CODE OF CIVIL PROCEDURE 1908

 ABSTRACT

The central aim of the research paper is to discuss the power of the court to issue commission and also get the purpose behind it. To look it from the evolution it can be said that it has been evolved from jurisprudence to ensure that there should not be any sort of abuse in the procedure during the pendency of the case. As we know commissioner is appointed by the court to ensure full and complete justice to the parties. Commissions are issued by the court, these are kind of interim orders, inter alia, security for cost, temporary injunctions, interlocutory orders et cetera. With the purpose to assist the parties of the suit for the protection of their subject matter on which the case is based upon. However the thing to be taken in consideration is that commissions are not issued for determining the substantive rights and liabilities of parties to the suit.

Now if we look at content division of the paper then it has been divided in three sets the first one talks about the introduction of the concept as well as provisional aspect of the commission as per the civil procedure code 1908 and the second part of the paper deals with ambit of its scope along with the provisions and last one will be the conclusion and researchers suggestion over the topic discussed.

Keywords: Civil Procedure Code, 1908, Commissions, Interlocutory Order, Substantive Rights, Suit, Parties.

 INTRODUCTION

The validation behind the appointment of the commission by the court is to accomplish assured functions which are crucial for the Court, in order to give full and complete justice. The meaning of Commission is a role given by the Court to an individual to function on behalf of the Court and to conduct every function which is necessary for the Court to accomplish full and complete justice. The individual who manages the commission is known as a Court commissioner. Now if we discuss about the who can appoint the commissioner then we can see Under CPC, the Court has the power to appoint the commissioner. As per Section 75 of Civil Procedure Code of 1908, says that “the Court” can issue commission along with the limitations and restrictions. Therefore, in the court in which the suit has to be decided can appoint the commissioner. Commissioner is appointed to manage the functioning for the rationale behind the commission is issued.ⁱ The power to appoint a commissioner is discretionary in nature it can be exercised on the application of any of the parties to suit or the Court suo moto it is not the right of any party to get commission it’s up to the court.

• PROVISIONS RELATED TO COMMISSION

If we look at the provisional aspect of the commission then it can be observed that concept of commission has enshrined under section 75-78 of Civil Procedure Code 1908 and its detailed description has been given in order 26 of Civil Procedure Code 1908.

• SECTION 75 OF CIVIL PROCEDURE CODE

Section 75ⁱⁱ of Civil Procedure Code refers to  :

Subject to such conditions and limitations as may be prescribed, the court may issue a commission-

• To examine any person;
• To make a local investigation;
• To examine or adjust accounts; or
• To make a partition;
• To hold a scientific, technical, or expert investigation;
• To conduct sale of property
• To perform any ministerial act

Now we will discuss the powers of the court to commission in detailed mannerⁱⁱⁱ : 

1. To Examine Witnesses: It comes under section 76-78  order 26 rule 1-8 of CPC, in this the court can issue examination of a person/witness only the grounds :

1. If the witness is on bed or not in condition to attend the Court due to medical reasons/poor health or infirmity, in such scenario the Court can excused the attendance of witness and permit the witness to provide evidence to the commissioner appointed for the same. The court has been vested with this power under order 18 rule 4.
   1. If the witness thinks that his life is in danger and he/she informs the Court about same and if the Court considers that recording evidence of the witness is essential, then Court may issue commission to record evidence of that witness.
   1. If the witnessing lady is pardanashin which is exempted under section 132 of this code.
   1. If the witness is in Civil, Military services of the Government, so he cannot attend without impairment to the Public Service.
   1. If the Court considers that it is in the ambit of of justice or speedy disposal of the case or for any other grounds, the Court can issue a commission notwithstanding any of the rules provided in the order. (order 26 rule 4A)

To make local investigations: To make local investigation it has been mentioned in order 26 rule 9-10. If the court considers that the local investigation is necessary then the court can issue commission under the said provisions with following reasons^iv:

1. For accurate precision of any matter in dispute, or
   1. In determining the market worth of any property, or
   1. To know the extent of mens rea or annual net profits.

While appointing a commissioner for, the Court has to examine  :

1. Pleadings of both the parties,
   1. Claimed relief,
   1. The actual controversy/issue between the two parties.
   1. To adjust accounts: It comes under order 26 rule 10-11, which talks about adjusting of accounts relating to the suit, if the court considers that verification accounts relating with the suit is necessary then the court may appoint the commissioner for the examination of such accounts as per rule 11, as these very sensitive records so the court has  to take very careful while appointing any commissioner for examination as the commissioner has to be competent enough to examine such accounts, because the report submitted by the commissioner has evidentiary value under rule 12.
   1. To make partition:  Under rule 13 of order 26 the court can issue a commission for appropriate partition of the property related with suit. For instance, preliminary decree for partition of suit property has been passed by the court, in that scenario, to carry out the decree a commissioner can be appointed (rule 13) .The commissioner has to divide the property in shares and distribute it among the parties as per the decree passed. As per rule 14 Commissioner has to submit a report after such partition is completed.
   1. To hold a scientific, technical, or expert investigation : It comes under order

26 rule 10-A of Civil Procedure Code, In which the court has the power to appoint commissioner for examination to scientific, technical or expert investigation basically to comply with subject matter of the case. After the completion of the investigation the appointed commissioner has to submit the report within the time frame prescribed.

