Code of Civil Procedure, 1908 / Order XXVI

Order XXVI Rule 2 CPC - Order for Commission

Order 26 Rule 2 of the Code of Civil Procedure, 1908 explains how a civil court may order the examination of a witness through a commission, either on its own initiative or following an application by a party or the witness.

Text of Order XXVI Rule 2 CPC

2. 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.

Source: Code of Civil Procedure, 1908 - official India Code PDF.

Meaning and scope of Rule 2

The rule concerns the procedure for ordering a commission to examine a witness. A commission enables evidence to be taken through a person or court authorized for that purpose, instead of requiring the witness to give evidence directly before the court hearing the suit.

Rule 2 does not, by itself, make a commission automatic. The court must consider the applicable provisions of Order XXVI, the circumstances of the witness and the needs of the case.

Who can request a commission?

The court itself: the court may act of its own motion (suo motu), without an application.
Any party to the suit: a plaintiff or defendant may seek the order.
The witness: the person whose examination is proposed may also apply.

Is an affidavit compulsory?

Rule 2 expressly permits an application supported by affidavit or otherwise. An affidavit is therefore not invariably mandatory under the wording of this rule. The applicant should nevertheless place adequate facts and supporting material before the court; applicable court rules and judicial directions may require additional formalities.

Section 75 CPC: empowers the court, subject to prescribed conditions and limitations, to issue commissions, including for examination of persons.
Order XXVI Rule 1: deals with examination of witnesses exempt from attending court or unable to attend because of sickness or infirmity, within the court's jurisdiction.
Order XXVI Rule 3: concerns the person to whom a commission may be issued for a witness residing within the court's jurisdiction.
Order XXVI Rule 4: addresses commissions for specified categories of witnesses, including those beyond the court's territorial jurisdiction.
Order XXVI Rule 4A: permits commissions for witnesses within the court's jurisdiction in the interests of justice, expedition or other reasons.
Order XXVI Rules 7 and 8: address return of the commission and conditions for reading depositions in evidence.
Order XXVI Rule 15: concerns payment of commission expenses into court.

Practical procedure

Identify the witness, the evidence sought and the legal basis for examining the witness on commission.
Submit an application, where necessary, with relevant facts and any supporting affidavit or documents.
The court considers the application and the relevant provisions of Order XXVI before making an order.
If a commission is issued, the court determines its terms and the person or court responsible for executing it, as applicable.
The evidence and commission are returned or dealt with as directed, subject to the applicable rules on use of the evidence.

Frequently asked questions

Can the court order a commission without an application?

Yes. Order XXVI Rule 2 expressly allows the court to act of its own motion.

Can a witness apply directly?

Yes. The rule expressly permits an application by the witness to be examined.

Does Rule 2 apply to local property inspections?

No. Rule 2 addresses commissions for examining witnesses. Commissions for local investigations are governed principally by Order XXVI Rule 9 and related rules.

Official legal reference

Read the Code of Civil Procedure, 1908 on India Code for the statutory provisions. State amendments and applicable High Court rules should also be checked in individual cases.

This article is general legal information and does not replace advice on the facts of a particular proceeding.