Issue of Commissions

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Issue of commissions

Section 75 to 78 deals with the powers of the court to issue commissions and detailed provisions has been made in Order 26 of the code. The power of the code to issue commission is discretionary and can be exercised by the court for doing complete justice between the parties. It can be exercised by the either on application by a party to the suit or of its own motion(suo motu).

Section 75 enacts that a court may issue commission for any of the following purposes:

1. To examine witness;

2. To make local investigation;

3. To adjust accounts;

4. To make partition;

5. To hold investigation;

6. To conduct sale; or

7. To perform ministerial act.

To examine witnesses : Section 76-78; Order 26 Rules 1-8

Section 76- Commission to another Court

(1) A commission for the examination of any person may be issued to any Court (not being a High Court) situate in a State other than the State in which the Court of issue is situate and having jurisdiction in the place in which the person to be examined resides.

(2) Every Court receiving a commission for the examination of any person under sub-section (1) shall examine him or cause him to be examined pursuant thereto, and the commission, when it has been duly executed, shall be returned together with the evidence taken under it to the Court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order.

Section 77-Letter of request

In lieu of issuing a commission the Court may issue a letter of request to examine a witness residing at any place not within India.

Section 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.

Rule 1

1. Cases In which court may issue commission to examine witness.- Any court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the court or who is from sickness or infirmity unable to attend it:

Provided that a commission for examination on interrogatories shall not be issued unless the court, for reasons to be recorded, thinks it necessary so to do.

Explanation : The court may, for the purpose of this rule, accept a certificate purporting to be signed by a registered medical practitioner as evidence of the sickness or infirmity of any person, without calling the medical practitioner as a witness.

Rule 2

2. Order for commission.- An order for the issue of a commission for the examination of a witness may be made by the court either of its own motion or on the application, supported by affidavit or otherwise, of any party to the suit or of the witness to be examined.

Rule 3

3. Where witness resides within court’s jurisdiction.- A commission for the examination of a person who resides within the local limits of the jurisdiction of the court issuing the same may be issued to any person whom the court thinks fit to execute it.

Rule 4

4. Persons for whose examination commission may issue.-(1) Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of—

(a) any person resident beyond the local limits of its jurisdiction;

(b) any person who is about to leave such limits before the date on which he is required to be examined in court; and

(c) any person in the service of the Government who cannot, in the opinion of the court, attend without detriment to the public service:

Provided that where, under rule 19 of Order XVI, a person cannot be ordered to attend a court in person, a commission shall be issued for his examination if his evidence is considered necessary in the interests of justice:

Provided further that a commission for examination of such person on interrogatories shall not be issued unless the court, for reasons to be recorded, thinks it necessary so to do.

(2) Such commission may be issued to any court, not being a High Court, within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the court issuing the commission may appoint.

(3) The court on issuing any commission under this rule shall direct whether the commission shall be returned to itself or to any subordinate court.

Rule 4A

4A. Commission for examination of any person resident within the local limits of the jurisdiction of the court.- Notwithstanding anything contained in these rules, any court may, in the interest of justice or for the expeditious disposal of the case or for any other reason, issue commission in any Suit for the examination, on interrogatories or otherwise, of any person resident within the local limits of its jurisdiction, and the evidence so recorded shall be read in evidence.

Rule 5

5. Commission or request to examine witness not within India.- Where any court to which application is made for the issue of a commission for the examination of a person residing at any place not within India is satisfied that the evidence of such person is necessary, the court may issue such commission or a letter of request.

Rule 6

6. Court to examine witness pursuant to commission.- Every court receiving a commission for the examination of any person shall examine him or cause him to be examined pursuant thereto.

Rule 7

7. Return of commission with depositions of witnesses.- Where a commission has been duly executed, it shall be returned, together with the evidence taken under it, to the court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order; and the commission and the return thereto and the evidence taken under it shall subject to the provisions of rule 8 form part of the record of the suit.

