NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

PROJECT

on

ISSUANCE OF COMMISSION UNDER CPC FOR RECORDING OF EVIDENCE:

WHERE PERMITTED WHERE NOT

Submitted by
Name: Adarsh sahu
Enrollment Number: BS0034
Roll Number: 2022Bscllb34
Vth Semester
B.Sc.LL.B. (Hons.)

Submitted to
Asst. Prof. Mr. Ranjan Kumar
Date of Submission
11th September 2024

1
 ACKNOWLEDGEMENT

“I would like to thank Assistant Professor Mr. Ranjan Kumar who guided and helped me during
the course of this project. It was her support which has enabled me to work on this topic. I am
grateful to the vice-chancellor of the university Prof. (Dr.) Surya Prakash who has given me this
opportunity to work on. I thank the I.T. team of NLIU who helped me with the internet
connections and the library staff who helped me in finding the relevant library resources. Next, I
would like to extend my thanks to my family and friends at NLIU who have helped me in this
endeavor and provided me with all the necessary resources for this project.”

2
 DECLARATION

“I, Adarsh sahu, S/o Mr.Dinesh sahu, roll no. 2022BSCLLB34, Enrollment No. BS0034, do
hereby declare that the project titled " ISSUANCE OF COMMISSION UNDER CPC FOR
RECORDING OF EVIDENCE: WHERE PERMITTED WHERE NOT " is the result of my
independent research, conducted under the guidance of Professor Ranjan Kumar. All sources
consulted during the research are fully acknowledged in the footnotes and bibliography. I have
taken all reasonable steps to ensure the originality of this project. In the event that a significant
level of similarity is identified through plagiarism detection, I understand that my course
instructor may request revisions. I am committed to complying with any such instructions.
Failure to do so may result in a referral to the Committee Against Use of Unfair Means, and I
agree to abide by their decision.”

Name of student: Adarsh Sahu

Enrolment Number: BS0034

Roll Number: 2022BScLLB34

3
 TABLE OF CONTENTS

ABSTRACT....................................................................................................................................5

LITERATURE REVIEW.............................................................................................................6

STATEMENT OF PROBLEM....................................................................................................8

HYPOTHESIS...............................................................................................................................8

RESEARCH QUESTIONS...........................................................................................................8

OBJECTIVES OF STUDY...........................................................................................................9

SUBSTANTIVE DISCUSSION AND ANALYSIS...................................................................10

CONCLUSION AND SUGGESTIONS.....................................................................................18

BIBLIOGRAPHY........................................................................................................................19

4
 INTRODUCTION

The concept of ‘Commission’ is an important subject matter in the branch of CPC. Commission
is an impartial person who is appointed by the Court and act as an agent of the Judge. The power
of the Court to issued Commission by the Court for doing full and complete Justice between the
parties.

Order 26 deals with commissions issued by Courts. Commissions are of four kinds-to examine
witnesses, to make local investigations, to examine accounts and to make partition of
immoveable property. Most of the provisions for commissions to examine absent witnesses were
adapted by the framers of the first Code (of 1859) from an Act of 18411. The rules as to
commissions for local investigations are ultimately derived from three old regulations.

The purpose of issuing commission by the court is to impart complete justice to the parties to the
suit. The power of issuing commission rests totally in the discretion of the judges[1]. By issuing
a commission in a particular case, the Court performs an in - depth investigation where the Court
deems necessary.

This project aims to explore the various facets of issuing commissions under the CPC for
recording evidence. It will also analyze the legal provisions governing this process, the grounds
on which commissions may be issued, and the judicial discretion involved in such decisions.
Furthermore, By delving into these aspects, this project seeks to provide a comprehensive
understanding of the issuance of commissions, their importance in civil litigation, and the
judicial safeguards necessary to ensure their proper application.

