I C CORPORATION Vs. DAEWOO CORPORATION

JUDGEMENT

(1.) THIS Chamber Summons by the Defendants Nos. 1 and 2, Corporations having their registered offices in Korea, is for the issue of a commission or a letter or request for examining their witnesses by names, H. K. Dhae and J. B. Lee who are currently residents of Seoul, Korea.

(2.) THE question of issuing a commission to examine a witness resident out of India is not always easy. The interests of justice, the Courts power created by the Code of Civil Procedure, the principles which govern the exercise of discretion, and a host of complex factors must enter the final verdict. Yet, to begin with, the principles which emerge from an analysis of the scheme of the Code of Civil Procedure must form the primary foundation of a decision. A brief analysis of the scheme of the Code of Civil Procedure in regard to the issue of commissions is, therefore, of importance. Commissions are issued to examine any person or to do other acts such as local inspection, examination of accounts, making partition and so on (section 75 of the Code of Civil Procedure ). A commission for examination of a witness may be issued "to any Court (not being a High Court) situate in a State other than the State in which the Court" of issue is situate. But the Court to which commission issued must be a Court "having jurisdiction in the place in which the person to be examined resides" (section 76 (1) of the Code of Civil Procedure ). The reference to a "state" and "the Court having jurisdiction in the place in which the witness resides" are clear indications of the legislative intent that section 76 (1) applies only if a witness to be examined resides within India. If this were not so, the words "a State other than the State in which the Court of issue is situated" and the reference to the jurisdiction of such Court would be redundant. It is an established rule of interpretation of statutes that no words should be so construed as to render them redundant. Having defined the Courts authority to issue commissions to examine witnesses within India, the Code of Civil Procedure proceeds to lay down what should be done if the witness to be examined on commission resides "at any place not within India" (section 77 of the Code of Civil Procedure ). Section 77 is a special provision relating to issue of commission to examine a witness residing outside India. Unlike section 76 (1), section 77 empowers the Court in India to issue "a letter of request to examine a witness residing at any place not within India. " The letter of request may be issued in lieu of issuing a commission". The words "in lieu of" mean instead of. This therefore, makes it clear that in the case of a witness residing at a place not within India, the Court may not issue a commission but instead, may, issue a letter of request.

(3.) THE detailed procedure in respect of issue of commissions to examine witnesses laid down in Order XXVI of the Code categorises the persons who may be examined on commission and the conditions necessary for issue of commission to examine such witnesses. Categories created by Order XXVI of the Code are :