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Appointment of Commissioner

Code of Civil Procedure

Table Of Cases

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A.Marcalline Fernando v. St. Francis Xavier Church, Kottah, AIR 1961 Mad 31.
Abdul Jalil v. State of Uttar Pradesh, AIR 1984 SC 882.
Achhru Mal v. Maula Bakhsh, AIR 1925 Lah 29.
Chandu v. Kirpa Ram, AIR 1952 HP 65.
Chettyar v. Maung Ba Chit, AIR 1930 Rang 315.
Damodaran v. Karimba Plantations Company Limited, AIR 1959 Ker 358.
Debendranath Nandi v. Natha Bhuiyan, AIR 1973 Orissa 240.
Dina Nath Law v. Metharam Navalrai and Company, AIR 1921 Cal 852.
Filmistan Limited Bombay v. Bhagwandas, AIR 1971 SC 61.
Gopal Das v. Jagannath, AIR 1938 All 370.
Gourhari Das v. Jaharlal Seal, AIR 1957 Cal 90.
ILR (1970)2 Punj 640.
In Re: Lachman Das, AIR 1952 All 563.
In Re: P.Moosa Kutty, Re: AIR 1953 Mad 717.
In Subramanian Chettiar, AIR 1955 Mad 210.
Jamil Ahmed Khan v. Must. Khair-Ul-Nisa, AIR 1970 Delhi 205.
K.R Deosant v. W.K Deosant, AIR 1971 Bom 26.
Kishore Kumar v. Rakeshkumar Jayprakash Agrawal, AIR 1992 Guj 95.
Krishna Sharan Shukla v. Bali Bhadar Shukla, AIR 1952 All 140.
Lachhmi Devi v. Chandrakala Saraogi, AIR 1973 Pat 155.
M.C Manickam v. V.S.M Sivalingam Chettiar, AIR 1977 Mad 324.
M.N.D Varu v. Board of Trustees, Tirupathi, AIR 1959 Andh Pra 64.
Mandera Mukherjee v. Sachindra Chandra Mukherjee, AIR 1962 Pat 211.
Munnalal v. Rajkumar, AIR 1962 SC 1493.
Narain Dass v. Karam Chand, AIR 1968 Delhi 226.
Padam Sen v. State of Uttar Pradesh, AIR 1961 SC 218.
Panachand Chhotalal v. Mansharlal Nandlal, AIR 1917 Bom 155.
Pramatha Nath Sen Gupta v. Sheikh Abdul Aziz Meah, AIR 1923 Cal 436.
Raghubir Dayal Prasad v. Ramekbal Sah, AIR 1986 Pat 83.
Rahuria Ramkali Kuer v. Chhatthoo Singh, AIR 1961 Pat 210.
Ram Bahadur v. Sri Thakur Siri Sitaramji Maharaj, AIR 1934 Pat 32.
Ram Krishna Dalmia v. Feroz Chand, AIR 1960 Punj 430.
Ram Sewak Koeri Mosadi Koeri v. Harihar Prasad Singh, AIR 1927 Rang 175.
Ramalinga Iyar v. Sankaranarayana Ayyar, AIR 1929 Mad 192.
Ramnarain Sah v. Basanti Lal Sah, AIR 1933 Pat 681.
Sinha v. Life Insurance Corporation of India, AIR 1964 Pat 142.
Sitaram v. Ram Prasad Ram, AIR 1915 Cal 280.
Sivasankara Pillai v. Ponnuswami Nadar, AIR 1973 Mad 450.
Surendranath Sen Gupta v. Secretary of State, AIR 1934 Pat 316.
Syamala Pictures Limited v. M.V Siva Sarma, AIR 1960 Andh Pra 387.
T.N Govindarajulu v. Lakshmi Ammal, AIR 1961 Mad 158.

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


Table Of Statutes

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Code of Civil Procedure, 1908.


Federal Rules of Civil Procedure.
The Code of Civil Procedure (Amendment) Act, 1976.
Introduction

Interim or interlocutory orders are those orders passed by a Court during the pendency of
a suit or proceeding which do not determine finally the substantive rights and liabilities of
the parties in respect of the subject matter of the suit[1]. After the suit is instituted by
the plaintiff and before it is finally disposed of, the Court may make interlocutory orders
as may appear to the Court to be just and convenient[2]. Interim or interlocutory orders
are generally made in order to assist the parties or for the purpose of protection of the
subject matter of the suit. Commissions fall within the ambit of interlocutory orders.
Courts are constituted for the purpose of doing justice and must be deemed to possess
all such powers as may be necessary to do the right and undo the wrong in the course of
administration of justice[3]. Appointment of Commissioner is one such power given to the
Courts in order to help them to serve this purpose.
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 Pradesh[5] 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 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 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 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.

