Appointment of Commission in the Civil Procedure Code

The appointment of a commission by a court is a significant aspect of the judicial process, aimed at ensuring that justice is served most effectively and efficiently. A commission refers to the instruction or role given by the Court to a person to act on its behalf and fulfil specific duties required to deliver full and complete justice. This article delves into the concept, process and implications of the appointment of commissions under the Civil Procedure Code (CPC) of India.

What is the Issue of Commission by the Court?

A commission is essentially an instruction or a role conferred by the court to an individual, empowering them to act on the court’s behalf to perform certain judicial tasks. The person who carries out these tasks is known as a Court commissioner. For instance, in cases requiring local investigations or recording evidence from a witness who cannot attend the court, a commissioner is appointed to execute these responsibilities.

Who Can Appoint a Commissioner?

Under the CPC, the court that issues the commission is responsible for appointing the commissioner. Section 75 of the CPC states that “the Court” can issue a commission subject to certain limitations and restrictions. Therefore, the court adjudicating the suit has the authority to appoint the commissioner. This appointment is typically made at the court’s discretion, either upon the application of any of the parties involved or by the court’s own motion (suo moto).

Who Can Be Appointed as a Commissioner?

The individuals appointed as commissioners are generally selected from a panel formed by the High Court. This panel includes advocates who are deemed competent to undertake the tasks assigned by the court. The appointed commissioner should be independent, impartial and disinterested in the suit and the parties involved. Additionally, the commissioner must possess the requisite skills to perform the designated duties efficiently.

For instance, appointing a person who cannot comprehend accounts and documents to adjust accounts would be impractical and a waste of resources. Similarly, a person without scientific qualifications should not be appointed to conduct scientific investigations.

The District Judge supervises the subordinate courts, ensuring special care is taken in the appointment process. The same individual should not be repeatedly appointed for all commissions and persons frequently seen around the court should be avoided to maintain impartiality.

Procedure for Appointment of a Commissioner

Every High Court has the authority (Article 227 of the Constitution of India) to establish rules and regulations to be followed by the subordinate courts. The procedure for the appointment of a commissioner is detailed in the rules of each state’s High Court. For instance, Chapter 10 of the Delhi High Court Rules, 1967, outlines the following procedure for the appointment of commissioners in Delhi:

1. A panel consisting of no more than four commissioners, including young persons and a lady lawyer, is formed by the court for recording evidence.
2. The District Court notifies the bar about the vacancies for commissioners and the bar forwards the applications received to the court, which then forwards them to the High Court with its recommendations.
3. The term of appointment is generally three years, extendable by an order of the High Court, but no commissioner can be appointed for more than six years.

When Can a Commissioner Be Appointed by the Court?

A commissioner can be appointed when the court issues a commission. Section 75 of the CPC empowers the court to issue commissions for various functions, including:

To Examine Witnesses (Order 26 Rules 1-8)

The general rule of evidence mandates that evidence must be presented before the court and recorded in open court. However, in extraordinary circumstances, the appearance of a witness can be dispensed with and the witness can depose evidence through a commissioner. This exemption applies in the following scenarios:

1. Sickness or Infirmity: If a witness is bedridden or unable to attend court due to sickness or infirmity, the court can exempt their appearance and allow them to depose evidence to a commissioner. Such witnesses must submit a certificate from a registered medical practitioner as proof of their condition (Order 26 Rule 1, CPC).
2. Apprehension of Danger: If a witness apprehends danger to their life and informs the court and if the court deems it necessary to record their evidence, a commission may be issued. However, if a party accused of fraud seeks examination via commission, the court should avoid issuing the commission to prevent abuse of the procedure.
3. Pardanashin Ladies: The appearance of pardanashin ladies, whose attendance is exempted under Section 132 of the CPC, can be dispensed with and their evidence can be recorded by a commissioner.
4. Civil or Military Officers: Civil or military officers of the government, whose attendance would be detrimental to public service, can have their evidence recorded by a commissioner (Order 26 Rule 4).
5. Interest of Justice: The court can issue a commission if it believes it is in the interest of justice, for expeditious disposal of the case or for any other reason, notwithstanding any rules provided in the order (Order 26 Rule 4A).
6. Persons Exempt from Attendance: Individuals who cannot be ordered to attend the court in person under Order 16 Rule 19 can be examined by issuing a commission (Order 26 Rule 4 Proviso).
7. Persons Detained in Prison: A commission can be issued to examine individuals detained in prison (Order 26 Rule 7).

To Make Local Investigations (Order 26 Rules 9-10)

Commissions can be issued to conduct local investigations to clarify any point of controversy in the suit. This is especially useful in cases involving property disputes where the commissioner can visit the site and submit a report to the court.

To Adjust Accounts (Order 26 Rule 11)

When complex financial transactions are involved and it is necessary to adjust accounts, a commissioner can be appointed to scrutinise the accounts and report to the court.

To Make Partition (Order 26 Rule 13)

In suits involving partition of property, a commissioner can be appointed to divide the property in accordance with the court’s decree and submit a report on the partition.

To Hold Scientific, Technical or Expert Investigations (Order 26 Rule 10A)

In cases requiring scientific, technical or expert investigations, a commissioner with the necessary qualifications can be appointed to conduct these investigations and provide the court with an expert report.

To Conduct Sale of Property (Order 26 Rule 10C)

For the sale of property in execution of a decree, a commissioner can be appointed to conduct the sale and report the proceedings to the court.

To Perform Ministerial Acts (Order 26 Rule 12)

A commissioner can also be appointed to perform ministerial acts, such as signing documents or carrying out other administrative tasks on behalf of the court.

Powers and Duties of a Commissioner

A commissioner appointed by the court has the authority to undertake the tasks specified in the commission. The powers and duties of the commissioner include:

1. Recording Evidence: When appointed to record evidence, the commissioner must ensure that the evidence is recorded accurately and comprehensively.
2. Local Investigation: If conducting a local investigation, the commissioner must visit the site, gather relevant information and submit a detailed report to the court.
3. Adjusting Accounts: In cases requiring account adjustment, the commissioner must thoroughly examine the financial records and prepare a report on the adjustments made.
4. Scientific or Technical Investigations: For scientific or technical investigations, the commissioner must carry out the investigation with precision and submit an expert report.
5. Sale of Property: When tasked with selling property, the commissioner must conduct the sale in accordance with the court’s directions and report the proceedings.
6. Ministerial Acts: For ministerial acts, the commissioner must perform the tasks diligently and report back to the court.

Conclusion

The appointment of a commission under the CPC is a vital mechanism to ensure justice is served efficiently and effectively. By delegating specific tasks to a commissioner, the court can obtain detailed and specialised information, which aids in the proper adjudication of cases. The process involves careful selection and appointment of qualified individuals who can perform their duties impartially and competently. Understanding the roles, powers and procedures related to the appointment of commissions helps in appreciating the judicial system’s efforts to deliver comprehensive justice.