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Capacity To Sue And Be Sued In Torts

The Common Law of England is responsible for developing the Law of Torts. From the Latin word "Tortum," which meaning "twisted" or "crooked," comes the French term "tort." The phrase means that there is a change from the usual, straight, or decent conduct. It is equivalent to the word "wrong" in English. Roman law refers to it as a "delict."

To put it another way, the term "Tort" refers to a wrongdoing that someone commits or fails to commit those results in harm to another person. The victim then files a lawsuit in civil court seeking compensation in the form of unliquidated damages, an injunction, the return of lost property, or any other available relief. Unliquidated damages refer to the sum of damages that must be established or decided by the court.

According to case of [i]Gordon v. Lee and Joseph, a person who has committed or is accountable for a tort is called a "tortfeasor".

According to Prof. Winfield[ii], "Tortious Liability arises from breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages." Sir John Salmond4 defined the term Tort as "a civil wrong for which the remedy is common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of trust or other merely equitable obligation."

Sir John Salmond[iii] defined the term Tort as "a civil wrong for which the remedy is common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of trust or other merely equitable obligation."

In the USA, UK, and other developed nations, tort is well developed. However, unlike the Indian Contract Act of 1872 and the Indian Penal Code of 1860, among other laws, the law of torts is still not codified in India. The Consumer Protection Act of 1986, the Motor Vehicle Act of 1988, and other laws are attempts to codify some of its branches, although it is still in the developing stage. The general rule of tort law is that anybody who violates a legal duty has the right to sue the person who committed the harm.

This is a basic rule based on the locus standi tradition that only those who have experienced a legal damage are eligible for judicial remedy. This rule was based on premise that only a person whose own right is threatened, is entitled to seek a remedy, this rule translate itself into the following proposition of law[iv]:
  1. Only he has legal redress in the area where his own legal rights as to person or property are gravely and explicitly violated.
  2. A person who suffers along with other members of the public as a result of an administrative action cannot contest the action in question unless he can show some specific injury to himself that is above and beyond what other people have experienced.
  3. The court will often not consider a petition filed by a complete stranger who is contesting an administrative action.

Capacity To Sue And Be Sued In Torts

In the past, the only individual who could file a lawsuit seeking judicial redress was someone who had specifically been harmed legally as a result of real or threatened infringement of a right or interest that was protected by the law. This norm, nevertheless, is very old and came into existence when private law predominated the legal system and public law had not yet been created.

Everybody has a right to sue and is subject to being sued, according to the basic rule of tort law. However, this rule is not ironclad. There are exceptions to this basic norm due to individual disability depending on specific laws and situations. There are some people who cannot bring or receive a tort claim.

Who Can Sue and Who Cannot Sue?

The below points provides us with a clear understanding of as to who can sue and who cannot sue in tort:
  1. Convicts and persons in custody:
    For several offences covered by sections 126, 127, and 169 of the Indian Penal Code of 1860, confiscation of property was a sanction in India up until 1921. However, this punishment has since been eliminated. In India, a convict may therefore bring a tort claim for injuries to his person or property, as per existing law.

    The right to life and liberty, as well as the freedoms of speech and expression, are guaranteed under the Indian Constitution. In the case of Sunil Batra vs. Delhi Administration[1] the court determined that a person's conviction does not place an iron barrier between him and his rights, nor does it make him a non-person.

    In Smt. Kewal Pati v. State of UP[2], due to the jail officials inability to protect him, one prisoner was attacked by another prisoner within the facility and died. The Supreme Court granted Rs. 1,000,000 as compensation against the State for violating the basic right to life guaranteed by Article 21 in a case filed under Article 32 of the constitution by the deceased's relatives.
  2. Alien Enemy:
    Any individual, regardless of nationality, who resides in enemy territory or does business there is considered an alien enemy. An alien enemy cannot bring a claim on his own behalf. An alien enemy cannot file a lawsuit in an English court without the Crown's specific permission in England. In the case of Johnstone v. Pedler[3], (1921) 2 AC 262 it was decided that an alien adversary who entered the realm with the express or implicit permission of the Crown was momentarily released from his enemy status and might exercise judicial jurisdiction. In the words of Salmond, English courts are open to an alien enemy but he remains at the mercy of the Crown.[4]

    [5]In India as per Section 83, Civil Procedure Code, 1908, Aliens who are living in India with the Central Government's permission may file a lawsuit in any court that is otherwise qualified to hear the case, just like they would if they were Indian citizens.

