Parties to proceedings

In one minute

Parties to proceedings are the claimant who sues and the defendant who is sued. The general rule is that any person, natural or legal, can sue and be sued in tort. Some persons need help or have special rules.

A minor and a person of unsound mind sue through another person. A company sues in its own name. The State has its own rules and notice requirements. Exams ask for these categories as a list, often as a short note.

Legal provision

• Order XXXII, Code of Civil Procedure, 1908: a minor sues through a next friend and is defended by a guardian for the suit. The same Order applies to persons of unsound mind.
• Order XXIX and Order XXX, CPC: suits by or against a corporation, and by or against a firm in the firm's name.
• Sections 79 to 82, CPC: suits by or against the Government. Section 80 requires two months' notice before suing the Government or a public officer for an act done in an official capacity.
• Sections 83 and 86, CPC: alien enemies and foreign States. A foreign State, ruler or ambassador can be sued only with the consent of the Central Government.
• Article 300, Constitution of India: the Union and a State may sue or be sued in the name of the Union or the State.
• Judicial Officers Protection Act, 1850: no judge is liable in a civil suit for an act done in the discharge of his judicial duty.

Meaning and definition

The parties to a tort proceeding are the plaintiff (the person claiming) and the defendant (the person against whom the claim is made). Capacity is the legal ability to sue or to be sued.

The question has two sides. Who can bring a claim for a tort? Who can be made to answer it? The answers differ for minors, persons of unsound mind, companies, the Government and others.

Detailed explanation

Step 1: the general rule

Every person who has legal personality can sue and be sued in tort. Section 9 of the Code of Civil Procedure lets civil courts try all suits of a civil nature. The categories below are special cases.

Step 2: minors

• Suing. A minor can sue for a tort done to him, but the suit must be filed by a next friend, usually a parent or guardian. The next friend acts for the minor.
• Being sued. A minor is liable for his own torts. The court considers his age and whether he understood what he was doing. He is defended by a guardian for the suit.

Step 3: persons of unsound mind

A person of unsound mind sues through a next friend or guardian, like a minor. He can be sued in tort. In Morriss v. Marsden (1952), an English court held a man of unsound mind liable for battery because he understood the nature of what he did. Where a tort needs a state of mind the person cannot form, he may not be liable.

Step 4: corporations and firms

• A company is a legal person. It can sue and be sued in its own name.
• It acts through its directors and employees, who are agents. It is vicariously liable for their torts in the course of their work.
• It can sue for defamation that harms its trade or business reputation. It cannot sue for wrongs that apply only to individuals, such as battery.
• A firm sues and is sued in the firm's name under Order XXX, but the partners are the real parties.

Step 5: the Government

• The Union or a State is sued by that name under Article 300 and section 79 of the Code of Civil Procedure.
• Section 80 requires a two-month notice before the suit. The court may allow urgent relief without waiting.
• The State is liable for torts of its servants in non-sovereign functions. The doctrine of sovereign immunity, and how far it survives, is covered in the note on the liability of the State.
• A public servant is also liable for his own torts, though some Acts protect acts done in good faith.

Step 6: foreign States, ambassadors and alien enemies

• Section 86 of the Code of Civil Procedure protects a foreign State, a ruler and an ambassador from suit unless the Central Government consents in writing.
• Under section 83, an alien enemy residing in India with the permission of the Central Government may sue. An alien enemy without permission cannot.
• An alien friend may sue in the same way as a citizen.

Step 7: other categories

• Husband and wife. A married woman in India has the same capacity as any other person to sue and be sued. The old common-law idea that husband and wife were one person is not part of Indian law.
• Insolvents. Once a person is declared insolvent, his right to sue for damage to his property vests the official receiver or assignee. He keeps the right to sue for wrongs to his person or reputation.
• Judges. A judge is not liable in a civil suit for acts done in the discharge of his judicial duty. The Judicial Officers Protection Act, 1850 gives this protection.
• The dead. The old rule actio personalis moritur cum persona ended a personal action on death. Statutes now allow some claims to survive, as covered in the note on death.
• Unborn child. English law, by the Congenital Disabilities (Civil Liability) Act, 1976, lets a child born alive sue for a disability caused by a prenatal wrong. India has no such statute.
• Joint tortfeasors. Two or more wrongdoers may be sued together or separately. This is covered in the note on joint liability.

• Parties to a tort case
  • Individuals
    • MinorSues through a next friend. Defended by a guardian for the suit.
    • Person of unsound mindSues through a next friend or guardian. Liable if he understood his act.
    • InsolventReceiver sues for property wrongs. He sues for personal wrongs.
  • Organisations
    • CompanySues and is sued in its own name. Vicariously liable.
    • GovernmentArticle 300. Section 80 notice of two months.
    • Foreign State or ambassadorSuit only with the Central Government's consent (section 86).

Don't confuse: capacity to sue and capacity to be sued

A person may have one capacity without the other. The table compares the main parties.

Party	Capacity to sue	Capacity to be sued
Minor	Yes, through a next friend	Yes, through a guardian for the suit
Person of unsound mind	Yes, through a next friend or guardian	Yes, if he understood his act
Company	Yes, for wrongs to property and reputation	Yes, in its own name
Government	Yes, in the name of the Union or State	Yes, after notice; sovereign functions have special rules
Foreign State or ambassador	Yes	Only with the Central Government's consent
Insolvent	Only for personal wrongs	Yes

Common mistakes

• Saying a minor cannot sue. He can, through a next friend.
• Saying a minor or a person of unsound mind is never liable in tort. Each can be liable.
• Forgetting the two-month notice under section 80 of the Code of Civil Procedure when suing the Government.
• Saying a foreign State can be sued like any party. Section 86 needs the Central Government's consent.
• Treating an insolvent as unable to sue at all. He may still sue for personal wrongs.

Apply it

Leading case laws

• State of Rajasthan v. Vidyawati (1962)

  Facts. A government jeep, returning from a repair shop, ran down a pedestrian.

  Principle. The Supreme Court held the State liable for the driver's negligence, as keeping a vehicle is not a sovereign function.

  Why it matters. The State can be sued like a private employer for non-sovereign acts.

• Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh (1965)

  Facts. Police seized a dealer's gold, and the head constable who kept it stole it and fled to Pakistan.

  Principle. The Supreme Court held that the State was not liable, because arrest, search and seizure are sovereign powers.

  Why it matters. It shows the limit of suing the State. Later cases confined the case.

• Chairman, Railway Board v. Mrs. Chandrima Das (2000)

  Facts. A Bangladeshi woman was gang-raped by men including Railway employees at Howrah.

  Principle. The Supreme Court upheld the award of Rs 10 lakhs and held that a foreign national can claim the protection of Article 21.

  Why it matters. It shows that a foreign national can sue the Union for compensation.

How to write this answer in the exam

Key points to remember

• General rule: any legal person can sue and be sued in tort.
• A minor and a person of unsound mind sue through a next friend or guardian (Order XXXII CPC).
• A company sues and is sued in its own name. It is vicariously liable.
• The Government needs a two-month notice (section 80 CPC).
• A foreign State or ambassador can be sued only with the Central Government's consent (section 86 CPC).
• An insolvent can sue only for personal wrongs. A judge is protected by the Judicial Officers Protection Act, 1850.

Quick self-test

Related topics

• General Principles of Liability in Torts
• Vicarious Liability
• Liability of the State for Torts – Defense of Sovereign Immunity
• Death