CIVIL PROCEDURE CODE, 1908

SYMBIOSIS INTERNATIONAL DEEMED UNIVERSITY

STUDY ON PERSONS FOR WHOSE EXAMINATION COMMISSION

MAY ISSUE

Submitted By:

Name: PRN No.:

Telaru Dharani 18010324153

Course: B.B.A. L.L.B.

Division: “D”

SYMBIOSIS LAW SCHOOL, HYDERABAD

In

Month of March, 2020

Under the Guidance of

Mr. Pankaj Umbarkar

(Assistant Professor)

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 CIVIL PROCEDURE CODE, 1908

CERTIFICATE

The project entitled “STUDY ON PERSONS FOR WHOSE EXAMINATION

COMMISSION MAY ISSUE” Submitted to the Symbiosis Law School, Hyderabad for Civil
Procedure Code as part of Internal Assessment is based on our original work carried out under
the guidance of Mr. Pankaj Umbarkar from the month of December to March.

The Research work has not been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the research paper has been duly
acknowledged.

We understand that we would be held responsible and accountable for plagiarism, if any,
detected later on.

Signature of the Candidate: TELARU DHARANI

Date: 10 March 2020

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 CIVIL PROCEDURE CODE, 1908

ACKNOWLEDGEMENT

We would like to express our sincere gratitude and indebtedness to Mr. Pankaj Umbarkar for
his/her enlightening lectures on commissions. We would also like to express our sincere
gratitude to our teaching staff for guiding us the path towards gaining knowledge.

We would like to thank the Library Staff of Symbiosis Law School, Hyderabad as well for their
co-operation.

We would also like to thank our batch mates and seniors who inspired, helped and guided us in
making this project. We are grateful to some of our seniors for their incredible guidance and
support.

Signature of the Candidate: TELARU DHARANI

Date: 10 March 2020

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 CIVIL PROCEDURE CODE, 1908

TABLE OF CONTENTS

1. RESEARCH OBJECTIVES……………………………………………………………….05

2. RESEARCH QUESTIONS………………………………………………………………..05

3. RESEARCH METHODOLOGY…………………….……………………………………06

4. LITERATURE REVIEW………………………………………………………………….07

5. INTRODUCTION…………………………………………………………………………08

6. CHAPTERIZATION………………………………………………………………………08

6.1 To examine any person……………………………………………………………….08

6.2 To make a local investigation…………………………………………………………11

6.3 To examine or adjust accounts…………………………………………………….....13

6.4 To make a partition……………………………………………………………………14

7. CONCLUSION…………………………………………………………………………….17

8. BIBLIOGRAPHY………………………………………………………………………….18

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 CIVIL PROCEDURE CODE, 1908

RESEARCH OBJECTIVES

 To study the evidentiary value of the commission issued.

 To study the power of the court to issue a commission.
 To analyse how a person residing in the local limits is examined by the commission.
 To find out how a government servant is examined by the commission.
 To study how the commission proceeds if the persons resides out of india and the court is
satisfied that his evidential.
 To study the land mark cases in the issuance of commissions.

RESEARCH QUESTIONS

 In what all cases the court can issue a commission?

 Can any court set up a commission for inquiry on its own without the interests of the
parties?
 Why is the issuance of the commission considered as discretionary power?
 What if the person who gave the evidence is dead?
 How does the commission collect evidence if the person is about to leave the jurisdiction
of the court?

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 CIVIL PROCEDURE CODE, 1908

RESEARCH METHODOLOGY

The Methodology followed in this paper is the Doctrinal Legal Research methodology. Doctrinal
Research is a theoretical research and it is pure in nature. The methodology adopted is largely
Analytical and descriptive. Reliance has been placed mostly on secondary sources like books and
articles. Data is collected from publications of concerned authorities, available books, research
papers and journals, articles on related topic, newspaper reporting and internet.

Doctrinal legal Research involves:

1. Systematically analyzing of statutory provisions and of legal principles involved therein, or

derived there from,

2. Logically and rationally ordering of the legal propositions and principles. Doctrinal research
also called as traditional research is concerned with documents rather than with people and
society or experience and observations etc. The scope of doctrinal research is wide enough and
fully differs from the non-doctrinal, which is also called empirical research.

