vvll maYJ:_:"`~ -~..:.+. . di -..:w.h 0

,I
ORDER XXVI
CoMMISSIONS
Commissions -to examine Witnesses
Cases in
1.
Any -GOUt! may inJtlly -suit issueacoIIUDiSsion
.,,- rtwhich :on.mten:ogatories
vvll maYJ:_:"'~ -~..:.+. .
for the..oeJCRB1~~t~
,or otherwise,
of any 4Wrson resident ~n
the,1ocal
0
-..:
o £<_..1
~
H~-d,;~~
di
w.h
t
d
and
th
issueiuHU'-,Uo!
...sJuns
\.-'Won
0 18 exempe
er'
IS vuue
'J.UIHt a~~
commissionthe :COurt or who is from sickness or infirmity "unable to attend it :
.'
'to examine
wituess-
'
'
-
, ,
lmJ8f::Acti VI
311
C'odeafCiuil Proeedure" 1'9'fJ8
(TIre Yust, Sdretiuk
Onie:r"JiXV1~mmissi;QI'L$.
~~)
Cammissiol'LS' to
l~
drat a' commissi{)B for examination' on interrogatories snaIl
not ,'00.:IsSued URI'es&the Court" f'Or"reasMIS to' re ;e~,
thinK:S' it
neeessary so to do.
Explmmtioa.- TIre Court may, for the purpO$e of this rule, accept a
cerlifieate ~tEJ>.
be>signed' by ategistered mediealpractitioner
as
e~
of fl}e sKness-. OF inmmity of any pel'S0Il, witno:ut calling the
~
praditioner. as a witness.}
,
z.. An order for the issue of a commission: for the examinatUm of a Order for
witness may be :made by the Courl either of its own motion or on the cmnmissicJD..
app1ieation,.. supported by affidavit or otherwise, of any party to the suit
or of the witDess to be examined.
3.. A commissipn, for the examination" of:a. ~'who
the lOCal 1mDhk of the jurisdietifm
of, tJie.Coort
issued to any peYSm1 whom the Court thmks
resides within
issuing, the same
fIt tOt eXealte it.
cnAny
Court may in any suit issue a commission
examinatiOn on inte:. £ogatoriesor otherwise O'ft4..
may be
;[for the
WbeR
;;::
withiD
Court's
jul'isttictm.
Persons for
whose
examination
(e:) any person resident beY(md the local limits of its jurisdiction;
(b) any person who is about to leave such limits before the date on
which he lSixeqpired to be ~xamiDed, in. Gout; and
commiaioD
IDa"
.
(t) $fany person'in' the servifre'of the Government} who>cannot, in
the opinion of ~CoUrl~ attend'witltout detriment to the publiciserviee :
4fProvided that. where,tmder
rule 19' o£ Order XVI, a person cannQt
be ordered td attend a Court;in person. a eonmnssion shall be'issned for,
ms examinatiqn if his evidence is considered necessary ifl the interests
of justiCe :
Provided,further that a, commission for examination: QfsNell person on
interrogatorie::r sbaH not beoissued unless the Court, forreasQllf..1io-, be
~
thinks' it. netessary' Sf).to' do.}
,
(2) Such com:gri.ssio. IBa¥ be, ~ssuedto. any Co~. not'be~
a. High
Court, within, the local; limits of whose' jurisdiction suelilipe:rson:f~es,
ortoeany pkader<m other person;whom tbeCourl is~.tljecemmission
may
1
appoint.
"
Added by Aci; 1:04 of 1976; s. 7& {i},
2 Substituted
by Act 104 of 197.6. &. 75 (ii) (it) roo" fo.rthe examination
of".
3 Subs. by the A. 0, 1937 fur "any civil or military officer of the' Government
,
Inserled"~
Act, 104m
1976.,&. Th (ii) (b),
",
-
is\me:;..
312
[1908 : Act V
Code of Civil,Procedure, 1908
(The First' Schedule Order XXVI-Commissions.
examine witnesses.)
Commissions to
(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.
Commission
for
examination
of any
person
resident
within the
local limits
of the
jurisdiction
of the
Court.
1[4:A; Notwithstanding"anythirig
contained in these rules, any Court
may, in the interest ofjustice oI'-for the expeditious disposJ1l of.the case
or for-any other reason, issue, coIIlmission in'any ~uit for the,exan:$1ation,on interrogatories or otherwise" of any person residellt .within the local
limits of its jurisdiction, and the evidence so recorded shall be read in
evidence.]
