Appoint Advocate Commissioner
R.N.SUNDAR
(Querist) 15 April 2015
This query is : Resolved
Dear Experts
Need your Valuable Guidelines for below mentioned point
Is there any provision to appoint a second advocate commissioner in a civil case.
R.K Nanda
(Expert) 15 April 2015
file application u/s 151 of cpc for appointment of 2nd adv.com.
M/s. Y-not legal services
(Expert) 16 April 2015
even if you have objection with an advocate commissioner or his report mean you have to file file objection if any..
the objection holder can file a fresh application for appoint an another advocate commissioner by invoking order 26 of c.p.c
R.N.SUNDAR
(Querist) 16 April 2015
Dear Sir
A decree passed by the lower court as per the report of advocate commissioner. Same matter taken to upper court as an appeal in that time shall I ask Advocate Commissioner for correct report
M/s. Y-not legal services
(Expert) 16 April 2015
ORDER XXVI-COMMISSIONS
Commissions to examine witnesses
1 . Cases in which Court may issue commission to examine witness— Any Court may in any suit issue a
commission for the examination on interrogatories or otherwise of any person resident within the local limits
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of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or
infirmity unable to attend it:
[308] [Provided that a commission for examination on interrogatories shall not be issued unless the Court, for
reasons to be recorded, thinks it necessary so to do.
Explanation—The Court may, for the purpose of this rule, accept a certificate purporting to be signed by a
registered medical practitioner as evidence of the sickness or infermity of any person, without calling the
medical practitioner as a witness.]
2 . Order for commission— An order for the issue of a commission for the examination of a witness may be
made by the Court either of its own motion or on the application, supported by affidavit or otherwise, of any
party to the suit or of the witness to be examined.
3 . Where witness resides within Court's jurisdiction— A commission for the examination of a person who
resides within the local limits of the jurisdiction of the Court issuing the same may be issued to any person
whom the Court thinks fit to execute it.
4 . Persons for whose examination commission may issue— (1) Any Court may in any suit issue a
commission [309][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:
[310] [Provided that where, under rule 19 of Order XVI, a person cannot be ordered 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 of such person on interrogatories shall not be issued
unless the Court, for reasons to be recorded, thinks it necessary so to do.]
(2) Such commission may be issued to any Court, not being a High Court, within the local limits of whose
jurisdiction such person resides, or to any pleader or other person whom the Court issuing the commission
may appoint.
(3) The Court on issuing any commission may this rule shall direct whether the commission shall be returned
to itself or to any subordinate Court.
5 . Commission or request to examine witness not within India— Where any Court to which application is
made for the issue of a commission for the examination of a person residing at any place not within India is
satisfied that the evidence of such person is necessary, the Court may issue such commission or a letter of
request.
6 . Court to examine witness pursuant to Commission— Every Court receiving a commission for the
examination of any person shall examine him or cause him to be examined pursuant thereto.
7 . Return of commission with depositions of witnesses— Where a commission has been duly executed, it
shall be returned, together with the evidence taken under it, to the Court from which it was issued, unless the
order for issuing the commission has otherwise directed, in which case the commission shall be returned in
terms of such order; and the commission and the returned thereto and the evidence taken under it shall
[311][subject to the provisions of rule 8] from part of the record of the suit.
8 . When depositions may be read in evidence— Evidence taken under a commission shall not be read as
evidence in the suit without the consent of the party against whom the same is offered, unless—
(a) the person who gave the evidence is beyond the jurisdiction of the Court, or dead or unable from
sickness or infermity to attend to be personally examined, or exempted from personal appearance in Court or
is a person in the service of the Government who cannot, in the opinion of the Court, attend without
detriment to the public service, or
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(b) the Court in its discretion dispenses with the proof of any of the circumstances mentioned in clause (a)
and authorizes the evidence of any person being read as evidence in the suit, notwithstanding proof that the
cause for taking such evidence by commission has ceased at the time of reading the same.
