Commission for examination of any person resident within the local limits of the jurisdiction of the Court:
Notwithstanding anything contained in these rules, any Court may in the interest of justice or for the expeditious disposal of the case or for any other reason, issue commission in any suit for the examination, on interrogatories or otherwise, of any person resident within the local limits of its jurisdiction, and the evidence so recorded shall be read in evidence. (Order XXVI, Rule 4-A).
A commission for the examination of any person may be issued to any court (not being a High Court) situate in a State other than the State in which the Court of issue is situate.
Where evidence of a person residing outside India is necessary, the court may issue either a commission or a letter of request. (S. 76 and Order XXVI, Rule 5). Every court receiving a commission for the examination of any person shall examine him or cause him to be examined pursuant thereto and return the commission together with the evidence which shall, subject to the provisions of Rule 8, form part of the record of the suit. (Order XXVI, Rule 7).
Evidence taken under commission shall not be read as evidence in the suit without the consent of the party against whom the same is offered, unless: (a) the person who gave the evidence is beyond the jurisdiction of the court, or dead, unable, from sickness or infirmity, to attend, or exempted from personal appearance in court, or is a person in the service of the Government who cannot attend without detriment to the public service, or (b) the court authorises the evidence to be read as evidence in the suit. (Order XXVI, Rule 8).
A commission to make local investigation may be issued for the purposes 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. (Order XXVI, Rule 9).
The judicial function of a court cannot, however, be delegated to a commissioner.
The commissioner should return his report after making an inspection along with the evidence, if any, recorded by him to the court.
Such report and the evidence taken by him shall be evidence in the suit and shall form part of the record, but the court or the parties, with the permission of the court, may also examine the commissioner in 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. A further inquiry may be directed by the court where for any reason it is dissatisfied with the proceedings of the commissioner. (Order XXVI, Rule 10).
Rule 10 of Order XXVI does not make the report of the commissioner as concluding the question of valuation. On the contrary the rule gives clear indication that the report of the commissioner is only one of the pieces of evidence amongst other evidence to be led by the parties for determination of the issue on valuation of the suit.
Finding of appellate court about encroachment by defendant on area belonging to plaintiff was substantiated by the report of Local Commissioner. On basis of factual matrix High Court and Supreme Court refused to interfere that finding of fact.
Commissioner Report—Suit for declaration of title and recovery of possession:
Where such suit was dismissed solely on basis of report of Civil Court Commissioner. Plaintiff had tried to base his case on minor contradictions in defendant’s evidence. Said minor contradictions did not amount to admission of plainiff’s title and possession over suit land but relating to manner of possession over suit land as claimed by defendant.
Held, that such contradictions ipso facto had not proved title of plaintiff over suit land or factum of forcible dispossession by defendants. As such dismissal of suit solely on the basis of the report of Civil Court Commissioner without considering other evidence was not improper.
Commission for scientific investigation, performance of ministerial act and sale of movable property:
Under the provisions of Rule 10-C of Order XXVI, inserted by the Amendment Act, 1976, where any question arising in a suit involves any scientific investigation, the performance of a ministerial act or the sale of movable property in the custody of the court, which cannot, in the opinion of the court, be conveniently conducted, or performed before the court or in the case of movable property preserved, the court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question, to perform the ministerial act or conduct such sale and report thereon to the court.
The provisions of Rule 10 of Order XXVI shall apply in relation to a commissioner appointed under this rule as they apply in relation to a commissioner appointed under Rule 9.
The Division Bench appointed special officer and he demarcated plots with the help of a surveyor. The surveyor was appointed with the consent of the parties. The report of the special officer and survey done by the surveyor constituted an important item of evidence which could not have been ignored by Division Bench while disposing the appeal. The order of the Division Bench was quashed and the case was remanded for reconsideration on the ground of non-consideration of relevant material.
