Suits by or against the government or public officers in their official capacity

Section 79-82 of the Code deals with suits by or against the government or public officers in their
official capacity. According to Section 79 of the Code, when any suit is filed against the government,
then the government shall be referred to as defendant in the suit and likewise, if any suit is filed by the
government, then the government will be referred to as Plaintiff in the suit. However, it is pertinent to
note that if any such suit is filed either by the Central Government or against the Central Government,
then the plaintiff or defendant, as the case may be, shall be the Union of India. And, if any such suit
involves State Government, then, the party to suit will be referred to as the State.

In-state of Rajasthan v Vidyawati, the Hon’ble Supreme Court observed that in case if any wrongs are
committed by the government employees during their employment, then the government itself will be
liable for the acts committed by its employees. However, such acts must not include the sovereign
powers of the government. In Bhagchand Dagadusa vs The Secretary Of State For India on 15 August
1923, the Bombay High Court observed it was observed by the court that the procedure to deal with
suits by or against the government is laid down under order 27 and Section 79-82 of the Code.
However, those rights and liabilities that are enforceable either against the government or by the
government are not covered by these provisions.

Requirement of notice ( Section 80(1))

In ordinary suits, i.e. suits between two or more individuals, there is no mandate to serve notice to the
defendant by the plaintiff before instituting a suit. However, Section 80 is an exception to this general
rule followed in ordinary suits. This is so because as per Section 80, the plaintiff can sue neither the
government nor against a public officer with regards to acts that are purported to be completed by the
public officers working in the official capacity. Such a suit by or against the government official can
only be filed after the expiration of the next two months of receiving the notice by the government or
public official in writing.

The notices can also be served in the following offices:

1. In case if any suit is filed against the Central Government, excluding the cases of railway, a
notice shall be served to the Secretary to that Government;

2. In the case, if a suit is filed against the Central Government, involving the matters of railway,
then the notice shall be served upon the General Manager of that Railway;

3. In case when the suit is against the Government of the State of J&K, the notice shall be served
upon the Chief Secretary to that Government or any other officer authorized by that
Government on that behalf;
 4. In case if a suit is filed against any other state Government, then the notice shall be served
upon the Secretary to that Government or the Collector of the district;

5. In case if a suit is filed against a public officer, then the notice shall be served upon that
public officer.

Section 80(2) is an exception to Section 80(1) of the Code as it states that when a suit is filed for
obtaining immediate relief either against the government or any public officer working in its official
capacity, then without serving notice on the opposite party, such suit shall be filed after taking the
permission of the court. According to Section 81 of the Code, when a suit is filed against a public
office due to his conduct in his official capacity, then such public officer shall neither be arrested nor
will his property be attached. Furthermore, in case the court accepts that it is impossible for the public
officer to appear before the court, he shall be excluded from presenting himself from the court. The
execution of the decree has been explained under Section 82 of the Code. Section 82(2) strictly
forbids the execution of the decree passed under 82(1) against the public officer or government, as the
case may unless the decree remains unsatisfied for three months calculated from the date when the
decree is passed.

It has been observed by the court in The State of Bihar And Anr. vs Jiwan Das Arya, that section
identifies two types of cases: Firstly, those suits are filed against the Government; wherein the notice
has to be given under all cases. Secondly, those suits filed against public officers; wherein notice is
obligatory only in cases where the suit is filed in respect of any act “purporting to be done” by such
public officer in the discharge of the public officer’s duty, and whereas not in other cases.

The importance of sending a notice under Section 80 (1) of the Code has been discussed by the
Hon’ble Supreme Court in The State Of Madras vs C.P. Agencies And Anr where it was held that the
main objective of sending a notice under section 80 before filing a suit against the concerned public
official or government, is to give a chance to the respective office or government to consider their
legal position and settle the claim made by the plaintiff if such claim seems to be proper. The
government needs to make any decision in the interest of the public after taking legal advice and
revert to the public within two months. This would not only save the public’s time and money but also
help them to avoid litigation. Also, the court pointed out that the legislative intent behind such a
section is to save public money and not waste it by indulging in unnecessary litigation.

