Court commissioner can be ordered to refund commissioner fees if he fails to execute commission or improperly executes it
As to the fee for execution of a civil Court commission, the Court is to fix a sum commensurate with the difficulty and importance of the work done. It is postulated that real work has been done. If it can be predicated that only nominal or worthless work has been done, manifestly there can be no payment at all--the Court cannot order payment of a litigant's money without return nor make a gift of it to a charlatan who has only made a pretence of executing a commission or who undertook it though patently unequal to it.
5. No doubt in order to calculate the amount of the fee of a civil Court commissioner, the method of time is sometimes resorted to but that does not give any right to payment according to time, since there is always the understanding that the commissioner possesses the knowledge and puts forth the exertion requisite to execute the commission efficiently and has in fact executed the same in a work-manlike manner. The remuneration is not for labour expended but for an efficient piece of work. If, as in the present instance, he fails in the respects mentioned and merely executes the commission nominally, he is not entitled to any fees. The position of a civil Court commissioner is entirely different from that of a legal practitioner at the Bar who may be supposed to receive the fees stipulated irrespective of efficiency. Even if the commissioner is a pleader, it is as a commissioner and not as a pleader that he is remunerated by the Court.
6. It is not right to extend any indulgence to inefficient commissioners whether they are pleaders or professional surveyors. Indeed it is incumbent on the Court scrupulously to protect the person who has deposited money towards a commissioner's fee and all the more since he is powerless to protect himself against the commissioner. In particular, one or more payments are made subject to check and adjustment when the Court has all the materials before it. It is clear that prior to that time the Court cannot order any but a provisional payment and actually on 14th September 1931, the office gave warning that an objection to the report was about to be filed by the defendant. The parties dare not object to such payments because they are apprehensive that the commissioner, if he is examined as a witness, as is often the case, may through resentment depose to their prejudice. But such payments are merely advances subject to adjustment. There could be no greater mistake than to suppose that they are final or are not subject to an order for refund when the fact transpires that the money has not been earned.
7. In the present instance the petitioner both undertook a commission for which he was most obviously unfit and failed for that reason, laziness and negligence to execute it more than nominally, and it is entirely reasonable that the Court should see that the party who provided the money, is not prejudiced by the Court's action in giving him the commission. The petitioner received the commission and also the advances of fees upon the implied understanding that the Court had the fullest right to adjudicate on his work and, within limits prescribed, to pay him the fee which his work was worth and make him, if so advised, refund the whole or part of the advances as the case may be. Apparently civil Court commissioners are attempting to form themselves into a body claiming special rights as against the Court and to bring pressure to bear on the Court to be indulgent to them at the cost of the litigant to the great prejudice of the litigant and the harassment of the Court.
8. It is rarely proper to interfere in their favour. In the present instance the order impugned is certainly sound and it is not even necessary to call on the opposite party.
AIR1934Pat316
IN THE HIGH COURT OF PATNA
Decided On: 10.04.1934
Appellants: Surendra Nath Sen Gupta
Vs.
Respondent: Secy. of State
Vs.
Respondent: Secy. of State
https://www.lawweb.in/2013/06/court-commissioner-can-be-ordered-to.html
Decided On: 10.04.1934
Appellants: Surendra Nath Sen Gupta
Vs.
Respondent: Secy. of State
Vs.
Respondent: Secy. of State
