Provisions Under Cpc Relating To Issue Of Commission

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. A commission is an instruction or role that the Court gives to someone to act on its behalf. The court approves the individual so delegated, who is known as the court commissioner, to do all that the Court expects to accomplish for the achievement of justice. Court’s ability to give commission is optional, it very well may be exhausted by the court either on application by involved with the suit or on its own.

It is one of the many forms of interim orders. Interlocutory orders, temporary injunctions, security for costs, court payment, and others are all examples of interim orders. The reason for giving commissions is to forestall any maltreatment of cycle during judicial actions. A commission is an interim order that helps parties pursue and safeguard a lawsuit's subject matter.

The term "Commissioner" refers to a person or group of people appointed by the Court to carry out tasks that the Court cannot normally do. They go about as delegates of the Court and perform explicit errands allotted to them. The process for appointing a commissioner is outlined in the High Court rules of every state.

Provisions under CPC relating to issue of commission.

Section 75 – Power of court to issue commissions.

The court can issue a commission which is subject to certain conditions and limitations. The court may issue a commission for certain events, which are-

1. Examination of witnesses
2. Perform a local investigation.
3. For adjustment of accounts
4. To do a partition
5. To hold investigation
6. For conducting a sale
7. For the performance of a ministerial act.

• In the case of H.V. Nagendrappa Vs. H.M. Hanumanthappa, it was held that whenever an application for appointment for Commissioner is made, the Court must be satisfied that the application is bonafide and has not been made to achieve ulterior object. The order should be passed by recording reasons.
• In the case of Padma v. State of UP it was held that commission is at the discretion of court.

Section 76 – Commission to another court

Any Court, other than a High Court, located in a state other than the one in which the Court of Issue is situated and having jurisdiction over the place in which the person to be examined resides may be issued a commission for the examination of any person.

Unless the order for issuing the commission specifies otherwise, in which case the commission will be returned in accordance with that order, every Court that receives a commission for the examination of a person will examine him or cause him to be examined in accordance with that commission. The commission, along with the evidence taken under it, will be returned to the Court from which it was issued once it has been duly executed.

Section 77 – Letter of request

Instead of issuing a commission the court can issue a letter of request to examine a witness residing at any place outside India.

Section 78 – Commissions issued by foreign courts.

Likely to such conditions and restrictions as might be endorsed, the arrangements with respect to the execution and return of commissions for the assessment of witnesses will apply to commissions issued by or at the case of –

(a) Courts situated 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.

ORDER 26

Rule 1. Cases in which Court may issue commission to examine witness.

Court may issue commission to examine witness who is unable to attend the Court owing to sickness or infirmity etc. Court shall assign reasons for appointment of Commissioner. The provisions relating to issue of commission for examination of witnesses apply not only to Civil suits but to other proceedings as well.

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.

• In the case of United India Insurance Company Ltd. Vs. Seno, it was held that the provisions relating to issue of commission for examination of witnesses apply not only to Civil suits but to other proceedings also.

Rule 2 – Order for commission

An order for the issue of a commission for the assessment of an observer might be made by the Court both on its own decision or on the application, upheld by testimony etc., of any party to the suit or of the witness to be inspected.

• A prayer for appointment of Commissioner may be made at any time during the pendency of the suit as held in various decisions of various High Courts and one such decision is in the case of John Vs. Kamarunnissa.

Rule 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 – Persons for whose examination commission may issue.

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 causing an inconvenience on public service.

A commission of this kind can be given to any Court, even if it isn't a High Court, in the area where the person lives or to any pleader or other person the Court issuing the commission can appoint.

The Court on giving any commission may this rule will coordinate whether the commission will be returned to itself or to any subordinate Court.

Rule 5 - Commission or request to examine witness not within India.

A commission or a letter of request may be issued by any court that receives an application for the examination of a person residing outside of India if the court determines that the person's evidence is required.

Rule 6 - Court to examine witness pursuant to Commission.

Each Court getting a commission for the assessment of any individual will examine him or prompt him to be inspected compatible thereto.

Rule 7 - Return of commission with depositions of witnesses.

Where a commission has been properly executed, it will be returned, along with the proof taken under it, to the court from which it was given, except if the request for giving the commission has in any case coordinated, in which case the commission will be returned regarding such request; Moreover, the evidence obtained in accordance with the commission, return, and rule 8 shall be incorporated into the suit's record.

Rule 8 – When depositions may be read in evidence.

