Report No. 163
Q.37. Order 18, rule 19 (New) (Power to get statements recorded on Commission): Clause 27(iv) of the Bill
The Bill proposes the insertion of a new rule - Order 18, rule 19, under which the court may, instead of examining witnesses in open court, direct their statements to be recorded on Commission under proposed Order 26, rule 4A. By clause 29 of the Bill, it is proposed to insert Order 26, rule 4A, to the effect that the court may in the interests of justice or for the expeditions disposal of the case or for any other reason, issue a commission for the examination of any person resident within its jurisdiction "and the evidence so recorded shall be read as evidence" (Compare Rajasthan amendment Order 26, rule 1A).
Thus, Order 18, rule 19 (proposed) and Order 26, rule 4A (proposed), go together.
Order 26, rule 4A, at the first sight, appears innocuous. But the real problem arises from the vagueness of the language. What is the basis on which the discretion is to be exercised?
Is the Commission procedure to be resorted to as a routine?
Apart from that, there is the question of disharmony between;
(i) Order 18, rule 4(i) (as proposed) under which (subject to the proviso) cross examination, etc. must be done on Commission. [see Q.35, supra].
(ii) Order 18, rule 9 and Order 26, rule 4 (as proposed), whereunder it is discretionary?
[See Q.39, infra].