    However, aliens who are living in India without the Central Government's permission or who are living abroad may not file a lawsuit in any such court. Additionally, every individual who resides in a foreign nation whose government is at war with India and does business there without a licence issued in that capacity by the Central Government is considered an alien enemy resident abroad.
  3. Married woman and husband
    A married woman could not file a claim in England before to 1882 unless her husband also joined the lawsuit as a plaintiff. Additionally, unless her husband was included as a defendant, she could not be prosecuted for a tort that she had committed. Due to the rule that husband and wife constitute one person in legal terms, neither she nor her husband may file a lawsuit against the other for any tort committed by one against the other.

    The Married Women's Property Act of 1882 and the Law Reform (Married Women and Tortfeasors) Act of 1935 both eliminated these anomalies. [6]A married woman can sue as if she is femme sole for any tort committed by a third person and can also be sued for any tort committed by her without joining her husband who cannot be made liable or made party to a suit simply because he is the husband.

    Additionally, each spouse in a marriage has the same right to file a tort claim against the other as if they were not married under the Law Reform (Husband and Wife) Act of 1962. To prohibit the parties from utilising the court as a forum for insignificant domestic issues that have no potential of materially benefiting either of them, the court may choose to halt the proceedings.

    Due to the Married Women's Property Act of 1874, such a woman can be sued and sued as a femme sole in India and any damages that may be obtained against her are payable out of her separate property. Hindus, Buddhists, Sikhs, Jains, and Muslims in India, however, are subject to personal laws rather than common law, which governs their marital status. Marriage does not offer any protection to any of the spouses for any torts committed by one against the other under these personal laws, nor does it change the ability of the parties to bring or receive a lawsuit.
  4. Bankrupt or insolvent
    If an insolvent commits a tort, his culpability is not a debt that can be proven against him in bankruptcy and is not released in bankruptcy. An insolvent may be sued for a crime he committed before or after declaring bankruptcy, and if found guilty, the money awarded will be considered a debt that may be proved in bankruptcy. However, a bankrupt or insolvent person cannot bring a claim for damages relating to their property since, under English law, all of their assets belong to the trustee in a bankruptcy, whereas in Indian law, they belong to the official assignee or official receiver.
  5. Corporation
    Due to the nature of corporations, it is obvious that they cannot suffer human injuries. However, corporations may bring claims for torts that cause damage to their property.

    The prerequisite is:
    1. The tort must not be impossible in some way.
    2. If the company can demonstrate that the defamation has the potential to result in actual damages, it may file a lawsuit against the other party.
    3. A corporation may file a lawsuit for libel or any other tort that negatively impacts its assets or operations.
    In the case of Mayor of Manchester v. Williams,[7] the plaintiff corporation's lawsuit for damages regarding a statement alleging corrupt activities in the management of municipal affairs was dismissed since it was determined that the statement did not harm the corporation as a whole.  
  6. Foreign Sovereign
    The jurisdiction of Indian courts does not extend to the heads of any nation. Every sovereign is exempt from the jurisdiction of every Court according to the fundamental element that to do so would violate his genuine dignity, which is his total independence from all higher authority. According to Section 86 of the Code of Civil Procedure from 1908, no ruler of a sovereign State may be sued in any court that is otherwise authorised to hear the matter, unless that ruler's government has provided its written agreement, which must be verified by a secretary of that government. [i]The Supreme court of India in 1966 applied this section to all foreign states whatever may be the form of government in the case of Mirza Ali Akbar.
  7. Minor
    In India as per sections 10 and 11 of the Indian Contract Act, 1872 a minor is incompetent to contract. [8]In Mohori Bibee vs. Dhurmodas Ghose, it was held that a minor's agreement being void ab initio; no action can be brought under the law of contract against him.

    Sections 82 and 83 of the Indian Penal Code of 1860 prohibit age-based distinctions in tort cases. Therefore, a seven-year-old child might be sued for trespass in the same way as an adult.

    However, until sufficient maturity for committing that tort can be shown in this specific case, a child cannot be held liable for a tort that requires a distinguishing mental element, such as dishonesty or malicious prosecution.

