SINTERPLEADER SUIT AND SUITS AGAINST GOVERNMENT

(PROJECT)

SUBMITTED BY: SUBMITTED TO:

Hritik Gupta Mrs. Deepika mam

Roll No.: 13307 professor

VIIth Semester

B.A.LL.B. (Hons

RAYAT COLLEGE OF LAW, ROPAR

Semester (August 2018 – November 2018)

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 ACKNOWLEDGEMENT
Upon the completion of this project, we would like to acknowledge the help rendered by various
people. Without them, it would have been extremely difficult for us to bring this endeavor to a
meaningful end.

First and the foremost, we would like to express our overwhelming gratitude to our teacher, Mrs.
Deepika mam, Faculty of CPC for his constant support and incessant encouragement throughout
the course of this project.

We would also like to show our gratitude and respect to each other. Without our co-operation,
the project could not have been in its present state.

Hritik Gupta

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 DECLARATION

I hereby declare that the project work entitled “Interpleader suit and Suits by or
against Government or Public Officer” submitted to the Rayat college of Law, is a
record of an original work done by me under the guidance of Mrs. Deepika mam,
professor of CPC, and this project work is submitted in the partial fulfilment of the
requirements for the award of the degree of law. The results embodied in this thesis
have not been submitted to any other University or Institute for the award of any
degree or diploma.

(SIGNATURE)

Date: 3 November 2018

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 Contents
INTRODUCTION .....................................................................................................5
GENERAL CONCEPT OF SUIT ..............................................................................6
WHERE INTERPLEADER SUIT MAY BE INSTITUTED ....................................8
PLAINT IN THE INTERPLEADER SUIT.............................................................11
PAYMENT OF THING CLAIMED IN THE COURT ...........................................12
PROCEDURE WHERE DEFENDANT IS SUING PLAINTIFF. .........................13
PROCEDURE AT FIRST HEARING. ...................................................................14
AGENTS AND TENANTS MAY NOT INSTITUTE INTERPLEADER
SUIT……………………………………………………………………………....16
ABSTRACT OF SECTION 79 & 80………………..…………………………....19

INTRODUCTION…………………………………………………………….......19

ANALYSIS……………………………………………………………………….20

Notice under Section 80 of Civil Procedure Code, 1909

Technical defect or error in notice: Section 80(3)

Exemption from arrest and personal appearance (Section 81)

Execution of decree (Section 82)

Procedure: Rule 27

CONCLUSION………………………………………………………………….24
BIBLIOGRAPHY……………………………………………………………….25
WEBLIOGRAPHY……………………………………………………………………………………………….25

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 INTRODUCTION

An interpleader suit is one in which the real dispute is between the defendants only and the
defendants interplead, that is to say plead against each other instead of pleading against the
plaintiff as in ordinary suit. In every interpleader suit, there must be some debt or sum of money
or other property in dispute between the defendants only, and the plaintiffs must be a person who
claims no interest therein other than for charges or costs and who is ready to pay or deliver it to
such of the defendants as may be declared by the court to be entitled to it.

Who claims no interest other than for charges or costs? These words indicate that the plaintiff in
an interpleader suit must be in a real position of impartiality. 1 A railway company which claims
no interest in goods in its possession other than a lien on the goods for warfare, demurrage and
freight, may institute an interpleader suit where the goods are claimed by two persons adversely
to each other.2

A hold in his hands a sum of Rs. 5,000 which is claimed by B and C adversely to each other. A
institutes an interpleader suit against B and C. It is found at the hearing that A had entered into
an agreement with B before the institution of the suit that if B succeeded in the suit he should
accept from A Rs. 4,000 only in full satisfaction of his claim. Here A has, by virtue of the
agreement, an interest in the subject matter of the suit, and he is not, therefore, entitled to
institute an interpleader suit. The suit must be dismissed.3

A party who has taken an indemnity from one of the claimants is not entitled to file an
interpleader suit.4 A suit is not necessarily an interpleader suit and subject to the provisions of
this section, merely because one of the reliefs claimed by the plaintiff requires the defendants to
interplead together concerning certain claims. The court must have regard to all the prayers of
the plaint to determine the exact nature of the suit.5 A plaint in an interpleader suit can be
amended by inclusion of new properties and joinder of new parties.6

1
Sambiah v SubbaReddiar (1951) 1 MLJ353.
2
Bombay Baroda Rly.co. v Sasoon (1894) 18 Bom 231.
3
Murrietta v South America Co. (1893) 62 LJQB 396.
4
HariKarmakar v Robin AIR 1927 Rang 91
5
Juggannath v Tulkakera (1908) 32Bom 592.
6
Raja BhagwatiBaksh Singh v Civil Judge AIR 1961 All 599.

