Introduction:
A commission is a fulfilled organization of people who look after the essentials of a Court’s provisions in order to make sure there is justice served to the concerned Under the Code of Civil Procedure, the Court needs to ask the Issuance of the Commission for certain provisions to be allowed to them. Section 75 and Order 26 mention such facts which are related to the provisions of a commission under the Code of Civil Procedure. A commission can also take the permission of the Commission through consent from both the parties as well as with the help of Suo-Moto which mentions the extra-ordinary powers of the Courts.
As per S.75, the court may deem fit to issue a commission only when there is:
- Witness being examined by the court
- The accounts to be adjusted as per to the court may deem fit
- Division of any type of movable property
- The certain investigation required for correct clues
- A sale for the certain movable property being
- Performance of an act of ministerial[1]
Provisions under the Commission
The provisions under the Commission in the Code of Civil Procedure,1908 are as follows:
- Part three of the S.75 to 78 focuses on the provisions to deal with the powers of the court issue through the court, a commission for the case to be beginning with the pleadings.
- ORDER XXVI: A detailed provisional version of such commission where everything regarding this has been given in detail and with the correct explanatory answer.
Appointment of Commissioner
The people who are selected panels of the commission who are selected from the High Court are advocates who are impartial, honest, disinterested in suits, or even the concerned parties. These should also be capable people who can carry out the work given by the Court. The District Judge is the one who directs and supervises the subordinate courts how and which way should appointing a commissioner.[2]
The procedure of Appointment of Commissioner
The High Court is allowed to make rules and regulations under Article 227 of the Constitution due to the superintendence it has over all the subordinate courts and tribunals. The instructions are administrative and are for the direction for the Civil Courts to follow the ways of appointment of Commissioner:
- A panel of Commissioners should not be more than four people including lady lawyer, if there is any availability in each district and shall be appointed by the High Court. The people appointed should be not large in practice and or old advocates or retired Civil judicial officers.
- The District Judge should forward all the applications of the persons who are selected for the panel of commissioners, it should be duly supported with a major reason or a person who is capable of recommending such commissioners.
- The high term for the appointment of a commissioner shall be six years or three years if there is no reappointment by the High Court.[3]
Issuance Under Commission
Witness being examined by the court
The objective of examining of witness is lead by Section 76 to 78 by Rules 1-8 of Order 26. Many of the times, this scrutiny is done in an open court. The evidence provided by the witnesses is cross-examined in the presence of all. Many of the times witnesses are not able to show up or even come for the examination due to a reason which the Honourable Court finds efficient and understandable to them.
The Courts relax the rules of attending court sessions and issues only if they realize the witness has a reasonable reason for not attending may be on the grounds of any type of disease/illness, resides outside local limits of jurisdiction. Paramhansa Ramkrishna v. Trimbak Rajaram, in this case, issued a commission to record evidence the witness, Parmahansa who practises rituals of religions while roaming naked. Meanwhile, in Vinayak Trading Co. v. Sham Sunder & Co.[4], the court may issue the court may deem fit the main commission to record the statement of a witness but he was not attending court sessions due to danger or threat posed to his life.
The investigation which might be local to be performed
The court can issue a commission where the purpose during the local investigation is to scrutinize and observe the main evidence and statements to bring clarity and help the court with the judgment. It is also getting property the amount of clarity it needs to get as well as regarding a matter in issue and to get proper validation of the property in issue and if damages included then the amount of claimant should be mentioned.
In the case, Southern Command Military Engg. Services Employees Coop. Credit Society v. V.K.K. Nambiar, the court had a commission set up where during the issue of the suit, the tenants occupied the whole land and the court was supposed to do something either visit the place or else conduct an investigation.[5]
The accounts to be adjusted as per to the court may deem fit
The court may issue the court may deem fit a commission which is for examination and cross-examination and adjustment of accounts of a person if needed. Rule 11 and 12 from Order 26 of The Code of Civil Procedure guides with the actions of ways of conducting investigations regarding such accounts statements.[6]
Division of any type of movable property
Rule 13 and 14 of Order 26 of The Code of Civil Procedure mention that the court can issue a commission when an immovable property under this super partition has been passed by the court. It divides into several parts as per the people wanting the parts of the property. Latter, the Commission prepares a report for the Court to review it if someone from the parties is unsatisfied with the division the court, later on, hears them and passes judgments according to them.
