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

Section 78: Commissions issued by foreign Courts

 Code of Civil Procedure Section 77. Letter of request.

 Bare Act:

¹[78. Commissions issued by foreign Courts.—Subject to such conditions and limitations as may be prescribed the provisions as to the execution and return of commissions for the examination of witnesses shall apply to commissions issued by or at the instance of—

(a) Courts situate in any part of India to which the provisions of this Code do not extend; or

(b) Courts established or continued by the authority of the Central Government outside India; or

(c) Courts of any State or country outside India.]

Note 1: Subs. by s. 11, ibid., for s. 78.

 

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

Simplified Explanation

It is a well settled principle that by agreement the parties cannot confer jurisdiction, where none exist, on a Court to which CPC applies, but this principle does not apply when the parties agree to submit to the exclusive or non-exclusive jurisdiction of a foreign Court. Indeed in such cases the English Courts do permit invoking their jurisdiction. Thus, it is clear that the parties to a contract may agree to have their disputes resolved by a foreign Court termed as a ‘neutral Court’ or ‘Court of choice’ creating exclusive on non-exclusive jurisdiction in it.

In view of the aforesaid judicial pronouncements, it may be summarised that the cause of action is a bundle of facts and to examine the issue of jurisdiction, it is necessary that one of the inter-linked facts must have occurred in a place where the suit has been instituted. The said fact must have a direct nexus to the lis between the parties and in case the facts taken in the plaint are denied, the plaintiff has to prove the same.

More Reading:

Judgment

Section 20. Other suits to be instituted where defendants reside or cause of action arises.

Judgments on Cause of Action

Letter of request

 

Code of Civil Procedure Section

 

77. Letter of request.—In lieu of issuing a commission the Court may issue a letter of request to examine a witness residing at any place not within ¹[India]

Note 1: Subs. by Act 2 of 1951, s. 3, for “the States”.

 

 

Code of Civil Procedure Section

Section 76: Commission to another Court

 

Code of Civil Procedure Section

 

76. Commission to another Court.—(1) A commission for the examination of any person may be issued to any Court (not being a High Court) situate in a State other than the State in which the Court of issue is situate and having jurisdiction in the place in which the person to be examined resides.

(2) Every Court receiving a commission for the examination of any person under sub-section (1) shall examine him or cause him to be examined pursuant thereto, and the commission, when it has been duly executed, shall be returned together with the evidence taken under it to the Court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order.

 

Code of Civil Procedure Section

Section 75: Power of Court to issue commissions

 

Code of Civil Procedure 

 

PART III

INCIDENTAL PROCEEDINGS

COMMISSIONS

 

75. Power of Court to issue commissions.—Subject to such conditions and limitations as may be prescribed, the Court may issue a commission—

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition;

¹[(e) to hold a scientific, technical, or expert investigation;

(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;

(g) to perform any ministerial act.]

Note 1. Ins. by Act 104 of 1976, s. 26 (w.e.f. 1-2-1977).

 

Code of Civil Procedure 

Commentaries:

Section 75 CPC empowers the court to issue commissions. [1] 

A perusal of the rule 10A of Order 26 shows that a discretion has been vested in the Civil Court to get any scientific investigation conducted only if it needs necessary or expedient in the ends of justice. The basic rationale of this provision is that the Commission is going to held in extracting the truth. There is established procedure known to law that the Commissioner's report form part of the record and the same becomes evidence as a whole in the suit.[1]

An order passed in the incidental proceedings will have a direct bearing on the result of the suit.[1] 

The Hon'ble Supreme Court held that "incidental" or "ancillary" proceedings are taken recourse to in aid of the ultimate decision of the suit and any order passed therein would have a bearing on the merit of the matter.[1][6] Whenever an order is passed by the court in exercise of its ancillary power or in the incidental proceedings, the same may revive on revival of the suit. [1][6] The expression "ancillary" means aiding; auxiliary; subordinate; attendant upon; that which aids or promotes a proceeding regarded as the principal.[1][7]

