Introduction 

• Under the Code of Civil Procedure, 1908 (CPC), the Courts have been entrusted with the power to issue Commissions.
• The Commissions are issued for the purpose of fulfilling certain functions which are crucial in the effective delivery of justice.
• Section 75 and Order XXVI of CPC deals with the provisions relating to commissions.

Commissions

• Commission is an instruction or role given by the Court to a person to act on behalf of the Court.
• The court authorizes the person so appointed to do everything that the Court requires to do for the accomplishment of justice.
• A person so appointed is known as a Court commissioner.
• Courts power to issue commission is discretionary, it can be exhausted by the court either on application by a party to the suit or on its own motion.

Appointment as a Commissioner

• Generally, there is a panel of commissioners which is formed by a High Court in which advocates competent to carry out the commission issued by the Court, are selected.
• The person appointed as commissioner should be independent, impartial, disinterested in the suit and the parties involved in it. Such a person should have the requisite skills to carry out the commission.

Power of Court to Issue Commissions

• Section 75 of CPC deals with the power to court to issue commissions. It states that-

Subject to such conditions and limitations as may be prescribed; the Court may issue a commission—

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition;

(e) to hold a scientific, technical, or expert investigation;

(f) to conduct sale of property which is subject to speedy and natural decay, and which is in the custody of the Court pending the determination of the suit;

(g) to perform any ministerial act.

Order XXVI

The Court has the power to issue a commission to carry out the following functions.

• Commissions to Examine Witnesses
  • Rule 1 to 8 of Order XXVI deals with the Examination of Witnesses.
  • The general rule of evidence is to bring the evidence before the Court and must be recorded in open Court.
  • But in extraordinary circumstances, the appearance of witness is dispensed, and the witness is allowed to depose evidence without appearing in Court.
  • The court may issue commission for examination of witness in the following circumstances:
    • If a person is to be examined as a witness resides within the local limit of the court’s jurisdiction and, is exempted under the code from attending the court, or is from sickness or infirmity unable to attend the court, or
    • If he resides beyond the local limits of the jurisdiction of the court, or
    • If he is about to leave the jurisdiction of the court, or
    • If he is government servant and cannot, in the opinion of the court, attend without detriment to the public, or if he is residing out of India and the court is satisfied that his evidence is necessary.
• Commission for Local Investigation
  • As per Rule 9 of Order XXVI, the court can issue commission for local investigation.
  • The court can issue commission, if it considers proper at any stage of the suit, for the following purposes:
    • for explanation in any disputed issue.
    • for determination of the market value of any property.
    • for determination of mesne profits, damages, annual net profits etc.
    • To issue such commission depends upon the discretion of the court.
• Commission for Scientific Investigation
  • Rule 10 A of Order XXVI deals with the issue of commission for scientific investigation.
  • According to this rule, when the court thinks that any scientific issue is involved in the case before it and proper solution of that issue is not forthcoming, then the court, in the interest of justice, by investigating the case, can issue commission for submission of its report.
• Commission to Perform Ministerial Act
  • Rule 10B of Order XXVI deals with the issue of commission for performance of ministerial acts.
  • According to this rule, when the court thinks that in the suit before it, any question of performance of ministerial act is involved, then it can issue commission, in the interest of justice for performance of ministerial act.
• Commission to Sell Movable Property
  • Rule 10C of Order XXVI deals with the issue of commissions to sell movable property.
  • Rule 10C states that 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.
• Commissions to Examine Accounts
  • Rule 11 and 12 of Order XXVI deal with the issue of commissions for examining accounts.
  • Rule 11 states that 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 states that the Court to give necessary instructions to the Commissioner and 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.
• Commissions to Make Partitions
  • Rule 13 and 14 of Order XXVI deals with the issue of commissions to make partitions.
  • Rule 13 states that 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 deals with the procedure of Commissioner.
• Commissions Issued of the Instance of Foreign Tribunals
  • Rule 19 to 22 of Order XXVI contains provisions relating to commissions issued at the instance of foreign tribunals.
  • Rule 19 deals with the cases in which a High Court may issue commission to examine witnesses. It states that—

(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 clause (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 deals with the application for the issue of commissions.
  • Rule 21 states that the commission under rule 19 may be issued to any Court within the local limits of whose jurisdiction the witness resides.
  • Rule 22 deals with the issue, execution and return of commissions, land transmission of evidence to foreign Court.

Powers of the Commissioner

• As per Rule 16 of Order XXVI, 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.

Expenses of Commissions to be Paid into Court

• Rule 15 of Order XXVI states that before issuing any commission under this Order, the Court may order such sum (if any) as it thinks reasonable for the expenses of the commission to be, within a time to be fixed, paid into Court by the party at whose instance or for whose benefit the commission is issued.

Evidentiary Value of the Report Submitted by the Commissioner

• According to Rule 10(2) of Order XXVI of CPC, the report and the evidence submitted by commissioners forms a part of the record.
  • But if the evidence is submitted without the report of the commissioner, such evidence does not form part of the record.
• The report forms an important part of the case and can only be challenged on sufficient grounds.
• The Court has the final say on how much reliance should be placed on the report submitted by the Court.