Sections 75 to 78 deals with the powers of the court to issue commissions and detailed provisions have been made in Order 26 of the Code. The power of the court to issue commission is discretionary and can be exercised by the court for doing full and complete justice between the parties. It can be exercised by the court either on an application by a party to the suit or of its own motion (suo moto)
2. Purposes: Section 75
Section 75 enacts that a court may issue a commission for any of the following purposes:
- to examine witnesses;
- to make investigation;
- to adjust accounts;
- to make partition;
- to hold investigation;
- to conduct sale; or
- to perform ministerial act.
To examine witnesses: Section 76-78; Order 26 Rules 1-8
As a general rule, the evidence of a witness in an action, whether he is a party to the suit or not, should be taken in open court and tested by cross-examination. Inability to attend the court on grounds of sickness or infirmity or detriment to the public interest may justify issue of a commission. The court has a discretion to relax the rule of attendance in court where the person sought to be examined as a witness resides beyond the local limits of the jurisdiction of the court or on any other ground which the court thinks sufficient, e.g., a witness, who being a paramhansa, always remained in naked condition, can be examined on commission. Similarly, if a party or a witness apprehends, can be examined on commission. Similarly, if a party or a witness apprehends danger to his life if he appears before the court, he can be examined on commission.
On the other hand, where a party accused of fraud seeks to examine himself on commission, the court may refuse the prayer since the opportunity of noting his demeanour would be lost. The power, also, should not be exercised on the ground that the witness is a man of rank or having social status and it will be derogatory for him to appear in person in court.
The court may issue a commission for the examination on interrogatories or otherwise of any person in the following circumstances:
(i) if the person to be examined as a witness resides within the local limits of the court's jurisdiction, and (i) is exempted under the Code from attending court; or (ii) is from sickness or infirmity unable to attend court, or (iii) in the interest of justice, or for expeditious disposal of the case, or for any other reason, his examination on commission will be proper; or
(ii) if he resides beyond the local limits of the jurisdiction of the court; or
(iii) if he is about to leave the jurisdiction of the court; or
(iv) if he is a government servant and cannot, in the opinion of the court, attend without detriment to the public service; or
(v) if he is residing out of India and the court is satisfied that his evidence is necessary.
The court may issue such a commission either suo moto (of its own motion) or on the application of any party to the suit or of the witness to be examined. The evidence taken on commission shall form part of the record. It shall, however, not be read in evidence in the suit without the consent of the party against whom it is offered, unless (a) the person, who gave the evidence, is beyond the jurisdiction of the court, or dead or unable from sickness or infirmity to attend to be personally examined, or exempted from personal appearance in court, or is a person in the service of the government who cannot, in the opinion of the court, attend without detriment to the public service, or (b) the court in its discretion dispenses with the proof of any of such circumstances.
(b) To make local investigation: Rules 9 and 10
The court may, in any suit, issue a commission to such person as it thinks fit directing him to make local investigation and to report thereon for the purpose of (a) elucidating or clarifying any matter in dispute, or (b) ascertaining the market value of any property or the amount of any mesne profits or damages or annual net profits.
The object of local investigation is not to collect evidence which can be taken in court but to obtain evidence which from its very peculiar nature can be had only on the spot. Such evidence enables the court to properly and correctly understand and assess the evidence on record and clarify any point which is left doubtful. It also helps the court in deciding the question in controversy pending before it, e.g., whether the suit premises is really occupied by the tenant or by the strangers.
(c) To adjust accounts: Rule 11 and 12
In any suit in which an examination or adjustment of accounts is necessary, the court may issue a commission to such person as it thinks fit directing him to make such examination or adjustment. The court, for this purpose, shall issue necessary instructions to the Commissioner. The proceedings and the report (if any) of the Commissioner shall be evidence in the suit.
