Commissio

ns under
the Civil
Procedure
Code(Sec.
75-78,
Order
XXVI)
SUBMITTED BY-
HAMMAD ALI SEC-A
B.A.,LLb
 Acknowledgment
I extend my heartfelt gratitude and sincere thanks to my C.P.C. Law
teacher for his encouragement and full cooperation throughout the
completion of this assignment. Without his guidance and support this
assignment would never have been possible.
Commissions under the Civil Procedure
Code

CONTENTS

1. Introduction

2. commission to examine witnesses: Rules

3. Commission for local Investigation: Rules

4. Other Commissions

5. Commissions and commissioners: General

Provisions

6. Relevant rules and provisios

7. Commissions issued by foreign courts and

tribunals: Rules

8. Letters of Request
 9. Conclusion

Commissions under the Civil

Procedure Code

INTRODUCTION
The general law as to Commissions and Letters of Request is contained in
Sections 75 to 78 and Order XXVI of the Code of Civil Procedure, and the
Forms to be used are Nos. 7 or 8 of Appendix H of Schedule 1 .Interim or
interlocutory orders are those orders passed by a Court during the pendency
of a suit or proceeding which do not determine finally the substantive rights
and liabilities of the parties in respect of the subject matter of the suit 1. After
the suit is instituted by the plaintiff and before it is finally disposed of, the
Court may make interlocutory orders as may appear to the Court to be just
and convenient2. Interim or interlocutory orders are generally made in order
to assist the parties or for the purpose of protection of the subject matter of
the suit. Commissions fall within the ambit of interlocutory orders. Courts
are constituted for the purpose of doing justice and must be deemed to
possess all such powers as may be necessary to do the right and undo the
wrong in the course of administration of justice 3. Appointment of
Commissioner is one such power given to the Courts in order to help them
to serve this purpose.

1
A.Marcalline Fernando v. St. Francis Xavier Church, Kottah, AIR 1961 Mad 31.

2
Abdul Jalil v. State of Uttar Pradesh, AIR 1984 SC 882.

3
Achhru Mal v. Maula Bakhsh, AIR 1925 Lah 29
Commission for local inquiry and accountsWhenever it becomes necessary in the
course of a suit to appoint a Commissioner to make a local inquiry or to examine
accounts (see Order XXVI) the Judicial officer who makes the order for such
appointment should write the order with his own hand, and specify therein: (a) the
precise matter of the inquiry: (b) the reason why the evidence bearing on that matter
could not reasonably have been taken in the usual way at the trial in Court. A Court
cannot issue a Commission merely to save itself the time and trouble of examining
witnesses.

Such orders are made to assist the parties to the suit in the prosecution of their
case or for the purpose of protection of the subject-matter of the suit. Thus,
they protect rights of the parties. They enable the court to grant such relief or to
pass such order as may be necessary, just or equitable. They also prevent any
abuse of process during the pendency of proceedings. The power of
Appointment of Commissioner is an important weapon in the armoury of the
Court to enable the Court to assist the parties in the suit and to protect their
rights, speed up proceedings, get evidence and help the Court to come to an
informed and reasoned decision. This in turn serves the greater purpose of
timely Justice delivered with fairness and in keeping with the laws of the
land and the principles of natural justice.

Whenever the Court passes an order to issue a Commission a Commissioner

is appointed by the Court. The Courts jurisdiction and power to appoint a
Commissioner should flow from Section 75 read with Order 26 and if the
jurisdiction to pass an order appointing the Commissioner cannot be traced
either to Section 75 or to Order 26 the Court cannot fall back upon Section
151 to pass such an order appointing the Commissioner 4. The Commissioner
carries out the purpose for which the Commission is issued. He assists the
Court and submits a report to the Court. His report is admissible in evidence

4
Damodaran v. Karimba Plantations Company Limited, AIR 1959 Ker 358.
but is not binding on the Court. The Commissioner exercises no judicial
function and is duty bound to follow the instructions of the court 5. His report
may or may not be used by the Court in coming to a decision.
Commissions (Secs. 75-78, Order XXVI)

Sometimes, a witness may be unable to attend the court because of sickness or

infirmity or detriment to the public interest, or because he resides beyond the
local limits of the court's jurisdiction. In such cases, the court issues a
commission.

Sections: - 75-78 deal with the powers of the court to issue commissions and
the detailed provisions have been made in Order 26. Sec. 75 enacts that a court
may issue a commission:

- To examine any person (witness).

- To make local investigation.

- To examine accounts.

- To make partitions.

- To hold scientific investigation.

