Introduction
In civil law, capacity to sue means the legal ability of a person or entity to institute a civil proceeding, while capacity to be sued means the legal ability to be made a defendant in such proceedings. Although every person is generally capable of having legal rights and liabilities, special rules apply to certain persons and entities.
Basic Rule
As a general rule, a person who has a legal right or interest may sue to protect or enforce it, and a person against whom a legal claim exists may be sued. However, the law prescribes special procedures for persons who cannot conduct litigation personally and for certain legal entities.
Natural Persons
An adult of sound mind can ordinarily sue and be sued in their own name and conduct civil proceedings personally or through a duly authorised legal representative.
Minors and Persons of Unsound Mind
A minor or a person of unsound mind may possess legal rights and liabilities but may not be capable of conducting litigation independently.
- Suit by a minor: The suit is instituted through a next friend.
- Suit against a minor: The minor is represented by a guardian for the suit appointed in accordance with law.
Similar protective provisions apply to persons of unsound mind under Order XXXII of the Code of Civil Procedure, 1908 (CPC).
Companies, Partnership Firms and Sole Proprietorships
- Company: A company is a separate legal person and can sue and be sued in its own name through its authorised representatives.
- Partnership firm: Subject to the provisions of the law governing partnerships and civil procedure, a registered firm may sue or be sued in the firm name.
- Sole proprietorship: A sole proprietorship has no separate legal personality. Therefore, the proprietor personally sues or is sued.
Deceased Persons
A deceased person cannot institute or defend a suit in their own name. Where the right to sue survives, the legal representatives of the deceased may be substituted or brought on record in accordance with Order XXII CPC.
Government and Public Officers
The Central Government and State Governments can sue and be sued, subject to special procedural requirements under the CPC. Sections 79 and 80 CPC contain important provisions in this regard. In many cases, prior notice is required before instituting a suit against the Government or a public officer for an act purportedly done in an official capacity.
Section 79 CPC: Suits by or Against the Government
Section 79 CPC deals with suits by or against the Government. It specifies the proper name in which the Government is to sue or be sued: in the case of the Central Government, the suit is instituted by or against the Union of India, and in the case of a State Government, by or against the State.
Section 80 CPC: Prior Notice Requirement
Section 80 CPC deals with notice before instituting a suit against the Government or a public officer for an act purported to have been done in their official capacity. Ordinarily, a two-month prior notice must be given to the appropriate Government or public officer, stating the cause of action, the relief sought and other relevant particulars.
The object is to give the Government or officer an opportunity to examine the claim and, where appropriate, settle it without litigation. In cases requiring urgent or immediate relief, the court may permit a suit to be instituted without such notice, subject to the conditions prescribed by the section.
Foreign States and Diplomats
Foreign States and certain diplomatic representatives enjoy immunity from civil proceedings, subject to statutory exceptions and applicable principles of international law. Sections 86 and 87 CPC prescribe special requirements concerning suits against foreign States.
Section 86 CPC: Suits Against Foreign States
In simple terms, Sections 86 and 87 CPC protect foreign States from being sued in Indian courts without following a special procedure. Under Section 86, a foreign State generally cannot be sued in an Indian court without the consent of the Central Government, subject to the exceptions and conditions provided in the section.
Section 87 CPC: Representation of Foreign States
Section 87 deals with the manner in which such a foreign State is to be impleaded and represented in the proceedings. The purpose is to respect the sovereign immunity of foreign States and to ensure that proceedings against them are instituted only in accordance with the prescribed legal requirements.
Other Special Cases
- Prisoners and insolvents: They do not, merely by reason of their status, lose all civil rights or the capacity to sue or be sued, although specific legal and procedural restrictions may apply.
- Trusts: Depending on the nature of the trust and applicable law, proceedings are generally brought by or against the trustees in their representative capacity.
- Unincorporated associations: They may generally sue or be sued through their office-bearers or representatives in accordance with the applicable procedural rules.
- Hindu joint family: The Karta ordinarily represents the joint family in legal proceedings, subject to the nature of the claim and applicable law.
Important Distinctions
The following concepts are important for understanding capacity to sue and be sued in civil proceedings.
| Concept | Meaning |
|---|---|
| Capacity | The legal ability of a person or entity to institute, defend or conduct legal proceedings. |
| Locus Standi | The legal standing or right of a particular person to bring a particular action before the court. |
| Cause of Action | The bundle of essential facts giving a person the right to seek a legal remedy. |
| Limitation | The statutory period within which a legal proceeding must ordinarily be instituted. |
Capacity, locus standi, cause of action and limitation are distinct concepts. A person may have the capacity to sue but may lack locus standi, may have no cause of action, or may be barred by limitation.
Conclusion
Capacity to sue and be sued determines who can properly participate in civil proceedings. The law ensures that the correct parties are brought before the court and that persons who cannot adequately protect their own interests—such as minors and persons of unsound mind—are properly represented.
Having the capacity to sue or be sued does not establish the merits of the case; it merely establishes the legal ability to participate in the proceedings.
