Commission (sec.

75 to 78 Order 26)
What is meant by issue of commission by the Court?
Commission is instruction or role given by the Court to a person to act on behalf of the
Court and to do everything that the Court requires to deliver full and complete justice. Such
person who carries out the commission is known as a Court commissioner.
For example, whenever the Court has to do a local investigation, a commissioner is
appointed who conducts the local investigation. Similarly, to record the evidence of a
witness who cannot come to the Court for evidence, the Court can issue a commission for
recording of such evidence.

Who can appoint a commissioner?

Section 75 of CPC provides that Court which issues the commission can appoint the
commissioner. Commissioner is appointed to carry out the functions for which the
commission is issued. Court has the discretionary power to appoint the commissioner and
such power can be exercised on the application of any of the parties or the Court can issue
the commission suo moto.
Who can be appointed as a commissioner?
A panel of commissioners is formed by the High Court in which they select the advocates
who are competent to carry out the commission issued by the court. It will be a complete
waste of time and resources of the Court and the parties if a person who cannot read and
understand the accounts and documents is appointed as commissioner to adjust accounts.
Similarly, a person who does not have the qualifications to conduct scientific investigation
should not be appointed as a commissioner for such task.
When can a commissioner be appointed by the Court?
1. To examine witnesses: Order 26 Rule 1-8 --in extraordinary circumstances, the
appearance of witness is dispensed and the witness is allowed to depose evidence
without appearing in Court.
Appearance is exempted if:
a. A witness is bedridden or is unable to attend the Court due to sickness or
infirmity. Such a witness will have to submit a certificate signed by a registered
medical practitioner as evidence of sickness or infirmity. (Order XXVI Rule 1,
C.P.C.)
b. A witness apprehends danger to his life and informs the Court about such
danger and if the Court thinks that recording evidence of the witness is
necessary, the Court may issue commission to record evidence of such witness
c. The witness is a pardanashin lady whose attendance is exempted under Section
132 of the code.
d. The witness is a Civil or Military Officer of the Government, cannot attend
without detriment to the Public Service. (Order XXVI Rule 4)
 e. A person who cannot be ordered to attend the Court in person under Order 16 rule 19 can
be examined by the Court by issuing a commission. (order 26 rule 4 proviso)
f. A commission can be issued for examination of a person detained in prison.
(order 16A rule 7)

2.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:
a. For proper clarity of any matter in dispute, or
b. In ascertaining the market value of any property
c. To know the amount of mens rea or annual net profits.
While appointing a commissioner for, the Court has to examine (4).
a.
b. 1.The pleadings of both the parties,
c. 2. Relief claimed,
d. 3. The real controversy between the parties.
e. It is important to note that the object of a commission is not to collect evidence
f. but to acquire evidence from a fixed spot. It is also used to enable the Court to
have more clarity regarding the facts of the case.
g. 3.To adjust accounts: Order 26 Rule 11-12
h. 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)
i.
j. 4. To make partition: Order 26 Rule 13-14
k. 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)
l. 5. To hold investigation: Order 26 Rule 10-A
m. When the Court has to conduct a scientific investigation, the Court can appoint
a commissioner who will then be responsible for such investigation. After
 conducting such investigation, the commissioner has to submit the report
within the time prescribed by the Court.
n. 6. To sell the property: Order 26 Rule 10-C
o. 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.
p.
q. 7.To do ministerial work: Order 26 Rule 10-B
r. 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.
s.
t. Therefore, the Court appoints a commissioner to do such works on behalf of the
Court. It is important to note that commissioners cannot do judicial functions.
(5)
u. Procedure for carrying out the commission:
v. . will conduct the functions
w. . will reduce the findings in writing and will make a report.
x. . will submit the report signed by him in court.
y. . report of commissioner will form a part of the record.
z. . While examining the report, the Court or the concerned parties, after prior
permission, can examine the commissioner personally in open Court.
aa. If the Court is dissatisfied with the proceedings of the commissioner the Court
can order a further inquiry on the commission or can issue a fresh commission
and appoint a new commissioner.
bb. Powers of the commissioner: Order 26 Rule 16-18
cc. Under order 26 rule 16, powers of a commissioner are as follows:
dd.
ee. 1.Commissioner has the authority to examine the parties and the witnesses and
any other person who the commissioner thinks can give evidence in the matter
referred to him.
ff. 2.Commissioner can direct the parties to produce any documents which is
required to be examined.
gg. 3.Commissioner also has the power to enter and search any land or building
with the permission of the Court.
hh. 4.If the party fails to appear before the commissioner after the order of the
Court, the commissioner can proceed ex parte.
ii. Whether the commissioner will be entitled to a
Remuneration?
jj. There is no provision in the CPC which expressly provides for remuneration to
the commissioner but Rule 15 of order 26 provide for the expenses which might
be incurred by the commissioner.
kk. What are the limitations on the commissioner?
ll. Commissioner has to assist the Court in carrying out the judicial functions but
he cannot do the judicial functions on behalf of the Court. For example, a
commissioner cannot value the suit property because it is a judicial function and
only the Court has the power to do so. A commissioner can assist the Court by
producing the documents such as plans of the suit property by which the Court
can ascertain the value.
mm. What is the evidentiary value of the report submitted by the
commissioner?
nn.
oo. According to order 26 rule 10 (2) of the CPC, the report and the evidence
submitted by commissioners forms a part of the record but if the evidence is
submitted without the report of the commissioner, such evidence does not
form part of the record. (6) The report forms an important part of the case and
can only be challenged on sufficient grounds. The Court has the final say on how
much reliance should be placed on the report submitted by the Court.
pp.
qq.
rr.
ss. .
tt.

uu.