INTRODUCTION:

Order for commission:

An order for the issue of a commission for the examination of a witness may be made by the court either of its own motion or on the application, supported by affidavit or otherwise, of any party to the suit or of the witness to be examined.

Law relating to commissions is dealt under Order 26 CPC. Commissions may be for the purpose of: (a) recording evidence of a person, (b) local inspection, (c) examinations or settlement of accounts or (d) partition of properties. Each of these varieties of commissions is common in civil courts.

When a party wants to examine a person as a witness and such a proposed witness is not able to attend the court house owing to disease, infirmity, custom, (such as pardanashin lady) or legal privilege (the President of India, Judges of Supreme Court and High Court), the party who wants to examine the person can apply to the trial court for appointment of a commissioner to examine the person as a witness. Though the Code provides that any person can be appointed as a commissioner, usually, advocates are appointed as commissioners.

With regard to the appointment of commissions to examine witnesses, the practice and procedure may be stated as briefly.

Whenever a party feels that a commissioner is necessitated, the party whether he is the plaintiff or defendant, has to file a petition along with an affidavit in the court detailing the facts warranting the appointment of the Commissioner.

The affidavit is therefore expected to have the reasons why the witness cannot be summoned, and detailing the address. Where the commissioner has to execute the warrant. The person who applies is known as petitioner.

The court then orders notice to the opposite side. The opposite side files its counter, if any, opposing the appointment of the commissioner.

The court hears both sides and passes order. Court may allow or dismiss the petition. If the petition is dismissed, in which case the petitioner may bring the witness to court or may choose not to examine such a person as witness.

When the Court allows the petition, the Court usually appoints a relatively junior advocate as commissioner. The Court fixes fee of the commissioner which is usually payable by the petitioner, and rarely by the respondent. If the place where the witness is residing, is very far the Court also determines the fee or transport of the commissioner.

The Court issues the order, which is termed as warrant, in the name of the appointed commissioner specifying the duties of the commissioner, stating the fee, and stating the time before which the warrant shall be executed.

The court appoints an advocate unconnected to the suit, as commissioner in order to ensure neutrality. The warrant is served on the named commissioner after the petitioner pays batta for the issuance of the warrant.

Commissioner's fee is sometimes ordered to be paid before executing warrant and sometimes, after execution of warrant. In the latter case, the petitioner shall deposit the fee in court. The commissioner is paid the same by court, after execution of warrant, on the application of the commissioner.

On receipt of warrant of commission the commissioner issues notice to advocates on both sides informing them about his appointment as commissioner and fixing a date to execute the warrant. On the date fixed he goes to the place where the witness resides and records the evidence of the witness by first allowing the advocate for the party who calls the witness to conduct chief examination and then allowing the advocate of the opposite side to cross-examine, the witnesses tendered.

There after followed by re-examination if necessitated. It means the recording is done by the commissioner, who in fact discharges the duties of Court.

Many a time, the question posed to the witness by one side is opposed by the other side on grounds of leading question, irrelevant question, misleading question etc., In such a case, the advocate commissioner, records the question as it is, records the answer and beneath it, in brackets, records the objection, leaving it for the court to decide the matter.

Same position holds good so far as reexamination is concerned also, since invariably, the opposite counsel objects reexamination on the ground that there was no ambiguity and the re-examination is intended only to nullify the effect of cross-examination.

After recording the evidence, the commissioner files it before the Court along with his memo stating when he recorded evidence, where he recorded evidence etc. The evidence as well as report of the commissioner form part of the case record.

When the appointment is to make local inspection, the method adopted by the commissioner slightly varies. Local inspection is usually resorted to establish a fact.

Suppose A contends that his house has three steps to reach the house and that B has been attempting to demolish them, B may contend that the house has no steps at all. A gets a commissioner appointed to examine whether steps exist or not, and if so how many.

In such a case, the commissioner issues notice to advocates on both sides as to the date on which the warrant would be executed. He also requests advocate to file before him any "Work Memos".