LITERATURE REVIEW

1. Mulla, D.F. and Shelat, J.M. (1989) Mulla on the code of civil procedure: Act V of 1908.
3. Bombay: Tripathi.

5
 Mulla's commentary offers a comprehensive analysis of Order XXVI of the CPC, which
governs the issuance of commissions for recording evidence. The work elucidates that Order
XXVI is an exception to in-court evidence recording, designed to facilitate evidence
collection in challenging circumstances. Mulla emphasizes the discretionary nature of
commission issuance, detailing various types such as witness examination and local
investigations. The commentary meticulously discusses procedural safeguards, the
evidentiary value of commission reports, and limitations on their use. It also addresses
critical aspects like cost considerations and the scope for appellate review. Mulla's work
remains a cornerstone in understanding the legal principles governing commissions in Indian
civil procedure, influencing subsequent judicial interpretations and academic discourse.

1. Sharma, R. and Reddy, K. (2018) Civil Procedure and Limitations. 24th ed. New Delhi:
LexisNexis.

Sharma and Reddy provide a contemporary analysis of the legal framework surrounding
commissions for evidence recording under the CPC. Their work delves into recent case law to
define the appropriate circumstances for issuing commissions, offering insights into how courts
are interpreting and applying Order XXVI in the modern context. The authors discuss the
delicate balance between judicial discretion and established guidelines, emphasizing the need for
judicious application of the commission mechanism. Notably, they examine the impact of
technological advancements on the commission process, highlighting how digital tools are
reshaping traditional procedures. This analysis proves invaluable for understanding the current
state of legal practice regarding commissions and anticipating future trends in civil procedure.

3. C K Takwani, Civil Procedure with Limitation Act, 1963 (9th edn, Eastern Book
Company 2022).

Takwani's comprehensive work on civil procedure provides a nuanced analysis of the

issuance of commissions under the CPC, offering both theoretical insights and practical
guidance. In his examination of Order XXVI, Takwani delves into the procedural intricacies
of appointing commissioners, emphasizing the court's discretionary power while outlining

6
 the circumstances that typically warrant such appointments. He meticulously dissects various
types of commissions, including those for examining witnesses, conducting local
investigations, and performing scientific examinations.

4. Bhattacharya, S. (2020) 'Open Courts and Commissions: A Balancing Act', National

Law School of India Review, 32(2), pp. 67-89.

Bhattacharya presents a critical examination of the commission system's impact on open court
principles, introducing important counterarguments to the widespread use of commissions. She
argues that the overuse of commissions can potentially undermine public transparency in judicial
proceedings and erode the principle of open courts. While acknowledging the efficiency benefits
of commissions, Bhattacharya contends that their use should be limited to prevent excessive
diminishment of judicial oversight. Her work explores the tension between the need for efficient
justice delivery and the fundamental principle of open and transparent court proceedings. This
critical perspective enriches the academic discourse by challenging assumptions about the
unmitigated benefits of commissions and prompting a reevaluation of their role in modern civil
litigation.

STATEMENT OF PROBLEM

This project aims to examine the legal framework governing the issuance of commissions under
the CPC, explore the circumstances where commissions are permitted, and address situations
where the issuance of a commission is not appropriate.

HYPOTHESIS

The issuance of commissions for recording evidence under the Civil Procedure Code (CPC) is an
effective mechanism to facilitate justice in cases where witnesses cannot be physically present in
court due to legitimate reasons.

7
 RESEARCH QUESTIONS

1. Under what circumstances is the issuance of a commission for recording evidence permitted
under the Civil Procedure Code?
2. In which situations is the issuance of a commission not permitted, and what are the guiding
principles for such restrictions?
3. How have courts interpreted the provisions of Section 75 and Order XXVI of the CPC in
relation to issuing commissions?
4. What safeguards exist to prevent the misuse of the commission process for delaying or
obstructing justice?

OBJECTIVES OF STUDY

1. To analyze the statutory provisions under Section 75 and Order XXVI of the Civil
Procedure Code governing the issuance of commissions for recording evidence.
2. To identify and critically evaluate the situations where the issuance of a commission is
permitted by law and where it is not.
3. To assess the judicial interpretation of commission-related provisions through the study
of relevant case law.
4. To explore the potential misuse of commission procedures and the measures courts adopt
to prevent it.
5. To offer insights into the balance between the practical utility of commissions and the
need to ensure the efficiency and fairness of judicial proceedings.

