Table of Cases

1. A.Marcalline Fernando v. St. Francis Xavier Church, Kottah, AIR 1961 Mad
31.
2. Abdul Jalil v. State of Uttar Pradesh, AIR 1984 SC 882.
3. Achhru Mal v. Maula Bakhsh, AIR 1925 Lah 29.
4. Chandu v. Kirpa Ram, AIR 1952 HP 65.
5. Chettyar v. Maung Ba Chit, AIR 1930 Rang 315.
6. Damodaran v. Karimba Plantations Company Limited, AIR 1959 Ker 358.
7. Debendranath Nandi v. Natha Bhuiyan, AIR 1973 Orissa 240.
8. Dina Nath Law v. Metharam Navalrai and Company, AIR 1921 Cal 852.
9. Filmistan Limited Bombay v. Bhagwandas, AIR 1971 SC 61.
10.

Gopal Das v. Jagannath, AIR 1938 All 370.

11.

Gourhari Das v. Jaharlal Seal, AIR 1957 Cal 90.

12.

ILR (1970)2 Punj 640.

13.

In Re: Lachman Das, AIR 1952 All 563.

14.

In Re: P.Moosa Kutty, Re: AIR 1953 Mad 717.

15.

In Subramanian Chettiar, AIR 1955 Mad 210.

16.

Jamil Ahmed Khan v. Must. Khair-Ul-Nisa, AIR 1970 Delhi 205.

17.

K.R Deosant v. W.K Deosant, AIR 1971 Bom 26.

18.

Kishore Kumar v. Rakeshkumar Jayprakash Agrawal, AIR 1992 Guj 95.

19.

Krishna Sharan Shukla v. Bali Bhadar Shukla, AIR 1952 All 140.

20.

Lachhmi Devi v. Chandrakala Saraogi, AIR 1973 Pat 155.

21.

M.C Manickam v. V.S.M Sivalingam Chettiar, AIR 1977 Mad 324.

22.

M.N.D Varu v. Board of Trustees, Tirupathi, AIR 1959 Andh Pra 64.

23. Mandera Mukherjee v. Sachindra Chandra Mukherjee, AIR 1962 Pat

211.
24.

Munnalal v. Rajkumar, AIR 1962 SC 1493.

25.

Narain Dass v. Karam Chand, AIR 1968 Delhi 226.

26.

Padam Sen v. State of Uttar Pradesh, AIR 1961 SC 218.

27.

Panachand Chhotalal v. Mansharlal Nandlal, AIR 1917 Bom 155.

28. Pramatha Nath Sen Gupta v. Sheikh Abdul Aziz Meah, AIR 1923 Cal
436.
29.

Raghubir Dayal Prasad v. Ramekbal Sah, AIR 1986 Pat 83.

30.

Rahuria Ramkali Kuer v. Chhatthoo Singh, AIR 1961 Pat 210.

31.

Ram Bahadur v. Sri Thakur Siri Sitaramji Maharaj, AIR 1934 Pat 32.

32.

Ram Krishna Dalmia v. Feroz Chand, AIR 1960 Punj 430.

33. Ram Sewak Koeri Mosadi Koeri v. Harihar Prasad Singh, AIR 1927 Rang
175.
34.

Ramalinga Iyar v. Sankaranarayana Ayyar, AIR 1929 Mad 192.

35.

Ramnarain Sah v. Basanti Lal Sah, AIR 1933 Pat 681.

36.

Sinha v. Life Insurance Corporation of India, AIR 1964 Pat 142.

37.

Sitaram v. Ram Prasad Ram, AIR 1915 Cal 280.

38.

Sivasankara Pillai v. Ponnuswami Nadar, AIR 1973 Mad 450.

39.

Surendranath Sen Gupta v. Secretary of State, AIR 1934 Pat 316.

40.

Syamala Pictures Limited v. M.V Siva Sarma, AIR 1960 Andh Pra 387.

41.

T.N Govindarajulu v. Lakshmi Ammal, AIR 1961 Mad 158.