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 CIVIL PROCEDURE CODE, 1908

LITERATURE REVIEW

The topic of the study is a practical concept which requires understanding of how the Indian
Judiciary have interpreted the concept of “Persons for whom examination commission may
issue” in safeguarding the interests of the accused persons, witnesses in civil cases, the origin of
concept and the recognition given to it by Indian Legal System with regard to Constitution of
India, 1949, Code of Civil Procedure, 1908 and other legislations.

Doctrinal, Theoretical, Secondary research methods will be used for studying the concerned
topic. Various Case laws, research papers and opinion of experts will be considered while
writing this paper. Books & Commentaries like C.K. Takwani’s book on Code of Civil
Procedure, 1908, Sarkar’s book on code of civil procedure and Majumdar’s book on Civil
Procedure Code, 1908 were referred while writing this research paper.

 Pg no. 322 to 326 are referred from C.K. Takwani’s book on Code of Civil Procedure,
1908.
 Pg no. 2208 to 2224 are referred from Majumdar’s book on Civil Procedure Code, 1908
 Pg no. 3119 to 3158 are referred from Sarkar’s book on code of civil procedure

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 CIVIL PROCEDURE CODE, 1908

INTRODUCTION:

Section 75 to 78 of Civil Procedure Code, 1908 discusses the powers of the court of law to issue
commissions. This power of the court to issue commission is discretionary and can be exercised
by the court for doing absolute and full justice to the parties in the suit. “The court can exercise
this power either on an application by a party to the suit or of its own motion (suo moto).”1

Generally, the Court may issue a commission for the following reasons-

(a) To examine any person;

(b) To make a local investigation;

(c) To examine or adjust accounts; or

(d) To make a partition

 TO EXAMINE WITNESSES: Sections 76-78; Order 26 Rules 1-8

Generally, the evidence given by the witness to a case should be taken in open court and must be
tested by cross-examination irrespective of the fact whether the witness is party to the suit or not.
If a person is unable to attend the court because of sickness, illness or detriment to the public
interest is enough for issue of commissions. The court has discretion to relax the rule of
attendance in court where the person sought to be examined as a witness resides beyond the local
limits of the jurisdiction of the court2 or on any other ground which the court thinks sufficient, 3
For example:- a witness who is paramhansa (who always remains in naked condition),
can be examined on commission.4 Similarly a commission can be issued if the witness to the
suits apprehends danger to his life if he appears before the court.5
1
Padam Sen v. State of U.P., AIR 1961 SC 218.
2
Ramakrishna Kulvant Rai v. F.E. Hardcastle & Co. (P) Ltd., AIR 1963 Mad 103 at p. 104;Filmistan (P) Ltd. v.
Bhagwandas Santprakash, (1970) 3 SCC 258 : AIR 1971 SC 61.
3
Bandhua Mukti Morcha v. UOI, (1984) 3 SCC 161 : AIR 1984 SC 802.
4
Paramhansa Ramkrishna v. Trimbak Rajaram, AIR 1978 Bom 176.
5
Vinayak Trasding Co. v. Trimbak Rajaram, AIR 1987 AP 236.

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 CIVIL PROCEDURE CODE, 1908

It is a matter of judicial discretion to issue a commission to examine the witness. 6 Therefore, the
application for issuing the commission will not be valid unless it is proved

Firstly, it is made bona fide.

Secondly, the issue is in the jurisdiction of the court.

Thirdly, the witness provides us with evidence material to the case.

Fourthly, valid reasons why witness isn’t examined.7

On the other hand, this is to be noted that a party accused of fraud can’t seek himself on
commission.8 If the party who wants to appear as a witness before the court of law establishes
that he is a man of rank or having social status and it is derogatory for him to appear before the
court a commission can be issued.9

The principles of Justice, equity and good conscience are to be kept in mind while applying the
discretion to the court.10 Just because the judge doesn’t see a fair exercise by examining the
witness isn’t valid enough reason for not issuing a commission. 11 Unless the court feels it would
be abuse to the party it might not issue a commission for examining the witness.

