Order XXVI Rule 8 CPC - When Depositions May Be Read in Evidence
Order XXVI Rule 8 of the Code of Civil Procedure, 1908 (CPC) specifies when testimony recorded through a commission can be read as evidence in a civil suit. A deposition does not become readable as evidence merely because a commissioner has recorded it.
Meaning and legal provision of Order XXVI Rule 8 CPC
A commission is a court-authorised process for recording evidence through a designated court or commissioner. A deposition is the testimony recorded from a witness. Rule 8 governs the subsequent use of that testimony in the suit.
Statutory rule explained
Evidence taken under a commission ordinarily cannot be read as evidence in the suit without the consent of the party against whom it is offered. The rule provides two exceptions:
Clause (a): The witness is beyond the court's jurisdiction, has died, cannot attend personally because of sickness or infirmity, is exempt from personal appearance, or is a government employee whom the court considers unable to attend without detriment to public service.
Clause (b): The court may exercise discretion to dispense with proof of the circumstances in clause (a) and authorise the deposition to be read, even if the original reason for examining the witness on commission no longer exists.
For the authoritative statutory wording, consult the official Code of Civil Procedure, 1908 on India Code (PDF), Order XXVI, Rule 8.
When can evidence recorded on commission be used?
- Consent of the opposing party: The party against whom the deposition is offered agrees to its use.
- Specified circumstances: One of the situations in Rule 8(a) applies, such as death, illness, exemption, or residence beyond the jurisdiction.
- Judicial discretion: The court authorises its use under Rule 8(b), even without proof of the listed circumstances.
Relationship between Order XXVI Rules 7 and 8
Order XXVI Rule 7 requires the duly executed commission and evidence recorded under it to be returned as directed, whereupon they form part of the suit record, subject to Rule 8. Inclusion in the record and permission to read the deposition as evidence are distinct matters. Rule 8 determines when the deposition may actually be relied upon as evidence.
How the court assesses the request
A party seeking to rely on a deposition should identify the commission and witness, state whether the opposing party consents, and, if consent is absent, identify the applicable Rule 8(a) circumstance or request an order under Rule 8(b). The court must apply the rule to the particular facts and any applicable procedural directions.
Illustrative examples
Example 1: A witness examined on commission dies before trial. The deposition may be read under Rule 8(a), subject to applicable evidentiary and procedural requirements.
Example 2: A witness recovers from illness before the deposition is tendered. The court may still authorise its use under Rule 8(b); recovery does not automatically settle admissibility.
Example 3: The opposing party expressly consents to reading the deposition. The consent route in Rule 8 can permit the evidence to be read without establishing a clause (a) exception.
Frequently asked questions
Is every deposition taken on commission automatically admissible?
No. Rule 8 requires consent or satisfaction of a statutory exception or judicial authorisation.
Can a deposition be used after the witness becomes available?
Potentially. Under Rule 8(b), the court may authorise its use despite the cessation of the original reason for taking evidence by commission.
Does Rule 8 apply to all commission reports?
Rule 8 specifically concerns evidence taken under a commission for examining witnesses. Other kinds of commissions under Order XXVI have additional provisions.
Official legal reference
The Code of Civil Procedure, 1908 (Act 5 of 1908), India Code. State amendments, High Court rules and applicable case-specific directions should also be checked.
This article provides general legal information, not advice for a particular case.