In this article, Lakshay Kewalramani discusses Appointment of commission for local investigation under the Civil Procedure Code.

Civil Procedure Code, 1908 “An Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature”.  

Local Commissioners in layman language means an officer of the Court to make local investigation in a case as requested by any party. Generally, the fees of the Local Commissioner is Rs. 25,000. For example an application for appointment of a Local Commissioner is made to the court for investigation in an injunction matter where the Defendants have actually restrained the Plaintiff to enter the property of the Plaintiff.

Read further to understand some of the important provisions regulating Local Commissioner.

Order 26 Rules 9 – Commissions to make local investigations

In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.

Order 26 Rule 10 – Procedure of Commissioner

(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.

(2) Report and depositions to be evidence in suit. Commissioner may be examined in person – The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching 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 has made the investigation. –

(3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.

Commissions for scientific investigation, performance of ministerial act and sale of movable property.

Order 26 Rule 15 – Expenses of commission

Before issuing any commission under this Order, the Court may order such sum (if any) as it thinks reasonable for the expenses of the commission to be, within a time to be fixed, paid into Court by the party at whose instance or for whose benefit the commission is issued.

Order 26 Rule 16 – Powers of Commissioners

Any Commissioner appointed under this Order may, unless otherwise directed by the order of appointment, –

(a) Examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the Commissioner thinks proper to call upon to give evidence in, the matter referred to him;

(b) call for and examine documents and other things relevant to the subject of inquiry;

(c) at any reasonable time enter upon or into any land or building mentioned in the order.

Appointment of Commissioner under Section 75 of the CPC

Appointment of Commissioner in terms of part III i.e. matter “Incidental proceedings” of CPC is a provided by section 75 of the CPC. Inasmuch as this article is concerned with the appointment of Commissioner section 75 of CPC being the provision relevant, empowering the court, it would be opposite to refer the provisions.

Section 75 of the CPC Power of the court to issue commissions. – Subject to such conditions and limitations as may be prescribed, the court may issue a commission –

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition;

(e) to hold la scientific, technical, or expert investigation;

(f) to conduct 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;

(g) to perform any ministerial act.

SOME IMPORTANT CASE LAWS ON LOCAL COMMISSIONER

• It is not the work of the Court to gather evidence in favor of one party

In Padam Sen and another vs. The State of U.P., AIR 1961 SC 218, three Judge Bench of the Hon’ble Supreme Court the Court having no inherent power to appoint a Commissioner for any purpose not mentioned in section 75 of the CPC and Order XXVI of the Code. On behalf of the State it is urged that the Court can appoint a Commissioner in the exercise of its inherent powers saved in section 151 of the CPC for purposes which do not come within the provisions of section 75 of the CPC and Order XXVI of the CPC.

• Advocate Commissioner cannot be used for fact finding purposes and as such

In Devadoss vs. A. Duraisingh, reported in 2002 (3) CTC 748, the Madras High Court has held that the Advocate Commissioner cannot be used for such fact finding purposes and as such, the order passed by the Court below is not sustainable under law. It is always open to the decree holder to examine the concerned persons as witnesses and prove as to how, and in what manner they got the cable connection. Hence the point is answered accordingly.

This article is written by Lakshay Kewalramani and for more information contact by email id: [email protected] by Phone no. +91 9582021301