The matter is coming up for admission.


2. This Court ordered notice on 8-9-2008.


3. Sri B. Nalin Kumar entered appearance on behalf of the respondents.


4. Sri N. Harinatha Reddy, learned counsel representing the petitioner filed application No. 1041 of 2008 praying for permission to file better affidavit and the said application was ordered by this Court by order dated 1-12-2008.


5. Sri B. Nalin Kumar filed a counter affidavit in detail on behalf of the respondents and rejoinder also had been filed.


6. Sri N. Harinatha Reddy, learned counsel representing the petitioner had taken this Court through the letter of request made by the foreign court and the contents thereof and would maintain that in the light of Order 26, Rules 19, 22 and 17 of the Code of Civil Procedure, hereinafter referred to in short as the Code' for the purpose of convenience, there is no necessity of putting the opposite parties on notice. The learned counsel would maintain that in fact certain O.Ps. had been allowed by this Court even without notice to the other side, since the same may not be necessary, but. however, in the present case this Court had chosen to issue notice to the opposite parties and even if the affidavit filed in support of the O.P., the stand taken in the counter affidavit and also the rejoinder to be carefully examined, though specifically the name of witness had not been specified the purpose specified in the letter of request is the documents specified thereunder to be produced by the concerned company ? Anu's Laboratories Limited. The learned counsel while further elaborating his submissions had taken this Court through the contents of the letter of request and also the relevant provisions of the Code already specified above. The counsel also would maintain that Section 51 of the Indian Companies Act, 1956 also throws some light on this aspect. While further elaborating his submissions, the learned counsel also would maintain that these provisions Order 26, Rules 19, 22 read with Rule 17 of the Code to be read along with Section 78 of the Code, if the scheme of the Code is to be carefully examined, the evidence would include both oral and documentary evidence in the light of letter of request made by the foreign court, in may have to be taken that the competent person concerned with the company, the corporate entity, to be examined for the limited purpose of production of the documents and nothing beyond thereto and hence to read the letter of request in a different fashion would be in violation of the very object of these provisions. The counsel also had drawn the attention of this Court through the relevant provisions of the convention on the taking of evidence abroad in civil or commercial matters. The learned counsel placed strong reliance on Articles 3 and 12 of the said convention and ultimately would conclude that in the peculiar facts and circumstances instead of giving a technical and strict interpretation to the language of Order 26, Rule 19 of the Code as contended by the other side, the object of issuance of letter of request may have to be taken into consideration in its true spirit and appropriate directions to be issued in this regard. The learned counsel placed strong reliance on certain decisions.


7. Per contra, Sri B. Nalin Kumar, learned counsel representing the respondents had taken this Court through the relevant provisions of the Code and also further had drawn attention of this Court to Sections 75 and 94 of the Code. The learned Counsel would further maintain that this may not fall under the incidental proceedings and in the light of the specific language employed in Order 26, Rule 19 of the Code broader interpretation cannot be given especially when the name of the witness had not been specified by the foreign court. When a specific provision is available in the Code, the inherent powers under Section 151 of the Code also cannot be invoked and in the light of the same, the letter of request made by the foreign court cannot be considered by this Court. While elaborating his submissions, the learned counsel also pointed out to the language employed in Order 26, Rule 19 of the Code and would maintain that in a way this language employed in Order 26, Rule 19 of the Code is being well supported by the language employed in both Sections 75 and 78 of the Code, hence in the light of the limitations imposed by the Code in relation to the letters of request made by the foreign courts, broader interpretation cannot be given and the scope cannot be enlarged and hence the O.P. is liable to be dismissed. While further elaborating his submissions, the learned counsel also would maintain that Order 26, Rule 17 of the Code is only an enabling provision and this cannot enlarge the scope and ambit of Order 26, Rule 19 of the Code. While making submissions relating to the governance of the conventions, covenants, treaties and the like, the counsel in all fairness would submit, that may be that when India is a party to such conventions, treaties and covenants, depending upon the facts and circumstances, the relevant conventions, covenants or treaties may be read into domestic jurisprudence, if need be, but, however, there must be clear legal sanction in this regard, when such legal sanction is not there, none of the provisions can be stretched beyond thereto. The learned counsel placed strong reliance on certain decisions to substantiate his submissions in this regard. The counsel also further had taken this Court through Articles 3 and 12 of the convention on the taking of evidence abroad in civil or commercial matters and would maintain that even if these Articles to be carefully examined this would not enlarge the ambit of Order 26, Rule 19 of the Code. Apart from this aspect of the matter, the counsel also would maintain that in the light of the specific stand taken in the counter affidavit, the O.P., cannot be allowed. The counsel also further pointed out to the relevant dates and would maintain that in a way the O.P. became infructuous because of non-extension of time and on this ground also the O.P. may have to be dismissed. While further elaborating his submissions, the learned counsel pointed out to the power of attorney, who had sworn to the affidavit and would maintain the power of attorney confers the right to institute suits relating to infringement of intellectual rights and not beyond thereto, inasmuch as filing of the O.P., on the strength of letter of request had not been conferred by the power of attorney, even on this ground also the O.P. is liable to the dismissed. To substantiate his submissions the counsel also placed strong reliance on certain decisions.