It declares that the evidence taken on commission cannot be read as evidence in the suit without the consent of the opposite party unless one of the circumstances mentioned in Clause A is present or a Specific Order is passed by the Court under Clause B of Rule 8.

The deposition on commission can be read as evidence if the following conditions are satisfied.

1. The opposite party consents.
2. The witness is dead.
3. The witness is residing beyond the jurisdiction of the Court.
4. The witness is unable from sickness of infirmity to depose in Court.
5. The witness is exempted from personal appearance in Court.
6. The witness is a government servant and cannot attend the Court without detriment to the public service.
7. The Court makes a specific order. When no objection was raised before the Commissioner at the time of recording evidence, same shall not be allowed to be raised before the Court after return of the commission.

Rule 9 – Commissions to make local investigations.

It provides for commission to make local investigations for the purpose of elucidating any matter in dispute or ascertaining 8 market value of any property or number of mesne profits, or damages or annual net profits.

• In in the case of Padam Sen Vs. State of UP, the object of local investigation is not to collect evidence which can be adduced in Court but to obtain material which for its very peculiar nature can best be had only the spot.
• In the case of Rangayyakanantha Vs. Govinda Chatra and others, it was held that the decision of a material issue cannot be left to the Commissioner, as such issues decided by the Court. The report of the Commissioner on such issue is not binding on the Court, as the Court is free to arrive at its own conclusion.

Rule 10 - Procedure of Commissioner.

The commissioner after the local investigation, if he feels it necessarily make the evidence in writing taken by him, sign it and produce it in court.

Such evidence taken by the commissioner shall be considered as evidence of the suit and shall be made as part of the record but if it is necessary the court or with the permission of the court the parties may examine the commissioner in an open court regarding any matter mentioned in the report.

If the court is dissatisfied with any proceedings of the commissioner, it may direct any further inquiry to be made.

Rule 10 A - Commission for scientific investigation.

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 the question and report it to the court. This applies when any question arising in a suit involves any scientific investigation that, in the opinion of the court, cannot be conveniently conducted before the court.

• In the case of Chikkanna Vs. Sri. Lokesh and Others, it is held that rejection of application for, appointment of handwriting expert when there is dispute regarding genuineness of signature of testator, is held to be incorrect.

Rule 10 B - Commission for performance of a ministerial act.

Where any inquiry emerging in a suit includes the exhibition of any ministerial demonstration which can't, in the opinion of the Court, be helpfully performed under the watchful eye of the Court, the Court may, if, because of reasons to be recorded, it is of assessment that it is important or convenient in light of a legitimate concern for equity so to do, issue a commission to such individual as it naturally suspects fit, guiding him to play out that ministerial demonstration and report consequently to the Court.

Rule 10 C - Commission for the sale of movable property.

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 the sale and report it to the Court. If in any suit, it becomes necessary to sell any movable property that is in the Court's custody pending the determination of the suit and cannot be conveniently preserved.

Rule 11 – Commission to examine or adjust accounts.

If in any suit the examination or adjustment of any account is necessary, then court may appoint a commissioner to do so.

Padam Sen v. State of UP

When we talk about commission to examine accounts, commissioner cannot seize accounts, can

only examine or adjust. Once he has executed commission, he will report back to court.

Padam Sen v. State of UP

When we talk about commission to examine accounts, commissioner cannot seize accounts, can

only examine or adjust. Once he has executed commission, he will report back to court.

• In the case of Padam Sen vs State of UP, when the court appoints a commissioner to examine accounts, he cannot seize the accounts and can only examine and adjust it. Once he executes the mission he can report back to the court.

Padam Sen v. State of UP

When we talk about commission to examine accounts, commissioner cannot seize accounts, can

only examine or adjust. Once he has executed commission, he will report back to court.

Padam Sen v. State of UP

When we talk about commission to examine accounts, commissioner cannot seize accounts, can

only examine or adjust. Once he has executed commission, he will report back to court.

Padam Sen v. State of UP

When we talk about commission to examine accounts, commissioner cannot seize accounts, can

only examine or adjust. Once he has executed commission, he will report back to court.

Rule 12 – Court to give Commissioner necessary instructions.

The Court will inform the commissioner with such part of the procedures and such directions as seem vital, and the guidelines will particularly determine whether the commissioner is merely to communicate the procedures which he might hang on the request, or additionally to report his own perspective on the point alluded for his assessment.

