Code of Civil Procedure, 1908 | Order 26 | Commissions

Order XXVI Rule 4A CPC - Commission to Examine Witnesses Within Court Jurisdiction

Order XXVI Rule 4A of the Code of Civil Procedure, 1908 empowers a civil court to appoint a commission to record evidence from a person who lives within its territorial jurisdiction. It offers flexibility where recording evidence through a commissioner would serve justice or help dispose of a suit promptly.

Statutory provision: Order XXVI Rule 4A

Commission for examination of any person resident within the local limits of the jurisdiction of the Court.

Notwithstanding anything contained in these rules, any court may, in the interest of justice or for the expeditious disposal of the case or for any other reason, issue commission in any suit for the examination, on interrogatories or otherwise, of any person resident within the local limits of its jurisdiction, and the evidence so recorded shall be read in evidence.

Source: India Code - Code of Civil Procedure, 1908 (official text, Order XXVI). Rule 4A was inserted by the Code of Civil Procedure (Amendment) Act, 1999 (Act 46 of 1999), effective 1 July 2002.

Meaning and scope of Rule 4A

Commission: A court-authorised process through which a commissioner records a witness's evidence instead of requiring all testimony to be taken directly in the courtroom.

Local limits of jurisdiction: The geographical area within which the court exercises its territorial jurisdiction. Rule 4A concerns witnesses resident within those limits.

Notwithstanding anything contained in these rules: Rule 4A operates despite other rules within the same Order that might otherwise limit the circumstances for issuing a commission. The power remains discretionary and must be exercised judicially.

Interrogatories: Written questions used to obtain testimony under the procedure authorised by the court. Rule 4A also allows examination by other permissible methods.

When may a court issue a commission?

The court may use Rule 4A in a civil suit when it considers commission evidence appropriate in the interests of justice, for expeditious disposal of the case, or for another proper reason. A witness need not live outside the court's jurisdiction merely to qualify under this provision.

Examples may include situations in which recording evidence through a commissioner can avoid unnecessary adjournments, facilitate witness examination, or manage the court's evidence-taking schedule. These are illustrations, not automatic entitlements to a commission.

Application and procedure

Request or court initiative: Under Order XXVI Rule 2, the court may act on its own motion or on an application by a party or the witness, supported by affidavit or otherwise.
Judicial decision: The court determines whether a commission is appropriate and specifies the terms and scope of the examination.
Recording evidence: The appointed commissioner records the witness's testimony in accordance with the court's directions and applicable procedural safeguards, including opportunities for examination and cross-examination where appropriate.
Return of commission: The commission and recorded evidence are returned in accordance with Order XXVI Rule 7 and the court's directions.
Use of evidence: Rule 4A expressly provides that the evidence so recorded shall be read in evidence; its evidentiary use is considered alongside the applicable procedural requirements and the court's assessment of the testimony.

Section 75: Authorises courts, subject to prescribed conditions and limitations, to issue commissions for purposes including examination of persons.
Order XXVI Rule 1: Examination by commission of certain persons exempt from attendance or unable to attend due to sickness or infirmity.
Order XXVI Rule 2: How an order for examination of a witness on commission may be initiated.
Order XXVI Rule 3: To whom a commission for a witness residing within the court's jurisdiction may be issued.
Order XXVI Rule 4: Examination of specified witnesses, including persons beyond local jurisdiction.
Order XXVI Rules 7 and 8: Return of commissions and general provisions governing when depositions may be read in evidence, considered in light of the express wording of Rule 4A.

Frequently asked questions

Can a commission be issued for a witness living in the same city as the court?

Yes, provided the witness resides within the court's local jurisdiction and the court considers a commission appropriate under Rule 4A.

Is appointment of a commissioner mandatory?

No. Rule 4A says the court may issue a commission. It grants discretion, not an unconditional right.

Can evidence recorded under Rule 4A be used in the suit?

Yes. Rule 4A specifically states that evidence recorded under such a commission shall be read in evidence, subject to the applicable law and judicial assessment.

Official legal reference

Read the Code of Civil Procedure, 1908 on India Code for the statutory wording and connected rules. State amendments and applicable High Court rules should also be checked for proceedings in a particular jurisdiction.

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