8. Heard the counsel. Perused the respective stands taken by the parties in the affidavit filed in support of the O.P., in the counter affidavit of the respondents and also the rejoinder. As already referred to supra, the petitioner was permitted to file better affidavit and better affidavit in fact had been filed.


9. Before taking up further discussion, it may be appropriate to have a look at the relevant portion of the letter of request. This letter of request for International Judicial Assistance under the Hague Convention of 18th March, 1970 on the taking of evidence abroad in civil or commercial matters (the "Convention"), the U.S. District Court for the District of New Jersey (the "Court") has the honour to submit this letter of request to the Ministry of Law and Justice and the High Courts in all States and Union Territories within India to obtain evidence relating to the civil action pending before this Court in the above captioned matter. In para 7 the nature of purpose of the proceedings for which evidence is needed (Article 3(c) of the Convention) had been referred to. The same reads as under:


"The above-captioned matter is a civil action for patent infringement arising under the patent laws of the United States. Title 35, United States Code, Sections 100 et seq., brought by plaintiffs Aventis Pharmaceuticals Inc. ("Aventis") and AMR Technology, Inc. ("AMR"). This action relates to the generic versions of Aventis's ALLEGRA ? and ALLEGRA-D ? drug products for which Dr. Reddy's has sought marketing approval from the U.S. Food and Drug Administration ("FDA") and which Dr. Reddy's intends to market in the United States immediately upon FDA approval. Aventis and AMR assert that defendants' conduct constitutes infringement under 35 U.S.C. 271 of one or more of the claims in patents assigned to AMR and licensed to Aventis."


10. The relevant portion and the crucial portion of the letter of request is in para 8, which specified evidence to be obtained or other judicial act to be performed (Article 3(d) of the Convention), wherein it was specified the evidence sought by Aventis pertains to these actions. The court requests that, in the interests of justice. you cause, by your proper and usual process, the requested documents, as specified below in response No. 10, to be provided to Aventis from Anu's Laboratories Limited. Aventis seeks the specific documentary evidence from Anu's Laboratories Limited because, as set forth in the Affidavit of Aaron Barkoff, sworn to January 23, 2008. ("Barkoff Aff.," attached hereto as Exhibit A), Aventis has reason to believe that Anu's Laboratories Limited is a supplier of chemical intermediates used in the manufacture of fexofenadine to defendant Dr. Reddy's. It is pertinent to note that at para 9 identity and business address of the person to be examined (Article 3(e) of the Convention) had been specified as hereunder:


Anu's Laboratories Limited


A-49, Madhura Narar, Vengalrao Nagar, Hyderabad ? 500 038


Andhra Pradesh


India.


Further at para 10, documents to be produced by Anu's Laboratories Limited (Article 3(g) of the Convention) the under noted documents had been referred to:


A. Documents concerning the process Anu's Labs uses or has used to manufacture and purify Methyl-4-(4-Chloro-1-oxobutyl)-alpha?dimethylphenyl acetate; FFA-1; FEX-III, P-16; and methyl ester of dimethylphenyl acetic acid.


B. Documents concerning any testing or analysis of any Fexofenadine or Fexofenadine Intermediate provided to Dr. Reddy's.


C. Documents concerning the sale of any Fexofenadine or Fexofenadine Intermediate to Dr. Reddy's, including but not limited to purchase orders, bills of sale, shipping documents and contracts.


D. Documents concerning any correspondence or agreements with Dr. Reddy's concerning any Fexofenadine or Fexofenadine Intermeiate.


E. A one hundred (100) gram sample of any Methyl-4-(4-chloro‑1-oxobutyl)-alpha, alpha?dimethylphenyl acetate; FFA-1, FEX-III; P-16; or methyl ester of dimethylphenyl acetic acid; including a sample taken from each lot thereof.


F. A one hundred (100) gram sample of any Fexofenadine orFexofenadine Intermediate, including a sample taken from each lot thereof.


11. No doubt, para 11 referred to any requirement that the evidence be given under oath or affirmation and any special form to be used (Article 3(h) of the Convention) and para 12 specified special methods of procedures to be followed (Articles 3(i) and 9 of the Convention). Several of the definitions and instructions had been referred to. At para 14, fees and costs (Article 14 and 26 of the Convention) had been referred to. In the light of the letter of request the present O.P. had been filed whereunder after referring to all the acts a request had been made to appoint Dr. S.V. Eswaran or any other competent person as a Commissioner for recording the evidence of a technically qualified representative of Anu's Laboratories Ltd., and to peruse and obtain the documents which had been referred to above and for other suitable or appropriate orders. The said O.P. is being resisted by filing counter affidavit in detail.


12. Before taking up the stand taken in the counter affidavit and also rejoinder, it may be appropriate to have a look at Articles 3 and 12 of the Convention on the taking of evidence abroad in civil or commercial matters. The said Articles read as hereunder:


"Article 3:


A Letter of Request shall specify‑


(a) the authority requesting its execution and the authority requested to execute it, if known to the requesting authority;


(b) the names and addresses of the parties to the proceedings and their representatives, if any;


(c) the nature of the proceedings for which the evidence is required, giving all necessary information in regard thereto;


(d) the evidence to be obtained or other judicial act to be performed.