42.

Veeradram v. Natraja, (1905)28 Mad. 28.

Introduction
Page | 1

II

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 suit1. 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 convenient2. 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 justice3.
Appointment of Commissioner is one such power given to the Courts in
order to help them to serve this purpose.
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.
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 4. Thus commissions
may be issued for other purposes too if the Court thinks it fit to do so. It has
been held in Abdul Jalil v. State of Uttar Pradesh5 that Order 26 of the
Code of Civil Procedure does not exclude the inherent power of the Supreme
Court to appoint Commissioners for making inquiry into alleged violations of
fundamental rights.
Whenever the Court passes an order to issue a Commission a Commissioner
is appointed by the Court. The Courts jurisdiction and power to appoint a
Commissioner should flow from Section 75 read with Order 26 and if the
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 M.P Tandon and Rajesh Tandon, The Code of Civil Procedure (Allahabad: Allahabad
Law Agency, 1990)at 251.
5 AIR 1984 SC 882.
Page | 2

III

jurisdiction to pass an order appointing the Commissioner cannot be traced

either to Section 75 or to Order 26 the Court cannot fall back upon Section
151 to pass such an order appointing the Commissioner6. 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 court7.
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
armoury 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.

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:

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

6 Kishore Kumar v. Rakeshkumar Jayprakash Agrawal, AIR 1992 Guj 95.

7 Supra note 1 at 188.
Page | 3

IV

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 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 case8. 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 vexatious9. A Commission may also be issued with
the consent of the parties in cases not falling under this rule10. If the
report of one Commissioner is unsatisfactory, the Court can remit it to the
8 P.M Bakshi, Mulla-The Code of Civil Procedure (Bombay: N.M Tripathi Private
Limited, 1990)at 871.
9 Veeradram v. Natraja (1905) 28 Mad. 28 as cited in T.L Venkataraman Aiyar, Mulla
on the Code of Civil Procedure
Volume II (Bombay: N.M Tripathi Private Limited,
1967)at 1319
10 Gopal Das v. Jagannath, AIR 1938 All 370
Page | 4

same Commissioner or appoint another Commissioner11. It has been held

that a Court can issue Commission even after remand12. The Court can, suo
motu, cancel the previous order issuing Commission though there is no
express provision in this regard13. The successor of a Judge has the power to
cancel the issue of a Commission made by his predecessor 14.
The issue of a Commission is a matter of judicial discretion. The Supreme
Court in Filministan Ltd. Bombay v. Bhagwandas15 said that the
interpretation that a Commission should issue as a matter of right unless the
application for Commission amounts to an abuse of the process of the Court
is not correct. Their Lordships observed that the fact that witnesses cannot
be cross-examined properly, or their examination will entail heavy costs are
not sufficient circumstances to interfere with the discretion of the Court. The
question whether the witnesses will appear before the Commissioner is also
irrelevant. It is for the party to produce the witnesses before the
Commissioner. As a general rule the discretion will not be exercised in favour
of the applicant unless:

The application is made bona fide

The issue in respect of which the evidence is required is one which the
Court ought to try

The witness to be examined would give evidence material to the issue

There are some good reasons why the witness cannot be examined in
Court

But the Court does not have absolute discretion or inherent power to issue a
Commission except when authorized by the provisions of the Code, nor
according to the general trend of opinion is the Court bound to issue a
Commission simply because all the conditions laid down in the rule exist.
Where the examination on Commission may result in manifest injustice to
11 Supra note 8 at 873
12 Achhru Mal v. Maula Bakhsh, AIR 1925 Lah 29
13 Narain Dass v. Karam Chand, AIR 1968 Delhi 226
14 Chettyar v. Maung Ba Chit, AIR 1930 Rang 315
15 AIR 1971 SC 61
Page | 5

