Commissions

In one line

A commission is a court's delegation of a particular task to somebody else, called a Commissioner, who does it and reports back, because the task cannot conveniently be done in the courtroom.

Why the Code allows it

Some things a court needs simply cannot happen in front of the judge. A witness may be too ill to attend, or live a thousand miles away. The dispute may turn on the state of a wall that has to be looked at. Accounts may run to years of entries that no judge can add up from the bench. Property may have to be divided on the ground with measuring tape.

None of that is adjudication. It is fact-gathering and mechanical work, and the Code lets the court send somebody to do it and bring back the material. The judge still decides; the Commissioner only supplies what the judge cannot conveniently obtain himself.

The seven purposes: section 75

Section 75: subject to such conditions and limitations as may be prescribed, the Court may issue a commission:

(a) to examine any person (b) to make a local investigation (c) to examine or adjust accounts (d) to make a partition (e) to hold a scientific, technical or expert investigation (f) to conduct the sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit (g) to perform any ministerial act

The first four were in the Code as enacted; clauses (e), (f) and (g) were added by the 1976 amendment. That is worth knowing, because a question asking for "the purposes for which a commission may be issued" wants all seven, and the older ones alone will read as an incomplete answer.

Commission to examine a witness: Rules 1 to 8

Rule 1: any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court, or who is from sickness or infirmity unable to attend it.

The proviso: a commission for examination on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary to do so.

The Explanation is a practical shortcut worth remembering: the Court may accept a certificate purporting to be signed by a registered medical practitioner as evidence of the sickness or infirmity of any person, without calling the medical practitioner as a witness.

Rule 2: an order for the issue of such a commission may be made by the Court of its own motion or on the application of any party or of the witness.