Section 79: Suits by or against Government

Code of Civil Procedure Section 78. Commissions issued by foreign Courts.

Bare Act:

PART IV

SUITS IN PARTICULAR CASES

SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY

¹[79. Suits by or against Government.—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, ²[the Union of India], and

(b) in the case of a suit by or against a State Government, the State.]

Note: 1. Subs by the A.O. 1948, for s. 79.

2. Subs. by the A.O. 1950, for “the Dominion of India”.

Part in Red is original provisions from CPC reproduced here for reference. 

Code of Civil Procedure Section 80. Notice.

State is a necessary party

Section 79 provides for how the Suit can be filed by or against the Union and State Government. According to this the State is a necessary party in all the matters related to the Government. The Union carries administration through different servants. These servants all represent the Union in regard to activities whether in the matter of appointment or in the matter of removal. It cannot be denied that any order which will be passed on an application under Article 226 which will have the effect of setting aside the removal will fasten liability on the Union of India, and not on any servant of the Union.

According to Section 79 of the Code, 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. This section is in accordance with Article 300 of the Constitution, according to which the Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State.

If relief is sought against the State, suit lies only against the State, but, it may be filed against the Government if the Government acts under colour of the legal title and not as a Sovereign Authority. To institute a suit for seeking relief against the State, the State has to be impleaded as a party. 

More reading:

Judgments on "State is a necessary party"

Code of Civil Procedure

Section 79. Suits by or against Government.

Section 80. Notice. 

O1 R9 Misjoinder and nonjoinder

O1 R10 Suit in name of wrong plaintiff.

O27 R1. Suits by or against Government.

Judgments on "State is a necessary party"

Chief Conservator of Forests, Government of A.P. V. Collector & Ors

Government

Union of India