• In the decision in the case of Praga Tools Corporation Limited Vs. Mehaboobunissa Begum and Others, wherein, it is held that the report of the Commissioner is in aid of other evidence to arrive at findings relating to the controversy between the parties.

Rule 13 - Commission to make partition of immovable property.

A suit in which preliminary decree has passed, the court may appoint a commissioner to make partition of the property according to the rights mentioned in the decree.

Munna lal v rajuar

Proposal of partition as made by commissioner will not be binding on parties, meaning court

cannot abdicate its main power in favour of the commissioner. It is only delegating. If multiple

commissioners are there with different reports, so final power rests with the court. Functions are

merely delegated, not giving final decision. Court will give final decision.

Munna lal v rajuar

Proposal of partition as made by commissioner will not be binding on parties, meaning court

cannot abdicate its main power in favour of the commissioner. It is only delegating. If multiple

commissioners are there with different reports, so final power rests with the court. Functions are

merely delegated, not giving final decision. Court will give final decision.

Munna lal v rajuar

Proposal of partition as made by commissioner will not be binding on parties, meaning court

cannot abdicate its main power in favour of the commissioner. It is only delegating. If multiple

commissioners are there with different reports, so final power rests with the court. Functions are

merely delegated, not giving final decision. Court will give final decision.

• Munna lal v rajuar, the court held that proposal of partition as made by commissioner will not be binding on parties, meaning court cannot abdicate its main power in favour of the commissioner. It is only delegating. If multiple commissioners are there with different reports, so final power rests with the court. Functions are merely delegated, not giving final decision. Court will give final decision.

Rule 14 – Procedure of Commissioner.

The commissioner will, after such request as might be necessary, partition the property into however many shares as might be given in the order, and will dispense such offers to the parties, and may, if approved thereto by the said order, grant aggregates to be paid to balance the worth of the shares.

The commissioner shall then prepare and sign a report or the Commission, appointing the share of each party and distinguishing each share by metes and bounds. The Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary, or set aside the same.

Rule 15 - Expenses of commission to be paid into Court.

The court will order a sum which it thinks reasonable for the expenses of the execution of commission to be paid by the parties on whose favour the commission is executed.

• In the case of Aryavaidyan S. Ramantha Iyer Vs. T.L. Devaraj, a Court appointing the Commissioner at the request of the party can direct such party to deposit the amount towards the expenses to 4 be borne by the either side.

Rule 16 - Powers of Commissioners.

Any Commissioner appointed under this Order may, unless otherwise directed by the order of appointed.

(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 17 - Attendance and examination of witnesses before Commissioner.

Regardless of whether the commission in execution of which they are required has been issued by a Court situated within or by a Court situated beyond the limits of India, individuals required to give evidence or to produce documents under this Order shall be subject to the provisions of this Code relating to the summoning, attendance, and examination of witnesses, as well as the remuneration of witnesses and penalties to be imposed upon witnesses. The Commissioner shall be deemed to be a Civil Court for the purposes of this rule.

Any Court that is not a High Court but is within the local limits or whose jurisdiction a witness resides can be applied to by a commissioner for the issuance of any process that the Commissioner deems necessary to issue to or against the witness. The Court has the discretion to issue any process it deems reasonable and proper.

Rule 18 - Parties to appear before Commissioner.

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.

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

Rule 19 – Cases in which High Court may issue commission to examine witness.

The High Court may issue a commission -

(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 instructions from the State Government.

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 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 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 instructions from the State Government.

Rule 21 – To whom commission may be issued.

A commission maybe issued to any court that comes under the jurisdiction where the witness resides 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 issue, execution, and return of these commissions are subject to the applicable provisions of rules 6, 15, Sub-rule (1) of rule 16A, 17, 18, and 18B of this Order. Once a commission has been properly executed, it is returned to the High Court, where it is forwarded to the Central Government along with the letter of request for transmission to the foreign court.

CONCLUSION

The court issues commission with the intention of providing the parties to the suit with complete justice. The force of giving commission rests absolutely in the circumspection of the adjudicators. By giving a commission in a specific case, the Court plays out an in - depth examination where the Court considers significant. The court appoints a commissioner to carry out this process of executing the commission. Such commissioner assists the Court by taking evidence, conducting local investigations, doing ministerial work and submits a report after carrying out the commission.

The commissioner can practice specific powers conceded by the Court to do the commission. He can't carry out the legal role of the Court. He can help the Court in carrying out such roles. The proof with the report presented by him in the Court frames part of the record.