Interpleader suits
Section 88 of CPC, 1908 provides for interpleader suits. The word ‘To Interpleader’ implies ‘to
litigate with each other to settle a point concerning the third party. The procedure to institute an
Interpleader Suit is given under Order 35 of CPC, 1908. An interpleader suit is defined as a suit
wherein no dispute is between the parties; namely the plaintiff and the defendant, but the dispute is
actually between the defendants themselves, who inter-plead against each other. One can differentiate
between an original suit and an interpleader suit as the former is a dispute between plaintiff and
defendant whereas the latter is between defendants. In such types of suits, the plaintiff is least
attentive towards knowing the subject matter of the suit. However, the plaintiff in such a suit must be
in a position of impartiality/ non-arbitrariness.

The reason behind filing an interpleader suit is to get the claims of rival defendants adjudicated. In the
case of Groundnut Extractions Export Development Association vs State Bank Of India, “the
interpleader suit was understood as a process wherein the plaintiff calls upon the rival claimants to
appear before the court and get their respective claims decided. The decision of the court in an
interpleader suit affords indemnity to the plaintiff on payment of money or delivery of property to the
person whose claim has been upheld by the court”.

Test

To decide whether a suit is an interpleader suit or not, the court must specifically look into the prayer
clause in the plaint. In Groundnut Extractions Export Development Association vs State Bank Of
India, the court opined that “A suit does not become an interpleader suit merely because the plaintiff
requires the defendants to interplead with each other as regards one of the prayers in the plaint”.

Who can file interpleader suits?

In National Insurance Co. Ltd. vs Dhirendra Nath Banerjee And Anr, it was observed that one can
file an interpleader suit in case there exists two or more than two individuals claiming adversely to
one another for some debt, money, movable property, or immovable property, from a person who does
not claim any interest therein expect the charges and costs incurred by him that person is also ready to
pay the same to the rightful claimant. In simple terms, an interpleader suit can be filed by: Any person
who has no interest in any debt, money, or, other property (movable or immovable), the person
excludes the charges and costs incurred by him and lastly that person is also ready to pay the debt,
money, or, other property to the rightful claimant.

Who cannot file interpleader suits?

Order 35, Rule 5 of the CPC, 1908 provides that, neither an agent can sue his principal, nor a tenant
can sue his landlord to compel the principals and landlords to interplead with persons other than
persons claiming through these principals and landlords.
Procedure

The procedure to file an interpleader suit is given under Order 35 CPC. 1908. Order 35 Rule 1, 1908
provides that the interpleader must particularly mention in his plaint that,

(i) The plaintiff do not claim any interest in the subject matter of the dispute except the costs and
charges

(ii) The claims that are mentioned by the defendants severally

(iii) No collusion is observed between the plaintiff and any of the defendants.

Apart from the aforementioned claim, the interpleader can also mention other statements as well.

 Order 35, Rule 2 of CPC, 1908, gives the court discretionary power whereby if a thing is
claimed and it is capable of being paid into the court, then, the plaintiff has to deposit such an
amount or thing before the court. In case, such a thing is a property, then the property shall be
placed in court.

 Order 35, Rule 3 of CPC, 1908 provides that in an interpleader suit if any of the defendants
sue the plaintiff with regards to the subject matter of the suit, then in such case, the court
where the suit is instituted against the plaintiff is pending, will stay the proceedings in that
suit as against the plaintiff.

 Order 35, Rule 4 of CPC, 1908 gives the court discretionary power to declare at the first
hearing itself, the fact that the plaintiff is discharged from all liabilities and award the plaintiff
his costs and dismiss him from the suit. But, in case the court believes that to uphold justice,
propriety, and convenience, the inclusion of all parties (plaintiff and defendant) to the suit be
retained, then, the court in such will not discharge the plaintiff till the final disposal of the
suit.

 Order 35, Rule 5 of CPC, 1908 states that the agents, as well as the tenants, won’t be
permitted to file an interpleader suit against their principles or landlords respectively.

