Order XXVI of Code of Civil Procedure,1908 talks about the commission for examining witnesses. Cases in which the action is pending, the court may issue commission to direct the depositions of witnesses. It is a judicial commission which directs that a witness beyond court’s jurisdiction should be deposed. Commission performs function which helps the commissioner. Commission identifies who is the person to be deposed, when and where the deposition will be taken place and any other information helping commissioner. This is also termed as commission to take testimony.
Order XXVI of Code of Civil Procedure,1908
Cases in which court may issue commission to examination of witness
Court may issue in any case a commission to examine the interrogatories or any person within the local limits of jurisdiction except the cases in which a person is exempted from attending the court or who is from sickness or deformity unable to attend it.
Provided that the court has recorded for the reasons for the commission and things necessary to do.
Order for commission
Order of commission is issued by the court either of its own motion or on the application supported by an affidavit.
Where witness resides within Court’s jurisdiction
A commission for the examination of a person who resides within the local limits of the jurisdiction of the Court issuing the same may be issued to any person whom the Court thinks fit to execute it.
Persons for whose examination commission may issue
a. Court may issue commission to :
- Any person resident beyond the local limits of the jurisdiction.
- Any person who is about leave such limits before the date on which he has to be examined in Court.
- Any person who is in the service of Government cannot attend without detriment to the public service is the opinion of the court.
Provided that a person cannot be ordered to attend a court in person then a commission shall be issued for the examination only if it is considered necessary in the interests of justice. Provided further that a commission of such person shall not be issued unless the court, for reasons to be recorded and thinks it necessary to do so.
b. Commission may be issued to any Court within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the Court issuing the commission may appoint. This is not applicable to High court.
c. The Court on issuing any commission under this rule shall direct whether the commission shall be returned to itself or to any subordinate Court.
Commission to examine witness not within India
The issue of a commission for the examination of a person residing at any place not within India is satisfied that the evidence of such person is necessary then the Court may issue a letter of request.
Court to examine witness pursuant to Commission
Every Court shall examine him or cause him to be examined pursuant thereto.
Return of commission with depositions of witnesses
A commission which is duly executed shall be returned together with the evidence taken under it, to the Court from which it was issued. If the order for issuing the commission has been directed, then the commission shall be returned in terms of such order. The commission and evidence taken under it shall be subject to the provisions of Rule 8 from part of the record of the suit.
When depositions may be read in evidence
Evidence which has been taken under a commission for examination shall not be read as evidence in the suit without the consent of the party against whom the same is offered, unless-
(a) The person who gave the evidence is beyond the limit of jurisdiction of the Court, or dead or unable from sickness or infirmity to attend the examination, or exempted from appearing in Court, or is a person in the service of the Government who cannot attend without detriment to the public service in the opinion of the court, or
(b) With the proof of any of the circumstances mentioned in clause (a), the court in its discretion dispenses and authorizes the evidence of any person being read as evidence in the suit, notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same.
Illustration 1: Paul Samuel v. Koil Pithchai Anandhadurai[i]
The Apex court held the fact that the witness examined on commission cannot be effectively cross examined or their examination will entitle heavy costs will not be ground to interfere with the discretion of the learned trial judge.
Illustration 2 : Filmistan Private Ltd., Bombay vs Bhagwandas Santprakash And Anr. on 21 August, 1970[ii]
In this case, the witnesses who were to be examined were residing in Kabul. The order was passed directing “issue of letter of request” to the Indian Ambassador to examine the witnesses who were residing there on commission. This order was challenged before the Court. It held that the witnesses examined on comission cannot be cross examined or it will entitle to heavy costs.
Illustration 3 : Om Prakash Kajaria v. M/S Circular Investment Trust Ltd.[iii]
Advanced age of a witness can be construed as a ground of infirmity on the basis of which the court can pass an order invoking the provision of Order 26, Rule 1 of the Code of Civil Procedure. The legislature has given a wide discretion to the court to issue commission to examine witness who is exempted under the code from attending the court or who is suffering from disease or infirmity.
Frequently asked question
What situation does the court can issue the examination of witness by the commissioner?
According to Order XXVI Rule 1 of CPC 1908, the court can issue commission for examination of witness if there is valid reasons or suffering medical sickness or any other condition then the court may engage a commissioner . It is done only if it deemed necessary.
When does the process of deposition takes place?
Deposition takes place at the stage of discovery phase of civil or criminal litigation. It is the process by which the parties exchange evidence and information with each other about the case. It is held away from the court house in the office of an attorney for any one of the parties. Some jurisdiction allow video recording of a deposition unless the attorney involved in the case agree to it.
Where the commissioner shall report its investigation and evidences?
According to Order XXVI Rule 4(3) the court when they issue commission to the commissioner , they also direct the reporting of the investigation. It can be returned to the same court itself where the commission is issued or to any other subordinate court. This depends on the requirement and discretion if the court.
Is there any provision to examine a foreign witness?
Yes, the conditions and the situations under which the High Court has the power to examine the foreign witness is given under Order XXVI Rule 19.
Can the commissioner investigate the witness in his own way?
Commissioner can examine witness only in the way directed by the court, he is restricted to certain power prescribed under Order XXVI Rule 16 of CPC, 1908. Rule 16(A) of the same order provides that the witness has the power to deny the answer of certain questions or certain point of investigation.
In the course of enquiry, the trial under the Code of Civil Procedure, if it appears that examining witness will satisfy justice then examination should be conducted without delay, expense or inconvenience. A commission is an order of someone to do something. Commission is issued to examine any person within local limits of jurisdiction except in cases where such person is exempted from attending the court session or such person is caused with sickness or deformity and unable to attend. A letter of request is needed if suppose such person who needs to be examined resided outside the limit of jurisdiction. Therefore, a person residing outside India is not exempted from examination. With the consent of the parties the examination of witnesses can be taken as evidence. These commissions helps in deposition of witnesses and result in fast disposal of pending cases.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
[i] (1993) 2 MLJ 109
[ii] AIR 1971 SC 61, (1970) 3 SCC 258
[iii] AIR 2009 Calcutta 66