In civil litigation, the examination of witnesses is crucial for the adjudication of disputes. However, circumstances may arise where a witness cannot appear in court. To address such situations, the Code of Civil Procedure (CPC), 1908, empowers courts to issue commissions for the examination of witnesses under Order XXVI Rules 1-8. These provisions ensure that justice is served without undue delay or prejudice to any party.
MEANING, DEFINITION & EXPLANATION
A ‘commission’ refers to an authority granted by the court to a person (commissioner) to perform a specific act, such as recording the testimony of a witness, which the court otherwise would have done itself. This mechanism facilitates the collection of evidence when direct court examination is impractical or impossible.
LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA
The issuance of commissions for examining witnesses is governed by Sections 75 to 78 of the CPC and elaborated in Order XXVI Rules 1-8. Section 75 outlines the general power of the court to issue commissions, while Order XXVI provides detailed procedures.
1. CASES IN WHICH COURT MAY ISSUE COMMISSION TO EXAMINE WITNESS (RULE 1)
The court may issue a commission for the examination of a person in the following situations:
- The person resides beyond the local limits of the court’s jurisdiction.
- The person is about to leave such limits before the date of examination.
- The person is in government service and cannot attend without detriment to public service.
- The person is exempted from attending the court or is unable to attend due to sickness or infirmity.
2. ORDER FOR COMMISSION (RULE 2)
The court may issue the commission either on its own motion or upon application by any party to the suit, supported by an affidavit detailing the reasons necessitating the commission.
3. WHERE WITNESS RESIDES WITHIN COURT’S JURISDICTION (RULE 3)
If the witness resides within the local limits of the court’s jurisdiction, the commission may be directed to any person the court deems fit to execute it.
4. PERSONS FOR WHOSE EXAMINATION COMMISSION MAY ISSUE (RULE 4)
Commissions may be issued for the examination of:
- Any person resident beyond the local limits of the court’s jurisdiction.
- Any person who is about to leave such limits before the date on which they are required to be examined in court.
- Any person in the service of the government who cannot, in the court’s opinion, attend without detriment to public service.
5. COMMISSION OR REQUEST TO EXAMINE WITNESS NOT WITHIN INDIA (RULE 5)
When a witness resides outside India, the court may issue a commission or a letter of request for their examination, provided it is satisfied that the witness’s evidence is necessary.
6. COURT TO EXAMINE WITNESS PURSUANT TO COMMISSION (RULE 6)
The court receiving a commission is obligated to examine the witness or cause them to be examined pursuant to the commission.
7. RETURN OF COMMISSION WITH DEPOSITIONS OF WITNESSES (RULE 7)
Upon execution, the commission, along with the recorded evidence, must be returned to the issuing court, forming part of the record of the suit.
8. WHEN DEPOSITIONS MAY BE READ IN EVIDENCE (RULE 8)
Evidence taken under a commission shall not be read as evidence in the suit without the consent of the party against whom it is offered unless:
- The witness is beyond the court’s jurisdiction, deceased, or unable to attend due to sickness or infirmity.
- The witness is exempted from personal appearance in court or is a government servant who cannot attend without detriment to public service.
- The court, in its discretion, dispenses with the proof of any of the above circumstances and authorizes the evidence to be read, notwithstanding that the reason for taking such evidence by commission has ceased at the time of reading.
CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS
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Padam Sen v. State of Uttar Pradesh, AIR 1961 SC 218
- Facts: The plaintiffs filed a suit for accounts and alleged that the defendants were tampering with account books. The court appointed a commissioner to seize the account books.
- Issue: Whether the court had the authority under the CPC to appoint a commissioner to seize documents.
- Held: The Supreme Court held that the court had no inherent power under the CPC to appoint a commissioner to seize documents. The power to issue a commission is limited to the purposes expressly mentioned in Section 75.
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A. K. Gupta and Sons Ltd. v. Damodar Valley Corporation, AIR 1967 SC 96
- Facts: The plaintiff sought amendment of the plaint to include a claim for damages that arose after the filing of the suit.
- Issue: Whether such an amendment could be allowed.
- Held: The Supreme Court held that amendments that do not alter the fundamental nature of the suit and are necessary for determining the real questions in controversy should be allowed.
DOCTRINES / THEORIES
- Doctrine of Necessity: This doctrine underpins the issuance of commissions, emphasizing that when a witness’s direct examination in court is impractical, necessary alternative measures, like commissions, should be employed to ensure justice.
MAXIMS / PRINCIPLES
- Actus Curiae Neminem Gravabit: This legal maxim means that an act of the court shall prejudice no one. The issuance of a commission ensures that parties are not disadvantaged due to circumstances preventing a witness from attending court.
AMENDMENTS / ADDITIONS / REPEALING
The Code of Civil Procedure has undergone several amendments to address the evolving needs of the justice delivery system. Notably, the CPC (Amendment) Act… (incomplete in source text).