Rule 8

8. When depositions may be read in evidence.- Evidence taken under a commission shall not be read as evidence in the suit without the consent of the party against whom the same is offered, unless—

(a) the person who gave the evidence is beyond the jurisdiction of the court, or dead or unable from sickness or infirmity to attend to be personally examined, or exempted from personal appearance in court, or is a person in the service of the Government who cannot, in the opinion of the court, attend without detriment to the public service, or

(b) the court in its discretion dispenses with the proof of any of the circumstances mentioned in clause (a), and authorizes the evidence of any person being read as I Inserted by Amendment Act 46 of 1999, dt. 30-12-1999. evidence in the suit, notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same.

As a general rule, the evidence of a witness in an action, whether he is a party to the suit or not, should not be taken in an open court and tested by cross examination. In ability to attend the courton grounds of sickness or infirmity or detriment to the public interest may justify issue of a commission. The court has a discretion to relax the rule of attendance in the where the person sought to be examined as a witness resides beyond the local limits of the jurisdiction of the court or on Any other ground which the court thinks sufficient.

In Vinayak trading Co. v. Sham Sunder & Co.,[1] it was held that if a party or a witness apprehends danger to his life if he appears before the court, he can be examined on commission.

In Satish Chandra v. Kumar Satish,[2] it was held that Where a party accused of fraud seeks to examine himself on commission, the court may refuse the prayer since the opportunity of noting his demeanour would be lost.

The court may issue commission for the examination on interrogatories or otherwise of any person in the following circumstances:

1. If the person to be examined as a witness resides within the local limits of the court’s jurisdiction, and (i) is exempted under the Code from attending court; or (ii) is from sickness or infirmity unable to attend court, or (iii) in the interest of justice, or for expeditious disposal of the case, or for any other reason, his examination on commission will be proper,or

2. If he resides beyond the local limits of the jurisdiction of the court, or

3. If he is about to leave the jurisdiction of the court, or

4. If he is a government servant and he cannot, in the opinion of the court, attend without the detriment to the public service, or

5. If he is residing out of India and the court is satisfied that his evidence is necessary.

The court may issue such a commission either sou motu(of its own motion) or on the application of any party to the suit or of the witness to be examined. The evidence taken on commission shall form the part of the record. It shall, however, not be read in evidence in the suit without the consent of the party against whom it is offered.

Make local investigation: Rules 9 and 10

Rule 9

9. Commissions to make local investigations.- In any suit in which the court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the court shall be bound by such rules.

Rule 10

10. Procedure of Commissioner.- (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the court.

(2) Report and depositions to be evidence in suit—The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the court or, with the permission of the court, any of the parties to the suit may examine the Commissioner personally in open court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.

(3) Commissioner may be examined in person—Where the court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.

The court may, in any suit, issue a commission to such a person as it thinks fit directing him to make local investigation and to report thereon for the purpose of (a) elucidating or clarifying any matter in dispute, or (b) ascertaining the market value off any property on the amount of any mesne profits or damages or annual net profits.

In Padam Sen v. State of U.P.,[3] in this case it was held that the object of local investigation evidence which can be taken in court but to obtain evidence the which from it’s very peculiar nature can be had only on the spot.

Such evidence enables the court to  Properly and correctly understand and the evidence on record and clarify any point which is left doubtful. It also helps the court in deciding the question in controversy pending before it, e.g., whether the suit premises is really occupied by the tenant or by the strangers.

To adjust accounts: Rules 11 and 12

Rule 11

Commission to examine or adjust accounts.-In any suit in which an examination or adjustment of the accounts is necessary, the court may issue a commission to such person as it thinks fit directing him to make such examination or adjustment.

Rule 12

12. Court to give Commissioner necessary instructions.- (1) The court shall furnish the Commissioner with such part of the proceedings and such instructions as appear necessary, and the instructions shall distinctly specify whether the Commissioner is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his examination.

(2) Proceedings and report to be evidence—Court may direct further inquiry—The proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where the court has reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit.

