Introduction
As is well known, Section 80 Civil Procedure Code[i], lays down that no suit shall be 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, without the expiration of two months next after notice in writing. The section falls into two parts, viz.,
- suit against the Government or
- suit against a public officer in respect of any act purporting to be done by such officer in his official capacity.
Obviously, in first case it is essential to give notice and in second case if the act complained of was done in discharge of his official duties.
This section is explicit and mandatory and admits of no implications or exceptions. The language of this section is imperative and absolutely debars a court from entertaining a suit instituted without compliance with its provisions. If the provisions of the section are not complied with, the plaint must be rejected under O. 7, R. 11(d) of CPC. So the notice under Section 80(1) of CPC, 1908 is the first step in the ligation against government or public officer.[ii]
A plaintiff intending to institute a suit against the Government has two options before him, either he may file a suit after serving two months notice under Section 80 CPC or he may file the suit without serving the notice but in that event he must satisfy the court that an urgent and immediate relief is required and also obtain previous leave of the court. In the event of the first course being adopted the suit cannot be filed before the expiry of the two months of giving of the notice and this explains the reason for using the word ‘shall’ in Sub-clause (1) of Section 80 C.P.C. by the Parliament. However, in the second case he has the choice to file the suit without giving the requisite notice but only after obtaining leave of the court and it is for this purpose that the word ‘may’ has been used in Clause (2) of Section 80 CPC.
When by Amendment of Plaint new Cause of Action is introduced or New Relief is sought against Government
From the reading of Abhimanyu Nayak and Others vs Basanta Mohanty And Others[iii] it is evident that service of notice under Section 80 (1) CPC is a sine qua non prior to institution of the suit against the Central Government/Railway/State Government. If the suit is of such nature, urgent or immediate relief sought for against the State Government or any public officer in respect of any act purporting to be done by such officer in his official capacity, suit may be instituted, with the leave of the Court, without serving any notice as required by sub section 1. The provision is imperative.
Sometimes an application is filed under Order 6 Rule 17of CPC by the plaintiff to amend his plaint and the amendment proposed to be included is of such a nature that if allowed it has the tendency to affect the interests of the government. So the question arises whether before the amendment is allowed it is necessary to give notice to the government.
It is not every amendment of plaint, which requires prior notice under Section 80(1) CPC. Only when new relief is sought for or when the amendment introduces a new cause of action, notice under Section 80(1) is necessary. In the case of amendment which is formal in nature or to elucidate the foundational facts already exist in the plaint, the same does not require any notice under Section 80 CPC.
The Calcutta High Court in the case of Manindra Chandra Nandi vs Secretary of State for India[iv], held that where a new cause of action is sought to be introduced in addition to a cause of action specified in the plaint against the Government, notice under Section 80 is a pre-requisite.
In Province of Madras vs R.B. Poddar Firm[v], an application to amend the plaint by adding a paragraph to the original plaint was allowed by the learned trial court. The Provincial Government represented by the Collector sought to revise that order on the ground that as the amendment introduced a new cause of action, the same could not be allowed without the imperative pre-requisites of a notice under Section 80 CPC. The Court held that the proposed amendment had introduced a fresh cause of action, which was outside the scope of the suit as originally framed and was inconsistent with the allegation made earlier, the learned Sub-Judge was not justified in allowing the amendment, as ex concesis no previous notice has been served on the Government informing them of the new cause of action.
In another case the plaintiff filed a suit in representative capacity for a declaration of customary right of the villagers over the suit land. The defendants 1 and 2 countered the plaintiff’s claim of customary right and asserted the claim over the same. The learned trial court dismissed the suit. The unsuccessful plaintiffs preferred an appeal before the learned Additional District Judge, Bhadrak. During pendency of the appeal, they filed an application under Order 6 Rule 17 CPC praying for impleadment of State of Odisha as party defendant. The prayer was objected to by the defendants. The learned Additional District Judge allowed the application and remanded the suit to the learned trial court for de novo trial. Defendant no.1 filed an appeal before High Court challenging the order of remand. High Court set aside the order passed by the learned appellate court and remanded the matter back for fresh disposal. Consequent upon the remand, the learned lower appellate court allowed the application and impleaded the State of Odisha as a party defendant. The High Court held that the provision being imperative, failure to serve notice complying with the requirement will entail dismissal of the suit. It was further held that service of notice under Section 80(1) CPC is not an empty formality. The object of such notice is to give the concerned Government or public officer an opportunity to reconsider the legal position and settle the claim, if so advised, without leading to any legal battle. The legislative intention behind such provision is that public money and time should not be wasted on unnecessary litigation and the Government or the public officer should be given reasonable opportunity to examine the claim made against them.