SUBSTANTIVE DISCUSSION AND ANALYSIS

LEGISLATIVE FRAMEWORK

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

8
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

The issuance of commissions under the Civil Procedure Code, 1908 (CPC) is a significant
procedural mechanism that allows the court to delegate certain functions to appointed
commissioners. This provision is primarily laid out in Sections 75 to 78 of the CPC,
supplemented by Order 26, which provides detailed rules governing the procedures for issuing
commissions. Together, these provisions form the legislative backbone that defines when and
how commissions can be issued in civil cases.

Sections 75 to 78 of the Civil Procedure Code, 1908

Section 75 of the CPC outlines the powers of the court to issue commissions. It acts as the
enabling provision, empowering courts to delegate certain tasks through commissions in a suit.
The section specifies five key purposes for which a commission may be issued:

 To examine witnesses: The court may issue a commission to record the testimony of a
witness who is unable to appear before the court due to age, illness, distance, or any other
valid reason.
 To make local investigations: Commissions may be issued to conduct on-site
inspections, particularly in cases where the court requires evidence regarding the
location, value, or condition of property.
 To examine or adjust accounts: In disputes involving complex financial accounts, a
commission can be issued to scrutinize and adjust the accounts, facilitating fair
adjudication.
 To make a partition: In suits for partition of property, a commission may be issued to
ensure a fair and proper division of the property among the parties.
 To hold a scientific or ministerial investigation: Commissions may be required for
conducting specialized investigations that the court may not be well-suited to handle,
such as scientific inquiries.

1
Padam Sen v. State of U.P., AIR 1961 SC 218.

9
Section 76 provides for the procedure of issuing commissions outside the local jurisdiction of the
court. It allows the court to issue commissions for the examination of witnesses residing beyond
the court's territorial limits, ensuring that vital testimony can be recorded even when the witness
is geographically distant.

Section 77 governs the manner in which commissions for examining witnesses may be executed
and returned when the witnesses reside in different jurisdictions. It sets out that the commission
must be sent to the appropriate court that has jurisdiction over the area where the witness resides,
which will then facilitate the recording of evidence.

Section 78 allows for the issuance of commissions in foreign territories where reciprocal
arrangements exist between India and the foreign country. This provision is crucial in cross-
border litigation, allowing the Indian courts to obtain evidence from witnesses or conduct
investigations outside India’s borders.

Order 26 of the Civil Procedure Code, 1908

Order 26 of the CPC supplements the provisions of Sections 75-78 by laying down the detailed
procedural rules for issuing commissions. It is divided into several rules that govern the specific
purposes for which commissions can be issued:

 Rules 1-8: Examination of Witnesses

These rules provide the framework for issuing commissions to examine witnesses. A
commission can be issued to record the testimony of any person whose attendance before the
court is not possible or is inconvenient due to sickness, distance, or other valid reasons. The
commission may either be for an oral examination or to record answers to interrogatories.

It is a matter of judicial discretion to issue a commission to examine the witness. 2 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.

2
Filmistan private Ltd v Bhagwandas Santprakash, AIR 1971 SC 61.

10
Thirdly, the witness provides us with evidence material to the case.

Fourthly, valid reasons why witness isn’t examined.3

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. 4

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
 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.5
(ii) If he resides beyond the local limits of the jurisdiction of the court.6
(iii) If he is about to leave the jurisdiction of the court.7
(iv) If he is a government servant and cannot, in the opinion of the court, attend without
detriment to the public service.8
(v) If he is residing out of India and the court is satisfied that his evidence is necessary.9

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. 10 The evidence taken on commission
shall form part of the record.11 It shall, however, not be read in evidence in the suit without the
consent of the party against whom it is offered, unless

3
Saleji v Ahmed Musaji, 19 I.C. 649.
4
Ibid.
5
The Civil Procedure Code, 1908 (5 of 1908), Ord XXVI, r 3.
6
The Civil Procedure Code, 1908 (5 of 1908),Ord XXVI, r 4.
7
Ibid.
8
Ibid.
9
The Civil Procedure Code, 1908 (5 of 1908),Ord XXVI, r 5, 10, 12, 14.
10
The Civil Procedure Code, 1908 (5 of 1908),Ord XXVI, r 2.
11
The Civil Procedure Code, 1908 (5 of 1908),Ord XXVI, r 7.

