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Sections 75 to 78 of the law address the court's authority to issue commissions, with specific procedures outlined in Order 26 of the Code.
The court's power to issue commissions is discretionary and is exercised to ensure comprehensive and equitable justice between the parties involved.
This authority can be invoked by either party through an application to the court or at the court's own initiative (suo motu).
Section 75 stipulates that a court may issue a commission for various purposes, including:
i) Examining witnesses;
ii) Conducting local investigations;
iii) Adjusting accounts;
iv) Facilitating partition proceedings;
v) Conducting investigations;
vi) Overseeing sales; or
vii) Carrying out ministerial acts.
Commissions to Examine Witnesses
Sections 76 to 78 and Order 26 Rules 1-8 govern the process of examining witnesses via commission.
Typically, a witness's testimony in a legal proceeding, whether they are a party to the case or not, is taken in open court and subjected to cross-examination.
However, circumstances such as illness, infirmity, or considerations of public interest may justify the issuance of a commission if the witness cannot attend court.
The court has the discretion to relax the requirement of in-person testimony, especially if the witness resides outside the court's jurisdiction or faces genuine threats to their safety.
For instance, if a witness, due to custom or other reasons, cannot appear in court dressed, they can be examined via commission.
However, if a party accused of fraud seeks to testify via commission, the court may deny the request to preserve the opportunity to observe their demeanour.
The court may issue a commission for interrogatories or other forms of examination under various circumstances:
1. If the witness resides within the court's jurisdiction but is exempt from attending court, or is unable to attend due to sickness, infirmity, or other reasons justifying examination via commission for the sake of justice or expeditious case resolution.
2. If the witness resides beyond the court's jurisdiction, or is planning to leave the jurisdiction.
3. If the witness is a government servant whose attendance would be detrimental to public service.
4. If the witness resides outside of India, and their testimony is deemed necessary for the case.
Local Investigation
In any suit, the court has the authority to issue a commission to an individual of its choosing, directing them to conduct a local investigation and provide a report.
This is done for the purpose of (a) clarifying or shedding light on any disputed matter, or (b) determining the market value of property, the amount of damages, mesne profits, or annual net profits.
The purpose of a local investigation is not to gather evidence that can be presented in court, but rather to acquire evidence that is uniquely available only at the scene. This evidence allows the court to gain a thorough understanding and assessment of the case and to clarify any uncertainties.
It aids the court in making decisions regarding the pending issues, such as determining whether the property in question is truly occupied by the tenant or by third parties.
Adjustment of Accounts
In any suit where an examination or adjustment of accounts is required, the court has the authority to issue a commission to an individual deemed suitable by the court, directing them to conduct such examination or adjustment.
The court will provide necessary instructions to the commissioner for this purpose. The proceedings and any report submitted by the commissioner will be considered as evidence in the suit.
Partition
In cases where a preliminary decree for the partition of immovable property has been granted, the court may authorise a commission to an individual it deems suitable to carry out the partition or separation in accordance with the rights outlined in the decree.
The appointed commissioner will conduct any necessary inquiries and divide the property into the requisite number of shares, allocating them to the respective parties.
They will then compile a report detailing each party's share, clearly demarcated by boundaries, and submit it to the court. After considering any objections from the involved parties, the court will make the final allocation of shares.
Commissions to Hold Investigation
If any issue arising in a suit requires a scientific investigation that cannot be conveniently conducted before the court, the court, if it deems it necessary or expedient in the interest of justice, may issue a commission to an individual it considers appropriate.
This commission will direct the appointed person to inquire into the matter and provide a report to the court.
To Sell Property
In any suit where it becomes necessary to sell any movable property that is under the custody of the court pending the determination of the suit and which cannot be conveniently preserved, the court may, for reasons recorded, deem it necessary or expedient in the interest of justice to issue a commission to an appropriate individual.
This commission will direct the appointed person to conduct the sale and provide a report to the court regarding the proceedings.
Commissions for Performing Ministerial Work
In cases where a question arising in a suit involves the performance of a ministerial act that cannot be conveniently carried out before the court, the court may, for reasons recorded, consider it necessary or expedient in the interest of justice to issue a commission to an appropriate individual.
This commission will direct the appointed person to perform the ministerial act and provide a report to the court regarding the completion of the task.
The Amendment Act of 1976 introduced Rules 10-A to 10-C to facilitate the issuance of commissions for scientific investigations, the sale of movable property, or the performance of ministerial acts.
Ministerial work refers not to the clerical duties of the court but rather to tasks such as accounting, calculations, and similar activities that courts are unlikely to undertake without unnecessary delays.
It's important to note that the commissioner appointed by the court does not carry out any judicial functions.
Limitation of Commissions
A court cannot delegate its judicial functions to a commission. Therefore, a commission cannot be appointed solely to assess the value of the property in dispute, as this is a function reserved for the court.
However, a commission can be appointed to gather data that may assist the court in making such determinations.
Similarly, a commission cannot be appointed to scrutinise votes in an election. However, it can be tasked with separating disputed votes from undisputed ones or with counting votes, as these tasks are considered ministerial in nature.
Furthermore, it is not the role of the court to collect evidence for one party or to shield the opposing party from potential harm.
Consequently, a civil court cannot appoint a commission to seize account books held by a party solely because the opposing party has concerns about tampering with them.
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