Cases in which commission may be issued:

A party has a legal right to apply to a court to issue a commission for examining the witness.12

The court can issue a commission for the examination on interrogatories or otherwise of any
person in the below circumstances:

(i) If the person to be examined as a witness resides within the local limits of the court’s
jurisdiction unless
 He is exempted under Civil Procedure Code from attending the court

6
Filmistan private Ltd. v. Bhagwandas Santprakash, AIR 1971 SC 61.
7
Saleji v. Ahmed Musaji, 19 I.C. 649.
8
Satish Chandra v. Kumar Satish Kantha, AIR 1923 PC 73 : 171 IC 391 : (1924) 39 Cal LJ 165 (PC).
9
A. Marcalline Fernando v. St. Francis Xavior Church, AIR 1961 Mad 31; Pananachand Chhotalal Manoharlal
Nandlal, AIR 1917 Bom 155.
10
Jaya Shankar Mills Ltd. v. Hazi Zakaria Hazi Ebrahim, AIR 1962 AP 435.
11
Hurree Dass v. Meer Moazzam, 15 W.R. 447.
12
Ibid.

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 CIVIL PROCEDURE CODE, 1908

 He is sick or ill or unable to attend the court

 His examination on the commission will be proper in the interest of justice or for
expeditious disposal of the case or for any other reason.13
(ii) If he resides beyond the local limits of the jurisdiction of the court.14
(iii) If he is about to leave the jurisdiction of the court.15
(iv) If he is a government servant and cannot, in the opinion of the court, attend without
detriment to the public service.16
(v) If he is residing out of India and the court is satisfied that his evidence is necessary.17

The court may issue such a commission either suo motu (of its own motion) or on the application
of any party to the suit or of the witness to be examined. 18 The evidence taken on commission
shall form part of the record.19 It shall, however, not be read in evidence in the suit without the
consent of the party against whom it is offered, unless

 The person, who gave the evidence, is beyond the jurisdiction of the court, or dead or
unable form sickness or infirmity to attend to be personally examined, or exempted from
personal appearance in court, or is a person in the service of the government who cannot,
in the opinion of the court, attend without detriment to the public service, or
 The court in its discretion dispenses with the proof of any such circumstances.20
13
Or. 26 Rr. 3; “A commission for the examination of a person who resides within the local limits of the jurisdiction
of the Court issuing the same may be issued to any person whom the Court thinks fit to execute it” ; Or. 26 Rr. 4-A;
Ss. 76, 77, 78.
14
Or. 26 R. 4.
15
Ibid.
16
Ibid.
17
Or. 26 Rr. 5, 10, 12, 14.
18
Or. 26 Rr. 2, “An order for the issue of a commission for the examination of a witness may be made by the Court
either of its own motion or on the application, supported by affidavit or otherwise, of any party to the suit or of the
witness to be examined” ; Or. 26 Rr 6, “Every Court receiving a commission for the examination of any person shall
examine him or cause him to be examined pursuant thereto.”
19
Or. 26 R. 7. “Where a commission has been duly executed, it shall be returned, together with the evidence taken
under it, to the Court from which it was issued, unless the order for issuing the commission has otherwise directed,
in which case the commission shall be returned in terms of such order; and the commission and the returned thereto
and the evidence taken under it shall 8[(subject to the provisions of rule 8)] from part of the record of the suit.”
20
Or. 26 R. 8. “Evidence taken under a 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 or unable from sickness or
infirmity to attend to be personally examined, or exempted from personal appearance in Court, or is a 9[person in
the service of the Government] who cannot, in the opinion of the Court, attend without detriment to the public
service, or

(b) the Court in its discretion dispenses with the proof of any of the circumstances mentioned in clause (a) and

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 CIVIL PROCEDURE CODE, 1908

 TO MAKE LOCAL INVESTIGATION: Rules 9 and 10

The court may, in any suit, issue a commission to such a person as it thinks fit directing him to
make local investigation and to report thereon for the purpose of (a) elucidating or clarifying any
matter in dispute; or (b) ascertaining the market value of any property or the amount of any
mesne profits or damages or annual net profits.21

The object of local investigation is not to collect evidence which can be taken in court but to
obtain evidence which from its very peculiar nature can be had only on the spot. 22 Such evidence
on record and clarify any point which is left doubtful. 23 It also helps the court in deciding the
question in controversy pending before it, e.g., whether the suit premises is really occupied by
the tenant or by strangers.