.
C~~~iss~~ 5. .~ere
any Court.~ w~ich application is ~8;de for the issue of a
to ex~ine comIDlSSlon for the examInatIon, of a person resIding at.any place not
witnes~n~t within 2[lndia] is satisfied that evidence of such person is necessary, the
wh:~:' Court may issue such commission or a letter~ofirequest.
'
1
Court
to
6.
"
Every Court receiving a commission for the examination
of any
ex~mine
wItness person shall examine him or cause him to be examined pursuant thereto.
'
pursuant to
'commission.
\;iI"
Ret~rn.of
7. Where a commission has been duly executed, it shall be 'returned,
commls;~~htogether with the evidence taken under it, to"th~ Court from which it
depositi~nswas issued, unless the order for issuing the commi~ion has. otherwise
of directed, in which case thecommision shall be retumediri terms of such"
witnesses. order; and. the commission and the return thereto and.theevidence
taken under it ,shall 3[(subject to the/provisions of rule 8)] from part of
the record of the suit.
'i,
When
8. Evidence taken under a commission shall not be read as eVidence
depositions
in
the suit without the consent of the , party againstwhOh1 thefiame 'is
may be read
in evidence. offered,- unless--' '.
,<
"
,'~-
(a) the person who gave, the evidence is beyond thej)1risP1ction of
the Court, or dead or qnable from sickness or infirmity to atte,nd to be
personally examined, or exempted from person~ appearance '41Court,
or'is a 4(person.in 'the service iofthe Governmenltwho cannot, in the
opinion ,of,the Court, attend without, detriment tothe,~public service,
or
.
.<i'
I Inserted by Act 46 of 1999, s. 29.
2 Subs. by Act 2 pf 1951.. s.3, for ".the Sta~s".
3
:
Substituted by Act 104 of 1976,s.. 75 (iii). for" (subject Jo the. provisions of the next
following
rule)".
.
4 Subs. by the A. O. 1937 for" civil or military officer of the Government".
1908 : Act V]
Code of Civil Procedure, 1908
313
(The First Schedule Order XXVI-Commissions. Commissions to
examine witnesses. Co~ions
for local investigations. Commissions
for Scientific investigation, performance of ministerial act and sale of
immovable property.)
,
(b) the Court in its-discretion dispenses with the proo{~f any of the
cm:umstancesmentioned
inelause (a), and auihori!;:es the evidence of
any person being read as evidence in the suit, notwithstand.ing proof
that the cause for taking .suCh evidence by commissioll has ceased at
,
~
the time of xeading the same.
ComTTiisSWns'for local investigations
9. In any suit in which the Court de.ems a local in~stigation to be
Commissions
requisite or proper for the purpose of ~lucidat!ng.~y,~matter,
in dispute, J::i"ke
,or of ascertaining the market-value 6f any property, or the amount of ~tiga.
.'
.
tiOnB.
any mesne profits or damages or annual net profits, the ,Court may Issue
,
a commission to such person as it thinks 'fit directing mm to'1llake such
investigation
and to repOrt thereon to the Court:.
"
Provided' that, where the State Government has tnade rules as to the
~rsons to whom such commission shall be issued, the Courlcshall be
hound by such rules.
'
"
10. (1) The Commissioner, after such local inspection as he ,Procedure
deems necessary, and after tequcing to writing the evidence taken :f~misby him, shall return such evidence, together with }iis report .in
writing signed by hi~; to. the Court.
'
:
(2) The<reportoftheCOJlllftissi~er
and the, evidence ..t8.ltenpYJJUm
Report and
but not the evidence without the;report ~hall be evidence iIi.the"s~it and'. ::sitions
shall form part of the record; but the Court or; with ,thepermission.of
~dence in,
the Court, any of the!parties to the. suit'may examine. th~Cqmmi~siqner ~'::~mis-:':...'.
perso~y
in open Cou~touching
any of the rnattel'S,~ferr~
fnelltioned in his report, 'or as to his report, or as to thg ~ner
he bas made investigation.
.
(3) Where
.
.
the Court--is furaIJ.Y,~~
of the'Gommissioner,
it shall think fit.
~itmay
.direct.-such
c
.
the:prt?~e~gs
fufthe.r.l¥l~
"
to be ',in,~d,~ '.'~
'
.
(
I[Commissions
for scMhti{it: iiwestigatiqn~
act and .sale of movable property.]