A work memo contains the points to be noticed by the commissioner specifically, without transgressing the terms of the warrant. For instance, the advocate for B may ask the commissioner to note specifically whether the steps, if existing, seem to be a brand new construction 01 old ones. If the commissioner found them to be new, B's counsel may contend that they were constructed only after the suit was laid.

So long as the work memi has no bearing on the warrant, the commissioner is not expected to answer the point. The commissioner files such work memos and other documents, if any received by him along with the report, before the court which appointed him as commissioner.

Sometimes, the court, either "suo motu" or on application from either side redirects the commissioner to execute the warrant again with reference to a specific matter.

The commissioner follows the same procedure adopted by him, as if it is a fresh warrant.

At times, the execution of the warrant takes much more time than the court anticipated initially.

The court fixes commissioner's fee expecting certain time and skill of the commissioner. For instance, the court appoints a commissioner to take inventory of movables of a partnership firm, in the process of dissolution of the firm and for rendition of accounts. It may take a day for the commissioner or it may consume several days or weeks for the commissioner to fulfill the task depending upon the movable of the firm. If the fee fixed by the court is too low for the work, the commissioner may apply to the court, after he submits the report, explaining the time taken in executing the warrant and praying for enhancement of his fee. It is customary for the commissioner not to state the enhancement amount leaving it to the discretion of the judge.

The judge may enhance the fee or refuse to do so. If the fee is enhanced, it is ordered to be paid by the petitioner within a given time.

In respect of accounts or partition matter, usually senior advocates having knowledge of accounts or survey, as the case may be, are appointed. The basic steps the commissioner takes in these matters are the same as in the other variety of commissions referred above.

A reading of Rule 19 of the Code of Civil Procedure shows that three conditions are required to be satisfied before jurisdiction vested in this court under Section 78 read with Rule 19 of Order 26 of the Code of Civil Procedure can be invoked and the said conditions are that :

(a) A foreign court should wish to obtain evidence of a witness:

(b) In any proceeding of civil nature before it; and

(c) The witness should be residing within the appellate jurisdiction of the High Court (Wooster Products Inc v. Magna Tek Inc).¹

Appointment of Court Commissioner

An Advocate Commissioner is appointed under Order XXVI Rule 9 of the Code of Civil Procedure 1908 inter alia for elucidating any matter in dispute. In the instant case, the claim for injunction made by the respondent is based on the plea that there is only one way to his house and that he is being prevented by the petitioners from using the said way. Any amount of evidence in this regard may not enable the Court to render a conclusive finding on this aspect.

Therefore, a situation such as this would certainly fall within the expression of “elucidating any matter in dispute”. This in my opinion would not amount to gathering evidence. It only helps the Court in ascertaining with certainty as to whether there is only one way or there are any other alternative ways for the respondent to reach his house. Indeed, by appointing an Advocate Commissioner on the facts of the present case, no harm is caused to the interests of the petitioners, as it is their case that the lane exclusively belongs to them and that there are alternative ways for the respondent to reach his house. By the inspection of the Advocate Commissioner and submission of his report, the real matter in dispute can be more effectively and conveniently resolved.

Commissions to examine witnesses

1. Cases in which Court may issue commission to examine witness

Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it:

Provided that a commission for examination on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.

Explanation.-The Court may, for the purpose of this rule, 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.

2. Order for commission

An order for the issue of a commission for the examination of a witness may be made by the Court either of its own motion or on the application, supported by affidavit or otherwise, of any party to the suit or of the witness to be examined.

3. Where witness resides within Court's jurisdiction

A commission for the examination of a person who resides within the local limits of the jurisdiction of the Court issuing the same may be issued to any person whom the Court thinks fit to execute it.

4. Persons for whose examination commission may issue

(1) Any Court may in any suit issue a commission 5[for the examination on interrogatories or otherwise of-

(a) any person resident beyond the local limits of its jurisdiction;

(b) any person who is about to leave such limits before the date on which he is required to be examined in Court; and

(c) 6[any person in the service of the Government] who cannot in the opinion of the Court, attend without detriment to the public service ;

Provided that where, under rule 19 of Order XVI, a person cannot be ordered to attend a Court in person, a commission shall be issued for his examination if his evidence is considered necessary in the interests of justice:

Provided further that a commission for examination of such person on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.