Similarly in a case where the plaintiff instituted a suit for declaration and other consequential reliefs impleading the opposite party as defendant. Two applications were filed under Order 6 Rule 17 CPC for impleadment of State of Orissa as a party to the suit. Both the applications were rejected. It was submitted on behalf of the plaintiff that a copy of the notice under Section 80 of CPC and a memo in support of the receipt had been received by the Collector, Puri. The undisputed fact was that the suit was instituted on 15.4.2008 whereas notice was sent in compliance of Section 80 C.P.C. on 17.6.2008. Thus, notice was sent after institution of the suit. The learned Judge held that the requirements of Section 80 CPC if complied with prior to filing of the amendment of the petition, the State could have been made as a party by filing an appropriate application.
In Bishandayal and Sons vs State of Orissa and others[vi], the apex court held as follows:
“There can be no dispute to the proposition that a notice under Section 80 can be waived. But the question is whether merely because in the amended written statement such a plea is not taken it amounts to waiver. This contention was argued before the appellate court. Even otherwise, we find that in the suit itself Issue No.4 had been raised as to whether or not there was a valid and appropriate notice under Section 80. Such a point having been taken in the original written statement and an issue having been raised, it was not necessary that in the amended written statement such a plea be again taken. On behalf of the respondents, reliance has been placed on the case of Gangappa Gurupadappa Gugwad vs. Rachawwa and others, wherein it has been held that where the plaintiff’s cause of action is against a Government and the plaint does not show that notice under Section 80 was served, it would be duty of the Court to reject the plaint. In this case the original notice was only in respect of a claim under the plaint as it originally stood. That claim was on the basis that there was a concluded contract and that the appellants had already acquired rights in the mill and the lands. As has been fairly conceded those reliefs were not maintainable and were given up before the appellate court. The amended plaint was on an entirely new cause of action. It was based on facts and events which took place after the filing of the original plant. It was a fresh case. Now the claim was for specific performance of the agreement alleged to have been entered into on 29-12-1978. Admittedly no notice under Section 80 CPC was given for this case. As there was an issue pertaining to notice under Section 80, the trial court should have dealt with this aspect. The trial court failed to do so. It was then pressed before the appellate court. In our view, the finding in the impugned judgment that the suit based on this claim was not maintainable is correct and requires no interference.”
If a new cause of action is being introduced a fresh notice under Section 80 CPC would be required to be given. The same not having been given, the suit on this cause of action was not maintainable. The provision under Section 80(1) CPC being imperative in nature, prior notice under Section 80(1) CPC to the State is a sine qua non. It is not an empty formality. None compliance with requirements of Section 80 CPC will entail dismissal of the suit.
When Court Suo Motu adds/impleads Government as a party to the suit
It is Order 1 of the Code of Civil Procedure, which deals with parties to the suit. It deals with necessity of bringing parties to the suit for proper and effectual adjudication of the matter in dispute. Order 1 Rule 10 of CPC enables the court to add any person as party at any stage of the proceedings, if the person whose presence before the court is necessary in order to enable the court effectively and completely adjudicate upon and settle all the questions involved in the suit. It is well settled principle of law that basically, it is for the plaintiff in a suit to identify the parties against whom he has any grievance and to implead them as defendants in the suit filed for necessary relief. He cannot be compelled to face litigation with the persons against whom he has no grievance. Where, however, any third party is likely to suffer any grievance, on account of the outcome of the suit, he shall be entitled to get himself impleaded.
The theory of dominus litus (Plaintiff is the master of the suit) should not be over stretched in the matter of impleading of parties, because it is the duty of the court to ensure that if for deciding the real matter in dispute, a person is necessary party, the court can order such person to be impleaded. Merely because the, plaintiff does not choose to implead a person is not sufficient for rejection of an application for being impleaded. The provisions of Order 1 Rule 10(2) CPC are very wide and the powers of the court are equally extensive. Even without an application to be impleaded as a party, the court may, at any stage of the proceedings order that the name of any party, who out to have been joined whether as plaintiff or defendant or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
To answer the question whether court is obliged to give notice to the government or officer before it suo motu adds it as a party to the suit, we have to understand the legislative intention behind Section 80 CPC.
The legislative intent of Section 80 CPC is to give the Government sufficient notice of the suit which is proposed to be filed against it so that it may reconsider the decision and decide for itself whether the claim made could be accepted or not. The object of the section is advancement of justice and securing public good by avoidance of unnecessary litigation.[vii]
Prior to Section 80 CPC, 1908, similar provision existed in Section 424 of CPC, 1882. Considering the purpose and objective of such a provision, in Secretary of State for India in Council vs Perumal Pillai and others[viii] it was held:
“… object of the notice required by section 424, Civil Procedure Code, is to give the defendant an opportunity of settling the claim, if so advised, without litigation.”