VI

any party, or where it is not calculated to permit the evidence being tested
fairly, or when the application is made to avoid cross-examination before the
Court, the Court is not bound to issue a Commission16. The demeanor of a
witness has value only when the evidence is evenly balanced but it is not so
important as to take away the right to issue commission under this rule in
deserving cases17. The fact that the witness sought to be examined is
interested, or that the case of the party asking for the issue of the
Commission is improbable or that the Judge thinks that no useful end would
be attained by the evidence is however, no ground per se for refusing to
issue a commission18. It is open to the Court to order the issue of commission
on condition of the applicant depositing in court security for the costs of the
opposite party in regard to the commission19.
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 status20. Thus a Bishop is not entitled to be examined on
Commission owing to his rank as a spiritual head and dignitary of the
church21.
Section 132 of the Code of Civil Procedure recognizes the right
of pardanashin ladies who can claim the privilege of being examined on
Commission22. 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
16 Rahuria Ramkali Kuer v. Chhathoo Singh, AIR 1961 Pat 210
17 In Re: Subramanian Chettiar, AIR 1955 Mad 210
18 D.V Chitaley, Code of Civil Procedure Volume IV (Nagpur: All India Reporters
Limited, 1971)at 101
19 Raghubir Dayal Prasad v. Ramekbal Sah, AIR 1986 Pat 83
20 Panachand Chhotalal v. Mansharlal Nandlal, AIR 1917 Bom 155
21 A.Marcalline Fernando v. St. Francis Xavier Church, Kottah, AIR 1961 Mad 31
22 Rahuria Ramkali Kuer v. Chhathoo, AIR 1961 Pat 210
Page | 6

VII

Commission23. A medical certificate tendered in support of an application for

the issue of a commission on the ground of illness is inadmissible in
evidence24. Infancy however is not a ground for the issue of a Commission25.
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.26 But the Commissioner has no power to disallow questions and give
ruling as to points about admissibility of evidence27. 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 him28. The commissioner also has no power to
record his findings on the basis of the evidence recorded by him on
Commission29. The purpose of examining a witness on commission will be
adequately served by merely issuing interrogatories for his examination30.
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
23 Supra note 18 at 103
24 T.N Govindarajulu v. Lakshmi Ammal, AIR 1961 Mad 158
25 Supra note 18 at 103
26 Id
27 Ram Krishna Dalmia v. Feroz Chand, AIR 1960 Punj 430
28 Ram Krishna Dalmia v. Feroz Chand, AIR 1960 Punj 430
29 Krishna Sharan Shukla v. Bali Bhadar Shukla, AIR 1952 All 140
30 Supra note 25
Page | 7

VIII

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 himself31.

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 32.
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 133. 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 party34. 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 place35. Under this Rule a Court is
usually more lenient while processing the application of the defendant asking
his evidence to be taken on Commission as opposed to an application filed
by the plaintiff asking for his evidence to be taken on Commission. This is
because the plaintiff has the choice of the forum and having chosen to
31 Ram Sewak Koeri Mosadi Koeri v. Harihar Prasad Singh, AIR 1927 Rang 175
32 Dinanath Law v. Metharam Navalrai and Co., AIR 1921 Cal 852
33 Ramalinga Iyar v. Sankaranarayana Ayyar, AIR 1929 Mad 192
34 T.L Venkataraman Aiyar, Mulla on the Code of Civil Procedure Volume II (Bombay:
N.M Tripathi Private Limited, 1967)at 1321
35 In Re: Subramanian Chettiar, AIR 1955 Mad 210
Page | 8

IX

institute his suit in a particular Court he cannot ask for his examination
elsewhere. This Rule applies only to suits and not to execution proceedings36.

