Tort capacity to sue or be sued

This explains who can be plaintiff and defendant. There are some persons who cannot sue or be sued.

1. Dr. Khakare Vikas
Who can sue / be sued
Dr. Khakare Vikas
Asso. Prof.
Narayanrao Chavaan Law College, Nanded. India

2. Dr. Khakare Vikas
.
Personal disabilities or limitations of
personal capacity

3. Dr. Khakare Vikas
Who are competent to be plaintiff /defendant(party)
•Every person is competent to be party to suit.
•Plaintiff and defendant are parties to suit.
•Plaintiff is a person whose legal right has been infringed
and who files a suit in the court of law to get legal
remedies.
•Defendant is a person who infringed plaintiff’s legal right
and who has been sued by the plaintiff.

4. Dr. Khakare Vikas
Who can be plaintiff
•Every person who has a right to sue.
•Any person whose legal right is infringed.
•Every person who is having joint right.
•But there are some person who can not sue.
•Such person are having legal disability due to which they cannot
sue.

5. Dr. Khakare Vikas
Who can not sue
1. Convict
2. Alien enemy
3. Married woman
4. Corporation
5. Unincorporated association
6. Infant
7. Insolvent

6. Dr. Khakare Vikas
1. Convict
•Initially a person a convict whose sentence is in enforce could not
sue for injury to his property.
•By Criminal Justice Act 1948, this difficulty is removed and a
convicted person could sue for injury to his property.
•In India until 1921, certain offences entitled forfeiture of property of the
offender. Later except for certain offences (Sec. 126, 127, 169) a convict can
sue for wrong to his person or property.

7. Dr. Khakare Vikas
2. Alien enemy
•An alien enemy is person of enemy nationality or a person from
enemy territory of any nationality.
•An alien enemy cannot sue in his own right.
•In India, an alien enemy can sue only after obtaining permission
from the Central Government under Sec. 83 of the Civil Procedure
Code.
•The moment, enmity comes to an end, disability also ends.

8. Dr. Khakare Vikas
3. Married woman
•Initially under English law husband and wife both constituted single
integrated legal personality; therefore wife could not sue. Therefore a wife
could not sue her husband for wrong committed by him. Even she could not
sue or be sued unless her husband joined as party to suit.

9. Dr. Khakare Vikas
•Later by The Married Women's Property Act 1882 and
The Law of Reform (Husband and Wife) Act 1962
situation is changed. Now a married wife can sue her
husband. She can sue a person without joining her
husband as party.
•In India husband and wife is having different legal
identity therefore she can sue her husband and other
person independently. Similarly she can be sued by a
person.

10. Dr. Khakare Vikas
4. Corporation
•A corporation is legal/juridical person. Therefore it can sue another person.
•It may bring action for those civil wrongs which affect its property and not for
those wrongs which does not affect its property.

11. Dr. Khakare Vikas
5. Unincorporated association
•An unincorporated association has no legal personality and as
such it cannot sue.

12. Dr. Khakare Vikas
6. Child / Infant
•Minority is a legal disability due which a child cannot sue.
•A child cannot sue for the injuries while he was in mothers womb because
the injury was not to him but to his mother.
•Child can sue a person through his guardian or next friend. In case there is
no such person; court can appoint legal guardian.

13. Dr. Khakare Vikas
7. Insolvent
•Insolvent is a person who cannot or could not satisfy his liabilities.
•A person must be declared as an insolvent by a competent court of law.
•During insolvency proceeding a receiver is appointed by the court therefore
insolvent person cannot sue for wrong to his property but he can sue for
wrong to his person.

14. Dr. Khakare Vikas
Who can be sued?
•Who can be defendent \
•Defendanat is a person who infringed plaintiff’s legal right or who is a
wrongdoer.
•All person who has committed the wrongful act jointly and every wrongdoer
can be defendant.Every person is competent to besued.

15. Dr. Khakare Vikas
Who cannot be sued
•Sovereign or King
•Foreign sovereign
•Ambassador
•Public official
•Infant and unsoundmind person
•Lunatic / Drunkards
•Married woman
•Corporation

16. Dr. Khakare Vikas
Sovereign or King
•It based on the principle of English Constitution, ‘King Can Do No Wrong’ . A
personal action will not lie against the sovereign or a king.
•This position has been change by The Crown Proceeding Act1947. Under the
provisions of this Act, crown shall be subject to all those liabilities in tort to
which, if it were a person of full age and capacity, it would be subject.

17. Dr. Khakare Vikas
...
•According to the provisions of the Constitution of India,
the Government of India, and a State Government can
sue and be sued.
•The President of India and Governor of States are not
answerable to the court.
•P & O Steam Navigation Co. v. The Secretary of State of
India (first case 1869), Vidyawati v. State of Rajsthan
(suit against State)

18. Dr. Khakare Vikas
Foreign sovereign
•Courts have no jurisdiction over an Independent Foreign sovereign unless he
submits for the jurisdiction of the court.
•fSec. 86 of the Civil Procedure Code provides that, no ruler of a foreign state
may be sued in any court otherwise competent to try the suit except with the
consent of Central Government.

19. Dr. Khakare Vikas
Ambassador
•Ambassador cannot be sued for torts committed by them. This immunity is
also available to family members and servants.
•This immunity is available to them till they occupy such position.

20. Dr. Khakare Vikas
Public official
•Public official cannot be sued for their torts committed in the representative
capacity. Because the act was committed during official capacity representing
the State.
•If an act is done by the Government servant in the exercise of the powers;
then he personally is not responsible but suit may be filed against the
Government.

21. Dr. Khakare Vikas
Infant and unsoundmind person
•Infants or persons of unsound mind are not a bar for an action in the torts.
•Where mental conditions like intention, knowledge, malice forms essential
condition; minor or unsound mind is a good defence.

22. Dr. Khakare Vikas
Lunatic
•Lunacy is not a defence in an action for a tort except in case where intention,
knowledge, malice or any other mental condition is essential to create
tortious liability.

23. Dr. Khakare Vikas
Corporation
•A corporation can be sued for the tort committed by its servants or agents. At
one time corporation was not held liable for the wrongs involving malice,
fraud but it can be held liable for such wrongs.

24. Dr. Khakare Vikas
Married woman
•In old English law after marriage husband and wife are treated as single
person and therefore married woman’s property was vested in the husband.
A married woman cannot be sued unless her husband is joined as party to
suit.
•This difficulty is removed by the Married Women’s Property Act and a married
woman can be sued independently without joining her husband in the suit.
•In India married woman can be suid without joining her husband as party to
suit.

25. Dr. Khakare Vikas
Thank you.
•.