SUITS BY OR AGAINST THE GOVERNMENT

Sections 79–82 and Order XXVII, Code of Civil Procedure, 1908

1. Introduction

Litigation involving the Government occupies a unique position in civil procedural law. While the modern constitutional framework rejects sovereign immunity in its absolute form, the State continues to enjoy procedural safeguards to ensure that governance is not paralysed by litigation. The Code of Civil Procedure, 1908 (CPC) strikes a balance between State accountability and administrative convenience through Sections 79 to 82 and Order XXVII.

These provisions collectively regulate:

• The proper manner of suing or being sued by the Government,

• Representation and appearance of Government through authorised agents,

• Special protections available to public officers acting in official capacity,

• Execution of decrees against the Government, and

• Promotion of settlement and alternative dispute resolution in Government litigation.

2. Constitutional Basis: Article 300 of the Constitution

Article 300 of the Constitution of India provides that:

• The Union of India and the States may sue or be sued in their respective names.

Sections 79–82 CPC operationalise this constitutional mandate by prescribing procedural conditions under which such suits may be instituted and conducted.

3. Section 79 CPC – Suits by or Against the Government

3.1 Proper Party to the Suit

Section 79 mandates that:

• In suits by or against the Central Government, the plaintiff or defendant shall be the Union of India.

• In suits by or against a State Government, the plaintiff or defendant shall be the State concerned.

A suit against a department, ministry, or officer as such is not maintainable unless the statute expressly permits it.

3.2 Mandatory Nature

Section 79 is mandatory. Non-compliance affects the maintainability of the suit.

Case Law:
Chief Conservator of Forests v. Collector (2003)
The Supreme Court held that a suit filed against a Government officer instead of the State was defective and not maintainable.

4. Section 80 CPC – Notice Before Institution of Suit (Brief Context)

Although not part of Order XXVII, Section 80 is inseparably linked with Government suits. It requires two months’ prior notice before instituting a suit against:

• The Government, or

• A public officer for acts done in official capacity.

The purpose is administrative settlement, not obstruction of justice.

5. Section 81 CPC – Exemption from Arrest and Personal Appearance

Public officers sued in respect of official acts:

• Cannot be arrested,

• Cannot be compelled to appear personally unless the court directs otherwise.

This provision prevents harassment of officers performing public duties.

6. Section 82 CPC – Execution of Decree Against Government

A decree against the Government:

• Cannot be executed until three months after the decree,

• Government property used for public purposes is immune from attachment.

This ensures fiscal discipline and compliance with constitutional budgeting procedures.

7. Order XXVII CPC – Suits by or Against Government or Public Officers

Order XXVII provides detailed procedural rules supplementing Sections 79–82.

8. Rule 1 – Signing and Verification of Pleadings

8.1 Statutory Provision

In any suit by or against the Government:

• The plaint or written statement shall be signed by a person appointed by the Government,

• It shall be verified by a person acquainted with the facts of the case.

8.2 Rationale

This ensures:

• Authenticity of pleadings,

• Administrative responsibility,

• Prevention of unauthorised or frivolous litigation involving public funds.

Rule 2 – Persons Authorised to Act for Government

Persons authorised ex officio or otherwise by the Government:

• Are deemed recognised agents,

• May make appearances, applications, and acts on behalf of the Government.

This avoids the need for repeated authorisations and simplifies procedural representation.

Rule 3 – Description of Parties in Plaint

Instead of stating the name and address of a private litigant:

• It is sufficient to mention the appropriate name as provided under Section 79 CPC, i.e., Union of India or State Government.

This rule reinforces Section 79 and removes unnecessary technical formalities.

Rule 4 – Government Pleader as Agent to Receive Process

The Government Pleader of the court:

• Is deemed the agent of the Government,

• Is authorised to receive summons, notices, and processes issued by the court.

Service on the Government Pleader is valid service on the Government.

Rule 5 – Fixing Date for Appearance by Government

Reasonable Time Requirement

While fixing the date for Government’s appearance:

• The court must allow reasonable time for communication through proper channels,

• For issuance of instructions to the Government Pleader.

Statutory Limit

The court may extend time, but:

• The total extension shall not exceed two months in aggregate.

This prevents indefinite delays while recognising bureaucratic realities.

Rule 5A – Government to be Joined in Suits Against Public Officers

Where a public officer is sued for acts done in official capacity:

• The Government must be joined as a party.

Significance:

• Protects officers acting bona fide,

• Ensures that liability, if any, is adjudicated with Government participation,

• Prevents individual victimisation of public servants.

Rule 5B – Duty of Court to Assist in Settlement

Mandatory Judicial Duty

In suits involving:

• The Government, or

• Public officers acting in official capacity,

the court must initially attempt settlement, where possible.

Power to Adjourn for Settlement

If there appears a reasonable possibility of settlement:

• The court may adjourn proceedings,

• This power is in addition to general adjournment powers.

This reflects legislative encouragement of ADR and negotiated governance.

Rule 6 – Attendance of Knowledgeable Government Officer

Where the Government Pleader:

• Is not accompanied by a person capable of answering material questions,

the court may direct attendance of such a person.

This ensures effective adjudication without unnecessary adjournments.

Rule 7 – Extension of Time for Public Officer to Refer to Government

If a public officer:

• Considers it necessary to seek Government instructions before filing a defence,

the court shall grant necessary extension of time.

This recognises hierarchical decision-making in administration.

Rule 8 – Procedure Where Government Undertakes Defence

Government Undertakes Defence

When the Government undertakes defence of a public officer:

• The Government Pleader must apply to court,

• The authority is entered in the civil suit register.

Failure to Apply

If no such application is made:

• The suit proceeds like a private suit,

However, the officer remains protected from:

• Arrest,

• Attachment of property (except in execution of decree).

Rule 8A – No Security Required from Government

No security under Order XLI Rules 5 and 6:

• Shall be required from the Government,

• Or from a public officer whose defence is undertaken by the Government.

This prevents financial hurdles in Government appeals.

Rule 8B – Definitions

For Order XXVII:

• “Government” and “Government Pleader” are defined separately for:

  • Central Government, and

  • State Government.

This avoids ambiguity and ensures procedural clarity.

Judicial Approach: Government as a Model Litigant

Courts have repeatedly held that:

• Government must act fairly,

• Avoid technical objections,

• Promote justice rather than obstruct it.

Case Law:
Urban Improvement Trust, Bikaner v. Mohan Lal (2010)
The Supreme Court criticised the Government for unnecessary litigation and stressed its role as a model litigant.

Conclusion

Sections 79–82 CPC and Order XXVII together form a self-contained procedural code governing suits by or against the Government. While these provisions grant procedural protection to the State and its officers, judicial interpretation has ensured that such protection does not degenerate into privilege.