Order XXVI Rule 3 CPC - Where Witness Resides Within Court's Jurisdiction

Order XXVI Rule 3 of the Code of Civil Procedure, 1908 (CPC) explains to whom a court may issue a commission for examining a witness who lives within the local limits of that court's jurisdiction.

Text of Order XXVI Rule 3 CPC

Source: The Code of Civil Procedure, 1908 - official India Code text (PDF).

Meaning and scope of Rule 3

A commission is an authority issued by a court authorising a designated person to perform a specified judicial task, here the examination of a witness. Under Rule 3, when the witness resides within the territorial jurisdiction of the court issuing the commission, the court may choose any person it considers suitable to execute the commission.

The words "may be issued" confer discretion; the rule does not make a commission automatic. Rule 3 primarily deals with the person to whom the commission may be issued. The legal basis for ordering an examination by commission and the relevant safeguards must be considered under the other applicable CPC provisions.

How a commission for witness examination is ordered

• Basis for examination: Order XXVI Rule 1 addresses specified witnesses within jurisdiction who are exempt from attending court or unable to attend because of sickness or infirmity. Rule 4A also permits commissions for witnesses within jurisdiction in the interest of justice, for expeditious disposal or for other reasons.
• Who may request it: Under Order XXVI Rule 2, the court may act on its own motion or on an application supported by affidavit or otherwise from a party or the witness.
• Appointment: Rule 3 permits the court to select a suitable person to execute the commission where the witness resides within its jurisdiction.
• Evidence and return: The commission is carried out subject to the court's directions and applicable rules governing examination, return of evidence and its use in the suit.

Related provisions of the CPC

Section 75 - Power of court to issue commissions

Section 75 authorises a court, subject to prescribed conditions and limitations, to issue commissions for purposes including examination of persons. Order XXVI supplies the detailed procedural rules.

Order XXVI Rules 1, 2 and 4A

Rule 1 describes circumstances in which certain witnesses within jurisdiction may be examined by commission. Rule 2 identifies who may initiate an order for commission. Rule 4A provides additional authority to examine persons residing within the court's jurisdiction.

Order XXVI Rules 7 and 8

Rule 7 governs the return of a duly executed commission and evidence taken under it. Rule 8 addresses when depositions recorded on commission may be read in evidence, subject to its specified conditions.

Practical illustration

If a witness resides within the court's territorial jurisdiction but the court considers examination through a commission appropriate under the applicable rules, it may appoint a suitable commissioner under Rule 3 to record that witness's evidence. The appointment and examination remain subject to the court's directions and procedural safeguards.

Official legal reference

Read the Code of Civil Procedure, 1908, including Order XXVI (India Code PDF) for the statutory language and connected provisions. Applicable state amendments, High Court rules and case-specific orders should also be checked.

This article provides general legal information and is not a substitute for advice on a particular proceeding.