Order XXVI Rule 19 CPC - High Court Commission to Examine Foreign Court Witnesses

Order XXVI Rule 19 of the Code of Civil Procedure, 1908 (CPC) enables an Indian High Court, in specified circumstances, to issue a commission to record evidence from a witness in India for a civil proceeding before a foreign court. The provision is subject to Rule 20 and requires the High Court to be satisfied about the nature of the foreign proceeding and the location of the witness.

Text of Order XXVI Rule 19 CPC

Cases in which High Court may issue commission to examine witness

(1) If a High Court is satisfied—

that a foreign court situated in a foreign country wishes to obtain the evidence of a witness in any proceeding before it,
that the proceeding is of a civil nature, and
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) Evidence may be given of the matters specified in clauses (a), (b) and (c) of sub-rule (1)—

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 Government, or
by a letter of request issued by the foreign Court and transmitted to the High Court through the Central Government, or
by a letter of request issued by the foreign court and produced before the High Court by a party to the proceeding.

Meaning and scope of Rule 19

The rule provides a mechanism for judicial assistance in taking evidence for a foreign civil court. It does not itself decide the foreign dispute or make the foreign court's orders executable in India. A commission is an authority issued by a court for a designated person to perform a specified procedural act, such as examining a witness.

Three conditions for issuing a commission

Foreign court request: A court situated outside India seeks testimony of a witness for a proceeding before that court.
Civil nature: The foreign proceeding must be civil, rather than criminal, in nature.
Territorial connection: The witness must reside within the territorial limits of the High Court's appellate jurisdiction.

Even if these requirements are established, the rule uses the word "may": the High Court exercises discretion, subject to Rule 20 and other applicable procedural requirements.

How the request may be established

Rule 19(2) identifies three documentary routes: a certificate from the highest-ranking consular officer of the foreign country in India routed through the Central Government; a foreign court's letter of request routed through the Central Government; or a foreign court's letter of request produced to the High Court by a party to the proceeding. These are alternative means of establishing the required matters, not three cumulative documents.

Order XXVI Rule 20 addresses applications for commissions under Rule 19 and should be read together with it. Order XXVI Rule 21 concerns the persons to whom such commissions may be issued. Section 75 CPC sets out the court's general power to issue commissions, subject to prescribed conditions and limitations. Order XXVI Rule 17 addresses attendance and examination of witnesses before a commissioner.

Illustrative example

Suppose a foreign court hearing a contractual dispute needs testimony from a witness residing within the appellate jurisdiction of an Indian High Court. A letter of request from that foreign court may be placed before the High Court under Rule 19(2). If the High Court is satisfied that the statutory requirements are met, it may issue a commission, subject to Rule 20. This example does not mean that issuance is automatic.

Official legal reference

Consult the Code of Civil Procedure, 1908 on India Code for the central legislation and its schedules. State amendments, applicable High Court rules, and the current text governing a particular proceeding should also be checked.

This article provides general legal information, not case-specific legal advice.