This article is written by Aakash M Nair, a 4th year Student of Delhi Metropolitan Education law School affiliated to GGSIP University. In this article he discusses the role and functions of a commissioner under Civil Procedure Code.

Under CPC, a commissioner is appointed to fulfill certain functions which are essential for the Court, in order to dispense full and complete justice. Section 75 and order 26 of the code provides the key provisions which relates to the commissioner. In this article, we will try to answer the most basic questions which comes to our mind when we begin to understand the concept of issue of commission and appointment of commissioner.

What is meant by issue of commission by the Court?

Commission is instruction or role given by the Court to a person to act on behalf of the Court and to do everything that the Court requires to deliver full and complete justice. Such person who carries out the commission is known as a Court commissioner.

For example, whenever the Court has to do a local investigation, a commissioner is appointed who conducts the local investigation. Similarly, to record the evidence of a witness who cannot come to the Court for evidence, the Court can issue a commission for recording of such evidence.

Who can appoint a commissioner?

Under CPC, the Court which issues the commission can appoint the commissioner. Section 75, provides that “the Court” can issue commission provided the limitations and restrictions applicable. Therefore, the Court who has to decide the suit can appoint the commissioner. Commissioner is appointed to carry out the functions for which the commission is issued. Court has the discretionary power to appoint the commissioner and such power can be exercised on the application of any of the parties or the Court can issue the commission suo moto.

We will understand the procedure followed by the Courts to appoint the commissioner later in this article.

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 task. 

The District judge supervises the subordinate Courts who have to take special care while appointing a commissioner(1). 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 (Article 227) to make rules and regulations which is to be followed by the subordinate Courts. Procedure for appointment of a commissioner is provided in High Court rules each state.

For instance, in Delhi, Chapter 10 of Delhi High Court rules, 1967, provides procedure for appointment of Commissioner. The following procedure is followed by the Delhi High Court(2):

• A panel of not more than 4 commissioners is to be formed which consists of young persons including a lady lawyer, appointed by the Court for recording of evidence.
• The District Court notifies the bar about the number of vacancies of commissioners and the bar forward 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?

A commissioner can be appointed by the Court when a commission is issued by the Court. According to Section 75 of CPC, the Court has the power to issue a commission to carry out the following functions:

To examine witnesses: Order 26 Rule 1-8

The general rule of evidence is to bring the evidence before the Court and must be recorded in open Court. But in extraordinary circumstances, the appearance of witness is dispensed and the witness is allowed to depose evidence without appearing in Court.

Appearance is exempted if:

1. A witness is bedridden or is unable to attend the Court due to sickness or infirmity, in such circumstances the Court can exempt the appearance of witness and allow the witness to depose evidence to a commissioner appointed for the same.  Such a witness will have to submit a certificate signed by a registered medical practitioner as evidence of sickness or infirmity. (Order XXVI Rule 1, C.P.C.) In such situations the Court will exercise its powers provided under order 18 rule 4 and appoint a commissioner for examination on interrogatories(3).
2. A witness apprehends danger to his life and informs the Court about such danger and if the Court thinks that recording evidence of the witness is necessary, the Court may issue commission to record evidence of such witness. Where a party accused of fraud seeks himself to be examined with commission, the Court must not issue commission and avoid person of such demeanor to abuse the procedure.
3. The witness is a pardanashin lady whose attendance is exempted under Section 132 of the code.
4. The witness is a Civil or Military Officer of the Government, cannot attend without detriment to the Public Service. (Order XXVI Rule 4)
5. If the Court thinks that it is in the interest of justice or expeditious disposal of the case or for any other reason, the Court can issue a commission notwithstanding any of the rules provided in the order. (order 26 rule 4A)
6. A person who cannot be ordered to attend the Court in person under Order 16 rule 19 can be examined by the Court by issuing a commission. (order 26 rule 4 proviso)
7. A commission can be issued for examination of a person detained in prison. (order 16A rule 7)

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 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 commission to impose penalties on the person. (order 26 rule 17)

To make local investigations: Order 26 Rule 9-10

The Court can appoint commission for local investigation if the Court is of the opinion that a local investigation is necessary:

1. For proper clarity of any matter in dispute, or
2. In ascertaining the market value of any property, or
3. To know the amount of mens rea or annual net profits.

While appointing a commissioner for, the Court has to examine (4).

1. The pleadings of both the parties,
2. Relief claimed,
3. The real controversy between the parties.

It is important to note that the object of a commission is not to collect evidence which can be brought to the Court by the parties but to acquire evidence from a fixed spot. It is also used to enable the Court to have more clarity regarding the facts of the case.

Commissioner should not be appointed to provide pre-trial decree against the defendant, that is, the Court should not appoint a commissioner to provide the relief claimed, directly or indirectly, by the plaintiff before the final decree is passed. It is important because such commission will prejudice the rights of the defendant to a fair trial.   

