a case or if a case is filed against them, in the case of the central government, the Union of India will be one of the parties and in case of the state government, the state government will one of the parties.
Section 79 states the procedure regarding bringing suits by or against the government. However, it does not address the rights and liabilities which can be enforced by or against a government body. In Jehangir v. Secretary of State (1904) ILR 27 Bom 122, the Court observed that Section 79 gives no cause of action and merely establishes the manner of the procedure if the cause of action arises.
As per Section 79, solely the court within whose territorial limits the cause of action arises bears the jurisdiction to hear the suit which otherwise it cannot. In Dominion of India v. RCKC Nath & Co. AIR 1950 Cal 207, the Court ruled that words such as “dwell” or “reside” or “carry on business” in Section 18, Section 19, and Section 20 of the Code, cannot apply to the government.
- SUIT AGAINST RAILWAY
Any suit against railway administration is enforceable against the Union of India or State provided the administration falls under the same.
In Union of India v. RC Jall 1962 AIR 1281, 1962 SCR Supl. (3) 436, the Court held that when a suit for freight for carrying goods is necessary, then it can be instituted by the Union of India.
In the case of Secretary of State v. Rustom Khan, the Court observed that a suit against the East India Company regarding the act of state or sovereignty cannot arise and shall not be competent.
Section 80 of the Civil Procedure Code, 1908
Section 80, of the Civil Procedure Code, 1908 provides that there is no onus for filing a case against the government when no notice is issued. This caters to the inclusion of Jammu and Kashmir as well. Similarly, when filing a case against a public officer, it is necessary to issue a notice with regard to the same. Moreover, the notice ought to be served two months before the date of filing the case and it must be delivered to the secretary of the government when the suit is filed against the central government; or to the general manager of that railway when the suit is filed against the central government is related to the railways; or to the particular government’s secretary/district collector when the suit is filed against a state government.
- NATURE AND OBJECT
The objective behind Section 80 is that an opportunity ought to be bestowed on the State Secretary’s or the Public officer’s behalf to re-evaluate his legal stance for making amends or settling the claim if need be. This can be ensured without litigation or any recourse. When public authorities are issued a statutory notice, they are needed to consider it seriously, not mull over it and compel the citizen to reduce litigation.
- CONTENTS OF THE NOTICE
Section 80 mandates notice to include important details like name, description, plaintiff’s address, cause of action, and the relief sought by the plaintiff. Further, in Union of India v. Shankar Stores AIR 1974 Ori 85, it was held by the Court that the notice must convey adequate information to the recipients, enabling them to consider the claim and to identify the individual issuing the notice.
- EFFECT OF NON-COMPLIANCE
Not complying with Section 80 will lead to the plaint getting rejected under Rule 11 of Order VII. If the case is filed against a public official and the public officer is issued no notice, the plaint must not be rejected. The suit is proceeded with, without the public offender’s name.
- WAIVER OF NOTICE
A notice being merely a procedure for the public officer’s and the government’s benefit, the government and public officers are entitled to waive it. In Lalchand v. Union of India AIR 1960 Cal 270, it was held that if the defendant wishes to emphasize upon the notice is invalid, he must raise the particular issue on the point.
Order XXVII under the Civil Procedure Code, 1908
Any case filed by or against the government, ought to be attested by such an individual that the government generally or specifically, appoints for this purpose on their behalf.
In the case of State of Rajasthan v. Jaipur Hosiery Mills AIR 1997 Raj 10, the court held that the sanction to should be signed And issued before the case is filed, the non-compliance of which result in an incompetent individual signing it and a retrospective sanction which is issues cannot retain the defect.
Under Order XXVII of the Code, a government pleader is defined to be an agent who acts concerning receiving processes filed against the government. Moreover, he is the sole authority who notifies the court regarding him being the government’s representative for which an attested power of attorney/Vakalatnama is not mandatory.
In Lutfar Rahman v. State of West Bengal AIR 1954 Cal 455, the Court ruled that when some other individual wishes to become and act as an agent, it is required of the government agent to intimate the Court that the individual would under his guidance.
Clause (2) and (3) added in Section 80 of the Code by way of the amendment of 1976 has been a crucial step because it is an added benefit when handling any case. Insertion of Clause (2) and allowed for permitting the filing of the case with no notice which, however, ought to be accepted after providing a proper chance of putting forth cause with respect to the relief claimed. Whereas, clause (3) prohibits the dispelling of a suit in the case that the notice has been issued but bears certain technical problems.
It should likewise be taken into account that there have been numerous situations wherein Section 80 was widely abused and misused by the government and public authorities to discard any litigation based on the reasoning of technicality, and this feature of the provision must be paid more attention so that the negative characteristic which exists in it can be overcome. Moreover, Clause (3) was inserted in Section 80 to offer an improved clarification that a suit instituted against the government or a public official cannot be set aside simply because there is an error in the notice.
Therefore, all the provisions which throw light upon the numerous different procedures, regulations, and directives that are to be followed when a suit by or against the government or a public officer has been analyzed and laid out in detail. It can be said that whether these sections can be applied ought to be determined by the present law.
Furthermore, if the procedure prescribed by the rule under these sections is not followed, then the court has to continue with the reasoning that no government pleader appeared on the public officer’s behalf. Lastly, the rules enumerated down under Order XXVII are to be strictly adhered to while instituting a suit.
Additionally, the provisions about suits by or against the government and public officers also lay down the procedure to abide by when filing a writ as well as the steps to be followed when there is a permanent suit on appeal or if there is a revision.