Report No. 54
Chapter 27
Suits by or against Government
Introductory
27.1. Order 27 deals with suits by or against the Government or public officers in their official capacity. Except as provided by special Acts, suits against the Government or public officers may be instituted in any Court, however inferior. But there are certain special provisions applicable to such suits. The procedural provisions in this respect are contained in Order 27.
27.1A. Most of the matters dealt with in the Order relate to minor details such as, signing of pleadings, persons authorised to act, description of the plaintiff or defendant, service of process, fixing a day for appearance, exemption from security and the like. We shall now discuss such of the rules as require amendment.
Order 27, rule 5
27.2. We first take up Order 27, rule 5, which is as follows:-
"5. The Court, in fixing the day for the 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 Government pleader to appear and answer on behalf of the Government, and may extend the time at its discretion."
27.3. In the Report on the Code,1 the question of a time-limit for filing a written statement by the Government was considered. The Fourteenth Report2 had recommended an amendment to give the Government a minimum period of three months for filing a written statement. But it was, in the Report on the Code, considered unnecessary to lay down any such rigid minimum period applicable to all cases.
1. 27th Report, note on Order 27, rule 5.
2. 14th Report, Vol. I.
27.4. We agree that such a long minimum period is not needed. We, on the other hand, think that a period of two months should normally suffice, and in the interest of expedition; we recommend an amendment substituting such fixed period. Government, with its resources, should not find this period too short.
Recommendation
27.5. Accordingly, we recommend that Order 27, rule 5, should be revised as follows:-
"5. The Court, in fixing the day for the 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 Government pleader to appear and answer of behalf Government, and may extend the time at its discretion, but the time so allowed and the time so extended shall not exceed two months in the aggregate".
Order 27A, rule 5B (New)
27.6. It is the unfortunate experience of many judicial officers to deal with litigation between the Government and the citizen which could have been avoided if the Government had been urged to go into the merits, and if positive attempts at a settlement had been made at early stages of the litigation. This, in fact, was one of the objects behind the provision for notice under section 80 of the Code, but the object was seldom achieved.
27.7. In our view, the time has come to insert provisions that would impress upon all concerned the need for such an approach, in litigation in which Government is concerned.
27.8. The Kerala High Court was constrained to make these observations1 -
"The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party. trying to win a case against one of its own citizens by hook or by crook; for, the State's interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or over reach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic success so that if on the merits the case is weak, government shows a willingness to settle the dispute regardless of prestige and other lessor motivations which move private parties to fight in court.
The layout on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic show-downs where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of government some initiative and authority in this behalf."
1. Abubarker v. Union of India, AIR 1972 Ker 103(107), para. 5 (Iyer J.).
27.9. We are of the view that there should be some provision emphasizing the need for positive efforts at settlement, in suits to which the Government is a party.
Recommendation
27.10. With the above end in view, we recommend the insertion of the following rule-
"5B (1) In every suit or proceeding to which the Government is a party or a public officer acting in his official capacity is a party, it shall be the duty of the Court in the first instance, in every case where it is possible to do so consistently with the nature and circumstances of the case, to make every endeavour 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 think fit, to enable attempts to be made to effect such if settlement.
(3) The power conferred by sub-rule (2) is in addition to any other power of the court to adjourn proceedings."
Order 27, rule 5A (New)
27.11. Order 27 deals with suits against the Government and public officers. In the Report of the Law Commission1 dealing with State liability, a recommendation had been made to the effect that when a suit for damages is filed against the Government in respect of any act of its employee, agent or independent contractor, the employees, etc. should be impleaded as a party to the suit. It was also stated, that any claim based on indemnity or contribution by the State may well be settled in such proceedings, as all the parties will be before the court. An amendment of the Civil Procedure Code was recommended on these lines.
1. First Report (Liability of the States in Tort), para. IV (iii).
27.12. The recommendation was not carried out in the Report of the Commission on the Code2, (27th Report), as it was felt that a mandatory provision of the nature suggested was not needed.
27.13. We agree with the view taken in the 27th Report, as a mandatory provision of the nature suggested in the 14th Report will unnecessarily cause inconvenience to individual officers. But, we would like to make a provision for the converse situation, namely, where a suit is filed against the employee for official acts. In such cases, the Government should, we think, be made a party, so that the question of State liability is decided in that very suit. Here, a mandatory provision would not cause hardship to individual officers.
Recommendation
27.14. The following rule is, therefore, recommended:-
"5A. Where a suit is instituted against a public officer for damages or other relief in respect of any act, alleged to be done by him in his official capacity, the Government shall be joined as a party to the suit."
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