- To conduct sale of a property.

- To perform any ministerial act.

(It may be noted that for issuance of a commission, Sec. 75 is not exhaustive
but illustrative).

5
Debendranath Nandi v. Natha Bhuiyan, AIR 1973 Orissa 240
 Commission to Examine Witnesses

The court has discretion to relax the rule of attendance of a witness in court
under certain circumstances. O. 26, R.1 lays down that the court may issue a
commission for the examination on interrogatories or otherwise of any person
- when such person resides within the local limits of court's jurisdiction, and is
exempted under the Code from attending the court, or is from sickness or
infirmity unable to attend the court.

Rule 1 deals with cases in which court may issue commission to examine
witness. A Commission to examine witnesses can only be issued in the cases
specified in this rule and Rules 4 and 5 and in no other case 6. Therefore, a
Commission should not be issued for the examination for the head of a mutt on
the ground that it is derogatory to a person in his position to appear personally
in Court as a witness. But a Commission may be allowed if the head of the
mutt is summoned by the opposite party and the Court thinks that the
application is vexatious7. A Commission may also be issued with the consent of
the parties in cases not falling under this rule 8. If the report of one
Commissioner is unsatisfactory, the Court can remit it to the same
Commissioner or appoint another Commissioner9. It has been held that a Court
can issue Commission even after remand10. The Court can, suo motu, cancel the
previous order issuing Commission though there is no express provision in this

6
P.M Bakshi, Mulla-The Code of Civil Procedure (Bombay: N.M Tripathi Private Limited, 1990)at
871.

7
Veeradram v. Natraja (1905) 28 Mad. 28 as cited in T.L Venkataraman Aiyar, Mulla on the Code of
Civil Procedure Volume II (Bombay: N.M Tripathi Private Limited, 1967) at 1319.
8
Gopal Das v. Jagannath, AIR 1938 All 370.

9
Supra note 8

10
Achhru Mal v. Maula Bakhsh, AIR 1925 Lah 29.
regard11. The successor of a Judge has the power to cancel the issue of a
Commission made by his predecessor12.

The issue of a Commission is a matter of judicial discretion. The Supreme

Court in Filministan Ltd. Bombay v. Bhagwandas13 said that the interpretation
that a Commission should issue as a matter of right unless the application for
Commission amounts to an abuse of the process of the Court is not correct.
Their Lordships observed that the fact that witnesses cannot be cross-examined
properly, or their examination will entail heavy costs are not sufficient
circumstances to interfere with the discretion of the Court. The question
whether the witnesses will appear before the Commissioner is also irrelevant. It
is for the party to produce the witnesses before the Commissioner. As a general
rule the discretion will not be exercised in favour of the applicant unless:

The application is made bona fide

The issue in respect of which the evidence is required is one which the
Court ought to try
The witness to be examined would give evidence material to the issue
There are some good reasons why the witness cannot be examined in
Court

But the Court does not have absolute discretion or inherent power to issue a
Commission except when authorized by the provisions of the Code, nor
according to the general trend of opinion is the Court bound to issue a
Commission simply because all the conditions laid down in the rule exist.
Where the examination on Commission may result in manifest injustice to any
party, or where it is not calculated to permit the evidence being tested fairly, or

11
Narain Dass v. Karam Chand, AIR 1968 Delhi 226.
12
Chettyar v. Maung Ba Chit, AIR 1930 Rang 315.

13
AIR 1971 SC 61.
when the application is made to avoid cross-examination before the Court, the
Court is not bound to issue a Commission 14. The demeanour of a witness has
value only when the evidence is evenly balanced but it is not so important as to
take away the right to issue commission under this rule in deserving cases 15.
The fact that the witness sought to be examined is interested, or that the case of
the party asking for the issue of the Commission is improbable or that the
Judge thinks that no useful end would be attained by the evidence is however,
no ground per se for refusing to issue a commission 16. It is open to the Court to
order the issue of commission on condition of the applicant depositing in court
security for the costs of the opposite party in regard to the commission 17.

Rule 1 also exempts certain persons from being examined as witnesses before a
commission.

A Religious preceptor is not entitled to be examined on Commission on the

ground of his social status18. Thus a Bishop is not entitled to be examined on
Commission owing to his rank as a spiritual head and dignitary of the church19.