1. To do ministerial work: It comes under order 26 rule 10-A, basically ministerial work contains accounting , calculations and various others which are not of judicial nature but has to be done by the court. Such work is highly time consuming so for such works the court appoints commissioner so that valuable time of court can be utilized in other essentials judicial functioning. One of the points to note that commissioner cannot carry judicial functions on his own.
2. To Conduct the sale of property : It comes under order 26 rule 10-C of the Civil Procedure Code, 1908 it usually conducted when the subject matter of the suit is property which is in the custody of the Court pending the determination of the suit based on it. In scenario the court may appoint a commissioner to conduct the sale of the property.  

 PROCEDURE OF FUNCTIONING OF A COMMISSION :

The procedure of functioning of the commission is discussed below :

1. As ordered by the court in the commission the commissioner has to conduct the local investigation, examination of witnesses, adjust accounts and other functions.
2. The commissioner has to mention the findings in writing and make a report after thecompletion of the functioning. iii. The report submitted by commissioner has to be signed alongside with the evidence which was recorded in the Court.
3. The report of commissioner will form a part of the record.
4. During the examination of the report, the Court or the parties to suit ,after getting permission, can examine the commissioner personally in open Court.
5. If the Court is discontented with the functioning of the commissioner then Court can order a supplementary inquiry on the commission or can issue a new commission and appoint a new commissioner.

 POWERS AND LIMITATIONS OF COMMISSIONER :

The powers of commissioner has been enshrined in order 26 rule 16-18 of civil procedure code, 1908. The Powers are discussed below :

1. Commissioner has the power to inspect the parties to suit and the witnesses and any other individual who the commissioner considers can provide evidence in the matter commissioned to him.
   1. Commissioner has the authority to order the parties to provide any documents for examination.
   1. Commissioner also has been authorized to go into any building for the purpose of search by getting the permission from the Court.
   1. The commissioner has the power to go for ex parte when the party doesn’t come or appear after the order of the court. 

 LIMITATION OF COMMISSIONER  :  As we know that the commissioner has been appointed by the court to carry out functioning on behalf of the court, the also give me powers but along with the he also has limitation which he cannot carry out judicial functions he only functions through the order of the court, even in some cases when the parties have threat that someone can tampered their evidence if the court considers it valid then even the court may not appoint or issue commission.

 EVIDENTIARY VALUE OF THE REPORT GIVEN BY THE

COMMISSIONER  : As per the provision enshrined in Civil Procedure Code, 1908 order 26 rule 10(2) which says that the evidence and report submitted by commissioners forms a part of the record however in case the evidence is submitted without the report of the commissioner, then it will not form part of the record .The report forms an essential portion of the case and can only be questioned on valid grounds .The Court has the final say on how much confidence should be placed on the report submitted to the Court.

• REMUNERATION OF COMMISSIONER : While talking about remuneration of commissioner then we find no expressive provision which directly deals with it, but as per order 26 rule 15 it deals with expenses a commissioner might have sustained during commission so the court directs the applicant to give a sum of money to commissioner so that he can use it while carrying out the commission, even the court is also vested with discretionary power to any order regarding the remuneration for the commissioner.
• CONCLUSION & RESEARCHERS SUGGESTION :

In conclusion to that it can be said that commissioner is appointed to ensure full and complete justice. As we have discussed earlier that a commissioner is generally an advocate in the panel formed by the high court among those advocates in the panel one of the advocates appointed as commissioner. I found its role to be highly effective as we know that slow process of civil cases in India can be made speedy with such concept of commission which will uplift the maxim of justice delayed justice buried but still with help of commission and commissioner it can be resolved. The only issue I have observed in the whole procedure, power and limitation is that remuneration of the commissioner for which except expenses provision nothing has been there so to make it more efficient a provision for fixed pay for commissioner has to be there, except it everything is completely fine with the concept.

BIBLIOGRAPHY:

BOOKS   : C.K. TAKWANI, CIVIL PROCEDURE WITH LIMITATION ACT, 1963, EASTERN

BOOK CO., (7th edition 2009)

INTERNET DOCUMENTS   :

• WHO IS A COMMISSIONER CODE OF CIVIL PROCEDURE (IPLEADERS)
• POWERS OF COURT TO ISSUE COMMISSION BY SHAHEEN BANOO

LEGISLATIONS  :

 CODE OF CIVIL PROCEDURE, 1908

ONLINE DATABASES

1. Manupatra
2. Lexis Nexis
3. SCC Online
4. Google Scholar

i SSRN-id3669312.pdf ii Code of Civil procedure, 1908

1. Who is a Commissioner under Civil Procedure Code? – iPleaders
2. C.K. TAKWANI, CIVIL PROCEDURE WITH LIMITATION ACT, 1963, EASTERN BOOK CO., (7th ed, 2009)