Commissions (Sections 75–78; Order XXVI)

Sections 75 to 78 of the Code of Civil Procedure, 1908, read with Order XXVI, set out the power of a civil court to appoint a commissioner — a person, typically an advocate or a court officer, who performs a defined judicial or evidentiary task on the court's behalf and reports back. The commission is the Code's general-purpose delegation device: it lets a court reach beyond the courtroom to record evidence from a sick or absent witness, to inspect property, to examine accounts, to make a partition, to perform a ministerial act, or to take evidence in a foreign country through a letter of request. The substantive grant lives in Sections 75 to 78; the procedure for each category lives in the twenty-two rules of Order XXVI.

For the judiciary aspirant, the Order is dense but well-structured. Six classes of commission are heavily examined: examination of witnesses (Rules 1 to 8), local investigations (Rules 9 to 10), examination of accounts (Rules 11 to 12), partition of immovable property (Rules 13 to 14), performance of ministerial acts (Rule 15), and the wider scope of Rule 4A inserted in 2002. The interface with Section 132 of the Code (purdanashin women), with Order XVI Rule 19 (witnesses not required to attend court beyond a specified distance), and with Order XXXIX Rule 7 (interim local inspection) frequently turns up in MCQs. So does the limit on what a commissioner may do — a commissioner cannot decide a material issue that the court itself must try.

Statutory anchor — Sections 75 to 78

Section 75 confers on every court — "subject to such conditions and limitations as may be prescribed" — the power to issue a commission for five purposes: (a) to examine any person; (b) to make a local investigation; (c) to examine or adjust accounts; (d) to make a partition; and (e) to hold a scientific, technical or expert investigation; and the additional purposes added by the 1976 and 1999 Amendments — to conduct the sale of property which is subject to speedy and natural decay (clause f), and to perform any ministerial act (clause g). Section 76 provides for commissions to other civil courts within India for the examination of witnesses or the performance of any of the other functions in Section 75. Section 77 authorises the court to issue a letter of request, in lieu of issuing a commission, to a court not within India for the examination of a witness residing there. Section 78 makes the provisions reciprocal — Indian courts execute commissions issued by foreign courts in the same manner as they would a commission of their own.

The substantive power is wide but not unfettered. The conditions and limitations live in the rules of Order XXVI. The discretion to issue is judicial, not arbitrary — the court must record reasons (an explicit requirement after the 1976 Amendment in the proviso to Rule 1). The classes of commission are exhaustive: a commission may be issued for one of the seven purposes in Section 75, and for no other. The framework is structurally similar to the doctrine of delegation in administrative law — the court does not transfer its judicial function to the commissioner, but assigns the commissioner the task of gathering material on which the court will then exercise its own judgment. The wider context lives in the chapter on history, object and scheme of CPC, where the procedural-not-substantive character of the Code is set out.

Commission to examine witnesses — Rules 1 to 8

Rule 1 enables any court, in any suit, to issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under the Code from attending the court, or who is from sickness or infirmity unable to attend. The proviso, added in 1976, requires the court to record reasons before issuing a commission for examination on interrogatories. The Explanation permits the court to act on a medical certificate purporting to be signed by a registered medical practitioner without calling the practitioner as a witness — though the certificate must contain enough particulars for the court to satisfy itself that the witness genuinely cannot attend.

The class of persons exempted under the Code from attending court includes, most notably, those covered by Section 132 — women who, according to the customs and manners of the country, ought not to be compelled to appear in public. The right to be examined on commission in such a case is statutory and the court has no power to refuse it, as held in the older line of cases on the purdanashin rule. Section 133 provides similar exemption for the President, Vice-President, Governors, Ministers of the Union and States, Speakers, Judges, and certain other dignitaries — the chapter on summoning and attendance of witnesses under Order XVI works through the exemption framework in detail.

