CODE OF CIVIL PROCEDURE AND LAW OF

LIMITATION
Project TITLE:
Appointment of commissioners

Submitted By:
Anwesha Tripathy
3rd Year(5th Semester)
Section-A
Roll Number-724

Submitted To:
Dr. B. Ravi Narayan Sarma
Assistant Professor(Law) & Assistant Registrar

Session: 2014-2015

ACKNOWLEDGEMENT
It is my greatest pleasure to be able to present this project of Code of Civil Procedure,1908. I
found it very interesting to work on this project. I would like to thank Dr. B. Ravi Narayan
Sarma, Assistant Prof., Faculty of law, and Assistant Registrar, Chanakya National Law
University for providing me with such an interesting project topic,for his unmatched efforts
in making learning an enjoyable process,for his immense sincerity for the benefit of his
students and for his constant unconditional support and guidance.

I would also like to thank my librarian for helping me in gathering data for the project. Above
all, I would like to thank my parents, elder sister and paternal aunt,who from such a great
distance have extended all possible moral and motivative support for me and have always
advised me to be honest in my approach towards my work.

I hope the project is upto the mark and is worthy of appreciation.

Anwesha Tripathy
Chanakya National Law University, Patna

CONTENTS
Acknowledgement
Introduction
Chapters:
1.
2.
3.
4.
5.

Rationale behind the appointment of Commissions

Powers of the Courts in appointment of Commissions and Commissioners
Appointment of Commissioner- Purpose, Procedure, Powers and Duties
General Provisions- Order XXVI Rules 15-18
Different Facets as to appointment of Commissioner

Conclusion
Bibliography

INTRODUCTION
The word Interim means for the time being or temporary or provisional or
intervening etc.. Interim orders are those orders passed by a Court during the pendency of a
suit or proceeding which do not finally determine the substantive rights and liabilities of the
parties in respect of the subject matter of the suit/proceeding, but only settle some intervening
matter relating to the cause. Such orders are made to assist the parties to the suit in the
prosecution of their case or to protect the subject matter of the suit, thus playing a crucial role
in the conducting of litigation in a proper manner. These interim orders include payment in
court(order 24), security for costs(order 25), commissions(order 26), arrest before
judgement(order 38), attachment before judgement(order 38), temporary injunctions(order
39), interlocutory orders(order 39), and appointment of receiver(order 40).
This project deals with the appointment of commissioners for the commissions issued under
order 26 of the Code. Under Section 75, the Court, subject to prescribed conditions and
limitations, is empowered to issue a commission for various listed purposes, to carry out
which, a person as deemed fit by the court may be appointed as the commissioner as per the
relevant rules in order 26 which shall be discussed in details in the subsequent chapters.

RATIONALE BEHIND THE APPOINTMENT OF COMMISSIONERS

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 suit1. 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. Commissions
are appointed for a variety of purposes which have been mentioned in section 75 of the Code,
which include examination of witnesses, local investigation, adjusting of accounts, partition,
other investigation, conducting sales, or performance of any ministerial act.

1 C.K Takwani, Civil Procedure (Lucknow: Eastern Book Company, 2001)at 186.
2 Section 94(e) of the Code of Civil Procedure, 1908.
3 Supra note 1 at 187

POWERS OF THE COURT IN APPOINTMENT OF

COMMISSIONS AND COMMISSIONERS
The Code of Civil Procedure contemplates the issue of Commissions for the purposes of
examining witnesses, making local investigations, performance of ministerial acts, sale of
movable property, conducting scientific investigations, examining accounts and to make a
partition. The Code lays down these general purposes for which Commissions may be issued
but the issue of a Commission is a matter of judicial discretion 4. Thus commissions may be
issued for other purposes too if the Court thinks it fit to do so. It has been held in Abdul Jalil
v. State of Uttar Pradesh5 that Order 26 of the Code of Civil Procedure does not exclude the
inherent power of the Supreme Court to appoint Commissioners for making inquiry into
alleged violations of fundamental rights.
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 6. 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 but is not
binding on the Court. The Commissioner exercises no judicial function and is duty bound to
follow the instructions of the court 7. His report may or may not be used by the Court in
coming to a decision.

4 M.P Tandon and Rajesh Tandon, The Code of Civil Procedure (Allahabad: Allahabad Law
Agency, 1990)at 251
5 AIR 1984 SC 882
6 Kishore Kumar v. Rakeshkumar Jayprakash Agrawal, AIR 1992 Guj 95
7 Supra note 1 at 188

Order 26 makes provisions for Commissions to be issued by foreign courts too.

