APPOINTMENT OF COMMISSIONER TO EXAMINE WITNESSES

The Court may issue a commission to examine witnesses. Sections 76-78 and Order 26, Rules
1-8 deal with this.

The general rule for examining witnesses is to do it in an open court. However, the court has
the discretion relax this rule in some circumstances and issue a commission for the
examination on interrogation of any person. The circumstances where it may do so are:

i) The person resides beyond the local limits of the jurisdiction of the court (R.4)
ii) If the person is about to leave the jurisdiction of the court (R.4)
iii) If the person is a government servant and in the opinion of the court, he cannot
attend without detriment to public service (R.4)
iv) If the person resides out of the country and the court is satisfied that his evidence
is necessary (Rr. 5, 10, 12, 14)
v) If the person to be examined resides within the local jurisdiction of the court and
a) Is exempted from attending the court, b) is unable to attend due to sickness or
infirmity, c) in the interest of justice or for the speedy disposal of the case or for
any other reason due to which his examination on commission is appropriate
(Or.26, Rr I, 3, 4-A; Ss. 76, 77, 78)

This power can be exercised either on application by a party to the suit or suo motu (Rr. 2,6).
Whatever evidence is collected by the commission will form part of the record (R.7). This
evidence can only read in evidence in the suit with the consent of the party against whom it is
offered. However, exceptions to this are:

a) the person who gave the evidence is beyond the jurisdiction of the court, dead or unable
from sickness or infirmity to attend and be personally examined, or exempted from
personal appearance in court or is exempted from personal appearance in the court or is a
person in the service of a government who, as per the court cannot attend the proceeding
without any detriment to public service, or
b) the court, dispenses with the proof of any of such circumstances in its discretion
 POWER OF COURT TO ISSUE COMMISSIONS AND LIMITATION
OF COMMISSIONER

Sections 75 to 78 deal with the powers of court to issue commissions and there are detailed
provisions regarding the same under Order 26 of the CPC. This is a discretionary power,
utilized by the Court to ensure that the parties get complete justice. 1 This power can be
exercised either on application by a party to the suit or suo motu.2

Under Section 75, a court may issue a commission for any of the following purposes:

i) To examine the witnesses;

ii) To make local investigation;
iii) To adjust accounts;
iv) To make partition;
v) To hold scientific investigation;
vi) To conduct sale; or
vii) To perform a ministerial act

1
Padam Sen v. State of UP, Filmistan (P) Ltd, v. Bhagwandas Santprakash
2
Bandhua Mukti Morcha v. UOI
 1. Examination of witnesses (R.1 -8)

The Court may issue a commission to examine witnesses. Sections 76-78 and Order 26, Rules
1-8 deal with this. This power can be exercised either on application by a party to the suit or
suo motu (Rr. 2,6). Whatever evidence is collected by the commission will form part of the
record (R.7).

The general rule for examining witnesses is to do it in an open court. However, the court has
the discretion relax this rule in some circumstances and issue a commission for the
examination on interrogation of any person. The circumstances where it may do so are:

i) The person resides beyond the local limits of the jurisdiction of the court (R.4)
ii) If the person is about to leave the jurisdiction of the court (R.4)
iii) If the person is a government servant and in the opinion of the court, he cannot
attend without detriment to public service (R.4)
iv) If the person resides out of the country and the court is satisfied that his evidence
is necessary (Rr. 5, 10, 12, 14)
v) If the person to be examined resides within the local jurisdiction of the court and
a) Is exempted from attending the court, b) is unable to attend due to sickness or
infirmity, c) in the interest of justice or for the speedy disposal of the case or for
any other reason due to which his examination on commission is appropriate
(Or.26, Rr I, 3, 4-A; Ss. 76, 77, 78)

2. Local Investigation (R.9, 10)

The Court my issue a commission to a person it deems fit and direct him to make local
investigation. The purpose of this is for:

a) Elucidating any matter in a dispute

b) Ascertaining the market value of value any property or the amount of any mesne
profits or damages or annual net profits
The investigation is to collect evidence which due to its peculiar nature can had only on the
spot and cannot be taken in court (Ram Diyal v. Lakhpat Lal). This enables the court to
clarify any doubtful point and properly and correctly comprehend and assess the evidence on
record. It also enables the court in deciding the question in controversy that is pending before
it, for instance whether the suit premises is really occupied by the tenant or strangers, can be
clarified properly with a local investigation. (Southern Command Military Engineering
Services v. Nambiar)

3. Adjustment of accounts (R. 11, 12)

In suits, in which an adjustment or examination of accounts is required, the court may issue a
commission for that purpose.

The Court shall issue the necessary instructions to the Commissioner. The proceedings and
the report (if any) of the Commissioner shall be considered evidence in the suit.

4. Partition (R. 13, 14)

The Court, if it deems fir may issue a commission to make a partition or separation according
to the rights declared in a preliminary decree for partition of immovable property that has
been passed by the court.

The Commissioner, shall conduct an inquiry if required and then divide the property into the
required number of shares and allot them correctly to the parties. After that, he shall prepare a
report in which he details the distribution of the share of each party and distinguishes the
same by metes and bounds and transmit it to the court. The Court shall make the final
allotment after hearing the objections of the different parties.

