Code of Civil Procedure, 1908 (CPC)
Commissions under Sections 75 to 78 and Order XXVI CPC
A court cannot go everywhere or do everything. A witness may be too ill to attend, a boundary may need to be seen on the ground, an account may run to thousands of entries, a partition may need to be measured out. Section 75 of the Code of Civil Procedure, 1908 allows the court to issue a commission in seven defined situations, and Order XXVI supplies the machinery. These notes cover each kind of commission, the powers and duties of the commissioner, the evidentiary value of his report, objections to it, and the distinction between a local commissioner and the judge's own local inspection.
The seven kinds of commission, the report, and the contrast with local inspection
1. Section 75: The Seven Purposes
§ Section 75, CPC 1908 Subject to such conditions and limitations as may be prescribed, the Court may issue a commission — (a) to examine any person; (b) to make a local investigation; (c) to examine or adjust accounts; (d) to make a partition; (e) to hold a scientific, technical or expert investigation; (f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit; (g) to perform any ministerial act. |
2. Commission to Examine a Witness: Rules 1 to 8
i. Rule 1: when it may issue. Any court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under the Code from attending the court, or who is from sickness or infirmity unable to attend.
ii. Rule 4: persons outside the jurisdiction. A commission may be issued for the examination of a person residing beyond the local limits of the court's jurisdiction, of a person who is about to leave those limits before the date of trial, and of a Government servant who cannot in the opinion of the court attend without detriment to the public service.
iii. Rule 4A: any person. Notwithstanding anything in the preceding rules, any court may, in the interests of justice or for the expeditious disposal of the case, issue a commission for the examination of any person. The rule, inserted in 1976, gives the court a general power in place of the older exhaustive categories.
iv. Rules 2, 3 and 5 to 8. Provide for the direction of the commission, the persons to whom it may be issued, commissions issued by or to other courts, and the return of the commission with the deposition, which then forms part of the record.
v. Order XVIII Rule 4(2). In the ordinary trial, cross-examination and re-examination of a witness whose examination-in-chief is on affidavit may themselves be taken by a Commissioner appointed by the court, which is now the common use of the device.
3. Local Investigation: Rule 9
§ Order XXVI Rule 9, CPC 1908 In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. |
§ What a local commissioner is for, and what he is not for For. To elucidate a matter in dispute by seeing and recording the state of things on the ground: the position of a wall, an encroachment, the existence of a passage, the condition of a building, the standing crop, and to value property or work out mesne profits. Not for. To collect evidence that a party should lead himself. A commission is not a substitute for a plaintiff's failure to prove his case; the court does not send an officer to find out whether the plaintiff has a case. The distinction in practice. Where the question is what is the position on the ground, a commission is proper. Where the question is who is right about a disputed fact, the parties must lead evidence and the court must decide. |
4. The Other Kinds of Commission
Purpose | Rule | What the commissioner does |
|---|---|---|
Examine or adjust accounts | Rules 11 and 12 | The court issues the commission to a person it thinks fit and gives such general or special directions as to the mode of taking the accounts as may be necessary; the commissioner returns the accounts with his report |
Make a partition | Rules 13 and 14 | Where a preliminary decree for partition has been passed, the commissioner divides the property into the required shares, allots them, and reports; the court confirms the report and passes a final decree |
Scientific, technical or expert investigation | Rule 10A | Where the question involves scientific investigation which cannot in the court's opinion be conveniently conducted before the court, the commissioner investigates and reports |
Perform a ministerial act | Rule 10B | Where an act is ministerial and cannot conveniently be performed before the court, it is entrusted to the commissioner, subject to the rule that judicial functions cannot be delegated |
Sale of movable property | Rule 10C | Where property is subject to speedy and natural decay and is in the custody of the court pending the suit, the commissioner conducts the sale and reports |
Commissions issued at the instance of foreign tribunals | Rules 19 to 22 | Where a foreign court or tribunal seeks the examination of a person residing in India, the commission is issued and executed as the rules provide |
Sections 76 to 78 complete the framework. Section 76 allows a commission for the examination of a person to be issued to any court, not being a High Court, within whose jurisdiction he resides, and requires that court to proceed to execute it and return it with the evidence. Section 77 allows a letter of request to be issued in lieu of a commission, where the court is satisfied that the evidence of a person residing at a place not within India is necessary. Section 78 provides for commissions issued by foreign courts, allowing evidence to be taken in India at their instance, subject to the rules.
