CODE OF CIVIL PROCEDURE AND LAW OF LIMITATION

Project TITLE:

Appointment of commissioners

Submitted By:

Anwesha Tripathy

3rd Year(5th Semester)

Section-A

Roll Number-724

Submitted To:

Dr. B. Ravi Narayan Sarma

Assistant Professor(Law) & Assistant Registrar

Session: 2014-2015

ACKNOWLEDGEMENT

It is my greatest pleasure to be able to present this project of Code of Civil Procedure,1908. I

found it very interesting to work on this project. I would like to thank Dr. B. Ravi Narayan

Sarma, Assistant Prof., Faculty of law, and Assistant Registrar, Chanakya National Law

University for providing me with such an interesting project topic,for his unmatched efforts

in making learning an enjoyable process,for his immense sincerity for the benefit of his

students and for his constant unconditional support and guidance.

I would also like to thank my librarian for helping me in gathering data for the project. Above

all, I would like to thank my parents, elder sister and paternal aunt,who from such a great

distance have extended all possible moral and motivative support for me and have always

advised me to be honest in my approach towards my work.

I hope the project is upto the mark and is worthy of appreciation.

Anwesha Tripathy

Chanakya National Law University, Patna

CONTENTS

Acknowledgement

Introduction

Chapters:

1. Rationale behind the appointment of Commissions2. Powers of the Courts in appointment of Commissions and Commissioners3. Appointment of Commissioner- Purpose, Procedure, Powers and Duties4. General Provisions- Order XXVI Rules 15-185. Different Facets as to appointment of Commissioner

Conclusion

Bibliography

INTRODUCTION

The word Interim means “for the time being” or “temporary” or “provisional” or

“intervening” etc.. Interim orders are those orders passed by a Court during the pendency of a

suit or proceeding which do not finally determine the substantive rights and liabilities of the

parties in respect of the subject matter of the suit/proceeding, but only settle some intervening

matter relating to the cause. Such orders are made to assist the parties to the suit in the

prosecution of their case or to protect the subject matter of the suit, thus playing a crucial role

in the conducting of litigation in a proper manner. These interim orders include payment in

court(order 24), security for costs(order 25), commissions(order 26), arrest before

judgement(order 38), attachment before judgement(order 38), temporary injunctions(order

39), interlocutory orders(order 39), and appointment of receiver(order 40).

This project deals with the appointment of commissioners for the commissions issued under

order 26 of the Code. Under Section 75, the Court, subject to prescribed conditions and

limitations, is empowered to issue a commission for various listed purposes, to carry out

which, a person as deemed fit by the court may be appointed as the commissioner as per the

relevant rules in order 26 which shall be discussed in details in the subsequent chapters.

RATIONALE BEHIND THE APPOINTMENT OF COMMISSIONERS

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. Commissions

are appointed for a variety of purposes which have been mentioned in section 75 of the Code,

which include examination of witnesses, local investigation, adjusting of accounts, partition,

other investigation, conducting sales, or performance of any ministerial act.

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

POWERS OF THE COURT IN APPOINTMENT OF

COMMISSIONS AND COMMISSIONERS

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 discretion4. 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 Court’s 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 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 by foreign courts too.

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.

4 M.P Tandon and Rajesh Tandon, The Code of Civil Procedure (Allahabad: Allahabad Law Agency, 1990)at 2515 AIR 1984 SC 8826 Kishore Kumar v. Rakeshkumar Jayprakash Agrawal, AIR 1992 Guj 957 Supra note 1 at 188

APPOINTMENT OF COMMISSIONERS: PURPOSE, PROCEDURE, POWERS

AND DUTIES

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

i. 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 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 same Commissioner or

appoint another Commissioner. It has been held that a Court can issue Commission

even after remand11. The Court can, suo motu, cancel the previous order issuing

8 P.M Bakshi, Mulla-The Code of Civil Procedure (Bombay: N.M Tripathi Private Limited, 1990)at 8719 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 131910 Gopal Das v. Jagannath, AIR 1938 All 37011 Achhru Mal v. Maula Bakhsh, AIR 1925 Lah 29

Commission though there is no express provision in this regard12. The successor of a

Judge has the power to cancel the issue of a Commission made by his predecessor13.

