Commissions

Rule 4 covers persons resident beyond the local limits of the Court's jurisdiction, those about to leave those limits before the date of examination, and public officers who cannot in the public interest attend.

Rule 4A, added in 1999, is broad: notwithstanding anything in these rules, any Court may, in the interest of justice or for the expeditious disposal of the case or for any other reason, issue a commission in any suit for the examination, on interrogatories or otherwise, of any person resident within the local limits of its jurisdiction, and the evidence so recorded shall be read in evidence.

Rule 8 governs when the evidence taken on commission may be read: it may be read in evidence if the person who gave it is beyond the jurisdiction of the Court, or dead, or unable from sickness or infirmity to attend, or exempted, or is a public officer whose attendance the Court considers cannot in the public interest be had; and it may be read in any event with the consent of the party against whom it is offered.

Local investigation: Rule 9

Rule 9: in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to a person it thinks fit, directing him to make the investigation and to report to the Court.

Rule 10(1): the Commissioner shall, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, return the evidence, together with his report in writing signed by him, to the Court.

Rule 10(2), and this is the sentence that matters most in practice: the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record; but the Court, or with its permission any of the parties, may examine the Commissioner personally in open Court touching any of the matters referred to him, or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.

Rule 10(3): where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry as it thinks fit.

Note carefully what Rule 10(2) does and does not do. The report is evidence, so it does not have to be proved afresh. But it is not conclusive: the Commissioner may be cross-examined on it, and under Rule 10(3) the Court may order the whole thing done again.

Rule 10A allows a Court, where a question arising in a suit involves any scientific investigation which cannot in its opinion be conveniently conducted before the Court, to issue a commission to a person it thinks fit, directing him to inquire and report.

Rule 10B provides similarly for the performance of any ministerial act.

Accounts, partition and sale: Rules 11 to 18

Rule 11: in any suit in which an examination or adjustment of accounts is necessary, the Court may issue a commission to a person it thinks fit directing him to make the examination or adjustment.

Rule 12(1): the Court shall furnish the Commissioner with such part of the proceedings and such instructions as appear necessary, and the instructions shall distinguish between matters on which he is merely to transmit the proceedings, and those on which he is to report his own opinion.

Rule 12(2): the proceedings and report of the Commissioner shall be evidence in the suit, but the Court may, for reasons recorded, direct a further inquiry.

Rule 13: where a preliminary decree for partition of immovable property has been passed, the Court may, in any case not provided for by section 54, issue a commission to a person it thinks fit to make the partition or separation according to the rights declared in the decree.

Rule 14 sets out what the Commissioner in a partition does: after such inquiry as is necessary, he shall divide the property into as many shares as directed, allot the shares, and may, where necessary, award sums to be paid for the purpose of equalising the value of the shares. He then prepares and signs a report, or where there is more than one Commissioner and they differ, separate reports. The Court, after hearing objections, confirms, varies or sets aside the report, and where it confirms or varies it, passes a decree in accordance with it.

Rule 16A allows the Commissioner to examine parties and witnesses, and to require the production of documents.

Rule 18 deals with the sale of movable property which is subject to speedy and natural decay, corresponding to section 75(f).

Commissions to and from other courts, and abroad

Section 76: a commission for the examination of a person may be issued to any Court, not being a High Court, situate in a State other than the State in which the Court of issue is situate and having jurisdiction in the place where the person resides.

Section 77: in lieu of issuing a commission, the Court may issue a letter of request to examine a witness residing at any place not within India.

Section 78 deals with commissions issued by foreign Courts: subject to such conditions and limitations as may be prescribed, the provisions as to the execution and return of commissions for the examination of witnesses shall apply to commissions issued by or at the instance of certain courts situate outside India.

Rules 19 to 22 contain the machinery for commissions issued at the instance of foreign tribunals.

Who pays, and general points

Rule 15: before issuing any commission, the Court may order such sum as it thinks reasonable for the expenses of the commission to be paid into Court by the party at whose instance or for whose benefit it is issued.

Rule 16: the Commissioner may, unless otherwise directed by the order of appointment, examine the parties themselves and any witness whom they or any of them may produce, and any other person whom he thinks proper to call upon to give evidence; require the production of any documents; and at any reasonable time enter upon or into any land or building mentioned in the order.

Rule 17 applies the provisions of the Code relating to the summoning, attendance and examination of witnesses, and to the remuneration of and penalties on witnesses, to persons required to give evidence or produce documents before the Commissioner.

A worked example

Qamar sues Rehana over the boundary between their plots, claiming she has encroached by two feet and asking for mesne profits.

The dispute turns on where the boundary actually runs. No amount of oral evidence in court settles that. Under Rule 9 the Court may issue a commission for a local investigation, directing a Commissioner to inspect the site and report, and the same rule allows a commission to ascertain the mesne profits.

Who pays for it? Under Rule 15, the Court may require the party at whose instance the commission is issued to pay the expenses into Court beforehand.

What can the Commissioner do? Under Rule 16, examine the parties and witnesses, require documents, and enter upon the land at any reasonable time.

What is the status of his report? Under Rule 10(2) the report and the evidence he took are evidence in the suit and form part of the record. But either party may, with the Court's permission, examine him in open Court about his findings and about how he conducted the investigation. And under Rule 10(3), if the Court is dissatisfied, it may direct a further inquiry.

