Notice: Introduction, Mode and Essentials

This article titled ‘Notice: Introduction, Mode and Essentials’ is written by Devanjali Banerjee and discusses the definition of the term ‘notice’ as provided in Section 80 of the CPC, the essential information to be provided in a notice as well as the mode of delivery of such notice.

I. Introduction

There is no statutory requirement upon an individual to provide notice to the defendant under the Code of Civil Procedure,1908 (‘CPC’) when a plaintiff is instituting a suit against the same.[1] However, there is a statutory requirement for notice to be served upon the appropriate authority when it entails suits against the government, in the Indian civil procedural system.[2]

This requirement also functions in case of suits against a public officer in the situation that an impugned action has been committed by the latter in his/her official capacity.[3]

1. What is a notice under Civil Procedure Code?

The requirement of notice, as provided in Section 80 of the CPC, refers to the explicit, statutory mandate that notice be provided to the government or public officers prior to the institution of a suit against the same. Under Section 80(1), notice is required to be served in case of two categories of entities:

1. Suits against the Government (Central and State governments); and
2. Suits against public officers in relation to any act purportedly committed by the same in his/her official capacity.

After the notice has been delivered to or left in the office of the relevant entity, the government or public officer is afforded a two-month period during which the grievance raised in the notice may be redressed.[4] If the grievance is not so redressed, legal action may be initiated against the relevant government or public officer.

2. Whom to serve notice upon?

Section 80 clarifies the specific officers to serve notice- either by delivery to or be leaving the notice at the office of the same. This mode of delivery has been reiterated in the caselaw.[5]

The appropriate authorities for the delivery of notice are as follows-[6]

“(a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;

(b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway;

(c) 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 authorised by that Government in this behalf;

(d) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district;

(e) in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims.”[7]

The clarification of the appropriate authority upon whom to serve notice is important because service of notice to the wrong authority may lead to a plaintiff’s claim being disregarded or dismissed in limine by the respective court. In the case of Coal Mines Provident Fund Commissioner v. Ramesh Chandra Jha,[8] it was held that the Coal Mines Provident Fund Commissioner was a public servant and thus notice was required to be served under Section 80(1).

The respondent, in this case, was an employee, as he was in the service of the Coal Mines Provident Fund Organisation, and served under the appellant. Subsequently, the respondent was removed from service and in turn, he challenged his removal from service and filed a suit against the appellant in Munsif court.

However, it was found that the appellant was an entity requiring notice as mentioned in Section 80 of CPC and the respondent lost the case. In another case, it was found that even a doctor in a government hospital would count as a public officer given as he was discharging his duty as a public officer- in which case service was required.[9]

II. Essentials

As mentioned earlier, a notice under Section 80(1) must contain the following details-

1. The name, description of and place of residence of the person giving notice;
2. statement of the cause of action; and
3. the relief claimed by the same

Apart from the above details, there is no explicit mention of the prescribed form in which notice is to be submitted under Section 80 of the CPC. Courts have observed that notice under section 80 is not a pleading or plaint under the civil procedure and thus need not be bound by the technical requirements of a plaint under the CPC.[10]

In the view of the court, it is sufficient for the notice to communicate the nature and basis of the claim as well as relief sought.[11] The construction of notice and defects in the same was considered in the case of State of A.P. v. Gundugola Venkata,[12] wherein the respondent and one other person had challenged the operation of a notification issued by the Madras state government and served notice under section 80(1).

In the trial court stage, the suit was dismissed as inter alia other findings, the trial court noted that the suit was not maintainable as only one person had filed the suit despite notice being served by two persons. On appeal, the Supreme Court held that the suit could not be dismissed simply because both persons who served notice did not file the suit against the state government.

In the judgment, the Court noted that while the statute’s requirements are to be strictly observed, the notice itself must be “reasonably construed” and “every venial error or defect” cannot operate to nullify “a just claim.”[13]

Thus the Court stated that the critical questions for a Court to consider in order to determine compliance with the notice provision include:

“(1) whether the name, description and residence of the plaintiff are given so as to enable the authorities to identify the person serving the notice;

(2) whether the cause of action and the relief which the plaintiff claims are set out with sufficient particularity;

(3) whether the notice in writing has been delivered to or left at the office of the appropriate authority mentioned in the section; and

(4) whether the suit is instituted after the expiration of two months next after notice has been served, and the plaint contains a statement that such a notice has been so delivered or left.”[14]

III. Leave of the Court [Section 80(2) CPC]

Despite the mandatory nature of notice under Section 80(1), there is provision for instituting suits against the government and public officers without complying with the notice requirement in case there is an urgent or immediate relief on part of the plaintiff.^[15] However, the leave of the court is required to avail this exceptional relief, as mentioned in Section 80(2) of CPC. As laid down in Gyanajeet Moharana v. Binodini Pattanaik,[16] such permission is to be granted by way of a speaking and reasoned order.^[17]

However, this form of waiver of notice is a discretionary power afforded to the court, and such leave would be permitted only in the situation that the requirement of service such notice defeats the purpose or object of filing the suit.^[18] This position is reflected in the balanced position taken by the Court in Govt. of Kerala v. Sudhir Kumar Sharma.[19] In that case, it was noted by the Court that before granting such leave under Section 80(2), the trial Court must hear both parties, consider the “nature of the sui and urgency of the matter… before taking a final decision”.

