In the Indian legal system, Sections 75 to 78 of the Code of Civil Procedure, 1908 (CPC), along with Order XXVI, empower courts to issue commissions for various purposes. These provisions facilitate the administration of justice by enabling courts to delegate specific tasks to appointed individuals, known as commissioners, especially when direct court intervention is impractical.

MEANING AND DEFINITION

A commission refers to an instruction or role assigned by the court to a person to act on its behalf. The appointed individual, termed as a court commissioner, is authorized to perform tasks necessary for the accomplishment of justice. This mechanism ensures that certain functions, which the court may not be able to execute directly due to practical constraints, are carried out effectively.

LEGAL PROVISIONS AND PURPOSES

Section 75 of the CPC outlines the court’s power to issue commissions, subject to prescribed conditions and limitations. The purposes for which a commission may be issued include:

• Examination of Witnesses: To record the testimony of individuals who cannot attend court due to reasons such as sickness, infirmity, or residing beyond the court’s jurisdiction.

• Local Investigation: To ascertain facts related to the property or the subject matter of the dispute, which may be crucial for adjudication.

• Examination or Adjustment of Accounts: In cases involving complex financial transactions where expert scrutiny is required.

• Partition: To effectuate the division of property as decreed by the court.

• Scientific, Technical, or Expert Investigation: When the matter in question involves specialized knowledge beyond the court’s expertise.

• Conducting Sale of Property: Particularly for properties subject to speedy and natural decay, ensuring their value is preserved.

• Performance of Ministerial Acts: Routine acts that do not involve the court’s judicial discretion.

These provisions are elaborated in Order XXVI of the CPC, which details the procedures for issuing commissions for each of the aforementioned purposes.

PROCEDURE FOR ISSUANCE OF COMMISSIONS

The issuance of a commission is at the court’s discretion and can occur either upon application by a party to the suit or suo motu by the court. The court must be satisfied that issuing a commission is necessary for the case’s just resolution. For instance, under Order XXVI Rule 1, a commission for the examination of a witness may be issued if the witness is unable to attend court due to sickness or infirmity, or if the witness resides beyond the local limits of the court’s jurisdiction.

APPOINTMENT AND ROLE OF COMMISSIONERS

Generally, High Courts maintain a panel of advocates deemed competent to act as commissioners. The appointed commissioner should be independent, impartial, and possess the requisite skills to execute the commission effectively. For example, in H.V. Nagendrappa v. H.M. Hanumanthappa, the court emphasized that the application for appointment of a commissioner must be bona fide and not intended for ulterior motives. The order should be passed by recording reasons.

TYPES OF COMMISSIONS UNDER ORDER XXVI

Order XXVI of the CPC specifies various types of commissions that a court may issue:

1. Commissions to Examine Witnesses (Rules 1-8):

   • When Issued: If a witness is unable to attend court due to sickness, infirmity, or if the witness resides beyond the court’s jurisdiction.
   • Procedure: The court may direct the commission to any person it deems fit, and the commissioner records the witness’s testimony, which is later submitted to the court.

2. Commissions for Local Investigation (Rules 9-10):

   • Purpose: To elucidate matters in dispute, determine the market value of property, or ascertain the amount of mesne profits or damages.
   • Procedure: The commissioner conducts an on-site investigation and submits a report to the court.

3. Commissions to Examine or Adjust Accounts (Rule 11):

   • When Issued: In cases involving intricate accounts that require detailed examination.
   • Procedure: The commissioner reviews the accounts and provides a detailed report to the court.

4. Commissions to Make Partition (Rules 13-14):

   • When Issued: After a preliminary decree for partition has been passed.
   • Procedure: The commissioner divides the property as per the rights declared in the decree and reports back to the court.

5. Commissions for Scientific, Technical, or Expert Investigation (Rule 10A):

   • Purpose: To seek expert opinion on matters requiring specialized knowledge.
   • Procedure: The commissioner conducts the necessary investigation or test and submits findings to the court.

6. Commissions to Conduct Sale (Rule 10C):

   • When Issued: For properties subject to speedy and natural decay or when it is expedient to sell the property at once.
   • Procedure: The commissioner conducts the sale and reports the outcome to the court.

7. Commissions to Perform Ministerial Acts (Section 75(g)):

   • Purpose: To perform routine acts that do not involve judicial discretion, such as delivering possession of property.