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[1]. 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.[2] 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.[3] According to Section 75 of the Code of Civil Procedure, 1908, the court may issue a commission for any of the following purposes:

1. Examination of witnesses
2. Perform a local investigation
3. For adjustment of accounts
4. To do a partition
5. To hold investigation
6. For conducting a sale
7. For the performance of a ministerial act.[4]

1. 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.[5] 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[6]. In the case of Paramhansa Ramkrishna v. Trimbak Rajaram, the court had issued a commission to record the evidence of the witness who was a Parmahansa. Parmahansa are people who practice various religious rituals and practices and due to which they remain and roam around naked[7].

Similarly in the case of Vinayak Trading Co. v. Sham Sunder & Co., the court had issued a commission for the recording of the statement of the witness, as the court had apprehended danger to the life of the witness if he becomes compelled to come to court.[8]

2. Perform a local investigation

This is covered by Rules 9 and 10 of Order 26 of the Code of Civil Procedure.[9] Courts can issue commission where it finds that there is a need to:

1. To get a proper clarity regarding a matter in dispute; &
2. 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.[10]

The main reason to conduct a local investigation by issuing a commission is to find out and obtain evidences which would bring clarity and help the court in determining the case. The investigation is performed where the evidences are of peculiar in nature and which can only be ascertained by visiting and conducting an investigation at the spot.[11] In the case of Southern Command Military Engg. Services Employees Coop. Credit Society v. V.K.K. Nambiar, the court had to issue a commission to find out whether the tenants had really occupied the premises in dispute of the suit. This was a peculiar situation which can only be ascertained by visiting the place and conducting investigation.[12]

3. 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.[13] 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.[14]

4. To do a partition

This is guided by Rules 13 and 14 of Order 26 of Code of Civil Procedure, 1908.[15] 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 of something, the Court hears their objections and passes a final allotment decree.[16]

5. To hold investigation

Rule 10 - A of Order 26 of the Code of Civil Procedure, 1908 guides this cause of issuing a commission.[17] 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.

6. To sell property

This is guided by Rule 10 - C of Order 26 of the Code of Civil Procedure, 1908.[18] 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.

7. For the performance of a ministerial act

The statute guiding this is Rule 10-B of the Code of Civil Procedure, 1908.[19] The Court issues a Commission when a requirement of the performance of a ministerial act comes. Ministerial Acts constitutes 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 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.[20] The Commissioner does not perform any judicial acts and does only the ministerial acts for which the Commission had been issued by the Court.[21]

End-notes:

1. Padam Sen v. State of UP, AIR 1961 SC 218
2. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802
3. Code of Civil Procedure, 1908, Sections 75 - 78
4. Code of Civil Procedure, 1908, Section 75
5. Ibid
6. Ramkrishna Kulvant Rai v. F.E. Hardcastle & Co. (p) Ltd., Air 1963 Mad 103
7. Parmahansa Ramkrishna v. Trimbak Rajaram, AIR 1978 Bom 176
8. Vinayak Trading Co. v. Sham Sunder & Co., AIR 1987 AP 236
9. Code of Civil Procedure, 1908, Order 26, Rules 9 and 10
10. Rule 9, Order XXVI, Code of Civil Procedure, 1908
11. Supra 1
12. Southern Command Military Engg. Services Employees Coop. Credit Society v. V.K.K. Nambiar, AIR 1988 SC 2126
13. Code of Civil Procedure, 1908, Order 26, Rules 11 and 12
14. Ibid, Rule 11
15. Ibid, Rules 13 and 14
16. Tushar Kanti v. Savitri Devi, AIR 1996 SC 2752
17. Code of Civil Procedure, 1908, Order 26, Rule 10 - A
18. Ibid, Rule 10 - C
19. Ibid, Rule 10 - B
20. Jagatbhai Punjabbhai Palkhiwala v. Vikrambhai Punjabbhai Palkiwala, AIR 1885 Guj. 34
21. Ibid.

Written by: Abhik Saha, student of Symbiosis Law School, Pune, 2nd Year, B.B.A LL.B (Hons.)