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Civil Procedure Code, Appointment of commissions under cpc
Typology: Summaries
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I take this opportunity to express my profound gratitude and deep regards to my guide Asst Professor Mr. Vipul Vinod for his exemplary guidance, monitoring and constant encouragement to give shape to this project. The blessing, help and guidance given by them time to time shall carry me a long way in the journey of life on which I am about to embark. I also take this opportunity to express a deep sense of gratitude to my respected seniors who shared their cordial support, valuable information and guidance, which helped me in completing this task through various stages. Last but not the least, I thank the almighty, my parents, brother, sisters and friends for their constant encouragement without which this assignment would not have been possible. Shubhi Verma
upon Section 151 to pass such an order appointing the Commissioner^6. The Commissioner carries out the purpose for which the Commission is issued. He assists the Court and submits a report to the Court. His report is admissible in evidence but is not binding on the Court. The Commissioner exercises no judicial function and is duty bound to follow the instructions of the court^7. His report may or may not be used by the Court in coming to a decision. Order 26 makes provisions for Commissions to be issued at the instance of foreign Courts too. This project which deals with Appointment of Commissioner discusses and analyses in detail the various provisions in the Code of Civil Procedure relating to Commissions with reference to relevant case law. 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. (^6) Kishore Kumar v Rakeshkumar Jayprakash Agrawal AIR 1992 Guj 95. (^7) C K Takwani, Civil Procedure ( 7 th (^) edn, Eastern Book Company, 2001) 331.
Section 75 of the Code of Civil Procedure, 1908 enacts that a Court may issue a Commission for any of the following purposes: 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 To examine witness: Order 26 Rules 1-8 deal with commissions set up for the purpose of examining witnesses. Rule 1 deals with cases in which a 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^8. 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. But a Commission may be allowed if the head of the mutt is summoned by the opposite party and the Court thinks that the application is vexatious^9. A Commission may also be issued with the consent of the parties in cases not falling under this rule^10. If the report of one Commissioner is unsatisfactory, the Court can remit it to the same Commissioner or appoint another Commissioner^11. It has been held that a Court can issue Commission even after remand^12. The Court can, suo motu , cancel the previous order issuing Commission though there is no express provision in this regard^13. The (^8) P M Bakshi, Mulla-The Code of Civil Procedure (Bombay: N M Tripathi Private Limited, 1990) 871. (^9) Veeradram v Natraja AIR 1905 Mad 28. (^10) Gopal Das v Jagannath AIR 1938 All 370. (^11) P M Bakshi, Mulla-The Code of Civil Procedure (Bombay: N M Tripathi Private Limited, 1990) 873. (^12) Achhru Mal v Maula Bakhsh AIR 1925 Lah 29. (^13) Narain Dass v Karam Chand AIR 1968 Delhi 226.
commission on condition of the applicant depositing in court security for the costs of the opposite party in regard to the commission^18. Rule 1 also exempts certain persons from being examined as witnesses before a commission. A Religious preceptor is not entitled to be examined on Commission on the ground of his social status^19. Thus, a Bishop is not entitled to be examined on Commission owing to his rank as a spiritual head and dignitary of the church^20. Section 132 of the Code of Civil Procedure recognizes the right of pardanashin ladies who can claim the privilege of being examined on Commission^21. A Commission ought not to be refused to persons who owing to sickness or infirmity are unable to attend Court. If sickness or infirmity is alleged, the Court will have to take into account the character and gravity of the sickness and the risk consequent upon the refusal to issue a Commission. A medical certificate tendered in support of an application for the issue of a commission on the ground of illness is inadmissible in evidence^22. Infancy however is not a ground for the issue of a Commission. It is the duty of the party obtaining the Commission to take all such steps as are necessary to secure the attendance of the witnesses before the Commissioner. The examination is on the same footing as that in Court and the opposite party has the right to cross-examine the witnesses. However, if the cross-examination is unnecessarily prolonged or amounts to an abuse of process, the Court can fix a time limit and order the cross-examination to be finished. But the Commissioner has no power to disallow questions and give ruling as to points about admissibility of evidence^23. It is also not open to any of the parties to move the Court issuing the Commission to obtain directions on the point whether the Commissioner has the power to disallow questions considered irrelevant by him^24. The commissioner also has no power to record his findings on the basis of the evidence recorded by him on Commission^25. The purpose of examining a witness on commission will be adequately served by merely issuing interrogatories for his examination. (^18) Raghubir Dayal Prasad v Ramekbal Sah AIR 1986 Pat 83. (^19) Panachand Chhotalal v Mansharlal Nandlal AIR 1917 Bom 155. (^20) A Marcalline Fernando v S. Francis Xavier Church, Kottah AIR 1961 Mad 31. (^21) Rahuria Ramkali Kuer v Chhathoo AIR 1961 Pat 210. (^22) T.N Govindarajulu v Lakshmi Ammal AIR 1961 Mad 158. (^23) Ram Krishna Dalmia v Feroz Chand AIR 1960 P&H 430. (^24) Ram Krishna Dalmia v Feroz Chand AIR 1960 P&H 430. (^25) Krishna Sharan Shukla v Bali Bhadar Shukla AIR 1952 All 140.
