Section 79 to 82 and Order 27 of the Civil Procedure Code, 1908 lay down
procedure where suits are brought by or against the Government or Public
officers. The provisions provides for the procedure only not about rights and
liabilities. Substantive right has to be find accordance with the provisions of
the Constitution. These provisions gives no cause of action but only declares
the mode of procedure when a cause of action has arisen.
Under Civil Procedure
Code, 1908 Section deal with provisions of a substantive nature and lays down
general principles and Orders deals with procedure, manner and mode in which
general principle can be exercised. Similarly Section 79 to 82 provides for the
general principles and Order 27 prescribe the procedure in which general rules
provided under Section 79 to 82 can be exercised.
Name of party in Suit section 79Section 79 of the Code provides that in a suit by or against the Government the
authority to be named as Plaintiff & Defendant in case of:
- Central govt. Union of India &
- State Government the State.
In Chief Conservator of Forests, Government of A.P. v. Collector
Court has observed that the requirement of provision contained in Section 79 CPC
is not merely a procedural formality, but is essentially a matter of substance
and of considerable significance whereby the special provision as to how the
Central Government or the State Government may sue or be sued has been
indicated, 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
- In the case of a suit by or against a State Government, the State.
Notice under Section 80 of Civil Procedure Code, 1908:
In suits between individuals and individuals, notice need not be given to the
defendant by the plaintiff before filing a suit but under Section 80 it is
provided that notice has to be given in a suit against Government or public
officer in respect of any act purporting to be done by such public officer in
his official capacity.
Section 80 of the Code 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 office in his official capacity until
the expiration of two month next after notice in writing has been delivered to,
or left at the office of:
- In case of the suit against the Central Govt., except where it relates to a
railway, a Secretary to that Govt;
- In the case of a suit against the Central Govt. where it relates to a
railway, the General manager to that railway;
- In the case of a suit against the Govt. of the State of Jammu and Kashmir,
the Chief Secretary to that Govt. or any other officer authorized by that Govt.
in that behalf;
- In the case of a suit against any other state Govt.. a Secretary to that
Govt. or the Collector of the district; and
- In the case of a public officer, such public officer.Further it provides
that with the permission of the Court, a suit can be instituted without
serving the notice where an urgent or immediate relief is needed. Provided
that Court shall return the Plaint if found that there is no need of
immediate or urgent relief.
The Section enumerates two types of case:
- Suit against Government; and
- Suit against public officers in respect of acts done or purporting to be
done by such public officers in their official capacity.
The three essential requirements of S. 80 are:
- First, the addressee should be identified and must have received the
- Secondly, there should be no vagueness or indefiniteness
about the person giving the notice, who must also be the person filing the suit
and the notice must also give the details which are specified in S. 80; and,
- Thirdly, the two months' time allowed must expire before the
suit is laid. Once these requirements are fulfilled minor details like the misdescription of the person to whom the communication is addressed should not
make it an improper notice which does not comply with the requirements of S. 80,
Object of Notice:Underlying object of section 80 is to provide:
- An opportunity to the Government or public officer to
consider the legal position and to settle the claim forwarded by the prospective
plaintiff if it appears to be just and proper.
- It is expected from the government unlike private parties to consider
the matter objectively and make an appropriate decision in two months after
obtaining proper legal advice. It saves public money and time and is in
- The legislative intent behind this provision is that public money not be
wasted for unnecessary litigation. The section guides the Government or a
public officer to negotiate just claims and to settle them if well‐founded
without adopting an unreasonable attitude by inflicting wasteful expenditure
on public exchequer.
Institution of Suit without Notice against govt. or Public officer:
Section 80(2) is in the nature of an exception to Section 80(1) and enables the
plaintiff to file a suit to obtain an urgent and immediate relief without
serving any notice subject to the condition that such a suit has to be filed
with leave of the Court. The most important condition envisaged under Section
80(2) is relating to urgency in the matter.
Where the Court is satisfied that
urgent on immediate relief is required and the plaintiff would not be in a
position to wail for the period of notice to expire, leave may be granted to a
plaintiff to file suit against the State without service of notice contemplated
under Section 80(1). Even in such cases where leave is granted.
Himachal Steel Rerollers and Fabrication v. Union of India
, AIR 1988 All 191. A
plaintiff intending to institute a suit against the Govt. has two options before
him, either he may file a suit after serving two months' notice under Section 80 C.P.C. or he may file the suit without serving the notice but in that event he
must satisfy the court that an urgent and immediate relief is required and also
obtain previous leave of the court.
Technical defect or error in notice: Section 80(3):
Section 80(3) provides that no suit instituted against the Govt. or Public
officer shall be dismissed merely on ground of error or defect in the notice,
if, in such, the name, description and residence of the plaintiff had been so
given as to enable the authority or public officer to identify the person
serving the notice and such notice had been delivered or left at the office of
the authority or public officer and the cause of action and the relief claimed
by the plaintiff had been substantially indicated therein.
State of A.P v. Gundugola Venkata
, AIR 1965 SC 11 notice under section 80
cannot be held to be invalid and no suit can be dismissed on the grounds that
there has been a certain technical defect or error in the notice delivered or on
the ground that such notice was served in an improper way.