Rule 5 deals with the issue of a Commission for the examination of

witnesses residing outside India. The Courts usually allow a person residing
abroad to be examined on Commission but they can exercise discretion in
this regard and refuse to order issue of Commission to examine a witness
residing abroad if they feel that there are adequate reasons to do so. The
facts that witnesses cannot be effectively cross-examined and their
examination will entail heavy costs are not adequate reasons to refuse issue
of a commission in case of persons residing abroad37. When a witness
residing in a foreign country is sought to be examined on Commission the
Court should issue a Letter of Request addressed to the presiding officer of
the Court within whose jurisdiction the witness resides, requesting him to
have a Commissioner appointed and to have the witness examined before
such Commissioner and forward the evidence to the issuing Court after it has
been duly authenticated38.
Rule 6 states that Every Court receiving a Commission for the examination
of any person shall examine him or cause him to be examined pursuant
thereto. It has been held that a party who has not joined in a Commission is
entitled to cross-examine the witness examined under the Commission39.
Rule 7 deals with Return of commission with depositions of witnesses. The
return should show that that the evidence was recorded as the law requires
i.e. in the language in ordinary use in the proceedings before the Court and
duly read over and signed by the witnesses. The report of a Commissioner
under this Rule will form a part of the record and is admissible in evidence.
Rule 8 lays down when evidence on Commission may be read as evidence
in a suit. Evidence taken on Commission cannot be used without the consent
of the opposite party unless the conditions of clause (a) to this Rule are
fulfilled or the record shows that the discretion under clause (b) of this Rule
has been exercised by the Court. The Allahabad High Court in In Re:
Lachman Das40 has held that though evidence taken by the Commissioner
is part of the record it does not become evidence unless it is tendered and
36 Supra note 18 at 108-109
37 Filministan Ltd. Bombay v. Bhagwandas, AIR 1971 SC 61
38 Supra note 18 at 112
39 Supra note 34 at 1323
Page | 9

admitted under Order 26 Rule 8. The Patna High Court has concurred with
this view in Sinha v. Life Insurance Corporation of India41.
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 ground42.

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 spot43 and to elucidate
any point which is left doubtful on the evidence taken before the Court44. 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 45.
40 AIR 1952 All 563
41 AIR 1964 Pat 142
42 Supra note 18 at 116
43 Re: P. Moosa Kutty, AIR 1953 Mad 717
44 Debendranath Nandi v. Natha Bhuiyan, AIR 1973 Orissa 240
Page | 10

XI

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 examination46. A
Commissioner appointed to do a certain work must do it himself and cannot
get it done by someone else47. A Commissioner is also bound to record the
state of things as actually existing and not draw upon his own imagination or
make surmises48. 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
Commissioner49.

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
45 Supra note 18 at 117
46 Sitaram v. Ram Prasad Ram, AIR 1915 Cal 280
47 Damodaran v. Karimba Plantations Company Limited, AIR 1959 Ker 358
48 M.N.D Varu v. The Board of Trustees, Tirupathi, AIR 1959 Andh Pra 64
49 Supra note 4
Page | 11

XII

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 necessary50. 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 defendants
apprehension that they would be tampered with. Courts inherent powers
cannot be invoked for the purpose of issuing Commissions for examination or
adjustment of accounts51.
Rule 12 is titled Court to give Commissioner necessary instructions. Under
this Rule the Court is bound to furnish the Commissioner with the requisite
proceedings and issue definite instructions as to what he should do with
respect to adjustment or examination of accounts. It is not the function of
the Commissioner to act as arbitrator and settle the disputes between the
parties but to decide them judicially on a consideration of the evidence and
to submit his report to the Court52. He is in the position of an assistant to the
Court so as to enable the Court to understand and appreciate the accounts
and come to a decision. It is the right of the parties to attack his findings and
it is incumbent on the Court to consider these objections, and come to its
own independent conclusion53. The proceedings and report of the
Commission shall be evidence in the suit unless the Court directs further
inquiry. Such further inquiry will be directed only when the Court is
dissatisfied with the report and proceedings of the Commissioner.
50 Chandu v. Kirpa Ram, AIR 1952 HP 65
51 Padam Sen v. State of Uttar Pradesh, AIR 1961 SC 218
52 Supra note 34 at 1328
53 Id
Page | 12

XIII

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 was merely
called upon to make proposals for partition on which the parties would be
heard, and the Court would adjudicate upon these proposals in the light of
the preliminary decree and the contentions of the parties. The proposals of
the Commissioner cannot from their very nature be binding upon the parties
or the reasons in support thereof.54

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 properties55. 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 Court56.
Such a partition can only be effected by the Collector because the revenue is
54 Munnalal v. Rajkumar, AIR 1962 SC 1493
55 Supra note 18 at 136
56 K.R Deosant v. W.K Deosant, AIR 1971 Bom 26
Page | 13

XIV

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 property57. 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 Court58.

