Judgment:
Mahesh Chandra, J.
(1) The following facts give rise to this order. M/s. Wooster Products Inc., Wooster, Chico (hereinafter referred to as 'the petitioner') filed this O.M.P. No. 143 of 1987 under Order Xxvi Rules 18, 20 and 21 read with Section 151 Civil Procedure Code . in which it was submitted that on or about 1st May. 1984 the petitioner entered into a contract with M/s, Magna Tek Components Inc. New Jersey (hereinafter referred to as ''the respondents' for the purchase of Technology, equipment, machinery and related training and materials necessary for the production, sale and marketing of 1/2 inch Video Tape in the Sub-continent of India; that under the said contract, the petitioner was granted the exclusive right to the use of Magna Tek Components Inc. Technology expertise for the sub-continent of India including India, Pakistan, Bangladesh and Sri Lanka; that pursuant to the said contract, the petitioner has duly discharged its obligation and has paid to the extent of s. 630,000; that the petitioner has also incurred heavy expenses being the preliminary expenses for the setting up of the project in India to the extent of s. 370.000; that the petitioner has also been granted a Letter of Intent by the Government of India for setting up an Industry to manufacture 1/2 inch Video Tapes; that sometime in the year, 1986 the representative of the petitioner was surprised to note that the respondent in violation of the terms of the contract with the petitioner had clandestinely sold its technology to another company in India by the name M/s. Garwar Plastics & Polyester Limited (hereinafter referred to as 'the intervener') for setting up a similar plant in India; that being aggrieved by the action of the respondent and its agents, the petitioner preferred a petition before the Court of Common Pleas of Wayne County, Ohio, inter alia. seeking compensatory damages in the amount of Eleven Million Dollars, compensatory damages in the amount of Eleven Million Dollars and punitive damages in the amount of Twenty Two Million Dollars and the petition filed by the petitioner is registered as Case No, 86-CI-397 and is pending in the Court of Common Pleas at Wayne County, Ohio; that during the course of proceedings, the court of Common Pleas of Wayne County, Ohio was pleased to observe that in order to render justice it was necessary to ascertain the full fans pertinent to the dealings of M/s Magna Iek Inc add Magna TEK: Components INC. had either directly or through its Agents with the intervener and it was necessary to examine witness or witnesses as well as the documents within their custody and control including documents detailed in para 8 of the O.M.P.; that the Court of Common Pleas of Wayne County, Ohio has been pleased to issue Letter of Request being called the Letters Registry to Court in Foreign Country-witnesses to be examined not named, vide its orders dated 27th October. 1987, inter alia, requesting this court to cause such witness or witnesses to answer under oath the questions propounded to them and to cause the deposition of such witnesses to be reduced to writing and return to the court of Common Pleas of Wayne County, Ohio duly closed and sealed; that various documents referred to in the Letter of Request dated 27th October, 1987 were in the custody/possession or supervision of the Director/Directorate, Department of Electronics, Government of India,, New Delhi and the Secretary/Secretariat for Industrial Approval Special Cases Section, Department of Industrial Development, Government of India, New Delhi; that as such it is necessary to examine these two persons or such other representatives or officers of the respective departments who may be deputed or authorised in this behalf; that as such it was prayed that this court may examine or issue commission for the purpose of Letter of Request.
(2) After hearing the learned counsel for the petitioner, this court bad allowed the application and appointed a Local Commissioner to execute the Letter of request in accordance with the Code of Civil Procedure and other laws of this country vide orders dated 17th December, 1987. Before the said commission could be executed, three I.A.s namely, I.A.Nos. 9757, 9758 and 9^59 of 1987 were filed by the intervener which came up for hearing before Malik Sharief-ud-Din, J. during winter vacations on 22nd December, 1987 who directed that these I As. be listed on 7th January, 1988 and in consequence after getting replies to various applications, arguments on these applications were heard and these I As. are sought to be disposed of by this order.
(3) 1. A. No. 9757 of 1987 is for vacating the order dated 17th December, 1987 while I.A. No. 9758 of 1987 is under Order I Rule 10 C.P.C. for impleading the intervener as a party to this O.M.P. and I.A. No. 9759 of 1987 is again under Order I Rule 10 Civil Procedure Code . for impleading the Union of India through Secretary, Ministry of Industry and the Secretary, Department of Electronics as parties to this O.M.P. All these applications are opposed on behalf of the petitioner. I have heard the learned counsel for the parties and have gone through the file and after giving my considered thought to the matter before me I have come to the following findings :
(4) The law with regard to 'commissions issued by the foreign courts' is incorporated in Section 78 of the Code of Civil Procedure which lays down as under:
'78Commissions 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 (e) Courts of any State or country outside India'.
