📘 CIVIL PROCEDURE CODE (CPC) – ORDER XXIII TO XXVI

Preparation for RJS, DJS, PCS (J) and other Judicial Service Exams

📖 CIVIL PROCEDURE CODE EXPLAINED

The Civil Procedure Code forms the bedrock of any and every Judicial Service exam in the country.
Its thorough knowledge is a must for all aspirants of RJS, DJS, PCS (J) and every other Judicial Service exam.

To help such aspirants DELHI LAW ACADEMY JAIPUR has launched a series of study material modules
on all important aspects of this vital part of their syllabus:

⚖️ ORDER XXIII

Transposition of defendants as plaintiffs – Rule 1A

• Where
• a suit is withdrawn or abandoned by a plaintiff under rule 1 and
• a defendant applies to be transposed as a plaintiff under rule 10 of Order I
• the Court shall have due regard
• to the question whether the applicant has a substantial question to be decided as against any other defendant

Limitation law not affected by first suit – Rule 2

• In any fresh suit instituted on permission granted under rule 1:
• plaintiff
• shall be bound by the law of limitation
• in the same manner as if the first suit had not been instituted

Compromise of suit – Rule 3

• Where it is proved that a suit has been adjusted
• by any lawful agreement or compromise in writing and signed by the parties or
• where
• defendant satisfied plaintiff in respect of the subject-matter of the suit
• Court
• shall order such agreement, compromise or satisfaction to be recorded
• shall pass a decree in accordance therewith

Explanation

• An agreement or compromise
• which is void or voidable under the Indian Contract Act
• shall not be deemed to be lawful

Bar to suit – Rule 3A

• No suit shall lie to set aside a decree on the ground
• that the compromise on which the decree is based was not lawful

⚖️ ORDER XXVI – COMMISSIONS TO EXAMINE WITNESSES

Cases in which Court may issue commission – Rule 1

• A Court may issue a commission
• for examination of any person resident within its jurisdiction
• who is exempted from attending the Court or
• who is from sickness or infirmity unable to attend it

📝 Note by DLA

Question

Who are the ‘persons exempted from attending the Court’ as referred in Rule 1?

Answer

• Such persons are specified in section 132(1) and 133(1) of CPC:

Section 132(1)

• Women
• who ought not to be compelled to appear in public according to customs and manners of the country
• shall be exempt
• from personal appearance in Court

Section 133(1)

• Persons entitled to exemption from personal appearance in Court:
• President of India, Vice-President of India
• Speaker of House of People, Speakers of State Legislative Assemblies
• Ministers of the Union, Ministers of States
• Judges of Supreme Court, Judges of High Courts
• Governors of States, Administrators of Union Territories
• Chairmen of State Legislative Councils

Order for commission – Rule 2

• An order
• for issue of commission for examination of a witness
• may be made by the Court
• of its own motion or
• on application of any party to the suit or
• on application of the witness to be examined

Where witness resides within Court’s jurisdiction – Rule 3

• A commission
• for examination of a person who resides within jurisdiction of the Court issuing the same
• may be issued
• to any person whom the Court thinks fit to execute it

Persons for whom commission may issue – Rule 4

• A Court may issue a Commission
• for any person resident beyond its jurisdiction
• for any person who is about to leave limits of its jurisdiction and
• for any person in Govt who cannot attend without detriment to public service

Rule 4(2)

• Such commission may be issued
• to any Court not being a High Court within whose jurisdiction such person resides or
• to any pleader or other person whom the Court issuing the commission may appoint

Commission for person resident within court’s jurisdiction – Rule 4A

• Any court may issue commission
• for examination of any person resident within its jurisdiction
• in the interest of justice or for expeditious disposal or for any other reason
• the evidence so recorded
• shall be read in evidence

Witness not within India – Rule 5

• Where
• any Court to which application is made for issue of commission
• for examination of a person residing not within India
• is satisfied that the evidence of such person is necessary
• the Court
• may issue such commission or a letter of request

Depositions under commission may be read in evidence – Rule 8

• Evidence taken under a commission
• shall not be read as evidence in the suit
• without consent of the party against whom the same is offered
• unless

(a)

• the person who gave the evidence
• is beyond the jurisdiction of Court or
• is dead or unable from sickness or infirmity to attend to be personally examined or
• is exempted from personal appearance in Court or
• is a person in Govt who cannot attend without detriment to public service or

(b)

• the Court in its discretion
• dispenses with the proof of any of the circumstances mentioned in clause (a) and
• authorizes the evidence of any person being read as evidence in the suit
• notwithstanding proof
• that the cause for taking such evidence by commission has ceased at the time of reading the same

Commissions to make local investigations – Rule 9

• In any suit in which Court deems a local investigation to be requisite or proper
• for elucidating any matter in dispute or
• for ascertaining market-value of any property or the amount of any mesne profits or damages or annual net profits
• Court may issue a commission to such person as it thinks fit
• directing him to make such investigation and to report thereon to Court

Prepared by the academic team at Delhi Law Academy, Jaipur
For Judicial Services Examination Preparation

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❓ Frequently Asked Questions (Order XXIII & XXVI CPC)