Letter of Request
An Indian Court cannot send a binding commission into a foreign country. So when the witness lives outside India, Section 77 lets the Court issue a letter of request — asking a foreign court to examine the witness on its behalf.
How to read Section 77
Section 76 sent a commission to a court in another State — both being Indian courts. But a court in a foreign country owes no obedience to an Indian commission. Section 77 supplies the polite, inter-sovereign alternative.
In lieu of a commission, the Court may issue a letter of request (a “letter rogatory”) — a request to a foreign court, not a command.
Only where the witness is residing outside India — beyond the reach of an Indian commission under § 76.
One sovereign’s court cannot command another’s. It relies on comity — courts of different nations assisting one another by mutual courtesy.
The bare Act
In lieu of issuing a commission the Court may issue a letter of request to examine a witness residing at any place not within India1.
… a witness residing at any place not within “the States” — the pre-Constitution terminology for British-Indian territory.
“the States” replaced by “India” — after the Constitution unified the country, the test became simply: is the witness outside India?
1. Subs. by Act 2 of 1951, s. 3, for “the States”. The procedure for a letter of request is set out in Order XXVI (rule 5).
Key terms decoded
A formal request from one country’s court to another’s, asking it to examine a witness (or take other evidence) on its behalf — also called a letter rogatory.
“Instead of” — the letter of request is an alternative to issuing a commission, not an addition to it.
An order to examine a person, sent to another Indian court. It works within India; it cannot bind a foreign court — hence § 77.
To record a witness’s sworn evidence — here, a witness the Indian court cannot reach because he is abroad.
The trigger: the witness lives outside India. Only then is a letter of request the right instrument.
Originally the section said “the States”; Act 2 of 1951 replaced it with “India” to match the post-Constitution map — so the line is now drawn at the national border.
The principle by which courts of different sovereigns assist one another out of mutual respect — not compulsion. A letter of request is its everyday expression.
The traditional name for a letter of request — literally a “letter that asks”. The asking, not commanding, is the whole point.
The picture — inside India a commission, outside India a request
Same goal, different instrument. Inside India the Court commands a fellow court by commission (§ 76); across the border it can only ask — a letter of request, honoured by the foreign court out of comity.
Section 77, phrase by phrase
A single sentence — an alternative, a power, a purpose, and the one condition that unlocks it.
Connected provisions
Section 77 is the outbound, cross-border arm of the commissions chapter: a commission within India (§ 76), a request beyond it (§ 77), and the reverse — foreign requests honoured here (§ 78). Procedure: Order XXVI, rule 5.