I Insftrted by Act 104 of 1976, s. 75 (iv).
84010-42
in,pe~n..
"
.'
~atij;fi«i!diwi.t4
,
to.'hIm ()r ~~r may
in ~hicb. ~~in.ed,
'
petforrr;mnceipt
\
ministerial
'.
-,
. , .~ " ,
314
[19G8 : Act V
Code of Civil Procedure, 1908
,
,
(The F'~r:stSchedule Order XXVI-Commissions.
Commissions for
ScierLii{ic invfst~atio1i, performance or ministerial' act' and sale of
.
Commission
for scientific
investigfltion.
movable property. Commissions to examineticcounts.)
10.t\. (1) Where any question arising in a suit involves any scientific
investigation which cannot, in the i>pinion of the Court, be conveniently
conducted before theG-ourt the Court may, if it thinks. it necessary or
expedient in,tl1e-int~est of jus~i~e so to do, issue a commission to such
persoA as it thiQ.k~.fi,!",d.jl\~cting him to inquire into such question and
report thereon to the Court. ..
,
(2) The provisions of 'rule 10 of this Order shall, as' far as may be,
apply in relation t6a COJpmissioner appointed und,er this rule' as they
apply in relation to a Commissioner appointed under rule 9.
Commission lOB. '(1) Where a~yquestion
arising in Ii suit involves the
for perforf perfQrInance of any ministerial act which cannot, in the opinion of the
m:~:~:lCourt, be conv~nlently;performed before the
Court, the Conrtmay, iHor,
act. reasons to be recorded, it,is"pf opinion; that it is necessary or expedient
in the ,interests.pfjusti~e ,so to do, is-sue a.commission to such ~rson as
it thinks fit, ~ecting
him to perform that ministerial act and'report
thereon to the Court.
'
.
(2) The provisions ofrtIle: 10 ,of this Order>shall apply, illrela~ion.to
a Corimiissioner-appoint~dunder
this ruleJl~ theyapplyin.relatioQ.to
a
CDmmissioner appointed under rule 9.
",
Commission
fo!i.the sale,
of movable
propeJJy.
.'"
lOCo (1) W11ere,in any suit, it becomes necessary to sell any movable
property, which is in the custody of.the COUI1;pending the determination
of the "suit;cand.which cflnnotf"be convepjentl~,pt,'eserved, the Court, may,
if, ,for ,rea~ons, tob~ fecorded, it, is .of opiniorf, tHat it' is necessary' Or
expedient in the interests of justice so' to do, issue a commission to such'
person as it thinks fit, directing him toconduct'such
sale"and report
thereon to the Court.
(2) The provisions of rule 100fthis0rd~r'shall
apply' in relation to
<1'Commissioner appointed under this rule as they ,apply.i~ relation to..a
Commissioner appointed under ,!ule9: '
'.
(3).,Every ,sucl1'sale shall. be. h~ld, as far as, may,. be, in accordance
with the prpceduieprescribecl for the sale o(mo'{aplepropeI1;y inexecution
.
o{a<Jecree.]
.'
"
Commissions
.
,"
to examine
'
",'
'.
,
accounts'
II. In a.ny s~i~ in""hich ~n examillation or adjustmentofaccounts
to exad-in~is nec?ssary, the Court mayissuea'commissi~n"
to such iper,s6n as it
::c:u~~~.tl1inks TIt directing him'to'make 'such exaniination'-oriadjustment.
I
Commission
Court to give
Commissioner
necessary
instructions.
12. (1) The Court shall furnish the Commissioner with ,such part of
the proceedings.,and, sucl1 instru9tions as appear n~cessa~..)!md..the
instruCtions shall distinctly specify'whether the Cqmmission.er'ts merely
to transmit the proceedings Which he >maYl1oN'Qrttfle inqliiry, or also
to report his own opinion on the point referrea' fOr llisexamination.
'
lQ~. ~~ActV]
315
Code of Civil Procedure, 1908
(The First Schedule Order XXVI.-Commissions.
Commissions
examine accounts. Commissions to make partitions,
General Provisions.)
(2) The proceedings and report (if any) of the Commissioner
to
shall be Courtto give
evidencein the suit, but where the Court has reasO.nto be dissatisfied
Commissioner
with them, it may ,direct such further inquiry as it shall think fit.
:SC::~S:tir:ns.
Commissions
to make partitions'
13. Where a preliminary decree for partition has been passed, the
Court may, in any case not provided fof by section 54, issue a commission
to such person as it thinks fit to'make the partition or separation according
to the rights as declared in ~ueh decree.
