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Powers Of Commissioner And Circumstances Commission Can Be Issued Under Civil Procedure Code 1908

It is well established rule of jurisprudence that all judicial proceedings must be conducted in the presence of parties and before the court. The statements of witnesses must be made before the court and should be written down. Many times, it becomes necessary to visit disputed places. But circumstances become such that it becomes impossible to conduct all these before the court. Under such circumstances such work is performed by means of commission.

Provision has made under sections 75 to 78, order 26 of Civil Procedure Code 1908, about such commission.

When a Commission can be issued?

Under section 75 and order 26 of the code the commission can be issued for following purposes:
  1. for examination of any person;
  2. for local investigation;
  3. for examination of accounts and adjustments;
  4. for partition;
  5. for scientific, technical and special investigation or research.
  6. For sale of property which is of decaying nature under the custody of the court. It for compliance of ministerial and clerical function.

  1. For examination of the person:

    According to order 36, Rule 1, commission can be issued for examination of such persons and witnesses who:
    1. reside within the jurisdiction of the court;
    2. exempted from presence in the court;
    3. are unable to present themselves in the court because of their weakness and illness.
    Under the above circumstances, the commission can be issued but it depends upon the discretion of the curt.

    The provisions of the order 26, Rule 1 do not apply where the ill person resides outside the jurisdiction of the court and application has been made for issue of commission for his examination (LMP Precision engineering Company Vs ram Narayan, A.I.R. 1998, Rajasthan 179).

    A commission issued in case of examination of an old man aged 73 years who was unable to walk because of fracture, was held valid. In such cases, submission of medical certificate is not necessary (Baktavar khan Vs Noor Mahommed, A.I.R. 1986, Rajasthan 167).
  2. For local investigation:

    Under order 26, Rule 9, the court can issue commission for local investigation. According to rule 9, the court can issue commission, if it considers proper at any stage of the suit, for the following purposes:
    1. for explanation in any disputed issue;
    2. for determination of the market value of any property;
    3. for determination of mesne profits, damages, annual net profits etc.
    To issue such commission depends upon the discretion of the court.

    In P. Achootan Vs Chambli Kundu Harizan Fisheries Development Cooperative Society (A.I.R. 1996, Kerala 276), the issue of commission was held valid for measurement of land and determination of boundary for checking trespassing of such land.

    Similarly, in Nitendra Nath Rai Chaudhary Vs Subhash Chandra Kar (A.I.R. 1981, Calcutta 319), recommendation has been made for issue of commission for inspection of disputed area in suit for ejectment.
  3. For Scientific Investigation:

    The provision has been made for issue if commission for scientific investigation under Order 26, Rule 10a. according to this when the court thinks that any scientific issue is involved in the case before it and proper solution of that issue is not forthcoming, then the court, in the interest of justice, by investigating the case, can issue commission for submission of its report.
  4. For Compliance of Ministerial or Clerical Functions:

    Provision has been made under Order 26, Rule 10b of the code for issue of commission for performance of ministerial acts. According to this, when the court thinks that in the suit before it, any question of performance of ministerial act is involved, then it can issue commission, in the interest of justice for performance of ministerial act.
  5. For Sale of Moveable Property:

    Provision has been made under order 26, rule 10c for sale of such moveable property which is in the custody of the court by means of issue of commission for that purpose. Which is:
    1. subject to speedy and natural decay;
    2. it is not convenient for the court to preserve it; and
    3. the sale of which is in the interest of justice.
  6. For Examination and Adjustment of Accounts:

    Under Order 26, Rule 11 of the code, where it is the opinion of the court that the examination and adjustment of accounts is necessary in the case, then it can issue commission for that purpose.

    The report of the commissioner will be acceptable by way of witness and if the court is dissatisfied with this report, then it can order for further investigation (M/s Nathmal Bhuron Baksh & Company Vs Kashiram, A.I.R. 1973, Rajasthan 271).
  7. For Partition of Immoveable Property;

    He provision has been made under order 26, Rule 13, for issue of commission for partition of immoveable property. According to this, where in any suit, the preliminary decree has been passed then according to the rights declared in such decree, the court can issue commission to divide the property according to such rights.
  8. Issue of Commission by High Court:

    According to the provision has laid down under Order 26, Rule 19 and 20, when high court comes to the conclusion that any foreign court wants to get witness of any person residing in its jurisdiction, then the High Court may issue commission for examination of witness for any court or for any person residing in its jurisdiction.

    The High Court can issue such commission on the request of any party who is party to the case before the foreign court or on the request of nay legal officer of state government.
    Powers of commissioner; under order 26, Rule 16, the powers of commissioner have been mentioned.

    The powers are as follows:
    1. The commissioner can examine such parties, witnesses and other persons related to the specified subjects to whom he thinks proper to call as witnesses.
    2. Can call all documents and other things related to the case and can examine them.
    3. He can enter such buildings within the reasonable time whose mention has been made in the orders.
The commissioner cannot impose penalty as regards calling of witnesses, their examination and presence unless he is himself is the judge of civil court. He can apply to the civil court for imposition of penalty.

In Putappa Vs Ramappa A.I.R.1996, Karnataka 257, the Karnataka High court has decided that after issue of perpetual injuction, where the issue involved is the possession of property, the commissioner cannot decide such dispute.

Expenses of Commission:
Order 26, Rule 15 provides for expenses of commission. According to this, the expense of commission will be deposited in the court that the party upon whose request, the commission has been appointed.

These expenses includes fees of commissioner expenses contingent upon the issue and execution of commission (Cantonment Board Vs Chhajjumal & Sons, 1968, MPLJ 425).

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