University of Mumbai

Karnatak Lingayat Education Society(KLE)

(Navi Mumbai )

Research Paper Of CPC

Prof. Anant Pawar

ISSUE OF COMMISSION

Name:- Prakash Vijay Kadam

TYLLB- 3yr (Roll No. 30 )
 ISSUE OF COMMISSION UNDER CPC

ABSTRACT

The rationale behind issuing commissions originates from the jurisprudence that there should not be
any abuse of process during the pendency of proceedings. Commission is one of the forms of interim
orders inter alia, temporary injunctions, security for costs, payment in courts and interlocutory orders
et cetera; issued by the court to assist the parties vis-a-vis suit in the prosecution and protection of the
subject matter of the suit. Howbeit, commissions are not issued to determine the substantive rights
and liabilities of the parties concerning the subject matter of the suit or proceeding but is an interim
order i.e., incidental proceedings to protect the rights of the parties during the pendency of the suit.

The appraisal is structured as follows. The first part will construct an analysis of the provisions of the
Civil Procedure Code, 1908 along with illustrations and cases. The second part provides an
examination of the scope of the appurtenant statutory provisions. Lastly, the third part will be the
conclusion along with the researcher's comments.

Keywords: Civil Procedure Code, 1908, Commissions, Interlocutory Order, Substantive Rights,
Suit, Parties, Incidental Proceeding.

 INTRODUCTION
The concept of ‘Commission’ is an important subject matter in the branch of CPC. Commission is an
impartial person who is appointed by the Court and act as an agent of the Judge. The power of the
Court to issued Commission by the Court for doing full and complete Justice between the parties.

Order 26 deals with commissions issued by Courts. Commissions are of four kinds-to examine
witnesses, to make local investigations, to examine accounts and to make partition of immoveable
property. Most of the provisions for commissions to examine absent witnesses were adapted by the
framers of the first Code (of 1859) from an Act of 18411. The rules as to commissions for local
investigations are ultimately derived from three old regulations.

The purpose of issuing commission by the court is to impart complete justice to the parties to the suit.
The power of issuing commission rests totally in the discretion of the judges[1]. By issuing a
commission in a particular case, the Court performs an in - depth investigation where the Court deems
necessary.
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 Concept of Commission Under CPC

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https://papers.ssrn.com/
 The CPC concept of commission is crucial because it enables the court to acquire evidence
that might not otherwise be possible. For instance, it might be challenging or impossible for
the parties to the case to get a witness’s testimony in person if they are located in a different
city or nation. The court may designate a commission in these circumstances to gather the
witness’ evidence and present it to the court.

A court-appointed official who is in charge of carrying out specific tasks or responsibilities on

the court’s behalf is referred to as a commission in civil litigation. The word “commission” in
the context of the Code of Civil Procedure (CPC) refers to the procedure by which the court
assigns a person to carry out specific tasks, like gathering evidence or conducting a local
investigation, that are required to decide a case.
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 POWER OF COURTS TO ISSUE COMMISSIONS

Issuing of Commission can be made by the Court if it gets an application from the parties, stating the
necessity for the same or sue - moto.[2] Section 75 to 78 of the Code of Civil Procedure, 1908 speaks
about the discretionary power of the Civil Courts and Order 26 to issue commission for the
furtherance of complete justice.[3] According to Section 75 of the Code of Civil Procedure, 1908, the
court may issue a commission for any of the following purposes:

To make local investigations: Order 26 Rule 9-10

The Court can appoint commission for local investigation if the Court is of the opinion that a local
investigation is necessary:

1. For proper clarity of any matter in dispute, or

2. In ascertaining the market value of any property, or
3. To know the amount of mens rea or annual net profits.

To adjust accounts: Order 26 Rule 11-12

In a suit, if the Court thinks that it is necessary to verify the accounts involved in the suit, the Court
may issue a commission to make the examination of such accounts and may appoint a commissioner.
(rule 11) The Court takes special care while making such an appointment. The Court appoints only
such a person who is competent to examine such records. The reports submitted by the commissioner
is considered evidence by the Court. (rule 12)

 To make partition: Order 26 Rule 13-14

The Court can issue commission for partition of a suit property. Suppose, the Court has passed a
preliminary decree for partition of the suit property, in such a situation, the Court can appoint a
commissioner to carry out the decree. (rule 13) The commissioner has to divide the property in shares
and distribute it among the parties according to the suit decree. Commissioner has to submit a report
after such partition is completed. (rule 14)

