Thursday 7 January 2021

Section 78: Commissions issued by foreign Courts

 Code of Civil Procedure Section 77. Letter of request.

 Bare Act:

1[78. Commissions issued by foreign Courts.—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) Courts 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.]

Note 1: Subs. by s. 11, ibid., for s. 78.

 

Code of Civil Procedure Section 79. Suits by or against Government.


Simplified Explanation

It is a well settled principle that by agreement the parties cannot confer jurisdiction, where none exist, on a Court to which CPC applies, but this principle does not apply when the parties agree to submit to the exclusive or non-exclusive jurisdiction of a foreign Court. Indeed in such cases the English Courts do permit invoking their jurisdiction. Thus, it is clear that the parties to a contract may agree to have their disputes resolved by a foreign Court termed as a ‘neutral Court’ or ‘Court of choice’ creating exclusive on non-exclusive jurisdiction in it.

In view of the aforesaid judicial pronouncements, it may be summarised that the cause of action is a bundle of facts and to examine the issue of jurisdiction, it is necessary that one of the inter-linked facts must have occurred in a place where the suit has been instituted. The said fact must have a direct nexus to the lis between the parties and in case the facts taken in the plaint are denied, the plaintiff has to prove the same.





More Reading:

Judgment

Section 20. Other suits to be instituted where defendants reside or cause of action arises.

Judgments on Cause of Action

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