With reference to Section 80 CPC of 1908, the objective and purpose came to be considered in Secretary of State for India in Council vs Gulam Rasul Gyasudin Kuwari[ix] wherein it was held as under:
“… the object of section 80 is to enable the Secretary of State, who necessarily acts usually through agents, time and opportunity to reconsider his legal position when that position is challenged by persons alleging that some official order has been illegally made to their prejudice.”
In Raghunath Das vs Union of India and another[x], in para 8, the Court said:
“The object of the notice contemplated by that section is to give to the concerned Governments and public officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised without litigation. The legislative intention behind that section in our opinion is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigations. The purpose of law is advancement of justice. The provisions in Section 80, Civil Procedure Code are not intended to be used as booby traps against ignorant and illiterate persons.”
The object and purpose of enactment of Section 80 CPC was also noticed in State of Punjab vs M/s. Geeta Iron and Brass Works Ltd.[xi] as under:
“A statutory notice of the proposed action under S. 80 CPC is intended to alert the State to negotiate a just settlement or at least have the courtesy to tell the potential outsider why the claim is being resisted.”
In Dhian Singh Sobha Singh vs Union of India[xii], the Court observed that Section 80 CPC must be strictly complied with but that does not mean that the terms of Section should be construed in a pedantic manner or in a manner completely divorced from common sense. It observed:
“The Privy Council no doubt laid down in Bhagchand Dagadusa vs Secretary of State[xiii] that the terms of section should be strictly complied with. That does not however mean that the terms of the notice should be scrutinised in a pedantic manner or in a manner completely divorced from common sense. As was stated by Pollock, C. B., in Jones vs Nicholls[xiv], “we must import a little commonsense into notices of this kind.” Beaumont, C. J., also observed in Chandu Lal Vadilal vs Government of Bombay[xv], “One must construe Section 80 with some regard to common-sense and to the object with which it appears to have been passed.”
In Sangram Singh vs Election Tribunal, Kotah[xvi], the Apex Court said:
“Section 80 of the Code is but a part of the Procedure Code passed to provide the regulation and machinery, by means of which the Courts may do justice between the parties. It is therefore merely a part of the adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it.”
In Bihari Chowdhary vs State Of Bihar, Supreme Court has highlighted the object of Section 80 of the civil procedure code:
“When we examine the scheme of the Section it becomes obvious that the Section has been enacted as a measure of public policy with the object of ensuring that before a suit is instituted against the Government or a public officer, the Government or the officer concerned is afforded an opportunity to scrutinize the claim in respect of which the suit is proposed to be filed and if it be found to be a just claim, to take immediate action and thereby avoid unnecessary litigation and save public time and money by settling the claim without driving the person, who has issued the notice, to institute the suit involving considerable expenditure and delay. The Government, unlike private parties, is expected to consider the matter covered by the notice in a most objective manner, after obtaining such legal advice as they may think fit, and take a decision in public interest within the period of two months allowed by the Section as to whether the claim is just and reasonable and the contemplated suit should, therefore, be avoided by speedy negotiations and settlement or whether the claim should be resisted by fighting out the suit if and when it is instituted. There is clearly a public purpose underlying the mandatory provision contained in the Section insisting on the issuance of a notice setting out the particulars of the propose suit and giving two months‟ time to Government or a public officer before a suit can be instituted against them. The object of the Section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation.”
After going through the legislative intent behind Section 80 CPC, in my humble opinion when court suo motu decides to add Government as a party to the suit it can adopt either of the two approaches.
Approach-I
A party under Order I Rule 10(2) can be added by court suo motu against the wishes of the plaintiff, if the party is a proper or necessary party and its presence is necessary for complete and effectual adjudication of the dispute. Moreover court has the power to add party on such terms as it may appear to be just. So under this approach, court has to take the following steps:
- First determine whether the government is necessary or proper party in the suit. If the answer is yes;
- Then court will order plaintiff to give two months statutory notice to government;
- After completion of the notice time period court will add government as a party to the suit and
- Then order plaintiff to present amended cause title of the suit, summons/process fee to be issued against government and copy of the amended plaint.
In Kamdas vs Board of Revenue[xvii], a slight observation was made in reference to the issue at hand. Court said that when state government was not added arrayed as a defendant initially but the court impleaded it at subsequent stage of the suit, then non-compliance with Section 80 can’t be regarded as a defect which may prove fatal to the suit.
Approach-II
As we know court can add party on such terms as it may find just. At this stage it is clear to us that under Section 80(2) of CPC, if the suit is of urgent and emergency character (for ex. Injunction Suit) then the requirement of statutory notice can be waived. So court has the power to add government a party to the suit even without giving statutory notice provided suit should be of urgent or emergency character. Like if the suit is for Declaration of Civil Death of a person which can’t be termed as of urgent character. In such situation if the plaintiff hasn’t made government a party, then court can’t order government to be made a party without giving it a statutory notice through plaintiff.