Commissions for local investigations
9 . Commissions to make local investigations— In any suit in which the Court deems a local investigation to
be requisite or proper for the purpose of elecidating 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, the Court may issue a
commission to such person as it thinks fit directing him to make such investigation and to report thereon to
the Court:
Provided that, where the State Government has made rules as to the persons to whom such commission
shall be issued, the Court shall be bound by such rules.
10 . Procedure of Commissioner— (1) The Commissioner, after such local inspection as he deems
necessary 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.
(2) Report and deposition to be evidence in suit. Commissioner may be examined in person—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; but the Court or, with the permission of the Court, any of the
parties to suit may examine the Commissioner personally in open Court touching any part 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.
(3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct
such further inquiry to be made as it shall think fit.
[312] [Commissions for scientific investigation, performance of ministerial act and sale of movable property
10A . Commission for scientific investigation— (1) Where any question arising in a suit involves any scientific
investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the
Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to
such person as it thinks fit, directing him to inquire into such question and report thereon to the Court.
(2) The provisions of rule 10 of the Order shall, as far as may be, apply in relation to a Commissioner
appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.
10B . Commission for performance of a ministerial act— (1) Where any question arising in a suit involves the
performance of any ministerial act which cannot, in the opinion of the Court, be conveniently performed
before the Court, the Court may, if, for reasons to be recorded, it is of opinion that it is necessary or
expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him
to perform that ministerial act and report thereon to the Court.
10C . Commission for the sale of movable property— (1) Where in any suit, it becomes necessary to sell any
movable property which is in the custody of the Court pending the determination of the suit and which cannot
be conveniently preserved, the Court may, if, for reasons to be recorded, it is of opinion that it is necessary
or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing
him to conduct such sale and report thereon to the Court.
(2) The provisions of rule 10 of this Order shall apply in relation to a Commissioner appointed under this rule
as they apply in relation to a Commissioner appointed under rule 9.
(3) Every such sale shall be held, as far as may be, in accordance with the procedure prescribed for the sale
of movable property in execution of a decree.]
Commissions to examine accounts
11 . Commission to examine or adjust accounts— In any suit in which an examination or adjustment of the
accounts is necessary, the Court may issue a commission to such person as it thinks fit directing him to
make such examination or adjustment.
12 . Court to give Commissioner necessary instructions— (1) The Court shall furnish the Commissioner with
such part of the proceedings and such instructions as appear necessary, and the instructions shall distinctly
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specify whether the Commissioner is merely to transmit the proceedings which he may hold on the inquiry, or
also to report his own opinion on the point referred for his examination.
(2) Proceedings and report to be evidence. Court may direct further inquiry—The proceedings and report (if
any) of the Commissioner shall be evidence in the suit, but where the Court has reason to be dissatisfied
with them, it may direct such further inquiry as it shall think fit.
Commissions to make partitions
13 . Commission to make partition of immovable property— Where a preliminary decree for partition has
been passed, the Court may, in any case not provided for by section 54, 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.
14 . Procedure of Commissioner— (1) The Commissioner shall, after such inquiry as may be necessary,
divide the property into as many shares as may be directly by the order under which the commission was
issued, and shall allot such shares to the parties, and may, if authorised thereto by the said order, award
sums to be paid for the purpose of equalizing the value of the shares.
(2) The commissioner shall then prepare and sign a report or the Commission (where the commission was
issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing
the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds.
Such report or reports shall be annexed to the commission and transmitted to Court; and the Court, after
hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside
the same.
(3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the
same as confirmed or varied; but where the Court sets aside the report or reports it shall either issue a new
commission or make such other order as it shall think fit.
General provisions
15 . Expenses of commission to be paid into Court— Before issuing any commission under this Order, the
Court may order such sum (if any ) as it thinks reasonable for the expenses of the commission to be, within a
time to be fixed, paid into Court by the party at whose instance or for whose benefit the commission is
issued.
16 . Powers of Commissioners— Any Commissioner appointed under this Order may, unless otherwise
directed by the order of appointed.
(a) examine the parties themselves and any witness whom they or any of them may produce, and any other
person whom the Commissioner thinks proper to call upon to give evidence in the matter referred to him;
(b) call for and examine documents and other things relevant to the subject of inquiry;
(c) at any reasonable time enter upon or into any land or building mentioned in the order.
