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.”
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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