Rule 1 is not applicable to execution proceedings. An order made under this rule in the exercise of discretion cannot be interfered with in revision unless there has been a wanton abuse of the process of the Court or the trial court has gone wrong on some vital principle. Rule 2 deals with Order for Commission. A commission may be issued under this rule for the examination of a witness either suo motto or on the application of a party or a witness. It is to be noted that the rule requires that the application of a party or of a witness is to be supported by affidavit or otherwise. It does not require that the affidavit must be made by the party or the witness himself^26. Rule 3 contemplates the issue of a commission by a Court to any person for examining a witness or a party residing within the local limits of its jurisdiction. However the failure to issue the Commission to the Commissioner will not invalidate the examination actually held by him pursuant to the order of the Court. The omission to actually issue the commission is only an irregularity which if not objected to before the examination commences will be deemed to have been waived^27. Rule 4 is exhaustive and provides for all cases in which the legislature intends that a Commission should issue. The power of a court to issue a Commission is not more restricted under Rule 4 than under Rule 1^28. A party is entitled to the issue of a Commission if it is clear that the witness is residing outside the jurisdiction of the Court. It is not for the Court to decide whether the party will be benefited or not by the issue of a Commission but a matter which is entirely up to the party^29. Examination of a witness on Commission as provided under Rule 4 stands on a slightly different footing from the issuing of summons to a witness under Order 16 Rule 1. In the former case the matter is in the discretion of the Court whereas in the latter case summons are issued as a matter of course. The term ‘resident’ in this Rule should not be held to mean ‘permanently resident’. A man who casually makes a flying visit to a place for 10 or 20 days may not come within the meaning of ‘resident’ as used in this Rule but a witness who is in a particular place and is proved to be likely to remain there for more than six months must be held to be a ‘resident’ of that place^30. Under this Rule a Court is usually more lenient while processing the application of the defendant asking his evidence (^26) Ram Sewak Koeri Mosadi Koeri v Harihar Prasad Singh AIR 1927 Rang 175. (^27) Dinanath Law v Metharam Navalrai and Co AIR 1921 Cal 852. (^28) Ramalinga Iyar v Sankaranarayana Ayyar AIR 1929 Mad 192. (^29) TL Venkataraman Aiyar, Mulla on the Code of Civil Procedure Volume II (Bombay: N.M Tripathi Private Limited, 1967) 1321. (^30) In Re: Subramanian Chettiar AIR 1955 Mad 210.
record it does not become evidence unless it is tendered and admitted under Order 26 Rule 8. The Patna High Court has concurred with this view in Sinha v. Life Insurance Corporation of India^34. Where a document is produced before the Commissioner and no objection is taken to its admissibility, no such objection can be taken before the court hearing the suit to which the commission is returned. But if the admissibility of the document is objected to before the Commissioner, the party who has raised the objection on one ground is not precluded from objecting to its admissibility on any other ground. 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 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^35 and to elucidate any point which is left doubtful on the evidence taken before the Court^36. The local investigation by the Commissioner is merely to assist the Court. The report is not in any way binding on the Court which can arrive at its own conclusion, even at variance with such report. Cases of boundary disputes and disputes about the identity of lands are instances when a Court may order a local investigation under this Rule. An appellate Court has the power to issue a Commission for a local investigation under this Rule read with Section 107 of the Code of Civil Procedure. Notice needs to be given to the parties before the investigation by the Commissioner commences. Rule 10 lays down the procedure to be followed by the Commissioner with respect to a local investigation. Sub rule (2) is intended to afford protection to the Commissioner who is a quasi-judicial officer and such protection is afforded on grounds of public policy so as to make it impossible for either of the parties to subject the Commissioner to a vexatious examination^37. A Commissioner appointed to do a certain work must do it himself and cannot (^34) Sinha v. Life Insurance Corporation of India AIR 1964 Pat 142. (^35) Re: P Moosa Kutty AIR 1953 Mad 717. (^36) Debendranath Nandi v Natha Bhuiyan AIR 1973 Ori 240. (^37) Sitaram v Ram Prasad Ram AIR 1915 Cal 280.
