ORDER XXVI COMMISSION TO EXAMINE WITNESSES - RULE 1, 2, 3, 4, 5, 6, 7, 8 OF CODE OF CIVIL PROCEDURE 1908

What are the Cases in which Court may issue commission to examine witness? What is Order for commission? Where witness resides within Court's jurisdiction? Persons for whose examination commission may issue? Process when Commission or request to examine witness not within India? Is Court to examine witness pursuant to Commission? What is Return of commission with depositions of witnesses? When depositions may be read in evidence? Rule 1, 2, 3, 4, 5,6, 7 and 8 of Order XXVI of Code of Civil Procedure 1908

Cases in which Court may issue commission to examine witness, Order for commission, Where witness resides within Court's jurisdiction, Persons for whose examination commission may issue, Commission or request to examine witness not within India, Court to examine witness pursuant to Commission, Return of commission with depositions of witnesses and When depositions may be read in evidence are defined under Rule 1, 2, 3, 4, 5, 6, 7 and 8 of Order XXVI of Code of Civil Procedure 1908. Provisions under these Rules are:


 

Rule 1 Order XXVI of Code of Civil Procedure 1908 "Cases in which Court may issue commission to examine witness"

Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it:

Provided that a commission for examination on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.

Explanation.-The Court may, for the purpose of this rule, accept a certificate purporting to be signed by a registered medical practitioner as evidence of the sickness or infirmity of any person, without calling the medical, practitioner as a witness.

Rule 2 Order XXVI of Code of Civil Procedure 1908 "Order for commission"

An order for the issue of a commission for the examination of a witness may be made by the Court either of its own motion or on the application, supported by affidavit or otherwise, of any party to the suit or of the witness to be examined.

Rule 3 Order XXVI of Code of Civil Procedure 1908 "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.

Rule 4 Order XXVI of Code of Civil Procedure 1908 "Persons for whose examination commission may issue"

(1) Any Court may in any suit issue a commission 5[for the examination on interrogatories or otherwise of-

(a) any person resident beyond the local limits of its jurisdiction;

(b) any person who is about to leave such limits before the date on which he is required to be examined in Court; and

(c) any person in the service of the Government who cannot in the opinion of the Court, attend without detriment to the public service ;

Provided that where, under rule 19 of Order XVI, a person cannot be ordered to attend a Court in person, a commission shall be issued for his examination if his evidence is considered necessary in the interests of justice:

Provided further that a commission for examination of such person on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.

(2) Such commission may be issued to any Court, not being a High 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.

(3) The Court on issuing any commission under this rule shall direct whether the commission shall be returned to itself or to any subordinate Court.

Rule 5 Order XXVI of Code of Civil Procedure 1908 "Commission or request to examine witness not within India"

Where any Court to which application is made for 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, the Court may issue such commission or a letter of request.

Rule 6 Order XXVI of Code of Civil Procedure 1908 "Court to examine witness pursuant to Commission"

Every Court receiving a commission for the examination of any person shall examine him or cause him to be examined pursuant thereto.

Rule 7 Order XXVI of Code of Civil Procedure 1908 "Return of commission with depositions of witnesses"

Where a commission has been duly executed, it shall be returned, together with the evidence taken under it, to the Court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order; and the commission and the returned thereto and the evidence taken under it shall 8[(subject to the provisions of rule 8)] from part of the record of the suit.

Rule 8 Order XXVI of Code of Civil Procedure 1908 "When depositions may be read in evidence"

Evidence taken under a commission 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 jurisdiction of the Court, or dead or unable from sickness or infirmity to attend to be personally examined, or exempted from personal appearance in Court, or is a 9[person in the service of the Government] who cannot, in the opinion of the Court, attend without detriment to the public service, or

(b) the Court in its discretion dispenses with the proof of any of the circumstances mentioned in clause (a) 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.

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