A Note On ‘Issue Of Commission Under CPC'(Code Of Civil Procedure, 1908)

Long Version: Issue of Commission under CPC

The power to issue commissions is a vital tool for courts in civil proceedings, enabling them to perform various functions essential for the effective delivery of justice. This authority is governed by Sections 75, 76, 77, 78 of the Code of Civil Procedure, 1908 (CPC), and procedural details are elaborated in Order XXVI.

1. Introduction

• Definition: A commission is a court-authorized directive assigning a commissioner to perform specific tasks or gather evidence on behalf of the court.
• Purpose: To address circumstances where direct court intervention is impractical, ensuring justice without procedural delays.
• Framework:
  • Sections 75-78: General powers of the court.
  • Order XXVI: Procedural guidelines and specific rules for various types of commissions.

2. General Powers of the Court (Section 75 CPC)

Courts may issue commissions for the following purposes:

1. Examine Witnesses: Recording testimony of witnesses unable to attend court due to distance, illness, or legal exemption.
2. Local Investigation: Determining property value, boundaries, or damages.
3. Adjust Accounts: Reconciliation of financial disputes.
4. Make Partition: Dividing property after a preliminary decree.
5. Scientific or Expert Investigation: Resolving technical or scientific disputes requiring specialized knowledge.
6. Sell Movable Property: Disposing of decaying or perishable property in court custody.
7. Perform Ministerial Acts: Routine administrative tasks like document verification.

3. Detailed Provisions (Order XXVI CPC)

A. Commissions to Examine Witnesses (Rules 1-8)

• Applicability: When a witness is:
  • Unable to attend court due to sickness, infirmity, or exemption (e.g., pardanashin women).
  • Residing beyond the court’s jurisdiction or abroad.
  • A government servant whose absence would harm public service.
• Procedure:
  • The commissioner records the witness’s testimony, which becomes part of the court’s record.
  • The evidence is subject to objections and cross-examination.

B. Commission for Local Investigation (Rule 9)

• Purpose: To ascertain facts such as:
  • Property value.
  • Boundaries or encroachments.
  • Mesne profits, damages, or annual net profits.
• Judicial Guidance:
  • Padam Sen v. State of UP (1961): Local investigations are not for collecting evidence a party can produce independently but for obtaining peculiar facts that require on-site examination.

C. Commission for Scientific Investigation (Rule 10A)

• Objective: Resolving disputes involving technical or scientific issues, such as handwriting verification or DNA analysis.
• Example: Sharada v. Dharampal (2003) upheld the use of scientific investigations, including medical tests, as evidence.

D. Commission to Perform Ministerial Acts (Rule 10B)

• Scope: Non-discretionary tasks like verifying records or performing specific administrative duties.
• Meaning: Ministerial acts involve no judgment or discretion but are executed under legal mandates.

E. Commission to Sell Movable Property (Rule 10C)

• Application: When property held in court custody risks decay or damage, the commissioner is directed to sell it and report to the court.

F. Commissions to Examine or Adjust Accounts (Rules 11-12)

• Purpose: Suitable for disputes requiring account reconciliation.
• Procedure: The commissioner examines accounts, submits a report, and the court may order further inquiry if necessary.

G. Commissions to Make Partition (Rules 13-14)

• Use: In partition suits post-preliminary decree.
• Procedure: The commissioner divides property as per court instructions and files a detailed report.

H. Commissions for Foreign Tribunals (Rules 19-22)

• Relevance: Enables Indian courts to assist foreign tribunals by recording witness evidence.
• Conditions:
  • Request from a foreign court through the Central Government.
  • Witness resides within the jurisdiction of the High Court.

4. Commissioner’s Role and Powers (Rule 16)

The commissioner is empowered to:

1. Examine witnesses and documents.
2. Conduct site inspections.
3. Compile a report with findings.

Evidentiary Value:

• Reports and evidence submitted by commissioners are part of the court record (Rule 10(2)).
• These are treated as evidence but are not binding and can be challenged.

5. Procedural and Practical Considerations

• Discretionary Nature:

  • The court exercises discretion in appointing commissioners based on necessity and fairness.
  • Applications must demonstrate genuine need and cannot be for ulterior motives.

• Costs:

  • The court may require the party requesting the commission to deposit expenses in advance.

• Objections:

  • Objections to the commissioner’s report must be raised promptly.
  • Courts can accept, reject, or partially adopt the report based on its findings.

6. Judicial Precedents

• Southern Command MES Employees v. V.K.K. Nambiar (1988): Local investigations aid the court in understanding disputes over property.
• Padam Sen v. State of UP (1961): Commissions should not gather evidence a party can obtain independently.
• Sharada v. Dharampal (2003): Scientific investigations like DNA tests are permissible in the interest of justice.

7. Stages for Seeking Commissions

• Trial Stage: Commissions can be issued at any stage of the suit if necessary.
• Appellate Stage: Courts may issue commissions during appeals if justified by circumstances.

8. Limitations

• A commissioner cannot decide the matter in dispute.
• The court is not bound by the commissioner’s report and evaluates it alongside other evidence.

Conclusion

The power to issue commissions under CPC is a flexible judicial tool ensuring justice in complex or extraordinary circumstances. It provides procedural convenience without compromising fairness, enabling courts to address unique situations effectively. By balancing judicial discretion and procedural safeguards, the issuance of commissions facilitates equitable adjudication in civil proceedings.