Order XXVI Rule 1 CPC: Contemporary Judicial Approach to Commissions for Examination of Witnesses

Introduction

Order XXVI Rule 1 of the Code of Civil Procedure, 1908 (“CPC”) empowers every civil court to issue a commission for examining, on interrogatories or otherwise, any person who is (i) exempt from personal appearance under the Code or (ii) unable to attend court by reason of sickness or infirmity. Proviso and Explanation clauses, inserted by the 1976 Amendment, require the court to record reasons when issuing a commission on interrogatories and permit reliance on a registered medical practitioner’s certificate as prima facie evidence of infirmity. Although linguistically concise, Rule 1 is the principal gateway through which Indian courts accommodate human frailty, logistical constraints, and—post-2002—technological expediency within the larger constitutional mandate of speedy and inexpensive justice (Art. 21, Art. 39-A). This article critically analyses the evolving jurisprudence on Rule 1, measures it against adjacent provisions (Rules 4A, 7–10, 18; Section 75; Section 151), and synthesises guidance distilled from recent appellate and High Court authorities.

Statutory Framework

Textual Placement and Linkages

• Section 75(b) CPC: source-provision empowering courts to issue commissions for local investigation and, pertinent here, “examination of witnesses”.
• Order XXVI Rule 1: prescribes two jurisdictional predicates—statutory exemption, sickness or infirmity—while leaving the choice of interrogatories or viva voce to judicial discretion.
• Rules 2–4: regulate procedural details; Rule 4A (2002) extends discretion to appoint commission “in the interest of justice or for expeditious disposal or any other reason”, thereby delinking the power from illness et al. and signalling legislative endorsement of wider use of commissions.^[1]
• Rules 7–10: address return of commission, evidentiary status, objections and examination of the Commissioner.
• Rule 18: mandates notice to parties to appear before the Commissioner and authorises ex parte proceeding in default, thereby infusing audi alteram partem into the process.
• Section 151 CPC: supplies a residual reservoir of inherent powers, often invoked when the express text of Order XXVI appears inadequate.^[2]

Historic Evolution and Doctrinal Themes

Flexibility versus Formalism

From early precedents (e.g., Maroli Achuthan v. Kunhipathumma, 1966) to the Supreme Court’s modern holdings, courts oscillate between procedural rigidity and pragmatic adaptation. The formalist strand emphasises compliance with Rule 18 notice and on-record reasons; the pragmatic strand treats commissions as tools to further the substantive ends of justice, consistent with Sangram Singh v. Election Tribunal’s foundational dictum that procedure is the “handmaid of justice.” The tension surfaces repeatedly in contemporary litigation.

Broadening the Gateway: Rule 4A and Its Interaction with Rule 1

Kerala High Court in Francis Assissi v. Sr. Breesiya (2016) declared that Rule 4A’s non-obstante expansion virtually “makes Rule 8 redundant,” thereby reading the 2002 amendment as legislative endorsement of suo motu or consensual commissions even absent sickness. Consequently, Rule 1’s original medical-centric test now coexists with an interest-of-justice standard, though courts still treat infirmity-based requests with greater solicitude.

Evidentiary Integrity and Judicial Control

• Recording Mode: Post-Salem Advocate Bar Association (I) (2003), examination-in-chief by affidavit and cross-examination before a Commissioner (Order 18 Rule 4) is constitutionally valid, but Salem (II) (2005) cautions that courts must apply mind to witness importance and may recall to court when necessary.^[3]
• Admissibility of Documents: Full Bench of Bombay High Court in Hemendra Rasiklal Ghia (2008) clarifies that the Commissioner cannot mark documents as exhibits; objections are reserved for the trial judge under Rules 7–8.^[4]
• Notice Compliance: Kerala High Court in Maroli Achuthan held that breach of Rule 18 does not per se nullify the report; parties may cross-examine the Commissioner to cure prejudice, preserving the report’s “evidentiary value unless contradicted by better evidence.”

Critical Examination of Recent Case Law

Supreme Court Guidance

1. K.K. Velusamy v. N. Palanisamy (2011)^[5]
   The Court reaffirmed that, despite deletion of Order 18 Rule 17-A, courts possess inherent power under Section 151 to reopen evidence if justice so demands. Although Velusamy concerned audio recordings, its ratio underscores the judiciary’s readiness to employ commissions to avert miscarriage of justice, especially where electronic evidence necessitates specialised handling.