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 will serve the greater purpose of timely Justice delivered with fairness
and in keeping with the laws of the land and the principles of natural justice.
APPOINTMENT OF COMMISSIONERS: PURPOSE, PROCEDURE, POWERS
AND DUTIES
Section 75 of the Code of Civil Procedure,1908, enacts that a Court may issue a
Commission for any of the following purposes:

i.

To examine witnesses
To make a local investigation
To examine or adjust accounts
To make a partition
To hold a scientific, technical or expert investigation
To conduct a 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
To perform any ministerial act
Commissions for Examination of Witnesses:

Order 26 Rules 1-8 deal with commissions set up for the purpose of examining witnesses.
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 8. 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 vexatious9. A Commission may also be issued with

8 P.M Bakshi, Mulla-The Code of Civil Procedure (Bombay: N.M Tripathi Private Limited,
1990)at 871
9 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

the consent of the parties in cases not falling under this rule 10. If the report of one
Commissioner is unsatisfactory, the Court can remit it to the same Commissioner or
appoint another Commissioner. It has been held that a Court can issue Commission
even after remand11. The Court can, suo motu, cancel the previous order issuing
Commission though there is no express provision in this regard 12. The successor of a
Judge has the power to cancel the issue of a Commission made by his predecessor13.
The issue of a Commission is a matter of judicial discretion. The Supreme Court
in Filministan Ltd. Bombay v. Bhagwandas 14 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
10 Gopal Das v. Jagannath, AIR 1938 All 370
11 Achhru Mal v. Maula Bakhsh, AIR 1925 Lah 29
12 Narain Dass v. Karam Chand, AIR 1968 Delhi 226
13 Chettyar v. Maung Ba Chit, AIR 1930 Rang 315
14 AIR 1971 SC 61

evidence being tested fairly, or when the application is made to avoid crossexamination before the Court, the Court is not bound to issue a Commission 15. 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 cases16. 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 17. 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 commission18.
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 status19. Thus a Bishop is not entitled to be examined on
Commission owing to his rank as a spiritual head and dignitary of the church20.
Section 132 of the Code of Civil Procedure recognizes the right of `pardanashin
ladies who can claim the privilege of being examined on Commission 21. 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 sickness and the risk consequent upon the
15 Rahuria Ramkali Kuer v. Chhathoo Singh, AIR 1961 Pat 210
16 In Re: Subramanian Chettiar, AIR 1955 Mad 210
17 D.V Chitaley, Code of Civil Procedure Volume IV (Nagpur: All India Reporters Limited,
1971)at 101
18 Raghubir Dayal Prasad v. Ramekbal Sah, AIR 1986 Pat 83
19 Panachand Chhotalal v. Mansharlal Nandlal, AIR 1917 Bom 155
20 A.Marcalline Fernando v. St. Francis Xavier Church, Kottah, AIR 1961 Mad 31
21 Rahuria Ramkali Kuer v. Chhathoo, AIR 1961 Pat 210

refusal to issue a Commission. A medical certificate tendered in support of an

application for the issue of a commission on the ground of illness is inadmissible in
evidence22. 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 him. The commissioner also has
no power to record his findings on the basis of the evidence recorded by him on
Commission24. 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 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 himself25.

22 T.N Govindarajulu v. Lakshmi Ammal, AIR 1961 Mad 158

23 Ram Krishna Dalmia v. Feroz Chand, AIR 1960 Punj 430
24 Krishna Sharan Shukla v. Bali Bhadar Shukla, AIR 1952 All 140
25 Ram Sewak Koeri Mosadi Koeri v. Harihar Prasad Singh, AIR 1927 Rang 175

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 waived26.
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 127. 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 Commission but a matter which is entirely up to the party 28.
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.
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 crossexamined or their examination will entail heavy costs are not adequate reasons to
refuse issue of a commission in case of persons residing abroad 29. 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

26 Dinanath Law v. Metharam Navalrai and Co., AIR 1921 Cal 852
27 Ramalinga Iyar v. Sankaranarayana Ayyar, AIR 1929 Mad 192
28 T.L Venkataraman Aiyar, Mulla on the Code of Civil Procedure Volume II (Bombay: N.M
Tripathi Private Limited, 1967)at 1321
29 Filministan Ltd. Bombay v. Bhagwandas, AIR 1971 SC 61

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 crossexamine 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 Das30 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 India31.
ii. Commissions for Local Investigations:
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

30 AIR 1952 All 563

31 AIR 1964 Pat 142

be had on the spot32 and to elucidate any point which is left doubtful on the evidence
taken before the Court33. 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.
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 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 examination34. A Commissioner appointed to do a certain work must do
it himself and cannot get it done by someone else 35. A Commissioner is also bound to
record the state of things as actually existing and not draw upon his own imagination
or make surmises36. The report submitted by a Commissioner after local investigation
is evidence in the suit and shall form part of the record.
iii.