5. Powers and Duties of the Commissioner
§ What the commissioner may do: Rules 16 to 18 The Code equips him to do the work: • Rule 16. He may examine the parties themselves and any witness whom they or any of them may produce, and any other person whom he thinks proper to call upon to give evidence; may call for and examine documents and other things relevant to the subject of inquiry; and may, at any reasonable time, enter upon or into any land or building mentioned in the order. • Rule 17. The provisions of the Code relating to the summoning, attendance and examination of witnesses, and to the remuneration of and penalties to be imposed on witnesses, apply to persons required to give evidence or produce documents before the commissioner. • Rule 18. Where the parties or any of them fail to appear before the commissioner after due service of notice, he may proceed in their absence. • Rule 15. The expenses of the commission are ordinarily deposited by the party applying, before the commission issues. |
§ The limits on delegation A commissioner performs a ministerial or investigative function. He records, measures, inspects, examines and reports. He does not decide. The court cannot delegate to him the judicial function of determining the rights of the parties, weighing the evidence or deciding an issue. That is why Rule 10 makes his report and the evidence taken part of the record and evidence in the suit, and leaves the court to reach its own conclusion upon it. |
6. The Report: Evidentiary Value and Objections
§ Order XXVI Rule 10, CPC 1908 (in substance) (1) The commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court. (2) The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching 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 has made the investigation. (3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit. |
§ Four propositions on the report These decide most questions on this topic: • It is evidence, not an adjudication. The report and the evidence taken form part of the record and are evidence in the suit; they do not bind the court, which reaches its own conclusion. • The report and the evidence go together. Sub-rule (2) is express: the evidence taken is evidence in the suit but not the evidence without the report. A commissioner who returns evidence without a report has not completed his task. • The commissioner may be examined. The court, or a party with the court's permission, may examine him in open court on the matters referred, on his report, and on the manner in which he made the investigation. This is how a party tests a report it disputes. • The court may order a further inquiry. Where dissatisfied with the proceedings, the court may direct such further inquiry as it thinks fit, or may set the report aside and issue a fresh commission. |
Objections to the report are therefore taken in the suit itself: a party files objections, and the court considers them, examining the commissioner where necessary. The objection may go to the substance of the findings, or to the manner of the investigation, as where the commissioner inspected without notice to a party, or exceeded the terms of his commission, or recorded conclusions on matters not referred to him. A report made in breach of natural justice, without notice to the parties, is liable to be set aside.
7. Local Commissioner Compared with Local Inspection
Basis | Commission for local investigation, Order XXVI Rule 9 | Local inspection by the judge |
|---|---|---|
Who goes | A commissioner appointed by the court | The judge himself |
Purpose | To elucidate a matter in dispute, or to ascertain market value, mesne profits, damages or annual net profits | To understand and appreciate the evidence already on the record |
Status of what is observed | The report and the evidence taken are evidence in the suit and form part of the record: Rule 10(2) | Not evidence; the judge's observations cannot by themselves support a finding |
Can a finding rest on it? | Yes, the court may act on the report after considering objections | No. A finding must rest on the evidence; inspection only helps the judge interpret it |
Testing it | The commissioner may be examined in open court, and objections may be filed | The parties may be present, and the judge should record a memorandum of what he observed |
Further steps | The court may direct a further inquiry under Rule 10(3) or issue a fresh commission | None; the inspection is an aid to the judge, not a step in the proof |
8. Landmark Points
- Section 75 with Order XXVI. Seven purposes: examination of a person, local investigation, examination or adjustment of accounts, partition, scientific or expert investigation, sale of perishable property, and a ministerial act.
- Order XXVI Rule 4A. A court may, in the interests of justice or for expeditious disposal, issue a commission for the examination of any person.
- Order XXVI Rule 9. A local investigation is for elucidating a matter in dispute or ascertaining value, mesne profits or damages; it is not a means of collecting evidence a party should lead himself.
- Order XXVI Rule 10(2). The report and the evidence taken, but not the evidence without the report, are evidence in the suit; the commissioner may be examined in open court.
- Order XXVI Rule 10(3). Where dissatisfied, the court may direct such further inquiry as it thinks fit.
- Sections 76, 77 and 78. Commissions to other courts, letters of request for evidence abroad, and commissions issued at the instance of foreign tribunals.
9. Frequently Asked Questions
For what purposes can a commission be issued?
Under Section 75: to examine any person; to make a local investigation; to examine or adjust accounts; to make a partition; to hold a scientific, technical or expert investigation; to conduct the sale of property subject to speedy and natural decay in the custody of the court; and to perform any ministerial act.
When is a commission for local investigation issued?
Under Order XXVI Rule 9, where the court deems it requisite or proper for elucidating a matter in dispute, or for ascertaining the market value of property, or the amount of mesne profits, damages or annual net profits. It is not issued to collect evidence that a party ought to lead himself.
What is the evidentiary value of a commissioner's report?
Under Order XXVI Rule 10(2) the report and the evidence taken by him, but not the evidence without the report, are evidence in the suit and form part of the record. The report does not bind the court, which reaches its own conclusion after considering any objections.
How can a party object to a commissioner's report?
By filing objections in the suit. The court, or a party with the court's permission, may examine the commissioner in open court on the matters referred, on his report and on the manner of the investigation, and under Rule 10(3) the court may direct a further inquiry or issue a fresh commission.
What is the difference between a local commissioner and local inspection by the judge?
A commissioner's report and the evidence he takes are evidence in the suit and can support a finding. A judge's own local inspection is not evidence: it only helps him understand the evidence already on record, and no finding can rest on it alone.
Can a commissioner decide the dispute?
No. His function is ministerial and investigative: he records, measures, inspects, examines and reports. The judicial function of deciding the rights of the parties cannot be delegated, which is why his report is made evidence in the suit rather than a determination.
Can evidence be taken from a person outside India?
Yes. Section 77 allows a letter of request to be issued in lieu of a commission where the court is satisfied that the evidence of a person residing at a place not within India is necessary, and Order XXVI Rules 19 to 22 govern commissions at the instance of foreign tribunals.
10. Related Topics in This CPC Series
- Order XVIII: Hearing of the Suit and Examination of Witnesses
- Decree for Accounts under Order XX Rule 16
- Decree for Mesne Profits under the CPC
- Orders XVI and XVI-A: Summoning and Attendance of Witnesses