Code of Civil Procedure, 1908 (CPC)
Suits by or Against the Government: Sections 79 to 82 and Order XXVII CPC
Suing the State is like suing anyone else in substance, but not in procedure. Sections 79 to 82 of the Code of Civil Procedure, 1908, with Order XXVII, prescribe who is to be named as the party, require two months' notice under Section 80 before the suit is instituted, allow that requirement to be bypassed for urgent relief with the court's leave, and delay execution against the Government for a fixed period. These notes cover the whole scheme, the object and contents of the notice, the consequences of a defective notice, and the procedure that applies once the suit is on.
The Section 80 notice: contents, service, the urgent-relief escape and the cure for defects
1. Who Is the Proper Party: Section 79
§ Section 79, CPC 1908 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. |
The section settles a question of nomenclature that has real consequences. A suit against a department, a ministry or an officer by name, where the claim is in substance against the Government, is defective in its array of parties, though the defect is ordinarily curable by amendment under Order I Rule 10. Section 79 is complemented by Order XXVII Rule 1, under which any such suit may be signed by a person appointed by the Government, and by Rule 2, under which persons authorised to act for the Government are deemed to be recognised agents within Order III.
2. Section 80: The Notice
§ Section 80(1), CPC 1908 (in substance) Save as otherwise provided in sub-section (2), no suit 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 delivered to, or left at the office of — (a) in the case of a suit against the Central Government, 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 a railway, the General Manager of that railway; (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 authorised by that Government in this behalf; (c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district; and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left. |
The object of the notice
The purpose is not obstruction but reconsideration. The State acts through officers who may not know of a grievance until it is formulated, and the notice gives the Government two months to examine the claim, take legal advice, and settle it if it is well founded, so that public money is not spent defending an indefensible position. That object explains the interpretation the section has received: the requirement is mandatory, because the legislature has said so in terms, but the courts read it so as to serve the purpose rather than to trap the litigant, which is what sub-section (3) puts beyond doubt.
📖 Bihari Chowdhary v. State of Bihar, (1984) 2 SCC 627 A suit against the State was instituted without the notice required by Section 80, and the question was whether the requirement could be dispensed with. The Supreme Court held that the section is mandatory and admits of no implied exceptions: its object is to give the Government or the public officer an opportunity to reconsider the legal position and to make amends or settle the claim, if so advised, without litigation, and thereby to avoid unnecessary expense and the waste of public time. A suit instituted without the statutory notice, where no leave has been obtained, is not maintainable. Rule: the requirement of notice is mandatory. Its object is to give the State a chance to settle, and the courts will not read exceptions into the section that the legislature has not made. |
3. Urgent Relief: Section 80(2)
§ Section 80(2), CPC 1908 A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after 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: Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1). |
§ How sub-section (2) works Three steps, and a sanction: • Leave to institute. The plaintiff applies for leave, showing that the relief sought is urgent or immediate. Leave permits the suit to be filed without the two months' notice. • No relief without a hearing. Even with leave, the court shall not grant relief, whether interim or otherwise, except after giving the Government or the officer a reasonable opportunity of showing cause. The notice is dispensed with; the hearing is not. • Return of the plaint. By the proviso, where the court is satisfied after hearing the parties that no urgent or immediate relief need be granted, it shall return the plaint for presentation after compliance with sub-section (1). The plaintiff who overstates the urgency therefore loses time rather than gaining it. |
4. Defective Notice and Waiver: Section 80(3)
§ Section 80(3), CPC 1908 No suit 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 shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice — (a) the name, description and residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and (b) the cause of action and the relief claimed by the plaintiff had been substantially indicated. |
Sub-section (3), inserted by the Amendment Act of 1976, resolved a long line of cases in which suits had been thrown out for trivial discrepancies between the notice and the plaint. The position now is a two-level one, and stating both levels is what a complete answer requires. Giving notice at all is mandatory, and a suit instituted without it, and without leave under sub-section (2), is not maintainable. But defects in a notice that was given do not defeat the suit, provided the plaintiff is identifiable and the cause of action and relief are substantially indicated. The test of substantial indication is functional: could the Government, reading the notice, have understood the claim well enough to consider settling it?