Section 132 of the Code of Civil Procedure recognizes the right

of pardanashin ladies who can claim the privilege of being examined on
Commission20. A Commission ought not to be refused to persons who owing to
sickness or infirmity are unable to attend Court. If sickness or infirmity is
alleged, the Court will have to take into account the character and gravity of the

14
Rahuria Ramkali Kuer v. Chhathoo Singh, AIR 1961 Pat 210.

15
In Re: Subramanian Chettiar, AIR 1955 Mad 210

16
D.V Chitaley, Code of Civil Procedure Volume IV (Nagpur: All India Reporters Limited, 1971)at 101.
17
Raghubir Dayal Prasad v. Ramekbal Sah, AIR 1986 Pat 83.

18
Panachand Chhotalal v. Mansharlal Nandlal, AIR 1917 Bom 155

19
A.Marcalline Fernando v. St. Francis Xavier Church, Kottah, AIR 1961 Mad 31.
20
Rahuria Ramkali Kuer v. Chhathoo, AIR 1961 Pat 210.
sickness and the risk consequent upon the refusal to issue a Commission 21. A
medical certificate tendered in support of an application for the issue of a
commission on the ground of illness is inadmissible in evidence 22. Infancy
however is not a ground for the issue of a Commission.

It is the duty of the party obtaining the Commission to take all such steps as are
necessary to secure the attendance of the witnesses before the Commissioner.
The examination is on the same footing as that in Court and the opposite party
has the right to cross-examine the witnesses. However if the cross-examination
is unnecessarily prolonged or amounts to an abuse of process, the Court can fix
a time limit and order the cross-examination to be finished. But the
Commissioner has no power to disallow questions and give ruling as to points
about admissibility of evidence23. It is also not open to any of the parties to
move the Court issuing the Commission to obtain directions on the point
whether the Commissioner has the power to disallow questions considered
irrelevant by him24. The commissioner also has no power to record his findings
on the basis of the evidence recorded by him on Commission25. The purpose of
examining a witness on commission will be adequately served by merely
issuing interrogatories for his examination.

Rule 1 is not applicable to execution proceedings. An order made under this

rule in the exercise of discretion cannot be interfered with in revision unless
there has been a wanton abuse of the process of the Court or the trial court has
gone wrong on some vital principle.

Rule 2 deals with Order for Commission. A commission may be issued

under this rule for the examination of a witness either suo motto or on the

21
Supra note 18
22
T.N Govindarajulu v. Lakshmi Ammal, AIR 1961 Mad 158.

23
Ram Krishna Dalmia v. Feroz Chand, AIR 1960 Punj 430.

24
Supra note 23
25
Krishna Sharan Shukla v. Bali Bhadar Shukla, AIR 1952 All 140.
application of a party or a witness. It is to be noted that the rule requires that
the application of a party or of a witness is to be supported by affidavit or
otherwise. It does not require that the affidavit must be made by the party or
the witness himself26.

Rule 3 contemplates the issue of a commission by a Court to any person for

examining a witness or a party residing within the local limits of its
jurisdiction. However the failure to issue the Commission to the Commissioner
will not invalidate the examination actually held by him pursuant to the order
of the Court. The omission to actually issue the commission is only an
irregularity which if not objected to before the examination commences will be
deemed to have been waived27.

Rule 4 provides that commissions can also be issued for:

- Any person resident beyond the local limits of court's jurisdiction.

- A person about to leave the court's jurisdiction.

- A government servant, if the court is of the opinion that he cannot attend

without detriment to the public service.

Rule 4 is exhaustive and provides for all cases in which the legislature
intends that a Commission should issue. The power of a court to issue a
Commission is not more restricted under Rule 4 than under Rule 1 28. A
party is entitled to the issue of a Commission if it is clear that the witness is
residing outside the jurisdiction of the Court. It is not for the Court to
decide whether the party will be benefited or not by the issue of a
26
Ram Sewak Koeri Mosadi Koeri v. Harihar Prasad Singh, AIR 1927 Rang 175.

27
Dinanath Law v. Metharam Navalrai and Co., AIR 1921 Cal 852.
28

Ramalinga Iyar v. Sankaranarayana Ayyar, AIR 1929 Mad 192.

 Commission but a matter which is entirely up to the party 29. Examination of
a witness on Commission as provided under Rule 4 stands on a slightly
different footing from the issuing of summons to a witness under Order 16
Rule 1. In the former case the matter is in the discretion of the Court
whereas in the latter case summons are issued as a matter of course. The
term resident in this Rule should not be held to mean permanently
resident. A man who casually makes a flying visit to a place for 10 or 20
days may not come within the meaning of resident as used in this Rule but
a witness who is in a particular place and is proved to be likely to remain
there for more than six months must be held to be a resident of that
place30. Under this Rule a Court is usually more lenient while processing the
application of the defendant asking his evidence to be taken on Commission
as opposed to an application filed by the plaintiff asking for his evidence to
be taken on Commission. This is because the plaintiff has the choice of the
forum and having chosen to institute his suit in a particular Court he cannot
ask for his examination elsewhere. This Rule applies only to suits and not to
execution proceedings.