Rule 2 — order for commission. The order may be made by the court of its own motion or on the application of any party or the witness to be examined, supported by affidavit or otherwise. Rule 3 — where the witness resides within the court's jurisdiction. The commission may be issued to any person whom the court thinks fit. Rule 4 — where the witness is resident beyond the court's jurisdiction, is about to leave such limits, or is in the service of the Government and cannot attend without detriment to the public service. Sub-rule (1) lists the three categories. The first proviso, inserted in 1976, makes the issue of commission mandatory for a witness who cannot be ordered to attend the court in person under Order XVI Rule 19 — that is, a witness residing more than the prescribed distance (currently 200 km in most jurisdictions) from the court. The second proviso confines the mandatory rule to commissions on interrogatories: a commission for oral examination remains discretionary even for a beyond-200-km witness.

Rule 4A — inserted by the 1999 Amendment with effect from 1 July 2002 — broadens the scope significantly. Notwithstanding anything in the rest of the Order, any court may, in the interests of justice or for the expeditious disposal of the case or for any other reason, issue a commission in any suit for the examination of any person resident within the local limits of its jurisdiction. The evidence so recorded shall be read in evidence. Rule 4A removes the prior limitation that a witness within jurisdiction could be examined on commission only if exempted from attending or sick or infirm. After 2002, the court has a much wider discretion to use a commission as a case-management device. The Supreme Court in BN Mullick v. Sita Ram Mullick AIR 1999 SC 2013 cautioned that the order directing recording of evidence on commission should be the exception, not the rule — the court must record reasons and must not mechanically grant such applications.

Rule 5 deals with the commission to examine a witness not within India. Where any court to which application is made for the issue of a commission is satisfied that the evidence of a person residing outside India is necessary, the court may issue such commission or a letter of request. Section 77 supplies the broader authority to issue a letter of request to any authority — including a consular authority — and the power is not subject to any reciprocal agreement between governments. The interface with the chapter on foreign judgments and foreign courts under Sections 13, 14 and 44A turns on the symmetric principle of judicial cooperation across borders: just as Indian courts execute commissions of foreign courts under Section 78, foreign courts may be requested to execute commissions issued by Indian courts under Section 77.

Rule 7 directs that a commission, after due execution, shall be returned to the issuing court together with the evidence recorded under it; the commission, the return, and the evidence form part of the record of the suit, subject to Rule 8. Rule 8 is the gatekeeper. Evidence taken under a commission shall not be read as evidence in the suit without the consent of the party against whom it is offered, unless the witness is beyond the jurisdiction of the court, dead, unable from sickness or infirmity to attend, exempted from personal appearance, or a Government servant who cannot attend without detriment to the public service — or unless the court in its discretion dispenses with proof of those circumstances. The rule preserves the principle that direct examination in court is the norm; commission evidence is the exception, admissible only on a defined ground.

Commissions for local investigation — Rules 9 and 10

Rule 9 empowers the court, in any suit in which a local investigation is requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, to issue a commission to such person as it thinks fit directing him to make the investigation and report. The classic uses are boundary disputes (commissioner inspects the site and prepares a sketch map), valuation of immovable property in mortgage suits, ascertainment of mesne profits in possession suits, and assessment of physical condition of premises in eviction suits.

The Supreme Court has set out the limits of Rule 9 in a steady line of decisions. The Owners and Parties Interested in M.V. "Vali Pero" v. STC of India AIR 2000 SC 2826 held that it is not the object of Rule 9 to assist a party to collect evidence which the party can gather itself. A commissioner is appointed to elucidate matters local in character that are best examined on the spot — not to substitute for the party's burden of proof. Pushpa v. Bimla AIR 2000 (Del) added that the discretion is not absolute; the court must record reasons. B Jagannath v. NC Narayanappa AIR 1982 (Kar) held that a local-inspection commissioner can ordinarily be appointed only after the parties have led their evidence — the commissioner's report supplements the record, it does not initiate it.

Rule 9 must be distinguished from Order XXXIX Rule 7, which authorises the court at the interim stage to make orders for the detention, preservation, or inspection of any property which is the subject-matter of the suit. The two routes overlap — both involve a court-appointed inspection of property — but they sit at different procedural stages. Order XXXIX Rule 7 is interlocutory; Rule 9 of Order XXVI is part of the trial itself. The Supreme Court in Adammal v. Poosars AIR 1999 SC 1832 held that ascertaining the condition of demised premises by local inspection falls within Order XXXIX Rule 7, not Order XXVI Rule 9 — the choice depends on whether the inspection is for interim relief or for the trial record. The framework dovetails with the chapter on hearing of suit and examination of witnesses under Order XVIII, which sets out the broader rules for taking evidence.

