Disability to sue and to be sued

● Introduction:
Capacity refers to the status of a person to sue or to be
sued under violation of a law. These laws can either be codified or uncodified. In
case of Torts, the capacity to sue or to be sued lies with all persons or parties.
But this statement is not absolute; there are always reasonable restrictions
alongside any liberty, similarly there are restrictions upon parties to sue or be sued.

● Parties To Tort:
A party to tort refers to any person who is directly
involved or shows interest in any act that leads to either:
1. Commission of a civil wrong
2. Being victim of such wrong
Such person shall become a party to tort and shall be referred to as Plaintiffs and
Defendants.

The term parties to torts includes everyone interested directly in the matter, who
have the right to defend, control proceedings, or appeal in court. Anyone who
does not have these rights shall be a privy i.e. stranger to the case.
One of the major elements here is the requirement to initiate a civil suit with the
right person. In case the plaintiff brings in the wrong party or the plaintiff includes
too many or too few parties, the case shall possibly not land in favor of the plaintiff
in such a situation.

● Plaintiff and Defendant in a civil suit:

Those persons
against whom any action of civil wrong is initiated or instituted may file a civil suit
for recovery against the person who has committed the same. The person who files
the suit shall be called Plaintiff and the one who has the right to defend himself
shall be called, defendants.
 ● Disability to not be sued:
The below mentioned are the
parties in torts that cannot be sued:
1. Married women(earlier)
2. Minor
3. Government
4. Lunatic
5. Alien Enemy
6. Corporation
7. Foreign Sovereign

1. Married women:
The common law does not permit a married woman to
sue or to be sued all alone. It is necessary to be in association with her husband
only then it shall be valid. This was the rule because earlier under the law in
England, husbands and wives were considered as a single entity in the eyes of law.
This difficulty was later removed by the Married Women’s Property Act.

2. Minor:
The infant/ minor can be sued for the act committed by them as an
adult. Thus a minor can be sued for assault, false imprisonment, libel, slander,
fraud etc. but where intention, knowledge or some other condition of mind are
essential ingredients of liability then in those cases minor/ infant can be exempted
due to their mental incapacity. In the later case a minor/infant cannot be sued.
CASE REFERENCE

WALMSEY Vs. HUMONICK

In Walmsey vs. Humonick (1954 2 D.R.L. 232) – Two little boys were playing
cowboy related games. One boy hit the arrow and it hit another boy in his eye. The
court gives the judgment in the defendant's favor as a five-year child doesn’t even
think about it. Hence the defendant is not liable.

3. Municipality, center or state government:

 They cannot be held liable for
misfeasance of their officers if they are exercising their duties. Therefore the
blunders of judicial officers cannot be charged from state’s accounts, even if they
commit a mistake while exercising their powers.
CASE REFERENCE

U.O.I Vs. SUGRABI

In U.O.I vs. Sugrabai – A, military driver of the school of Artillery, once assigned
a task to transport the machine, hit B, as a result, B died. Here the government is
liable as the work is assigned to him and the act committed during the discharge of
the duty.

4. Lunatic:
When any action is committed by a lunatic person mad he is not in
his stable state of mind, such person cannot be sued. However, if such a person
commits a crime when he is in a stable state of mind and can interpret the meaning
or consequences of his actions, then he can be sued.
5. Alien enemy:
Alien enemy means a person belonging to a hostile country or
a person residing in or carrying business in enemy territory . In India an alien
enemy cannot be sued by any person in India without the prior permission of the
central government. If the central government allows so, only then can they be
sued by a person.

6. Corporations:
Corporations have distinct legal personalities and they can be
sued like any other legal person. This can happen when any servant commits an act
of civil wrong on behalf of the corporation. Private corporations can sue and get
sued for torts. But A charitable organization is not liable in tort for injuries done by
physicians, employees or servants when it has exercised due care in their selection,
but it is liable for corporate misconduct and negligence.
7. Foreign Sovereign:
 Civil procedure says a foreign sovereign can only be
sued in his homeland if the central government allows it and not otherwise.
Similarly foreign ambassadors and their families cannot be sued in other countries
unless they waive off their privilege by submitting to the jurisdiction of the court.

● Disability to not sue:

The people who cannot sue are:
1. Convict
2. Alien enemy
3. Married woman
4. Corporation
5. Unincorporated association
6. Infant
7. Insolvent

1. Convict:
Initially a person, a convict whose sentence is in force, could not
sue anyone for injury to his property. But later in 1948 the Criminal Justice Act
was passed and this difficulty was removed and a convicted person could sue for
injury to his property.

2. Alien enemy:
Alien enemy is a person of enemy nationality or a person from
enemy territory of any nationality. An alien enemy cannot sue in his own right. But
this enmity comes to an end; this disability to sue also ends along with it.

3. Married woman:
Initially under English law husband and wife both were
constituted as a single legal integrated personality; therefore the wife had no right
to sue her husband earlier for any wrong committed by him.

4. Corporation:
 A corporation is a legal/juridical person. Therefore it can sue
another person. It may bring action for those civil wrongs which affect its property
but a corporation cannot sue for those wrongs which do not affect its property.

5. Unincorporated association:
An unincorporated association has no legal
personality and therefore law gives such associations no right to sue anybody.

6. Infant:
Minors are regarded as incapable to sue anyone henceforth they do
not have any right to sue but at the same time the minor can sue another person by
the way of a guardian or friend (who is of the age of majority). In case there is no
such person, the court can appoint a legal guardian for such a child, so that he can
fight for his rights.

7. Insolvent:
Insolvent is any person who cannot or could not satisfy his
liabilities. A person must be declared as insolvent by the court of law only then he
has not right to sue anyone in future and not otherwise.
During insolvency proceedings, a receiver is appointed by the court therefore the
insolvent person cannot sue for wrong to his property but he can sue for wrong to
his person.

● Conclusion:
The capacity to sue and to be sued is very essential in
deciding whether a case stands before the court or not. There are a number of
factors that decide whether or not a person can sue or be sued like friendly
relations with the state(alien enemy), fairness(lunatic), efficiency in maintaining
law and order (municipality and public corporations ),etc .

While the law with respect to married woman has changed over time, releasing the
restrictions on spouses to sue each other, other restrictions remain the same,
ensuring that people who are themselves incapable, do not sue any other person in
the court of law and to ensure that people who are exempted from being sued do
not get sued by any person.