Report No. 100
2.12. Attitude of Government officers.-
It is not our intention to present here anything like a digest of recent cases on section 80 of the Code of Civil Procedure. Nor is it necessary to do so. The illustrative cases, taken above from the law reports, give a fairly accurate idea of the general approach. There must be many other cases wherein similar objections might have been taken, successfully or otherwise. The general approach on the part of Government in regard to the process of litigation seems to be this:
"If there exists, on the statute book, a provision whereunder a defence about non-maintainability of the suit can be conceivably taken, then take it, whether or not the facts of the case substantiate the defence, and whether or not the justice of the case demands that the defence should be resorted to." One cannot perhaps blame the officers of Government for raising such defences, because they might be labouring under the impression that if they do not take every conceivable defence, they might be regarded as "negligent" in the discharge of their official duties. What needs to be pointed out is that the existence of a provision of the nature contained in section 80 gives rise to the urge to resort to such defences in almost every case. The case law summarised above shows that the amendment made in 1976 has not made any improvement in this regard.