Rule 4A (inserted by 1999 Amendment), however, lays down that

notwithstanding what is stated above, any court may issue a commission in
respect of any person resident within the local limits of its jurisdiction, if it is
in the interest of justice to do so, or if it is necessary for the expeditious
disposal of the case, or for any other reason.
However, where a party accused of fraud seeks to examine himself on
commission, the court may refuse the prayer since the opportunity of noting
his demeanour may be lost. The power, however, should not be exercised on
the ground that witness is a man of rank or having social status. The power

29
T.L Venkataraman Aiyar, Mulla on the Code of Civil Procedure Volume II (Bombay: N.M Tripathi
Private Limited, 1967)at 1321.

30
In Re: Subramanian Chettiar, AIR 1955 Mad 210.
 may be exercised if a party or witness apprehends danger to his life if he
appears before the court as in Vinayak Trading Co. v Sham Sunder & Co.31.
Similarly, a witness (a sadhu), who always remained in naked condition, can
be examined on commission.

A commission for examination on interrogatories shall not be issued without

recording of reasons by the court. R.2 lays down that the court may issue a
commission either suo motu or on the application of any party/ witness. Sec.
76 lays down that a commission may be issued to any court (not being a High
Court), situated in any other State, and having jurisdiction in the place where
the person to be examined resides. The court receiving such a commission
duly executes it, by examining such a person and returns it to the issuing court
along with the evidence taken.

The evidence taken on a commission shall form part of the record. It shall,
however, not be read in evidence in the suit without the consent of the party
against whom it is offered, unless (a) the person, who gave the evidence, is
beyond the court's jurisdiction, or dead or unable from sickness or infirmity to
attend the court, or exempted from personal appearance in court, or is a
government servant, or (b) the court in its discretion dispenses with the proof
of any of such circumstances (i.e. notwithstanding proof that the cause for
taking such evidence by commission ceased at the time of reading the same)
(R.8).

Rule 5 deals with the issue of a Commission for the examination of witnesses
residing outside India. The Courts usually allow a person residing abroad to be
examined on Commission but they can exercise discretion in this regard and
refuse to order issue of Commission to examine a witness residing abroad if
they feel that there are adequate reasons to do so. The fact that witnesses cannot
be effectively cross-examined or their examination will entail heavy costs are
31
AIR 1987 A.P. 236
not adequate reasons to refuse issue of a commission in case of persons
residing abroad32. When a witness residing in a foreign country is sought to be
examined on Commission the Court should issue a Letter of Request addressed
to the presiding officer of the Court within whose jurisdiction the witness
resides, requesting him to have a Commissioner appointed and to have the
witness examined before such Commissioner and forward the evidence to the
issuing Court after it has been duly authenticated.

Rule 6 states that Every Court receiving a Commission for the examination of
any person shall examine him or cause him to be examined pursuant thereto. It
has been held that a party who has not joined in a Commission is entitled to
cross-examine the witness examined under the Commission.

Rule 7 deals with Return of commission with depositions of witnesses. The

return should show that that the evidence was recorded as the law requires ie.
in the language in ordinary use in the proceedings before the Court and duly
read over and signed by the witnesses. The report of a Commissioner under this
Rule will form a part of the record and is admissible in evidence.

Rule 8 lays down when evidence on Commission may be read as evidence in a

suit. Evidence taken on Commission cannot be used without the consent of the
opposite party unless the conditions of clause (a) to this Rule are fulfilled or the
record shows that the discretion under clause (b) of this Rule has been
exercised by the Court. The Allahabad High Court in In Re: Lachman
Das33 has held that though evidence taken by the Commissioner is part of the
record it does not become evidence unless it is tendered and admitted under
Order 26 Rule 8. The Patna High Court has concurred with this view in Sinha
v. Life Insurance Corporation of India34.

32
Filministan Ltd. Bombay v. Bhagwandas, AIR 1971 SC 61.

33
AIR 1952 All 563.
34
AIR 1964 Pat 142.
Where a document is produced before the Commissioner and no objection is
taken to its admissibility, no such objection can be taken before the court
hearing the suit to which the commission is returned. But if the admissibility of
the document is objected to before the Commissioner, the party who has raised
the objection on one ground is not precluded from objecting to its admissibility
on any other ground.

