Order XXVI Rule 6 CPC - Court to Examine Witness Pursuant to Commission

Order XXVI Rule 6 of the Code of Civil Procedure, 1908 (CPC) explains the duty of a court that receives a commission to examine a witness. It ensures that witness evidence can be recorded through the court entrusted with executing the commission.

Text of Order XXVI Rule 6 CPC

Source: Code of Civil Procedure, 1908 - official India Code PDF (First Schedule, Order XXVI).

Meaning and legal effect of Rule 6

A commission is a formal authority issued by a court for a specified procedural task, such as recording a witness's testimony when direct examination before the issuing court is impractical or otherwise permitted by law. The issuing court authorizes the examination, while the receiving court is the court to which the commission is addressed for execution.

The expression "shall examine him or cause him to be examined" imposes a duty on the receiving court to carry out the commission in accordance with its terms. The receiving court may conduct the examination itself or arrange for the examination to be conducted as authorized. Rule 6 does not itself determine which witnesses qualify for a commission or when their recorded evidence may be read at trial; other CPC provisions address those questions.

How examination under a commission works

1. Issue of commission: The court hearing the suit authorizes examination of a witness under the applicable provisions of Order XXVI.
2. Receipt by another court: The receiving court examines the witness, or causes the witness to be examined, as directed by the commission.
3. Recording of evidence: The testimony is recorded in accordance with the commission and applicable procedural directions, including the opportunity for parties to participate as legally required.
4. Return of commission: Under Order XXVI Rule 7, the executed commission and evidence are returned to the issuing court, unless the order directs otherwise.
5. Use in the suit: The admissibility and reading of the deposition are governed by Order XXVI Rule 8 and other applicable rules.

Related CPC provisions

• Section 75 CPC: empowers courts, subject to prescribed conditions and limitations, to issue commissions for specified purposes, including examination of persons.
• Section 76 CPC: addresses commissions issued to courts in another State and the examination and return of evidence.
• Order XXVI Rules 1 to 5: deal with circumstances, applications and arrangements for examining witnesses by commission, including witnesses outside India.
• Order XXVI Rule 7: governs return of the commission with depositions.
• Order XXVI Rule 8: prescribes when depositions recorded under commission may be read as evidence in the suit.

Illustration

Suppose a civil suit is pending before a court in one State and a material witness resides in another State. Where the issuing court lawfully sends a commission to an appropriate court to record that witness's evidence, Order XXVI Rule 6 requires the receiving court to examine the witness or arrange for the examination pursuant to the commission. The resulting deposition is then dealt with under Rules 7 and 8.

Frequently asked questions

Is examination under Rule 6 optional for the receiving court?

Rule 6 uses the mandatory expression "shall". A court receiving a valid commission must act pursuant to it, subject to applicable law and any procedural difficulty that may require directions from the issuing court.

Does Rule 6 itself make the deposition admissible?

No. Rule 6 concerns execution of the commission. Rules 7 and 8 address return of evidence and the circumstances in which the deposition may be read in the suit.

Can a court cause another authorized person to record the evidence?

The wording permits the receiving court to examine the witness or cause the examination to be carried out, consistently with the commission and applicable procedural rules.