COMMISSIONS

The object of Sections 75 to 78 of Civil Procedure Code, 1908 (herein referred as Code) which is further in detail discussed under Order XXVI of the Code is to assist the court in deciding the certain matter of disputes or elucidating any matter. The court wherever it finds reasonable in the interest of justice or for expeditious disposal of suit may issue a commission. Although the commission appointed is subjected to the restrictions and conditions prescribed by the court.

WHO CAN BE APPOINTED AS COMMISSIONER?

Greater amount of care should be exercised by the Courts in selecting persons as Commissioners. A person who is independent, unbiased and fair-minded should be appointed as a commissioner. Such a person should not have any stake in the suit. Parties to the suit are not appointed as a commissioner by the court. The person appointed as a commissioner must be having the required skill and expertise in that field. For example, where there is a question regarding the requirement of scientific evidence which can’t be taken in front of the court in such a situation the court will appoint a commissioner who is having expertise in the scientific or forensic investigation field.

WHAT IS THE PROCEDURE FOR APPOINTMENT OF COMMISSIONER?

The procedure for the appointment of the commissioner is described under the High Rules of the state. Every High Court under Article 227 of the Constitution of India is empowered to make rules and regulations for the courts subordinate to it.

Likewise, the Delhi High Court Rules, 1967 under Chapter X Part B of “Commissions and letter requests”[1] discusses the procedure for the appointment of the commissioner. The procedure contains the following things-

  • Panel of commissioners for recording the evidence should not have more than four members (inclusive of a female lawyer, if available). The panel welcomes more young members than the retired judicial officers.
  • Regarding the vacancies available for the commissioner, the district judge shall forward all the application along with his reason to the high court of the state.

Generally, the period of term for the commissioners for recording the evidence is three years or until the further orders from the court, whichever would be earlier.

Note: The instructions contained in this chapter are administrative and the same need not to be viewed as binding the discretion of civil courts.

WHEN CAN A COMMISSIONER BE APPOINTED?

Under Section 75[2]of the Code act, the court is conferred with the power to issue the commissions for certain incidental proceedings. However, this power is discretionary[3] and is exercised by the court for doing complete justice. The commissioner can be issued by the court either on the application of the party or suo moto (on is his own action).[4]The legislature to fulfil the purpose of justice and to ensure that no innocent person should suffer, further via amendment added certain clause (e) to (g) in Section 75, in 1976 which deals with issue commissions for technical and expert investigation at a matter of point in the court of justice. The commissioner appointed can be restricted to certain limitations and conditions which are decided by the court which issues the same. As per section 75 of the act, for the following purpose a commissioner can be appointed.

  • Commissions to examine witnesses, reference may be made to rules 1 to 8 of O XXVI
  • Commissions for local investigation: rules 9-10 of O XXVI
  • Commissions to examine or adjust accounts: rules 11-12 of O XXVI
  • Commissions to make partition: rules 13-14 of O XXVI
  • Commissions for Scientific investigations: rule 10-A of O XXVI
  • Commissions for sale of movable property: rule 10-C of O XXVI
  • Commissions for the performance of a ministerial act: rule 10-B of O XXVI
  • General Provisions: rules 15 to 18-B of O XXVI

Commissioner to examine witness (O XXVI, R 1-8)

As per the general rule, the witness should be examined in the open court and all the evidence should be taken there and then only. But sometimes it may happen that the witness is not able to appear in person in court for examination, for such reasons the court has made certain relaxations in the general. The reason for the inability to attend the court must be reasonable and in such a case it may issue a commissioner.

  • The appearance of the witness could be excused in the following cases-Where a person is sick or infirm and is unable to attend the proceedings of the court. The person who is sick or infirm has to provide a certificate signed by a registered medical practitioner as evidence that the person is infirm or sick.[5]
  • Where a person is exempted by the code from attending the court proceeding.
  • Section 132[6] provides that certain women are exempted from personal appearance such as a pardanashin lady.
  • Section 133[7] also provides the exemption of the following persons such as – the president of India, Vice President of India, Ministers of India etc.
  • Where a person apprehends danger to his life if he appears before the court and informs the court about it and the court finds it reasonable in such a case it issues a commission.[8] There a case of Vinayak Trading Co. v Sham Sunder Co.[9] the witness apprehended danger to life if comes to court, the court, therefore, issued a commission for recording the statement of the witness.
  • Where a person resides beyond the local limits or he is about to leave the jurisdiction of the court.[10]
  • Where a person is in the service of government and his attendance in person may cause disservice and injustice.[11]
  • Where the court finds that the evidence of a person residing outside India is essential.
  • Where the court finds that it is necessary in the interest of justice or for expeditious disposal of the case.[12]

There was a case where a witness was Parmahansa, who as per their religious rituals remains in naked condition, therefore the court for taking the evidence of such person issued a commission.[13]

  • Commissioner for Local Investigation

Where there is a controversy between the parties regarding

  1. Ascertaining the market value of a property, or,
  2. Ascertaining the amount of mesne profit, or
  3. Damages or
  4. Net profit or
  5. Clarifying any matter of dispute.

The court may if it thinks appropriate issues a commission for the same and directs him to investigate into the matter and make the report for the same.

In NakulaSahu v. Suresh Chandra Beherdolai,[14] the dispute among the parties was regarding the ownership title and permanent injunction of the plot boundary. The court issued a commission for the measurement of the boundaries of the plot to have a final and effective adjudication of the suit.

