O XXXVII CPC – Can Summary Suit Be Filed Against Govt./Public Officer? Is Section 80 Notice Required?

Order XXXVII of Civil Procedure Code deals with summary procedure and the same is applicable to following classes of suits: (a) suits upon bills of exchange, hundies and promissory notes; (b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising,— (i) on a written contract; or (ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or (iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.

So if the suit relates to these matters, there is nothing in Order XXXVII which says that it cannot be filed against the Government.

However, Section 80 CPC says that “no suits shall be instituted 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 next after notice in writing has been delivered to, or left at the office of—….. Section 80 is therefore a bar against instutiton of suit against Govt./Public officer without two months notice.

So the question is whether ‘Suits’ mentioned in Section 80 CPC includes ‘Summary Suit’?

According to the Supreme Court judgment in Pandurang R. Mandlik V. Shantibai R. Ghatge [1989 Supp.(2) SCC 627 ], the word ‘suit is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords. The court observed that modes of proceedings may be various but if a right is litigated between parties in a court of justice the proceeding by which the decision of the court is sought may be a suit.

CPC speaks about ‘Institution of Suit’ in Section 26 and ORDER IV whereas the ‘institution of summary suit’ is dealt under Order XXXVII Rule 3 CPC.

In any case, summary suit is a sub-set of suit and it is only a matter of difference in procedure. Therefore, in our opinion, Section 80 notice requirement is applicable to ‘Summary suits’ against Government/Public Officer also.

Disclaimer: These are our present views on this query and is subject to change/modification. Readers can point out any mistakes or can suggest any caselaws which takes a contrary view.

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