Rule 10 prescribes the commissioner's procedure. Sub-rule (1) requires the commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, to return the evidence together with his report in writing signed by him. Sub-rule (2) declares that the report and the evidence taken by the commissioner — but not the evidence without the report — shall be evidence in the suit and shall form part of the record. Either party may, with the leave of the court, examine the commissioner personally in open court on any matter touching the report. Sub-rule (3) empowers the court, where it is for any reason dissatisfied with the proceedings, to direct further inquiry. The court is not bound by the commissioner's findings — Zarif Ahmad v. Mohd. Farooq (2015) confirmed that where the evidence adduced by a party is reliable and cogent, the court can ignore the commissioner's report.

Commissions to examine accounts — Rules 11 and 12

Rule 11 enables the court, in any suit in which an examination or adjustment of accounts is necessary, to issue a commission to such person as it thinks fit directing him to make the examination or adjustment. Rule 12 requires the court to furnish the commissioner with such part of the proceedings and such instructions as appear necessary; the instructions shall distinctly specify whether the commissioner is merely to transmit the proceedings of his inquiry or also to report his own opinion on the point referred. The class of cases for which an accounts commission is typical includes partnership dissolution suits (Order XX Rule 15), administration suits, mortgage suits where mesne profits or interest must be calculated, and suits for an account against an agent.

The function of an accounts commissioner is technical rather than judicial — typically a chartered accountant or other person with the relevant expertise. The commissioner's report is treated as evidence under Rule 10(2), and the court retains the power to accept, vary or reject the report on the basis of the evidence on the record. The commissioner cannot decide a contested issue of legal interpretation — for example, whether a particular item is or is not a partnership asset; that is for the court to decide on the materials in the report.

Commissions to make partition — Rules 13 and 14

Rule 13 enables the court, where a preliminary decree for partition has been passed, to issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree. Rule 14 requires the commissioner to inquire and after appropriate hearing prepare and submit to the court a report or reports allotting the shares. The court considers the report and pronounces such judgment and passes such decree as it thinks fit. The discipline meshes with Section 54 (partition of estates assessed to the payment of revenue, by the Collector) and the broader framework treated in the chapter on judgment and decree under Section 33 and Order XX: the partition commissioner produces the materials on which the final decree of partition is drawn up.

Commissions to perform ministerial acts — Rule 15

Rule 15 — read with Section 75 clause (g) inserted in 1999 — empowers the court to issue a commission to perform any ministerial act. A ministerial act is one that requires no exercise of judicial discretion — for example, taking possession of attached property, putting a decree-holder in symbolic possession, or affixing notices. The court delegates the act to a commissioner because it is mechanical and requires only execution, not adjudication. The interface with the execution machinery in Order XXI on the procedure of execution is constant — many ministerial acts in execution are routinely performed by court commissioners rather than by court officers.

Commissions to sell perishable property — Rule 18A and adjacent rules

Rule 18A — read with Section 75 clause (f) inserted in 1976 — enables the court to issue a commission for the sale of any movable property which is subject to speedy and natural decay. The provision is most often invoked in arrest-and-attachment-before-judgment cases under Order XXXVIII, where perishable goods have been attached and the court must dispose of them quickly to preserve their value. The commissioner conducts the sale — typically by public auction — and reports the proceeds, which are then held by the court pending the outcome of the suit.

Commissioner's powers and limits — Rules 16 to 18

Rules 16 to 18 set out the commissioner's procedural powers. Rule 16 empowers the commissioner to examine the parties and witnesses and any other persons whom the commissioner thinks fit to call upon, to give evidence — and to require their attendance through the issuing court. Rule 17 governs the manner of taking evidence — substantially in accordance with the provisions of the Code applicable to courts. Rule 18 directs that the parties shall appear before the commissioner in person or by their agents or pleader. The commissioner is, for the limited purpose of the commission, in the position of the court — he can administer oaths, record depositions, and require the production of documents. But the commissioner has no power to disallow a question on the ground of irrelevance — that is for the court to decide when the report comes back, as Ram Kishan v. Feroz Chand AIR 1960 (Punj) confirmed.