(2) Such commission may be issued to any Court, not being a High Court, within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the Court issuing the commission may appoint.

(3) The Court on issuing any commission under this rule shall direct whether the commission shall be returned to itself or to any subordinate Court.

5. Commission or request to examine witness not within India

Where any Court to which application is made for the issue of a commission for the examination of a person residing at any place not within India is satisfied that the evidence of such person is necessary, the Court may issue such commission or a letter of request.

6. Court to examine witness pursuant to Commission

Every Court receiving a commission for the examination of any person shall examine him or cause him to be examined pursuant thereto.

7. Return of commission with depositions of witnesses

Where a commission has been duly executed, it 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; and the commission and the returned thereto and the evidence taken under it shall 8[(subject to the provisions of rule 8)] from part of the record of the suit.

8. When depositions may be read in evidence

Evidence taken under a commission shall not be read as evidence in the suit without the consent of the party against whom the same is offered, unless-

(a) the person who gave the evidence is beyond the jurisdiction of the Court, or dead or unable from sickness or infirmity to attend to be personally examined, or exempted from personal appearance in Court, or is a 9[person in the service of the Government] who cannot, in the opinion of the Court, attend without detriment to the public service, or

(b) the Court in its discretion dispenses with the proof of any of the circumstances mentioned in clause (a) and authorizes the evidence of any person being read as evidence in the suit, notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same.

Commissions for local investigations

9. Commissions to make local investigations

In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elecidating 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 such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.

10. Procedure of Commissioner

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

(2) Report and depositions to be evidence in suit. Commissioner may be examined in person - The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit 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. -

(3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.

Commissions for scientific investigation, performance of ministerial act and sale of movable property.

10A. Commission for scientific investigations

(1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court.

(2) The provisions of rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.

10B. Commission for performance of a ministerial act

(1) Where any question arising in a suit involves the performance of any ministerial act which cannot, in the opinion of the Court, be conveniently performed before the Court, the Court may, if, for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to perform that ministerial act and report thereon to the Court.

(2) The provisions of rule 10 of this Order shall apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.

10C. Commission for the sale of movable property

(1) Where, in any suit, it becomes necessary to sell any movable property which is in the custody of the Court pending the determination of the suit and which cannot be conveniently preserved, the Court may, if, for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to conduct such sale and report thereon to the Court.

(2) The provisions of rule 10 of this Order shall apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.

(3) Every such sale shall be held, as far as may be, in accordance with the procedure prescribed for the sale of movable property in execution of a decree.]

Commissions to examine accounts

11. Commission to examine or adjust accounts

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

12. Court to give Commissioner necessary instructions

(1) The Court shall furnish the Commissioner with such part of the proceedings and such instructions as appear necessary, and the instructions shall distinctly specify whether the Commissioner is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his examination.

(2) Proceedings and report to be evidence. Court may direct further inquiry-The proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where the Court has reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit.

Commissions to make partitions

13. Commission to make partition of immovable property

Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.

14. Procedure of Commissioner

(1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directly by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorised thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares.

(2) The commissioner shall then prepare and sign a report or the Commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to Court; and the Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same.

(3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the Court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.

General provisions

15. Expenses of commission to be paid into Court

Before issuing any commission under this Order, the Court may order such sum (if any) as it thinks reasonable for the expenses of the commission to be, within a time to be fixed, paid into Court by the party at whose instance or for whose benefit the commission is issued.