In any suit in which examination or adjustment of accounts necessary, the court may issue a commission to such person as it thinks fit directing him to make such examination or adjustment. The court, for this purpose,shall issue necessary instructions to the Commissioner. The proceedings and the report(if any) of the Commissioner sham be evidence in the suits.

To make partition: Rules 13 and 14

Rule 13

13. Commission to make partition of immovable property.- Where a preliminary decree for partition has been passed, the court may, in any case not provided for by section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.

Rule 14

14. Procedure of Commissioner.- (1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorized thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares.

(2) The Commissioner shall then prepare and sign a report or the Commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to the court; and the court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same.

(3) Where the court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.

To hold investigation: Rule 10-A

Where a preliminary decree for partition of immovable property has been passed, the court may issue a commission to such person as it thinks fits to make s partition or separation according to the rights declared in such decree. The Commissioner shall, after such inquiry as may be necessary,divide the property into the required number of shares and allot them to the parties. He will then prepare a report appointing the share of each party and distinguishing the same by metes and bound and transmit it to the court. The court shall, after hearing the objections of different parties, make the final allotment.[4]

Rule 10 A

10A. Commission for scientific investigation.- (1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the court, be conveniently conducted before the court, the court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the court.

(2) The provisions of rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.

Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the court, he conveniently conducted before the court, the court may, if it thinks it necessary or expedient in the interest of justice so to do , issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the court.

To sell property: Rule 10-C

Rule 10 C

10C. Commission for the sale of movable property.- (1) Where, in any suit, it becomes necessary to sell any movable property which is in the Custody of the court pending the determination of the suit and which cannot be conveniently preserved, the court may, if for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to conduct such sale and report thereon to the court.

(2) The provisions of rule 10 of this Order shall apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.

(3) Every such sale shall be held, as far as may be, in accordance with the procedure prescribed for the sale of movable property in execution of a decree.)

Where, in any suit, it becomes necessary to sell any movable property which is in the custody of the court pending the determination of the suit and which cannot be conveniently preserved, the court may,if, for the reasons to be recorded, if of opinion that it is necessary or expedient in the interest of justice so to do, issue a commission to such person as it thinks fit, directing him to conduct such sale and report thereon to the court.

To perform ministerial act: Rule 10-B

Rule 10 B

10B. Commission for performance of a ministerial act.- (1) Where any question arising in a suit involves the performance of any ministerial act which cannot, in the opinion of the court, be conveniently performed before the court, the court may, if, for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to perform that ministerial act and report thereon to the court.

(2) The provisions of rule 10 of this Order shall apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.

Where any question arising in the suit involves the performance of any ministerial act which cannot, in the opinion of the court, he conveniently performed before the court, the court may, if, for reasons to be recorded, is opinion that it is necessary or expedient in the interest of justice so to do, the issue a commission to such  person as it thinks fit, directing him to perform the ministerial act and report thereon to the court.

By the Amendment Act of 1976, Rules 10-A to 10-C have been inserted to provide for issue of commissions for scientific investigation, sale of movable property or performance of ministerial act. Ministerial work means not the office work of the court but work like accounting, calculation and other work of a like nature which courts are not likely to take up without unnecessary waste of time. 

In Jagatbhai v. Vikrambhai, [5] it was held that the Commissioner appointed by the court dos not perform any judicial functions.

In Padam Sen v. State of U.P.,[6] the Supreme Court held that the provisions to issue commissions under the Code of Civil Procedure are exhaustive and, hence, the court cannot exercise inherent powers under Section 151 for this purpose.

In Bandhua Mukti Morcha v. Union of India,[7] it was held that the Supreme Court or the High Courts under the constitution can exercise plenary powers to issue a commission for any purpose.

Powers : Rules 16-18

Rule 16

16. Powers of Commissioners.- Any Commissioner appointed under this Order may, unless otherwise directed by the order of appointment,—

(a) examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the Commissioner thinks proper to call upon to give evidence in the matter referred to him;

(b) call for and examine documents and other things relevant to the subject of inquiry;

(c) at any reasonable time enter upon or into any land or building mentioned in the order.