5. To hold scientific investigation; (R. 10-A)

If the court believes that a suit involves scientific investigation which cannot be conveniently
conducted in front of the court, it may issue a commission to a person it deems fit and direct
thing to inquire into a scientific question and submit a report to the court.
 6. To conduct sale; (R. 10C)

In suits where it becomes necessary to sell and movable property, which is in the court’s
custody pending the determination of the suit and which it cannot preserve conveniently, it
may issue a commission, and instruct it to conduct sale of such property and submit a report
of the same to the court, if it believes that such a sale is required for expedient justice.

7. To perform a ministerial act (R. 10B)

Ministerial work refers to work such as calculation, accounting and other work of a similar
nature which the court cannot take up without unnecessary waste of time. The court may
issue a commission to perform ministerial work if the suit requires the performance of a
ministerial act.

The court cannot exercise inherent powers under Section 151 for issuing commissions as
provisions to issue commissions under CPC are exhaustive (Padam Sen v. State of UP). The
High Court and the Supreme Court have the power to exercise their plenary powers to issue a
commission for any purpose (Badhua Mukti Morcha v. UOI).

Limitations

 A judicial function cannot be delegated to a commission (Ram Krishna Muraji v.

Ratan Chand) –

While a commission cannot be issued for the purpose of valuing a property in dispute, as it is
a function of the court, it can be issued to collect data that would help the court determine the
value of the property.

 Cannot be appointed to scrutinise votes at the election

However, it can be given ministerial work such as counting votes and separating undisputed
votes from disputed.

 Commission cannot be appointed to collect evidence for a party or to protect the rival
party from any negative consequences.
 POWERS OF COMMISSIONER & EVIDENTIALRY VALUE OF
REPORT OF COMMISSION

The powers of commissioners are enumerated in Rules 16-18. The commissioner may:

1. Summon and procure attendance of parties and witnesses in order to examine them
2. Call for and examine documents
3. Enter into any building or land that is mentioned in the order
4. If the parties do not appear before him despite the order of the court, he may proceed
ex parte

Evidentiary value of the report of commissioner

The commissioner’s report will contain prima facie evidence of the facts and data collected
by him. It will institute an essential piece of evidence and thus cannot be rejected by the
court, except on sufficient grounds (Tushar Kanti v. Savitri Devi).

However, it is up to the court’s discretion to decide how much it will value the data collected
by the commissioner and to what extent it will act upon them (Roy & Co. v Nani Bala).

It cannot be said that the report of the commissioner does not have any evidentiary value as
the statements in it have not been cross-examined. The Court may permit cross-examination
of the person who gave the evidence before the commissioner if required (Badhua Mukti
Morcha v. UOI ).
 TEMPORARY INJUNCTIONS (5) + GROUNDS

Under Section 94 clause (c) of the Civil Procedure Code, read with Rule 1 and Rule 2 of
Order 39, the Court may grant a temporary injunction. Order 39, Rules 1-5 deal with
temporary injunctions. A judicial process, whereby a party is required to do or to refrain from
doing any particular act is known as injunction. It is essentially a remedy from the court. The
order prohibiting a person from doing a particular act is a prohibitory injunction and the order
asking him to do a certain act is a mandatory injunction (Food Corporation of India v. Sukh
Deo Prasad).

An interim order can always be granted in the aid of and as an ancillary to the main relief
available to the party on the final determination of his rights in the suit by the Court. Thus,
during the pendency of a suit, the court has the power to grant interim relief (State of Orissa
v. Madan Gopal, Shiv Kumar v. MCD). Therefore, temporary injunctions are injunctions
issued during the pendency of proceedings.

Object

The underlying object of an injunction is to preserve the status quo at the time of institution
of the proceedings, and to ensure that there are no changes till the final determination of the
suit. It is a sort of “protective relief” that is intended to prevent future harm to a party (CCE
v. Dunlop, Shiv Kumar v. MCD, Dorab Cowasi Warden v. Coomi Sorab Warden).

Types

Injunctions can be temporary (interim) or permanent (perpetual). Sections 38-42 of the

Specific Relief Act, 1963 govern permanent injunctions. A permanent injunction can be
granted only at the conclusion of the trial after both the parties to the suit are heard. It
restrains a party forever from doing some specified act, after hearing both parties.

Temporary injunctions are governed under the provisions of Order 39 of the CPC and can be
granted at any stage of the suit (S. 37(2), Specific Relief Act). It only temporarily restrains a
party from doing a specified act, and can be granted until the disposal of the suit or until the
further orders of the court.