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 GENERAL CONCEPT OF SUIT

The term suit is not defined under the in the C.P.C. but by various decisions it can be said that
“Suit ordinarily means a civil proceeding instituted by presentation of a plaint. Civil suit is the
institution of litigation for enforcement of civil rights (or substantive rights, it may be against
state or individual). A suit is resulted into decree. Without suit, there cannot be a decree.

There are four essentials of a suit7

1. Name of Parties (there must be two opposing parties) - In a suit there must be at least
two parties the plaintiff & the defendant.

2. Cause of Actions – it is a set of facts or circumstances that a plaintiff is required to

prove. The cause or the set of events or circumstances which leads or resulted into
presentation of a plaint or filing a suit. – lay man language

Legally – The cause of action means every fact which is necessary for the plaintiff(s) to
be proved with a view to obtain a decree in his favor.

3. Subject matter – there must be a subject matter (with what respect or aspect civil dispute
is).

Section-9. Courts to try all civil suits unless barred. The Courts shall (subject to the
provisions herein contained) have jurisdiction to try all suits of a civil nature excepting
suits of which their cognizance is either expressly or impliedly barred.

4. Relief claimed by the plaintiff – no court will give relief unless relief is specifically
claimed by the party

Relief is of two types-

1) specific relief and.

2) alternative relief.

7
P.M.Bakshi, Supplement to Mulla’s Code of Civil Procedure (14th ed., Bombay: N.M.Tripati Private Limited, 1992).

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Jurisdiction
Jurisdiction means the extent of power of a court to entertain suits and applications. It signifies
the power, authority, competency of the court to adjudicate the disputes presented before it.

1. Territorial Jurisdiction - Every court has fixed geographical boundaries

2. Pecuniary Jurisdiction -refers to the value of cases that can be presented before for
adjudication
3. Jurisdiction relating to subject matter - It is power and authority of a court to try a
particular type of suit
4. Original Jurisdiction – Exercise of the original jurisdiction, court tries original suits
instituted.
5. Appellate Jurisdiction – In exercise of the appellate jurisdiction, the court hears appeals
from decree and order passed by subordinate courts.

Note :- Certain courts which only have original jurisdiction but some have original and appellate
jurisdiction both.

Section 10. Stay of suit- No Court shall proceed with the trial of any suit in which the matter in
issue is also directly and substantially in issue in a previously instituted suit between the same
parties, or between parties under whom they or any of them claim litigating under the same title
where such suit is pending in the same or any other Court in India having jurisdiction to grant the
relief claimed, or in any Court beyond the limits of India established or continued by the Central
Government and having like jurisdiction, or before the Supreme Court.8

Section 11.Res judicata. No Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former suit between the
same parties, or between parties under whom they or any of them claim, litigating under the
same title, in a Court competent to try such subsequent suit or the suit in which such issue has
been subsequently raised, and has been heard and finally decided by such Court

8
T.L.Venkatarama Ayiar, Mulla on The Code of Civil Procedure (13th ed., Bombay: N.M.Tripathi Private Limited,
1967).

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 WHERE INTERPLEADER SUIT MAY BE INSTITUTED

SECTION-88 :Where two or more persons claim adversely to one another the same debt, sum
of money or other property, movable or immovable, from another person, who claims no interest
therein other than for charges or costs and who is ready to pay or deliver it to the rightful
claimant, such other person may institute a suit of interpleader against all the claimants for the
purpose of obtaining a decision as to the person to whom the payment or delivery shall be made
and of obtaining indemnity for himself:

Provided that where any suit is pending in which the rights of all parties can properly be decided,
no such suit of interpleader shall be instituted.

"To interplead" means "to litigate with each other to settle a point concerning a third party." 9
An interpleader suit is a proceeding by which a person from whom some persons are claiming
same property, debt or money and who does not himself claim such property debt or money and
neither dispute such debt, such person can file a suit claiming that he is ready to pay or deliver
the said property or money to rightful claimant and can protect himself from legal proceedings.
Meaning thereby, an 'interpleader suit' is a suit in which the real dispute is between the
defendants only.

Conditions to Institute Interpleader Suit

Following conditions must be satisfied to institute an interpleader suit:

(a) there must be some debt, sum of money or other property movable or immovable in dispute;

(b) two or more persons must be claiming it adversely to one another;

(c) the person from whom such debt, money or property is claimed, must not be claiming any
interest therein other than the charges and costs and he must be ready to pay or deliver it to
rightful claimant; and

(d) there must be no suit pending in which the rights of the rival claimants can be properly
decided.

SCOPE AND APPLICABILITY OF THE SECTION

Where X is under a liability for any debt, sum of money, or other property, claimed adversely by
A or B or more, and he desires protection against a wrong payment or delivery, he can file a suit
under this section. The only way, in fact, in which he can protect himself, is by filing such a suit;

9
T.L.VenkataramaAyiar, Mulla on The Code of Civil Procedure (13th ed., Bombay: N.M.Tripathi Private Limited,
1967).

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otherwise if he litigated with the claimant separately, he would have to pay the costs of the
successful claimant. It is necessary that the liability to someone must be admitted and there must
be no collusion and no interest in the subject matter other than for charges or costs.10

Each of the defendants so interpleading is virtually in the position of a plaintiff and his claim will
be governed by the rules of the Limitation Act.11 A reading of S. 88, Civil P. C., would clearly
show that the court does not have jurisdiction to travel beyond what has been admitted by the
plaintiff as due from him/her or it.