get it done by someone else^38. A Commissioner is also bound to record the state of things as actually existing and not draw upon his own imagination or make surmises^39. The report submitted by a Commissioner after local investigation is evidence in the suit and shall form part of the record. The Court or the parties with the permission of the Court can examine the Commissioner in Court with respect to any of the matters referred to him or mentioned in his report or as to his report or as to the manner in which he conducted the investigation. A further inquiry may be directed by the Court where for any reason it is dissatisfied with the proceedings of the Commissioner^40. Commissions for Scientific Investigation, Performance of Ministerial Act and Sale of Movable Property 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 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 Examine or Adjust 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^41. 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 (^38) Damodaran v Karimba Plantations Company Limited AIR 1959 Ker 358. (^39) M N D Varu v The Board of Trustees, Tirupathi AIR 1959 AP 64. (^40) M P Tandon and Rajesh Tandon, The Code of Civil Procedure (Allahabad: Allahabad Law Agency, 1990)
(^41) Chandu v Kirpa Ram AIR 1952 HP 65.
proposals of the Commissioner cannot from their very nature be binding upon the parties or the reasons in support thereof.^43 Rule 14 lays down the Procedure of Commissioner with respect to commissions issued for the purpose of making partitions of immovable property. It is not contemplated by this Rule that that the Commissioner should propose a number of schemes and ask the Court to choose any one of them. Only the shares as ascertained by the decree have to be worked out by him. Where a partition cannot be made without destroying the intrinsic value of the property or where it would be inconvenient to destroy the exclusive possession of one co-sharer the Court may award money compensation instead of dividing the properties. A commissioner cannot be appointed for the partition of revenue paying immovable property as a partition of revenue paying land which has the effect of breaking up the joint liability of the sharers for revenue cannot be effected by the Civil Court^44. Such a partition can only be effected by the Collector because the revenue is effected. However the court can effect a partition of non-revenue paying immovable property. Thus a Commissioner may be appointed for valuation of joint family dwelling houses and while submitting his report the Commissioner should give reasons for fixing the valuations of different items of property^45. The duty of the Commissioner under this Rule is not to give possession but to allot the shares and prepare a report fixing the shares and distinguishing the same by metes and bounds if so ordered by the Court^46. (^43) Munnalal v Rajkumar AIR 1962 SC 1493. (^44) K R Deosant v W K Deosant AIR 1971 Bom 26. (^45) Gourhari Das v Jaharlal Seal AIR 1957 Cal 90. (^46) Ram Bahadur v Sri Thakur Siri Sitaramji Maharaj AIR 1934 Pat 32.
Order 26, Rules 15-18 of the Code of Civil Procedure relate to general provisions relating to Commissions and Commissioners. It is imperative to look at these general provisions in order to gain a clear and total understanding of Commissioners and Commissions in the Code of Civil Procedure. Rule 15: Expenses of Commission to be paid into Court The rule provides that the Court may, if it thinks fit, order the party requiring the commission to deposit the necessary expenses thereof. The rule is not exhaustive and does not prevent the Court from imposing any terms that it chooses as a condition precedent to the issuing of a commission. Nor does an omission on the part of the Court to require the deposit of the expenses prevent the Commissioner from recovering his remuneration from the party at whose instance he was engaged^47. There is a conflict of judicial opinion on the point that if the party who has been ordered by the Court to deposit the expenses of the Commission does not comply with the order then the Commissioner can execute the order. The weight of the authority is of the view that the Commissioner can execute the order in case of non- compliance by the party. Such an order, directing the party to pay a certain sum to the Commissioner, cannot be made a part of the decree as the Commissioner is not a party to the suit. The ‘expenses of the commission’ do not include expenses of the other parties to the litigation, for example, the expenses needed for the opposite party or his counsel to attend the place where the commission is to be executed.^48 Such expenses cannot be ordered to be deposited even under Section 151, Code of Civil Procedure. But an order directing costs of Commissioner to be borne by the petitioner in any event is within the jurisdiction of the court and is not open to objection. The object of requiring the expenses to be deposited beforehand is that the Commissioner who is an Officer of the Court ought not to be driven to a separate suit or execution to get his fees. Failure to deposit the required fees cannot afford a ground for rejecting the report of the Commissioner, or striking off the defense or for dismissing the suit. Courts in appointing Commissioners and in fixing their remunerations under Order 26, Code of Civil Procedure act judicially and not administratively. (^47) Pramatha Nath Sen Gupta v Sheikh Abdul Aziz Meah AIR 1923 Cal 436. (^48) Lachhmi Devi v Chandrakala Saraogi AIR 1973 Pat 155.