Thus, the trial court must be satisfied as to the urgent requirement of the relief, failing which such application may not be approved by the same.[20]

Till arguments are advanced and till the trial court is satisfied with regard to the urgency or requirement of immediate relief in the suit, the court normally would not grant an application under Section 80(2) of CPC.[21] Additionally, it has been noted that there is no provision to grant and interim relief without notice to the government parties.[22]

IV. Technical Error [Section 80(3) CPC]

Section 80(3) notes that no notice against a government or public officer be dismissed merely for the reason of any defect or error or defect in the notice as mentioned in Section 80(1), if :

“(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section and
(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated”[23].

If there is sufficient intimation in the notice as to the general nature of the suit, such notice would be maintainable.[24] There must also be sufficient identity for the intended recipient to identify the claimant or plaintiff.[25][26] However, a fresh notice must be served if there is a new cause or new causes of action between the original plaint of the plaintiff. [27]

V. The object of the section

Section 80 has been enacted with the objective of providing notice or opportunity to the government or public officer concerned so that they consider their legal position, settle the allegations or claims made and thereby avoid unnecessary litigation.[28]

This position has also been expressed by the Apex Court in the case of Bihari Chaudhary v. State of Bihar,[29] wherein inter alia other issues, the Court had noted that the section functions as a measure of public policy. In the instant case, the appellants had instituted a suit against the government concerning the declaration and conveyance of certain immovable property.[30]

However, the appellants did not observe the statutory period of 2 months from the service of notice and instituted the suit against the government. The Supreme Court finally found against the appellants and noted that the notice period under Section 80 was to be observed and non-observance meant the suit against the government would not be maintainable.

Thus, as an important tool of civil procedure and to “save public time and money”[31] the legal language in the section is “express, explicit and mandatory and does not admit any implication or exception.”[32]

1. Legislative development

The application and implementation of Section 80 has been refined over the years with inputs from the Law Commission of India. In a number of Law Commission Reports on the Code of Civil Procedure, the Commission has recommended that Section 80 be deleted or modified to better serve the ends of justice.

This was prior to the 1976 amendment that inserted sub-sections 80(2) and 80(3) to the CPC. The first call to delete Section 80 came in its 14^th report, wherein the Law Commission noted that the (unamended) section caused hardship in cases where swift or immediate redress was required as there was no provision for urgent claims.[33]

According to the 14^th report, the notice provision functioned as a technical defence to plaints made by ordinary litigants and the notice remained unheeded by the officers.

Subsequently, the Commission in its 27^th report on the CPC, also recommended that Section 80 be deleted.[34] It was noted by the Commission that such deletion was in order as no other jurisdiction with the Anglo-Saxon system of law contained a similar provision on notice.

Moreover, in the view of the Commission, “…in a democratic country like ours there should ordinarily be no distinction of the kind envisaged in section 80 between the citizen and the State.”[35] The Commission mentions that the particular Section was drafted in pre-independent times wherein maintenance of law and order was of paramount importance.

Post-independence, India has assumed the position of a welfare state and the position of the state in litigation should reflect the democratic principles and possess no undue privileges nor any disadvantages vis-à-vis an ordinary litigant. In its 54^th report,[36] the Law Commission once again reiterated the considered recommendation that Section 80 be deleted.

Finally, in 1976, the amendment to the CPC[37] renumbered the original section and inserted sub-sections (2) and (3) to Section 80 which allowed for providing urgent and immediate relief to a plaintiff, with leave of the court. [38]

VI. Conclusion

The applicability of the notice provision under CPC continues to operate in the present day. The government and public officers receive a vast number of notices served and the mandates of Section 80 serve the ends of justice as it plugs the floodgates of excess litigation.

Given that the notice period interacts with limitation periods of suits, it is an important component of the civil justice system and a critical cog in the procedural system. The present essay has discussed the provisions of Section 80, the essentials of such notice and its legislative history.

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References

[1] D.F. Mulla, Key to Indian Practice: A Summary of the Code of Civil Procedure, 11^th ed., 2016, 212.

[2] Section 80(1) of the Code of Civil Procedure, 1908.

[3] Section 80(2) of the Code of Civil Procedure, 1908.

[4] Supra, at note 2.

[5] State of A.P. v. Gundugola Venkata, AIR 1965 SC 11.

[6] Supra, at note 2.

[7] Supra, at note 2.

[8] AIR 2012 SC 408.

[9] A. Sarangadharam v. Dr. Vijayam, AIR 1999 Ker 310.

[10] Amar Nath v. Union of India, AIR 1963 SC 424.

[11] Ibid.

[12] Supra, at note 5.

[13] Ibid.

[14] Ibid.

[15] Supra, at note 3.

[16] Gyanajeet Moharana v. Binodini Pattanaik, (2009) 107 Cut LT 132 (134-135) (DB).

[17] Ibid.

[18] Supra, at note 1.

[19] 2013 (10) SCC 178.

[20] Ibid.

[21] Ibid.

[22] Supra, at note 1.

[23] Section 80(3)(a) and (b), CPC.

[24] Ghyansham Das v. Dominion of India, (1984) 3 SCC 46.

[25] Supra, at note 1.

[26] Ibid.

[27] Bisham Dayal & Sons v. State of Orissa, AIR 2001 SC 544.

[28] State of Punjab v. Geeta Iron and Brass Works, AIR 1978 SC 1608.

[29] Bihari Chaudhary v. State of Bihar, AIR 1984 SC 11.

[30] Ibid.

[31] Ibid.

[32] Supra, at note 1.

^[33] Law Commission’s Fourteenth Report, pp. 475-476.

^[34] Law Commission’s Twenty-seventh Report, pp. 21-22, para 52.

^[35] Ibid.

[36] Law Commission’s Fifty-fourth Report: see generally.

[37] Section 27 of the Code of Civil Procedure (Amendment) Act, 1976.

[38] Supra, at note 24.

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