Order XXVI Rule 21 CPC - To Whom a Commission May Be Issued
Order XXVI Rule 21 of the Code of Civil Procedure, 1908 explains the court or person to whom a High Court may entrust a commission to examine a witness in India for a foreign civil proceeding.
What does Order XXVI Rule 21 provide?
Rule 21 operates with Rule 19, which concerns commissions issued at the instance of foreign tribunals. The rule permits the commission to be issued to a court having territorial jurisdiction over the place where the witness resides. It also addresses appointment of a suitable person where the witness resides within the High Court's ordinary original civil jurisdiction.
Who may execute a commission under Rule 21?
- A court with local jurisdiction: A commission may be sent to a court within whose territorial jurisdiction the witness resides.
- A fit person selected by the High Court: In the situation contemplated by the central text concerning its ordinary original civil jurisdiction, the High Court may appoint a person it considers fit to execute the commission.
The wording and operation of Rule 21 may be affected by applicable High Court amendments or local rules. For example, a Kerala amendment has been reported to provide for a commission to any court within whose local jurisdiction the witness resides or to any person whom the court considers fit. The governing local text should be checked before filing.
Related legal provisions explained
Order XXVI Rule 19 - When the High Court may issue a commission
Rule 19 deals with a foreign court seeking evidence for a civil proceeding from a witness residing within the Indian High Court's appellate jurisdiction. It specifies the conditions and supporting forms of request that enable the High Court to consider issuing a commission.
Order XXVI Rule 20 - Application for a commission
Rule 20 permits an application by a party to the foreign proceeding or by a law officer of the State Government acting under State Government instructions.
Order XXVI Rule 22 - Execution and return of evidence
Rule 22 governs the issue, execution and return of the commission and the onward transmission of the evidence to the foreign court, applying specified procedural rules of Order XXVI where relevant.
Section 75 CPC - Power to issue commissions
Section 75 is the general enabling provision for courts to issue commissions, subject to prescribed conditions and limitations, including for examination of persons. Order XXVI sets out procedural rules for particular types of commissions.
Practical procedure
In a matter involving a foreign civil court, the applicant should identify the foreign proceeding, the witness and residence, the material evidence sought, and the legal basis for the request under Rules 19 and 20. If the High Court is satisfied that the conditions are met, it may determine the appropriate court or commissioner under Rule 21 and issue directions for taking and returning the evidence under Rule 22.
Commission procedure may also involve directions about expenses, attendance of parties, recording objections and the time for returning the commission, as provided by the applicable rules and court order.
Official statutory source
Read the Code of Civil Procedure, 1908 - India Code (official PDF) for Order XXVI Rules 19 to 22 and Section 75. Verify applicable state amendments and High Court procedural rules for the relevant jurisdiction.
Frequently asked questions
Is Rule 21 used for every commission in a civil suit?
No. Rule 21 specifically concerns a commission under Rule 19 in the context of foreign tribunals. Other provisions of Order XXVI govern domestic civil commissions.
Can the High Court appoint an individual commissioner?
Yes, subject to the statutory language and any applicable local amendment or court rules, the High Court may appoint a person it considers fit in circumstances covered by Rule 21.
Does Rule 21 itself authorize a foreign court to summon a witness in India?
No. It identifies who may execute a commission issued by the Indian High Court under the statutory process. The requirements for issuing the commission are found principally in Rules 19 and 20.
This article provides general legal information. Court-specific practice, applicable amendments and procedural requirements should be verified for individual cases.