§ Waiver The requirement of notice is enacted for the benefit of the Government or the public officer, and the position taken in practice is that the beneficiary may waive it, expressly or by conduct, as where the Government contests the suit on the merits without raising the objection. Two cautions. Waiver must be clear, and a mere failure to raise the point at the first hearing is not necessarily a waiver where the objection is pressed later and no prejudice has resulted. And waiver operates only where a notice was defective or absent in form; it cannot supply the leave that sub-section (2) requires where none was obtained. The safest statement is therefore: notice is mandatory; defects are cured by sub-section (3); and the benefit, being personal to the State, may be waived by it. |
5. Suits Against a Public Officer, and Related Sections
Provision | What it provides |
|---|---|
Section 80(1) | The notice requirement extends to a suit against a public officer in respect of an act purporting to be done by him in his official capacity; a suit against him for a purely personal act needs no notice |
Section 81 | In a suit against a public officer in respect of an official act, the defendant shall not be liable to arrest, nor his property to attachment otherwise than in execution of a decree, and where the court is satisfied that he cannot absent himself from his duty without detriment to the public service, it shall exempt him from personal appearance |
Section 82(1) | Where the decree is against the Union of India, a State or a public officer in respect of an official act, a time shall be specified in the decree within which it shall be satisfied |
Section 82(2) | Execution shall not be issued on any such decree unless it remains unsatisfied for the period specified, and if no period is specified, for a period of three months from the date of the decree |
Order XXVII Rule 1 | A suit by or against the Government may be signed by such person as the Government may appoint, generally or specially, in that behalf |
Order XXVII Rule 4 | The Government pleader shall be the agent of the Government for the purpose of receiving processes against the Government |
Order XXVII Rule 5 | The court shall, in fixing the day for the Government to answer the plaint, allow a reasonable time for the necessary communication with the Government and for the issue of instructions to the Government pleader, and may extend it |
Order XXVII Rule 5B | In a suit by or against the Government, the court shall, in the first instance, in every case where it is possible to do so consistently with the nature and circumstances of the case, make an endeavour to assist the parties in arriving at a settlement |
Order XXVII Rule 8A | No security shall be required from the Government, or from a public officer sued in respect of an official act, where the party would otherwise be required to furnish security |
§ Section 82: why execution waits A decree against the Union, a State, or a public officer in respect of an official act is not executed at once. The decree specifies a time for satisfaction, and execution does not issue until that time has passed, or, where none is specified, until three months from the date of the decree. The reason is administrative rather than protective: paying out public money requires sanction, budgeting and audit, and the Code allows for that process rather than assuming bad faith. The provision does not make the decree unenforceable; it postpones execution. Once the period expires and the decree remains unsatisfied, execution proceeds in the ordinary way under Order XXI. |
6. Landmark Points
- Section 79. The Union of India or the State is the proper party in a suit by or against the Government.
- Section 80(1). Two months' notice in writing, stating the cause of action, the plaintiff's name, description and residence, and the relief claimed, and the plaint must state that it was given.
- Bihari Chowdhary v. State of Bihar, (1984) 2 SCC 627. The requirement is mandatory; its object is to give the State an opportunity to reconsider and settle the claim.
- Section 80(2). A suit for urgent or immediate relief may be instituted with leave and without notice, but no relief may be granted without a reasonable opportunity to the Government to show cause, and the plaint is returned if no urgent relief is needed.
- Section 80(3). No suit shall be dismissed merely for an error or defect in the notice, where the plaintiff is identifiable and the cause of action and relief are substantially indicated.
- Sections 81 and 82. Protection of a public officer from arrest and from compelled personal appearance, and a period before execution issues against the Government.
7. Frequently Asked Questions
Who is the proper party in a suit against the Government?
The Union of India in a suit by or against the Central Government, and the State in a suit by or against a State Government, under Section 79. A suit naming a department or ministry is defective in its array of parties, though the defect is ordinarily curable by amendment.
What must a Section 80 notice contain?
The cause of action, the name, description and place of residence of the plaintiff, and the relief claimed. It must be delivered to or left at the office of the authority the section specifies, and the plaint must state that such a notice was so delivered or left.
Is the Section 80 notice mandatory?
Yes. Bihari Chowdhary v. State of Bihar holds the requirement mandatory, its object being to give the Government or the public officer an opportunity to reconsider the legal position and settle the claim without litigation. A suit instituted without notice, and without leave under sub-section (2), is not maintainable.
Can a suit be filed without notice for urgent relief?
Yes, with the leave of the court under Section 80(2). But the court shall grant no relief, interim or otherwise, except after giving the Government or the officer a reasonable opportunity of showing cause, and by the proviso, if it is satisfied that no urgent relief need be granted, it shall return the plaint for presentation after compliance with sub-section (1).
Is a suit dismissed for a defective notice?
No. Section 80(3) provides that no suit shall be dismissed merely by reason of any error or defect in the notice, if the plaintiff's name, description and residence enabled his identification and the notice was delivered to the proper office, and the cause of action and relief were substantially indicated.
Can the Government waive the notice requirement?
The requirement is enacted for the benefit of the Government or the public officer, and the benefit may be waived, expressly or by conduct, as where the Government contests the suit on the merits without raising the objection. Waiver must be clear, and it cannot supply leave under sub-section (2) where none was obtained.
When can a decree against the Government be executed?
Not at once. Section 82 requires the decree to specify a time for satisfaction, and execution shall not issue until the decree has remained unsatisfied for that period, or, where no period is specified, for three months from the date of the decree.
Is a public officer liable to arrest in such a suit?
No, in respect of an official act. Section 81 provides that in such a suit the defendant shall not be liable to arrest, nor his property to attachment otherwise than in execution of a decree, and the court shall exempt him from personal appearance where it is satisfied he cannot absent himself from duty without detriment to the public service.
8. Related Topics in This CPC Series
- Suits Involving Aliens, Foreign States and Rulers: Sections 83 to 87B
- Institution of a Civil Suit: Section 26 and the Cause of Action
- Order VII: The Plaint, Return and Rejection
- Order XXV: Security for Costs