Foreign Counsel Cannot Examine Or Cross Examine Witnesses In India Before Court Commissioner: Kerala High Court
The Bench noted that executing evidence-collection requests must strictly comply with domestic Indian laws governing the legal profession.
Justice Mohammed Nias CP, Kerala High Court
The Kerala High Court has held that a foreign counsel cannot be permitted to independently conduct the examination or cross-examination of a witness in proceedings executing a Letter of Request issued by a foreign court under the Hague Convention, as the procedure to be adopted must strictly align with the domestic laws governing the Indian legal profession.
It explicitly noted that the recording of oral evidence before an Advocate Commissioner appointed under CPC constitutes a litigious act and forms an integral part of the practice of law in India, from which foreign lawyers stand strictly excluded.
A Bench of Justice Mohammed Nias C.P. observed, “…It is trite that an Advocate Commissioner, executing a warrant issued by a Court, is deemed to be a civil court for the attendance and examination of witnesses and the Courts have consistently held that the commissioner acts as the eyes and ears’ of the Court and ‘an extended arm and agent’ of the Court and, in fact, “a projection of the Court” for a particular purpose whose report in evidence forms part of the record. The recording of evidence before a Commissioner is, indeed, a litigious act forming part of the practise of law in India, from which the foreign lawyers stand excluded. The examination of a witness before the Commissioner under Order XXVI of the Code of Civil Procedure clearly falls outside of each of the permissible categories under the BCI Rules”.
Advocate Ramola Nayanpally appeared for the petitioner and Advocate P. Prijith appeared for the respondent and M. Shajna acted as the Advocate Commissioner.
In the matter, the dispute arose from a civil recovery suit involving allegations of fraud, breach of contract, breach of fiduciary duty, and unjust enrichment instituted by Sharestates Inc. against Hari Maddali and Copper Bricks LLC before the United States District Court for the Eastern District of New York.
Seeking international judicial assistance to secure essential documentary and oral evidence from an Information Technology consultant residing in Cochin, the US District Court issued a Letter of Request under Article 3 of the Hague Convention to the Indian Ministry of Law and Justice.
The petitioner subsequently approached the Kerala High Court under Order XXVI Rule 20(a) of the Code of Civil Procedure, 1908, seeking the appointment of a commission to execute the Letter of Request.
The High Court started the execution by appointing an Advocate Commissioner to record the testimony and exercise powers to summon the witness and accept documents.
Thereafter, the defendants in the US proceedings were formally impleaded as additional respondents and requested permission for their US-based foreign counsel to actively participate in the evidence-collection process, specifically demanding the right to examine and cross-examine the witness. The petitioner vehemently opposed the request, asserting that foreign lawyers are strictly prohibited from practicing law in litigious matters within India.
Evaluating the statutory landscape, the Court observed that Article 9 of the Hague Convention dictates that the executing judicial authority must apply its own domestic laws concerning the methods and procedures of execution.
Under Sections 29 and 33 of the Advocates Act, 1961, advocates enrolled with the Bar Council are established as the exclusive class entitled to practice the profession of law in India. Furthermore, the Bar Council of India Rules restrict foreign practitioners to tightly regulated, non-litigious domains. Because an Advocate Commissioner effectively functions as a projection and an extended arm of the civil court, the acts of examining or cross-examining witnesses before such an authority constitute litigious practice.
Granting permission under Section 32 of the Advocates Act remains an exceptional judicial discretion that cannot be invoked to subvert statutory prohibitions or circumvent the explicit bar on foreign lawyers engaging in litigious work.
“It is also to be noted that the provisions under Order III of the Code of Civil Procedure confines appearance, application or act in or to any Court by a party in person be made or done by the party in person or by his recognized agent or by a pleader and Section 2(15) of the Code of Civil Procedure defines a 'pleader' as any person entitled to appear and plead for another in Court, including an Advocate and thus, a reading of Order XXVI Rule 18 of the Code of Civil Procedure read with Order III clearly show that a foreign lawyer cannot be treated as 'pleader' under the Act and thus, not entitled to appear before the Commissioner for examining or cross examining the witness”, the Bench observed.
The Court declined the respondents' request to permit their foreign counsel to conduct the examination and cross-examination of the witness before the Advocate Commissioner.
However, the Court directed that the foreign counsel and representatives shall be permitted to attend, observe, and participate in the proceedings, provided that the physical examination and cross-examination of the witness are conducted strictly and exclusively by the respective Indian counsel representing the parties.
Cause Title: Sharestates Inc. v. Prasad Choorakuzhiyil Gopalan & Others (I.A. No. 1/2026 in M.J.C. No. 82 of 2026)
Appearances:
Petitioner: Ramola Nayanpally, Parvathy Kottol, Pranoy Harilal, Giridhar Krishna Kumar, and Jaiswal Harshit Chetan Kumar.
Respondent: P. Prijith, Sidharth A. Menon, and Thomas P. Kuruvilla, M. Shajna acted as the Advocate Commissioner.