Order XXVI Rule 4 CPC - Persons for Whose Examination Commission May Issue
Order 26 Rule 4 of the Code of Civil Procedure, 1908 explains when a civil court may examine certain witnesses through a commission instead of requiring their attendance in court, who may conduct the examination, and where the commission must be returned.
Legal provision: Order XXVI Rule 4
(1) Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of:
- any person resident beyond the local limits of its jurisdiction;
- any person who is about to leave such limits before the date on which he is required to be examined in Court; and
- any person in the service of the Government who cannot, in the opinion of the Court, attend without detriment to the public service.
First proviso: Where, under Order XVI Rule 19, a person cannot be ordered to attend a Court in person, a commission shall be issued for examination if the evidence is considered necessary in the interests of justice.
Second proviso: A commission for examination of such person on interrogatories shall not be issued unless the Court, for reasons recorded, considers it necessary.
(2) The commission may be issued to any Court other than a High Court within whose local jurisdiction the person resides, or to any pleader or other person appointed by the issuing Court.
(3) The issuing Court shall direct whether the commission is to be returned to itself or to a subordinate Court.
Plain-language presentation of the central statutory provision. Consult the official Code of Civil Procedure text on India Code for the authoritative wording and any applicable local amendments.
Meaning and scope of Rule 4
A commission is an authority issued by a court for specified procedural work, including recording a witness's testimony. Examination on interrogatories means obtaining evidence through questions framed for the witness; the court must record reasons when the second proviso requires it. The rule concerns the method of taking evidence and does not by itself decide whether the evidence is admissible or credible.
Witness living outside the court's territorial jurisdiction
Under clause (a), the court may appoint a commissioner to examine a witness who resides outside its local jurisdiction. The need for the evidence and applicable procedural safeguards remain relevant.
Witness about to leave the jurisdiction
Clause (b) covers a witness expected to depart before the scheduled examination. The application should explain the anticipated departure and why recording evidence through a commission is appropriate.
Government employee whose attendance affects public service
Clause (c) permits a commission where, in the court's opinion, attendance would be detrimental to public service. Government employment alone does not automatically establish that condition.
Order XVI Rule 19 and the two provisos
Order XVI Rule 19 limits when a witness can be compelled to attend personally based on distance and transport conditions. If a person cannot be ordered to attend under that rule, but the evidence is necessary in the interests of justice, the first proviso to Order XXVI Rule 4 requires a commission. The second proviso imposes a recorded-reasons requirement for examination on interrogatories in the circumstances it covers.
How to request examination by commission
- Identify the witness, proposed evidence and applicable ground under Rule 4.
- Apply to the court conducting the suit, explaining the facts and supplying supporting material where appropriate. Under Order XXVI Rule 2, an application may be supported by affidavit or otherwise; the court may also act on its own motion.
- Request an appropriate commissioner or receiving court and proposed arrangements for recording testimony.
- Comply with the court's directions concerning the examination, participation of parties, costs and return of the commission.
Under Order XXVI Rule 7, the executed commission and evidence are ordinarily returned as directed; Rule 8 governs when commission evidence may be read in the suit. Other provisions of Order XXVI may also apply.
Related provisions
Section 75 CPC provides the general statutory power to issue commissions, subject to prescribed conditions and limitations. Order XXVI Rules 1 to 3 address other circumstances and orders for examination of witnesses. Rule 4A separately allows commissions for witnesses within the issuing court's jurisdiction in specified circumstances. Rule 5 concerns witnesses outside India.