Rule 16A

16- Question objected to before the commissioner- (1) where any question put to a witness is objected to by a party or his pleader in proceedings before a commissioner appointed under this order, the commissioner shall take down the question, answer, objection, and the name of the party or as the case may be the pleader so objecting.

Provided that the commissioner shall not take down the answer to a question which is objected to on the ground of privilege but may continue with the examination of the witness, leaving the party to get the question of privilege decided by the court, and where, the court decides that there is no question of privilege the witness may be recalled by the commissioner and examined by him or the witness may be examined by the court with regard to the question which was objected to on the ground of privilege.

(2) no answer taken down under sub rule (1) shall be read as evidence in the suit except by the order of the court.

Rule 17

17. Attendance and examination of witnesses before Commissioner.- (1) The provisions of this Code relating to the summoning, attendance and examination of witnesses, and to the remuneration of, and penalties to be imposed upon, witnesses, shall apply to persons required to give evidence or to produce documents under this Order whether the commission in execution of which they are so required has been issued by a court situate within or by a court situate beyond the limits of India, and for the purposes of this rule the Commissioner shall be deemed to be a Civil Court:

Provided that when the Commissioner is not a Judge of a Civil Court, he shall not be competent to impose penalties; but such penalties may be imposed on the application of such Commissioner by the court by which the commission was issued.

(2) A Commissioner may apply to any court (not being a High Court) within the limits of whose jurisdiction a witness resides for the issue of any process which he may find it necessary to issue to or against such witness, and such court may, in its discretion, issue such process as it considers reasonable and proper.

Rule 18

Parties to appear before Commissioner.- (1) Where a commission is issued under this Order, the court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders.

(2) Where all or any of the parties do not so appear, the Commissioner may proceed in their absence.

The Commissioner may (i) summon and procure the attendance of parties and their witnesses and examine them, (ii) call for examine documents, (iii) enter into any land or building mentioned in the order, (iv) proceed ex parte if the parties donut appear in front of him inspite of order of the court

Rule 18-B

The rule empowers the court to fix the date of return of a commission.- 18B. Court to fix a time for return of commission.- The court issuing a commission shall fix a date on or before which the commission shall be returned to it after execution, and the date so fixed shall not be extended except where the court, for reasons to be recorded, is satisfied that there is sufficient cause for extending the date.

Expenses: Rule 15

Rule 15 provides that the court may, if it thinks fit, order the party requiring the commission to deposit the necessary expenses within the fixed period.

Commissions for foreign tribunals: Rules 19-22

Rule 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 proceeding before it,

(b) that the proceeding is of a civil nature, and

(c) 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 (c) 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 issued by the foreign court and transmitted to the High Court through the Central Government, or

(c) by a letter of request issued by the foreign court and produced before the High Court by a party to the proceeding.

Rule 20-  

Application for issue of commission.- The High Court may issue a commission under rule 19—

(a) upon application by a party to the proceeding before the foreign court, or

(b) upon an application by a law officer of the State Government acting under instruction from the State Government.

Rule 21-

To 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, or 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.

Rule 22-

 Issue, execution and return of commissions, and transmission of evidence to foreign court.- The provisions of rule 6, 15, sub-rule (1) of rules 16A, 17, 18 and 18B of this orders in so far as they are applicable shall apply to the issue, execution and return of such commissions, and when any such commission has been duly executed it shall be returned, together with the evidence taken under it, to the High Court, which shall forward it to the Central Government, along with the letter of request for transmission to the foreign court

Rules 19 to 22 provide that if a High Court is satisfied that a foreign court wishes to obtain the evidence of a witness residing within its appellate jurisdiction in a proceeding of a civil nature, it may issue a commission for the examination of such witness.

Limitation

A judicial function of a court cannot be delegated to a commission. In Narayana Menoki v. Raman Nair,[8] it was held that no commission can be issued to value the property in dispute as it is function of the court. But commission can be appointed to gather data to help such determination by the court.