The substantive limit on the commissioner's role is settled. Ram Krishna v. Ratan Chand (1931) (Nag) held that the rule does not authorise a court to delegate to a commissioner the trial of any material issue which the court itself is bound to try. The principle is foundational: a commission is a tool for gathering material, not a substitute for the judicial decision that the court must itself make. Jute Corporation of India Ltd v. Sudera Enterprises AIR 2000 (Cal) applied the principle to fixation of rent under a rent-control statute — that is a judicial power that cannot be delegated to a valuer through a commission. Rahul Priyadarshi v. Maharashtra State Board of Secondary Education AIR 1996 SC held that the verification or evaluation of an answer book is not within Rule 9.

Commissions to other courts — Rules 19 to 22

Rules 19 to 22 deal with the converse situation — where a court within India receives a commission from another Indian court. Rule 19 directs the receiving court to execute the commission, which it may do in person or through any subordinate court. Rule 20 directs that the parties to the suit may appear before the receiving court. Rule 21 sets out the courts to which a commission may be issued. Rule 22 governs the return of the commission. The framework operates Section 76 — the substantive grant of power to issue commissions to other courts. The system enables a court trying a suit to obtain evidence from anywhere in India through the cooperative procedure of inter-court commissions.

Letters of request and foreign-court commissions — Sections 77 and 78

Section 77 empowers a court, in lieu of issuing a commission, to issue a letter of request to examine a witness residing at any place not within India. The letter of request is the standard instrument of judicial cooperation across borders — it is addressed to the appropriate judicial or consular authority in the foreign country, requesting that authority to take the witness's evidence and return it to the requesting court. The Supreme Court in Filmistan Pvt Ltd v. Bhagwandas Sant Prakash AIR 1971 SC 61 held that the power under Section 77 is not subject to any reciprocal agreement between governments — the Indian court may issue the letter even where no formal mutual-legal-assistance treaty exists. Section 78 supplies the reciprocal arrangement: Indian courts execute commissions issued by foreign courts in the same manner as they would commissions of their own. The framework operates as a self-contained mini-system of international judicial cooperation, parallel to the foreign-judgments framework of Section 13 and Section 44A treated in the chapter on foreign judgments and foreign courts.

MCQ angle and recurring distinctions

Three distinctions recur. First, the difference between Rule 1 (commission to examine a witness within jurisdiction who is exempted from attending or sick or infirm) and Rule 4 (commission to examine a witness beyond jurisdiction, about to leave, or in Government service who cannot attend without detriment to the public service). The two rules cover non-overlapping categories. Second, the difference between Rule 4 (discretionary in general; mandatory only where the witness is beyond the Order XVI Rule 19 distance limit, and even then only for examination on interrogatories) and Rule 4A (inserted in 2002, much wider discretion to issue a commission for any person within jurisdiction in the interests of justice). Third, the difference between Rule 9 of Order XXVI (local investigation as part of the trial, at the evidence stage) and Order XXXIX Rule 7 (interim local inspection for preservation of property, at the interlocutory stage).

Two more points are exam-favourites. Section 132 read with Order XXVI Rule 1 confers a statutory right on a purdanashin woman to be examined on commission — the court has no power to refuse, though a change in the lady's mode of life may be taken into account. And the commissioner's report under Rule 10(2) is evidence in the suit and forms part of the record — but it does not bind the court, which retains the power to disagree with the findings. Mastery of Order XXVI sets up the broader framework of evidence-gathering treated in the chapter on affidavits under Order XIX, the structural alternatives in discovery and inspection under Order XI, and the appellate-court powers under Order XLI Rule 27 to admit additional evidence including commission reports.

Frequently asked questions

What is the difference between a commission under Rule 4 and a commission under Rule 4A of Order XXVI?