The court may issue a commission to such person as it thinks fit in a suit in which an examination or adjustment is necessary. The proceedings and report of the commissioner shall be evidence in the suit unless the court directs further inquiry. (Order XXVI, Rules 11 and 12).
Where a preliminary decree for partition of immovable property has been passed, the court may issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree, except in undivided estates assessed to the payment of revenue where the partition is made by the Collector under S. 54 of the Code. (Order XXVI, Rule 13).
Where in a suit for partition of joint family property, the trial court appoints a commissioner directing him to submit his proposals for partition of the property, and for that purpose authorises him to ascertain the property which was available for partition and to ascertain the liability of the joint family and for deciding those questions, the commissioner was empowered to record statements of the parties, frame issues and to record evidence as might be necessary, the court does not, by so authorising the commissioner, abdicate its functions to the commissioner.
The commissioner was merely called upon to make proposals for partition on which the parties would be heard, and the court would adjudicate upon such proposals in the light of the preliminary decree and the contentions of the parties. The proposals of the commissioner cannot from their very nature be binding upon the parties nor the reasons in support thereof.
Appointment of Commissioner to make partition of immovable property:
Commissioner could be appointed only after preliminary decree declaring shares of parties had been passed. Rule 13 will not come in operation where partition suit had been disposed of finally in terms of compromise decree.
Procedure of Commissioner:
The commissioner shall after inquiry divide the property into shares, shall allot such shares to the parties and award sums to be paid for the purpose of equalising the value of the shares in terms of the order under which the commission was issued. The commissioner shall then prepare and sign a report and transmit it to the court, which shall, after hearing any objections to the report confirm, vary or set aside the same. (Order XXVI, Rule 14).
Expenses of the Commission:
Before the issue of a commission the court may order for deposit of a sum into court to cover expenses of the commissioner by the party at whose instance or for whose benefit the commission is issued.
Appointment of guardian:
Where there was application by defendant that she was age old and had lost ability to understand. She prayed the Court to enquire about her state of mind, which was disallowed by trial Court. Held, that High Court in revision could not direct the trial Court to appoint guardian when no enquiry as contemplated by C.P.C. Order XXXII, Rule 15 was made.
Powers of Commissioner:
He may: (a) examine the parties and witnesses; (b) call for and examine documents; and (c) at any reasonable time enter upon or into any land or building mentioned in the order. (Order XXVI, Rule 16).
Questions objected to before the commissioner:
Where any question put to a witness is objected to by a party or his pleader in proceedings before a commissioner appointed under Order XXVI, the commissioner shall take down the question, the answer, the objections and the name of the party or, as the case may be, the pleader so objecting: Provided that the commissioner shall not take down the answer to a question which is objected to on the ground of privilege but may continue with the examination of the witness leaving the party to get the question of privilege decided by the court, and where the court decides that there is no question of privilege, the witness may be recalled by the commissioner and examined by him or the witness may be examined by the court with regard to the question which was objected to on the ground of privilege. [Order XXVI, Rule 16-A (1)]. No answer taken down under sub-rule (1) shall be read as evidence in the suit except by the order of the court. [Order XXVI, Rule 16-A (2)].
The provisions of the Code governing attendance and examination of witnesses shall also apply to persons required to give evidence or to produce documents before the commissioner. When the commissioner is not a judge of a civil court, he shall not be competent to impose penalities; but such penalties may be imposed on the application of such commissioner by the court by which the commission was issued. (Order XXVI, Rule 17). Where the parties do not appear before the commissioner, he may proceed ex parte. (Order XXVI, Rule 18).
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. (Order XXVI, Rule 18-B).
The provisions of Order XXVI shall apply, so far as may be, to proceedings in execution of a decree or order. (Order XXVI, Rule 18-A).
Commission by High Court:
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 Court’s appellate jurisdiction, it may issue a commission, upon application by a party to the proceeding before the foreign court, or upon an application by a law officer of the State Government, for the examination of such witness.
The 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. 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. (Order XXVI, Rules 19-22).