By Astha Deep
Published On: November 29, 2021 at 14:00 IST
To deal with Section 79 to Section 80 of Code of Civil Procedure, we first need to make sure that the suit is filed by or against an authorized government official who has committed the act or omission in an official capacity. Only then, Order 27 of Code of Civil Procedure, will apply to him.
Section 79 to 82 of the Code of Civil Procedure, 1908 are a set of substantive rights and liabilities that define the procedures that need to be followed under Order XXVII during the investigation of suits that are put by or against government or public officials.
Section 79 is a procedural law that defies the procedures to follow when a suit is instituted for or against the government servant. The public servant in official capacity represents the Government on the whole so the suit should make the Union of India a party in it and not any individual, otherwise the suit shall be rejected.
Whereas, Section 80, is not a procedural law, it is a substantive law. It has three sections in it on how and when a show cause notice should be served if the Union of India is the defendant.
Section 81 has two subsections in it which talks about exemption from arrest or personal appearance. Section 82 further is a procedural law that defines the process of conduction of the decree execution. It has three sub sections.
Article 300 of the Constitution of India deals with legal proceedings where the government or Union of India is made a party as the plaintiff or the defendant. Section 79 of Code of Civil Procedure, reiterates the same. According to the Section 79 of Code of Civil Procedure.
“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.”
In Gopesh Chandra Das Vs The Chief of Secretary[i], the plaintiff filed a recovery suit for Rs. 25715/- on account of the damage done to his vehicle while it was under requisition with the officers of the Government of Assam for election duty. The first defendant named was The Secretary of State Of Assam. Other defendant was the Divisional Officer of Barpeta under whom the vehicle was requisitioned and the Chief Election Commissioner of Assam.
It was claimed by the Defendants that the Government of the State should have been made party in this as they were representatives of the government. In the judgment, it was mentioned that they acted in official capacity so were bound to pay the said amout and that the Government of Assam should be a party in it.
“Save as otherwise provided in sub-section (2), no suits 8 [shall be instituted] against the Government (including the Government of the State of Jammu and Kashmir)] 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 9 [delivered to, or left at the office of— (a) in the case of a suit against the Central Government, 10[except where it relates to a railway] a Secretary to that Government; (b) in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway; 2 [(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorized by that Government in this behalf;] (c) in the case of a suit against 3 [any other State Government], a Secretary to that Government or the Collector of the district.”
Any act or omission done by the public officer in his official capacity which is illegal or beyond his mandated jurisdiction will be sued following the procedure stated in Section 80 of the Code of Civil Procedure. It clearly states that a prior show cause notice of 2 months should be served to the office before filing the suit.
The illegal act includes both past and present acts and omission in official capacity.
The content of the show cause notice is also explicitely stated in the Section 80 of the Code of Civil Procedure,.The notice should contain the cause of action, the name, description and plaace of residence of the plaintiff and the relief sought by him.
In the case of Ranjeet Mall Vs General Manager[ii], Northern Railway, New Delhi a writ petition was filed against the General Manager pleading the termination of his service without making the Union of Inida a party in it or impleading the Union of India.
The writ petition was dismissed by the learned judge since the union of India was not made a party.The dimissl of the application was on valid grounds as the Genral Manger of the Railways is a representative of the Government of India.
Section 80 of the Code of Civil Procedure, mandatorily states that a show cause notice should be served to the office without any exception. Where there may be an emergency case of relief being sought, the suit can be filed without the show cause notice. But, the stand of the Government or the public servant should be heard before any relief being served is granted to the plaintiff.
The main intent and object behind Section 80 is that government’s money and time shall not be wasted and the claims of the plaintiff appear to be fair and proper should be settled reasonably by mediation and negotiation.
In State of Maharashtra Vs Chander Kant[iii], it was reiterated that a notice must be given to the jurist person who is authorized to collect the notice.
Another case, State of Rajasthan Vs Rikhabchand Dhariwal[iv], it was rightly stated the same.
