INTRODUCTION
The Code of Civil Procedure, 1908[1] (hereinafter, referred to as the CPC) is an adjective law dealing with the procedure required to be followed in Courts in civil matters. The procedure followed for the institution, and the subsequent process related thereto, of suits differ in the CPC depending upon their nature, which can primarily be divided into two categories, 1) suits in general cases 2) suits in special cases.[2] The aforementioned entails that the procedure prescribed for special suits in the CPC differs from the one prescribed for general cases. Suits by or against the Government are a type of special suit and a rather controversial one at that. Many members from the legal fraternity believe government suits ought not to be given any differential treatment than ordinary suits.
SECTION 80
Insofar as suits by or against the Government is concerned, Sections 79 to 82 provide for the general principles concerning suits involving a Governmental Authority and Order 27 of the CPC deals with the procedure to implement the said Sections.[3]
As stated before, suits involving government are special cases and not, therefore, the procedure followed is different from what is followed in ordinary civil cases. An example of this is Section 80 of the CPC[4], which mandates the party filing a suit against the government to deliver a notice maintaining the plaintiff’s intention two months before the institution of the suit. In ordinary suits, notice need not be given to the defendant by the plaintiff before the filing of the suit.[5]
As per Section 80(1), a notice in writing is required to be delivered or left at the respective government office two months before the institution of the suit.[6] The legislative intent behind this special provision is that public money should not be wasted on unnecessary litigation.[7] We all know that taxation is one of the primary sources of the income of the Government which it then uses to promote public welfare and run the administration. Any expenditure of this money where the same could have been prevented would be detrimental to the nation as a whole. Therefore delivery of a notice maintaining the plaintiff’s intention two months before the filing of the suit will help the government examine the legal position and make an attempt at resolving the matter without having to approach the court of law.
The Supreme Court in the case of State of Madras v C.P. Agencies[8] observed that “the section has been intended to alert the government or a public officer to negotiate just claims and to settle them if well-founded without adopting an unreasonable attitude by inflicting wasteful expenditure on the public exchequer.”
We must keep in mind that Section 80(1) uses the term “shall” making thereby the delivering a notice mandatory under the impugned provision. The Supreme Court has in many cases pointed at the obligatory nature of section 80(1). In the case of State of AP v. Gundugola Venkata,[9] the Court observed that “the section is imperative and must undoubtedly be strictly construed; failure to serve a notice complying with the requirements of the statute will entail dismissal of the suit.”
THE DRAWBACKS
Section 80, in its original composition, consisted only of Sub-Section 1 that is mandatory, express and explicit. Owing to this many people were aggrieved as there were times when a person required immediate or urgent relief but owing to the provision for two months’ notice, grace injustices were caused to them. Further, Section 80 necessitated that a notice under this provision must contain a) the cause of action, b) the name, description and place of residence of the person giving notice, c) relief claimed by him.[10] Now due to this provision, any mistake in fulfilling the aforesaid in the strictest sense, went against the aggrieved parties as the same was used in many cases by the Government as a “technical defect” defence”[11]
THE 1976 AMENDMENT
The Law commission brought out the aforementioned fallacies in its fourteenth report in 1958.
The stated loopholes were tried to be filled via the Code of Civil Procedure (Amendment) Act, 1976, which introduced sub-section 2, which is in the nature of an exception to Section 80(1); and sub-section 3 were inserted in Section 80. Section 80(2) enabled the plaintiff, in case an urgent and immediate relief was needed, to file a suit without serving any notice as required under Sub-section (1). Where the Court is satisfied that an urgent or immediate relief is required and the plaintiff would not be in a position to wait for the period of notice to expire, it may grant him leave to file a suit without prescribing to Section 80(1).[12]
The introduction of Sub-Section 3, on the other hand, helped prevent the dismissal of a suit merely because of a technical defect. It did away with the requirement of providing the details mentioned in section 80(1) in a strict sense and stated that merely because of the presence of some error or defect in the notice regarding name, residence, cause of action of relief.
ANALYSIS
While the 1976 amendments have succeeded to an extent in alleviating the setbacks caused as a result of Section 80(1), the impugned provision continues to be cumbersome and provides a distasteful benefit to the Government. A careful perusal of Section 80(2), which provides an exception against the stringent two-month notice provision, indicates that the respite could only be provided with the leave of the court. The most important condition under Section 80(2) relates to the urgency of the matter and while examining the same, if the Court is of the view that the particular matter does not require granting of immediate or urgent relief, then the court will return it for presentation after complying with the requirement of service of notice under Section 80(1).[13]
Further, as per the fourteenth report of the Law Commission, there have been shreds of evidence indicating that the opportunity provided to the Government under section 80(1) is seldom brought to use and, therefore, the two-month notice provision does not really serve its purpose.[14] Further, emphasising upon the removal of this section, the Commission stated that no such parallel provision exists in any other Anglo-Saxon system of law.[15]
CONCLUSION
It must be taken into account that the procedures enshrined under the CPC are nothing but the handmaid of justice;[16] and if any injustice were to be caused due to one’s failure to follow a procedure in its strictest sense, then it would be against the very purpose of the creation of the judiciary, i.e. administration of justice.
While these protections give the government an opportunity to save the Court’s time and also prevents wastage of money from the public exchequer to a certain extent, we cannot ignore the hardships it brings on the individuals. Therefore, in my opinion, the debate should not be on the retention or for that matter on the removal of the said provision, rather it must be on the advocacy of a reasonable amendment to Section 80 that could successfully provide for a middle ground. Giving the Courts the discretion to determine whether notice needs to be served or not on a case to case basis could be one such reasonable amendment.
Author(s) Name: Sakshi Srivastav (Rajiv Gandhi National University of Law, Punjab)
References:
[1] Code of Civil Procedure, 1908, No. 5, Acts of Imperial Legislative Council, 1908 (India).
[2] C.K. TAKWANI, CIVIL PROCEDURE WITH LIMITATION ACT, 1963 426 (Eastern Book Company, 7th ed. 2016) (1983).
[3] Id.
[4] Code of Civil Procedure, 1908, § 80.
[5] Supra note 4.
[6] Code of Civil Procedure, 1908, § 80(1).
[7] C.K. TAKWANI, CIVIL PROCEDURE WITH LIMITATION ACT, 1963 427 (Eastern Book Company, 7th ed. 2016) (1983).
[8] State of Madras v. C.P. Agencies, AIR 1960 SC 1309.
[9] State of AP v. Gundugola Venkata, AIR 1965, SC 11.
[10] Supra note 11.
[11] Law Commission, Report Reforms of the judicial administration, (Law Commission Report 14, 1958) pp. 475-76.
[12] Code of Civil Procedure, 1908, § 80(2).
[13] Code of Civil Procedure, 1908, § 80(2). Proviso.
[14] Id.
[15] Law Commission, Report Code of Civil Procedure, 1908, ( Law Commission Report 27, 1994) pp. 21-22.
[16] C.K. TAKWANI, CIVIL PROCEDURE WITH LIMITATION ACT, 1963 433 (Eastern Book Company, 7th ed. 2016) (1983).