.
14. (1) The Commissioner
shall, after such inquiry as may be
necessary, divide the property into as many shares as may be directed
by the order .under which the commission was issued, and shall allot
such shares to the parties, and' may, if authorized thereto by the said
.order, award sums to be paid for the\purpose of equalizing the value of
.
the shares.
Commission
to make
partition of
immovable
property.
Procedure of
Commissioner.
(2) The Commissioner shall then prepare and sign a report or the
Commissioners (where the commission was issued to more than one person
and they cannot agree) shall prepare and sign separate reports appointing
the share of each party and distinguishing each share (if so directed by
the said order) by metes and bounds. Such report or reports shall be
~exed
to the cominission and transmitted tQthe Court; and the Court,
after hearing any objections which the parties may make to the report
or reports, shall confirm,.- 'vary or set aside .the
. same.
.
(3) Where the Court confirms or varies the report or reports it shall
pass a decree in accordance with the same as confirmed or varied; but
where the Court sets aside the report or :r:eports it shall either issue a
new commission or make such other order as it'shall think fit.
General provisions
15.
Before issuing any commission under this Order,the
'Court may Expensesof
order such sum Of any) as it thinks reasonable for the expenses of the :~m~on
commission to be, within a time to be fixed, paid into Court by the party
at whose instance or for whose benefit the commission is issued.
;
.16.
Any
Commissioner
appointed
under
this order may, unless
otherwise directed by the order of appointment,-
:
H 4010-42 a
documents
and other things relevant
.
Powers of
Cnmm~>:s.
(a) examine the parties themselves and any witness whom they or
any of them may produce, and any other person whom -the
CommissiQner thinks proper to call upon to giv~ evidence in the matter
referred to him; .
~
.
.
(b) call for and ep,mine
the subject of inqui# ;:
into Court.
to
Code of Civil Procedure, 1908
316
(The First Schedule Or.der XXVI-Commissions.
[1908 : Act V
General provisions.)
(c) at any reasonable time enter upon or into any land or building
mentioned in the order.
Q~estions
l[16A. (1) Where any questIon put to a witness is objected to by a
or his pleader in proceedings before a Commissioner appointed
under this Order, the Commissioner shall take down the question, the
_':;:;:~~~party
Commissioner.
answer, the objections and the n~e
the pleader so objecting:
Ofthe party or, .as the case may be,
Provided that the Commissioner shall not take down the answer to a
question which objected to on the ground of privilege but may continue
with the examination of the witness, leaving the party to get the question
of privilege decided by the Court, and, where the court decides that
there is no question of privIlege, the witness may be recalled by the
Commissioner and examined by him or the witness may be examined by
. the Court with regard to the question which was objected to on the
ground of privilege.
(2) No answer taken down under sub-rule (1) shall be read as evidence
in the suit execpt by the order of the Court].
.
Attendance
and
examination of
witnesses
before
Commissioner.
17. (1) The provisions of this Code relating to the summoning,
attendance and examination of witnesses, .and to the remuneration of,
and penalties to be imposed upon, witnesses, shall apply to persons
required to give evidence or to produce documents under this Order
whether the commission in execution of which they ,are so required has
been issued by a Court situate' within or by a Court situate beyond the
limits of 2[India], and for the purposes of this rule the Commissioner
shall be deemed to be a Civil Court:
3[Provided that when the Commissioner is not a Judge of a civil Court,
he shall not be competent to impose penalities ; but such penalties may
be imposed on the application of such commissioner by the Court by
which commission was issued.]
(2) A Commissioner may apply to any Court (not being a High Court)
within the local limits of whose jurisdiction a witness resiqes for the Issue
of any procesa. which he may find it necessary to issue to of. against such
witness, and such Court may, in its discretion,.issue such process as it
considers reasonable and proper.
1 Inserted
2
by Act 104 of 1976, s. 76 (v).
Subs. by Act 2 of 1951, s. 3, for" the States ".
3 Added by Act 104 of 1976, s. 75 (vi).
"
1908: Act V]
317
Code of Civil Procedure, 1908
(The First Schedule Order XXVI""-commiS,sions. General Provisions.
Commissions issued at the instance of foreign Tribunals.)
18. (1) Where a commission is issued under this Order, the Court
shall direct that the. parties to the suit shall appear before. the
Commissioner in person or by their agents or pleaders.
