Order XXVIIA Rule 3 CPC - Costs When Government Is Added as a Defendant

Text of Order XXVIIA Rule 3 CPC - Costs

Where, under rule 2 or rule 2A the Government or any other authority is added as a defendant in a suit, the Attorney-General, Advocate-General, or Government Pleader or Government or other authority shall not be entitled to, or liable for, costs in the Court which ordered the addition unless the Court, having regard to all the circumstances of the case for any special reason, otherwise orders.

The provision above is retained from the original article. For application in a particular court, consult the applicable current CPC text and any relevant local amendments or procedural rules.

Meaning and legal effect of Rule 3

Ordinarily, a court has discretion to determine which party should bear litigation costs. Order XXVIIA Rule 3 creates a specific exception for the Government or authority brought into a case under Rule 2 or Rule 2A, and the identified law officers or pleaders.

• Neither automatic recovery nor automatic liability: The persons and bodies identified in Rule 3 ordinarily cannot claim costs or be ordered to pay costs in the court that directed their addition.
• Special-reasons exception: The court may order otherwise after considering all circumstances of the case and identifying a special reason.
• Limited context: The rule applies to addition under Order XXVIIA Rule 2 or Rule 2A. It is not a general immunity from costs in every proceeding involving Government.
• Specified court: The text expressly refers to costs in the Court which ordered the addition; treatment of costs in other proceedings depends on the applicable law and orders.

Related CPC provisions and definitions

Order XXVIIA Rule 1 - Constitutional questions

Where a suit involves a question of the nature referred to in Article 132(1), read with Article 147 of the Constitution, Rule 1 requires the prescribed notice to the Attorney-General for India or the State Advocate-General, as appropriate, before determination of that question.

Order XXVIIA Rule 1A - Validity of statutory instruments

Rule 1A addresses suits raising questions about the validity of a statutory instrument outside the constitutional-question category covered by Rule 1. It provides for notice to the Government Pleader or the authority issuing the instrument, as applicable.

Order XXVIIA Rule 2 - Addition of Government

Rule 2 allows the court, on the prescribed application and where satisfied that addition is necessary or desirable for satisfactory determination of the constitutional question, to add the Central or State Government as a defendant.

Order XXVIIA Rule 2A - Addition in statutory-instrument disputes

Rule 2A permits addition of Government or another authority as a defendant, upon the specified application and judicial satisfaction, where the suit concerns a question covered by Rule 1A.

Section 35 CPC - Costs

Section 35 deals with the court's discretion regarding costs, subject to applicable statutory provisions and rules. Order XXVIIA Rule 3 operates as a more specific provision for the additions described above.

Section 35A CPC - Compensatory costs

Section 35A concerns compensatory costs in respect of false or vexatious claims or defences, subject to statutory requirements. Its application must be assessed separately; Rule 3 should not be read as a blanket exemption from every statutory consequence.

What are 'costs'?

In civil procedure, costs are litigation expenses that a court may order one party to pay another, subject to applicable law and court rules. The precise recoverable items depend on the relevant rules and judicial order.

What is a 'statutory instrument'?

In this context, a statutory instrument generally means subordinate legislation or another legally operative instrument made under authority conferred by statute, such as a rule, regulation or notification, depending on its nature and enabling law.

How the court considers costs under Rule 3

1. A qualifying question arises in a civil suit under Order XXVIIA Rule 1 or Rule 1A.
2. The relevant notice is given, and an application to add Government or another authority may be made under Rule 2 or Rule 2A.
3. The court decides whether addition is necessary or desirable for satisfactory determination of the question.
4. When the addition is ordered, Rule 3 supplies the default position that the specified Government body, authority or legal officer is neither entitled to nor liable for costs in that court.
5. If a party seeks a different costs order, the court considers the case-specific circumstances and whether special reasons justify departing from the default.

Practical illustrations

Example 1: A private dispute raises a constitutional issue. The State Government is added under Rule 2. At the conclusion of the suit, the State does not automatically receive costs merely because its submissions were accepted, nor does it automatically pay costs because a party's argument prevailed.

Example 2: A suit challenges the validity of a statutory regulation. The issuing authority is added under Rule 2A. Rule 3 ordinarily governs costs in the court ordering addition; an exceptional costs direction requires the court to consider the circumstances and find a special reason.

These examples illustrate the procedure only; the outcome of an actual costs application depends on the facts, applicable amendments and the court's order.

Frequently asked questions

Does Rule 3 prohibit every costs order against Government?

No. It sets a default rule for additions under Order XXVIIA Rules 2 and 2A, expressly allowing a different order for special reasons.

Does the rule apply when Government was already an original defendant?

Its wording specifically concerns Government or another authority added under Rule 2 or Rule 2A. Other situations require consideration of the generally applicable costs provisions.

Can the added Government or authority claim costs?

Not ordinarily in the court that ordered the addition, unless that court directs otherwise for special reasons after considering all circumstances.

Is Order XXVIIA Rule 3 the same as Section 35 CPC?

No. Section 35 states general principles about costs; Rule 3 addresses a narrower category of defendants added in proceedings involving specified legal questions.

Official legal references

Consult the Code of Civil Procedure, 1908 on India Code for the CPC and its First Schedule, including Order XXVIIA and Sections 35 and 35A. For the constitutional references in Rule 1, consult the Constitution of India, Legislative Department, particularly Articles 132 and 147. Check applicable State and High Court amendments before relying on a provision in a particular jurisdiction.