Research Methodology

Aim and Objectives


The aim of this project is to perform a critical analysis of Appointment of Commissioners
as envisaged by the Code of Civil Procedure. The project identifies the various provisions
in the Code of Civil Procedure relating to Appointment of Commissioners and analyses
them in detail with reference to relevant case law. The project also aims at highlighting
the importance of the system of appointment of Commissioners and Commissions.
Nature of Project
The project is analytical as well as descriptive in nature. However the majority of the
project is analytical in nature.
Sources of Data
The sources of data used are primary as well as secondary. A host of leading text books
on the Code of Civil procedure have been used. Case reporters like the All India Reporter
and Supreme Court Cases have also been referred to.
Scope and Limitation
The scope of this project is limited to a critical analysis of the various provisions in the
Code of Civil Procedure relating to Commissions and Appointment of Commissioners viz.
Order 26. The project has not looked at analogous provisions in the Civil Procedure of
other countries.
Research Questions
The research questions are:
1.

What are the various provisions in the Code of Civil Procedure relating to
appointment of Commissioner?
2. What are the purposes for which a Commissioner may be appointed?
3. What is the importance of a Commissioner and a Commission?
4. How, why and when are Commissions issued at the instance of Foreign Tribunals?
5. What are the general provisions in the Code of Civil Procedure relating to
Commissions?
6. What is the relevance of the Appointment of a Commissioner and a Commission?
Mode of Citation

A uniform mode of citation has been adopted throughout the project.

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
To conduct a sale of property which is subject to speedy and natural decay and
which is in the custody of the court pending the determination of the suit

To perform any ministerial act


Commissions for Examination of Witnesses
Order 26 Rules 1-8 deal with commissions set up for the purpose of examining witnesses.
Rule 1 deals with cases in which court may issue commission to examine witness. A
Commission to examine witnesses can only be issued in the cases specified in this rule
and Rules 4 and 5 and in no other case[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 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. Bhagwandas[15] 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 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 Commission[16]. The demeanour 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 cases[17]. 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
commission[18]. 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 commission[19].
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[20]. Thus a Bishop is not entitled to be examined on Commission owing to
his rank as a spiritual head and dignitary of the church[21].
Section 132 of the Code of Civil Procedure recognizes the right of pardanashin ladies who
can claim the privilege of being examined on Commission[22]. 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[23]. A medical certificate tendered in support of an application for the issue
of a commission on the ground of illness is inadmissible in evidence[24]. Infancy however
is not a ground for the issue of a Commission[25].
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 evidence[27]. 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[28]. The commissioner also has no power to record his findings on the
basis of the evidence recorded by him on Commission[29]. The purpose of examining a
witness on commission will be adequately served by merely issuing interrogatories for his
examination[30].
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[31].
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 1[33]. 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[34]. 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[35]. 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 institute his suit in a particular Court he cannot
ask for his examination elsewhere. This Rule applies only to suits and not to execution
proceedings[36].
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 fact that witnesses cannot be effectively cross-examined or their
examination will entail heavy costs are not adequate reasons to refuse issue of a
commission in case of persons residing abroad[37]. 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 authenticated[38].
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 Commission[39].
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 ie. 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 Das[40] has held that though evidence taken by
the Commissioner is part of the 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[41] .
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[42].
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[43] and to elucidate any point
which is left doubtful on the evidence taken before the Court[44]. 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].
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[46]. A Commissioner appointed to do a certain work must do it himself and
cannot get it done by someone else[47]. A Commissioner is also bound to record the
state of things as actually existing and not draw upon his own imagination or make
surmises[48]. 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[49].

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[50]. 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 accounts[51].
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 Court[52]. 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 conclusion[53]. 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.
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 nor 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 properties[55]. 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[56]. 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[57]. 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[58].

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 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[59]. 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 defence 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.[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.
2.
3.

Examine the parties and witnesses


Call for and examine documents
At any reasonable time enter upon or into any land or building mentioned in the
order.
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[69].
It 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 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[71].
A 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 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 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 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.
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

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.
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 court-centered 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 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 his hoped that Courts will continue to administer justice more
effectively and efficiently through the system of Appointment of Commissioners.

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[70] Supra note 18 at 144.


[71] Sivasankara Pillai v. Ponnuswami Nadar, AIR 1973 Mad 450.
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