Where appropriate, the Letter shall specify, inter alia‑


(e) the names and addresses of the persons to be examined;


(f) the questions to be put to the persons to be examined or a statement of the subject matter about which they are to be examined;


(g) the documents or other property; real or personal, to be inspected;


(h) any requirement that the evidence is to be given on oath or affirmation, and any special form to be used;


(i) any special method or procedure to be followed under Article 9.


A letter may also mention any information necessary for the application of Article 11.


No legalization or other like formality may be required.


Article 12:


The execution of a Letter of Request may be refused only to the extent that‑


(a) in the State of execution the execution of the Letter does not fall within the functions of the judiciary; or


(b) the State addressed considers that its sovereignty or security would be prejudiced thereby.


Execution may not be refused solely on the ground that under its internal law the State of execution claims exclusive jurisdiction over the subject matter of the action or that its internal law would not admit a right of action on it."


13. Strong emphasis had been laid on Article 3(d) and also on Article 12 specified supra. In the counter affidavit filed several averments made in the O.P., had been specifically denied. It is specified that a perusal of the said (Proposed) Letter of Request would show that it had been issued to cause by a proper and usual process to produce the requested documents as specified in para 10 to be provided to Aventis. It had been restricted only for production of documents by proper and usual process, but it has not been issued for issuance of any commission for examination of a witness. It is also stated a reading of provisions of Order 26 Rule 20 read with Rule 19 of the Code would show that the power had been conferred on this Court to issue a commission to examine a witness at the instance of foreign court. The said power is restricted and limited to issue of a commission to examine a witness, but it does not extend to production of documents and/or collection of samples.


14. It is also stated that the present O.P. as framed and filed on the basis of the proposed Letter of Request which contemplates production of documents is totally misconceived and the same is not maintainable in law. It is also further averred that the proposed letter of request does not furnished the name, identity and address of any particular witness to be examined who is residing within the limits of this Court's appellate jurisdiction. In fact the proposed letter of request does not even seek the examination of any witness. However, the present O.P. seeks examination of a technically qualified representative of Anu's Laboratories Ltd., by issuance of a commission. This request of the petitioner is beyond the terms of the proposed letter of request apart from being absolutely vague regarding the identity of the person sought to be examined. Such a request cannot be entertained in the absence of specification of the witness in the proposed letter of request. The proposed letter of request requires a response by April 1, 2008 to enable the plaintiff to utilize the requested the information in expert reports, the due date of which was specified as April 14, 2008. It is also stated that the material experts' reports have in fact already been served by the plaintiff.


15. The respondents further stated that with the expiration of specified date in the said proposed letter of request and the serving of experts reports, there is no material before this Court that the foreign court wishes to obtain any evidence a prayed for. Further it is stated that the proposed letter of request does not specify the place of execution of the Commission but merely identifies the business address of the company required to produce the documents. It is also stated that this Court has no jurisdiction to entertain any petition or adjudicate any matter founded at any international treaty or convention except to the extent incorporated into the Municipal laws. Therefore, Hague Convention has no relevance in the present case.


16. Further it is stated that the present petition needs to be examined as per the provisions of the Code. Further as there is express provision dealing with requests of foreign courts under Order 26 of the Code, Section 151 does not apply. Further in paras 5, 6, 7, 8 and 9 of the counter affidavit several facts had been narrated and the allegations contained in para 2 of the affidavit the proposed letter of request does not contemplate appointment of a commissioner much less Dr.S.V. Eswaran to obtain the evidence of a technically qualified representatives of Anus Laboratories Limited in Hyderabad. As already stated the proposed letter of request seeks production of documents and as such the statement of the petitioner that the letter of request seeks appointment of commissioner to obtain the evidence of technically qualified representative is absolutely incorrect and contrary to the record.


17. It is further stated that the prayer for appointment of a Commissioner is not in accordance with Order 26, Rule 21 of the Code. Further it is admitted that a civil action for obtaining infringement had been prayed for against the respondent by the plaintiff before the District Court of New Jersey in United States. The other averments had no doubt been denied. Further it is stated that the petitioner is neither entitled to pursue nor obtain photocopies of the documents stated in the paragraph or samples as prayed for inasmuch as there is no provision in the Code enabling the same. In para 8 it had been specified that this respondent without prejudice to the above also stated that Anu's Laboratories Ltd., is the supplier of a chemical known as FFA-1, used in the manufacture of Fexofenadine by the respondent.


18. It is also stated that respondents have no power to compel Anu's Laboratories Ltd., to produce the documents and the material. The present petition is therefore not maintainable and more so as the petitioner has chosen not to implead Anu's Laboratories Ltd. Respondent had earlier requested Anu's Laboratories Ltd., for voluminous documentation and samples relevant to the civil action before the District Court, District of New Jersey and submitted the same to the plaintiff. These include;


A) Manufacturing records of approximately 876 batches of FFA-1 manufactured by Anu's Laboratories Ltd., for the respondent, amounting to approximately 15,524 pages of the documents.


B) Certificates of Analysis for approximately 361 batches of FFA-1 made for the respondent, amounting to approximately 361 pages of documents.


C) Samples of FFA-1 made by Anu's Laboratories Ltd., for the respondent.


