COMMISSIONS UNDER CPC

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This article is written by Ab Wahid Lone of Central University Of Kashmir, an intern under Legal Vidhiya

Abstract

The reason behind issuing commissions is to prevent any abuse of process during legal proceedings. A commission is an interim order that aids parties in the prosecution and protection of the subject matter of a suit. It is one of several forms of interim orders, including temporary injunctions, security for costs, court payment, and interlocutory orders. However, commissions are not issued to determine the substantive rights and liabilities of the parties regarding the subject matter of the suit or proceeding. Instead, they are an interim order that protects the parties’ rights during the pendency of the case.

Keywords: Civil Procedure Code, 1908, Commissions, Interim order, Interlocutory Order, Suit,

Introduction

Interim, as defined by the dictionary, means “for the time being”, “in the meantime”, “meanwhile”, “temporary”, “provisional”, “not final”, or “intervening”^[1]. When used as a noun, it refers to something that intervenes; when used as an adjective, it describes something that is temporary or provisional^[2]. In legal terms, interim or interlocutory orders are those passed by a court during the pendency of a case or proceeding that do not finally determine the substantive rights and liabilities of the parties regarding the subject matter of the suit or proceeding.

The commission is a type of interim order that includes temporary injunctions, security for costs, payment in courts, and interlocutory orders. It is issued by the court to assist the parties involved in the prosecution and protection of the subject matter of the suit. Its purpose is to provide support and guidance in the legal process.

It’s natural to wonder what happens when a witness cannot attend a court hearing. For instance, what would happen to the case? There are many reasons why a witness may not be able to attend a court hearing, such as sickness, infirmity, public interest, or residing beyond the local limits of the court jurisdiction. In such cases, the court has the power to issue a commission under the CPC (Civil Procedure Code). However, it’s a rule of jurisprudence that all proceedings must take place in the presence of the parties and before the court. Therefore, under certain unavoidable circumstances, such as when a witness cannot appear before the court, the court may issue a commission to carry out the necessary work. The primary aim of issuing a commission by the court is to ensure justice is served to the parties. The court issues a commission to assist the parties in the prosecution and protection of the subject matter of the suit. The commissioner performs all the necessary ministerial tasks and reports to the court. The key provisions related to the commissioner can be found in section 75 and order 26 of the code.

Commissioner

In the Code of Civil Procedure (CPC), a commission is a process by which a court assigns a person to perform specific tasks to decide a case. The person who carries out the commission is known as a court commissioner. A Commission is a person or group of people designated by the Court to perform functions that the Court cannot ordinarily carry out. They act as representatives of the Court and perform specific tasks assigned to them. The commissioner, in effect, is a projection of the court-appointed for a particular purpose. However, the commissioner does not perform any judicial acts but only the ministerial acts for which the commission was issued.

Who can appoint a commissioner?

According to the Code of Civil Procedure (CPC), the court that issues a commission can appoint a commissioner. Section 75 specifies that “the court” can issue a commission subject to certain limitations and restrictions. Therefore, the court responsible for deciding the lawsuit can appoint the commissioner. The commissioner is appointed to perform the functions for which the commission is issued. The court has discretionary power to appoint the commissioner, which any party can exercise by applying, or the court can issue the commission on its initiative.

Who can be appointed as a commissioner?

In general, the High Court forms a panel of commissioners who are competent advocates to carry out the court’s commission. The appointed commissioner must be unbiased, impartial, and not related to the suit or the parties involved. They must possess the necessary skills to carry out the commission.

Appointing a person who requires assistance to read and understand the documents or accounts as a commissioner to adjust accounts would be a waste of time and resources for the court and the parties involved. Similarly, a person lacking the qualifications to conduct a scientific investigation should not be appointed as a commissioner.

The District Judge supervises the subordinate courts, who must take special care while appointing a commissioner. The court should not appoint the same person in all commissions, and a person who lingers around the court should not be appointed.

Procedure for the appointment of a commissioner

Each High Court in India possesses the authority (Article 227) to establish rules and regulations that the lower courts must follow. The process for appointing a commissioner is outlined in the High Court rules of every state.

For example, The Delhi High Court Rules, 1967, specify the procedure for appointing a Commissioner in Delhi. Chapter 10 of these rules prescribes that the Court should form a panel of up to four commissioners, including a female lawyer, to record evidence. The District Court informs the bar of the number of vacancies for commissioners, and the bar receives the applications for the same. The bar forwards these applications to the Court with their recommendation, and the Court then forwards them to the High Court. The usual term of appointment for a commissioner is three years, which the High Court can extend. However, no commissioner can be appointed after serving six years in total.

