📝 Question: Explain in detail the provisions relating to
the issuing of ‘Commissions’ under the Civil Procedure
Code, 1908.
📑 Synopsis
1. Introduction
2. Meaning of Commission
3. Legal Provisions (Order 26 CPC)
4. Types of Commissions
5. Procedure for Issuance of Commissions
o Application for Commission
o Court’s Power to Issue a Commission
o Type of Commissioner
6. Powers and Functions of the Commissioner
7. Report of the Commissioner
8. Costs of Commission
9. Case Laws
10. Conclusion
🔹 1. Introduction
A commission is an authority issued by the court to a person (known as a commissioner) to
carry out specific tasks such as the inspection of property, examination of witnesses, or
collection of evidence on behalf of the court. It ensures the effective collection of evidence
and the protection of parties' rights during the course of litigation.
🔹 2. Meaning of Commission
In legal terms, a commission refers to an official order by the court, directing a person to
perform a particular act in connection with the proceedings. A commissioner is the person
appointed to execute the commission. These commissions can be for:
Inspection of property,
Examination of witnesses,
Taking an inventory,
Collecting evidence.
🔹 3. Legal Provisions (Order 26 CPC)
The provisions related to the issuing of commissions are primarily found in Order 26 of the
Civil Procedure Code, 1908. This order governs the appointment of commissioners, the
procedure to be followed, and the powers granted to the commissioner.
Key provisions include:
Order 26, Rule 1: Court's power to issue a commission.
Order 26, Rule 2: Commissioner’s powers.
Order 26, Rule 3: Specific powers to issue commission for examining witnesses.
Order 26, Rule 4: Commission for local investigations.
Order 26, Rule 10: Expenses for the commission.
🔹 4. Types of Commissions
1. Commission for Local Investigation (Order 26, Rule 9)
o This type is issued when there is a need to inspect the property, examine a site,
or investigate any fact requiring an on-site assessment.
2. Commission for Examination of Witnesses (Order 26, Rule 4)
o A commission can be issued to examine a witness who is unable to appear in
court due to age, illness, or distance.
3. Commission for Expert Opinion
o Sometimes, the court may issue a commission for specialized investigation
by an expert (e.g., a medical or engineering expert).
4. Commission for Gathering Evidence
o A commission can be issued to gather documentary evidence or take
inventories of assets or property in a dispute.
🔹 5. Procedure for Issuance of Commissions
� Application for Commission (Order 26, Rule 1)
A party wishing to have a commission issued must file an application in the court.
The application should contain:
o The purpose of the commission,
o The specific task the commissioner must carry out (e.g., inspecting property,
examining witnesses),
o The names and qualifications of the proposed commissioner (if any),
o The place where the commission is to be executed.
� Court’s Power to Issue a Commission (Order 26, Rule 1)
The court has discretionary power to issue a commission.
Conditions:
o There must be special reasons to justify issuing a commission.
o The task cannot be accomplished effectively by any other method.
o The commission must be related to gathering evidence or a specific judicial
act.
The court may issue a commission at any stage of the proceedings.
🔹 6. Powers and Functions of the Commissioner
The commissioner appointed under Order 26 CPC has specific powers as determined by the
court. These include:
Examining witnesses on behalf of the court if they are unable to appear,
Inspecting property or documents to gather evidence,
Taking inventory of the subject matter in dispute,
Reporting to the court on the status of the commission.
The commissioner is an officer of the court, and his actions must adhere strictly to the
instructions and powers granted by the court.
🔹 7. Report of the Commissioner
The commissioner’s report is a crucial document in the case and must be filed in the
court as soon as the task is completed.
The report should include:
o A detailed account of the actions taken,
o Findings and observations made during the execution of the commission,
o Any relevant evidence collected.
The court will then review the report and decide whether to admit it as evidence.
🔹 8. Costs of Commission (Order 26, Rule 10)
Cost of the commission (including the commissioner's fees) must be borne by the
party requesting the commission, unless the court orders otherwise.
If the commission is to be executed in a foreign country, the cost of issuing the
commission may be greater, and the court may require a deposit or advance.
🔹 9. Case Laws
1. Gouri Shankar v. Radha Bai (AIR 1953 SC 4)
– The Supreme Court held that a commission is an exceptional power granted by the
court and is used only when necessary to ensure justice and fairness.
2. State of Rajasthan v. Surajmal (AIR 1974 SC 2521)
– The Supreme Court clarified that no commission should be issued solely for the
convenience of a party unless there are justifiable grounds.
🔹 10. Conclusion
The provision for issuing commissions under the CPC provides an essential mechanism to
ensure that justice is served even when certain tasks cannot be accomplished directly by the
court. By appointing an independent commissioner, the court ensures that unbiased evidence
is gathered and that parties’ rights are protected during litigation.
✅ Exam Tip: Always mention Order 26 CPC and its specific rules (Rule 1, 4, 9) for full
marks. Use case law to support your arguments.
