Commissions

 Commissions

Sections 75-78 and Order 26 of the Code deals with the issue of Commissions. The power of court to issue commissions is discretionary which can be exercised by the court either suo motu or on the application of the parties [Order 26 Rule 2].

Purposes for which Commissions may be issued: 

1. To examine witness [Section 75(a), Rules 1-8]
2. To make local investigation [Section 75(b), Rules 9 and 10]
3. To examine or adjust accounts [Section 75(c), Rules 11 and 12]
4. To make partition [Section 75(d), Rules 13]
5. To hold scientific, technical or expert investigation [Section 75(e), Rules 10A]
6. To sell property [Section 75(f), Rules 10-C]
7. To perform ministerial act [Section 75(g), Rules 10-B]

Section 75 provides following purposes for which a court may issue commissions:

1. To examine witness [Section 75(a), Rules 1-8]: The Commission may be issued to examine a witness in case of his inability to attend the court on grounds of sickness or infirmity or in case where he resides beyond the jurisdiction of the court etc. The court may also issue commission for the examination on interrogatories or otherwise of any person in following circumstances:

(i) Where the witness is exempted from attending the court or in the interest of justice or disposal of case, his examination though commission will be propsed. [Rule 1 and Rule 4-A].

(ii) If he is about to leave the jurisdiction of the court (Rule 4).

(iii) If he is a government servant and cannot, in the opinion of the court, attend the court without detriment to public service [Rule 4].

(iv) If he is residing out of India and his evidence is necessary [Rules 5]. In such cases, the court may issue letter of request under Section 77 in lieu of issuing commission.

2. To make local investigation [Section 75(b), Rules 9 and 10]: The court may issue a commission to such person as it thinks fir directing him to make local investigation and report thereon for following purposes mentioned Rule 9:

a) Elucidating or clarifying any matter in dispute.

(b) Ascertaining the market value of any property, or

(c) The amount of any mesne profits or damages or annual net profits.

The object of local investigation is not to collect evidence which can be taken in court but to obtain evidence which can be had only on the spot [Padma Son v. State of U.P., AIR 1981 S.C. 218].

3. To examine or adjust accounts [Section 75(c), Rules 11 and 12]: Rule 11 provides that the court may issue summon in any suit in which examination or adjustment of accounts is necessary. The proceedings and report shall be evidence in the suit. [Rule 12]

4. To make partition [Section 75(d), Rules 13]: Rule 13 provides that where a preliminary decree for partition of immovable property has been passed, the court may issue a commission to such person as it thinks fit to make a partition or separation according to the rights declared in such decree.

    The commission shall, after inquiry, divide the property into required number of shares and allot them to the parties. He shall then prepare a report appointing the shares of each party and distinguishing the same by metes and bounds and transmit it to the court which shall make final allotment after hearing the objections [Rule 14].

5. To hold scientific, technical or expert investigation [Section 75(e), Rules 10A]: Rule 10A provides that the court may issue commission directing a competent person to conduct a scientific investigation in a matter arising in a suit in which such investigation is necessary in the interest of justice and cannot be conducted before the court.

6. To sell property [Section 75(f), Rules 10-C]: Rule 10-C empowers the court to issue commission directing a person to conduct sale of movable property which is in the custody of court pending determination of suit and which cannot be conveniently preserved & report thereon to the court.

7. To perform ministerial act [Section 75(g), Rules 10-B]: If any question arising in a suit involves the performance of any ministerial act which is necessary in the interest of justice and which cannot be performed by the court, the later may issue commission directing a competent person to perform such act and report thereon [Rule 10-B].