Introduction {75-78 r/w ORDER XXVI}
It is a well established rule of jurisprudence that all judicial proceedings must be conducted in the presence of parties and before the court. The statements of witnesses must be made before the court and should be written down. Many times, it becomes necessary to visit disputed places. But circumstances become such that it becomes impossible to conduct all these before the court. Under such circumstances such work is performed by means of commission. The purpose of issuing commission by the court is to impart complete justice to the parties to the suit. The power of issuing commission rests totally in the discretion of the judges. By issuing a commission in a particular case, the Court performs an in - depth investigation where the Court deems necessary. Issuing of Commission can be made by the Court if it gets an application from the parties, stating the necessity for the same or sue - moto. Section 75 to 78 of the Code of Civil Procedure, 1908 speaks about the discretionary power of the Civil Courts and Order 26 to issue commission for the furtherance of complete justice.
Who can be appointed as a commissioner?
Generally, there is a panel of commissioners which is formed by the High Court in which advocates are selected who are competent to carry out the commission issued by the Court. The person appointed as commissioner should be independent, impartial, disinterested in the suit and the parties involved in it. Such a person should have the requisite skills to carry out the commission. It will be a complete waste of time and resources of the Court and the parties if a person who cannot read and understand the accounts and documents is appointed as commissioner to adjust accounts. Similarly, a person who does not have the qualifications to conduct scientific investigation should not be appointed as a commissioner for such a task. The District judge supervises the subordinate Courts who have to take special care while appointing a commissioner. The same person should not be appointed by the Court in all commissions and a person who hangs about the Court should not be appointed.
What is the procedure for appointment of commissioner?
Every High Court has the power to make rules and regulations which are to be followed by the subordinate Courts. Procedure for appointment of a commissioner is provided in High Court rules in each state. The District Court notifies the bar about the number of vacancies of commissioners and the bar forwards the applications received for the same to the Court who then forwards it to the High Court with their recommendation. The term of such appointment is generally 3 years which can be extended by an order of the High Court but no commissioner can be appointed after 6 years of such appointment.
When can a commissioner be appointed by the Court?
According to Section 75 of the Code of Civil Procedure, 1908, the court may issue a commission for any of the following purposes:
● Examination of witnesses
● Perform a local investigation
● For adjustment of accounts
● To do a partition
● To hold investigation
● For conducting a sale
● For the performance of a ministerial act.
Examination of witnesses
Issuing of commission for the purpose of examination of witnesses is guided by Sections 76 to 78 and by Rules 1 - 8 of Order 26. Generally the examination of witnesses is done in an open court. The evidence of the witnesses is examined by cross - examination and recorded in the presence of all. However sometimes it may happen where the witness may not be able to come and appear in the court. The reasons for the inability to come to the Court must be reasonable. The Court relaxes the rule of attendance in the Court and issues commission only if the Court finds that the reason for non - attending the court is justified. The reasons for non - attendance of the witnesses may be on the grounds of illness, or if the witness resides beyond the local limits of the jurisdiction of the Court or any other reasons as the Court may find sufficient. The Court will issue an order of commission for examination of a witness on following grounds if such person: (order 26 rule 4)
● Resides beyond the jurisdiction of the Court. [order 26 rule 3(a)]
● About to leave from the jurisdiction of the Court. [order 26 rule 3(b)]
● A government servant and cannot attend without affecting the public service [order 26 rule 4(c)].
● Resides outside India and the Court decides that his evidence is necessary.
● The commission will be issued to any other Court within whose local limits such person is residing and if the person resides within the local limits of the Court issuing it, a commissioner can be appointed to carry out such commission. The provisions of the order 26, Rule 1 do not apply where the ill person resides outside the jurisdiction of the court and application has been made for issue of commission for his examination.
The provisions of the Court relating to summoning, attendance examination of witnesses, penalties imposed on the witness will apply on the person who has to give evidence or produce documents before the commissioner. The commissioner who is executing the order of the Court, within whose local limit such person resides or by the Court beyond whose jurisdiction such person resides, will be deemed to be a civil Court. If the commissioner is not a judge of the civil Court, the commissioner cannot impose penalties but can make an application to the Court which has issued a commission to impose penalties on the person. (order 26 rule 17).
Perform a local investigation
This is covered by Rules 9 and 10 of Order 26 of the Code of Civil Procedure. Courts can issue commission where it finds that there is a need to:
● To get a proper clarity regarding a matter in dispute; &
● To get a proper valuation of the property in dispute if any, or if any damages or mesne profits is involved in the claim of a suit, then finding the exact amount for the same.
