FINAL DRAFT

SUBJЕCT : CIVIL PROCEDURE CODE

TOPIC:
“ PROVISIONS RELATED WITH COMMISSIONS"

Submittеd To : Submittеd By :
Mr. Vipul Vinod Devashish Sirohi
Assistant Professor (Law) 4th Sеmеstеr, 2nd Yеar
Dr. RMLNLU, Lucknow. B.A. LL.B. (Hons.)
Dr. RMLNLU, Lucknow
Roll No. : 60
Section - A
 ACKNOWLEDGEMENTS

I would like to extend special thanks and gratitude to my teacher in Civil Procedure Code,

Mr. Vipul Vinod , who gave me the golden opportunity to work on this wonderful

research topic " Provisions related with commissions " which has helped me gain a lot of

perspective about the subject. Throughout the research period I have been time and again

guided by my teacher whenever I faced any hurdles or was in a state of stupor not

being able to figure out the intricacies of the subject.

- Devashish Sirohi
 TABLE OF CONTENTS

• INTRODUCTION

• COMMISSION
1. ORDER FOR COMMISSION
2. PERSONS FOR WHOSE EXAMINATION COMMISSION MAY BE
ISSUE
3. CASES IN WHICH COURT MAY ISSUE COMMISSION TO
EXAMINE WITNESS

• PURPOSES OF ISSUING COMMISSIONS

1. COMMISSIONS FOR EXAMINATION OF WITNESSES

• GENERAL PROVISIONS RELATED WITH COMMISSIONS

• CONCLUSION
 INTRODUCTION

Interim or interlocutory orders are those orders passed by a Court during the pendency of a suit

or proceeding which do not determine finally the substantive rights and liabilities of the parties

in respect of the subject matter of the suit.1 After the suit is instituted by the plaintiff and before

it is finally disposed of, the Court may make interlocutory orders as may appear to the Court to

be just and convenient.2 Interim or interlocutory orders are generally made in order to assist the

parties or for the purpose of protection of the subject matter of the suit. Commissions fall

within the ambit of interlocutory orders. Courts are constituted for the purpose of doing justice

and must be deemed to possess all such powers as may be necessary to do the right and undo

the wrong in the course of administration of justice.3 Appointment of Commissioner is one

such power given to the Courts in order to help them to serve this purpose.

The concept of ‘Commission’ is an important subject matter in the branch of CPC.

Commission is an impartial person who is appointed by the Court and act as an agent of the

Judge. The power of the Court to issued Commission by the Court for doing full and complete

Justice between the parties. It is the discretionary power of the Court to appoint a

Commission and a court may appoint a Commission either or an application by a party to the

suit or its own motion.4

1
C.K Takwani, Civil Procedure (Lucknow: Eastern Book Company, 2001)at 186.
2
Section 94(e) of the Code of Civil Procedure, 1908.
3
Supra note 1 at 187.
4
http://www.assignmentpoint.com/arts/law/commission.html
 Sections 75-78 of the Code of Civil Procedure deal with the powers of the court to issue

Commissions and the detailed provisions with respect to Commissions have been made in

Order 26 of the Code of Civil Procedure.5

The Code of Civil Procedure contemplates the issue of Commissions for the purposes of

examining witnesses, making local investigations, performance of ministerial acts, sale of

movable property, conducting scientific investigations, examining accounts and to make a

partition. The Code lays down these general purposes for which Commissions may be issued

but the issue of a Commission is a matter of judicial discretion. Thus commissions may be

issued for other purposes too if the Court thinks it fit to do so.6

The power of Appointment of Commissioner is an important weapon in the armory of the

Court to enable the Court to assist the parties in the suit and to protect their rights, speed up

proceedings, get evidence and help the Court to come to an informed and reasoned decision.

This in turn will serve the greater purpose of timely Justice delivered with fairness and in

keeping with the laws of the land and the principles of natural justice.

COMMISSION

ORDER FOR COMMISSION

Rule 2 Order XXVI of Code of Civil Procedure 1908

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.7

PERSONS FOR WHOSE EXAMINATION COMMISSION MAY BE ISSUE

5
http://legalsutra.com/tag/commissioner/
6
ibid
7
Code of Civil Procedure 1908, Rule 2 Order 26
 Rule 4 Order XXVI of Code of Civil Procedure 1908

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

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.8

CASES IN WHICH COURT MAY ISSUE COMMISSION TO EXAMINE WITNESS

Rule 1 Order XXVI of Code of Civil Procedure 1908

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.9

PURPOSES OF ISSUING COMMISSIONS

Section 75 of the Code of Civil Procedure,1908 enacts that a Court may issue a Commission for

any of the following purposes:

8
Code of Civil Procedure 1908, Rule 4 Order 26
9
Code of Civil Procedure 1908, Rule 1 Order 26
• To examine witnesses

• To make a local investigation

• To examine or adjust accounts

• To make a partition

• To hold a scientific, technical or expert investigation

• To conduct a 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

• To perform any ministerial act

Commissions for Examination of Witnesses

Order 26 Rules 1-8 deal with commissions set up for the purpose of examining witnesses.
Rule 1 deals with cases in which court may issue commission to examine witness. A
Commission to examine witnesses can only be issued in the cases specified in this rule
and Rules 4 and 5 and in no other case. Therefore, a Commission should not be issued
for the examination for the head of a mutt on the ground that it is derogatory to a person
in his position to appear personally in Court as a witness. A Commission may also be
issued with the consent of the parties in cases not falling under this rule. If the report of
one Commissioner is unsatisfactory, the Court can remit it to the same Commissioner or
appoint another Commissioner. It has been held that a Court can issue Commission
even after remand.10 The Court can, suo motu, cancel the previous order issuing
Commission though there is no express provision in this regard.

Commissions for Local Investigations

Rule 9 provides for Commissions to make local investigations. Before amendment the
issue of a Commission for local investigation was restricted to cases where it was
inconvenient for the Judge to make the investigation himself. However now a Judge
may issue a Commission in any case where he deems it fit to do so, irrespective of his

10
Achhru Mal v. Maula Bakhsh, AIR 1925 Lah 29.
 own convenience. An order by a Judge for the issue of a commission for local
investigation should be a judicial order and must not be arbitrary. The object of a local
investigation is not so much to collect evidence which can be taken in Court but to
obtain evidence which from its peculiar nature can only be had on the spot and to
elucidate any point which is left doubtful on the evidence taken before the Court. The
local investigation by the Commissioner is merely to assist the Court. 11
Commission for examining or adjusting accounts
Rule 11 deals with Commissions issued to examine or adjust accounts. The wording of
this Rule clearly provides that no order can be made for the appointment of a
Commissioner unless the examination or adjustment of accounts is considered
necessary. If the accounts are complicated and require an examination then the Court
may appoint a Commission under this Rule. The Court can issue commissions to
examine accounts only for the purposes specified in Section 75 (c). There is no
provision in the Civil Procedure Code for the appointment of a Commissioner to seize
the account books in the possession of the plaintiff on the ground of the defendant’s
apprehension that they would be tampered with. Court’s inherent powers cannot be
invoked for the purpose of issuing Commissions for examination or adjustment of
accounts12.

Commissions for Scientific Investigation, Performance of Ministerial Act and Sale of

Rules 10A, 10B and 10C deal with Commissions set up for Scientific Investigation,
Performance of Ministerial Act and Sale of Movable Property respectively. Under these
provisions where any question arising in a suit involves any scientific examination, the
performance of a ministerial act or the sale of movable property in the custody of the
Court, which cannot, in the opinion of the Court, be conveniently conducted or
performed before the Court or in the case of movable property preserved, the court may,
if it thinks it necessary or expedient in the interests of justice so to do, issue a

11
Debendranath Nandi v. Natha Bhuiyan, AIR 1973 Orissa 240 .
12
Padam Sen v. State of Uttar Pradesh, AIR 1961 SC 218.
 Commission to such person as it thinks fit, directing him to inquire into such question,
to perform the ministerial act or conduct such sale and report thereon to the Court.

Commissions to make Partitions

Rule 13 provides that where a preliminary decree for partition of immovable property has been
passed, the Court may 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, except in undivided estates assessed
to the payment of revenue where the partition is made by the Collector under Section 54 of the
Civil Procedure Code. Where in a suit for partition of joint family property, the trial court
appoints a commissioner directing him to submit his proposals for partition of the property, and
for that purpose authorizes him to ascertain the property which was available for partition and to
ascertain the liability of the joint family and for deciding those questions, the Commissioner was
empowered to record statements of the parties, frame issues and to record evidence as might be
necessary, the Court does not, by so authorizing the Commissioner, abdicate its functions to the
Commissioner. The Commissioner cannot from their very nature be binding upon the parties nor
the reasons in support thereof.13

GENERAL PROVISIONS RELATED WITH COMMISSIONS

Rule 15 Order XXVI of Code of Civil Procedure 1908

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. 14

2. Powers of Commissioners

Rule 16 Order XXVI of Code of Civil Procedure 1908

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

13
Munnalal v. Rajkumar, AIR 1962 SC 1493.
14
Code of Civil Procedure 1908, Rule 15 Order 26
 (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.15

3. Questions objected to before the Commissioner

Rule 16A Order XXVI of Code of Civil Procedure 1908

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, the answer, the objections 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.