These documents and samples are in addition to the respondent own voluminous documentation of about 170,000 pages and samples submitted.


19. Respondents also state that any further request would be unwarranted burden on Anu's Laboratories Ltd., particularly as the documents required are not specified in any detail and the scope is so broad that it renders satisfaction impossible. Further, a sample of each lot manufactured would literally mean about a 1000 samples of 10 gms each which is about 100 kg of material which is an enormous burden on Anu's Laboratories Ltd., quite apart from the fact that such quantifies of samples from batches made over the years may or may not be available.


20. Without prejudice, the respondents state that even otherwise the documents and samples sought by the petitioner are contrary to law inasmuch as:


(a) The trial has not yet commenced in the civil action before the District Court, District of New Jersey and the documents and samples requested are in the nature of pre-trial discovery, a procedure that does not have the sanction of Law of India. Further the letter of request the pre-trial stage cannot be executed in terms of the declaration made by the State of India in terms of the Hague convention. A copy of the order issued by the New Jersey Court is filed herewith which is clearly shows that the Civil Action No. 04-1075 is at a pretrial stage.


(b) The (Proposed) Letter of Request states " the requested documents, as specified below in response No. 10, to be provided to Aventis from Anu's Laboratories Limited". It is submitted that such a request is not permissible as per laws of India. In any event the request of the petitioner is in the nature of an impermissible fishing and roving enquiry.


(c) The (Proposed) Letter of Request does not identify required documents with reasonable particular such as date, No. or other details to facilitate identification of documents. On the other hand contains a definition of "documents" which is very wide covering virtually every thing under the sky. It is submitted that such a vague request for production of documents is not permissible under the laws and procedures of India.


In para 9, specific stand had been taken that in the light of the facts and circumstances, the O.P. cannot be allowed.


21. In the rejoinder filed again the stand taken in the main O.P., had been reiterated. Further it is stated that the respondents are parties to civil proceedings before the United States District Court, District of New Jersey, and as such cannot claim ignorance of issuance of the letter of request. The United States District Court New Jersey has issued the proposed (letter of request) seeking judicial assistance from this Court by requesting to appoint a commissioner for the purpose of obtaining evidence from Anu's Laboratories Limited and further the letter of request categorically seeks documents to be produced by Anu's Laboratories Limited. The respondent in his counter states that the letter of request is restricted to only production of documents and that it does not contemplate recording of any evidence by examination of a witness. The respondent further contends that under the provisions of Order 26 Rule 20 read with Rule 19 of the Code, the power has been conferred only to issue commission to examine a witness at the instance of a foreign court and that it does not extend to production of documents or collection of samples. Section 3 of the Evidence Act is clear and the meaning of evidence of what includes the evidence as such, such a plea cannot be entertained by this Court. Thus the averments made by the respondent in para 4(i) are completely baseless.


22. The averments made in para 4(ii) also had been denied in para 5 of the rejoinder and Section 3 of the Companies Act, 1956 also had been referred to. With reference to the averments made in para 4 (iii) it is stated that the iearned United States Magistrate Judge of the District Court, New Jersey had acknowledged that the 1st April, 2008 mentioned in Clause 3, sub-clause (a) of the letter of request is not a hard and fast deadline requiring the receipt of the response to the letter of request. In fact, on numerous occasions, the petitioners had reminded the learned Judge had acknowledged the same. The same is also within the knowledge of the respondent and the averments made therein are only for the purpose of protracting the litigation and to cause hurdles in execution of the letter of request. In paras 7 and 8 of the rejoinder certain further aspects also had been denied. In para 9 with reference to the averments made in para 5 it is stated that the petitioner that the petitioner has suggested the name of Dr. S.V. Esvvaran to obtain the evidence of the technically qualified representative to Anu's Laboratories for the sole reason that Dr. S.V. Eswaran is currently the Head of the Department of Chemistry at Stephen's College, University of Delhi and he has wide and in depth knowledge in chemistry and has wide exposure and has also done his Post-Doctoral Research along with Senior Professor in Brown University, Providence, Rhode Island, USA, Ohio State University Columbus, Technical University of Delft, Netherlands, University of Heidelberg, Germany, University of Karlsruhe, Germany, Max Plank Inst. for Biochemistry Martinsried, Munich, Germany. Dr. S.V. Eswaran has also discharged the duties as a member of Planning and Programme Committee of the National Science Centre, Delhi and various other important posts in the field of Chemistry. He has also attended international conferences in Chemistry and has submitted several articles. As such he has been suggested by the petitioner and the petitioner has also mentioned that any other competent person or Dr. S.V. Eswaran can be appointed as a Commissioner, it is for this Court to decide the appointment of a commissioner.


23. Order 26, Rule 21 of the Code states that a commission under Rule 19 may be issued to any court within the local limits and whose jurisdiction the witness resides or whether the witness resides within the local limits of a ordinary original jurisdiction of the High Court to any person to whom the court thinks fit to execute the commission. As such it is open for this Court to decide as to whom ought to be appointed as a commissioner. The petitioner has only suggested a name and it is open for the court to decide.


