Report No. 54

Chapter 26

Commissions

Introductory

26.1. Order 26 deals with commissions issued by Courts. Commissions are of four kinds-to examine witnesses, to make local investigations, to examine accounts and to make partition of immoveable property. Most of the provisions for commissions to examine absent witnesses were adapted by the framers of the first Code (of 1859) from an Act of 18411. The rules as to commissions for local investigations are ultimately derived from three old regulations.

1. Act 7 of 1841.

Order 26, rule 1

26.2. Order 26, rule 1 provides as follows:-

"Any Court may in any suit 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 this Code from attending the Court or who is from sickness or infirmity unable to attend it."

Order 26, rule 1, and medical certificate

26.3. A suggestion was made to us, that for proving the sickness or infirmity of the witness, a certificate signed by a qualified medical practitioner should be accepted. Even now, we were told, it is being done in some courts: but the practice on the subject is not uniform, and in some places affidavits1 about illness are usually required. We have considered the matter, and see no objection to a provision permitting the use of such certificate in evidence, at the discretion of the court, for the purposes of Order 26, rule 1.

1. Cf. Order 19, rule 1.

26.4. The examination, under the rule is "on interrogatories or otherwise". It is understood that an order for examination on interrogatories is sometimes issued when the examination should really be comprehensive.

26.5. It is, in our view, against the intendment of the rule to issue an order for examination on interrogatories except in special cases, and we think it desirable to so provide by amending the rule.

Recommendation

26.6. Accordingly, we recommend that Order 26, rule 1 should be revised as follows:-

"(1). Any Court may in any suit, 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 this Code from attending the Court or who is from sickness or infirmity unable to attend it:

Provided that commission for examination on interrogatories shall not be issued unless the court, for reasons to be recorded, thinks it necessary to do so.

Explanation.-The Court may, for the purposes of this rule, accept a certificate purporting to be signed by a registered medical practitioner1 as evidence of the sickness or infirmity of any person, without calling the medical practitioner as a witness."

1. If necessary, the expression "registered medical practitioner" may be defined.

Order 26, rule 4(1)

26.7. Under Order 26, rule 4(1), any Court may, in any suit, issue a commission for the examination of-

(a) any person resident beyond the local limits of its jurisdiction;

(b) any person who is about to leave such limits before the date on which he is required to be examined in Court; and

(c) any person in the service of the Government, who cannot in the opinion of the Court, attend without detriment to the public service.

26.8. The rule does not provide for issuing a commission for examination on interrogatories. We think that such a provision would be useful1, although examination on interrogatories should be resorted to only in special cases2.

1. Cf. Order 26, rule 1.

2. Cf. amendment proposed to Order 26, rule 1.

26.9. There is another point arising out of Order 16, rule 19.

Order 16, rule 19, provides that a witness shall not be compelled to attend a Court in person unless he resides-

(a) within the jurisdiction of the Court, or

(b) outside the jurisdiction but within the specified distance (roughly, less than fifty miles, or, if there is an established public conveyance for five-sixth of the distance, then less than two hundred miles).

26.10. Thus, a witness living outside the jurisdiction and beyond the specified distance cannot be compelled to attend a court in person. For the examination of such person, the Code provides for the issue of a commission under Order 26, rule 4. But the word used in Order 26, rule 4, is "may". Now, it is obvious that where the witness is beyond the jurisdiction and beyond the specified distance and yet is one whose evidence is essential, the only mode of examination is by commission. It would, therefore, be better if1 the issue of ha commission under Order 26, rule 4 is made obligatory in such cases, if the evidence of the witness is essential in the interest of justice. Such an amendment will give a more correct picture of what the law contemplates.

1. See discussion as to Order 16, rule 19.

Recommendation

26.11. Accordingly, we recommend that Order 26, rule 4(1) be revised as follows:-

"4.(1) Any Court may, in any suit, issue a commission for the examination on interrogatories or otherwise of-

(a) any person resident beyond the local limits of its jurisdiction;

(b) any person who is about to leave such limits before the date on which he is required to be examined in Court; and

(c) any person in the service of the Government, who cannot, in the opinion of the Court, attend without detriment to the public service:

Provided that where, under Order 16, rule 19, a person cannot be compelled to attend a Court in person, a commission shall be issued for his examination if his evidence is considered necessary in the interests of justice:

Provided further that a commission for examination on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary to do so."

Order 26, rule 10A-10B

26.11A. As already recommended1, new rules 10A to 10C should be added in Order 26 to provide for scientific investigation etc.

1. See discussion, relating to section 75.s

Order 26, rule 17

26.12. The Kerala Amendment to Order 26, rule 17 provides that where the Commissioner is not a Judge of the civil court, he shall not be competent to impose a penalty, but such penalty may be imposed on the application of the Commissioner by the court which issued the Commission. In the Report1 of the earlier Commission on the Code, this was noted. It was, however, considered unnecessary to adopt this minor amendment.

1. 27th Report, note on Order 26, rule 17.

23.13. But we think that the amendment could be usefully adopted, though there may be not many occasions in practice where it would make much difference.

Recommendation

26.14. We, therefore, recommend that the following proviso should be inserted below Order 26, rule 17-

"Provided that when the Commissioner is not a Judge of Civil Court, he shall not be competent to impose penalties; but such penalties may be imposed on the application of such Commissioner by the Court which issued the commission."

Order 26 and execution proceedings

26.15. The Madras High Court1 has held that the provisions at Order 26, rule 4 are not applicable to execution proceedings, and have not been made so by reason of the provisions of section 141.

1. Venkayya v. Ratlayyn, AIR 1939 Mad 578.