The issue of a Commission is a matter of judicial discretion. The Supreme Court

in Filministan Ltd. Bombay v. Bhagwandas14 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 15. 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 cases16. 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

12 Narain Dass v. Karam Chand, AIR 1968 Delhi 22613 Chettyar v. Maung Ba Chit, AIR 1930 Rang 31514 AIR 1971 SC 6115 Rahuria Ramkali Kuer v. Chhathoo Singh, AIR 1961 Pat 21016 In Re: Subramanian Chettiar, AIR 1955 Mad 210

the Judge thinks that no useful end would be attained by the evidence is however, no

ground per se for refusing to issue a commission17. 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 commission18.

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 status19. Thus a Bishop is not entitled to be examined on

Commission owing to his rank as a spiritual head and dignitary of the church20.

Section 132 of the Code of Civil Procedure recognizes the right of `pardanashin

ladies who can claim the privilege of being examined on Commission21. A

Commission ought not to be refused to persons who owing to sickness or infirmity are

unable to attend Court. If sickness or infirmity is alleged, the Court will have to take

into account the character and gravity of the sickness and the risk consequent upon the

refusal to issue a Commission. A medical certificate tendered in support of an

application for the issue of a commission on the ground of illness is inadmissible in

evidence22. Infancy however is not a ground for the issue of a Commission.

It is the duty of the party obtaining the Commission to take all such steps as are

necessary to secure the attendance of the witnesses before the Commissioner. The

examination is on the same footing as that in Court and the opposite party has the

right to cross-examine the witnesses. However if the cross-examination is

unnecessarily prolonged or amounts to an abuse of process, the Court can fix a time

limit and order the cross-examination to be finished. But the Commissioner has no

power to disallow questions and give ruling as to points about admissibility of

evidence23. It is also not open to any of the parties to move the Court issuing the

17 D.V Chitaley, Code of Civil Procedure Volume IV (Nagpur: All India Reporters Limited, 1971)at 10118 Raghubir Dayal Prasad v. Ramekbal Sah, AIR 1986 Pat 8319 Panachand Chhotalal v. Mansharlal Nandlal, AIR 1917 Bom 15520 A.Marcalline Fernando v. St. Francis Xavier Church, Kottah, AIR 1961 Mad 3121 Rahuria Ramkali Kuer v. Chhathoo, AIR 1961 Pat 21022 T.N Govindarajulu v. Lakshmi Ammal, AIR 1961 Mad 15823 Ram Krishna Dalmia v. Feroz Chand, AIR 1960 Punj 430

Commission to obtain directions on the point whether the Commissioner has the

power to disallow questions considered irrelevant by him. The commissioner also has

no power to record his findings on the basis of the evidence recorded by him on

Commission24. The purpose of examining a witness on commission will be adequately

served by merely issuing interrogatories for his examination.

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 himself25.

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 waived26.

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 127. 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 party28.

24 Krishna Sharan Shukla v. Bali Bhadar Shukla, AIR 1952 All 14025 Ram Sewak Koeri Mosadi Koeri v. Harihar Prasad Singh, AIR 1927 Rang 17526 Dinanath Law v. Metharam Navalrai and Co., AIR 1921 Cal 85227 Ramalinga Iyar v. Sankaranarayana Ayyar, AIR 1929 Mad 19228 T.L Venkataraman Aiyar, Mulla on the Code of Civil Procedure Volume II (Bombay: N.M Tripathi Private Limited, 1967)at 1321

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.

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 abroad29. 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.

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.

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

29 Filministan Ltd. Bombay v. Bhagwandas, AIR 1971 SC 61

the Court. The Allahabad High Court in In Re: Lachman Das30 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 India31.

ii. 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 spot32 and to elucidate any point which is left doubtful on the evidence

taken before the Court33. 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.

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 examination34. A Commissioner appointed to do a

certain work must do it himself and cannot get it done by someone else35. A

Commissioner is also bound to record the state of things as actually existing and not

draw upon his own imagination or make surmises36. The report submitted by a

30 AIR 1952 All 56331 AIR 1964 Pat 14232 In Re: P. Moosa Kutty, AIR 1953 Mad 71733 Debendranath Nandi v. Natha Bhuiyan, AIR 1973 Orissa 24034 Sitaram v. Ram Prasad Ram, AIR 1915 Cal 28035 Damodaran v. Karimba Plantations Company Limited, AIR 1959 Ker 35836 M.N.D Varu v. The Board of Trustees, Tirupathi, AIR 1959 Andh Pra 64

Commissioner after local investigation is evidence in the suit and shall form part of

the record.

iii. 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.

iv. 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

necessary37. If the accounts are complicated and require an examination then the Court

may appoint a Commission under this Rule. The Court can issue commissions to

examine accounts only for the purposes specified in Section 75 (c). There is no

provision in the Civil Procedure Code for the appointment of a Commissioner to seize

the account books in the possession of the plaintiff on the ground of the defendant’s

apprehension that they would be tampered with. Court’s inherent powers cannot be

invoked for the purpose of issuing Commissions for examination or adjustment of

accounts38.

