Write a detailed note on commission.
Section 75 to 78 and Order 26 of Code of Civil Procedure, 1908, deals with the provisions of Commission. According to these sections and Order, the court has power to issue commission and it can exercise this power for administering proper justice to the parties. In any suit in which it is essential to issue commission, in that suit only court exercises its power and issues commission. The court is not bound to issue commission in each and every suit.
In the leading case of Padam Sen v. State of U.P., AIR 1961 SC 218, the Hon’ble Court held that the power of the court to issue commission is discretionary and can be exercised by the court for doing full and complete justice between the parties.
Moreover, in the leading case of Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802, the Hon’ble court held that the discretionary power to issue Commission can be exercised by the court either on an application by a party to the suit or of its own motion.
According to the provisions of Code of Civil Procedure, 1908, a court can issue Commission for any of the following purposes:-
• To examine witnesses:– It is a general rule that if any witness appears before the court of law, his evidence is taken by the court. But, if a witness is unable to attend the court due to some reasonable grounds then in such a case the court can issue commission just to take the evidence of that witness.
In the leading case of Filmistan (P) Ltd. v. Bhagwandas Santprakash, AIR 1971 SC 61, the Hon’ble Court held that the court has the discretion to relax the rule of attendance in the court where the persons sought to be examined as the witness resides beyond the local limits of the jurisdiction of the court and court can issue commission to take the evidence of that person.
• To make local investigation:- The court may, in any suit, issue a Commission to such person as it thinks fit directing him to make a local investigation and to report thereon for the purpose of:-
- elucidating or clarifying any matter in dispute
- ascertaining the market value of any property or the amount of mesne profits or damages or annual net profits.
In the leading case of Padam Sen v. State of U.P. AIR 1961 SC 218, the Hon’ble court held that the object of local investigation is not to collect evidence which can be taken in the court but to obtain evidence which from its very peculiar nature can be had only on the spot.
• To adjust accounts:- According to the provisions of Code of Civil Procedure, 1908, the court has power to issue commission for examination or adjustment of accounts. If court issues a commission for this purpose then court has power to give instructions to the commission so that proper examination or adjustment of accounts may done.
• To make partition:- According to the provisions of Code of Civil Procedure, 1908, where a preliminary decree for partition of immovable property has been passed by the court, the court may issue commission to make a partition or separation according to the rights declared in such decree.
• To hold investigation:– According to the provisions of Code of Civil Procedure, 1908, 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 interest 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.
• To perform ministerial act:– According to the provisions of Code of Civil Procedure, 1908, 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 then in such situation the court has power to issue commission directing him to perform that ministerial act and report thereon to the court.
According to the provisions of Order 26 of Code of Civil Procedure, 1908, the commissioner has following powers:-
• To summon and procure the attendance of parties and their witnesses and examine them
• To call for and examine documents
• To enter into any land or building mentioned in the order
• To proceed ex parte if the parties do not appear before him in spite of order of the court
Moreover, according to Order 26 of Code of Civil Procedure, 1908, the court has power to make order to the party who requires the commission to deposit the necessary expenses within time period prescribed by the court.
In the leading case of Ram Krishna Muraji v. Ratan Chand, AIR 1931 PC 136, the Hon’ble court held that a judicial function of a court cannot be delegated to a commission.
According to the judicial precedents, Commission cannot be issued to value the property in dispute as it is the function of the court. But Commission can be appointed to gather data to help such determination by the court. Similarly, Commission cannot be appointed to scrutinize the votes at the election but it can be entrusted work of separating undisputed votes from disputed votes or of counting votes as it is merely a ministerial work.
In the leading case of Tushar Kanti v. Savitri Devi, AIR 1996 SC 2752, the Hon’ble court held that the report of the Commissioner would furnish prima facie evidence of the facts and data collected by the Commissioner. It will constitute an important piece of evidence and cannot be rejected except on sufficient grounds.