Code of Civil Procedure, 1908

Order XXVI Rule 16A CPC - Questions Objected to Before Commissioner

Order XXVI Rule 16A of the Code of Civil Procedure, 1908 (CPC) governs how objections to questions are handled when a witness is examined by a commissioner appointed by a civil court. It distinguishes ordinary objections from objections based on privilege and reserves the decision on the use of disputed answers to the court.

Text of Order XXVI Rule 16A CPC

Sub-rule (1) - Recording objections

Where any question put to a witness is objected to by a party or his pleader in proceedings before a Commissioner appointed under this Order, the Commissioner shall take down the question, the answer, the objections and the name of the party or, as the case may be, the pleader so objecting:
Provided that the Commissioner shall not take down the answer to a question which is 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.

Sub-rule (2) - Use of recorded answers

No answer taken down under sub-rule (1) shall be read as evidence in the suit except by the order of the Court.

Meaning and legal effect

Commissioner: A person appointed by the civil court under Order XXVI to carry out a specified task, including recording evidence. The commissioner's authority is governed by the appointment order and the CPC.

Objection: A challenge raised by a party or the party's pleader to a question put to a witness. For a non-privilege objection, the commissioner records the question, answer, objection and identity of the objector; the commissioner does not finally determine admissibility merely by recording them.

Privilege: A legal ground for withholding protected information or testimony, where applicable under the law of evidence. If privilege is claimed, the commissioner must not record the answer to that question until the court resolves the issue.

Procedure when a question is objected to

A party or pleader objects to a question during examination before the commissioner.
For an ordinary objection, the commissioner records the question, answer, objection and the objector's name.
For an objection based on privilege, the commissioner does not record the answer and may continue examining the witness on other questions.
The court decides the privilege issue. If privilege is rejected, the commissioner may recall and examine the witness, or the court may examine the witness on that question.
An answer recorded under sub-rule (1) cannot be read as evidence in the suit unless the court orders otherwise.

Order XXVI Rule 16 CPC: Describes a commissioner's powers, subject to the order of appointment, including examination of persons, inspection of relevant documents and entry upon specified premises at reasonable times.

Order XVIII CPC: Contains rules concerning the hearing of suits and examination of witnesses, including the recording of evidence by commissioners in appropriate cases.

Bharatiya Sakshya Adhiniyam, 2023: The law of evidence in force from 1 July 2024, subject to its savings and transitional provisions. Questions of privilege and admissibility must be assessed under the evidence law applicable to the proceeding.

Illustration

During a commission to record testimony, counsel objects that a question seeks privileged professional communication. The commissioner does not record the answer to that question and proceeds with other questions. The court decides whether privilege applies. If it does not, the witness may be examined on the disputed question in the manner specified by Rule 16A.

Official legal resources

Consult the India Code official legislation portal for the Code of Civil Procedure, 1908 and the Bharatiya Sakshya Adhiniyam, 2023. Court orders and applicable local amendments should also be checked for the particular case.

This article explains the central CPC provision generally. State amendments, court rules and case-specific directions may affect its application.