In order to determine whether a suit is an interpleader suit under the section the Court
must have regard to all the prayers in the plaint. The mere fact that the plaintiff requires the
defendants to interplead as regards one of the reliefs claimed would not necessarily make it
an interpleader suit.12

Claims must be bona fide and adverse to one another.

The claims of the defendants must be bona fide ones, though they need not have a
common origin. The Court must be satisfied that there is a real question to be tried. A
mere pretext of conflicting claims is not sufficient. Where there was no claim or counter
claim between the parties, the provisions of S. 88 would not apply.13 The defendants must
also claim the money or property adversely to one another from the plaintiff.14 A decision
given on the claims of the co-defendants in an interpleader suit will operate as res-judicata
between them.15 It is, however, not necessary that the plaintiff must show the existence of
an apparent title in each of the defendants claiming the property in dispute. Nor is it
necessary that the claims should be legal claims or rights. Equitable claims and rights can be
entertained and given effect to.

Claims must be with reference to the same subject-matter.

The rival claims must be with reference to the same debt, sum of money, or other
property, but not necessarily to the same extent. It is thus not necessary that each of
the defendants should claim the whole of the subject-matter of the suit. Similarly, it is not
necessary that the plaintiff should admit the claim as made by the rival claimants in its
entirety. He may ask them to interplead to the extent he admits liability.16

11
AIR 1925 Mad 497 (562) (DB).
12
(l908)32 Bom 592 (597) (DB).
13
(1992) 1 Pat LJR 365 (372).
14
AIR 1922 Cal 138 (139) (DB).
15
AIR 1928 Oudh 1:55 (179)
16
AIR 1966 AndhPra 92 (95).

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Order 6, R. 17 applies to an interpleader suit and if it appears from the pleadings that
there is some further property besides the subject-matter of the interpleader suit which is part
of the estate but has somehow been omitted from it, it can be brought within the suit by way of
amendment of the plaint. This section does not prevent such a procedure being adopted.17

Plaintiff should claim no interest in the subject-matter.

The plaintiff must be in an impartial position18. If he has, in some way, identified himself with
one of the parties, in the sense that it will make a difference to him which of the two
succeeds, an interpleader suit will not lie.19 Thus, a person who has taken an indemnity
from one of the claimants, cannot file a suit under this section, though he will not be
refused relief, if he has merely a natural affinity for one side rather than the other. A right of lien.
e.g., for wharfage, demurrage or freight, is not an interest in the property for the
purposes of this section.20

17
AIR 1961 ALL 559 (561).
18
T.L.VenkataramaAyiar, Mulla on The Code of Civil Procedure (13th ed., Bombay: N.M.Tripathi Private Limited,
1967).
19
AIR 1952 Mad 564 (564).
20
(1894) 18 Bom 231 (234,235).

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 PLAINT IN THE INTERPLEADER SUIT

R. 1. In every suit of interpleader, the plaint shall, in addition the other statements necessary for
plaints, state-

(a) that the plaintiff claims no interest in the subject-matter in dispute other than for charges or
costs;

(b) the claims made by the defendants severally; and

(c) that there is no collusion between the plaintiff and any of the defendants.

The conditions necessary for the institution and maintainability of the interpleader suit are;

(1) some debt or money or other property, movable or immovable, is due from the plaintiff,

(2) Two or more persons bona fide claim the same from the plaintiff

(3) Plaintiff should not have any interest therein other than for charges or costs,

(4) He must be prepared to pay or deliver the same to the rightful claimant

(5) The suit must be instituted bona fide without any collusion for a decree as to the rightful
claimant and for obtaining indemnity for himself.

If the amount paid by the plaintiff is less than claimed by the defendants it can’t be said that the
plaintiff claimed an interest in the subject-matter in dispute. An interpleader suit will, therefore,
be maintainable.21 In an interpleader suit it is not open for the Court with limited jurisdiction to
direct the payment to the other party and that such payment is permissible provided the disputing
party establishes the claim in Civil Court. If the plaintiff claims any interest in the concerned
property the interpleader suit has to fail. Therefore, the Court does not have jurisdiction to travel
beyond what-has been admitted by the plaintiff and direct further payment or investigation into
any question relating to the transaction alleged between the parties.22 Tenant cannot file
interpleader suit against his landlord.23

21
AIR 1966 AndhPra 92 (94,96).

22
(2000) 3 Mad LJ 428 (429).
23
AIR 2005 (NOC) 412: 2005 (32) All Ind Case 681 (Raj).

