Salem Advocate Bar Association, Tamil Nadu V. Union of India

Code of Civil Procedure

Section 80. Notice. 

Purpose of Giving Notice:

Purpose of giving notice has been explained by the Apex Court in Salem Advocate Bar Association, Tamil Nadu V. Union of India, AIR 2005 SC 3353 observing as under:- “Section 80 (1) of the Code requires prior notice of two months to be served on the Government as a condition for filing a suit except when there is urgency for interim order in which case the Court may not insist on the rigid rule of prior notice. The two month’s period has been provided for so that the Government shall examine the claim put up in the notice and has sufficient time to send a suitable reply. The underlying object is to curtail the litigation. The object also is to curtail the area of dispute and controversy. Similar provisions also exist in various other legislations as well. Wherever the statutory provision requires service of notice as a condition precedent for filing of suit and prescribed period therefore, it is not only necessary for the Governments or departments or other statutory bodies to send a reply to such a notice but it is further necessary to properly deal with all material points and issues raised in the notice. The Governments, government departments or statutory authorities are defendants in large number of suits pending in various courts in the country. Judicial notice can be taken of the fact that in large number of cases either the notice is not replied or in few cases where reply is sent, it is generally vague and evasive. The result is that the object underlying Section 80 of the Code and similar provisions gets defeated. It not only gives rise to avoidable litigation but also results in heavy expense and cost to the exchequer as well. Proper reply can result in reduction of litigation between State and the citizens. In case proper reply is sent either the claim in the notice may be admitted or area of controversy curtailed or the citizen may be satisfied on knowing the stand of the State. There is no accountability in the Government, Central or State or the statutory authorities in violating the spirit and object of Section 80.

These provisions cast an implied duty on all concerned Governments and States and statutory authorities to send appropriate reply to such notices. Having regard to the existing state of affairs, we direct all concerned Governments, Central or State or other authorities, whenever any statute requires service of notice as a condition precedent for filing of suit or other proceedings against it, to nominate, within a period of three months, an officer who shall be made responsible to ensure that replies to notices under Section 80 or similar provisions are sent within the period stipulated in a particular legislation. The replies shall be sent after due application of mind. Despite such nomination, if the Court finds that either the notice has not been replied or reply is evasive and vague and has been sent without proper application of mind, the Court shall ordinarily award heavy cost against the Government and direct it to take appropriate action against the concerned Officer including recovery of costs from him.”

Further, in computing the period of limitation, the period of notice would be mandatorily excluded provided notice is given within limitation period.

Code of Civil Procedure

Section 80. Notice. 

Reference: http://www.nja.nic.in/16%20CPC.pdf

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Judgments on "State is a necessary party"

Code of Civil Procedure

Section 79. Suits by or against Government.

O1 R10 Suit in name of wrong plaintiff.

Judgments on "State is a necessary party"

(a) In Ranjeet Mal V. General Manager, Northern Railway, New Delhi & Anr., AIR 1977 SC 1701, the Supreme Court considered a case where the writ petition had been filed challenging the order of termination from service against the General Manager of the Northern Railways without impleading the Union of India. The Court held as under: - “The Union of India represents the Railway Administration. 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. Therefore, from all points of view, the Union of India was rightly held by the High Court to be a necessary party. The petition was rightly rejected by the High Court.”

(b) In the case of The State of Kerala V. The General Manager, Southern Railway, Madras AIR 1976 SC 2538, the Supreme Court explained the purpose of requiring the impleadment of the State as a party, as follows: “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. It is not disputed that Southern Railway is owned by the Union of India. As such, a suit dealing with the alleged liability of that railway should have been brought against the Union of India.”

(c) A Constitution Bench of the Supreme Court in The State of Punjab V. The Okara Grain Buyers Syndicate Ltd., Okara & Anr. AIR 1964 SC 669 held that 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 e.g. in a case where the property comes to it under a decree of the Court.

(d) The Rajasthan High Court in Pusha Ram V. Modern Construction Co. (P) Ltd, AIR 1981 Raj 47, held that to institute a suit for seeking relief against the State, the State has to be impleaded as a party. But mis-description showing the State as Government of the State may not be fatal and the name of party may be permitted to be amended, if such an application is filed.