.
Partiesto
~~::s~~~~:~.
.
(2) Where all or any ofthe parties do not so appear, the Commissioner
may, proceed in their absence.
1[18A. The provisions ofthis Order shall apply, so far as may be, to
proceedings in execution of a decree or 'order.
18/B. The Court issuing a commission shall fix a date on or before
which the Commission shall be returned to it after execution, and the
date so fixed shall not be extended except where the Court, for reasons
to be recorded, is satisfied that there is suffic~ent cause for ext~nding the
date.]
Application
of Order to
execution
proceeding.
Court to fIXa
time for
return of
commission.
..
2[Commissions issued at the instance of foreign Tribunals
. 19.
.",.
(1) If a'HIgh Court is s'atisfledL;;
. [.."
(a) that a foreign Court situated in a foreign country wishes to
obtain the evidenc;e of a witness in any proceeding before it.
(b) that the proceeding is of a civil nature,
and
(c) that the witness is residing within the limits of the High Court's
appellate jurisdiction,
,
it may, subject to the provisions of rule 20, issue a commission for the
examination of such witness.
(2) EvidEmcemay be given of the matters specified in clauses (a), (b)
and (c) of sub-rule (1)(a) by a certificate signed by the consular officer of the foreign
country of the highest rank in India and transmitted
to the High
Court through the Central Govemment, or
(b) by a letter.ofrequest issued by the foreign Court and transmitted
~o the High Court throtig;h the Central Govemment, or
(c) by a letter of request issued by the foreign Court and produced
before the High Court by a party to the proceeding:
,
I Inserted
2
by Act .104 of 1976, s. 175 (vii).
Rules 19 to 22 and the heading above them ins. by Act 10 of 1932, s. 3.
,Cases in
.
which High
Court may
issue
commission
to examine
witness,
318
[l908-:Act
Code of Civil Procedure, J9()8
V
(The First Schedule Order XXVI-Commissions.
Commissions issued
at the instance of foreign Tribunals. Order XXVII -,Suits by or
against the Government or public Officers in their Official c;apacity.)
Application
for issue of - '20.
commission.
The
- High Court may issue a commission under rule 19-
(a) upon application by a party to the proceeding before the foreign
Court, or
'
(b) upon an application by a law officer of the State Government
acting under instructions from the State Government.
-
To whom
21.
.'"
A commission under rule 19 may be issued to any Court within
comr::;i: the local limits of wAAseJurisdiction the witness resides, or where
issued.1 * * * the witness resides within the loc:il limits of 2lthe ordinary
original civil jurisdiction of the High Court],' to any person whom the
Court tfunks fit to execute the commission.
'
Issue,
execution
and
22.
The provisions of rules 6, 15' 3(sub-rule (1) of rule 16-A, 17, 18
18-B} of this Order,- in so far as they are applicable shall apply to/
commissions,the issue.. execution and return of such commissions, and when ,any such
. ~?-dcom~ission has been duly execritedif shall be returned, together with
o}r:~~~~:~~the evidence taken under it, to the High Court, ,which Shall forward it
foreignCourt. to the Central Government,
along with the letter of request for
transmission to' the- foreign Court.}
re t UfIl0 f and
ORDER XXVII
SUITS BY OR AGAINST T$
GoVERNMENT OR PtmLIC
OFFICIAL CAPACITY
OFFICERES IN THEIR
'
Suit b.yor
1. In any suit by or' against -tithe Government}, 'th-e plaint or written
Gove=~~ statement shall be sign-ed by such person as the Government may! by
general or special order, appoint in,this b-ehalf, and shall be verified by
any person whom the Government may so appoint and who is acquainted
with the,facts of the case.
Persons
authorized
to aet for
Government.
'
2. Persons being ex-Officio-or otherwise authorized to act for the
Government in respect of any judicial proceeding shall b-ede~med to be
the recognized agents by whom appearances, acts and applications under
this Code may be made
. or done on behalf of. the Government.
1
1 Thewords"' the High Court is established under the Indian High G(}~rts Act, 1861,
or the G. of I. Act, 1915, and" rep. by the A. O. 1937.
'
2 Subs, by the A.O. 1937 fur
3 Substituted
4
"'
its ordinary original civil jurisdi~tiM".
by Act 104 of 1976, s. '75 (viii), for"' 16, 17 and 18". .
Subs, liy the A. O. 1937 for "the Secl'etaryof
State fuJ: Indi; in Council".