[313][16A . Questions objected to before the Commissioner— (1) Where any question put to a witness is
objected to by a party or his pleader in proceedings before a Commissioner appointed under this Order, the
Commissioner shall take down the question, the answer, the objections and the name of the party or, as the
case may be, the pleader so objecting:
Provided that 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, and, where the Court decides that there is no question of
privilege, the witness may be recalled by the Commissioner and examined by him or the witness may be
examined by the Court with regard to the question which was objected to on the ground of privilege.
(2) No answer taken down under sub-rule (1) shall be read was evidence in the suit except by the order of
the Court.]
17 . Attendance and examination of witnesses before Commissioner— (1) The provisions of this Code
relating to the summoning, attendance and examination of witnesses, and to the remuneration of, and
penalties to be imposed upon, witnesses, shall apply to persons required to give evidence or to produce
documents under this Order whether the commission in execution of which they are so required has been
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issued by a Court situate within or by a Court situate beyond the limits of India, and for the purposes of this
rule the Commissioner shall be deemed to be a Civil Court:
[314] [Provided that when the Commissioner is not a Judge of a 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
by which the commission was issued.]
(2) A Commissioner may apply to any Court (not being a High Court) within the local limits on whose
jurisdiction a witness resides for the issue of any process which he may find it necessary to issue to or
against such witness, and such Court may, in its discretion, issue such process as it considers reasonable
and proper.
18 . Parties to appear before Commissioner— (1) Where a commission is issued under this Order, the Court
shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or
pleaders.
(2) Where all or any of the parties do not so appear, the Commissioner may proceed in their absence.
[315][18A . Application of Order to execution proceedings— The provisions of this Order shall apply so far as
may be, to proceedings in execution of a decree or order.
18B . Court to fix a time for return of commission— The Court issuing a commission shall fix a date on or
before which the commission shall be returned to it after execution, and the date so fixed shall not be
extended except where the Court, for reasons to be recorded, is satisfied that there is sufficient cause for
extending the date.]
Commissions issued at the instance of foreign Tribunals
19 . Cases in which High Court may issue commission to examine witness— (1) If a High Court is satisfied—
(a) that a foreign court situated in a foreign country wishes to obtain the evidence of a witness in any
proceeding before it,
(b) that the proceeding is of a civil nature, and
(c) that the witness is residing within the limits of the High Court's appellate jurisdiction,
it may, subject to the provisions of the rule 20, issue a commission for the examination of such witness.
(2) Evidence may be given of the matters specified in clauses (a), (b) and (c) of sub-rule (1)—
(a) by a certificate signed by the consular officer of the foreign country of the highest rank in India and
transmitted to the High Court through the Central Government, or
(b) by a letter of request issued by the foreign Court and transmitted to the High Court through the Central
Government, or
(c) by a letter of request issued by the foreign Court and produced before the High Court by a party to the
proceeding.
20 . Application for issue of commission— The High Court may issue a commission under rule 19—
(a) upon application by a party to the proceeding before the foreign Court, or
(b) upon an application by a law officer of the State Government acting under instructions from the State
Government.
21 . To whom commission may be issued— A commission under rule 19 may be issued to any Court within
the local limits of whose jurisdiction the witness resides, or the witness resides within the local limits of the
ordinary original civil jurisdiction of the High Court to any person whom the Court thinks fit to execute the
commission.
22 . Issue, execution and return of commissions, and transmission of evidence to foreign Court— The
provisions of rules 6, 15 [316][Sub-rule (1) of rule 16A, 17, 18 and 18B] of this Order in so far as they are
applicable shall apply to the issue, execution and return of such commissions, and when any such
commission has been duly executed it shall be returned, together with the evidence taken under it, to the
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High Court, which shall forward it to the Central Government, along with the letter of request for transmission
to the foreign court.
R.K Nanda
(Expert) 16 April 2015
file application u/s 151 of cpc for appointment of fresh adv.com.in appeal.
T. Kalaiselvan, Advocate
(Expert) 23 April 2015
Yes under the explained circumstances justifying the reason, another commission may be appointed by the court.