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Code of Civil
Procedure Section
84. When foreign States may
sue.—A
foreign State may sue in any competent Court :
Provided that the object of
the suit is to enforce a private right vested in the Ruler of such State or in any
officer of such State in his public capacity.
Code of Civil
Procedure Section
Code of Civil Procedure Section 82. Execution of decree.
Bare Act:
1[SUITS BY ALIENS AND BY OR AGAINST FOREIGN RULERS, AMBASSADORS AND ENVOYS]
83. When aliens may sue.—Alien
enemies residing in India with the permission of the Central Government, and
alien friends, may sue in any Court otherwise competent to try the suit, as if
they were citizens of India, but alien enemies residing in India without such
permission, or residing in a foreign country, shall not sue in any such Court.
Explanation. —Every person
residing in a foreign country, the Government of which is at war with India and
carrying on business in that country without a licence in that behalf granted
by the Central Government, shall, for the purpose of this section, be deemed to
be an alien enemy residing in a foreign country.
Note: 1. Subs. by Act 2 of
1951, s. 12, for the former heading and ss. 83 to 87.
Code of Civil Procedure Section 84. When foreign States may sue.
More reading:
83. When aliens may sue.
84. When foreign States may sue.
85. Persons specially appointed by Government to prosecute or defend on behalf of foreign Rulers.
86. Suits against foreign Rulers, Ambassadors and Envoys.
87. Style of foreign Rulers as parties to suits.
87A. Definitions of “foreign State” and “Ruler”.
Code of Civil
Procedure Section
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.
Code of Civil
Procedure Section
81. Exemption from arrest
and personal appearance.—In a suit instituted against a public
officer in respect of any act purporting 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, and,
(b) where the Court is
satisfied that the defendant cannot absent himself from his duty without detriment
to the public service, it shall exempt him from appearing in person..
Code of Civil
Procedure Section
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.
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
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Code of Civil
Procedure Section
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”.
Code of Civil
Procedure Section
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"
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
Code of Civil
Procedure Section
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
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:
Section 20. Other suits to be instituted where defendants reside or cause of action arises.
