Report No. 54

Order 16, rule 19, and Order 26, rule 4-witnesses beyond jurisdiction

16.11. Order 16, rule 19, provides that a witness shall not be compelled to attend a court in person unless he resides-

(a) within the jurisdiction of the Court, or

(b) outside the jurisdiction but within the specified distance (roughly, less than fifty miles) or, if there is an established public conveyance for five-sixth of the distance, then less than two hundred miles from the court house.

Thus, a witness living outside the jurisdiction and beyond the specified distance cannot be compelled to attend a court in person. For the examination of such persons, the Code provides for the issue of a commission under Order 26, rule 4. But the word used in Order 26, rule 4, is "may".

16.12. Now, it is obvious that where the witness is beyond the specified distance, and yet is one whose evidence is essential, the only possible mode of examination is by commission, having regard to the restriction in Order 16, rule 19 against compelling him to attend in person. The common understanding of the position is reflected in a Madras case, AUR 1949 Mad 496, para. 2 (Subba Rao J.).-

"A party to suit has a right to ask for the issue of a commission to examine a witness beyond the prescribed distance. The same principle applies even in the case of an expert witness. In Sitamma v. Subraya, 21 MI,J. 889 (890): 12 IC 74, Abdur Rahim and Sundara Aiyar JJ. recognised that principle and stated that the defendants were entitled as of right to the issue of commission apart from the question whether they would have ultimately benefited by it. The same principle is followed and applied in Jagannisdha Sastry v. Sarathambal Ammal, 46 Mad 574: AIR (10) 1923 Mad 321. Wallace J. after considering the various decisions cited before him expressed his conclusion as follows:

The balance of authority is in favour of the view that (1) ordinarily, in the case of a witness not under the control of the party asking for the commission who resides beyond the limit fixed under Order 16, rule 19(b), Civil Procedure Code, a commission should issue as a matter of right, unless the Court is satisfied that a party is merely abusing its authority to issue process, and (2) that it is not for the Court to decide whether the party will be benefited thereby or not, that is a matter entirely for the party".

Recommendation as to Order 26, rule 4

16.13. It would, therefore, be better if the issue of a commission under Order 26, rule 4 is made obligatory1 in such cases, i.e. in the case of a witness residing beyond the limit fixed in Order 16, rule 19, if the evidence of the witness is essential in the interest of justice. Such an amendment will give a more correct picture of what the law contemplates.

1. Point concerning Order 26, rule 4.

Distance mentioned in Order 16, rule 19

16.14. The next question is, whether the distance specified in Order 16, rule 19, should now be increased, in view of improved facilities for transport, and, in particular, having regard to the availability of transport by air. The existing words "established public conveyance" are perhaps, wide enough to cover transport by air, but the question of distance applicable to air travel remains. It could be provided in Order 16, rule 19, that (i) where transport by air is available between the place of headquarters of the Court and the place where the witness resides, and (ii) the distance between the two places does not exceed, say, eight hundred miles (1200 kms.) and (iii) the witness is paid the fare by air, he may be summoned to attend personally.

16.15. The last question concerns the .distance mentioned in the rule, as applicable to journeys otherwise than by air. Some High Courts have, by local amendments, changed the provision in this respect, and some of the amendments are useful. It may be desirable, for example, to increase the distance (at present two hundred miles) to three hundred miles.1

The local amendments relevant to the question of distance under Order 16, rule 19 are quoted below:-

1. Cf. The Allahabad and Gujarat amendments to Order 16, rule 19 (substituting 300 miles for 200 miles).

Allahabad:

In Order 16, rule 19(b):

(i) insert the words "or private conveyances run for hire" between the words "public conveyance" and "for five-sixth", and

(ii) substitute the word "three" for the word "two". (4-4-1959)

Bombay: Dadra and Nagar Haveli.

For rule 19 substitute the following:

19. No witness to be ordered to attend in person unless resident within certain limits-

No one shall be ordered to attend in person to give evidence unless he resides-

(a) within the local limits of the Court's ordinary original jurisdiction, or

(b) without such limits but at a place less than one hundred or (where there is a railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situated) less than five hundred kilometres distance from the court-house.1

(1-11-1966).

Gujarat:

In order 16, rule 19(b), for the words "two hundred", substitute the words "three hundred". (17-8-1961).

Punjab, Haryana and Chandigarh:

Add the following proviso to rule 19(b):

"Provided that any Court situate in the State of Punjab may require the personal attendance of any witness residing in the Punjab or Delhi State".

1. Cf. The Bombay amendment to Order 16, rule 19.

Distance to be expressed in kilometres

16.15. Lastly, opportunity could be taken to express the distance in terms of kilometres, instead of in miles as at present.

Commission to be issued in other cases

16.15B. No doubt, even after the above amendments, a commission will have to be issued in cases where the witness resides beyond the revised distance. Though the functions of the Commissioner are of very limited character, nevertheless, he can make observations as to the demeanour of witness.1 Hence, where the witness to be examined is an expert or his evidence is otherwise likely to be of importance, it is desirable that the court should take care that the Commissioner to be appointed by it will be able to discharge his functions efficiently. This, of course, is a matter for the Court to consider when making the appointment of the Commissioner, and need not be dealt with by an express provision.

1. Lakshmi Amma v. Karana, 1970 KLT 867 (870, 871).

Recommendation as to Order 16, rule 19

16.16. In the light of the above discussion, we recommend that Order 16, rule 19, should be re-drafted1 as follows:-

"19. No one shall be ordered to attend in person to give evidence unless he resides-

(a) within the local limits of the Court's ordinary original jurisdiction, or

(b) without such limits but at a place less than one hundred or (where there is a railway or steamer communication or other established public conveyance for five-sixth of the distance between the place where he resides and the place where the Court is situated) less than five hundred kilometres distance from the court house.

Provided that

(i) where transport by air is available between the two places mentioned above, and

(ii) the distance between the two places does not exceed one thousand and two hundred kilometres, and

(iii) the witness is paid the fare by air, he may be ordered to attend in person.

1. As to amendment of Order 26, rule 9, see para. 16.13, supra.