(d) To make partition: Rules 13 and 14
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 a partition or separation according to the rights declared in such decree. The commissioner shall, after such inquiry as may be necessary, divide the property into the required number of shares and allot them to the parties. He will then prepare a report appointing the share of each party and distinguishing the same by metes and bounds and transmit it to the court. The court shall, after hearing the objections of different parties, make the final allotment.
(e) To hold investigation: Rule 10-A
Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the court, be conveniently conducted before the court, the court may, if it thinks it necessary or expedient in the interest of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the court.
(f) To sell property: Rule 10-C
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, is of opinion that is is necessary or expedient in the interest 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.
(g) To perform ministerial act: Rule 10-B
Where any question arising in a suit involves the performance of any ministerial act which cannot, in the opinion of the court, be conveniently performed before the court, the court may, if, for reasons to be recorded, is of opinion that it is necessary or expedient in the interest of justice so to do, issue a commission to such person as it thinks fit, directing him to perform that ministerial act and report thereon to the court.
By the Amendment Act of 1976, Rules 10-A to 10-C have been inserted to provide for issue of commissions for scientific investigation, sale of movable property or performance of a ministerial act. Ministerial work means not the office work of the court but work like accounting, calculation and other work of a like nature which courts are not likely to take up without unnecessary waste of time. The Commissioner appointed by the court does not perform any judicial function.
The provisions to issue commissions under the Code of Civil Procedure are exhaustive and, hence, the court cannot exercise inherent powers under Section 151 for the purpose. The SC or HC under the Constitution can exercise plenary powers to issue a commission for any purpose.
(3) Recoding of reasons
An order to issue commission is a judicial order. Such order, hence, should be passed in a judicial manner after hearing the parties and after recording reasons in support of such order. Such reasons must be relevant and rational.
(4) Form
A commission to examine a witness under Order 26 Rule 4 CPC should be in Form 7 of Appendix H.
(5) Powers: Rules 16-18
The Commissioner may (i) summon and procure the attendance of parties and their witnesses and examine them; (ii) call for and examine documents; (iii) enter into any land or building mentioned in the order; (iv) proceed ex parte if the parties do not appear before him in spite of the order of the court. Rule 18-B empowers the court to fix the date for return of a commission.
(6) Expenses: Rule 15
Rule 15 provides that the court may, if it thinks fit, order the party requiring the commission to deposit the necessary expenses within the fixed period.
(7) Commissions for foreign tribunals: Rule 19-22
Rules 19 to 22 provide that if a High Court is satisfied that a foreign court wishes to obtain the evidence of a witness residing within its appellate jurisdiction in a proceeding of a civil nature, it may issue a commission for the examination of such witness.
(8) Limitations
A judicial function of a court cannot be delegated to a commission. Thus, no commission can be issued to value the property in dispute as it is the function of the court. But commission can be appointed to gather date to help such determination by court. Similarly, commission cannot be appointed to scruitinise votes at the election, but it can be entrusted work of separating undisputed votes from disputed votes or of counting votes as it is merely a ministerial work.
Again, it is not the business of the court to collect evidence for a party nor to protect the rival party from the evil consequences. A civil court, hence, cannot appoint a commission to seize account books in possession of any party on the ground that an opposite party has an apprehension that they would be tempered with.
(9) Report of Commissioner: Evidentiary value
The report of the Commissioner would furnish prima facie evidence of the facts and data collected by the Commissioner. It will constitute an important piece of evidence and cannot be rejected except on sufficient grounds. It would, however, be open to the court to consider what weight to be attached to the data collected by the Commissioner and reflected in the report and to what extent act upon them.
(10) Issuance of commission by Supreme Court and High Courts
The limitations for the issue of commission set out in Section 79 and Order 26 of the Code do not apply to issuance of commission by the Supreme Court or by High Courts in exercise of powers under the Constitution of India.
It has been held that powers of constitutional courts (High Courts and Supreme Court) are not confined to provisions of Order 26 CPC and they have inherent power to issue commissions in appropriate cases.
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