11
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.12

 Rules 9-10: Local Investigation

These rules govern the issuance of commissions for conducting local investigations. A
commission may be issued when the court needs to determine facts that can only be ascertained
through on-site inspection, such as property boundaries or the use of land. The object of this
investigation is to clarify any material points in the dispute that cannot be easily resolved through
documentary evidence.

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. 13 Such evidence
on record and clarify any point which is left doubtful. 14 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.

 Rules 11-12: Examination and Adjustment of Accounts

In suits involving complicated financial disputes, the court may issue a commission under these
rules to examine and adjust accounts. The commissioner appointed for this purpose is tasked
with analyzing financial records and providing the court with a detailed report to aid in the
resolution of the dispute.When a commissioner is appointed to look into the accounts the court is
bound to take the commissioner’s report as evidence.15

 Rules 13-14: Partition of Immovable Property

12
The Civil Procedure Code, 1908 (5 of 1908),O XXVI, R 8.
13
Padam Sen v State of U P, AIR 1961 SC 218 ; Debendranath v Nath Bhuyian, AIR 1973 Ori 240.
14
Ibid.
15
Munshi Ram v Misri, 70 P.L.R. 1915

12
Under Rules 13 and 14 of Order 26 of the CPC, when a trial court appoints a commissioner to
ascertain details regarding property or debts in a family dispute, it cannot be said that the court is
delegating its functions to the commissioner. The commissioner, appointed under these
provisions, is required to independently evaluate the situation and arrive at conclusions.16

If the commissioner’s report is challenged, the trial court should ordinarily hear the objections in
open court and, with the assistance of any necessary evidence, determine whether the report
needs modification, and if so, to what extent. However, the court has inherent authority to set a
deadline for filing objections. If this deadline is not met, the court may justifiably refuse to
consider the objections, and the party would not be allowed to raise those points during an
appeal. The subordinate judge is entrusted with reviewing the facts based on the commissioner’s
report, and their findings are generally conclusive unless an issue of principle arises in the final
allotment or drafting of the decree.

 Rule 10A: Scientific Investigations

This rule allows the court to issue a commission for scientific investigations. It is particularly
relevant in cases where technical or scientific expertise is required to resolve a dispute, such as
forensic analysis of documents or the valuation of complex machinery.

 Rule 10B: Ministerial Acts

Under this rule, a commission may be issued to perform ministerial acts, such as preparing
inventories, conducting auctions of movable property, or calculating damages. This helps
expedite judicial processes by outsourcing non-judicial tasks to a competent commissioner.

 Rule 10C: Sale of Movable Property

This rule provides for the issuance of commissions for the sale of movable property that is in the
custody of the court and cannot be conveniently preserved. The commissioner is responsible for
organizing the sale and reporting the results to the court.

16
Gourhari Das v Jaharlal Seal, AIR 1957 Cal 90.

13
CONDITIONS UNDER WHICH ISSUANCE OF COMMISSION IS NOT PERMITTED

Although the court has broad discretion to issue commissions, there are certain scenarios where
it is restricted or not appropriate to do so:

1. Fraud or Bad Faith:

Despite the broad discretionary power granted under the CPC, there are instances where the
issuance of a commission is restricted. Courts do not issue commissions in cases where the
request is made in bad faith or to delay proceedings. Courts have held that commissions should
not be misused for dilatory tactics or fraudulent purposes. For example, in cases where a party
seeks to examine themselves on commission to avoid a public trial, such requests are likely to be
rejected. Although the CPC does not explicitly mention fraud as a disqualifying factor, courts
apply Rule 3 of Order XXVI, which implies that commissions must serve a bona fide purpose
and not be used for ulterior motives.17

2. Presence of Key Witnesses:

Commissions are not permitted when the presence of key witnesses is crucial to the case. If the
court determines that direct cross-examination of a witness is essential for the fair resolution of
the case, the commission may be denied. Courts have consistently emphasized that the physical
presence of witnesses is necessary, particularly in cases where the credibility of the witness is in
question. Moreover, commissions are also denied in instances of misuse or when the request is
intended to prolong litigation unnecessarily. Courts remain vigilant against such tactics, ensuring
that commissions are only used when they advance, rather than hinder, judicial proceedings.