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 PAYMENT OF THING CLAIMED IN THE COURT

R.2. Where the thing claimed is capable of being paid into Court or placed in the custody of the
Court, the plaintiff may be required to so pay or place it before he can be entitled to any order in
the suit.

''May be required to so pay or place it."

Where the subject-matter of the dispute is a chose in action its disposition as the Court
may direct is a sufficient compliance with the rule. The Court has a discretion to make
such orders as regards the subject-matter in dispute and the party is bound to obey the order
before he can ask for any relief in the suit. This is a further condition that will be imposed
upon the party to test his bona fides or disinterestedness. If he is not ready to payor deliver
the property to one of the defendants but disputes his title, the suit is not an interpleader
suit.24 But if the plaintiff complies with the order of the Court he is fully discharged from
liability. Thus, where the plaintiff pays the amount in dispute into-Court for payment to the
right person, but the Court pays it to the wrong person the plaintiff cannot be made respon-
sible for the mistake of the Court but is fully discharged from liability.25

In interpleader suit it is not open for the Court with limited jurisdiction to direct that the
amount deposited should be paid over to one or the other party as such payment is permis-
sible provided the disputing party establishes the claim in Civil Court.

Payment to one of the contestants on security.

The money paid into Court cannot be handed over to one of the parties pending the suit
even on security after the original plaintiff is discharged and one of the rival defendants to
the interpleader suit is made a plaintiff. It must be kept under the control of the Court
available for payment at any time to the successful party.

24
AIR 1978 Pat 151 (151) (DB)
25
Ssection 88, Code of Civil Procedure,1908.

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 PROCEDURE WHERE DEFENDANT IS SUING
PLAINTIFF.

R. 3. Where any of the defendants in an interpleader-suit is actually suing the plaintiff in respect
of the subject-matter of suchsuit, the Court in which the suit against the plaintiff is pending shall,
on being informed by the Court in which the interpleader-suit has been instituted, stay the
proceedings as against him; and his costs in the suit so stayed may be provided for in such suit;
but if, and in so far as, they are not provided for in that suit, they may be added to his costs
incurred in the interpleader-suit.

Legislative changes.

Under the old Code proceedings in another suit by the defendant against the plaintiff
could be stayed only after a decree in the interpleader suit. Under the present rule, such
proceedings can be stayed even on the institution of the interpleader suit.

Scope.

Before passing an order of stay under O. 35, R. 3, the Court has to consider the
applicability or otherwise of the bar contained in O. 35, R. 5. And O. 35, R. 3 In other words, the
information must come only through Court and none else. O. 35, R. 3 is not applicable to the
proceedings before Rent Controller as the said proceedings are not proceedings in a suit. But
where ejectment was sought against petitioner tenant of Joint Hindu Family firm by two sets of
persons one being sons of landlord to whom the petitioner paid rent and another being purchasers
who claimed to have purchased property from widow of thekarta, interpleader suit at the instance
of tenant petitioner was maintainable and was obligatory on the Court to stay the ejectment
proceedings by the filing of the interpleader suit.26

Where in an interpleader suit the original plaintiffs are not claiming any title to the
property and in fact the dispute is between the rival defendants, the rights of tenant would
be safeguarded by holding that he would go on depositing the rent in the Court, till decision
of the suit. An appeal lies from an order under this rule. (O. 43, R. 1 (p).)

26
(1988) 94 Pun LR 148 (150).

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 PROCEDURE AT FIRST HEARING.

R. 4. (1) At the first hearing the Court may-

(a) declare that the plaintiff is discharged from all liability to the defendants in respect of
thething claimed, award him his costs, and dismiss him from the suit; or

(b) if it thinks that justice or convenience so require, retain all parties until the final disposal of
the suit.

(2) Where the Court finds that the admissions of the parties or other evidence enable it to do so,
it may adjudicate the title to the thing claimed.

(3) Where the admissions of the parties do not enable the Court so to adjudicate, it may direct-

(a) that an issue or issues between the parties be framed and tried, and

(b)that any claimant be made a plaintiff in lieu of or in addition to the original

plaintiff, and shall proceed to try the suitin the ordinary manner

First hearing.

The expression "first hearing" in this rule means the date on which the Court goes into the
pleadings in order to understand the contentions of the parties. Hence, the plaintiff in an
interpleader suit is entitled to apply to the' Court, as soon as the pleadings have been completed,
for being discharged from the suit.27

Clause (a) of R. 4 (1) of O. 35 provides for substantive relief of a declaration by the Court as to
the discharge of the plaintiff from all liability to the defendants. Such a declaration prevents a
loss. It prevents a liability being fastened upon the plaintiff.28

It is only in cases where the amount is not in dispute and where plaintiff pays into Court the
entire amount that the court may declare that the plaintiff is discharged from all liability. Where
the amount is in dispute, the Court may declare that the plaintiff is dis- charged from liability
only to the extent of the amount admitted and leave parties to settle their disputes for the balance
otherwise or in other proceedings.29In an interpleader suit which was not properly instituted or
which was instituted malafide or with ulterior motive the discretion of the Court in awarding
costs as against the plaintiff is not in any way taken away.