Commissioner whose integrity is unquestionable his elaborate report cannot be overruled by the Court. [1] [2] It would normally be wise and safe for the courts to leave the decision to experts who are more familiar with the problems they face than the courts generally can be.[1] [4A to 4E] The Commissioner's report should not be rejected except on clearly defined and sufficient grounds.[1][8]

The Commissioner's report even if accepted by itself does not however, mean that the parties are precluded from challenging the evidence of the Commissioner or assailing the report by examining any other witness to counter the effect of the report.[1][3]

It is now settled law that the report of the Commissioner is part of the record and that therefore the report cannot be overlooked or rejected on spacious plea of non-examination of the Commissioner as a witness since it is part of the record of the case.[1][5]

Authorities:

[1] The Sunni Central Board Of Waqfs ... vs Gopal Singh Visharad [Allahabad High Court]

[2] AIR 1924 Cal.620, Amrita Sundari Versus Munshi

[3] AIR 1997 Cal.59, Amena Bibi Versus Sk.Abdul Haque

[4A] (2010) 3 SCC 732, Victoria Memorial Hall Versus Howrah Ganatantrik Nagrik Samity

[4B] State of Bihar V. Dr.Asis Kumar Mukherjee, [SC]

[4C] Dalpat Abasaheb Solunke V. Dr.B.S.Mahajan, [SC]

[4D] Central Areca Nut & Cocoa Mktg.& Processing Coop.Ltd. V. State of Karnataka [SC]

[4E] Dental Council of India V. Subharti K.K.B Charitable Trust. [SC]

[5] 1995 Supp (4) SCC 600, Misrilal Ramratan and others Mansukhlal and others

[6] 2004(6) SCC 378 Vareed Jacob v. Sosamma Geevarghese

[7] (2006) 13 SCC 136 G.L. Vijan v. K. Shankar

[8] Chandan Mull's case reported in 44 Cal WN 205 at p. 212 : (AIR 1940 PC 3, at pp. 5, 6)

Resistance to execution

 

Code of Civil Procedure Section

 

RESISTANCE TO EXECUTION

74. Resistance to execution.— Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause, the Court may, at the instance of the decree-holder or purchaser, order the judgment-debtor or such other person to be detained in the civil prison for a term which may extend to thirty days and may further direct that the decree-holder or purchaser be put into possession of the property.

 

Code of Civil Procedure Section

 

Proceeds of execution sale to be rateably distributed among decree-holders

 Code of Civil Procedure Section 

DISTRIBUTION OF ASSETS

73. Proceeds of execution sale to be rateably distributed among decree-holders.—(1) Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be rateably distributed among all such persons:

Provided as follows :—

(a) where any property is sold subject to a mortgage or charge, the mortgage or incumbrancer shall not be entitled to share in any surplus arising from such sale;

(b) where any property liable to be sold in execution of a decree is subject to a mortgage or charge, the Court may, with the consent of the mortgagee or incumbrancer, order that the property be sold free from the mortgage or charge, giving to the mortgagee or incumbrancer the same interest in the proceeds of the sale as he had in the property sold;

(c) where any immovable property is sold in execution of a decree ordering its sale for the discharge of an incumbrance thereon, the proceeds of sale shall be applied—

First, in defraying the expenses of the sale;

Secondly, in descharging the amount due under the decree;

Thirdly, in discharging the interest and principal monies due on subsequent incumbrances (if any); and

Fourthly, rateably among the holders of decrees for the payment of money against the judgement-debtor, who have, prior to the sale of the property, applied to the Court which passed the decree ordering such sale for execution of such decrees, and have no obtained satisfaction thereof.

(2) Where all or any of the assets liable to be rateably distributed under this section are paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to refund the assets.

(3) Nothing in this section affects any right of the Government.

Code of Civil Procedure Section