The aim of Order 26 Rule 924 is to collect evidence of peculiar nature. The judge enjoys the
power to make a local investigation in person in any case if he see it fit or he can appoint a
judicial commission under his judicial powers it is not to be considered if he can conduct the
investigation in person.25Where the judge makes a local investigation, he should put the result on
record,26 though it is not obligatory.27

“In the instant case, the plaintiff who claims that the suit property is lawfully belonging to her
has been encroached upon by the defendants and annexed to their lands has filed an application
for the appointment of commissioner to measure the property and submit a report with sketch
and high court has wondered as to why the plaintiff has not resorted to file an application nor
even the defendants thought of in this line, as a result of which the courts have to arrive at their

authorizes the evidence of any person being read as evidence in the suit, notwithstanding proof that the cause for
taking such evidence by commission has ceased at the time of reading the same.”
21
Or. 26 R. 9.
22
Padam Sen v. State of U.P., AIR 1961 SC 218 ; P. Moosa Kutty, re, AIR 1953 Mad 717 at p. 718 ; Debendranath
v. Nath Bhuyian, AIR 1973 Ori 240 at p. 241.
23
Ibid.
24
 “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 : Provided that, where the State Government has
made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.”
25
Sabapathi v. Perumal, I.L.R. 44 Mad 640
26
Joy Coomar v. Buadhoo Lall, 12 C.L.R 490
27
Raj

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 CIVIL PROCEDURE CODE, 1908

own conclusions based on the paltry evidence placed on record and , therefore since the best of
evidence in cases of such nature could have been obtained by appointment of a commissioner
and ascertainment of the extent of lands in possession and enjoyment of each party to the contest,
and since this legal necessity has not been complied with the lower courts have not been in a
position to act with the conclusive proof which could be relied upon and, therefore, it is only
desirable to do only this requirement which is absolutely necessary in the case at hand and,
therefore, needless to mention that this is a case which has to remanded to the trial court for
observing this requirement in the circumstances of the case and to give a decision based on such
report obtained.28”

 COMMISSIONS TO EXAMINE ACCOUNTS

To adjust accounts: Rules 11 and 12

Court can appoint a commissioner for examining or adjusting the accounts 29 without even taking
the consent of the parties.30 When a commissioner is appointed to look into the accounts the court
is bound to take the commissioner’s report as evidence.31 The duty of the commissioner is to give

28
Vaittinattar v. sakkubai Ammal, AIR 2004 Mad 419.
29
Chandu v. Kirpa Ram, AIR 1952 HP 65
30
Watson v. Aga. Mehedee, 1. I.A. 362.
31
Munshi Ram v. Misri, 70 P.L.R. 1915.

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 CIVIL PROCEDURE CODE, 1908

the court all the information which the accounts give. 32 The purpose for appointing the
commissioner by the court is to show what accounts are to the court.33

If the plaintiff doesn’t make any allegation if his books are being falsified, he should take up the
duty to balance the accounts and under this rule the court isn’t supposed to depute a
commissioner.34 If in case the defendant is to be held liable for falsifying the account then an
interlocutory account is to be passed by the court directing him to file an account within a fixed
time period. If the defendant files then plaintiff must be allowed to examine the account and to
file the objections to check the correctness of the accounts. If the objections are very less in
number then the matter can be disposed of in the open court. However, if found the objections
are in numerous number then it is safe to appoint a commissioner under this rule and get the
accounts adjusted.35

When the report is submitted by a commissioner the court invites objections from the parties and
after disposing of the objections passes a final decree.36 The objectors should be allowed to
examine the commissioner and to substantiate by evidence their objections.37

The High Court enjoys the power to appoint a commissioner in appropriate suits. 38 Court cannot
dismiss the suit based upon the non-payment of the commissioner’s fee. 39 It isn’t expected from
the commissioner to decide the matter like a court, his work is to look into the accounts and
submit the report to the court. Commissioner is present only to assist the court in making its
decision. From the earlier paragraphs it is very clear to note down that the report produced by the
commissioner has the evidentiary value. If the court passes an order beyond the limits of Section
75(c) then the order is order is said to be passed without the jurisdiction.