Commissions for Scientific Investigation, Performance of Ministerial Act and

Sale of Movable Property:
Rules 10A, 10B and 10C deal with Commissions set up for Scientific Investigation,
Performance of Ministerial Act and Sale of Movable Property respectively. Under
these provisions where any question arising in a suit involves any scientific
examination, 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

32 In Re: P. Moosa Kutty, AIR 1953 Mad 717

33 Debendranath Nandi v. Natha Bhuiyan, AIR 1973 Orissa 240
34 Sitaram v. Ram Prasad Ram, AIR 1915 Cal 280
35 Damodaran v. Karimba Plantations Company Limited, AIR 1959 Ker 358
36 M.N.D Varu v. The Board of Trustees, Tirupathi, AIR 1959 Andh Pra 64

into such question, to perform the ministerial act or conduct such sale and report
thereon to the Court.
iv. Commissions to Examine or Adjust Accounts:
Rule 11 deals with Commissions issued to examine or adjust accounts. The
wording of this Rule clearly provides that no order can be made for the appointment
of a Commissioner unless the examination or adjustment of accounts is considered
necessary37. If the accounts are complicated and require an examination then the Court
may appoint a Commission under this Rule. The Court can issue commissions to
examine accounts only for the purposes specified in Section 75 (c). There is no
provision in the Civil Procedure Code for the appointment of a Commissioner to seize
the account books in the possession of the plaintiff on the ground of the defendants
apprehension that they would be tampered with. Courts inherent powers cannot be
invoked for the purpose of issuing Commissions for examination or adjustment of
accounts38.
Rule 12 is titled Court to give Commissioner necessary instructions. Under this
Rule the Court is bound to furnish the Commissioner with the requisite proceedings
and issue definite instructions as to what he should do with respect to adjustment or
examination of accounts. It is not the function of the Commissioner to act as arbitrator
and settle the disputes between the parties but to decide them judicially on a
consideration of the evidence and to submit his report to the Court.
v. Commissions to make Partitions:
Rule 13 provides that 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 Section 54 of the Civil Procedure Code.
Rule 14 lays down the Procedure of Commissioner with respect to
commissions issued for the purpose of making partitions of immovable property. It is
37 Chandu v. Kirpa Ram, AIR 1952 HP 65
38 Padam Sen v. State of Uttar Pradesh, AIR 1961 SC 218

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.

GENERAL PROVISIONS: ORDER XXVI RULES 15 TO 18

Order 26, Rules 15-18 of the Code of Civil Procedure relate to general provisions
relating to Commissions and Commissioners:
Rule 15: Expenses of Commission to be paid into Court
The rule provides that the Court may, if it thinks fit, order the party requiring
the commission to deposit the necessary expenses thereof. The rule is not exhaustive
and does not prevent the Court from imposing any terms that it chooses as a condition
precedent to the issuing of a commission. Nor does an omission on the part of the
Court to require the deposit of the expenses prevent the Commissioner from
recovering his remuneration from the party at whose instance he was engaged 39. There
is a conflict of judicial opinion on the point that if the party who has been ordered by
the Court to deposit the expenses of the Commission does not comply with the order
then the Commissioner can execute the order. The weight of the authority is of the
view that the Commissioner can execute the order in case of non-compliance by the
party. Such an order, directing the party to pay a certain sum to the Commissioner,
cannot be made a part of the decree as the Commissioner is not a party to the suit.
The expenses of the commission do not include expenses of the other parties
to the litigation. Such expenses cannot be ordered to be deposited even under Section
39 Pramatha Nath Sen Gupta v. Sheikh Abdul Aziz Meah, AIR 1923 Cal 436