Commission for Local lnvestigations (Rule 9-10)

Rule 9 provides for Commissions to make local investigations. Before

amendment the issue of a Commission for local investigation was restricted to
cases where it was inconvenient for the Judge to make the investigation
himself. However now a Judge may issue a Commission in any case where he
deems it fit to do so, irrespective of his own convenience. An order by a Judge
for the issue of a commission for local investigation should be a judicial order
and must not be arbitrary. The object of a local investigation is not so much to
collect evidence which can be taken in Court but to obtain evidence which
from its peculiar nature can only be had on the spot 35 and to elucidate any point
which is left doubtful on the evidence taken before the Court 36. The local
investigation by the Commissioner is merely to assist the Court. The report is
not in any way binding on the Court which can arrive at its own conclusion,
even at variance with such report. Cases of boundary disputes and disputes
about the identity of lands are instances when a Court may order a local
investigation under this Rule. An appellate Court has the power to issue a
Commission for a local investigation under this Rule read with Section 107 of
the Code of Civil Procedure. Notice needs to be given to the parties before the
investigation by the Commissioner commences.

Rule 10 lays down the procedure to be followed by the Commissioner with

respect to a local investigation. Sub rule (2) is intended to afford protection to
35
In Re: P. Moosa Kutty, AIR 1953 Mad 717.

36
Debendranath Nandi v. Natha Bhuiyan, AIR 1973 Orissa 240.
the Commissioner who is a quasi-judicial officer and such protection is
afforded on grounds of public policy so as to make it impossible for either of
the parties to subject the Commissioner to a vexatious examination 37. A
Commissioner appointed to do a certain work must do it himself and cannot get
it done by someone else38. A Commissioner is also bound to record the state of
things as actually existing and not draw upon his own imagination or make
surmises39. The report submitted by a Commissioner after local investigation is
evidence in the suit and shall form part of the record. The Court or the parties
with the permission of the Court can examine the Commissioner in Court with
respect to 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 conducted the investigation. A
further inquiry may be directed by the Court where for any reason it is
dissatisfied with the proceedings of the Commissioner.

So construed, The court may, in any suit, issue a commission to such person as
it thinks fit for directing him to make local investigation and to report for the
purpose of (a) elucidating any matter in dispute, or (b) ascertaining the market
value of any property or the amount of mense profits or damages or annual net
profits. Such a person is called the Commissioner. The commission can be
issued ex parte or in the presence of both the parties.

Other Commissions

For scientific investigation (Rule 1OA): The court may issue a commission
for the purpose of a scientific investigation which cannot, in the court's
opinion, be conveniently conducted before the court.

37
Sitaram v. Ram Prasad Ram, AIR 1915 Cal 280.

38
Damodaran v. Karimba Plantations Company Limited, AIR 1959 Ker 358.

39
M.N.D Varu v. The Board of Trustees, Tirupathi, AIR 1959 Andh Pra 64.
For sale of movable property (Rule 1OC): Where, in any suit, it becomes
necessary to sell any movable property which is in the court's custody and
which cannot be conveniently preserved, the court may issue a commission.

For performance of ministerial act (Rule 1OB): Where any question arising
in a suit involves the performance of any ministerial act which cannot, in the
court's opinion, be conveniently performed before the court, it may issue a
commission. 'Ministerial work' means not the office work of the court but the
work like accounting, calculation, etc.

To examine accounts (Rule 11-12): The court may issue a commission for the
purpose of examination or adjustment of accounts. The report of the
commissioner shall be evidence in the suit.

To make partitions (Rule 13-14): Where a preliminary decree for partition of

immovable property has been passed, the court may issue a commission to
make an actual partition or separation. The commissioner will prepare a report
appointing the share of each party and distinguishing the same by metes and
bounds and transmit it to the court. The court shall, after hearing the objections
of parties, make the final allotment in the form of a decree. If the court sets
aside the report, it may issue a new commission or pass other orders.

Rule 14 lays down the Procedure of Commissioner with respect to commissions

issued for the purpose of making partitions of immovable property. It is not
contemplated by this Rule that that the Commissioner should propose a number of
schemes and ask the Court to choose any one of them. Only the shares as ascertained
by the decree have to be worked out by him. Where a partition cannot be made
without destroying the intrinsic value of the property or where it would be
inconvenient to destroy the exclusive possession of one co-sharer the Court may
award money compensation instead of dividing the properties. A commissioner cannot
be appointed for the partition of revenue paying immovable property as a partition of
revenue paying land which has the effect of breaking up the joint liability of the
sharers for revenue cannot be effected by the Civil Court40. Such a partition can only
be effected by the Collector because the revenue is effected. However the court can
effect a partition of non-revenue paying immovable property. Thus a Commissioner
may be appointed for valuation of joint family dwelling houses and while submitting
his report the Commissioner should give reasons for fixing the valuations of different
items of property41. The duty of the Commissioner under this Rule is not to give
possession but to allot the shares and prepare a report fixing the shares and
distinguishing the same by metes and bounds if so ordered by the Court42.

