INTRODUCTION
The Code of Civil Procedure, 1908 (CPC) provides a comprehensive procedural framework for the adjudication of civil disputes in India. Among its incidental procedural mechanisms is the power of a civil court to issue a commission. A commission enables the Court to obtain assistance in situations where examination, investigation, accounting, partition, or another specified act cannot conveniently or effectively be undertaken by the Court itself.
The principal statutory provisions relating to commissions are contained in Sections 75 to 78 of the CPC and Order XXVI. Section 75 sets out the purposes for which a commission may be issued, while Order XXVI provides the detailed procedural rules governing different types of commissions.
The power to appoint a commissioner is discretionary and must be exercised judicially. It is not intended to enable a party to collect evidence which it is otherwise required to produce itself. The courts have therefore developed important principles concerning the circumstances in which commissions may be issued, the powers of commissioners, the evidentiary value of their reports, and the limits of the court's inherent powers.
*Meaning of Commission*
A commission is an authority or direction issued by a court to a person appointed as a commissioner to perform a particular act or conduct a particular investigation on behalf of the court.
The commissioner acts as an officer or instrument of the Court for the limited purpose specified in the order of appointment. Depending upon the nature of the case, the commissioner may examine a witness, conduct a local investigation, investigate accounts, assist in partition proceedings, or undertake scientific, technical or expert investigation.
The purpose of a commission is essentially to assist the Court in the proper and effective adjudication of the dispute. It does not transfer the judicial power of deciding the case from the Court to the commissioner.
*Statutory Framework*
The statutory foundation for commissions is primarily found in Sections 75–78 CPC and Order XXVI CPC.
*Section 75 – Power of Court to Issue Commissions*
Section 75 empowers the Court, subject to prescribed conditions and limitations, to issue a commission:
to examine any person;
to make a local investigation;
to examine or adjust accounts;
to make a partition;
to hold a scientific, technical or expert investigation;
to conduct the sale of property subject to speedy and natural decay and in the custody of the Court pending determination of the suit; and
to perform any ministerial act.
The present statutory text therefore recognises seven broad purposes for which commissions may be issued.
*Section 76 –* Commission to Another Court
Where appropriate, a commission for examination of a person may be issued to another Court having jurisdiction over the place where the person resides. The receiving Court executes the commission and returns it, together with the evidence recorded, to the Court which issued the commission.
*Section 77 –* Letter of Request
Instead of issuing a commission, the Court may issue a letter of request for examination of a witness residing outside India.
*Section 78 –* Commissions Issued by Foreign Courts
Section 78 deals with the execution in India of commissions issued by or at the instance of foreign courts, subject to the statutory conditions and limitations.
*Order XXVI CPC*
Order XXVI contains the detailed procedural provisions relating to commissions.
A. Commission to Examine Witnesses
Order XXVI Rule 1
The Court may issue a commission for examination of a person who is exempted from attending Court or who is unable to attend because of sickness or infirmity.
The provision recognises that certain witnesses may have genuine difficulties in personally appearing before the Court.
*Order XXVI Rule 2*
The Court may issue a commission either suo motu or on an application made by a party or the witness. The application may be supported by affidavit or otherwise.
*Order XXVI Rule 4*
A commission may be issued for examination of persons residing beyond the local jurisdiction of the Court, persons who are about to leave the jurisdiction, and certain persons whose official duties make personal attendance inappropriate in the circumstances prescribed by the Code.
Thus, the purpose of these provisions is to facilitate the recording of evidence without unnecessarily causing hardship to witnesses.
*Commission for Local Investigation*
One of the most important forms of commission in civil litigation is the commission for local investigation under Order XXVI Rule 9.
Where the Court considers a local investigation necessary or proper for:
elucidating any matter in dispute;
ascertaining the market value of property;
determining mesne profits; or
determining damages or annual net profits,
it may appoint a commissioner and direct him to investigate and report.
A local commission is particularly useful in disputes concerning:
boundaries;
encroachment;
identification of property;
physical features of land;
measurements and demarcation;
possession-related physical facts; and
market value or other matters requiring local examination.
The purpose is to assist the Court in understanding facts which may be difficult to appreciate merely through oral testimony or documentary evidence.
*Procedure and Report of Commissioner*
Under Order XXVI, the commissioner conducts the investigation or examination according to the terms of the commission and submits a report to the Court.
The commissioner does not decide the rights of the parties. The report is intended to assist the Court.