Commissioners- General Provisions

Order 26, Rules 15-18 of the Code of Civil Procedure relate to general
provisions relating to Commissions and Commissioners. It is imperative to
57 Gourhari Das v. Jaharlal Seal, AIR 1957 Cal 90
58 Ram Bahadur v. Sri Thakur Siri Sitaramji Maharaj, AIR 1934 Pat 32
Page | 14

XV

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 engaged59. 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.60
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.61 Such expenses cannot be ordered to be deposited even under
Section 151, Code of Civil Procedure.62 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.63
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
59 Pramatha Nath Sen Gupta v. Sheikh Abdul Aziz Meah, AIR 1923 Cal 436
60 Supra note 8 at 880
61 Lachhmi Devi v. Chandrakala Saraogi, AIR 1973 Pat 155
62 Supra note 18 at 141
63 Id
Page | 15

XVI

Commissioners and in fixing their remunerations under Order 26, Code of

Civil Procedure act judicially and not administratively.64
There is no express provision which allows a court to direct a party to deposit
a further sum after the commission has issued. But it can do so under its
inherent powers.65
Expenses of the commission may be apportioned between the parties to a
suit for dissolution of partnership and taking of accounts, in proportion to
their shares.66
It has been held that the matter of reduction or disallowance of a
Commissioners bill is a matter for the trial court and the Court will not be
justified in re-opening or reducing the fees fixed in the presence of the
parties and paid into court.67 The Court should fix remuneration for the
Commissioner that is commensurate to the difficulty and importance of the
work done. The remuneration is not for labour expended on or for days spent
but for an efficient piece of work. If he merely executes the Commission
nominally, he is not entitled to any fees. Where a Commissioner has already
taken payments provisionally, he must refund them if it is subsequently
found that they have not been earned by real work but that the
Commissioner has executed the Commission only nominally. 68

Rule 16: Powers of Commissioners

A Commissioner has the power to:
1. Examine the parties and witnesses
2. Call for and examine documents
3. At any reasonable time enter upon or into any land or building
mentioned in the order.
64 Supra note 18 at 141
65 Syamala Pictures Limited v. M.V Siva Sarma, AIR 1960 Andh Pra 387
66 M.C Manickam v. V.S.M Sivalingam Chettiar, AIR 1977 Mad 324
67 Ramnarain Sah v. Basanti Lal Sah, AIR 1933 Pat 681
68 Surendranath Sen Gupta v. Secretary of State, AIR 1934 Pat 316
Page | 16

XVII

The provisions of this rule are permissive in the sense that they vest
discretion in the Commissioner to examine or not to examine a witness. It
has been held by the Punjab and Haryana High Court that the function of the
Commissioner appointed to examine accounts is not confined only to making
additions, subtractions and multiplications it is open to him to find out by
recording evidence or otherwise whether the entries as they appear in the
account books do really give the correct picture of accounts.69It has been
observed that an order rejecting the application for issuance of a
commission can be revised.70
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
69 ILR (1970)2 Punj 640
70 Supra note 18 at 144
Page | 17

XVIII

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, crossexamining 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.71A Commissioner appointed to examine a witness
has no power to disallow questions he considers irrelevant.72
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.73

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
71 Sivasankara Pillai v. Ponnuswami Nadar, AIR 1973 Mad 450
72 Ram Krishna Dalmia v. Feroz Chand, AIR 1960 Punj 430
73 Supra note 18 at 145
Page | 18

XIX

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.74
When neither a direction is given by the Court, nor a notice given by the
Commissioner, his report is not admissible in evidence.75 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 Commissioners report which has been obtained in contravention of the
statutory requirements has to be set aside and a decision based on such a
report cannot be sustained.76
There is no provision in the Code of Civil Procedure which says that a
Commission could be issued only after notice has been issued to the
defendant and, therefore, an order appointing the Commissioner without
notice to him and hearing him is not illegal and opposed to the provisions of
Order 26, Rule 18. However Courts have held that as a matter of practice
notice ought to be given to the opposite party before ordering a
Commission.77

Rule 18A: Application of Order to execution proceedings

This rule provides that the provisions of Order 26 shall apply to proceedings
in execution of a decree or an order.