(e) In Kali Prasad Agarwala (Dead by L.Rs.) & Ors. V. M/s. Bharat Coking Coal Limited & Ors. AIR 1989 SC 1530, while considering an issue whether the suit lands had vested, free from encumbrance in the State consequent upon the issuance of Notification under Section 3 of the Bihar Land Reforms Act, the Supreme Court did not entertain the case observing as under :- “In our opinion, it is unnecessary to consider the first question and indeed it is not proper also to consider the question in the absence of the State which is a necessary party for adjudication of that dispute. The State of Bihar is not impleaded as a party to the suit and we, therefore, refrain from expressing any opinion on the first question.”

(f) In Sangamesh Printing Press V. Chief Executive Officer, Taluk Development Board (1999) 6 SCC 44, the State was not impleaded as a party before the Trial Court in a money recovery suit. The same was dismissed on the ground of non-impleadment of necessary party. During appeal, an application was made under O. 1 R. 10 praying for impleadment of the State, however the High Court decided the matter on merits without considering the same. The Supreme Court observed as under: “Keeping in view the facts and circumstances of the case, we are of the opinion that the High Court should have decided the appellant's application under Order 1 Rule 10 C.P.C. and, thereafter, proceeded to hear the appeal in question. Not having disposed of the application under Order 1 Rule 10 has caused serious prejudice to the appellant. We, therefore, set aside the judgment of the High Court and restore Regular First Appeal No 29 of 1987 to its file. The High Court should first deal with the application under Order 1 Rule 10 C.P.C. which is pending before it and then proceed to dispose of the appeal in accordance with law.”

Code of Civil Procedure

Section 79. Suits by or against Government.

O1 R10 Suit in name of wrong plaintiff.

Judgments on "State is a necessary party"

Reference: http://www.nja.nic.in/16%20CPC.pdf

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Suit in name of wrong plaintiff: O1 R10

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.

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

Judgments on "State is a necessary party"

Code of Civil Procedure

 

10. Suit in name of wrong plaintiff.—(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties.—The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joinded, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(4) Where defendant added, plaint to be amended.—Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant

(5) Subject to the provisions of the ¹Indian Limitation Act, 1877 (XV of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.

Note: 1. See now the Limitation Act, 1963 (36 of 1963), s. 21.

Code of Civil Procedure

Judgment:

(a) In Sangamesh Printing Press V. Chief Executive Officer, Taluk Development Board (1999) 6 SCC 44, the State was not impleaded as a party before the Trial Court in a money recovery suit. The same was dismissed on the ground of non-impleadment of necessary party. During appeal, an application was made under O. 1 R. 10 praying for impleadment of the State, however the High Court decided the matter on merits without considering the same. The Supreme Court observed as under: “Keeping in view the facts and circumstances of the case, we are of the opinion that the High Court should have decided the appellant's application under Order 1 Rule 10 C.P.C. and, thereafter, proceeded to hear the appeal in question. Not having disposed of the application under Order 1 Rule 10 has caused serious prejudice to the appellant. We, therefore, set aside the judgment of the High Court and restore Regular First Appeal No 29 of 1987 to its file. The High Court should first deal with the application under Order 1 Rule 10 C.P.C. which is pending before it and then proceed to dispose of the appeal in accordance with law.”

 

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.

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

Judgments on "State is a necessary party"

Please share and follow this blog for more such law related articles.

Reference: http://www.nja.nic.in/16%20CPC.pdf

Section 82: Execution of decree

Code of Civil Procedure Section 81. Exemption from arrest and personal appearance.

Bare Act: 

82. Execution of decree.— ¹[(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 ²[such decree].

³[(3) The provisions of sub-sections (1) and (2) shall apply in relation to an order or award as they apply in relation to a decree, if the order or award—

(a) is passed or made against ⁴[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; and

(b) is capable of being executed under the provisions of this Code or of any other law for the time being in force as if it were a decree.]