The Court may consider objections to the commissioner's report and may, where permitted by the Code, examine the commissioner concerning the matters contained in the report.
Therefore, the ultimate decision remains with the Court.
*Commission for Scientific, Technical or Expert Investigation*
Modern civil litigation may involve questions requiring specialised knowledge. Section 75 expressly permits commissions for scientific, technical or expert investigation, and Order XXVI contains corresponding procedural provisions.
Such a commission may be relevant where the Court requires assistance concerning technical matters which cannot conveniently be determined solely on the basis of ordinary evidence.
The commissioner or expert does not replace the judge. Rather, specialised investigation assists the Court in understanding technical facts relevant to the issues in dispute.
*Commission for Examination or Adjustment of Accounts*
Civil suits involving partnership accounts, business transactions, financial records or complicated accounting issues may require detailed examination of accounts.
A commission may be issued for the examination or adjustment of accounts under Section 75 and the relevant provisions of Order XXVI.
The purpose is to facilitate the accurate determination of financial matters. The commissioner examines the relevant records and prepares findings within the scope of the commission.
The Court ultimately determines the legal rights and liabilities of the parties.
*Commission for Partition*
Section 75 also recognises the power to issue a commission for making a partition.
In appropriate cases, particularly where immovable property must be physically divided according to the shares declared by the Court, a commissioner may be appointed to work out the practical division.
The commissioner may inspect the property, consider its physical characteristics and propose a mode of division consistent with the decree and directions of the Court.
Again, the commissioner implements or assists in implementing the judicial determination; the commissioner does not independently determine the parties' legal shares.
*Important Case Laws*
1. *Padam Sen v. State of Uttar Pradesh AIR 1961 SC 218; (1961) 1 SCR 884*
This is an important Supreme Court decision concerning the limits of the power to appoint a commissioner and the relationship between Sections 75, Order XXVI and the inherent powers under Section 151 CPC.
In this case, a commissioner had been appointed for the purpose of seizing account books. The Supreme Court held that the civil court did not possess an inherent power under Section 151 to appoint a commissioner for forcibly seizing the books.
The Court emphasised that inherent powers relate principally to procedure and cannot be used to interfere with substantive rights where the Code does not confer such authority.
The important principle emerging from the case is that Section 151 cannot be used to confer substantive powers upon a Court which are inconsistent with or outside the scheme of the CPC. A commissioner cannot be appointed merely because the Court considers it convenient to obtain possession of property or documents when the Code does not authorise such action.
The case therefore demonstrates that the power to issue commissions is subject to statutory limits.
2. *Haryana Waqf Board v. Shanti Sarup*
Haryana Waqf Board v. Shanti Sarup, (2008) 8 SCC 671 is an important authority concerning local investigation under Order XXVI Rule 9.
The dispute concerned alleged encroachment and the demarcation of disputed land. The Supreme Court observed that, because the dispute involved demarcation of the disputed property, it was appropriate to direct an investigation through a Local Commissioner under Order XXVI Rule 9 CPC.
The case illustrates that a local commission can be particularly appropriate where the dispute involves physical demarcation, boundaries or encroachment.
The decision also demonstrates that Order XXVI Rule 9 is intended to assist the Court in elucidating matters which require local investigation.
3. *Dharmanand Pant v. State of Uttar Pradesh*
In Dharmanand Pant v. State of Uttar Pradesh, the Supreme Court considered the circumstances in which a commission for examination of a witness may be issued.
The Court stressed that the provisions governing commissions specify the circumstances in which witnesses may be examined through a commission. Ordinarily, where a witness is within the jurisdiction, is not exempted from personal attendance and is not incapacitated, the normal method is examination in open court.
A commission for examination of a witness is not intended merely to provide convenience whenever a witness does not wish to appear. The statutory requirements and circumstances must be respected.
4. *Anil K. Aggarwal v. Union of India*
In Anil K. Aggarwal v. Union of India & Anr. (2014), the Court considered the power concerning appointment of commissioners under Sections 75–78 and Order XXVI.
The judgment recognised that the provisions relating to commissions do not impose an absolute limitation concerning the identity of the person who may execute a commission. Order XXVI Rule 21 provides that a commission may be issued to a person whom the Court considers fit to execute it.
The Court possesses discretion in selecting a suitable commissioner, subject to the statutory framework and the requirements of the particular case.
*Evidentiary Value of Commissioner's Report*
A commissioner's report is an important piece of material before the Court, but the commissioner is not the final adjudicator.