The detailed procedure in this behalf is laid down in Order 26 Rule 19 of the Code of Civil Procedure. Rule 19 provides as under :
'19.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 proceedings before it, (b) that the proceeding is of a civil nature, and (e) 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 (e) 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 issused by the foreign court and transmitted to the High Court through the Central Government, or (e) by a letter of request issued by the foreign court and produced before the High Court by a party to the proceedings.'
it would be appropriate to reproduce here the provisions of Rules 20 and 21 of Order 26 of the Code of Civil Procedure as well :
20Application for issue of commission The High Court may issue a commission under Rule 19- (a) upon application by a party to the proceedings before the foreign court, or (b) upon an application by a law officer of the State Government acting under instructions from the State Government'
'21To whom commission may be issued. A commission under Rule 19 may be issued to any court within the local limits of whose jurisdiction the witness resides, of where the witness resides within the local limits of (the ordinary original civil jurisdiction of the High Court) to any person whom the court thinks fit to execute the commission'.
This is the basic law with regard to the disposal of 'Letter of Request by foreign courts' like the one which has been received in the instant case. A reading of Rule 19 of the Code of Civil Procedure shows that three conditions are required to be satisfied before jurisdiction vested in this court under Section 78 read with Rule 19 of Order 26 of the Code of Civil Procedure can be invoked and the said conditions are that :
(I)a foreign court should wish to obtain evidence of a witness: (ii) in any proceeding of civil nature before it; and (ili) the witness should be residing within the appellate jurisdiction of the High Court.
It has not been disputed on behalf of intervener that the petitioner has filed the proceedings of a civil nature in Ohio Court and a letter of request has been issued by the foreign court wishing to obtain the evidence of some witnesses in the said civil proceedings before it It is also not disputed that the witnesses sought to be examined in pursuance to the said letter of request are residing within the limits of this High Court's Appellate Jurisdiction. Thus all the three conditions specified in Rule 19(l)(a), (b) and (e) stand satisfied. That being the position, it is open to this court to issue commission for examination of the witnesses as is sought by the petitioner The petitioner has approached this court with a formal application within the meaning of Rule 20(a) Civil Procedure Code .and has filed a Letter of Request referred to in Rule 19(2)(c) C.P.C along with application. The witnesses reside within the ordinary civil jurisdiction of this court within the meaning of Rule 21 Civil Procedure Code . above referred. In this view of the matter it would be difficult to accept that the intervener has any right to object to the issue of commission for execution in pursuance of letter of request. A perusal of the above provisions of law does not show that either the intervener or the witnesses to whom the commission is sought to be issued in pursuance of the letter of request are even proper parties much less necessary parties to these proceedings. From the perusal of the abovementioned provisions of law, it would be difficult to say that the intervener has any locus standi to move any of the applications which have been moved by it. By no stretch of imagination it can be accepted that it has any right to move these applications and object to the execution of the commission issued by this court at the instance of the petitioner in pursuance of the letter of request of the Ohio Court.
(5) 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. Rauland Corporation and another, (1956) 1 AELR 548, Rio Tinto Zinc Corporation ond others v. Westinghouse Electric Corporation etc contra (1978)1 All England Law Reports 434 and-Re Asbestos Insurance Coverage cases (1985) 1 AELR 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 thereforee cannot be of much help to the intervener. With respects to their Lordships, I must say that it would be difficult to accept or subscribe to the proposition raised by the learned counsel for the intervener on the force of these rulings, in as much 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 have to be accepted and executed owing to reciprocity between to sovereign countries. The above- mentioned provisions of law do not confer any power upon this court to go into this proprietary 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 '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 order of the 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 contract between the respondent in that suit and intervener before this court would be relevant for the purpose 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 witnesses who are required to produce documents and for that reason as well I find no substance in the request of the intervener.
(6) In view of my discussion and findings above, I find no force in any of these applications and as such 1.A. Nos. 9757, 9758 and 9759 are liable to be dismissed and are dismissed. The local commissioner is hereby directed to proceed with the execution of the commission immediately in accordance with the order dated 17th December, 1987 and submit his report before 7th July, 1988 Court notice be issued to the local commissioner.