Rule 18B: Court to fix a time for return of Commission

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
74 Supra note 18 at 146
75 Jamil Ahmed Taban v. Must. Khair-Ul-Nisa, AIR 1970 Delhi 205
76 Mandera Mukherjee v. Sachindra Chandra Mukherjee, AIR 1962 Pat 211
77 Supra note 18 at 146-147
Page | 19

XX

satisfied that there is sufficient cause for extending the date. This Rule was
added in order to avoid delay in Commission proceedings.

Commissions- Issued At The Instance Of

Foreign Tribunals
Order 26, Rules 19-22 of the Code Of Civil Procedure, 1908 were inserted as
Courts in India are sometimes required to take evidence for foreign tribunals
Page | 20

XXI

in commercial and civil matters and it was considered desirable that the
outlines of the procedure to be followed should be shown in the Civil
Procedure Code in order to secure uniformity of practice in Indian Courts and
to give information to foreign tribunals.

Rule 19 states that:

If a High Court is satisfieda) That a foreign court situated in a foreign country wishes to obtain the
evidence of a witness in any proceeding before it,
b)

That the proceeding is of a civil nature, and

c) That the witness is residing within the limits of the High Courts
appellate jurisdiction,
It may, subject to the provisions of Rule 20, issue a commission for the
examination of such witness.
Rule 19 further states that:
Evidence may be given of the matters specified in clauses a, b and c:
a) By a certificate signed by the consular officer of the foreign country of
the highest rank in India and transmitted to the High Court through the
Central Government, or
b) By a letter of request issued by the foreign court and transmitted to the
High Court through the Central Government
c) By a letter of request issued by the foreign court and produced before
the High Court by a party to the proceeding.
Rule 19 does not apply to the Courts referred to in Section 78 clauses (a) and
(b).
Sub rule (2) indicates the method by which the request contained in sub rule
(1) may be established, but does not prevent the High Court from requiring
further evidence if it thinks fit.
According to Rule 20 a High Court may issue a Commission under Rule 19
upon application by a party to the proceeding before the Foreign Court or
upon an application by a law officer of the State Government.

Page | 21

XXII

Rule 21 lays down that a Commission will be issued to any court within
whose jurisdiction the witness resides or to any person deemed fit to execute
it where the witness resides within the local limits of the original civil
jurisdiction of the High Court.
Rule 22 provides for issue, execution and return of Commissions and
transmission of evidence to foreign court. After the Commission has been
executed it shall be returned together with the evidence to the High Court,
which shall forward it to the Central Government along with the letter of
request for transmission to the foreign court.

Conclusion
Page | 22

XXIII

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 because they live too far away from the Courts
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.
The report of a commissioner although not binding on the Court gives the
Court great food for thought and has great persuasive value. It might be the
basis on which the Court makes its judgment.
There have been several arguments against Appointment of Commissioners.
Detractors of Commissions say that in this modern digital age the role of
Commissions has become redundant. They argue that witnesses who are
unable to depose in Court can depose directly to the Judge through television
or web conferencing. Affidavits can be submitted by the parties over the
Internet and confirmed through digital signatures. However such methods
are not a realistic view in a developing country like India where most of the
population lives in rural areas and the technical know-how or expertise is
simply not there to enable examination of witnesses electronically. Moreover
these methods would impose a great financial burden on the parties and the
Courts. Thus it would not be pragmatic to say that Commissions have
become redundant. They still render invaluable service and the appointment
of a Commissioner whenever necessary is of great help to the Court in the
administration of Justice.
Page | 23