Powers and Limitations of Commissions

Order XXVI, Rules 15-18 of the Code of Civil Procedure relate to general
provisions relating to Commissions and Commissioners. It is imperative to
look at these general provisions in order to gain a clear and total
understanding of Commissioners and Commissions in the Code of Civil
Procedure.

It may be noted that the Commissioner, appointed by the court does not
perform any judicial function. The Commissioner is deemed to be a Civil
Court; however, he is not a judge, and is, therefore, incompetent to impose any
penalty. Likewise, no commission can be issued to value the property in
dispute as it is the function of the court. But commission can be appointed to
gather data to help such determination by court.

40
K.R Deosant v. W.K Deosant, AIR 1971 Bom 26.

41
Gourhari Das v. Jaharlal Seal, AIR 1957 Cal 90.
42
Ram Bahadur v. Sri Thakur Siri Sitaramji Maharaj, AIR 1934 Pat 32.
 However, the Commissioner may summon and procure the attendance of
parties/witnesses and examine them, call for and examine documents, enter
upon a land, etc. or proceed ex parte if the parties do not appear before him in
spite of the court's order (Rule16-18).

The Commissioner must take down the question, the answer, the objections
(except objection on the ground of privilege, which must be decided by the
court) and the name of the party. The answer taken by the Commissioner
cannot be read in evidence without court's order. The Commissioner cannot
decide the dispute between the parties.

Rule 16: Powers of Commissioners

A Commissioner has the power to:

1. Examine the parties and witnesses

2. Call for and examine documents
3. At any reasonable time enter upon or into any land or building
mentioned in the order.

The provisions of this rule are permissive in the sense that they vest discretion
in the Commissioner to examine or not to examine a witness. It has been held
by the Punjab and Haryana High Court that the function of the Commissioner
appointed to examine accounts is not confined only to making additions,
subtractions and multiplications it is open to him to find out by recording
evidence or otherwise whether the entries as they appear in the account books
do really give the correct picture of accounts43.

It has been observed that an order rejecting the application for issuance of a
commission can be revised.

43
ILR (1970)2 Punj 640.
Where a Commissioner wants to lodge a complaint for the prosecution of a
person, the Commissioner must obtain the sanction of the Court concerned.

Rule 16A: Questions objected to before the Commissioner.

Rule 16A was added by the 1976 Amendment Act in order to clarify the
position as to the procedure to be adopted when a question is put before the
Commission. This Rule is intended to provide that where a question put to a
witness is objected to in proceedings before the Commissioner, the
Commissioner shall take down the question, the answer, the objections and the
name of the person so objecting. Any such answer can be read as evidence in a
suit only by order of the Civil Court to that effect.

Although Rule 16A authorizes the Commissioner to take down the question,
the answer and the objection etc. occasion may arise where the objection to the
question put to the witness may be raised on the ground of privilege. If, in such
a case, the Commissioner is required to take down the answer to the question,
then, the privilege claimed would be lost. Thus the proviso to Rule 16A lays
down that in such a case the Commissioner is not allowed to take down the
answer to a question or might be allowed to continue with the examination of
the witness leaving the party to get the question of privilege decided by the
Court.

Rule 17: Attendance and examination of witnesses before Commissioner.

Under this Rule the Commissioner is given the powers of Court in regard to the
summoning and procuring the attendance of witnesses. For the purposes of this
Rule he is deemed to be a Court. The reason for this is the Commissioner is a
delegate of the Court acting under its authority. Although under Order 26, Rule
16 it is in the discretion of the Commissioner to examine or not to examine a
witness, yet once the Commissioner has decided to examine a witness, the
mandatory provisions of this rule come into play and those provisions in their
turn attract the provisions of Order 18 of the Code of Civil Procedure and
Section 138, Indian Evidence Act, 1872. Hence, the parties must be afforded an
opportunity of examining, cross-examining and re-examining the witnesses and
it is not open to the Commissioner to examine the witnesses in the absence of
the parties without giving them sufficient notice of the time and place when he
proposes to examine the witnesses. The Commissioner has not been made a
Judge for the purposes of examining the witnesses and the duties of the Judge
under Rules 5 and 6 of Order 18 are not attracted under Order 26, Rule 17.
Hence, not reading over the deposition to the witness and interpreting the same
in the language of the witness and signing it by the Commissioner recording
the evidence does not vitiate the evidence recorded and the Court can rely on
such evidence44.

