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Report No. 100

2.13. Objects of notice.-

What surprises one is the fact that the Government thinks it proper to resort to such defences, when, by the institution of the suit, the object of giving notice to Government has already been satisfied. The only object of section 80 of the Code of Civil Procedure, 1908 is to give an intimation to the Government of intended litigation, so that Government may consider the position and, if so advised, redress the wrong.1 Once the suit is instituted, this object (of giving an intimation to the Government) is automatically achieved. After this, the Government should consider the legal position, rather than lay stress on the technical non-compliance with the law.

The fact that the section creates a defence does not necessarily mean that the defence must be resorted to, in every case. But it appears that this has been the general approach adopted by the Government. The real object of the section-of giving prior intimation of proposed legal proceedings so that Government (if so advised) may make amendments-is hardly, if every, achieved since the notice, even in those cases where it has, in fact, been given, does not receive prompt attention. In fact, this real object has got obscured and the emphasis has shifted to the negative attitude of using the section only as a shield.

1. See para. 2.14, infra.

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