Court has discretion to issue a commission
In a civil suit if the court finds that a local investigation is required, the court can issue a commission to a person and ask him to make an investigation & report the matter thereon to the court, under Section75(b) and Order 26 rule 9 of the Civil Procedure Code (CPC). The court has enough discretion in appointing a Commissioner. But the discretion has to be exercised in a judicious and sound manner.
The Commissioner is considered to be an officer of the court to make local investigation in a case, as requested by any party.
Commission purports to assist the court
The purpose of the commission is to evaluate any matter in dispute, or to ascertain the market value of the property, or the amount of mesne profit, or damages, or annual net profits.
The scope of appointment of Commissioner is not to assist any party to the case to collect evidence. A Commissioner should not be appointed to gather evidence to prove the case of any party. It is not the business of the court to collect evidence in favour of one party.
The collection of evidence must be for the court to ascertain the fact in deciding a dispute before it.
Commissioner has to give notice to the other party
If the issuing of the commission is by an ex parte order in the absence of the other party, the court must make it clear in the order that the Commissioner has to give notice to the parties before making his/her inspection.
It is the duty of the commissioner to comply with the court’s direction in regard to the notice or to explain the reasons for not doing so, and the manner in which the attempt was made to issue notice in the event of any failure, in the report ( Abdul Nazar v Iyyathumma And Others).
The Order 26, Rule 9. C.P.C. invests the court with a discretion in passing an order for the issue of a commission and does not provide for the presence of both parties when an order for the issue of commission is passed.
There may be cases where the object of the issue of commission itself will be lost by ordering notice to the defendant before passing the order for the issue of commission.
In emergent cases it is necessary for the court to pass an order issuing commission without ordering notice to the defendant. An order for the issue of a commission for local investigation without issue of notice under Order 26, Rule 9, cannot be characterised as an action without sound jurisdiction (Maroli Achuthan v Kunhipathumma : AIR 1968 Ker 28).
Report will form part of the court records
Once commissioner inspected the property after issuing notice to the parties and a report has been filed, then it will form part of the record. Then the court can rely on the report without examining the commissioner.
However, if the report is exparte without issuing notice to the parties, the report can be admitted only after examining the commissioner before the court on oath.
Commissioner represents the court
The Commissioner is a representative of the court. He is not an agent of a party to the case. His sole duty is to report facts which are material and relevant to decide the dispute, irrespective of the fact whether they support or not support the party on whose application he is appointed.
He should not fail to report the facts favourable to the other party. He should peruse the pleadings of the petitioner before he visits the property (Paul v Varghese & another: 2016 (2) KHC 737).
Court can appoint a commissioner at any stage
The court has power to appoint a commissioner at any stage of litigation. Any act of the Commissioner beyond the scope of his deputation is ultra vires.
A commissioner can be appointed even before the defendant has entered appearance. However, the notice to the parties is compulsory before investigation is done by the Commissioner.
Commissioner must collect evidence & file a report
The Commissioner, after local inspection and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the court.
The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record of the court.
The court or any of the parties to the suit with the permission of the court, may examine the Commissioner personally in open court relating to any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.
The party objecting to the report can file an application under Order 26 Rule 10 (2) to permit him to examine the commissioner in open court and the court must permit him to do so.
Court can direct further enquiry or issue fresh commission
Even if there is no objection in regard to the report from the other party, the court must go through the report so as to find whether it contains necessary details.
If there is any failure or omission in the report or some more details are to be gathered, the court can direct further enquiry by commissioner, either suo motu or at the request of either of the parties without setting aside the report (Retnamma & others v Mehaboob & another: 2013 (2) KLT 648 ).
The word further means additional or going beyond what exists; and when Rules 10 and 12 refer to further enquiry, what is evidently intended is to collect and bring on record something in addition to what has already been brought in earlier. The intention is not to wipe the slate clean and start afresh ( Dr. P. Subramoniam v K.S.E. Board And Ors : AIR 1988 Ker 169).
However, a second commission can be issued only when the earlier report is found to be incorrect and set aside.
Only the facts which the commissioner can state on the basis of his direct knowledge will be treated as evidence under Order 26 Rule 10 (2) of CPC.
Party seeking commission has to bear the expenses
The court may order the amount for the expenses of the commission to be paid into court by the party at whose instance it is issued. Additional remuneration can be ordered by the court in genuine occasions.
Even if the report is not accepted the commissioner is entitled to get the remuneration if he has done the work.
Commissioner can examine parties & witnesses
The Commissioner can examine the parties and any witness or any other person whom the commissioner thinks proper, call for and examine documents and other things relevant to the inquiry and enter upon or into any land or building.
Where any question put to a witness is objected to by a party or his pleader in proceedings before a Commissioner, the Commissioner shall take down the question, the answer, the objections, and the name of the party or the pleader so objecting. No answer taken down in this manner shall be read as evidence in the suit except by the order of the court
However, the Commissioner shall not take down the answer to a question which is objected to on the ground of privilege, but may continue with the examination of the witness, leaving the party to get the question of privilege decided by the court.
If the court decides that there is no question of privilege, the witness may be recalled by the Commissioner and examined by him. The court can however examine the witness with regard to the question which was objected to on the ground of privilege. .
Commissioner has the power of a court in examination
The rules applicable under Civil Procedure Code in examination of witnesses in the court is applicable to witnesses in examination by the commissioner. Commissioner has all the powers of a judge other than the power to impose penalties. the court however can impose punishment on request by the Commissioner.
Where a commission is issued, the court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders. Where all or any of the parties do not so appear, the Commissioner may proceed to collect evidence in their absence.
Court needs to fix a date for returning the commission
The court issuing a commission shall fix a date for returning the commission after its execution. The court can extend if it is so satisfied.
Conclusion
If a commissioner is appointed, despite the fact at whose instance he was appointed, he will become the representative of the court which appoints him. He will be performing judicial functions like a court.
Further reading
- The Code of Civil Procedure, 1973
- Civil Procedure with Limitation act, 1973 by C K Takwani