24. In para 11 further it is averred that the powers conferred are wide of this court and during the course of examination of a witness, it is open for the petitioner to seek the submission of any documents/ samples, which are relevant for deciding the subject matter of the dispute before the foreign court. Article 21 of the Hague Convention is clear and the said Article is reproduced hereto for perusal of this Court.


Article 21:


Where a diplomatic officer, consuler agent or commissioner is authorized under Articles 15, 16 and 17 to take evidence.


(a) he may take all kinds of evidence which are not incompatible with the law of the State where the evidence is taken or contrary to any permission granted pursuant to the above Articles, and shall have power within such limits to administer an oath or take an affirmation;


(b) a request to a person to appear or to give evidence, shall unless the recipient is a national of the State where the action is pending, be drawn up in the language of the place where the evidence is taken or be accompanied by a translation into such language;


(c) the request shall inform the person that he may be legally represented and, in any state that has no filed a declaration under Article 18, shall also inform him that he is not compelled to appear or to give evidence.


(d) the evidence may be taken in the manner provided by the law applicable to the Court in which the action is pending provided that such manner is not forbidden by the law of the State where the evidence is taken;


(e) a person requested to give evidence may invoke the privileges and duties to refuse to give the evidence contained in Article 11.


25. Further it is stated that that the respondent has admitted that Anu's Laboratories supplies chemicals known as FFA1 used in the manufacture of Fexofenadine by the respondent. The other averments made therein are baseless. The defence taken by the respondent before this Court ought to have been taken by the respondent before the District Court, New Jersey and impressing upon the court issuing the letter of request that Anu's Laboratories cannot be compelled to produce any document or material. It is stated that this Court would not go beyond the letter of request and enter upon the enquiry as to the jurisdiction of issue of letter of request which has to be accepted and executed owing to reciprocity between two sovereign countries. Order 26 Rule 19 and 20 do not confer any power upon this Court to go into a proprietary of the letter of request or the questions of relevance or admissibility of the evidence. These questions of relevancy and admissibility to be considered by the Court issuing the letter of request and the very fact that the letter of request had been issued implies that it has been issued after taking into account the question of relevance and admissibility as well by the foreign court.


26. It is stated that this Court would not sit in appeal over the orders of the foreign court on these aspects of the matter. It is further stated that it is not for this Court to decide the relevancy of the document sought to be produced through this letter of request are relevant for deciding the main civil action before the Court of New Jersey. The suit of the petitioner herein is for patent infringement against the respondent. As rightly held in M/s. Wooster Products Inc. v. M/s. Magna Tek Inc. and others reported in AIR 1989 Delhi 6, this Court has ample power to allow the petition.


27. Further it is stated that the respondents had stepped into the shoes of Anu's Laboratories and had pleaded before this Court that the letter of request cannot be accepted by this Court and that Anu's Laboratories is put to unwarranted burden. It is for Anu's Laboratories in inform the Commissioner about the availability or non-availability of the samples sought and it is not for the respondent herein to plead on behalf of Anu's Laboratories for any purpose. Further it is averred that as regards the litigation before the District Court, New Jersey expert reports are currently being prepared and exchanged. After the last expert report would be exchanged, expert depositions would take place. The proposed date by which the expert discovery is probable to be completed is 8th April, 2009 The declaration made by India under Article 23 of the Hague Convention on Taking of Evidence Abroad in Civil or Commercial matters, very clearly stipulates that in case of a pre-trial discovery of documents which are likely to be in the possession/custody/ power of a person, the Republic of India cannot refuse the execution of a letter of request requiring the production of pre-trial discovery of documents which are specified in the concerned letter of request.


28. Thus, in the present case, the above mentioned declaration made by India under Article 23 read with Article 21 of the said Convention, makes it abundantly clear that the required evidence specially enumerated in the letter of request can be sought from Anu's Laboratories Ltd. Certain further facts had been narrated in paras 16 and 17 as well. Articles 2, 12 and 27 of the Convention had been specifically referred to and certain provisions of the Code also had been further reiterated.


29. The principal contention advanced by the counsel representing the respondents while opposing the present O.P. is that since the letter of request had not specifically specified the name of the witness, Order 26 Rule 19 of the Code being not applicable, this Court is not expected to travel beyond thereto and issuance of a commission for examination of such an alleged witness whose name in fact had not been specified at all is impermissible. A distinction had been drawn between the production of documents and the examination of witness and incidentally certain submissions were made that it may be that when a witness is examined in the course of examination certain documents may be produced, Order 26 Rule 19 of the Code deals with cases in which High Court may issue commission to examine witness. These provisions fall under commissions issued at the instance of foreign Tribunals.


30. The said provision of Order 26 Rule 19 of the Code reads as hereunder:


"Cases in which High Court may issue commission to examine witness-(1) If a High Court is satisfied-


(a) that a foreign court situated in a foreign country wishes to obtain the evidence of a witness in any proceeding before it,


(b) that the proceeding is of a civil nature; and


(c) that the witness is residing within the limits of the High Court's appellate jurisdiction;


it may, subject to the provisions of Rule 20, issue a commission for the examination of such witness.


(2) Evidence may be given of the matters specified in Clauses (a), (b) and (c) of sub-rule (1)‑


(a) by a certificate signed by the consular officer of the foreign country of the highest rank in India and transmitted to the High Court through the Central Government, or


(b) by a letter of request issued by the foreign court and transmitted to the High Court through the Central Government, or


(c) by a letter of request issued by the foreign court and produced before the High Court by a party to the proceeding."


