Order XXVI Rule 5 CPC - Examination of Witness Outside India
Order XXVI Rule 5 of the Code of Civil Procedure, 1908 permits an Indian civil court to obtain the evidence of a person residing outside India through a commission or a letter of request when that evidence is necessary for the suit.
Text of Order XXVI Rule 5 CPC
5. Commission or request to examine witness not within India. Where any Court to which application is made for the issue of a commission for the examination of a person residing at any place not within India is satisfied that the evidence of such person is necessary, the Court may issue such commission or a letter of request.
Source: Official Code of Civil Procedure, 1908 (India Code, PDF).
Meaning and legal requirements
The provision addresses a witness who resides outside India. It allows the court to secure relevant testimony without requiring the witness to travel to India solely to be examined. The rule is discretionary: the court must first be satisfied that the person's evidence is necessary.
- Pending civil suit: The application concerns the examination of a witness in a suit before the court.
- Residence outside India: The person whose testimony is sought resides at a place outside India.
- Necessity of evidence: The applicant should explain the issues on which the testimony is required and why it is material.
- Court's satisfaction: The court considers whether the evidence is necessary and may choose a commission or a letter of request.
Commission and letter of request: definitions
Commission
A commission is an authority issued by a court for taking evidence through a person or court entrusted with that task. The examination and return of evidence are governed by the applicable provisions of the CPC and the terms of the order.
Letter of request
A letter of request is a formal request by the Indian court seeking assistance for examination of a witness abroad. Section 77 CPC expressly permits a letter of request instead of a commission for a witness residing outside India. The actual route for execution may depend on the receiving country's laws, applicable international arrangements and directions of the court.
How to apply under Order XXVI Rule 5
- File an application identifying the witness, the country of residence and the material facts to be proved.
- Explain the necessity and relevance of the proposed evidence and why examination through a commission or letter of request is sought.
- Provide the available address, contact details, proposed questions or issues, and supporting documents as directed by the court.
- Request suitable directions for execution, costs, timelines and participation by the parties, subject to the court's order and applicable foreign procedures.
The court may require an affidavit or other supporting material. Issuance is not automatic merely because the witness lives abroad.
Related provisions of the CPC
- Section 75: Empowers courts, subject to prescribed conditions and limitations, to issue commissions, including for examination of persons.
- Section 77: Authorizes a letter of request to examine a witness residing outside India in lieu of a commission.
- Order XXVI Rule 2: Addresses an order for commission on the court's own motion or on an application by a party or witness.
- Order XXVI Rules 6 and 7: Deal with examination pursuant to a commission and return of the commission with evidence.
- Order XXVI Rule 8: Governs when depositions recorded under a commission may be read in evidence; recording evidence does not by itself remove the rule's conditions.
Frequently asked questions
Can a witness living abroad be examined in an Indian civil suit?
Yes. If the court finds the evidence necessary, Order XXVI Rule 5 permits a commission or a letter of request for a person residing outside India.
Is a commission mandatory for every witness outside India?
No. The rule says the court may issue a commission or letter of request after considering the necessity of the evidence.
Is evidence taken abroad automatically admissible?
Not necessarily. Its use remains subject to Order XXVI Rule 8, applicable evidence law, procedural safeguards and any relevant court directions.
Official legal reference
Consult the India Code entry for the Code of Civil Procedure, 1908 and its official statutory text. Local amendments, applicable High Court rules and international cooperation arrangements may affect procedure in individual cases.