The protection of Section 80 can be waived; Third party not allowed to raise objection regarding non-compliance
The protection provided under Section 80 is given to the person concerned. If in a particular case that person does not require protection, he can lawfully waive his right. This is what was held in Dhirendra Nath Gorai and Sabal Chandra Shaw and others vs Sudhir Chandra Ghosh and others[xviii] where considering a pari materia provision, i.e. Section 35 of Bengal Money Lenders Act, 1940 the Apex Court held that such requirement can be waived.
A Full Bench of the Bombay High Court in Vasant Ambadas Pandit vs Bombay Municipal Corporation and others[xix] while considering a similar provision contained in Section 527 of Bombay Municipal Corporation Act, 1888 held- “The giving of the notice is a condition precedent to the exercise of jurisdiction. But, this being a mere procedural requirement, the same does not go to the root of jurisdiction in a true sense of the term. The same is capable of being waived by the defendants and on such waiver, the Court gets jurisdiction to entertain and try the suit.”
In Amar Nath Dogra vs Union of India[xx], State of Punjab vs Geeta Iron and Brass Works Ltd.[xxi] and Ghanshyam Dass vs Dominion of India[xxii] the Apex Court also held that notice under Section 80 CPC or similar provisions of other Acts are for the benefit of a particular authority. The same can be waived as they do not go to the root of jurisdiction in the true sense of the term. Referring to the aforesaid judgments as well as the Full Bench judgment of Hon’ble Bombay High Court in Vasant Ambadas Pandit (supra), the Apex Court said that there can be no dispute to the proposition that a notice under Section 80 can be waived.
The requirement of Section 80 CPC of giving notice is express, explicit, mandatory and admits of no implications or exceptions, however one must construe Section 80 with some regard to common sense and to the object with which it appears to have been passed. Our laws of procedure are based on the principle that “as far as possible, no proceeding in a court of law should be allowed to be defeated on mere technicalities”.
Considering the objective of such enactment and the fact that party concerned can waive it, the plea of want of notice under Section 80 cannot be taken by a private individual since it is for the benefit of the Government and its officers.
A Division Bench of Hon’ble Bombay High Court in Hirachand Himatlal Marwari vs Kashinath Thakurji Jadhav[xxiii] said in the first place defendant 3 is not the proper party to raise the objection and in the second place the receivers in our opinion must be deemed to have waived their right to notice. It is open to the party protected by S. 80 to waive his rights, and his waiver binds the rest of the parties. But only he can waive notice, and if that is so, it is difficult to see any logical basis for the position that a party who has himself no right to notice can challenge a suit on the ground of want of notice to the only party entitled to receive it. We think therefore that this ground of attack is not open to defendant no.3.
The same view has been taken by Kerala High Court in Kanakku vs Neelacanta[xxiv], holding that the plea of want of notice cannot taken by private individuals. In Ishtiyaq Husain Abbas Husain vs Zafrul Islam Afzal Husain and others[xxv] has also expressed the same view:
“It appears to me that the plea of want of notice is open only to the Government and the officers mentioned in Section 80 and it is not open to a private individual. In this particular case the State Government did not even put in appearance. The notice, therefore, must be deemed to have been waived by it.”
[i] https://www.aaptaxlaw.com/code-of-civil-procedure/section-79-80-code-of-civil-procedure-suits-by-or-against-government-notice-section-79-80-of-cpc-1908-code-of-civil-procedure.html
[ii] State of Kerala vs Union of India, AIR 1951 SC
[iii] HIGH COURT OF ORISSA: CUTTACK, W.P.(C) No.15161 of 2008
[iv] 34 Cal 257
[v] AIR (34) 1949 Madras 214
[vi] (2001) 1 Supreme Court Cases 55
[vii] (Bihari Chowdhary and another Vs. State of Bihar and others 1984 (2) SCC 627; State of Andhra Pradesh and others Vs. Pioneer Builders AIR 2007 SC 113)
[viii] (1900) ILR 24 (Mad.) 271
[ix] (1916) ILR XL (Bom.) 392
[x] AIR 1969 SC 674
[xi] AIR 1978 SC 1608
[xii] AIR 1958 SC 274 (page 281)
[xiii] AIR 1927 PC 176
[xiv] (1844) 13 M&W 361=153 ER 149
[xv] AIR 1943 Bom 138
[xvi] AIR 1955 SC 425
[xvii] 1967 R.D 224
[xviii] AIR 1964 SC 1300
[xix] AIR 1981 Bombay 394
[xx] 1963 (1) SCR 657
[xxi] 1978 (1) SCC 68
[xxii] 1984 (3) SCC 46
[xxiii] AIR (29) 1942 Bombay 339
[xxiv] AIR 1969 (Kerala) 280
[xxv] AIR 1969 Alld. 161