2. Salem Advocate Bar Association (II) (2005)^[3]
   While primarily on ADR, the Court interpreted Order 18 Rule 4 in pari materia with Order XXVI, stressing that appointment of Commissioners for cross-examination must be an informed judicial exercise. The ruling thus indirectly reaffirms the discretionary—but not mechanical—use of Rule 1 commissions.

Appellate and High Court Trends Post-2000

Integration with Broader Procedural Policy

The judiciary’s interpretation of Rule 1 is coloured by larger systemic reforms aiming at docket reduction and expedition of trials. Salem Advocate Bar Association and Sanjeev Kumar Jain v. Raghubir Saran Trust (2011)^[10] exhort courts to harness procedural tools—including commissions—to curb delay and unnecessary costs. Yet, as Kailash v. Nanhku (2005) observed in the context of Order 8 Rule 1, procedural prescriptions, though directory, are not to be sacrificed at the altar of speed when they safeguard natural justice. Rule 1 jurisprudence mirrors this twin objective: liberal but structured.

Key Doctrinal Takeaways

• Jurisdictional Threshold: A party must prima facie establish (a) statutory exemption, or (b) inability to attend. Certificates by registered medical practitioners are ordinarily sufficient, but courts may insist on cross-examination when authenticity is doubted (Nanjappa K.V v. Tara Bai, 1982).^[11]
• Recording of Reasons: Mandatory. Failure vitiates the order and is revisable under Article 227, as seen in Vemunandana Ramakrishnam Raju.
• Notice and Participation: Compliance with Rule 18 is essential; however, breach is curable by examining the Commissioner in court (Maroli Achuthan).
• Scope of Examination: Post-Rule 4A, commission may cover full examination, including document tendering; objections on stamping, proof etc., are reserved for the court (Hemendra Rasiklal Ghia).
• Inherent Powers: Section 151 supplements, but does not supplant, Rule 1. It cannot be invoked to circumvent express safeguards.

Critical Appraisal

Indian courts increasingly favour a purposive approach that aligns Rule 1 with technological advancements (video-conferencing, audio recording) and constitutional imperatives of access to justice. Nonetheless, inconsistent standards of medical scrutiny and divergent High Court practices produce uncertainty. Uniform High Court rules—akin to the Model Rules on Commission Recording proposed by the Salem Committee—could harmonise applications, while calibrated cost orders under Section 35 (see Sanjeev Kumar Jain) may deter frivolous commission requests.

Conclusion

Order XXVI Rule 1 remains a linchpin of procedural elasticity within the CPC. Contemporary jurisprudence, influenced by constitutional values and legislative amendments, endorses liberal—but reasoned—deployment of commissions to examine witnesses who cannot attend court without undue hardship. Adherence to statutory safeguards (reasoned orders, notice, evidentiary control) preserves fairness, while inherent powers and Rule 4A widen the remedial arsenal. Future reforms should focus on standardised medical verification protocols, integration of digital platforms, and cost-sensitive filters to cement Rule 1’s role as a facilitator, not a frustrator, of efficient civil adjudication in India.

Footnotes

1. Code of Civil Procedure (Amendment) Act, 1999, s. 13; Act 46 of 1999 inserting Order 26 Rule 4A.
2. K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275.
3. Salem Advocate Bar Association, T.N. v. Union of India, (2005) 6 SCC 344.
4. Hemendra Rasiklal Ghia v. Subodh Mody, 2008 (6) Mah LJ 886 (FB).
5. K.K. Velusamy, supra note 2.
6. Nilconta Gangadhar Sinai Amonkar v. Vivekanand Sawardekar, 2012 (6) Bom CR 417.
7. Vemunandana Ramakrishnam Raju v. Darla Srinivas, 2016 SCC OnLine Hyd 574.
8. Deep Mudgal v. Vinod Kumar Sharma, 2019 SCC OnLine MP 3451.
9. Shyamnath Sharma v. Kripal Singh Bedi, 2024 SCC OnLine MP 2869.
10. Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust, (2012) 1 SCC 455.
11. Nanjappa K.V v. Tara Bai, AIR 1982 Kant 105.