Suits by Indigent Person

Order XXXIII of the Civil Procedure Code talks about suits by indigent persons. Section 304 of
Criminal Procedure Code, and Article 39A of the Indian Constitution respectively mention, legal aid
to accused at state expense in certain cases, and equal justice and free legal aid.

Who is an Indigent Person?

Indigent means poor, penniless, pauper. A person is an indigent person who is not having sufficient
means to pay the fee for the plaint or where no such fee is prescribed, he is not entitled to property
worth rupees 1,000.

Order XXXIII of the Civil Procedure Code provides remedy to those who need to institute a suit for
the enforcement of their rights but are so poor that they cannot afford expenses on court fees etc. The
object behind this order is that poverty should not come in the way of getting justice.

Application for Permission to Sue as Indigent

A person may sue as an indigent person only when the court so permits him. When the application
is made for permission to sue as an indigent person, every inquiry shall be made in the first instance.

An application for permission to sue as an indigent person shall contain the following particulars-
1. Particulars received in regard to plaint in a suit.
2. List of movable/immovable property belonging to the applicant with the estimated value.
3. Signature and Verification.

Presentation of Application

The application shall be presented to the court by the applicant in person (not by any third party), but
if he is exempted from personal appearance, an application may be presented by an authorised agent.
But the agent must be able to answer the questions regarding the application.

Examination of Applicant

Where the application is in proper form and duly presented, the court may examine the applicant or
his agent regarding the merits of the claims and property of the applicant.

To sue as an indigent person, 7 days before notice in writing shall be given to the defendant. The court
shall decide a date for adducing evidence in support of the application. After the satisfaction of the
court, it shall be deemed the plaint in the suit, and the suit shall proceed as a suit instituted in an
ordinary manner.
Who may Appeal as an Indigent Person?

Order XLIV of the Civil Procedure Code talks about appeals by indigent persons.

Any person who is entitled to file an appeal but unable to pay the necessary court fee may obtain the
permission of the court to appeal as an indigent person.

For this purpose, he may present an application to the court, along with a memorandum of appeal. The
court may allow the applicant to appeal as an indigent person, subject to the provisions relating to
suits by indigent persons.

Period of Limitation

The application for leave to appeal as an indigent person must be filed within 30 days. But in case of
appeal before the High Court, such a period is 60 days from the date of the decree when passed.

If there is no reason to reject the application, the court shall fix a day for receiving evidence in proof
or disproof of the indigence of the applicant. At least 10 days clear notice shall be given to the
opposite party and the government pleader.

Procedure to Sue as an Indigent Person if Application is Admitted

Where the application for permission to sue as an indigent person is granted, it shall be numbered and
registered. It shall be deemed the plaint in the suit, and the suit shall proceed as if it was instituted in
an ordinary manner.

But the plaintiff shall not be liable to pay any court fee or process fee. The plaintiff shall also not be
liable for any fee for the appointment of a pleader.

If a person has been allowed to sue as an indigent person, but he is not represented by a pleader, the
court may assign a pleader to him.

Rejection of Application

The Court shall reject an application for permission to sue as an indigent person-

1. Where it is not framed and presented in the manner prescribed by rule 2 and rule 3, or

2. Where the applicant is not an indigent person, or

3. Where he has, within two months next before the presentation of the application disposed of any
property fraudulently or in order to be able to apply for permission to sue as an indigent person:
Provided that no application shall be rejected if, even after the value of the property disposed of by
the applicant is taken into account, the applicant would be entitled to sue as an indigent person, or

4. Where his allegations do not show a cause of action, or

5. Where he has entered into any agreement with reference to the subject matter of the proposed suit
under which any other person has obtained an interest in such subject matter, or

6. Where the allegations made by the applicant in the application show that the suit would be barred
by any law for the time being in force, or

7. Where any other person has entered into an agreement with him to finance the litigation.

“This is the beauty of our Constitution and our laws, which ensure that even the poor and needy are
not left behind when it comes to getting justice.”