XXIV

The importance of the Commission and the appointment of Commissioner

can be seen in the new stance of American Civil Procedure veering towards a
similar process as the Commission in which the Court has great control over
the functions of the commissioner and the purpose for which the Commission
has been set up. Through the Commission and the appointment of
Commissioner Courts in India exercise almost total control over the purpose
for which the Commission has been set up. In the United States the parties
and their attorneys perform all the functions of examination of witnesses,
investigation, fact gathering, collection of evidence etc. (purposes for which
Commissions may be set up in India) with little or no interference from the
Court. However this is now changing.
American trial judges are exercising increasing control over the conduct of
fact gathering which is one of the purposes for which a Commissioner may
be appointed in India.
In cases with many parties and many issues, the feeling grew that courtcentered control was needed to prevent the confusion and duplication that
would result if the adversaries were left to themselves, each pursuing the
course that is most favorable to his particular client. The American legal
fraternity thus developed a Manual for Complex Litigation. The Manual
effects judicial control over adversary fact-gathering through a set of
interconnected measures.78
Accordingly the essence of what the Manual propounds is the exercise of
judicial control over complex litigation plus a positive plan for discovery and
pretrial preparation.79
According to the manual the court convenes discovery conferences and
breaks discovery into waves. Thus, the court decides what subjects may
be investigated in what sequence. This power has now been codified for the
ordinary Federal Rules of Civil Procedure in revised rule 26(f): Following the
discovery conference, the court shall enter an order tentatively identifying
the issues for discovery purposes, establishing a plan and schedule for
discovery . . . .80
Thus the very essence of the appointment of Commissioner in India viz.
control of the Court over the Commission and the Commissioner acting
78 John H. Langbein, The German Advantage in Civil Procedure 52 U. Chi. L. Rev.
823 (University of Chicago Law Review, 1985)
79 Id
80 Id
Page | 24

XXV

wholly on the instructions of the Court are being incorporated into the fact
gathering process in the United States of America which hitherto left the
entire process of fact gathering, examination of witnesses and gathering of
evidence etc. wholly to the parties and their attorneys with minimal or no
Court interference. Although many American courtrooms remain untouched
by the new developments, the changes have occurred broadly enough to
have about themselves the look of the future.
This change in the American stance is a vindication of the Indian position and
speaks volumes for the system of Commissions set up by the Code of Civil
Procedure. The importance of the Commissions and Appointment of
Commissioners cannot be further emphasized and it is hoped that Courts will
continue to administer justice more effectively and efficiently through the
system of Appointment of Commissioners.

Bibliography
Articles
1. John H. Langbein, The German Advantage in Civil Procedure 52 U.
Chi. L. Rev. 823 (University of Chicago Law Review, 1985).

Books
1. C.B Upadhya, Digest on The Civil Procedure Code (Allahabad: Malhotra
Law House, 1990).
2. C.K Takwani, Civil Procedure (Lucknow: Eastern Book Company, 2001).
3. D.V Chitaley, Code of Civil Procedure Volume IV (Nagpur: All India
Reporters Limited, 1971).
4. M.P Tandon and Rajesh Tandon, The Code of Civil Procedure (Allahabad:
Allahabad Law Agency, 1990).
5. P.M Bakshi, Mulla-The Code of Civil Procedure (Bombay: N.M Tripathi
Private Limited, 1990).
6. S.N Singh, Civil Procedure Code (Allahabad: Central Law Agency,
1990).s
Page | 25

XXVI

7. S.Venkataraman, The Code of Civil Procedure (Madras: Madras Law

Journal Office, 1993).
8. T.L Venkatarama Aiyar, Mulla on The Code of Civil Procedure Volume
II (Bombay: N.M Tripathi Private Limited, 1967).
9. Vedula Jagannadha Rao, The Code of Civil Procedure (Hyderabad: Asia
Law House, 1990).

Page | 26