What steps would you take for filing suit against a public officer or the Government and with what object? How should you execute a decree against a public officer of the Government? Is a public officer exempted from arrest and personal appearance?

Question: What steps would you take for filing suit against a public officer or the Government and with what object? How should you execute a decree against a public officer of the Government? Is a public officer exempted from arrest and personal appearance?

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Answer

As provided under Section 80 of the Code of Civil Procedure, no suits shall be instituted against the Government, including the Government of the State of Jammu and Kashmir, or against a public officer in respect of any by such officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of

1. In the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;
2. In the case of a suit against the Central Government where it relates to the railway, the General Manager of that railway;
3. In the case of a suit against the Government of the State of Jammu and Kashmir the Chief Secretary to that Government or any other officer authorized by that Government on this behalf,
4. In the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district, and in the case of a public officer, delivered to him or left at his office.

In Prem Lata Nahata v. Chandi Prasad Sikaria, the Supreme Court held that in an instinct covered by Section 82(2), it is provided in Section 80(1) that “no suit shall be instituted… substantially indicated“. This is, therefore, a bar to the institution of the suit and that is why courts have taken a view that in a case where a notice under Section 50. C.P.C. is mandatory, if the averments in the plaint indicate the absence of notice, the plaint is liable to be rejected.

Notice to a public officer is necessary when the act complained has been done in his official capacity and not otherwise when it is done in his individual capacity irrespective of good faith or bad faith.

Section 82 of the Code of Civil Procedure, 1908 provides for this situation which states that in a decree passed against the central government or state government or a public officer no execution shall be issued on any such decree unless it remains unsatisfied for a period of three months computed from the date in the decree.

If a suit is instituted against a public officer in respect of any act importing to be done in a public official capacity, the defendant public officer shall not be liable to arrest and if the court is satisfied that the defendant public officer cannot absent himself from his duty without detriment to the public service, it shall exempt him from appearing in person.

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