Rehana is bedridden and cannot come to court. Under Rule 1 the Court may issue a commission to examine her, since she is unable from sickness to attend. Under the Explanation it may accept a registered medical practitioner's certificate as evidence of that sickness without calling the doctor as a witness. If her examination is to be on interrogatories, the proviso requires the Court to record reasons for thinking it necessary.

A key witness lives in Chennai. Rule 4 covers a person resident beyond the local limits, and under section 76 the commission may be issued to a court, not being a High Court, in that other State having jurisdiction where he lives.

A witness lives in Dubai. Under section 77 the Court may, in lieu of a commission, issue a letter of request to examine a witness residing outside India.

Change the suit. Suppose the Court passes a preliminary decree for partition of a joint property. Rule 13 allows a commission to make the partition, and under Rule 14 the Commissioner divides the property, allots the shares, may award sums to equalise the value of the shares, and reports; the Court then confirms, varies or sets aside the report and passes a decree accordingly.

And another. Suppose the suit concerns a consignment of mangoes in the custody of the Court. Section 75(f) and Rule 18: a commission may be issued to sell property subject to speedy and natural decay.

What it does not mean

A commission is not a delegation of the decision. The Commissioner gathers material and reports; the Court decides.

The report is not conclusive. It is evidence and part of the record, but the Commissioner may be examined on it and the Court may order a further inquiry.

A commission to examine a witness is not available merely because attendance is inconvenient. Rule 1 requires exemption from attendance, or inability from sickness or infirmity, though Rule 4A gives a wider power in the interest of justice or for expeditious disposal.

Examination on interrogatories is not the default. The proviso to Rule 1 requires reasons to be recorded.

The court does not bear the cost. Rule 15 puts it on the party at whose instance or for whose benefit the commission issues.

Quick revision

Section 75, seven purposes: to examine any person; to make a local investigation; to examine or adjust accounts; to make a partition; to hold a scientific, technical or expert investigation; to conduct the sale of property subject to speedy and natural decay in the Court's custody; and to perform any ministerial act. The last three were added in 1976.

Examination of witnesses: Rule 1, a person exempted from attending or unable from sickness or infirmity, with a medical certificate accepted without calling the doctor, and reasons recorded before ordering examination on interrogatories; Rule 4, persons beyond the jurisdiction, about to leave, or public officers; Rule 4A, a wide power in the interest of justice or for expeditious disposal; Rule 8, when the evidence may be read.

Local investigation: Rule 9, to elucidate a matter in dispute, or ascertain market value, mesne profits, damages or annual net profits; Rule 10, the report and evidence are evidence and form part of the record, the Commissioner may be examined in open Court, and the Court may direct a further inquiry.

Accounts, Rule 11. Partition, Rules 13 and 14, with power to award sums to equalise shares, the Court then confirming, varying or setting aside the report. Scientific investigation, Rule 10A. Ministerial acts, Rule 10B. Sale of perishables, Rule 18.

Powers of the Commissioner, Rule 16: examine parties and witnesses, require documents, enter upon land or buildings. Expenses, Rule 15, paid in by the party at whose instance it issues.

Section 76: commission to a court in another State. Section 77: letter of request for a witness outside India. Section 78: commissions issued by foreign courts.

Test yourself

1. For what purposes may a court issue a commission? Under section 75, to examine any person; to make a local investigation; to examine or adjust accounts; to make a partition; to hold a scientific, technical or expert investigation; to conduct the sale of property subject to speedy and natural decay which is in the custody of the Court pending the determination of the suit; and to perform any ministerial act.

2. When may a commission issue to examine a witness? Under Order XXVI Rule 1, where the person is resident within the local limits of the Court's jurisdiction and is exempted under the Code from attending the Court, or is from sickness or infirmity unable to attend. Rule 4 extends it to persons resident beyond those limits, persons about to leave them, and public officers whose attendance cannot in the public interest be had; and Rule 4A gives a wider power in the interest of justice or for the expeditious disposal of the case.

3. How may sickness be proved for this purpose? The Explanation to Rule 1 allows the Court to 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.

4. What is the evidentiary value of a Commissioner's report? Under Order XXVI Rule 10(2) the report and the evidence taken by the Commissioner are evidence in the suit and form part of the record. The Court, or with its permission any party, may examine the Commissioner personally in open Court about the matters referred to him, his report, or the manner in which he made the investigation; and under Rule 10(3) the Court, if dissatisfied, may direct such further inquiry as it thinks fit.

5. What are the powers of a Commissioner? Under Rule 16, unless otherwise directed, to examine the parties themselves and any witness they produce and any other person he thinks proper to call, to require the production of documents, and at any reasonable time to enter upon or into any land or building mentioned in the order.

6. Who bears the expenses of a commission? Under Rule 15 the Court may, before issuing the commission, order such sum as it thinks reasonable for the expenses to be paid into Court by the party at whose instance or for whose benefit the commission is issued.

7. How is a witness residing outside India examined? Under section 77 the Court may, in lieu of issuing a commission, issue a letter of request to examine a witness residing at any place not within India.