27
AIR 1938 Cal287 (290).
28
(1977) 79 Bom LR 184 (187, 188).
29
AIR 1966 AndhPra 92 (96).

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Where order was passed granting permission to open sealed cover in presence of advocate of
both parties and opening of packet was considered to be essential in interest of both the parties
and defendant also reported no objection if Court permitted the same, objection for opening of
sealed cover by defendant at stage of recording evidence on ground that Court had not adopted
proper procedure under O. 35, R. 4 cannot be allowed.30

Non-appearance of claimants.

On the non-appearance of claimants in a properly instituted interpleader suit the proper

course for the Court is laid down under sub-rule (1). It is competent to the Court-

(1) to discharge the plaintifffrom all liability to the claimants-defendants in respect of the
subject-matter in dispute and dismiss him from the suit,

(2) to direct the plaintiff to pay the amount into Court to the credit of the proper claimant after
deducting his costs.

(3) to direct the claimants-defendants to apply for payment and when they appear make one of
them a plaintiff and raise an issue, and

(4) to restrain by injunction either defendant in a proper case from taking any proceeding against
the plaintiff.31

30
AIR 2004 AP 165 (167).

31
AIR 1919 Bom 15 (16).

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 AGENTS AND TENANTS MAY NOT INSTITUTE
INTERPLEADER SUIT.

R. 5. Nothing in this Order shall be deemed to enable agents to sue their principals, or tenants to
sue their landlords, for the purpose of compelling them to interplead with any persons other than
persons making claim through such principals or landlords.

Illustrations

(a) A deposits a box of jewels with B as his agent. C alleges that the jewels were wrongfully
obtained from him by A, and claims them from B. B cannot institute an interpleader-suit against
A and C.

(b) A deposits a box of jewels with B as his agent. He then writes to C for the purpose of making
the jewels a security for a debt due from himself to C. A afterwards alleges that C's debt is
satisfied, and C alleges the contrary. Both claim the jewels from B, B may institute an
interpleader suit against A and C.

Interpleader suits by agents.

This rule declares a prohibition and its concluding part provides an exception. The
reason for the rule seems to be that an agent cannot ordinarily dispute the title of his principal. In
illustration (a) C claims adversely to A but not through A, whereas in Illustration (b) C claims
through C In order to bring the case within the rule it has to be shown that the plaintiff is
agent of the defendant and has instituted the suit for the purpose of compelling the defendant
to interplead with persons other than persons making claim through him. within the prohibition
enacted in R.5.32As to the definitions of agent and principal, see Section 182 of the Contract Act.
The relationship between a bank and a customer depositing money in the savings bank account is
that of debtor and creditor and not that of agent and principal. Hence, on a dispute as to the
ownership of the deposit arising between the customer and a third person, the interpleader suit
filed by the Bank would not come within the prohibition of this rule.33

Interpleader suits by railway company.

A railway company by accepting goods for carriage does not become the agent of the consignor.
It merely enters into an independent contract with the consignor. It can therefore file an
interpleader suit against the consignor and another party claiming adversely to the consignor.34

32
AIR 1954 Punj 103 (104) (DB).
33
AIR 1957 Mad 745 (748, 749).
34
AIR 1915 Born 28 (28) (DB).

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Interpleader suits by tenants.

The prohibition that a tenant cannot file an interpleader proceeding against his landlord is based
on the principle that he cannot dispute the title of his landlord during the subsistence of the
tenancy.35 A tenant cannot therefore bring a suit against his landlord for the purpose of
compelling him to interplead with any person other than a person making claim through such
landlord.36 Thus, where a tenant passed two kabuliats in favour of two persons in respect of the
same land and then, being threatened by suits by both of them, instituted a suit praying "that the
Court may be pleased to declare which defendant has what right in which of the disputed lands,
and in what right the plaintiff holds which of the said lands and under whom", it was held by the
High Court of Calcutta that the suit was not maintainable.37

But the doctrine of estoppel between the lessor and the lessee does not apply to disentitle a lessee
to dispute the derivative title of one who claims to have since become entitled to the reversion.
Thus, an interpleader suit by a lessee against the assignees of the lessor and the Government in
whom the leased estate vested for determining whether the rents and royalties held in deposit are
payable to which of the defendants is maintainable.

The tenant feeling any difficulty in payment of rent can invoke provisions of Order 35 and can
file an interpleader suit and can make submission in the same that two persons are treating
themselves as landlords and Court should admit that he is a tenant and he should deposit the rent
and the Court will decide who is the landlord.