Tushar Kanti Bose v. Savitri Devi, AIR 1996 SC 2752 [7] relates to divisions of the property which was given to the appellants by the respondents and they also did some things in the property which were to be repaired.
The certain investigation required for correct clues
Rule 10 A of the Order 26 of the Code of Civil Procedure relates to the cause of issuing a commission and the evidence regarding scientific investigations particularly because of a dispute which obviously cannot be conducted in the courtroom but the court issue a commission into the dispute and injuries of the issue.
A sale for the certain movable property being
Rule 10 C of the Code of Civil Procedure the court may issue the commission under someone is selling a movable property on which the court that already has custody and on the particular property which has a case is pending of it. Same here as in the above statement that the Commission is supposed to report the sale and issuance to the Court.[8]
Performance of an act of ministerial
The ministerial acts come under the constitutes of works like accounting, calculation, and works of nature. The court issues a commission when a requirement of the performance comes for the ministerial acts. The commission under Rule 10 B of the Code of Civil Procedure conducts only such issues which is really important and here ministerial acts are acts done by the commission as per permission given by the Court.
Jagatbhai Punjabbhai Palkhiwala v. Vikrambhai Punjabbhai Palkiwala, AIR 1885 Guj. 34[9] the Court gave the judgment that the Commission does not have powers of judicial functions but it does work on behalf of the Court like reporting or consenting parties.
Remuneration
There are no particular provisions under the Code of Civil Procedure which talks regarding remuneration to the commissioner but Rule 15 of the Order XXVI states regarding the amount given/asked by the commissioner to the Court how much amount they will take on behalf of the Court to do as asked by the court. The court has the discretionary powers to do things that are in the direction of remuneration of the Commission.
Limitations of the Commissioner
The commission has to do things on behalf of the court and they cannot do any type of judicial functions from the side of the Court. These commissions are to produce evidence in front of the Court for proper judgment by the High Court regarding where the issuance of the commission for the court was taken.
Evidential Matters
The evidence submitted by the commission is on record accurate information whereas the information if not gone through the hands of the panels of commission is known not to be the accurate information under Rule 10(2) of the Code of Civil Procedure. These reports of evidence are necessary to go through the hands of the commission since the judgments mostly rely on such reports with evidence. [10]
Conclusion
A commission with a panel of at least four people is necessary so whichever case where the evidence is not efficient or accurate, the Commission can be ordered by the Court to investigate and find out for more evidence regarding the current case which is in the Code of Civil Procedure. These reports are known for their efficiency of evidence and for the commissioners for not being impartial with the evidence regarding such cases which can cause a harmful loss or gain to one party and disadvantage to another.
So that, it can be easier for the District Judge to appoint such advocates and to make these commissioners work on behalf of the Court’s wellbeing so that a proper judgment through justice, equity, and good conscience on evidence can be done in such Civil suits.
References:
[1] The Code of Civil Procedure, 1908, Section 75
[2] Court Rules, Delhi High Court (http://delhihighcourt.nic.in/writereaddata/upload/courtrules/courtrulefile_vs9kzqs0.pdf)
[3] Ibid
[4] Vinayak Trading Co. And Ors., Etc. vs Sham Sunder & Co. on 15 October, 1986, AIR 1987 AP 236
[5] Southern Command Military Engg. Services Employees Coop. Credit Society v. V.K.K. Nambiar, AIR 1988 SC 2126
[6] Code of Civil Procedure, 1908, Order 26, Rules 11 and 12
[7] Tushar Kanti v. Savitri Devi, AIR 1996 SC 2752
[8] Ibid, Rule 10 – C
[9] Jagatbhai Punjabbhai Palkhiwala v. Vikrambhai Punjabbhai Palkiwala, AIR 1885 Guj. 34
[10] Kitnammal vs Nallaselvan And Ors. on 19 March, 2005 – Indian Kanoon (https://indiankanoon.org/doc/112613/)
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