Section 80 stated that a notice to the Secretary of the particular state or the Collector of the district, since they are the jurist people.
Section 81 of Code of Civil Procedure states that:
“In a suit instituted against a public officer inresect of any act purpoting 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. (b) Where the court is satisfied that the defendant cannot absent himself from his duty without detriment to public service, it shall exempt him from appearing in person.”
In the case of Biswapati Purkayastha Vs Inspector General of police[v] , the case has a background in Shillong where the husband of the petitioner served. The applicability of Section 81 cmes into play when Biswapati Purkayastha being a member of a battalion Unit. He wrote multiple letters, on close investigation of the letters it was brought to conclusion that the petitioner’s husband wasn’t present for screening test for the purpose of absorption. And thus he should contact and approach the Government of Assam. The dated dated 4th May 1972 was in response to the notice issued by the petitioner under Section 81 of Code of Civil Procedure,. Here, it is to be noted that on Exemption from presence on the order, Section 81 of Code of Civil Procedure, has been stated.
“Execution of decree.—
(1) Where, in a suit by or against the Government or by or against a public officer in respect of any act purporting to be done by him 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, such decree shall not be executed except in accordance with the provisions of sub-section (2). (2) Execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the date of 1 [such decree]. (3) The provisions of sub-sections (1) and (2) shall apply in relation to an order or award as they apply concerning a decree, if the order or award— (a) is passed or made against 3 [the Union of India] or a State or a public officer in respect of any such act as aforesaid, whether by a Court or by any other authority; (b) is capable of being executed under the provisions of this Code or any other law for the time being in force as if it were a decree.”
In Union of India Vs Kisan Khandelwal[vi], it is clearly upheld that a a decree should be executed only if it is brought to an executable stage, Section 82 of Code of Civil Procedure. The period of limitation can start only after the executable stage is reached. The appeal was dismissed until the compliance of section 82 of Code of Civil Procedure.
The Code of Civil Procedure, 1908 has apt procedures for a circumstance where suit is filed by or against a Government official. And , it is meticulously formulated under Section 79, 80,81 and 82 of Order XXVII. The Article has defined the method of suit by or against a govt. and public officer acting in purporting to his official duty. Article has explained the provisions intimately about the litigation against and by govt. and public officer acting in purporting to his official duty.
After examining there provision as mentioned we’ve understand that for any suit against a govt. first of all it’s necessary that party should be name consistent with section 79 of Code of Civil Procedure, 1908. Further to institutive a suit against govt. or public officer acting in purporting to his official duty it’s mandatory to offer prior notice of two month. the sole exception to the present rule is provided by addition of Section 80(2) after the amendment of 1976. The amendment helps hand in order that justice can be done as early as possible.
After concluding the above topics, this text attempts to elucidate about the varied aspects of those sorts of suits. It speaks about whether rights granted under this will be waived, the forms during which notices are often served and also the modes in which these need to be served. Moreover Article has provided us about procedure given under Rule 27 and other privileges given to parties i.e. under Section 81 & 82 of the Code.
ABOUT THE AUTHOR
The author, Astha Deep , is a 1 st year BBA-LLB student at Chanakya National Law University, Patna. Having keen interest in dealing with complexities of legal field has been her keen source of motivation. This has helped her express her cognitive opinions through writing blogs and research papers. She possesses deep curiosity in Corporate laws and aims to contribute in that field. She is an experience collector and learner for life exploring various fields of both law and life.
Edited by: Aashima Kakkar, Associate Editor, Law Insider
[i] Gopesh Chandra Das Vs The Chief of Secretary, 1989,GLR 377
[ii] Ranjeet Mall Vs General Manager AIR 1977 SC 1701
[iii] State of Maharashtra Vs Chander Kant ,1977 AIR 148
[iv] State of Rajasthan Vs Rikhabchand Dhariwal, AIR 1961 Raj 64
[v] Biswapati Purkayastha Vs Inspector General of police, LQ/GauHC/2006/138
[vi] Union of India Vs Kisan Khandelwal, AIR 1970 Ori 137