A Commissioner appointed to examine a witness has no power to disallow

questions he considers irrelevant45.

According to sub-rule (1) of Rule 17 when a new Commissioner is appointed in

the vacancy caused by the death or otherwise of the previous Commissioner,
evidence of witnesses recorded before the latter, will be evidence in the cause
under Order 18, Rule 15, without the witnesses having to be re-examined.

Sub rule (2) of Rule 17 enables the Court within the local limits of whose
jurisdiction a witness resides to issue a summons for his examination on the
application of the Commissioner. In the absence of any such provision in the
old Code of Civil Procedure it was held that where a witness failed to appear
before a Commissioner pursuant to a notice issued by him, the only course left
open to the Commissioner was to return the Commission to the Court from
which it was issued and the latter Court would then send the Commission to the
Court within the local limits of whose jurisdiction the witness to be examined
resided.

44
Sivasankara Pillai v. Ponnuswami Nadar, AIR 1973 Mad 450.

45
Ram Krishna Dalmia v. Feroz Chand, AIR 1960 Punj 430.
Rule 18: Parties to appear before Commissioner.

Under this rule it is obligatory on the part of the Court to order the parties to
appear before the Commissioner either in person or by their recognized agents
or pleaders. The parties must be individually given an opportunity to make
representation of their respective cases before the Commissioner, by being
served with notices. Where the Court has not directed the parties to appear
before the Commissioner as required by this rule, any notice given by the
Commissioner himself to a party will not be sufficient. However there is a
controversy over this and it has been held in some cases that the object of this
Rule is that the work of the Commissioner should be done in the presence of
the parties. Hence, if the Court fails to give a direction to the parties but the
parties are present owing to a notice issued by the Commissioner, the object of
the Rule is satisfied and the report of the Commissioner will not be vitiated for
lack of directions of the Court.

When neither a direction is given by the Court, nor a notice given by the
Commissioner, his report is not admissible in evidence 46. Where a party fails to
appear before the Commissioner in pursuance of the order of the Court, the
Court can proceed under Order 17, Rule 2 of the Code of Civil Procedure. The
Commissioners report which has been obtained in contravention of the
statutory requirements has to be set aside and a decision based on such a report
cannot be sustained47.

There is no provision in the Code of Civil Procedure which says that a

Commission could be issued only after notice has been issued to the defendant
and, therefore, an order appointing the Commissioner without notice to him
and hearing him is not illegal and opposed to the provisions of Order 26, Rule

46
Jamil Ahmed Taban v. Must. Khair-Ul-Nisa, AIR 1970 Delhi 205.
47
Mandera Mukherjee v. Sachindra Chandra Mukherjee, AIR 1962 Pat 211.
18. However Courts have held that as a matter of practice notice ought to be
given to the opposite party before ordering a Commission.

Rule 18A: Application of Order to execution proceedings.

This rule provides that the provisions of Order 26 shall apply to proceedings in
execution of a decree or an order.

Rule 18B: Court to fix a time for return of Commission.

The Court issuing a Commission shall fix a date on or before which the
Commission shall be returned to it after execution, and the date so fixed shall
not be extended except where the Court, for reasons to be recorded, is satisfied
that there is sufficient cause for extending the date. This Rule was added in
order to avoid delay in Commission proceedings.

The report of the Commissioner would furnish prima facie evidence of the
facts and data collected by the Commissioner. It will constitute an important
piece of evidence and cannot be rejected except on sufficient grounds. It
would, however, be open to the court to consider what weight to be attached to
the data collected by the Commissioner in Tushar Kanti v Savitri Devi48.

The report of a commission is not conclusive; if a party has objection, it can

move to the court. If the report is incomplete, the court can issue another
commission. An order refusing appointment of a commission is appealable.
The provisions of Order 26 are also to apply to proceedings in execution of a
decree or order.

The expenses of a commission are to be paid by the party at whose instance

the commission is issued.

48
AIR 1996 SC 2752
Commissions Issued by Foreign Courts and Tribunals

Section 78 lays down that the provisions governing the execution and return of
commissions for the examination of witnesses also apply to commissions by or
at the instance of courts situated in India to which the Code do not extend, or
courts under the authority of Central Government outside India, or a foreign
court.

