Suits by or against the Government or Public Officers in their Official Capacity

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

written statement shall be signed by such person as the Government may, by general or special order,

appoint in this behalf, and shall be verified by any person whom the Government may so appoint and who

is acquainted with the facts of the case.

for the Government in respect of any judicial proceeding shall be deemed to be recognised agents by whom

appearances, acts and applications under this Code may be made or done on behalf of the Government.

inserting in the plaint the name and description and place of residence of the plaintiff or defendant, it shall

be sufficient to insert 1[the appropriate name as provided in section 79 3***].

4

agent of the Government for the purpose of receiving processes against the Government issued by such

Court].

Government] to answer to the plaint, shall allow a reasonable time for the necessary communication with

the Government through the proper channel, and for the issue of instructions to the 5[Government pleader]

to appear and answer on behalf of 6[the Government] 7***, and may extend the time at its discretion 8[but

the time so extended shall not exceed two months in the aggregate].

8

instituted against a public officer for damages or other relief in respect of any act alleged to have been

done by him in his official capacity, the Government shall be joined as a party to the suit.

5B. Duty of Court in suits against the Government or a public officer to assist in arriving at a

settlement.—(1) In every suit or proceeding to which the Government, or a public officer acting in his

official capacity, is a party, it shall be the duty of the Court to make, in the first instance, every

endeavour, where it is possible to do so consistently with the nature and circumstances of the case, to

assist the parties in arriving at a settlement in respect of the subject-matter of the suit.

(2) If, in any such suit or proceeding, at any stage, it appears to the court that there is a reasonable

possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it

thinks fit, to enable attempts to be made to effect such a settlement.

(3) The power conferred under sub-rule (2) is in addition to any other power of the Court to adjourn

proceedings.].

Court may also, in any case in which the 5[Government pleader] is not accompanied by any person on the

part of 1[the Government] who may be able to answer any material questions relating to the suit, direct the

attendance of such a person.

1. Subs. by A.O. 1937, for “the Secretary of State for India in Council”.

2. Subs. ibid., for “against the Secretary of State for India in Council”.

3. The words ‘or’ if the suit is against the Secretary of State, the words “the Secretary of State” omitted by the A.O. 1948.

4. Subs. by the A.O. 1937, for rule 4.

5. Subs. by the A.O. 1950, for “Crown pleader” which had been subs. by the A. O. 1937, for “Government pleader”.

6. Subs. by the A.O. 1937, for “the said Secretary of State, for India in Council”.

7. The words “or the Government,” omitted by the A. O. 1948.

8. Ins. by Act 104 of 1976, s. 76 (w.e.f. 1-2-1977).

164

defendant is a public officer and, on receiving the summons, considers it proper to make a reference to the

Government before answering the plaint, he may apply to the Court to grant such extension of the time

fixed in the summons as may be necessary to enable him to make such reference and to receive orders

thereon through the proper channel.

(2) Upon such application the Court shall extend the time for so long as appears to it to be necessary.

(1) Where the Government undertakes the defence of

a suit against a public officer, the 1[Government pleader] upon being furnished with authority to appear

and answer the plaint, shall apply to the court, and upon such application the Court shall cause a note of

his authority to be entered in the register of civil suits.

(2) Where no application under sub-rule (1) is made by the 1[Government pleader] on or before the

day fixed in the notice for the defendant to appear and answer, the case shall proceed as in a suit between

private parties:

Provided that the defendant shall not be liable to arrest, nor his property to attachment, otherwise than

in execution of a decree.

2

security as is mentioned in rules 5 and 6 of Order XLI shall be required from the Government or, where

the Government has undertaken the defence of the suit, from any public officer sued in respect of an act

alleged to be done by him in his official capacity.

,

expressly provided] “Government” and 1[“Government pleader”] mean respectively—

(a) in relation to any suit by or against 4*** the Central Government, or against a public officer in

the service of that Government, the Central Government and such pleader as that Government may

appoint whether generally or specially for the purposes of this order;

5

(c) in relation to any suit by or against State Government or against a public officer in the service

of a State. the State Government and the Government pleader 6[as defined in clause (7) of section 2],

or such other pleader as the State Government may appoint, whether generally or specially, for the

purposes of this Order.].

7

[ORDER XXVII-A]

Suits involving a substantial question of law as to the interpretation for 8[the constitution] 9[or as to the

validity of any statutory instrument]

Court that 10[any such question as is referred to 11[in clause (1) of Article 132, read with Article 147 of the

Constitution,] is involved, the Court shall not proceed to determine that question until after notice has

been given to 12[the Attorney General for India] if the question of law concerns the Central Government

and to the Advocate-General of the State if the question of law concerns a State Government.

9

appears to the Court that any question as to the validity of any statutory instrument, not being a question of

1. Subs. by the A.O. 1937 and the A. O. 1950, for “Crown pleader”.

2. Ins. by the A.O. 1937.

3. Ins. by the A.O. 1950.

4. The words “the Secretary of State or” omitted by the A.O.1948.

5. Cl. (b) omitted by the A.O. 1948.

6. Ins. by the A.O. 1950.

7. Ins. by Act 23 of 1942, s. 2.

8. Subs. by the A.O. 1950, for “the Government of India Act, 1935, or any Order-in-Council made thereunder”.

9. Ins. by Act 104 of 1976, s. 77 (w.e.f. 1-2-1977).

10. Subs. by the A.O. 1948, for “substantial question of law as to the interpretation of the Government of India Act, 1935, or any

Order-in-Council made thereunder”.

11. Subs. by the A.O. 1950, “In sub-section (1) of section 205 of the Government of India Act, 1935”.

12. Subs. ibid., for “the Advocate-General of India”.

165

the nature mentioned in rule l, is involved, the Court shall not proceed to determine that question except

after giving notice—

(a) to the Government pleader, if the question concern the Government, or

(b) to the authority which issued the statutory instrument, if the question concerns an authority

other than Government.]

the Central Government or a State Government shall be added as a defendant in any suit involving 1[any

such question as is referred to 2[in clause (1) of Article 132 read with Article 147, of the Constitution]], if

3

[the Attorney General for India] or the Advocate-General of the State, as the case may be, whether upon

receipt of notice under rule 1, or otherwise, applies for such addition and the Court is satisfied that such

addition is necessary or desirable for the satisfactory determination of the question of law involved.

4

[2A. Power of Court to add Government or other authority as a defendant in a suit relating to the

validity of any statutory instrument.—The Court may, at any stage of the proceedings in any suit involving

any such question as is referred to in rule 1A, order that the Government or other authority shall be added as a

defendant if the Government pleader or the pleader appearing in the case for the authority which issued the

instrument, as the case may be, whether upon receipt of notice under rule lA or otherwise, applies for such

addition, and the Court is satisfied that such addition is necessary or desirable for the satisfactory

determination of the question.]

5

defendant in a suit, the Attorney-General, Advocate-General, or Government Pleader or Government or

other authority shall not be entitled to, or liable for, costs in the Court which ordered the addition unless

the Court, having regard to all the circumstances of the case for any special reason, otherwise orders.]

“defendant” shall be held to include a respondent and the word “suit” an appeal.

4

[Explanation.—In this Order, “statutory instrument” means a rule, notification, bye-law, order,

scheme or form made as specified under any enactment.]