● The main reason to conduct a local investigation by issuing a commission is to find out and obtain evidence which would bring clarity and help the court in determining the case. The investigation is performed where the evidence is of peculiar nature and which can only be ascertained by visiting and conducting an investigation at the spot.
Adjustment of accounts
Rules 11 and 12 of Order 26 of the Code of Civil Procedure, 1908 guide the action of conducting an investigation by the Court by issuing a commission to examine and for the adjustment of accounts. The Court issues gives necessary instructions to the commissioner and the reports provided by the Commissioner shall then be deemed to be evidence in the Court.
To do a partition
This is guided by Rules 13 and 14 of Order 26 of Code of Civil Procedure, 1908. In this case, the Court issues a Commission when a preliminary decree of partition of an immovable property has been passed by the Court. The duty of the Commission is to make the partition according to the guidelines provided by the decree. The Commissioner then divides the property into the required number of parts and then allots the shares to the parties. After partitioning and allotting the parts of the property to the rightful owners, the Commissioner prepares a report and provides it to the Court. After allotting, if any party objects or is unsatisfied with something, the Court hears their objections and passes a final allotment decree.
To hold investigation
Rule 10 - A of Order 26 of the Code of Civil Procedure, 1908 guides this cause of issuing a commission. When the Court finds that the issue of a case deals with any peculiar dispute which requires a scientific investigation and which cannot be successfully conducted in the Court premises, the Court issues a commission to investigate into the matter and inquires into the matter.
To sell property
This is guided by Rule 10 - C of Order 26 of the Code of Civil Procedure, 1908. The Court issues a commission when the Court requires selling a movable property on which the Court has custody and on which a case is pending. The selling of the property becomes necessary if the property cannot be properly preserved or if the court deems the selling necessary in the interest of justice. The Commissioner is directed to sell off the property and submit the report of the sale to the Court.
For the performance of a ministerial act
The statute guiding this is Rule 10-B of the Code of Civil Procedure, 1908. The Court issues a Commission when a requirement of the performance of a ministerial act comes. Ministerial Acts constitute works like accounting, calculation and works of the same nature. The ministerial acts do not require the application of judicial mind and if done by the Court, it would lead to wastage of the Court's precious time. The Court issues a commission who would perform all the ministerial acts as required and after completion the Commissioner shall provide the report to the Court. The Commissioner does not perform any judicial acts and does only the ministerial acts for which the Commission had been issued by the Court.
Procedure for carrying out the commission:
● The commissioner will conduct the local investigation, examination of witnesses, adjust accounts and other functions as ordered in the commission.
● After completion of the function, the commissioner will reduce the findings in writing and will make a report.
● The commissioner will submit the report signed by him along with the evidence recorded in the Court.
● The report of the commissioner will form a part of the record.
● While examining the report, the Court or the concerned parties, after prior permission, can examine the commissioner personally in open Court.
● If the Court is dissatisfied with the proceedings of the commissioner the Court can order a further inquiry on the commission or can issue a fresh commission and appoint a new commissioner.
Powers of the commissioner:
Order 26 Rule 16-18 Under order 26 rule 16, powers of a commissioner are as follows:
● Commissioner has the authority to examine the parties and the witnesses and any other person who the commissioner thinks can give evidence in the matter referred to him.
● Commissioner can direct the parties to produce any documents which are required to be examined.
● The Commissioner also has the power to enter and search any land or building with the permission of the Court.
● If the party fails to appear before the commissioner after the order of the Court, the commissioner can proceed ex-parte.
LIMITATIONS OF COMMISSIONS
The Commissioner has to assist the Court in carrying out the judicial functions but he cannot do the judicial functions on behalf of the Court. For example, a commissioner cannot value the suit property because it is a judicial function and only the Court has the power to do so. A commissioner can assist the Court by producing the documents such as plans of the suit property by which the Court can ascertain the value. It is not the objective of issuing a commission to procure evidence for the parties. Therefore, if a party has the apprehension that the opposite party will tamper with a document which is relevant to the case, the Court should not appoint a commissioner to seize such documents. According to order 26 rule 10 (2) of the CPC, the report and the evidence submitted by commissioners forms a part of the record but if the evidence is submitted without the report of the commissioner, such evidence does not form part of the record. The report forms an important part of the case and can only be challenged on sufficient grounds. The Court has the final say on how much reliance should be placed on the report submitted by the Court.
0 Comments