In what cases, upon whose application and to whom Commission may be issued at the instance of Foreign Court? Also mention the procedure of Commission in such cases.

Question: In what cases, upon whose application and to whom Commission may be issued at the instance of Foreign Court? Also mention the procedure of Commission in such cases. [UPHJS 2014, UPCJ 1984]

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Answer

Section 78 Civil Procedure Code provides the provision for Commission issued by foreign Courts. The provision under this section runs as follow:

“Subject to such conditions and limitations as may be prescribed the provisions as to the execution and return of commissions for the examination of witnesses shall apply to commissions issued by or as the instance of-

Courts situate in any part of India to which the provisions of this Code do not extend; or

Courts established or continued by the authority of the Central Government outside India, or

Courts of any State or country outside India.”

As held in Wooster Products Inc. v. Magna Tek Inc., AIR 1989 Del 6, “Neither the intervener nor the witnesses to whom the commission is sought to be issued in pursuance to the letter of request issued by the foreign Court are even proper parties much less necessary parties to the proceedings and so the intervener has no right to object to the execution of the commission.”

In addition to Section 78 of the code, the procedure of Commission issued at the instance of Foreign Court as to whom commission may be issued, Issue, execution, and return of commissions and transmission of evidence to foreign Court are all laid down under Rule 19, 20, 21 and 22 of Order XXVI of the code.

Rule 19 Order XXVI of Code of Civil Procedure 1908 “Cases in which High Court may issue a commission to examine witness”

(1) If a High Court is satisfied-

• that a foreign court situated in a foreign country wishes to obtain the evidence of a witness in any proceeding before it,
• that the proceeding is of a civil nature, and
• that the witness is residing within the limits of the High Court’s appellate jurisdiction,

it may, subject to the provisions of rule XX, issue a commission for the examination of such witness.

(2) Evidence may be given of the matters specified in clauses (a), (b), and (c) of sub-rule (1)–

• by a certificate signed by the consular officer of the foreign country of the highest rank in India and transmitted to the High Court through the Central Government, or
• by a letter of request issued by the foreign Court and transmitted to the High Court through the Central Government, or
• by a letter of request issued by the foreign Court and produced before the High Court by a party to the proceeding.

Rule 20 Order XXVI of Code of Civil Procedure 1908 “Application for issue of commission”

The High Court may issue a commission under rule 19–

• upon application by a party to the proceeding before the foreign court, or
• upon an application by a law officer of the State Government acting under instructions from the State Government.

Rule 21 Order XXVI of Code of Civil Procedure 1908 “To whom commission may be issued”

A commission under rule 19 may be issued to any Court within the local limits of whose jurisdiction the witness resides, or the witness resides within the local limits of the ordinary original civil jurisdiction of the High Court, to any person whom the Court thinks fit to execute the commission.

Rule 22 Order XXVI of Code of Civil Procedure 1908 “Issue, execution and return of commissions, and transmission of evidence to foreign Court”

The provisions of rules 6, 15, Sub-rule (1) of rule 16A, 17, 18, and 18B of this Order in so far as they are applicable shall apply to the issue, execution, and return of such commissions, and when any such commission has been duly executed it shall be returned, together with the evidence taken under it, to the High Court, which shall forward it to the Central Government, along with the letter of request for transmission to the foreign court.

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