Where on death of landlady, the tenant instituted an interpleader suit for determining as to which
heir of landlady she should pay the rent, and she started paying rent to one of the two alleged
heirs. However, other heir never claimed himself to be landlord qua the plaintiff tenant. Hence,
interpleader suit by tenant denying title of her landlord was not maintain-able.

Where A leases certain lands to B and on A's death two persons claim rent from B, namely A's
heir and a person who alleges that A was only a benamidar for X whose heir he is, it has been
held that the latter must be regarded as claiming through A and that therefore: B can file an
interpleader suit compelling the two claimants to interplead with each other.

Where a mortgagee does not deny an assignment his rights under the bond to X but only
contends that it is avoidable one, the mortgagor may treat the assignee as entitled to the money
and is not bound to bring an Interpleader suit compelling the mortgagee and X to interplead with
each other.38

35
AIR 1940 Bom414 (415) (DB).
36
AIR 1941 Cal512 (515).
37
(1910) 37 Cal552 (557) (DB)
38
AIR 1914 Mad 624 (628) (DB).

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Charge for plaintiff's costs.

R. 6. Where the suit is properly instituted the Court may provide for the costs of the
original plaintiff by giving him a charge on the thing claimed or in some other
effectual way.
Scope of the rule.

This rule provides for the award of costs to the original plaintiff. Such costs when awarded will
be deducted from the fund on its being brought to Court or will be a first charge upon the fund or
subject-matter.39 Thus in an interpleader suit which is not properly instituted or which was
instituted mala fide or with ulterior motive the discretion of the Court in awarding costs as
against the plaintiff is not in any way taken away.

But the plaintiff will not be entitled to costs which have been unnecessarily incurred.
Appeal. An appeal lies from an order under this rule.(0.43, R.1, Cl.(p).)

39
(1893) 18 Born 231 (236).

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ABSTRACT OF SECTION 79 AND 80

Sections 79-82 of the CPC provide for the procedure to institute a suit against the government or
against a public officer in respect of any act purporting to be done by such public officer in his
official capacity until the expiration of two months. The object of the sections is to give
Secretary of State or the public officer an opportunity to reconsider his legal position and to
make amends or afford restitution without recourse to a court of law.40 These sections have been
enacted as a measure of public policy and the underlying purpose is the advancement of justice
and securing of public good by avoidance of unnecessary litigation.41 Further, their intention has
been to alert the Government or a public officer to negotiate just claims and to settle them if
well-founded without adopting an unreasonable attitude by inflicting wasteful expenditure on the
public exchequer.42Thus, the main purpose of the sections is the advancement of justice and the
securing of public good by avoidance of unnecessary litigation. Therefore, this project analyses
the position of these sections as they stand today and their applicability.

INTRODUCTION
Section 79 to 82 and Order 27 of the Civil Procedure Code, 1908 lay down procedure where suits
are brought by or against the Government or Public officers. The provisions provides for the
procedure only not about rights and liabilities. Substantive right has to be find accordance with
the provisions of the Constitution.43 These provisions give no cause of action but only declare the
mode of procedure when a cause of action has arisen.44 Under Civil Procedure Code, 1908
Section deal with provisions of a substantive nature and lays down general principles and Orders
deals with procedure, manner and mode in which general principle can be exercised. Similarly
Section 79 to 82 provides for the general principles and Order 27 prescribe the procedure in
which general rules provided under Section 79 to 82 can be exercised.

40
Ghanshyam Das v. Union of India, (1984) 3 SCC Del 298.
41
Mulla on the Code of Civil Procedure, J.M. Shelat, 18th edn., LexisNexis Butterworths
42
State of Punjab v. Geeta Iron & Brass Works Ltd., (1978) 1 SCC 68.
43
Bagchand v. Secy. Of State, AIR 1927 PC 176; Sawai Singhai Nirmal Chand v. Union of India, AIR 1966 SC
1068 at pp. 1071-72
44
Jehangir v. Secretary of State, (1903) ILR 27 Bom 189.

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ANALYSIS
Name of party in Suit:-

Section 79 of the Code provides that in a suit by or against the Government the authority to be
named as Plaintiff & Defendant in case of (i) Central govt. Union of India & (ii) State
Government the State.

Section 79 being a procedural provision, substantial compliance with the requirements thereof is
Sufficient.45 The Supreme Court declared that procedural law clearly specifies the situation in
which Government is required to be made a party and the law to this regard is settled that if the
Government is not made a party, the litigation cannot be proceeded.46

In Chief Conservator of Forests, Government of A.P. v. Collector47 Supreme Court has observed
that the requirement of provision contained in Section 79 CPC is not merely a procedural
formality, but is essentially a matter of substance and of considerable significance whereby the
special provision as to how the Central Government or the State Government may sue or be sued
has been indicated, the authority to be named as plaintiff or defendant, as the case may be, shall
be:-

a) in the case of a suit by or against the Central Government, the Union of India, and

b) in the case of a suit by or against a State Government, the State.

