Justice Mohammed Nias C.P. observed that recording of evidence before a Commissioner is a litigious act, forming part of the practise of law in India, from which the foreign lawyers stand excluded.

“A reading of Order XXVI Rule 17 shows that the Commissioner who was appointed has to be treated as a Court and that the report of the Commissioner shall be evidence in the suit… 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,” the Court opined.

The petitioner before the Court was a US-registered private company named Sharestates, which had initiated a civil case in US against three parties, including the 1st respondent herein, who is an Indian citizen residing within the jurisdiction of the High Court. The suit was for recovery of money alleging fraud, breach of contract, unjust enrichment, etc.

The petitioner had also filed a request for issuance of a Letter of Request based on Article 3 of the Hague Convention on the taking of Evidence Abroad in Civil or Commercial Matters.

The US court then issued a Letter of Request to the Indian Ministry of Law and Justice requesting international judicial assistance to obtain oral and documentary evidence from the Indian-resident respondent. This evidence would be used in the proceedings before the US court.

For executing the letter of request, the petitioner filed a miscellaneous jurisdiction case (MJC) before the High Court and an Advocate Commissioner was appointed to record evidence and to exercise power to summon persons, produce documents, etc.

The two other defendants in the US suit filed the present interim application for impleadment in the MJC. They also sought permission for their US counsels to cross examine the witnesses, which was objected to by the petitioner. These two parties were then impleaded as 2nd and 3rd respondents in the MJC. The present order was passed deciding on the point of whether US counsel can undertake cross-examination.

The petitioner in the MJC pointed out that Article 9 of the Hague Convention requires the judicial authority, which is executing the letter of request, to apply its own law on the procedures to be followed. It is permitted to follow any special method requested by the requesting authority only when the same is not incompatible with the executing authority's own law. Since the BCI prohibits foreign counsel from practicing law in litigious areas in India, the cross-examination cannot be permitted, it was contended.

The 2nd and 3rd respondents, on the other hand, sought for the Court to exercise its discretion under Section 32 of the Advocates Act so as to permit participation in the peculiar facts of the case. It was pointed out that the BCI Rules permit appearance on a fly-in fly-out basis, subject to conditions.

The 2nd and 3rd respondents further argued that BCI Rules cannot override Section 32 of the Act, CPC or Hague Convention, which actually permits foreign lawyers to practice in India even without registration. Moreover, no prejudice would be caused to the petitioner if the foreign counsel cross examine the witness since it would have been done in the normal course of the trial in the US suit.

After hearing the parties, the Court examined Article 9 of the Hague Convention as well as the Letter of Request issued. It then remarked that the procedure to be adopted is as per the law in India or at least, that which is not incompatible with the law here.

Next, the Court observed that as per Section 47 of the Advocates Act, foreign lawyers are permitted to practice in India only when their home jurisdictions grant reciprocal rights to Indian lawyers to practice there. It also looked into Sections 29 and 33, which mention the class of persons who are permitted to practice law in India.

While considering the issue, the Court also referred to various precedents including Apex Court's Bar Council of India v. A.K. Balaji, as well as the BCI Rules. It then held:

“The objects and reasons for the BCI Rules clearly state that foreign lawyers can be permitted only in three defined areas: (1) in the practise of foreign law, (2) handling diverse international legal issues in non-litigious matters and (3) participating in international arbitration cases, all in a restricted, controlled and regulated manner…Since litigious practise includes acting, appearing and pleading on behalf of another person before any court or authority, necessarily, it has to be held that examination or cross examination before a Court appointed Commissioner, under the provisions of the Code of Civil Procedure, falls under the domain of practise of law reserved exclusively for the Advocates enrolled under the Act and subject to the exceptions created by the BCI Rules.”

Looking at Order III as well as Section 2(15) of the CPC, the Court further opined that a foreign lawyer cannot be treated as a 'pleader' who is entitled to appear on behalf of a party.

The Court also refused to exercise discretion as per Section 32 of the Advocates Act since it was of the view that discretion can be exercised only when there are two or more possible lawful solutions.

“The Courts cannot exercise any discretion contrary to the statute or rules made thereunder, more so in the wake of the BCI Rules expressly prohibiting foreign lawyers representing any party before any authority empowered to record evidence on oath; the request to exercise discretion under Section 32 of the Act cannot be exercised, and the said request is only to be rejected. Allowing such a permission would be an indirect method to achieve something that cannot be done directly,” it added.

The Court thus refused to grant permission to the foreign counsel to examine the witnesses before the Advocate Commissioner. However, it was clarified that the foreign counsel shall be permitted to attend, observe or participate in the proceedings.

Case No: IA 1/2026 in MJC No. 82 of 2026 and connected case

Case Title: Sharestates, Inc. v. Prasad Choorakuzhiyil Gopalan & Others

Citation: 2026 LiveLaw (Ker) 373

Counsel for the applicants: Nayanpally Ramola, Parvathy Kottol, Pranoy Harilal, Giridhar Krishna Kumar, Jaiswal Harshit Chetan Kumar, Rajendra Barot, Priyanka Shetty, Ashuthosh Desai, Mridula Dixit, Himanshu Kalwani

Counsel for the respondents: P. Prijith, Sidharth A. Menon, Thomas P. Kuruvilla

Advocate Commissioner: M. Shajna

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