Issue of commissions: Section 75

Sections 75 to 78 of the CPC deal with the court’s powers to issue commissions. Detailed provisions have been made in Order 26. The court has the discretion to issue a commission to ensure complete justice between the parties involved. The court can exercise this power either on an application by a party to the suit or of its own motion (suo motu)^[3].

When can the Court appoint a commissioner?

The Court can appoint a commissioner when the Court issues a commission. Section 75 allows courts to issue commissions for the following purposes:

To Examine any person;
To make local investigation;
To adjust accounts;
To make partition;
To hold investigation;
To conduct sale; or
To perform the ministerial act.

To examine witnesses: Section 76-78; Order 26 Rules 1-8

In legal proceedings, it is generally required that the testimony of a witness, whether they are involved in the case or not, should be given in open court and subject to cross-examination. However, a commission may be issued if a witness cannot attend due to illness, infirmity, or public interest^[4].

There are circumstances where the court may relax the rule of attendance, such as when the witness resides outside the court’s jurisdiction. In other cases, a witness who cannot appear in court for reasons such as being a Paramhansa (one who remains naked) or fearing for their safety can be examined on commission^[5].

However, if a party accused of fraud wishes to examine themselves on commission, the court may refuse as the opportunity to observe their demeanour will be lost^[6]. The power to examine a witness on commission should not be exercised based on social status or rank^[7].

The court may issue a commission to examine any person on interrogatories or otherwise under the following circumstances.

They live outside of the court’s jurisdiction^[8]
They are about to leave the court’s jurisdiction^[9]
They are a government servant who cannot attend without affecting public service.^[10]
They live outside of India, and the court deemed their evidence necessary^[11].

Provided a person cannot be ordered to attend a court in person under rule 19 of Order XVI, a commission will be issued for their examination only if their evidence is considered necessary in the interests of justice. However, if the court deems it necessary for the person to be examined on interrogatories, a commission for examination will only be issued if the court records its reasons.

Any court, not being a High Court, within the local limits of whose jurisdiction such person resides, or any pleader or other person appointed by the court issuing the commission, may receive such commission. The court can issue a commission either on its own motion or on request by any party or witness^[12]. Evidence collected will be added to the record.

To Make Local Investigation: Order 26 Rules 9 and 10

In any legal case, the court has the power to direct a person to conduct a local investigation and report back to the court. This is done to (a) clarify any disputed matters or (b) determine the market value of a property, amount of damages, mesne profits, or annual net profits^[13]. The purpose of a local investigation is not to gather evidence that can be presented in court but to gather evidence that can only be obtained on the spot^[14]. This kind of evidence helps the court properly understand and assess the evidence on record and resolve any doubts. Local investigation also aids in deciding the question in controversy, for example, whether the suit premises are occupied by the tenant or by strangers^[15].

To Adjust Accounts: Order 26 Rules 11 and 12

When a legal case requires an examination or adjustment of accounts, the court can choose a person to carry out this task by issuing a commission^[16]. The court will provide the necessary instructions to the Commissioner to carry out the examination or adjustment. The findings and any report made by the Commissioner can be used as evidence in the case^[17].

To Make Partition: Order 26 Rules 13 and 14

When a court passes a preliminary decree for the partition of an immovable property, it has the power to issue a commission to a person of its choice to carry out the partition or separation as per the rights declared in the decree^[18]. After conducting a necessary inquiry, the Commissioner will divide the property into the required number of shares and allocate them to the parties. The Commissioner will then prepare a report that assigns each party’s share, distinguishing them by boundary lines, and send it to the court. After hearing the objections of different parties, the court will make the final allotment^[19].

To Hold Investigation: Order 26 Rule 10-A

If a suit involves a scientific investigation that cannot be conveniently conducted before the court, the court may issue a commission to a person of its choice, directing them to inquire into the matter and report back to the court if it thinks it necessary or expedient in the interest of justice.

To Sell Property: Order 26 Rule 10-C

In any legal case, if it becomes necessary to sell any movable property that is in the custody of the court while the case is ongoing and it cannot be conveniently preserved, the court may issue a commission to an appropriate person to conduct the sale and report back to the court. The court may do this if it is deemed necessary or expedient in the interests of justice, and the reasons for doing so will be recorded.

To Perform Ministerial Act: Order 26 Rules 10-B

Where any question arising in the suit involves the performance of a ministerial act which cannot be conveniently performed before the Court, in that case, the Court may issue a commission to a person it deems fit. This person will be directed to perform the ministerial act and report to the Court. The Court may do so only if it believes it is necessary or expedient in the interest of justice and must record reasons for doing so.