31. Strong emphasis had been made on word or expression `witness' which had been repeated in Order 26, Rule 19 of the Code. Order 26 Rule 20 of the Code deals with application for issue of commission and the same reads as under:


"The High Court may issue a commission under Rule 19‑


(a) upon application by a party to the proceeding before the foreign court, or


(b) upon an application by a law officer of the State Government acting under instructions from the State Government.


32. Order 26 Rule 22 of the Code deals with issue, execution and return of commissions, and transmission of evidence to foreign court and the same reads as hereunder:


"The provisions of Rules 6, 15 [sub-rule (1) of Rules 16A, 17, 18 and 18B] of this Order in so far as they are applicable shall apply to the issue, execution and return of such commissioners, and when any Commission has been duly executed it shall be returned, together with the evidence taken under it, to the High Court, which shall forward it to the Central Government, along with the letter of request for transmission to the foreign Court."


33. It is needless to say that Order 26 Rule 22 of the Code refers to Order 26 Rule 17 of the Code as well. It is no doubt true that Order 26 Rule 17 of the Code falls under a different sub-caption under Order 26 of the Code. The same deals with attendance and examination of witnesses before Commissioner and the said provision reads as hereunder:


"17 (1) The provisions of this Code relating to the summoning, attendance and examination of witnesses, and to the remuneration of, and penalties to be imposed upon, witnesses, shall apply to persons required to give evidence or to produce documents under this Order whether the commission in execution of which they are so required has been issued by a Court situate within or by a Court situate beyond the limit of India, and for the purpose of this rule the Commissioner shall be deemed to be a Civil Court;


[Provided that when the Commissioner is not a Judge of a Civil Court, he shall not be competent to impose penalties; but such penalties may be imposed on the application of such Commissioner by the Court by which the commission was issued.]


(2) A Commissioner may apply to any Court (not being a High Court) within the local limits of whose jurisdiction a witness resides for the issue of any process which he may find it necessary to issue to or against such witness, and such Court may, in its discretion issue such process as it considers reasonable and proper."


34. Articles 3 and 12 of the Convention already had been specified above. Certain submissions were made relating to the evidence and the definition of evidence. This aspect need not be discussed any further in the light of the provisions under Order 26 Rule 19 of the Code referred to above.


35. Order 26 Rule 10-A of the Code deals with commission for scientific investigation and the said provision reads as hereunder:


"(1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court.


(2) The provisions of Rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under Rule 9.


Much emphasis had been laid on the language employed under Order 26 Rule 17(1) of the Code and on the aspect of the Code and on the aspect of the matter becoming infructuous by lapse of time. It is time had been extended and hence the contention that matter became infructuous cannot be sustained. The objection relating to maintainability of O.P., by the power of attorney also is not tenable in the light of the stipulations in the said power of attorney.


36. Section 51 of the Indian Companies Act, 1956 also had been relied upon and the said provision deals with service of documents on company and the said provision reads as hereunder:


"A document may be served on a company or an officer thereof by sending it to the company or officer at the registered office of the company by post under a certificate of posting or by registered post, or by leaving it at its registered office.


[Provided that where the securities are held in a depository. The records of the beneficial ownership may be served by such depository on the company by means of electronic mode or by delivery of floppies or discs].


37. In relation to the extension or applicability of the relevant provisions of the convention, certain submissions were made and strong reliance was placed in Jolly George Varghese v. The Bank of Cochin AIR 1980 SC 470 wherein the Apex Court at para 10 observed as under:


"Right at the beginning, we may take up the bearing of Article 11 on the law that is to be applied by an Indian Court when there is a specific provision in the Civil Procedure Code, authorizing detention for non-payment of a decree debt. The Covenant bans imprisonment merely for not discharging a decree debt. Unless there be some other vice or mens ret apart from failure to foot the decree, international law frowns on holding the debtor's person in civil prison, as hostage by the court. India is now a signatory to this Covenant and Article 51(c) of the Constitution obligates the State to "foster respect for international law and treaty obligations in the dealings of organized peoples with one another". Even so, until the municipal law is changed to accommodate the Covenant what binds the court is the former, not the latter. A.H.Robertson in "Human Rights ? in National and International Law" rightly points out that international conventional law must go through the process of transformation into the municipal law before the international treaty can become an internal law."


38. Further reliance was placed on Civil Rights Vigilance Committee, S. L. S. R. C. College of Law, Bangalore v. Union of India and others AIR 1983 Kant. 85 wherein the Division Bench of the Karnataka High Court at paras 9 and 10 observed as under:


"Articles 245(1) read with Entry 14 in List-I of Schedule VII to the Constitution and Article 253 empower the Parliament to make laws for implementing treaties entered into by the government of India with foreign countries. (See: Reference by the President of India under Article 143(1) of the Constitution MANU/SC/0049/ 1960.