In S.B. Sinha v. Union of India18, it was emphasized that a court should not issue a commission if
the personal attendance of the witness is essential for the court’s determination of the matter. The
right to cross-examine a key witness is integral, and the testimony given via commission may not
suffice.

3. Witness Capable of Attending Court:

17
The Civil Procedure Code, 1908 (5 of 1908), Ord XXVI, r 3.
18
S B Sinha v UOI,

14
If a person is capable of attending court without considerable hardship, a commission is not
permitted. This principle was underscored in the case of R.B. Sree Ramulu v. S.B. Raju 19, where
the court held that when a witness is fully capable of attending court and there is no substantial
inconvenience, a commission should not be issued merely for convenience. The court
emphasized that physical presence in court is preferred whenever feasible, ensuring that the legal
process proceeds efficiently. Rule 1 of Order XXVI authorizes the issuance of commissions only
in circumstances where a witness is physically unable to attend or resides outside the court's
jurisdiction, but in the absence of such conditions, the court favors in-person testimony.

4. Cases of Misuse or Delay:

Courts are vigilant against the misuse of commission procedures to prolong litigation. In the case
of Liaquat Ali Khan v. Abdullah20, the court ruled that commissions should not be employed for
vexatious or dilatory tactics, emphasizing that the objective must be to advance the proceedings
rather than hinder them. Although there is no direct rule that explicitly identifies misuse as a
ground for denial, the Supreme Court of India has interpreted this principle in various judgments
under Section 75 and Order XXVI, highlighting the importance of judicial discretion in ensuring
that commission procedures serve the interests of justice rather than delay the legal process.

CONCLUSION

The issuance of a commission under the Civil Procedure Code for recording evidence serves as
an essential tool to balance the practical realities of litigation with the fundamental principles of
justice. It offers flexibility in situations where witnesses cannot attend court due to physical
incapacity, geographic distance, or other compelling reasons, ensuring that the trial process is not
stalled. However, courts must exercise discretion carefully, ensuring that commissions are not
issued in cases where witnesses can attend without significant hardship or where issuing a
commission would hinder the administration of justice.

Judicial precedents have made it clear that the process should not be abused to delay proceedings
or avoid key scrutiny in court. Cases such as *R.B. Sree Ramulu v. S.B. Raju* and *Liaquat Ali

19
R B Sree Ramulu v S B Raju, (2006) 1 SCC 325.
20
Liaquat Ali Khan v Abdullah, (1988) 3 SCC 329.

15
Khan v. Abdullah* underscore that commissions must serve the interest of justice and not be a
tool for convenience or delay. Ultimately, the issuance of a commission is governed by the
principles of judicial discretion, fairness, and efficiency, reflecting the court’s duty to balance
competing interests while ensuring that justice is delivered without undue delay.

BIBLIOGRAPHY

There are the certain resources which used for research :-

1. Shrivastava swarnim, commission to another court – Order 26 under CPC, Vol 3 rd

(International Journal of Reviews and Research in Social Sciences) <
https://www.indianjournals.com/ijor.aspx?
target=ijor:ijrrss&volume=3&issue=1&article=008> (accessed on 5 October 2024).

2. Krupa Thakkar, legal principles governing appointment and working of commission

under Civil Procedure Code, Vol 2(Lexforti Legal Journal) <
https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/
lxfrt2&section=47> (accessed on 6 October,2024_
3. S Singh, Issuance of Commission for examination of witnesses, (Jus Corpus Law
Journal)< https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/
juscrp3&section=42> (accessed on 1 October, 2024)

16