 To hold investigation: Order 26 Rule 10-A

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https://kjablr.kar.nic.in/assets/articles
When the Court has to conduct a scientific investigation, the Court can appoint a commissioner who
will then be responsible for such investigation. For example, to identify the substance used as a raw
material in the subject matter, the Court may issue commission to hold scientific investigation. (rule
10-A)

 To sell the property: Order 26 Rule 10-C

Suppose the subject matter of a suit is a movable property which cannot be preserved by the
commissioner and if it is not sold, its value cannot be recovered. Therefore, the Court appoints a
commissioner who is given the responsibility to sell the property and submit a report along with the
proceeds received from the sale of such property.

 To do ministerial work: Order 26 Rule 10-B

Ministerial work means the administrative work which the Court has to do, but are not of judicial
nature like accounting, calculation, etc. Such work takes a lot of valuable time of the Court which can
be used in other important judicial functions.

 Section 76. Commission to another Court.

(1) A commission for the examination of any 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 in which the person to be examined resides.

(2) Every Court receiving a commission for the examination of any person under sub-section (1)
shall examine him or cause him to be examined pursuant thereto, and the commission, when it
has been duly executed, shall be returned together with the evidence taken under it to the
Court from which it was issued, unless the order for issuing the commission has otherwise
directed, in which case the commission shall be returned in terms of such order.

 HC issues guidelines for appointing commissioners to assist trial courts in

deciding civil disputes

The High Court of Karnataka has issued a series of guidelines for trial courts for appointing court
commissioners to examine various disputed aspects in the civil disputes under the Code of Civil
Procedure (CPC) to save time of the courts and streamline the procedure.

Justice Anant Ramanath Hegde issued the guidelines while taking note of the fact that a large
number of applications are filed in the suits before the trial courts for appointment of commissioners
by involving the Order XXVI Rule 9 of the CPC, which empowers the civil courts to appoint
commissioners.

‘Effective tool’
Terming the commissioner’s report an “effective tool” available to the court and the parties to the
proceeding, the High Court said, “The party to the proceeding may use this tool for proving their
case and the court to unravel the mystery surrounding the case.

t said that the discretion to exercise the power under Order XXVI of the CPC is not governed by the
form of the suit, and the court can appoint the commissioner in any kind of suit, provided a report of
the commissioner under Order XXVI of the CPC is necessary for elucidating the matter in dispute.

The power to appoint the commissioner for local inspection or scientific investigation/expert’s
opinion can be invoked even suo motu by the court, without there being an application by either of
the parties, if the court deems it appropriate to secure the report of the commissioner, the High Court
said.

Need for commissioners

Broadly, Justice Hegde said the commissioners can be appointed in cases of (i) disputes relating to
the easement of air, light, pathway, road, watercourse, etc; the dispute relating to the boundary,
encroachment; the dispute relating to forgery; the dispute relating to the existence or otherwise of a
stream, pond, drainage, watercourse, road, pathway, pollution, or nuisance.

However, they are not exhaustive but merely illustrative in nature and these guidelines should not be
construed as having exhaustively listed the cases in which the commissioner can be appointed, the
High Court clarified.

The High Court said, the trial courts may fix the date and time for local inspection directing the
parties to be present at the disputed property, to avoid the process of issuance of notice to the parties
by the court-appointed commissioner. The trial courts also can fix time schedule for completion and
consideration of the commissioner’s report, the High Court said.

CANCLUSION :-

The researcher is of the view that the rationale behind issuing commissions originates from the
jurisprudence that there should not be any abuse of process during the pendency of proceedings,
whatsoever.17 Thus, commissions play a pivotal role in the conduct of litigation foundation of which
rests on necessity, justice and equity.

Therefore, the researcher favours the view where jurisprudence dictates that the power of the court to
issue commission does not come under the ambit of delivering complete justice amongst the parties
but is an interim order. Furthermore, it is apropos to note that the power to issue commission is
discretionary in nature and cannot be claimed as a matter of right by the parties to suit.

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https://www.thehindu.com/news/national/karnataka/
hc-issues-guidelines-for-appointing-commissioners
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