Rule 4 is the older provision. It applies to a witness who is resident beyond the local limits of the court's jurisdiction, who is about to leave such limits, or who is a Government servant whose attendance would be detrimental to the public service. The first proviso to Rule 4(1) makes the issue of commission mandatory for a witness who cannot be ordered to attend in person under Order XVI Rule 19 (the 200-km distance limit) — but only for examination on interrogatories. Rule 4A — inserted by the 1999 Amendment with effect from 1 July 2002 — is much wider. Notwithstanding anything in the rest of the Order, any court may issue a commission to examine any person resident within its local limits in the interests of justice, for expeditious disposal, or for any other reason.

Does the court have to grant a commission to examine a purdanashin woman?

Yes. Section 132 of the Code exempts women who, according to the customs and manners of the country, ought not to be compelled to appear in public from being summoned to attend court. Read with Rule 1 of Order XXVI, this confers a statutory right to be examined on commission. The court has no power to refuse — Rahimunnessa v. Shaik Halim AIR 1928 (Cal) is the foundational decision. Even allegations of immorality, or evidence that the woman has previously appeared in public, do not displace the right. A change in the lady's mode of life may be taken into account in the court's discretion to fix the manner of the examination, but does not extinguish the basic right.

Can a commissioner decide a material issue in the suit?

No. Ram Krishna v. Ratan Chand (1931) (Nag) held that Order XXVI does not authorise a court to delegate to a commissioner the trial of any material issue which the court itself is bound to try. The commissioner's role is to gather material — to examine witnesses, to inspect property, to examine accounts — on which the court will then exercise its own judgment. Jute Corporation of India Ltd v. Sudera Enterprises AIR 2000 (Cal) applied the principle to fixation of rent under a rent-control statute; Rahul Priyadarshi v. Maharashtra State Board AIR 1996 SC applied it to evaluation of an answer book. The commissioner cannot disallow a question as irrelevant either — Ram Kishan v. Feroz Chand AIR 1960 (Punj) — that is for the court to decide when the report comes back.

Can evidence taken under a commission be read in the suit without the consent of the opposite party?

Only in the cases listed in Rule 8. Without consent, evidence taken under a commission is not admissible unless the person who gave the evidence is beyond the jurisdiction of the court, dead, unable from sickness or infirmity to attend, exempted from personal appearance, or a Government servant who cannot attend without detriment to the public service. The court may also in its discretion dispense with proof of those circumstances. Consent is not to be presumed from the fact that there was no opposition to the issue of the commission — Amita Devi v. Sripat Rai AIR 1962 (All) settled the rule. Where the witness becomes available to attend court before the deposition is read, the commission evidence cannot ordinarily be used unless the court exercises the dispensing discretion.

What is the difference between a local-investigation commission under Rule 9 and a local inspection under Order XXXIX Rule 7?

Rule 9 is part of the trial — the commissioner inspects property to elucidate a matter in dispute, ascertain market value, or assess mesne profits or damages, and reports back as evidence in the suit. Order XXXIX Rule 7 is interlocutory — it authorises the court at the interim stage to make orders for the detention, preservation, or inspection of property which is the subject-matter of the suit. Adammal v. Poosars AIR 1999 SC 1832 held that ascertaining the condition of demised premises by local inspection falls within Order XXXIX Rule 7, not Order XXVI Rule 9. The choice depends on the procedural stage and the purpose — interim preservation or trial-stage evidence.

Can the court issue a letter of request to a foreign court even where no reciprocal arrangement exists?

Yes. Section 77 of the Code empowers the court to issue a letter of request to any judicial or consular authority outside India for the examination of a witness residing there. The Supreme Court in Filmistan Pvt Ltd v. Bhagwandas Sant Prakash AIR 1971 SC 61 held that the power is not subject to any reciprocal agreement between governments — the Indian court may issue the letter even where no formal mutual-legal-assistance treaty exists. Whether the foreign authority will execute the letter is a matter of comity and the law of the foreign forum, not of Indian law. The reciprocal arrangement under Section 78 — by which Indian courts execute foreign commissions — is independent of the power under Section 77.