Who Cannot be Sued?

  1. Sovereign or King: The maxim "The King can do no wrong" serves as the foundation for the crown's exemption from legal accountability. Therefore, a claim of personal injury will not be brought against the Crown. While altering the previous legislation, "the Crown Proceedings Act, 1947" also upheld the prohibition on tort claims being made against the government in the course of private action.

    Our nation does not have a king. The Indian Constitution states that neither the President nor the Governors are subject to judicial review
    1. to execute and carry out the authority and responsibilities of their office,
    2. for any act they committed or pretended to commit while using and carrying out their duty and authority. No ruler of a former Indian State may be sued in a court without the government of India's consent, according to Section 87-B of the Civil Procedure Code.
  2. State: Courts cannot challenge an act carried out in the exercise of sovereign authority in reference to another State or its citizens. Acts of State are those that authorities of one State perform in the name of the citizens of another State. Among the key characteristics of a State act are:
    • The state's representative does the action.
    • Other States or its Subject are harmed by the act, and
    • Such actions are either carried out with previous State approval or approval that comes later. Such actions are not subject to liability. However, if a foreign person is hurt while exercising sovereign power, he can seek redress through diplomatic channels.
    An act of the State is as expressed by the court in [1]S. Hardial Singh vs. State of Pepsu the act of an executive as a matter of policy performed in the course of its relations with another State including its relations with the subjects of that State unless they are temporarily within the allegiance of the Crown.
  3. Ambassadors
    In India, the Ambassador is also covered under Section 86 of the Code of Civil Procedure. An ambassador or diplomatic envoy has certain advantages because he works as a cog in the system that keeps the two countries' ties in good standing. As a result, diplomatic agents are completely exempt from the receiving state's criminal law as well as its civil and administrative laws. If they are not nationals of the host country, members of the diplomat's family who live with them are also protected by this protection. This immunity applies not only to the diplomats themselves but also to their suite and household.
One can remove an ambassador by petitioning their own government to persuade the government of the host nation to punish the envoy and his staff in a way that would appease the complaining government.

The capacity to sue and be sued is crucial in determining whether or not a case is admissible in court. Several variables, such as fairness (lunatic), efficiency in upholding law and order (municipalities and public businesses), cordial connections with the state (foreign enemy), etc., determine whether or not someone can file a lawsuit or be sued.

While the law governing married women has changed over time, removing the prohibitions against spouses suing one another, other restrictions-ensuring that people who are themselves incapable, do not sue anyone else in a court of law, and to ensure that people who are exempt from being sued don't get sued by anyone-remain in place.

As Quoted by [i]Benjamin Cardozo in "The Growth of Law":
"Existing rules and principles can give us our present location, our bearings, our latitude and longitude. The inn that shelters for the night is not the journey's end. The law, like the traveller, must be ready for the morrow. It must have a principle of growth."

  1. Benjamin Cardozo: The Growth of Law (1924) Pages 19-20.
  2. S. Hardial Singh vs. State of Pepsu AIR 1960 Punj 644
  3. Sunil Batra vs. Delhi Administration AIR 1978 SC 1675.
  4. Smt. Kewal Pati v. State of UP (1995) 3 SCC 600.
  5. Johnstone v. Pedler (1921) 2 AC 262.
  6. Jowitt'S Dictionary of English Law, vol I(2nd edn.1977) p. 83.
  7. Explanation to Section 83, CPC. 1908
  8. Burke,John, (ed.) Jowitt's Dictionary of English Law, Vol 2 ( 2nd edn. 1977) p. 1153.
  9. Mayor of Manchester vs. Williams (1891) 1 QB 94.
  10. Mohori Bibee vs. Dhurmodas Ghose (1903) 30 Cal. 539.
  11. Mirza Ali Akbar vs. united Arab Republic AIR 1966 SC 230
  12. Gordon v. Lee and Joseph ,133 Me. (1935).
  13. Dr. Singh, Avtar, Introduction to Law of Torts, Lexis Nexis Butterworths Wadhwa Nagpur,2009, p. 3.
  14. Gandhi, B.M., LAW OF TORTS, Eastern Book Co (P) Ltd, Lucknow,2011, p. 4.
  15. jayvant1. (2001, March 1). Capacity Or Standing. Capacity Or Standing.

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