The Amendment Act of 1976 introduced Rules 10-A to 10-C, which provide for the issue of commissions for scientific investigation, sale of movable property or performance of the ministerial act. Ministerial work refers to administrative tasks that a Court needs to carry out which are not of a judicial nature. Examples of such tasks include accounting and calculation. Such work can take up much of the Court’s valuable time, which can otherwise be used for other essential judicial functions. To avoid this, a commissioner is appointed by the Court to carry out these tasks on behalf of the Court. The commissioner appointed by the court does not perform any judicial function.^[20]

Powers of Commissioners: Order 26 Rules 16-18

The commissioner can summon and procure the attendance of witnesses and parties to a suit for examination. He can also call for and examine documents, enter any land or building mentioned in the order, and proceed ex parte if the parties do not appear before him despite the court’s order. Furthermore, Rule 18-B empowers the court to set a date for the return of a commission.

Expenses: Rule 15

Rule 15 provided that the court may if it thinks fit, order the parties requiring the commission to deposit the necessary expenses within the Fixit period.

Commissions Issued for Foreign Tribunals: Order 26 Rules 19-22

According to Rules 19 to 22, the High Court can issue a commission to examine a witness if it is satisfied that a foreign court within its appellate jurisdiction needs the witness’s evidence for a civil proceeding.

Limitations

A court cannot delegate its judicial function to a commission. A commission can be appointed to gather data to assist the court. A commission cannot be appointed to scrutinize votes but can separate undisputed votes from disputed votes or count votes. A civil court cannot appoint a commission to seize account books in the possession of any party.

Issuance of commission by Supreme Court and High Courts

Section 79 and Order 26 limitations don’t apply to the Supreme Court or High Courts under the Constitution to issue commissions. They have inherent powers to issue commissions in appropriate cases beyond Order 26 provisions.

Report of Commissioner: Evidentiary value

The Commissioner’s report would furnish prima facie evidence of the facts and data collected by the Commissioner. It would only be rejected if sufficient grounds are provided. The court will have to determine the credibility of the data presented in the report and decide on how much it should be acted upon.

It is important to note that statements made in the commissioner’s report which are beyond the scope of their appointment cannot be used as evidence^[21]. However, suppose the report indicates that the tenant no longer occupies the premises and strangers have taken over instead. In that case, it may be inferred that the tenant has sublet the property. In such cases, the commissioner’s report can be considered legal evidence^[22].

Conclusion

It is evident that several principles govern the appointment and working of a Court Commissioner. Section 75 CPC provides a broad spectrum of situations where a court commissioner can be appointed. The purpose of appointing a commissioner is to aid in investigation in cases where the court has limitations or lacks expertise. However, it is an established legal principle that a court commissioner cannot be appointed to collect evidence. The report of a Court Commissioner is a piece of legal evidence, but it is rebuttable by other evidence. The court commissioner’s role arises after the parties have presented their evidence, and their appointment is to settle controversies or resolve doubts that the court cannot solve through its ordinary functions. The discretion of appointing a court commissioner is guided by established legal principles regularly laid down by the authorities.

References

C.K. Takwani, Civil Procedure with Limitation Act, 1963, Eastern Book Co., (9th ed ).
Banoo, Shaheen. “The Power of the Courts to Issue Commission under Civil Procedure Code, 1908 – An Exposition.” Social Science Research Network, 2020, https://doi.org/10.2139/ssrn.3669312. (Last visited Oct. 12 2023)
Appointment Of Commission. https://legalserviceindia.com/legal/article-8323-appointment-of-commission.html (Last visited Oct. 13 2023)
Issue of Commissions – Law Times Journal. https://lawtimesjournal.in/issue-of-commissions/(Last visited Oct. 13 2023)
Purpose and Powers of the Court to Issue Commissions – Legal Articles – Free Law. https://www.freelaw.in/legalarticles/Purpose-and-Powers-of-the-Court-to-Issue-Commissions (Last visited Oct. 14 2023)

^[1] concise Oxford English Dictionary (2002) at p. 738

^[2] Bank of Maharashtra v. M.V. River Ogbese, AIR 1990 Bom 107 at p. 2411.

^[3] Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161

^[4] RamKrina vs. F. Hardcastle AIR 1963 and Filmistant Pvt. Ltd. vs. Bhagwandas, (1970) 3 SCC

^[5] Paramhansa Ramkrishna v. Trimbak Rajaram, AIR 1978 Bom 176

^[6] Satish Chandra v. Kumar Satish Kantha, AIR 1923 PC 73

^[7] A. Marcalline Fernando v. St Francis Xaviour Church, AIR 1961

^[8] Rule 4

^[9] Ibid.

^[10] Ibid.

^[11] Ibid

^[12] Rule 2