Note: 1. Subs. by s. 28, ibid., for sub-section (1) (w.e.f. 1-2-1977).

2. Subs. by Act 104 of 1976, s. 28, for “such report” (w.e.f. 1-2-1977).

3. Ins. by Act 32 of 1949, s. 2.

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

Code of Civil Procedure Section 83. When aliens may sue.

More reading:

Section 79. Suits by or against Government.

Decree

Section 80: Notice

Code of Civil Procedure Section 79. Suits by or against Government.

80. Notice.— ¹[(1)] ²[ Save as otherwise provided in sub-section (2), no suits ³[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 ⁴[delivered to, or left at the office of—]

(a) in the case of a suit against the Central Government, ⁵[except where it relates to a railway] a Secretary to that Government;

⁶[(b)] in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway;

⁷[(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 ⁸[any other State Government], a Secretary to that Government or the Collector of the district; ⁹***

¹⁰* * * * *

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.

¹¹[(2) 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).

(3) 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 the 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.]

Note:

1. S. 80 renumbered as sub-section (1) by Act 104 of 1976, s. 27 (w.e.f. 1-2-1977).

2. Subs. by s. 27, ibid., for “No suit shall be instituted” (w.e.f. 1-2-1977).

3. Subs. by Act 26 of 1963, s. 3 for “shall be instituted against the Government” (w.e.f. 5-6-1964). The words in italics were subs. by the A.O. 1948, for “Instituted against the Crown”

4. Subs. by the A.O. 1937, for “in the case of the Secretary of State in Council, delivered to, or left at the office of a Secretary to the L.G. or the Collector of the District”.

5. Ins. by Act 6 of 1948, s. 2.

6. Clause (aa) ins. by Act 6 of 1948, s. 2 and relattered as clause (b) and the Former clause (b) omitted by the A.O. 1948.

7. Ins. by Act 26 of 1963, s. 3 (w.e.f. 5-6-1964).

8. Subs. by s. 3, ibid., for “a State Government” (w.e.f. 5-6-1964).

9. The word “and” omitted by the A.O. 1948.

10. Clause (d) omitted, ibid.

11. Ins. by Act 104 of 1976, s. 27 (w.e.f. 1-2-1977).

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

Code of Civil Procedure Section 81. Exemption from arrest and personal appearance.

Simplified Explanation:

Section 80 deals with the notice in case of a Suit against the State.

Section 80 (1) of the Code requires prior notice of two months to be served on the Government as a condition for filing a suit except when there is urgency for interim order in which case the Court may not insist on the rigid rule of prior notice. The two month’s period has been provided for so that the Government shall examine the claim put up in the notice and has sufficient time to send a suitable reply. These provisions cast an implied duty on all concerned Governments and States and statutory authorities to send appropriate reply to such notices.

Whenever any statute requires service of notice as a condition precedent for filing of suit or other proceedings against it, to nominate, within a period of three months, an officer who shall be made responsible to ensure that replies to notices under Section 80 or similar provisions are sent within the period stipulated in a particular legislation. The replies shall be sent after due application of mind. Despite such nomination, if the Court finds that either the notice has not been replied or reply is evasive and vague and has been sent without proper application of mind, the Court shall ordinarily award heavy cost against the Government and direct it to take appropriate action against the concerned Officer including recovery of costs from him.

Judgment:

In Ram Kumar & Anr. V. State of Rajasthan & Ors., AIR 2009 SC 4, the Apex Court considered a case where a land had been allotted to a person in lieu of his land acquired under the Land Acquisition proceedings and mutation had taken place after exchange of possession. Subsequently the exchange deed was revoked. In such a fact situation, it was held that Section 80 notice served upon the District Collector would not bar the suit merely because the notice had not been served on the District Education Officer, who was involved in earlier proceedings, for the reason that he was not acting in his official capacity and was involved only for the re-delivery of possession. Thus, no notice under Section 80 CPC is required before filing suit if the act done by public officer is not in discharge of his official duties.

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.

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

Salem Advocate Bar Association, Tamil Nadu V. Union of India

Reference: http://www.nja.nic.in/16%20CPC.pdf

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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