Code of Civil Procedure, 1908 | Order XXVI

Order XXVI Rule 1 CPC - When Courts May Issue a Commission to Examine Witnesses

Order 26 Rule 1 of the Code of Civil Procedure, 1908 allows a civil court to arrange examination of certain witnesses through a commission when they are legally exempt from attending court or cannot attend because of sickness or infirmity.

Text of Order XXVI Rule 1 CPC

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.

Source: India Code - Code of Civil Procedure, 1908 (official PDF). The proviso and explanation were inserted by the Code of Civil Procedure (Amendment) Act, 1976.

Meaning and scope of Rule 1

A commission is a court-authorised procedure for recording evidence through a person appointed or empowered for that purpose rather than requiring the witness to give evidence physically before the trial court. Interrogatories are written questions put for examination under the court's direction. Local limits of jurisdiction refer to the geographical area over which the court exercises jurisdiction.

Rule 1 addresses a witness who resides within the court's territorial jurisdiction and either enjoys an exemption from personal attendance under the CPC or is unable to attend because of sickness or infirmity. The word may means the court has discretion; a commission is not automatically granted merely on request.

Conditions for issuing a commission

The evidence is required in a civil suit and the witness resides within the issuing court's local jurisdiction.
The witness is exempted under the CPC from attending court, or sickness or infirmity prevents attendance.
The court assesses the circumstances and whether examination through a commission is appropriate.
If examination is proposed on interrogatories, the court must record reasons explaining why that mode is necessary.

Medical certificate and proof of inability to attend

The Explanation expressly permits the court to accept a certificate purporting to bear the signature of a registered medical practitioner as evidence of sickness or infirmity. The medical practitioner need not invariably be summoned to testify merely to prove the certificate. The court retains discretion to assess the material and seek further clarification where justified.

How to request examination by commission

Under Order XXVI Rule 2, the court may order a commission on its own motion or on an application by a party or the witness, supported by an affidavit or otherwise. An application should identify the witness, explain the relevance of the testimony, specify the grounds preventing attendance and attach supporting medical or exemption documents where applicable.

Under Rule 3, for a witness within the court's jurisdiction, the commission may be issued to a person the court considers fit. The court may give directions about the manner of examination and expenses. Rule 7 concerns return of the commission and depositions, while Rule 8 regulates when depositions may be read as evidence.

Section 75: general statutory power of courts to issue commissions, subject to prescribed conditions.
Order XXVI Rule 4: commissions for specified witnesses outside local jurisdiction, about to leave, or certain government servants.
Order XXVI Rule 4A: broader power to commission examination of a witness within local jurisdiction in the interest of justice or expeditious disposal.
Order XXVI Rule 5: commissions or letters of request for witnesses outside India.
Order XVIII Rule 4: procedure concerning recording evidence and examination of witnesses.

Practical example

If a material witness in a property dispute resides within the court's jurisdiction but is medically unable to travel because of serious illness, a party may apply for examination by commission. The court may consider a medical certificate and the need for the testimony before deciding whether to appoint a commissioner and what directions to issue.

Frequently asked questions

Is a medical certificate compulsory in every case?

No. The Explanation allows the court to accept a registered medical practitioner's certificate as evidence of illness or infirmity; the nature and sufficiency of proof depend on the circumstances.

Can a court issue a commission without a party's application?

Yes. Order XXVI Rule 2 permits the court to act on its own motion.

Does Rule 1 cover witnesses who live outside the court's jurisdiction?

Rule 1 is directed at witnesses residing within local jurisdiction. Other situations may be covered by Rules 4 and 5.

This article explains the general central CPC framework. Applicable state amendments, High Court rules and case-specific orders should also be checked.