  • Commissions to examine or adjust accounts: rules 11-12 of O XXVI

If the court thinks fit that a commissioner is required for examination or adjustment of accounts then it may issue the commission for the same. Even the court under rule 12 may give certain instructions to the commissioner.

The Supreme Court of India in Padam Sen v. State of UP[15]held that the Code does not make any provision for the appointment of a Commissioner who may seize the account books which are in the possession of the plaintiff on the ground of the defendants’ apprehension that the plaintiff might have tampered with them. It was further held that the Court’s inherent powers cannot be invoked for such purposes.

  • Commissions to make partition: rules 13-14 of O XXVI[16]

The court may after the passing of a preliminary decree for partition or separation appoint a commissioner to make the partition as per the rights declared by the court.

The court inRachakondaVenkat Rao v. R Satya Bai[17] held that a Commissioner can be appointed to make partitions of immovable property only after the preliminary decree, declaring shares of parties, has been passed. If the partition suit is disposed of finally in terms of compromise decree, then rule 13 does not come into operation.

  • To hold investigation: Rule 10-A[18]

When the court finds that the suit involves a question of scientific investigation which cannot be conducted before the court, may order to appoint a commissioner to inquire intothe matter in the interest of justice.

  • To perform the ministerial function: Rule 10-B[19]

In court in its opinion or where it finds that it is necessary or expedient in the interest of the justice may appoint a commissioner to do ministerial work (it includes work other than office work of court such as accounting, calculation etc.).

  • For the sale of movable property: Rule 10-C[20]

In case of moveable property which is perishable or cannot be preserved and where the courts find it is necessary that such property in the custody of the court should be subjected to sale to not cause loss to any of the party may appoint a commissioner and direct him to conduct the sale.

POWER OF COMMISSIONER

The powers of the commissioner have prescribed under rule 16-18 of Order XXVI[21] of the code. The commissioner may-

  1. Issue summons or procure the attendance of the  parties and their witness and examine them;
  2. Call for or may examine documents;
  3. Enter any land or building with the permission of the court;
  4. If one of the parties didn’t appear when called in person or by pleaders, in such a case the commissioner canproceed with the ex-parte.

WHETHER THE COMMISSIONER BE ENTITLED TO REMUNERATION OR NOT?

The court while issuing the commission may direct the party at whose application the commissioner was appointed or for whose benefit the commissioner is appointed to deposit in the court a reasonable sum for the expenses of the commissioner. Even Section 133[22] of the code also asks the witness who is not appearing in person in court to pay the cost of commission.

WHAT ARE THE LIMITATIONS OF THE COMMISSIONER?

The commissioner’s powers can be limited by the court under Section 75 of Code. The object of the appointing the commissioner is to help the court in deciding the questions of controversy and not perform the judicial function on its own. For example, under rule 9 and 10 for local investigation, the role of the commissioner is to obtain evidence which from its very peculiar nature can be taken at the spot[23] or where the land is situated, it needs to collect that evidence which can be taken directly in the court of justice.

Even in Krishnamurthy, TK v. Tamil Nadu Water and Drainage Board[24] it was held that the commissioner cannot be appointed to gather evidence which proves the case, it the duty of the parties to parties to show evidence which makes their case strong and the report of a commissioner can only act as an aid to court for evaluating the evidence, but not for gathering evidence.

Furthermore, in Chandrasekhar v. Doss Naidu[25]it was held that the material issue regarding the suit cannot be decided by the commissioner nor he can he establish the legal rights of the parties to the suit, as it the duty of the court and not of the commissioner.


[1]“Commissions and letter of request”,http://delhihighcourt.nic.in/writereaddata/upload/courtrules/courtrulefile_vs9kzqs0.pdf

[2] The Code of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908 (India).

[3]Filmistan (Pvt.) Ltd Bombay v.Bhagwandas, AIR 1971 SC 61: (1970) 3 SCC 258 (India).

[4]BandhuaMuktiMorcha v. Union of India, AIR 1984 SC 802 (India).

[5] The Code of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908 (India).

[6] The Code of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908 (India).

[7] The Code of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908 (India).

[8] The Code of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908 (India).

[9]Vinayak Trading Co v Sham Sunder Co, AIR 1987 AP 236 (India).

[10] The Code of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908 (India).

[11] The Code of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908 (India).

[12] The Code of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908 (India).

[13]ParamhansaRamkrishna v.TrimbakRajaram, AIR 1978 Bom 176 (India).

[14]NakulaSahu v. Suresh Chandra Beherdolai, AIR 2016 Ori 24 (India).

[15]Padam Sen v. State of UP, AIR 1961 SC 218: (1961) 1 SCR 884: (1961) 1 CrLJ 322(India).

[16] The Code of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908 (India).

[17]RachakondaVenkat Rao v. R Satya Bai, AIR 2003 SC 3322 (3328) : (2003) 7 SCC 452(India).

[18] The Code of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908 (India).

[19] The Code of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908 (India).

[20] The Code of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908 (India).

[21] The Code of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908 (India).

[22] The Code of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908 (India).

[23]Padam Sen v. State of UP, AIR 1961 SC 218 (India).

[24] TK v. Tamil Nadu Water and Drainage Board,2006 (5) CTC 178 (India).

[25]Chandrasekhar v. Doss Naidu,2005 (3) MLJ 473 (India).


Authored By: Richa Bohra, 6th Semester, Amity Law School, Amity University Rajasthan.

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