To adjust accounts: Order 26 Rule 11-12

In a suit, if the Court thinks that it is necessary to verify the accounts involved in the suit, the Court may issue a commission to make the examination of such accounts and may appoint a commissioner. (rule 11) The Court takes special care while making such an appointment. The Court appoints only such a person who is competent to examine such records. The reports submitted by the commissioner is considered evidence by the Court. (rule 12)

To make partition: Order 26 Rule 13-14

The Court can issue commission for partition of a suit property. Suppose, the Court has passed a preliminary decree for partition of the suit property, in such a situation, the Court can appoint a commissioner to carry out the decree. (rule 13) The commissioner has to divide the property in shares and distribute it among the parties according to the suit decree. Commissioner has to submit a report after such partition is completed. (rule 14)

To hold investigation: Order 26 Rule 10-A

When the Court has to conduct a scientific investigation, the Court can appoint a commissioner who will then be responsible for such investigation. For example, to identify the substance used as a raw material in the subject matter, the Court may issue commission to hold scientific investigation. (rule 10-A)

After conducting such investigation the commissioner has to submit the report within the time prescribed by the Court.

To sell the property: Order 26 Rule 10-C

Suppose the subject matter of a suit is a movable property which cannot be preserved by the commissioner and if it is not sold, its value cannot be recovered. Therefore, the Court appoints a commissioner who is given the responsibility to sell the property and submit a report along with the proceeds received from the sale of such property.

To do ministerial work: Order 26 Rule 10-B

Ministerial work means the administrative work which the Court has to do, but are not of judicial nature like accounting, calculation, etc. Such work takes a lot of valuable time of the Court which can be used in other important judicial functions.

Therefore, the Court appoints a commissioner to do such works on behalf of the Court. It is important to note that commissioners cannot do judicial functions. (5)

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 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.   

To summarize, the commission can be issued in the following circumstances:

1. To make a local investigation.
2. To adjust accounts.
3. To make partition.
4. To hold investigation.
5. To conduct sales.
6. To perform ministerial work.

Powers of the commissioner: Order 26 Rule 16-18

Under order 26 rule 16, powers of a commissioner are as follows:

1. 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.
2. Commissioner can direct the parties to produce any documents which is required to be examined.
3. Commissioner also has the power to enter and search any land or building with the permission of the Court.
4. If the party fails to appear before the commissioner after the order of the Court, the commissioner can proceed ex parte.

Whether the commissioner will be entitled to a Remuneration?

There is no provision in the CPC which expressly provides for remuneration to the commissioner but Rule 15 of order 26 provide for the expenses which might be incurred by the commissioner. While issuing commission, the Court directs the applicant to deposit a sum of amount which can be used by the commissioner to account for the expenses which might be incurred by him while carrying out the commission. The Court has the discretionary power to make directions make any other direction regarding the remuneration.  

What are the limitations on the commissioner?

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.

What is the evidentiary value of the report submitted by the commissioner?

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. (6)

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.

What are the key takeaways?

The commission is issued by the Court to provide full and complete justice.The Court has the power to issue commission in certain circumstances. Commissioner is appointed by the Court to carry out the commission issued by the Court. He assists the Court by taking evidence, conducting local investigations, doing ministerial work and submits a report after carrying out the commission.

A commissioner is, generally, an advocate who is in a panel formed by the High Court and from such a panel the Court appoints a commissioner. The procedures for the appointment are formulated by the High Court.

The commissioner can exercise certain powers granted by the Court to carry out the commission. He cannot perform the judicial function of the Court. He can only assist the Court in performing such functions. The evidence with the report submitted by him in the Court forms part of the record.

References

1. “Commissions and Letters of Request – Delhi High Court.” http://delhiHighCourt.nic.in/writereaddata/upload/Courtrules/Courtrulefile_vs9kzqs0.pdf.
2. “Commissions and Letters of Request – Delhi High Court.” http://delhiHighCourt.nic.in/writereaddata/upload/Courtrules/Courtrulefile_vs9kzqs0.pdf.
3. “Sh. Sudhir Kumar vs Sh. Virinder Kumar Goel on 6 … – Indian Kanoon.” 6 Apr. 2016, https://indiankanoon.org/doc/177231580/.
4. “Sarala Jain, W/O Mahaveer Jain, 40 … vs Sangu … – Indian Kanoon.” 19 Feb. 2016, https://indiankanoon.org/doc/83956784/.
5. “Jagatbhai Punjabhai Palkhiwala … vs Vikrambhai … – Indian Kanoon.” https://indiankanoon.org/doc/1133556/.
6. “Kitnammal vs Nallaselvan And Ors. on 19 March, 2005 – Indian Kanoon.” https://indiankanoon.org/doc/112613/.

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