16. Powers of Commissioners

Any Commissioner appointed under this Order may, unless otherwise directed by the order of appointment,-

(a) examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the Commissioner thinks proper to call upon to give evidence in, the matter referred to him;

(b) call for and examine documents and other things relevant to the subject of inquiry;

Questions objected to before the Commissioner

(1) Where any question put to a witness is objected to by a party or his pleader in proceedings before a Commissioner appointed under this Order, the Commissioner shall take down the question, the answer, the objections and the name of the party or, as the case may be, the pleader so objecting :

Provided that. the Commissioner shall not take down the answer to a question which is objected to on the ground of privilege but may continue with the examination of the witness, leaving the party to get the question of privilege decided by the Court, and, where the Court decides that there is no question of privilege, the witness may be recalled by the Commissioner and examined by him or the witness may be examined by the Court with regard to the question which was objected to on the ground of privilege.

(2) No answer taken down under sub-rule (1) shall be read as evidence in the suit except by the order of the Court.

17 Attendance and examination of witnesses before Commissioner

(1) The provisions of this Code relating to the summoning, attendance and examination of witnesses, and to the remuneration of, and penalties to be imposed upon, witnesses, shall apply to persons required to give evidence or to produce documents under this Order whether the commission in execution of which they are so required has been issued by a Court situate within or by a Court situate beyond the limits of 7[India], and for the purposes of this rule the Commissioner shall be deemed to be a Civil Court :

Provided that when the Commissioner is not a Judge of a Civil Court he shall not be competent to impose penalties; but such penalties may be imposed on the application of such Commissioner by the Court by which the commission was issued.

(2) A Commissioner may apply to any Court (not being a High Court) within the local limits or whose jurisdiction a witness resides for the issue of any process which he may find it necessary to issue to or against such witness, and such Court may, in its discretion, issue such process as it considers reasonable and proper.

18. Parties to appear before Commissioner

(1) Where a commission is issued under this Order, the Court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders.

(2) Where all or any of the parties do not so appear, the Commissioner may proceed in their absence.

18A. Application of Order to execution proceedings

The provisions of this Order shall apply, so far as may be, to proceedings in execution of a decree or order.

18B. Court to fix a time for return of commission

The Court issuing a commission shall fix a date on or before which the commission shall be returned to it. after execution, and the date so fixed shall not be extended except where the Court, for reasons to be recorded, is satisfied that there is sufficient cause for extending the date

Commissions issued at the instance of foreign Tribunals

19. Cases in which High Court may issue commission to examine witness

(1) If a High Court is satisfied-

(a) that a foreign court situated in a foreign country wishes to obtain the evidence of a witness in any proceeding before it,

(b) that the proceeding is of a civil nature, and

(c) that the witness is residing within the limits of the High Court's appellate jurisdiction, it may, subject to the provisions of rule 20, issue a commission for the examination of such witness.

(2) Evidence may be given of the matters specified in clauses (a), (b) and (c) of sub-rule (1)-

(a) by a certificate signed by the consular officer of the foreign country of the highest rank in India and transmitted to the High Court through the Central Government, or

(b) by a letter of request issued by the foreign Court and transmitted to the High Court through the Central Government, or

20. Application for issue of commission

The High Court may issue a commission under rule 19-

(a) upon application by a party to the proceeding before the foreign court, or

(b) upon an application by a law officer of the State Government acting under instructions from the State Government.

21. To whom commission may be issued

A commission under rule 19 may be issued to any Court within the local limits of whose jurisdiction the witness resides, or 11[***] the witness resides within the local limits of 12[the ordinary original civil jurisdiction of the High Court], to any person whom the Court thinks fit to execute the commission.

22. Issue, execution and return of commissions, and transmission of evidence to foreign Court

The provisions of rules 6, 15, 13 [Sub-rule (1) of rule 16A, 17, 18 and 18B] of this Order in so far as they are applicable shall apply to the issue, execution and return of such commissions, and when any such commission has been duly executed it shall be returned, together with the evidence taken under it, to the High Court, which shall forward it to the Central Government, along with the letter of request for transmission to the foreign court.

REFERENCE:

1. Wooster Products Inc v. Magna Tek Inc MANU/DE/0102/1988

Received on 11.03.2015 Modified on 18.03.2015

Int. J. Rev. & Res. Social Sci. 3(1): Jan. – Mar. 2015; Page 31-36