No answer taken down under sub-rule (1) shall be read as evidence in the suit except by the
order of the Court.16

4. Attendance and examination of witnesses before Commissioner

Rule 17 Order XXVI of Code of Civil Procedure 1908

(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 7[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 local limits
or whose jurisdiction a witness resides for the issue of any process which he may find it
15
Code of Civil Procedure 1908, Rule 16 Order 26
16
Code of Civil Procedure 1908, Rule 16A Order 26
 necessary to issue to or against such witness, and such Court may, in its discretion, issue such
process as it considers reasonable and proper.17

5. Parties to appear before Commissioner

Rule 18 Order XXVI of Code of Civil Procedure 1908

(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.18

6. Application of Order to execution proceedings

Rule 18A Order XXVI of Code of Civil Procedure 1908

The provisions of this Order shall apply, so far as may be, to proceedings in execution of a
decree or order.19

7. Court to fix a time for return of commission

Rule 18B Order XXVI of Code of Civil Procedure 1908

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.20

EVIDENTIARY VALUE OF ADVOCATE-COMMISSIONER’S REPORT :-

A party can countermand the evidence of Commissioner’s report by letting in other evidence. A
Local Commissioner can only report on existing facts and not how they came about, as per
decision of Hon’ble Supreme Court in Lekh Raj V. Muni Lal and others.21

17
Code of Civil Procedure 1908, Rule 17 Order 26
18
Code of Civil Procedure 1908, Rule 18 Order 26
19
Code of Civil Procedure 1908, Rule 4 Order 26
20
Code of Civil Procedure 1908, Rule 18B Order 26
21
Lekh Raj V. Muni Lal and others, (2001) 2 SCC 762.
As was held in 2013, in Selvi vs Dorathy Paul, C.R.P. PD. No. 1669/2011,in law, the evidence
of an Advocate Commissioner is not binding on Court and in fact, his report is to be appreciated
along with other evidence available on record in a given case. In K. Viswanathan v. D.
Shanmugham Mudaliar and Anr it was held that under Order 26, Rule 10(2), C.P.C. the report
of the Commissioner is evidence in the suit and forms part of the records. In Veppanathar alias
Karuppannam and Anr v. Laiappan , the Hon’ble Madras High Court has held thus:- “Under
Order 26, Rule 10, Sub-rule (3) the Court, if it is dissatisfied with the report, can direct setting
aside the report, the Court can direct the Commissioner to rectify the defect or deficiency,
taking into consideration the objections and evidence let in, in that behalf and to file a
supplementary report. As far as possible, Commissioner, who has already visited the property
should be directed to file a supplementary report and only if that is not possible, the report could
be scrapped.22

Advocate Commissioner cannot be used for fact finding purposes and as such, the order
passed by the Court below is not sustainable under law:-

In Devadoss vs. A.Duraisingh23, His Lordship A.Ramamurthy, J, has held that Advocate
Commissioner cannot be used for fact finding purposes and as such, the order passed by the
Court below is not sustainable under law. It is always open to the decree-holder to examine the
concerned persons as witnesses and prove as to how and in what manner they got the cable
connection relating to the suit.

Conclusion

While appointing a Commissioner the Court has to exercise judicial discretion and the Court
should very jealously inquire, in every case, into the reason for a Commission before passing an
order for the issue of a Commission. Usually the most common function of a Commission is to
examine witnesses and make local investigations. Commissions greatly reduce the workload of
the Court and help the Court in delivering speedy justice. Very often important witnesses may
not be able to come to Court to depose owing to sickness or threat to their lives or simply

22
https://articlesonlaw.wordpress.com/2016/07/12/the-law-on-appointment-of-advocate-commissioner-in-suits/
23
Devadoss vs. A.Duraisingh, 2002 (3) CTC 748.
because they live too far away from the Court’s territorial jurisdiction. In such cases the
appointment of a Commissioner to examine the witnesses on Commission will provide
invaluable help to the suit proceedings and enable the Court to administer justice. Commissions
greatly reduce the workload of the Court by doing clerical work like calculations, accounts etc.
and other such ministerial acts. Through local investigations Commissions elucidate matters in a
dispute and enable the Court to come to a well-informed decision. Thus the appointment of
Commissioners and the smooth and efficient working of Commissions is of great assistance to
the Courts and ultimately to the parties who reap the benefits.
Commissions greatly reduce the expenses of the Court too as the expenses of the Commission
are borne by the party at whose instance the commission is set up. The Commissioner acts on the
instructions of the Court and is wholly under its control. The Court may replace the
Commissioner if it feels that the Commissioner is not carrying out his instructions satisfactorily.
Parties may try to bribe the Commissioner or influence him in order to strengthen their case but
the control of the Court can help in preventing this corruption.