 TO MAKE PARTITION: Rules 13 and 14

32
Tincowri v. Sattya Dayal, 6 C.L.J. 105.
33
Ibid.
34
Chand Ram v. Brojo Gobind, 19 W.R. 14.
35
Degambar v. I.L.R. 6 Cal. 654 ; Annoda pershad v. Dwarkanath, I.L.R. 6 Cal. 754.
36
Nawaneetdas v. Gobardhandas, AIR 1955 MB 113
37
Murti Mal v. Lachhman, 72 P.L.R. 1914.
38
Biharilal Ramcharan Cotton Mills Ltd. v. China Cotton Exporters, A.I.R. 1963 Bom 59.
39
Khadem Hussein v. Emad Hussein, I.L.R. 29 Cal. 758.

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 CIVIL PROCEDURE CODE, 1908

Under Rule 1340 and 1441 of order 26 of CPC, if the trial court for the purpose of ascertaining the
property, the debts the family appoints a commissioner, the trial court cannot be said to have
abdicated its functions to the commissioner.42 The commissioner who is appointed under this rule
has to decide for himself and come to the decision.43

Ordinarily, when the report of the commissioner is objected to, the court should hear to the
objection in open court and decide with the aid of such evidence, as it may take wheher the
report should be varied and if so in what direction. The court has, however, inherent power to fix
a time within which objections are to be filed and if its order is not complied with the court is
fully justified in refusing to hear such objections.such a person can’t be heard on those points in
the appellant court. The part to review the decision of the ommissioner on the facts is a matter
for the subordinate judge, and his view of the facts ought to be final, unless some questions of
principles in making the final allotment and drawing up the decree is involved.

In a suit for partition, an order subsequent to the preliminary decree of appointing a

commissioner for the partition is not an execution order and is not appealable.44

If the appointed commissioner has misconceived the duties as to render the reports made by him
useless then a new commissioner be appointed.45 There is no appeal against the order passed by
the court after referring commissioners reports.46

40
“Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by section
54, 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.”
41
“The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may
be directly by the order under which the commission was issued, and shall allot such shares to the parties, and may,
if authorised thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares.
The commissioner shall then prepare and sign a report or the Commissioners (where the commission was issued to
more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each
party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports
shall be annexed to the commission and transmitted to Court; and the Court, after hearing any objections which the
parties may make to the report or reports, shall confirm, vary or set aside the same.
Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as
confirmed or varied; but where the Court sets aside the report or reports it shall either issue a new commission or
make such other order as it shall think fit.”
42
R.B.S.S. Munnalal v. S.S. Rajkumar, AIR 1962 SC 1493
43
Gourhari Das v. Jaharlal Seal, AIR 1957 Cal . 90.
44
Alur v. Venkata , 52 I.C. 614.
45
Thothamma v. Subramanian, ILR 45 mad 79.
46
Pirthipal v. Bhaskor. AIR 1926 Oudh 195.

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 CIVIL PROCEDURE CODE, 1908

 COMMISSION FOR SCIENTIFIC INVESTIGATION, PERFORMANCE OF

MINISTERIAL ACT AND SALE OF MOVABLE PROPERTY.

To hold investigation: Rule 10 – A

“Where any question arising in a suit involves any scientific investigation which cannot, in the
opinion of the court, be conveniently conducted before the court, the court may, if it thinks it
necessary or expedient in the interest of justice so to do, issue a commission to such person as it
thinks fit, directing him to inquire into such question and report thereon to the court.”47

In general, scientific investigation means observations by way of experimenting and critically

testing under certain set of principles. For suppose, to compare a disput’08 c7ujied signature
involves a specialized skill which can’t be done by a lay-man without having the knowledge on
the scientific specialization on the subject.