37 Chandu v. Kirpa Ram, AIR 1952 HP 6538 Padam Sen v. State of Uttar Pradesh, AIR 1961 SC 218

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.

v. 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.

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.

GENERAL PROVISIONS: ORDER XXVI RULES 15 TO 18

Order 26, Rules 15-18 of the Code of Civil Procedure relate to general provisions

relating to Commissions and Commissioners:

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 engaged39. There

is a conflict of judicial opinion on the point that if the party who has been ordered by

the Court to deposit the expenses of the Commission does not comply with the order

then the Commissioner can execute the order. The weight of the authority is of the

view that the Commissioner can execute the order in case of non-compliance by the

party. Such an order, directing the party to pay a certain sum to the Commissioner,

cannot be made a part of the decree as the Commissioner is not a party to the suit.

The ‘expenses of the commission’ do not include expenses of the other parties

to the litigation. Such expenses cannot be ordered to be deposited even under Section

151, Code of Civil Procedure40. But an order directing costs of Commissioner to be

borne by the petitioner in any event is within the jurisdiction of the court and is not

open to objection.

The object of requiring the expenses to be deposited beforehand is that the

Commissioner who is an Officer of the Court ought not to be driven to a separate suit

or execution to get his fees. Failure to deposit the required fees cannot afford a ground

for rejecting the report of the Commissioner, or striking off the defence or for

dismissing the suit. Courts in appointing Commissioners and in fixing their

39 Pramatha Nath Sen Gupta v. Sheikh Abdul Aziz Meah, AIR 1923 Cal 43640

remunerations under Order 26, Code of Civil Procedure act judicially and not

administratively.

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

powers41.

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 shares42.

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

court43. 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 nominally44.

Rule 16: Powers of Commissioners:

A Commissioner has the power to:

i. Examine the parties and witnesses

ii. Call for and examine documents

iii. 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

41 Syamala Pictures Limited v. M.V Siva Sarma, AIR 1960 Andh Pra 38742 M.C Manickam v. V.S.M Sivalingam Chettiar, AIR 1977 Mad 32443 Ramnarain Sah v. Basanti Lal Sah, AIR 1933 Pat 68144 Surendranath Sen Gupta v. Secretary of State, AIR 1934 Pat 316

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. It has been observed that an order rejecting the application for

issuance of a commission can be revised.

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. A Commissioner appointed to examine a witness has

no power to disallow questions he considers irrelevant45.

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

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.

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. When neither a direction is given by the Court, nor a

notice given by the Commissioner, his report is not admissible in evidence46. Where a

party fails to appear before the Commissioner in pursuance of the order of the Court,

the Court can proceed under Order 17, Rule 2 of the Code of Civil Procedure. The

Commissioner’s report which has been obtained in contravention of the statutory

requirements has to be set aside and a decision based on such a report cannot be

sustained.

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:

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

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.

DIFFERENT FACETS AS TO APPOINTMENT OF

COMMISSIONERS

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 Court’s 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 purpose 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.

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.

CONCLUSION

To conclude, it is important to note here that while commissions cater to a great deal

of needs of the courts in the process of administration of justice, a judicial function of a

court cannot be delegated to a commission. As we have seen earlier, courts can appoint

commissioners in consonance with their powers with respect to any particular case or suit or

proceeding. These commissions shall then do that particular duty for which they have been

issued.

BIBLIOGRAPHY

1. C.K Takwani, Civil Procedure (Lucknow: Eastern Book Company, 2001).

2. D.V Chitaley, Code of Civil Procedure Volume IV (Nagpur: All India Reporters

Limited, 1971)

3. M.P Tandon and Rajesh Tandon, The Code of Civil Procedure (Allahabad: Allahabad

Law Agency, 1990).

4. P.M Bakshi, Mulla-The Code of Civil Procedure (Bombay: N.M Tripathi Private

Limited, 1990).