Where a Commissioner wants to lodge a complaint for the prosecution of a person, the Commissioner must obtain the sanction of the Court concerned. Rule 16A: Questions objected to before the Commissioner Rule 16A was added by the 1976 Amendment Act in order to clarify the position as to the procedure to be adopted when a question is put before the Commission. This Rule is intended to provide that where a question put to a witness is objected to in proceedings before the Commissioner, the Commissioner shall take down the question, the answer, the objections and the name of the person so objecting. Any such answer can be read as evidence in a suit only by order of the Civil Court to that effect. Although Rule 16A authorizes the Commissioner to take down the question, the answer and the objection etc. occasion may arise where the objection to the question put to the witness may be raised on the ground of privilege. If, in such a case, the Commissioner is required to take down the answer to the question, then, the privilege claimed would be lost. Thus the proviso to Rule 16A lays down that in such a case the Commissioner is not allowed to take down the answer to a question or might be allowed to continue with the examination of the witness leaving the party to get the question of privilege decided by the Court. Rule 17: Attendance and examination of witnesses before Commissioner Under this Rule the Commissioner is given the powers of Court in regard to the summoning and procuring the attendance of witnesses. For the purposes of this Rule he is deemed to be a Court. The reason for this is the Commissioner is a delegate of the Court acting under its authority. Although under Order 26, Rule 16 it is in the discretion of the Commissioner to examine or not to examine a witness, yet once the Commissioner has decided to examine a witness, the mandatory provisions of this rule come into play and those provisions in their turn attract the provisions of Order 18 of the Code of Civil Procedure and Section 138, Indian Evidence Act, 1872. Hence, the parties must be afforded an opportunity of examining, cross- examining and re-examining the witnesses and it is not open to the Commissioner to examine the witnesses in the absence of the parties without giving them sufficient notice of the time and place when he proposes to examine the witnesses. The Commissioner has not been made a Judge for the purposes of examining the witnesses and the duties of the Judge under Rules 5 and 6 of Order 18 are not attracted under Order 26, Rule 17. Hence, not reading over the deposition to the witness and interpreting the same in the language of the witness and signing it by the Commissioner recording the evidence does not vitiate the evidence recorded and the
Court can rely on such evidence.^54 A Commissioner appointed to examine a witness has no power to disallow questions he considers irrelevant.^55 According to sub-rule (1) of Rule 17 when a new Commissioner is appointed in the vacancy caused by the death or otherwise of the previous Commissioner, evidence of witnesses recorded before the latter, will be evidence in the cause under Order 18, Rule 15, without the witnesses having to be re-examined. Sub rule (2) of Rule 17 enables the Court within the local limits of whose jurisdiction a witness resides to issue a summons for his examination on the application of the Commissioner. In the absence of any such provision in the old Code of Civil Procedure it was held that where a witness failed to appear before a Commissioner pursuant to a notice issued by him, the only course left open to the Commissioner was to return the Commission to the Court from which it was issued and the latter Court would then send the Commission to the Court within the local limits of whose jurisdiction the witness to be examined resided. Rule 18: Parties to appear before Commissioner Under this rule it is obligatory on the part of the Court to order the parties to appear before the Commissioner either in person or by their recognized agents or pleaders. The parties must be individually given an opportunity to make representation of their respective cases before the Commissioner, by being served with notices. Where the Court has not directed the parties to appear before the Commissioner as required by this rule, any notice given by the Commissioner himself to a party will not be sufficient. However there is a controversy over this and it has been held in some cases that the object of this Rule is that the work of the Commissioner should be done in the presence of the parties. Hence, if the Court fails to give a direction to the parties but the parties are present owing to a notice issued by the Commissioner, the object of the Rule is satisfied and the report of the Commissioner will not be vitiated for lack of directions of the Court. When neither a direction is given by the Court, nor a notice given by the Commissioner, his report is not admissible in evidence.^56 Where a party fails to appear before the Commissioner in pursuance of the order of the Court, the Court can proceed under Order 17, Rule 2 of the Code of Civil Procedure. The Commissioner’s report which has been obtained in (^54) Sivasankara Pillai v Ponnuswami Nadar AIR 1973 Mad 450. (^55) Ram Krishna Dalmia v Feroz Chand AIR 1960 P&H 430. (^56) Jamil Ahmed Taban v Khair-Ul-Nisa AIR 1970 Delhi 205.