To perform ministerial act: Rule 10-B

“Where any question arising in a suit involves the performance of any ministerial act which
cannot, in the opinion of the court, be conveniently performed before the court, the court may, if,
for reasons to be recorded, is of opinion that it is necessary or expedient in the interest of justice
so to do, issue a commission to such person as it thinks fit, directing him to perform that
ministerial act and report thereon to the court.”48

The commissioner’s report for the performance of the ministerial act can be considered as
evidence and can be taken under rule 10(2). Rules 10-A 10-C have been inserted by amending
the code in 1976 to provide for issue of commissions for scientific investigation, sale of movable
property and performance of a ministerial act. Ministerial work doesn’t mean the office work of
the court but includes work like accounting, calculation and other work of a like nature which the
courts are not likely to take up without wasting time. The function isn’t judicial function by the
commissioner appointed Hon’ble court.49

To sell property: Rule 10-C

47
Rr. 10-A
48
Rr. 10-B ; Jagatbhai Panjabhai Palkhiwala v. Vikrambhai Panjabhai Palkhiwala, AIR 1983 Guj 34.
49
Ibid.

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 CIVIL PROCEDURE CODE, 1908

“Where, in any suit, it becomes necessary to sell any movable property which is in the custody of
the court pending the determination of the suit and which cannot be conveniently preserved, the
court may, if, for reasons to be recorded, is of opinion that it is necessary or expedient in the
interest of justice so to do, issue a commission to such person as it thinks fit, directing him to
conduct such sale and report thereon on the court.”50

The provisions to issue commissions under the code of civil procedure are exhaustive and, hence,
the court cannot exercise inherent powers under Section 151 for the purpose. The Supreme Court
or High Courts under the constitution can exercise plenary powers to issue a commission for any
purpose.

CONCLUSION

The commissioner will conduct the exam of witnesses; modify bills and other functions as
ordered inside the commission. After final touch of the characteristic, the commissioner will
lessen the findings in writing and will make a record. The commissioner will post the file signed
by him together with the evidence recorded inside the Court. The file of commissioner will form
part of the report. While inspecting the file, the Court or the worried parties, after prior
permission, can examine the commissioner individually in open Court.

50
Rr. 10-C

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 CIVIL PROCEDURE CODE, 1908

If the Court is upset with the complaints of the commissioner the Court can order a similarly
inquiry on the fee or can difficulty a sparkling commission and appoint a new commissioner.

The commission is issued through the Court to offer full and entire justice. The Court has the
energy to difficulty commission in sure situations. Commissioner is appointed through the Court
to perform the commission issued with the aid of the Court. He assists the Court through taking
evidence, accomplishing neighborhood investigations, doing ministerial paintings and submits a
document after wearing out the commission.

A commissioner is, usually, an advocate who's in a panel fashioned by using the High Court and
from this sort of panel the Court appoints a commissioner. The tactics for the appointment are
formulated by means of the High Court.

The commissioner can workout certain powers granted via the Court to carry out the
commission. He can't perform the judicial function of the Court. He can most effective help the
Court in appearing such functions. The proof with the record submitted by way of him in the
Court forms a part of the document

BIBLIOGRAPHY

BOOKS & COMMENTARIES

 C. K. Takwani, Civil Procedure with Limitation Act,1963, Eighth Edition, EBC

Publishers
 Mulla, The Code of Civil Procedure, Nineteenth Edition, Lexis Nexis
 Dr. S.R. Myneni, Code Of Civil Procedure & Limitation Act, Third Edition, Asia Law
House
 M.P. Jain, The Code of Civil Procedure, Third Edition, Lexis Nexis
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 CIVIL PROCEDURE CODE, 1908

STATUTES & LEGILSATIONS

 The Code Of Civil Procedure

DYNAMIC LINKS

 http://www.manupatrafast.com
 https://www.scconline.com
 http://lexisnexis.co.in

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