151, Code of Civil Procedure40. But an order directing costs of Commissioner to be

borne by the petitioner in any event is within the jurisdiction of the court and is not
open to objection.
The object of requiring the expenses to be deposited beforehand is that the
Commissioner who is an Officer of the Court ought not to be driven to a separate suit
or execution to get his fees. Failure to deposit the required fees cannot afford a ground
for rejecting the report of the Commissioner, or striking off the defence or for
dismissing the suit. Courts in appointing Commissioners and in fixing their
remunerations under Order 26, Code of Civil Procedure act judicially and not
administratively.
There is no express provision which allows a court to direct a party to deposit
a further sum after the commission has issued. But it can do so under its inherent
powers41.
Expenses of the commission may be apportioned between the parties to a suit for
dissolution of partnership and taking of accounts, in proportion to their shares42.
It has been held that the matter of reduction or disallowance of a Commissioners bill
is a matter for the trial court and the Court will not be justified in re-opening or
reducing the fees fixed in the presence of the parties and paid into court 43. The Court
should fix remuneration for the Commissioner that is commensurate to the difficulty
and importance of the work done. The remuneration is not for labour expended on or
for days spent but for an efficient piece of work. If he merely executes the
Commission nominally, he is not entitled to any fees. Where a Commissioner has
already taken payments provisionally, he must refund them if it is subsequently found
that they have not been earned by real work but that the Commissioner has executed
the Commission only nominally44.

40
41 Syamala Pictures Limited v. M.V Siva Sarma, AIR 1960 Andh Pra 387
42 M.C Manickam v. V.S.M Sivalingam Chettiar, AIR 1977 Mad 324
43 Ramnarain Sah v. Basanti Lal Sah, AIR 1933 Pat 681

Rule 16: Powers of Commissioners:

A Commissioner has the power to:
i.
Examine the parties and witnesses
ii.
Call for and examine documents
iii.
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 accounts. It has been observed that an order rejecting the application for
issuance of a commission can be revised.
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.

44 Surendranath Sen Gupta v. Secretary of State, AIR 1934 Pat 316

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. 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.
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. 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
sustained.

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.
45 Ram Krishna Dalmia v. Feroz Chand, AIR 1960 Punj 430
46 Jamil Ahmed Taban v. Must. Khair-Ul-Nisa, AIR 1970 Delhi 205

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.

DIFFERENT FACETS AS TO APPOINTMENT OF

COMMISSIONERS
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.
The importance of the Commission and the appointment of Commissioner can be seen
in the new stance of American Civil Procedure veering towards a similar process as the
Commission in which the Court has great control over the functions of the commissioner
and the purpose for which the Commission has been set up. Through the Commission and

the appointment of Commissioner Courts in India exercise almost total control over the
purpose for which the Commission has been set up. In the United States the parties and their
attorneys perform all the functions of examination of witnesses, investigation, fact
gathering, collection of evidence etc. (purposes for which Commissions may be set up in
India) with little or no interference from the Court. However this is now changing.
American trial judges are exercising increasing control over the conduct of fact
gathering which is one of the purpose for which a Commissioner may be appointed in India.
In cases with many parties and many issues, the feeling grew that court-centered
control was needed to prevent the confusion and duplication that would result if the
adversaries were left to themselves, each pursuing the course that is most favorable to his
particular client. The American legal fraternity thus developed a Manual for Complex
Litigation. The Manual effects judicial control over adversary fact-gathering through a set
of interconnected measures.
Thus the very essence of the appointment of Commissioner in India viz. control of the
Court over the Commission and the Commissioner acting wholly on the instructions of the
Court are being incorporated into the fact gathering process in the United States of America
which hitherto left the entire process of fact gathering, examination of witnesses and
gathering of evidence etc. wholly to the parties and their attorneys with minimal or no Court
interference. Although many American courtrooms remain untouched by the new
developments, the changes have occurred broadly enough to have about themselves the look
of the future.

CONCLUSION
To conclude, it is important to note here that while commissions cater to a great deal
of needs of the courts in the process of administration of justice, a judicial function of a
court cannot be delegated to a commission. As we have seen earlier, courts can appoint
commissioners in consonance with their powers with respect to any particular case or suit or
proceeding. These commissions shall then do that particular duty for which they have been
issued.

BIBLIOGRAPHY

1. C.K Takwani, Civil Procedure (Lucknow: Eastern Book Company, 2001).

2. D.V Chitaley, Code of Civil Procedure Volume IV (Nagpur: All India Reporters
Limited, 1971)
3. M.P Tandon and Rajesh Tandon, The Code of Civil Procedure (Allahabad: Allahabad
Law Agency, 1990).
4. P.M Bakshi, Mulla-The Code of Civil Procedure (Bombay: N.M Tripathi Private
Limited, 1990).