Rule 19 states that:

If a High Court is satisfied-

a) That a foreign court situated in a foreign country wishes to obtain the

evidence of a witness in any proceeding before it,

b) That the proceeding is of a civil nature, and

c) That the witness is residing within the limits of the High Courts
appellate jurisdiction,

It may, subject to the provisions of Rule 20, issue a commission for the
examination of such witness.

Rule 19 further states that:

Evidence may be given of the matters specified in clauses a, b and c:

a) By a certificate signed by the consular officer of the foreign country of

the highest rank in India and transmitted to the High Court through the
Central Government, or
b) By a letter of request issued by the foreign court and transmitted to the
High Court through the Central Government

c) By a letter of request issued by the foreign court and produced before

the High Court by a party to the proceeding.

Rule 19 does not apply to the Courts referred to in Section 78 clauses (a)
and (b).

Sub rule (2) indicates the method by which the request contained in sub rule
(1) may be established, but does not prevent the High Court from requiring
further evidence if it thinks fit.

According to Rule 20 a High Court may issue a Commission under Rule 19

upon application by a party to the proceeding before the Foreign Court or
upon an application by a law officer of the State Government.

Rule 21 lays down that a Commission will be issued to any court within
whose jurisdiction the witness resides or to any person deemed fit to execute
it where the witness resides within the local limits of the original civil
jurisdiction of the High Court.

Rule 22 provides for issue, execution and return of Commissions and

transmission of evidence to foreign court. After the Commission has been
executed it shall be returned together with the evidence to the High Court,
which shall forward it to the Central Government along with the letter of
request for transmission to the foreign court.

Letter of request: Lastly, Sec. 77 lays down that, in lieu of issuing a

commission, the court may issue a letter of request to examine a witness who is
not residing in any place in India.
 Conclusion
While appointing a Commissioner the Court has to exercise judicial discretion
and the Court should very jealously inquire, in every case, into the reason for a
Commission before passing an order for the issue of a Commission. Usually
the most common function of a Commission is to examine witnesses and make
local investigations. Commissions greatly reduce the workload of the Court and
help the Court in delivering speedy justice. Very often important witnesses may
not be able to come to Court to depose owing to sickness or threat to their lives
or simply because they live too far away from the Courts territorial
jurisdiction. In such cases the appointment of a Commissioner to examine the
witnesses on Commission will provide invaluable help to the suit proceedings
and enable the Court to administer justice. Commissions greatly reduce the
workload of the Court by doing clerical work like calculations, accounts etc.
and other such ministerial acts. Through local investigations Commissions
elucidate matters in a dispute and enable the Court to come to a well-informed
decision. Thus the appointment of Commissioners and the smooth and efficient
working of Commissions is of great assistance to the Courts and ultimately to
the parties who reap the benefits.

Commissions greatly reduce the expenses of the Court too as the expenses of
the Commission are borne by the party at whose instance the commission is set
up. The Commissioner acts on the instructions of the Court and is wholly under
its control. The Court may replace the Commissioner if it feels that the
Commissioner is not carrying out his instructions satisfactorily. Parties may try
to bribe the Commissioner or influence him in order to strengthen their case but
the control of the Court can help in preventing this corruption.
The report of a commissioner although not binding on the Court gives the
Court great food for thought and has great persuasive value. It might be the
basis on which the Court makes its judgment.

There have been several arguments against Appointment of Commissioners.

Detractors of Commissions say that in this modern digital age the role of
Commissions has become redundant. They argue that witnesses who are unable
to depose in Court can depose directly to the Judge through television or web
conferencing. Affidavits can be submitted by the parties over the Internet and
confirmed through digital signatures. However such methods are not a realistic
view in a developing country like India where most of the population lives in
rural areas and the technical know-how or expertise is simply not there to
enable examination of witnesses electronically. Moreover these methods would
impose a great financial burden on the parties and the Courts. Thus it would not
be pragmatic to say that Commissions have become redundant. They still
render invaluable service and the appointment of a Commissioner whenever
necessary is of great help to the Court in the administration of Justice.

Bibliography
Articles

1. John H. Langbein, The German Advantage in Civil Procedure 52 U. Chi.

L. Rev. 823 (University of Chicago Law Review, 1985).
Books
1. C.B Upadhya, Digest on The Civil Procedure Code (Allahabad:
Malhotra Law House, 1990).
2. C.K Takwani, Civil Procedure (Lucknow: Eastern Book Company,
2001).