Notice under Section 80 of Civil Procedure Code, 1908:-

In suits between individuals and individuals, notice need not be given to the defendant by the
plaintiff before filing a suit but under Section 80 it is provided that notice has to be given in a
suit against Government or public officer in respect of any act purporting to be done by such
public officer in his official capacity.

Section 80 of the Code provides that no suit shall be instituted against the Government or against
a public officer in respect of any act purporting to be done by such public office in his official
capacity until the expiration of two month next after notice in writing has been delivered to, or
left at the office of:

i) in case of the suit against the Central Govt., except where it relates to a railway, a Secretary to
that Govt;

45
Yogesh Chandra Das v. Chief Secretary of Assam, AIR 1990 Gau 74.
46
Tripti, Procedure to Investigate Suits By or Against Government, LEGAL SERVICES INDIA, Oct. 8, 2012 available
at http://www.legalservicesindia.com/article/article/procedure-to-investigate-suits-by-or-against-government-
1318-1.htm
47
AIR 2003 SC 1805

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ii) in the case of a suit against the Central Govt. where it relates to a railway, the General
Manager to that railway;

iii) in the case of a suit against the Govt. of the State of Jammu and Kashmir, the Chief Secretary
to that Govt. or any other officer authorized by that Govt. in that behalf;

iv) in the case of a suit against any other state Govt., a Secretary to that Govt. or the Collector of
the district; and

v) in the case of a public officer, such public officer.48

Further it provides that with the permission of the Court, a suit can be instituted without serving
the notice where an urgent or immediate relief is needed. Provided that Court shall return the
Plaint if found that there is no need of immediate or urgent relief.49

The Section enumerates two types of case:

(1) Suit against Government; and

(2) Suit against public officers in respect of acts done or purporting to be done by such public
officers in their official capacity.

Regarding the first class of cases the notice must be given in all cases. Regarding the second
class of cases, however, notice is necessary only where the suit is in respect of any act
“purporting to be done” by such public officer in the discharge of his duty, and not otherwise.50

The three essential requirements of S. 80 are: first, the addressee should be identified and must
have received the communication; secondly, there should be no vagueness or indefiniteness
about the person giving the notice, who must also be the person filing the suit and the notice
must also give the details which are specified in S. 80; and, thirdly, the two months’ time
allowed must expire before the suit is laid. Once these requirements are fulfilled minor details
like the misdescription of the person to whom the communication is addressed should not make
it an improper notice which does not comply with the requirements of S. 80, C.P.C.51

Technical defect or error in notice: Section 80(3):-

Section 80(3) provides that no suit instituted against the Govt. or Public officer shall be
dismissed merely on ground of error or defect in the notice, if, in such, the name, description and

48
Sec 80(1) of Civil Procedure Code, 1908
49
Sec 80(2) of Civil Procedure Code, 1908
50
State of Bihar v. Jiwas das, AIR 1971 Pat 1971; State of Maharashtra v. Chander Kant, AIR 1977 SC 148 at p.
150.
51
Santanu Dey, Legal Provisions of Section 80 of Code of Civil Procedure 1908, (C.P.C.), India – Notice, SHARE
YOUR ESSAYS available at http://www.shareyouressays.com/114371/legal-provisions-of-section-80-of-code-
ofcivil-procedure-1908-c-p-c-india-notice

21 | P a g e
residence of the plaintiff had been so given as to enable the authority or public officer to identify
the person serving the notice and such notice had been delivered or left at the office of the
authority or public officer and the cause of action and the relief claimed by the plaintiff had been
substantially indicated therein.

The amendment to the code was made with the intention that justice is not denied to the
aggravated parties on the grounds of technical defects. Therefore, a notice under section 80
cannot be held to be invalid and no suit can be dismissed on the grounds that there has been a
certain technical defect or error in the notice delivered or on the ground that such notice was
served in an improper way.52

Exemption from arrest and personal appearance (Section 81):-

Section 81 of the code provides that in a suit against a public officer of any act purporting to be
done in his official capacity i.e. act of public officer as mentioned above, he has an exemption
from arrest and from attachment of his property until execution of decree. Further if defendant
that is public officer cannot absent himself from his duty, then he has exemption from personal
appearance during on-going suit.

Section 81 is considered as an important privilege given to a public servant. It allows the court to
exempt the public servant form appearing before the court. It can do this only if believes that by
making the person absenting himself from his duty, there is a loss caused to the public.

Execution of decree (Section 82):-

Section 82 provides that in a suit by or against govt. or public officer, decree is passed against
govt. or public officer it will not be executed unless it remains unsatisfied for the period of three
months computed from the date of such decree. Further it provides that this provision regarding
execution of decree will apply on an order or award passed by any court or by any other
authority or if it were capable of being executed under this code or under any other law in force
as if it were a decree.