Similarly in Habibbhai v. Maganbhai,[9] it was held that commission cannot be appointed to scrutinize votes at the election, but it can be entrusted work of separating undisputed votes from disputed votes or of counting votes as it is merely a ministerial work.

In Padma Sen v. State of U.P.,[10] again it was said that it is not the business of the court to collect evidence for a party or to protect the rival party from the evil consequences. A civil court, hence cannot appoint a commission to seize account books in possession of any party on the ground that an opposite party has an apprehension that they would be tempered with.

Report of Commissioner: Evidentiary value

The report of the Commissioner would furnish prima facie evidence of the facts and data collected by the Commissioner. It will constitute an important piece of evidence and cannot be rejected except on the sufficient grounds. It would, however be open to the court to consider what weights to be attached to the data collected by the Commissioner and reflected in the report and to what extent act upon them.[11]

Issuance of commission by Supreme Court and High Courts

The limitation for the issue of commission set out in Section 79 and Order 26 of the Code do not apply to the issuance of commission by the Supreme Court or by the High Courts in exercise of their powers under the Constitution of India.

Rule 18 A

18A. Application of Order to execution proceedings.- The provisions of this order shall apply, so far as may be, to proceedings in execution of a decree or order

Frequently Asked Questions

1. Discuss the powers of a court relating to appointment of a commission.

Section 75 to 78 deal with the powers of the court to issue commissions and detailed provisions have been made in Order 26 of the code. The power of the code to issue commission is discretionary and can be exercised by the court for doing complete justice between the parties. It can be exercised by the either on application by a party to the suit or of its own motion (suo motu).

2. Under what circumstances the court could issue commissions?

Section 75 enacts that a court may issue commission for any of the following purposes:

1. To examine witness;

2. To make local investigation;

3. To adjust accounts;

4. To make partition;

5. To hold investigation;

6. To conduct sale; or

7. To perform ministerial act.

3. How the commission could be appointed to record the statements of certain witnesses who could not come to India?

Rule 5 provides- Commission or request to examine witness not within India. – Where any court to which application is made for the issue of a commission for the examination of a person residing at any place not within India is satisfied that the evidence of such person is necessary, the court may issue such commission or a letter of request.

4. The courts cannot reach to the help of each and every litigant without resorting to the provisions of S. 75 to 78 C.P.C. Discuss in detail the importance of this statement whether these provisions aid and assist the courts to extend their jurisdiction outside four walls of a court room?

Refer to Q. 3 

 Edited by – Sakshi Agarwal

Quality Check – Ankita Jha

Approved & Published by –  Sakshi Raje

Reference

[1] A.I.R. 1987 AP 236

[2] A.I.R. 1923 PC 73

[3] A.I.R. 1961 SC 218

[4] Tushar Kanti v. Savitri Devi: A.I.R. 1996 SC 2752

[5] A.I.R. 1985 Guj 34

[6] A.I.R. 1961 SC 218

[7] A.I.R. 1984 SC 802

[8] 1967 KLT 200

[9] (1995) 1 Guj LR 871

[10] A.I.R. 1961 SC 218

[11] Roy & Co. v. Nani Bala: A.I.R. 1979 Cal 50

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Shuvneek Hayer
Shuvneek Hayer is currently pursuing her B.A. LLB(Hons). from University Institute of Légal Studies, Panjab University, Chandigarh. Law had never been her area of interest initially, but gradually as she completed a year in law school, she was drawn to the contemporary issues involving human rights and literature. Inside her law degree, she participated in various national and international level moot court competitions, Debates, MUNs and served as a member of Moot Court Society, UILS. Outside her degree, She got herself involved in a Chennai-based NGO and taught the underprivileged kids on weekends. Later she put forth the idea of bringing up an NGO run by law students where they could address the issues individually and closely interact with the community by fighting for their rights. She has presented various research papers including a few on women rights, child rights, surrogacy rights, communal rights, etc. In her free time, she loves reading contemporary literature, current issues and spending time with family.