Under CPC, a commissioner is appointed to fulfil certain functions which are essential for the Court, in order to dispense full and complete justice. Section 75 and order 26 of the code provides the key provisions which relates to the commissioner. In this article, we will try to answer the most basic questions which comes to our mind when we begin to understand the concept of issue of commission and appointment of commissioner.
Procedure for carrying out the commission:
- The commissioner will conduct the local investigation, examination of witnesses, adjust accounts and other functions as ordered in the commission.
- After completion of the function, the commissioner will reduce the findings in writing and will make a report.
- The commissioner will submit the report signed by him along with the evidence recorded in the Court.
- The report of commissioner will form a part of the record.
- While examining the report, the Court or the concerned parties, after prior permission, can examine the commissioner personally in open Court.
- 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.
To summarize, the commission can be issued in the following circumstances:
- To make a local investigation.
- To adjust accounts.
- To make partition.
- To hold investigation.
- To conduct sales.
- To perform ministerial work.
Powers of the commissioner: Order 26 Rule 16-18
Under order 26 rule 16, powers of a commissioner are as follows:
- 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.
- Commissioner can direct the parties to produce any documents which is required to be examined.
- Commissioner also has the power to enter and search any land or building with the permission of the Court.
- If the party fails to appear before the commissioner after the order of the Court, the commissioner can proceed ex parte
Whether the commissioner will be entitled to a Remuneration?
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. While issuing commission, the Court directs the applicant to deposit a sum of amount which can be used by the commissioner to account for the expenses which might be incurred by him while carrying out the commission. The Court has the discretionary power to make directions make any other direction regarding the remuneration.
The appointment of Commissioner is guided by
circumstances in every case and they have to be appreciated
by the Court independently. From an appraisal of law and
procedure laid down in the above paragraphs it is emerged
that appointment of a Commissioner for local visits and to
investigate the physical features, is generally an
indispensable process in the Civil litigation. The affidavit
supporting the application shall clearly indicate what the
purpose of seeking the appointment of Commissioner is. The
relief part of the petition shall also disclose the said purpose
invariably. The warrant issued by the Court to the
Commissioner shall contain the particulars of the work
entrusted to him so that he will not exceed the scope of
warrant. The parties shall also supply work-memo to the
Commissioner enabling him to answer the questions raised by
the parties according to the case put forth by him. Once a
Commissioner is appointed, it is not significant at whose
instance he was appointed; soon after his appointment, he
will be the shadow of the judicial Court and his duties are
judicial functions and therefore, he has to answer all the
questions which are given to him in the work memo, which
are within the scope of the warrant entrusted to him. Though
his report by itself may not be the evidence, certainly it will
help Court to properly appreciate the oral and documentary
evidence adduced by the parties.
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According to Section 75 and Order XXVI of C.P.C., Court has discretion to appoint a commissioner but the discretion has to be exercised in a judicious and sound manner and not whimsically. Before appointing commissioner, Court shall examine pleadings, relief claimed and real controversy between parties. As was held in Shaik Zareena Kasam vs. Patan Sadab Khan and others, C.R.P. No.3266 of 2007 ,dt. 01-04-2011, it is always better if the parties are allowed to adduce evidence at the stage of trial for better appreciation of the facts which will help the Court in effectively deciding the main dispute between the parties.
When an application for appointment of advocate commissioner is filed, such application must be decided without any delay. As was held in P. Pedda Saidaiah And Ors. vs T. Padmavathi,1997 (5) ALT 818, it is the duty of the Court to dispose of the interlocutory applications filed by the parties during the pendency of the suit within a reasonable time. Where in a suit for possession, the purpose of appointment of a Commissioner was to collect evidence the rejection for appointment of Commissioner is a proper one, as opined by the Hon’ble Madras High Court in Raja vs Narashimamurthy (2011), C.R.P.PD.No.3163 of 2009,dt.01.08.2011. It is well-settled that if the oral and documentary evidence are found enough to resolve the controversies in the suit, the rejection of application for appointment of a Commissioner is a valid one. It is provided under Order XXVI Rule 9 of CPC that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating 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.