Both the plaintiff and the defendant can apply for temporary injunction. An injunction can be
issued only against a party to the suit, not to a third party or non-party. It also cannot be
issued against a court of juridical officer. (Kalia v. Gram Sabha Manas, Mahanth Rameshwar
v. Baldeo Singh)

Grounds

Order 39, Rule 1 specifies the grounds for temporary injunction. They are:

a) Where any property in a suit is in danger of being damaged, wasted or alienated by

any party to the suit, or wrongfully sold in execution of a degree
b) Where a defendant threatens or intends to remove or dispose of his property with the
intention of defrauding his creditors
c) Where a defendant threatens to dispossess the plaintiff or cause injury to the plaintiff
in relation of any property in dispute in the suit
d) Where the court is of the opinion that an injunction is necessary in the interest of
justice

Principles

While the court can grant an injunction at its discretion, it must exercise this discretion
reasonably and judiciously. The court must be satisfied of some factors before granting an
injunction (Dalpat Kumar v Prahlad Singh, Best sellers retail v. Aditya Birla). They are
known as the “three pillars” which form the foundation of every order of injunction. They
are also called “triple test” for grant of temporary injunction. They are:

i) Whether that plaintiff has a prima facie case

ii) Whether the plaintiff would suffer irreparable injury if his prayer for temporary
injunction is not granted
iii) Whether the balance of (in)convenience is in favour of the plaintiff

a) Prima facie case

The court needs to be satisfied that there exists a bona fide dispute and that there is an
arguable case for trial. The burden to prove that there exists a prima facie case in his favour is
on the plaintiff (Dalpat Kumar v Prahlad Singh). Only when it is established that a prima
facie case exists, the court will consider other factors. An applicant who fails to prove prima
facie case, is not entitled to temporary injunction. (Kashi Nath Samsthan v. Shimad
Sudhindra Thirtha Swamy)

b) Irreparable injury

After proving that there exists a prima facie case, the applicant needs to further satisfy the
court by showing that if his prayer for injunction is not granted, he will suffer irreparable
injury. Only proving the existence of a prima facie case will not entitle the applicant for a
temporary injunction (CCE v. Dunlop, State of Karnataka v. State of AP).

The granting of injunction is an equitable relief. This power can be used only when
judicial intervention is absolutely necessary to protect the rights and interests of the
applicant.

“Irreparable injury” means that the injury must be a material one, meaning that it cannot be
compensated by damages. An irreparable injury is one where there is no specific or fixed
pecuniary standards for measuring damages (Manohar Lal Chopra v. Seth Hiralal).

c) Balance of in(convenience)

The court, before granting temporary injunction must be satisfied that the balance of
convenience must be in favour of the applicant. It needs to be satisfied that the comparative
harm that will be caused to the applicant by refusing the injunction is greater than the harm
that will be caused to the opposite party by granting it.
 SUMMARY TRIALS (5)

Order 37 of the Civil Procedure Code, 1908 deals with the procedure for summary suits. In
summary suits, courts pass judgements without hearing the defence. These suits take effect
faster than an ordinary suit and are used only in certain limited cases.

The principle of Audi Alteram Partem (nobody should be condemned unheard), is not
violated as it is used only in instances where the defendant has no tenable defence.

While in an ordinary suit, a defendant is entitled to defend the suit as a right, in a summary
suit he is not entitled to do that except with the leave of the court (Rule 3).

Object

The object underlying summary suits is to ensure speedy delivery of justice and prevent
unreasonable and unnecessary obstructions by the defendant, who has no defence. This is to
ensure that the defendant does not unnecessarily prolong the litigation by raising frivolous
defences in a class of cases, where expeditious decisions are desirable as they are in the
interests of commercial transactions (Santosh Kumar v. Bhai Mool Singh, VK Enterprises
v. Shiva Steels).

Extent and Applicability

The court needs to exercise the discretionary power conferred upon it under Order 37
judiciously and judicially.

Summary suits can be instituted in High Courts, City Civil Courts, Courts of Small Causes
and any other superior court or court notified by the High Court. They apply to:

a) Suits based upon bills of exchange, promissory notes and hundies

b) Suits in which the plaintiff intends to recover a debt or a liquidated amount payable
by the defendant with or without interest arising, on a:
i. written contract; or
 ii. an enactment, where the sum sought to be recovered is a fixed sum of money
or debt other than penalty; or
iii. on a guarantee, where the claim against the principal is in respect of a debt or
liquidated amount (Prayag Drb v. Rama Roy)

They provide a quick redressal mechanism which aid commercial transactions.

Procedure

The procedure for summary trial is provided under rule 2 and 3. Rule 2 provides that the
defendant will not be entitled to defend a summary suit unless he enters an appearance after
receiving summons. If he fails to enter an appearance, the plaintiff will be entitled to an ex
parte decree.

Rule 3 prescribes the mode of service of summons and leave to defend. Within ten days from
the date of service of the summons upon him, the defendant needs to apply for leave. Such a
leave will be granted only if the defendant discloses such facts in the affidavit filed by him
that may be deemed sufficient to entitle him to defend. It should not be refused unless the
court is satisfied that he does not have a substantial defence, based on the facts submitted by
him in the affidavit or if the defence he intends to put seems vexatious or frivolous. If the
defence raises an honest, real and bona fide dispute and raises a triable issue, then the leave to
defend should not be refused. (Savarna Prabhu v. Videocon Leasing & Industrial Finance
Ltd.)

If the defendant does not apply for the leave to defend or if it not granted by the court, the
plaintiff is entitled to a decree forthwith.