The section has been amended so as to eliminate certain cumbersome requirements. Before
amendment a court had to send a report to the state government before ordering.53 The decree
cannot be executed unless all the conditions are complied with.54

Procedure: Rule 27

In the case where there is a suit filed by or against the Government, then such a plaint will have
to be signed by any authorized person appointed by the Government. It is also necessary that this
person is well versed with facts of the case. If such a person is authorized by the government,

52
State of A.P v. Gundugola Venkata, AIR 1965 SC 11
53
Union of India v. K. Khadelwala, AIR 1970 Ori 13.
54
State v. Abdur Rahman, AIR 1960 J & K 59.

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then he shall be deemed to be a recognized agent of the Government as per the CPC. It has also
been given in the code that multiple summons may be issued to a government pleader. There is
no need for the state counsel to file a Vakalatnama. Reasonable time should be granted to the
government for filing a written statement.55 The courts, in all cases must assist the Government
to arrive at a settlement in all cases where it is a party. This is considered as one of the main
duties of the court. There are instances where the suit filed may have a substantial question of
law or that it may require the interpretation of law or the constitution. In such cases, the court
will need to send a notice to the attorney General, if the question is regarding a central law or it
will need to send a notice to the advocate general if the suit deals with a state law. This has been
given in Order 27-A of the Code.

55
Northern Sub-division v. Comunidade of Bombolim , (1995) 5 SCC 333

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 CONCLUSION

An interpleader suit is a proceeding by which a person from whom some persons are claiming
same property, debt or money and who does not himself claim such property debt or money and
neither dispute such debt, such person can file a suit claiming that he is ready to pay or deliver
the said property or money to rightful claimant and can protect himself from legal proceedings
by calling upon such claimants to interplead, that is to say claim against one and other so that
title to the property or the debt may be decided. Meaning thereby, an 'interpleader suit' is a suit in
which the real dispute is not between the plaintiffs and defendants but between the defendants
only and the plaintiff is not really interested in the subject-matter of the suit.A suit under this
section is called an interpleader suit because the plaintiff is really not interested in the matter, but
only the defendants interplead as to their claims. In fact each of the defendants so interpleading
is virtually in the position of a plaintiff and his claim will be governed by the rules of the
Limitation Act. A reading of S. 88, Civil P. C., would clearly show that the court does not have
jurisdiction to travel beyond what has been admitted by the plaintiff as due from him/her or it.
The Court cannot direct any further payment or investigate into any question relating to the
transaction alleged between the parties.

The Article has defined the process of suit by or against a govt. and public officer acting in
purporting to his official duty. Article has explained the provisions in detail about the litigation
against and by govt. and public officer acting in purporting to his official duty. After examining
there provision as mentioned we have understand that for any suit against a govt. first of all it is
necessary that party should be name according to section 79 of CPC. Further to institutive a suit
against govt. or public officer acting in purporting to his official duty it is mandatory to give
prior notice of 2 month. The only exception to this rule is provided by addition of 80(2) after the
amendment of 1976. The amendment is helping hand so that justice can be done as early as
possible. After concluding the above topics, this Article attempts to elucidate about the various
aspects of these types of suits. It speaks about whether rights granted under this can be waived,
the forms in which notices can be served and also the modes in which these have to be served.
Moreover Article has provided us about procedure given under rule 27 and other privileges given
to parties i.e. under Section 81 & 82 of the Code.

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 BIBLIOGRAPHY

BOOKS REFERRED:

 D.V.Chitaly, AIR Commentaries: The Code of Civil Procedure (Nagpur: All India
Reporter Limited, 1972).
 M.S.Mehta, A Commentary on The Code of Civil Procedure (Allahabad: Wadhwa and
Company, 1990).
 C.K.Takwani, Civil Procedure (3rd ed., Lucknow: Eastern Book Company, 1996)
 P.M.Bakshi, Supplement to Mulla’s Code of Civil Procedure (14th ed., Bombay:
N.M.Tripati Private Limited, 1992).
 T.L.VenkataramaAyiar, Mulla on The Code of Civil Procedure (13th ed., Bombay:
N.M.Tripathi Private Limited, 1967).

WEBLIOGRAPHY:

 www.vakilno1.com/bareacts/civilprocedure/s
 indiankanoon.org/search
 www.legalserviceindia.com/article/
 Santanu Dey, Legal Provisions of Section 80 of Code of Civil Procedure 1908, (C.P.C.), India –
Notice, SHARE YOUR ESSAYS available at http://www.shareyouressays.com/114371/legal-
provisions-of-section-80-of-code-ofcivil-procedure-1908-c-p-c-india-notice
 Tripti, Procedure to Investigate Suits By or Against Government, LEGAL SERVICES INDIA,
Oct. 8, 2012 available at http://www.legalservicesindia.com/article/article/procedure-to-
investigate-suits-by-or-against-government-1318-1.htm

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