1

Commission
• Definition:

Commission is instruction or role given by the Court to a person to act on behalf of the
Court and to do everything that the Court requires to deliver full and complete justice. Such
person who carries out the commission is known as a Court commissioner.

Example:

Whenever the Court has to do a local investigation, a commissioner is appointed who

conducts the local investigation. Similarly, to record the evidence of a witness who cannot
come to the Court for evidence, the Court can issue a commission for recording of such
evidence.

• Relevant Articles and Order:

Article 75, 76, 77 and Order-26 of CPC.

• Appointment of a commissioner by Court:

Under CPC, the Court which issues the commission can appoint the commissioner. Section
75, provides that “the Court” can issue commission provided the limitations and restrictions
applicable. Therefore, the Court who has to decide the suit can appoint the commissioner.
Commissioner is appointed to carry out the functions for which the commission is issued.
Court has the discretionary power to appoint the commissioner and such power can be
exercised on the application of any of the parties or the Court can issue the commission suo
moto.

• Who can be appointed as a commissioner?

The person who is appointed as commissioner should be independent, impartial,

disinterested in the suit and the parties involved in it. Such a person should have the
requisite skills to carry out the commission.

It will be a complete waste of time and resources of the Court and the parties if a
person who cannot read and understand the accounts and documents is appointed
as commissioner to adjust accounts. Similarly, a person who does not have the
qualifications to conduct scientific investigation should not be appointed as a
commissioner for such task.

• Powers of the commissioner:

Under Order 26 Rule 16, powers of a commissioner are as follows:

a. Commissioner has the authority to examine the parties and the witnesses and any
other person who the commissioner thinks can give evidence in the matter referred
to him.
 2

b. Commissioner can direct the parties to produce any documents which are
required to be examined.

c. Commissioner also has the power to enter and search any land or building with
the permission of the Court.

d. If the party fails to appear before the commissioner after the order of the Court,
the commissioner can proceed ex parte.

• Purpose of issuing a commission by Court:

According to Section 75 of CPC, the Court has the power to issue a commission to carry out
the following functions:

1. To examine witnesses (Order 26 Rule 1-8).

2. To make local investigations (Order 26 Rule 9-10).
3. To adjust accounts (Order 26 Rule 11-12).
4. To make partition (Order 26 Rule 13-14).
5. To hold investigation (Order 26 Rule 10-A).
6. To sell the property (Order 26 Rule 10-C).
7. To do ministerial work (Order 26 Rule 10-B).

1. Commission for examination of witnesses:

The general rule of evidence is to bring the evidence before the Court and must be recorded
in open Court. But in extraordinary circumstances, the appearance of witness is dispensed
and the witness is allowed to depose evidence without appearing in Court.

Issuing of commission for the purpose of examination of witnesses is guided by Sections 76

to 78 and by Rules 1 - 8 of Order 26. Generally the examination of witnesses is done in an
open court. The evidence of the witnesses is examined by cross - examination and recorded
in the presence of all. However sometimes it may happen where the witness may not be
able to come and appear in the court. The reasons for the inability to come to the Court
must be reasonable.

The Court relaxes the rule of attendance in the Court and issues commission only if the
Court finds that the reason for non - attending the court is justified. The reasons for non -
attendance of the witnesses may be on the grounds of illness, or if the witness resides
beyond the local limits of the jurisdiction of the Court or any other reasons as the Court may
find sufficient.

2. Commission to make local investigations:

The Court can appoint commission for local investigation if the Court is of the opinion that a
local investigation is necessary:

a. For proper clarity of any matter in dispute, or

b. In ascertaining the market value of any property, or
c. To know the amount of mens rea or annual net profits.
 3

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

a. The pleadings of both the parties,

b. Relief claimed,
c. The real controversy between the parties.

It is important to note that the object of a commission is not to collect evidence which can
be brought to the Court by the parties but to acquire evidence from a fixed spot. It is also
used to enable the Court to have more clarity regarding the facts of the case.

Commissioner should not be appointed to provide pre-trial decree against the defendant,
that is, the Court should not appoint a commissioner to provide the relief claimed, directly
or indirectly, by the plaintiff before the final decree is passed. It is important because such
commission will prejudice the rights of the defendant to a fair trial.

3. Commission to adjust accounts:

Rules 11 and 12 of Order 26 of the CPC, 1908 guide the action of conducting an investigation
by the Court by issuing a commission to examine and for the adjustment of accounts. The
Court issues gives necessary instructions to the commissioner and the reports provided by
the Commissioner shall then be deemed to be evidence in the Court.

4. Commission to make partition:

This is guided by Rules 13 and 14 of Order 26 of CPC, 1908. In this case, the Court issues a
Commission when a preliminary decree of partition of an immovable property has been
passed by the Court. The duty of the Commission is to make the partition according to the
guidelines provided by the decree. The Commissioner then divides the property into the
required number of parts and then allots the shares to the parties. After partitioning and
allotting the parts of the property to the rightful owners, the Commissioner prepares a
report and provides it to the Court. After allotting, if any party objects or is unsatisfied of
something, the Court hears their objections and passes a final allotment decree.

5. Commission to hold investigation:

According to Order 26 Rule 10-A, When the Court has to conduct a scientific investigation,
the Court can appoint a commissioner who will then be responsible for such investigation.
For example, to identify the substance used as a raw material in the subject matter, the
Court may issue commission to hold scientific investigation.

After conducting such investigation the commissioner has to submit the report within the
time prescribed by the Court.

6. Commission to sell the property:

This is guided by Rule 10-C of Order 26 of the CPC, 1908. The Court issues a commission
when the Court requires selling a movable property on which the Court has custody and on
which a case is pending. The selling of the property becomes necessary if the property
cannot be properly preserved or if the court deems the selling necessary in the interest of
justice. The Commissioner is directed to sell off the property and submit the report of the
sale to the Court.
 4

7. Commission to perform ministerial work:

Ministerial work means the administrative work which the Court has to do, but are not of
judicial nature like accounting, calculation, etc. Such work takes a lot of valuable time of the
Court which can be used in other important judicial functions.

Therefore, the Court appoints a commissioner to do such works on behalf of the Court. It is
important to note that commissioners cannot do judicial functions.

Procedure for carrying out the commission:

a. The commissioner will conduct the local investigation, examination of witnesses,

adjust accounts and other functions as ordered in the commission.

b. After completion of the function, the commissioner will reduce the findings in
writing and will make a report.

c. The commissioner will submit the report signed by him along with the evidence
recorded in the Court.

d. The report of commissioner will form a part of the record.

e. While examining the report, the Court or the concerned parties, after prior
permission, can examine the commissioner personally in open Court.

f. If the Court is dissatisfied with the proceedings of the commissioner the Court can
order a further inquiry on the commission or can issue a fresh commission and
appoint a new commissioner.

To summarize, the commission can be issued in the following circumstances:

a. To make a local investigation.

b. To adjust accounts.
c. To make partition.
d. To hold investigation.
e. To conduct sales.
f. To perform ministerial work.

___________________________________________________