The Court is required to consider the report along with the other evidence on record. The report does not automatically determine the rights of the parties.
For example, in a property dispute, a Local Commissioner's measurement or description of physical features may assist the Court, but questions of title and legal entitlement remain matters for judicial determination.
Consequently, a party cannot ordinarily use an application under Order XXVI Rule 9 simply as a substitute for producing its own evidence.
*Limitations on the Power to Appoint a Commissioner*
The power to issue a commission is discretionary and is subject to several limitations.
*1. It cannot be used to collect evidence for a party*
The Court should not ordinarily appoint a commissioner merely because a party is unable or unwilling to produce evidence that is otherwise within its power to produce.
2. *The commissioner cannot decide questions of law*
A commissioner assists the Court but cannot finally decide issues of title, ownership, legal rights or other judicial questions.
3. *The commission must fall within the statutory framework*
Section 75 and Order XXVI provide the principal framework for commissions. The Court must exercise its power consistently with the Code.
4. *Section 151 cannot be used contrary to the Code*
The decision in Padam Sen demonstrates that inherent powers cannot be invoked to confer substantive powers which the Court does not possess under the Code.
5. *The application must serve the ends of adjudication*
A commission should be issued when it is necessary or proper for determining or elucidating matters in dispute, rather than merely for delaying proceedings or creating additional evidence.
*Difference Between a Court and a Commissioner*
Court Commissioner
Decides the suit Assists the Court
Determines questions of law and fact Investigates or performs the act specified in the commission
Passes judgment and decree Submits a report/evidence
Exercises judicial power Exercises limited authority delegated by the Court
Determines rights and liabilities Does not finally determine legal rights
The distinction is important because the commissioner is an auxiliary to the judicial process and cannot assume the functions of the trial judge.
*Importance of Commissions in Civil Procedure*
Commissions serve several practical purposes in civil litigation.
First, they make the judicial process more efficient by enabling investigation of matters which cannot conveniently be examined directly by the Court.
Second, they facilitate the examination of witnesses who are unable to attend Court because of circumstances recognised by the Code.
Third, local investigation can be extremely useful in property disputes, particularly in cases involving boundary disputes, encroachment and physical demarcation.
Fourth, expert or scientific commissions allow courts to obtain assistance in technically complex matters.
Finally, commissions may assist in complicated accounting and partition proceedings.
*Critical Analysis*
The law relating to commissions attempts to strike a balance between two competing considerations. On one hand, the Court must have sufficient procedural flexibility to investigate matters effectively. On the other hand, excessive use of commissions can cause delay, increase litigation costs and allow parties to avoid their normal burden of proving their cases.
The Supreme Court's approach demonstrates that commissions should be used as an aid to adjudication rather than as a substitute for evidence.
The decision in Haryana Waqf Board v. Shanti Sarup shows the usefulness of commissions in cases involving physical demarcation and encroachment.
Conversely, Padam Sen v. State of Uttar Pradesh illustrates the limits of the power and warns against using inherent jurisdiction to interfere with substantive rights.
Thus, judicial discretion must be exercised according to the facts of each case and within the boundaries established by the CPC.
*Conclusion*
The provisions concerning commissions under the Code of Civil Procedure, 1908 constitute an important mechanism for assisting civil courts in the effective administration of justice. Sections 75 to 78 provide the statutory foundation, while Order XXVI lays down the procedural framework.
Commissions may be used for examination of witnesses, local investigation, examination and adjustment of accounts, partition, scientific or expert investigation and other statutory purposes. Their principal object is to assist the Court in resolving matters which require investigation or examination outside the ordinary courtroom process.
The case law establishes that the power is discretionary but not unlimited. Padam Sen v. State of Uttar Pradesh emphasises the statutory limits of the power and the restricted role of inherent jurisdiction. Haryana Waqf Board v. Shanti Sarup demonstrates the usefulness of a local commission in disputes concerning demarcation and encroachment. Dharmanand Pant v. State of Uttar Pradesh illustrates that commissions for examination of witnesses should be used only in circumstances contemplated by the Code.
Therefore, the fundamental principle is that a commission should be issued when it is necessary or proper to assist the Court in elucidating and adjudicating the dispute, while ensuring that the commissioner does not usurp the judicial function of the Court.
*Bibliography*
1. The Code of Civil Procedure, 1908
2. Indian Kanoon
3. CriminalitiQ
4. Law Commission of India, reports concerning the Code of Civil Procedure and incidental proceedings relating to commissions.
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