The provisions in Part-IV of tha Constitution contain the directive principles of State policy. The provision in Article 51, occurring in that part, provides, inter alia, that the State shall endeavour to foster respect for inter-national law and treaty obligations in dealings of organized peoples with one another. The provision in Article 37 occurring in the same part, though it declares that the directive principles in part-IV are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws, states that the provisions in that parts shall not be enforceable by any court. From this it follows that the provision in Article 51 is not enforceable by any court and if Parliament does not enact any law for implementing the obligations under a treaty entered into by the Government of India with foreign countries, courts cannot compel Parliament to make such law. In the absence of such law, court cannot also, in our view enforce obedience of the Government of India to its treaty obligations with foreign countries."


39. In Chairman, Railway Board v. Mrs. Chandrima Das AIR 2000 SC 988 = 2000 (2) ALT 5.2 (DNSC) no doubt in a lightly different context while dealing with infringement of human rights, the Apex Court while dealing with the applicability of the universal declaration and principles relating thereto at para 24 observed as hereunder:


"The international covenants and declarations as adopted by the United Nations have to be respected by all signatory States and the meaning given to the above words in those declarations and covenants have to be such as would help in effective implementation of those rights. The applicability of the Universal Declaration of Human Rights and Principles thereof may have to be read, if need be, into the domestic jurisprudence."


40. Sections 75, 78 and 94 of the Code also had been referred to in this context. Incidentally certain submissions were made in t1 is regard under Section 151 of the Code as well. Section 94 of the Code deals with supplemental proceedings. Section 75 of the Code falling under Part lll incidental proceedings ? power of Court to issue commissions and the same reads as hereunder:


"Subject to such conditions and limitations as may be prescribed, the Court may issue a commission‑


A) to examine any person;


B) to make a local investigation;


C) to examine or adjust accounts;


D) do make a partition;


E) to hold a scientific, technical or expert investigation;


f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;


g) to perform any ministerial act."


41. Section 77 of the Code dealing with letter of request specifies that in lieu of issuing a commission the Court may issue a letter of request to examine a witness residing at any place not within India. Section 78 of the Code deals with Commissions issued by foreign Courts and the same reads as hereunder:


"Subject to such conditions and limitations as may be prescribed, the provisions as to the execution and return of commissions for the examination of witnesses shall apply to commissions issued by or at the instance of‑


(a) Court situate in any part of India to which the provisions of this Code do not extend; or


(b) Courts established or continued by the authority of the Central Government outside India; or


(c) Courts of any State or country outside India."


42. No doubt reliance was placed on certain decisions and certain submissions were made, that when specific provision is available under the Code, inherent powers not to be resorted to. Reliance was placed on Padam Sen v. State of U.P. AIR 1961 SC 218, M/s. Ramchand and Sona Sugar Mills v. Kanhayalal AIR 1966 SC 1899 and Arjun Singh v. Mohindra Kumar AIR 1964 SC 993. Reliance was also placed in Manoharlal Chopra v. Raj Bhadur Rao Raja Seth Hiralal AIR 1962 SC 527. It is needless to say that this decision is in relation to issuance of temporary injunction while exercising inherent powers by the courts.


43. The learned counsel representing the petitioner had drawn attention of this Court to similar matters which had been disposed of by this Court in O.P.Nos. 2, 3 and 6 of 2008 and in O.P.No. 6 of 2008 the learned Judge while disposing of the O.P. observed as hereunder:


"Accordingly the learned Chief Judge, City Small Causes Court, City Civil Court, Hyderabad is appointed as commissioner to record the deposition testimony of the above said witness in terms of the letter of request and return the commission after execution together with deposition of the witness and the documents, if any, marked, in a sealed cover to the Registrar (Judicial) of this Court within four weeks from the date of receipt of warrant of commission. The Registry shall append all the necessary papers filed in this OP and a copy of this order along with the warrant of commission, which shall reach the Commissioner within one week from today. The petitioner herein has undertaken to serve notice on the respondents herein personally to enable them or their representatives to attend the evidentiary hearing. Therefore, the petitioner shall take out a personal notice to the respondents and file proof of service before the Commissioner after obtaining appropriate orders from the Commissioner regarding the date of evidentiary hearing. After receipt of the commissioner's report along with deposition of witness and documents, the Registrar (Judicial) shall make arrangements for forwarding the same to United States District Court for the Eastern District of Texas, Marshall Division, 100 East Houston, Marshal, TX, United States 75672, at the cost of the petitioner herein."


In M/s. Wooster Products Inc., v. M/s. Magna Tec Inc., and others AIR 1989 Delhi 6 the learned Judge of Delhi High Court observed:


"Even assuming for the sake of arguments that the intervener has a right to object, even then it is difficult to accept that there is any force in the objections raised by the intervener against issuance of commission. Learned counsel for the intervener has drawn my attention to Radio Corporation of America v. Rau/and Corporation, (1956) 1 All ER 549, Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation etc., contra (1978) 1 All ER 434 and Re Asbestos Insurance Coverage cases (1985) All ER 716 and has submitted in the light of observations therein that the letter of request is in the nature of fishing inquiry by the petitioner and no commission should be issued by this Court and more so, unless relevance of documents and testimony of the witnesses is established before this court. These rulings are based upon peculiar provisions of English Law especially Evidence (Proceedings in other Jurisdictions) Act, 1975 and therefore cannot be of much help to the intervener on the force of these rulings, inasmuch as the letter of request received in this court has to be disposed of in the light of law applicable to this court and not in accordance with English Law. The question of relevance has to be decided not in accordance with Indian Law but law of the Foreign Court where civil proceedings are pending and it would be beyond jurisdiction of this court to adjudicate upon the question of relevance of the said documents. This court would not go behind the letter of request and enter upon an inquiry as to the jurisdiction of issuance of letter of request which has to be accepted and executed owing to reciprocity between two sovereign countries. The above mentioned provisions of law do not confer any power upon this court to go into the proprietary (propriety) of the letter of request or the questions of relevance or admissibility of the evidence. These questions of relevance and admissibility have had to be considered by the court issuing the letter of request and the very fact that the letter of request has been issued implies that it has been issued after taking into account the question of relevance and admissibility as well by the foreign court. This Court would not sit in appeal over the orders of foreign court on this aspect of the matter. Even accepting for the sake of arguments that the question of relevance has to be considered by this Court even then it would be difficult to say that the documents which are sought to be got produced through the letter of request are not relevant. The suit of the petitioner is for the recovery of damages for breach of contract on the plea that the respondent in that suit has committed breach of agreement with the petitioner and has entered into a contract for the same purpose with the intervener. Certainly the terms of c

ontract between the respondent in that suit and intervener before this Court would be relevant for the purposes of arriving at the quantum of damages by the foreign court in the suit pending before it and as such it cannot be said that the documents sought to be got produced by the commission would not be relevant. The intervener has no right to claim privilege about the documents which are sought to be got produced before the Local Commissioner in pursuance of the letter of request. Only persons who can claim privilege in respect thereof are the respective witness who are required to produce documents and for that reason as well I find no substance in the request of the intervener.? 44. Sri B. Nalin Kumar, learned counsel representing the respondents would contend that on the strength of the letter of request made by the foreign court the O.Ps had been disposed of, suitable directions had been issued since the name of witness to be examined by the commission had been specifically specified and in view of the fact that in such cases Order 26 Rule 19 of the Code would be applicable, but the present case being distinguishable from the other cases, such directions cannot be issued by this Court in the present matter in the light of the facts of this case, Letter of request to be given meaningful reading in the context. 45. On a careful scrutiny of the letter of request on the strength of which the O.P. had been instituted by one of the parties to the !is before the court concerned at New Jersey, the company from whom the documents and the samples to be gathered had been specified, the name of the company also had been specified. It is needless to say under the Indian Companies Act, 1956 the company being a corporate personality, the person managing the affairs of the company or any other competent person, who may be able to speak about the affairs of the company to be examined. 46. It is no doubt true that on a careful reading of the letter of request specifically the name of the concerned witness to be examined as a witness had not been specified, but the company as corporate personality had been specified. This Court is of the considered opinion that the very object of the issuance of letter of request by a foreign court in the light of the language of Order 26 Rule 19 read along with Rules 17, 20, 21 and 22 of the Code would be defeated if the view to be taken that the witness had not been specified in the letter of request. Be that as it may, in the light of the facts and circumstances of the case even on a careful reading of these provisions since elaborate submissions were made that in the light of the specific language in Order 26 Rule 19 of the Code and in view of the fact the convention cannot be made applicable or cannot be read into the domestic jurisprudence, this Court is of the considered opinion that there is a need to clarify the situation and it would be appropriate to amend the relevant provisions of the Code so as to engulf not only oral evidence but also documentary evidence. 47. Be that as it may, in the light of the facts and circumstances since the letter of request specifically specified a corporate personality for the limited extent of those documents to be produced by the company, the officer in-charge of the affairs of the company to be examined and for that limited extent the officer in-charge of the affairs of the company to depose relating to the documents and samples as specified in the latter of request and not beyond thereto, to be recorded by the concerned learned Judge. 48. In the light of the discussion referred to above, Let the learned Chief Judge, City Civil Court, Hyderabad, either record by himself or appoint a Commissioner for the purpose specified in the letter of request for producing the documents and samples and nothing beyond thereto and after the documents and samples specified in the letter of request along with the statement of the person deposing in relation thereto i.e., the officer of the company in-charge of the affairs of the company, the said documents along with the said deposition of the said officer be furnished in a sealed cover to the Registrar (Judicial) of this Court within a period of four weeks from the date of receipt of the warrant of commission or four weeks of recording by the learned Judge as the case may be. The Registry shall append all the necessary papers filed in this O.P. along with a copy of this order and also the warrant of commission and the same to reach the Commissioner within two weeks form today in the event of Commissioner being appointed by the learned Judge. The petitioner had undertaken to serve notice on the respondents personally to enable them or their representatives to attend the hearing at the time of recording of such evidence. Hence the petitioner shall take due personal notice to the respondents and file proof of service before the Court or the Commissioner after obtaining appropriate orders from the Court or the Commissioner regarding the date of such hearing. After receipt of the Commissioner's report if Commissioner is appointed along with the deposition of witness and documents to the limited extent specified above as shown in the letter of request, the Registrar (Judicial) shall make arrangement for forwarding the same to the United States District Court, District of New Jersey, at the cost of the petitioner. 49. With above directions, the O.P. is hereby allowed to the extent indicated above. No order as to costs.