Commissions

Commissions to examine witnesses

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:

1

[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 infirmity of any person, without

calling the medical practitioner as 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.

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.

(1) Any Court may in any suit issue a

commission 2[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) 3[any person in the service of the Government] who cannot in the opinion of the Court, attend

without detriment to the public service:

1

[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.]

1. Ins. by Act 104 of 1976, s. 75 (w.e.f. 1-2-1977).

2. Subs. by s. 75, ibid., for “for the examination of” (w.e.f. 1-2-1977).

3. Subs. by the A.O 1937, for “any civil or military officer of the Government”.

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(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 under this rule shall direct whether the commission shall be

returned to itself or to any subordinate Court.

1

[4A. Commission for examination of any person resident within the local limits of the

jurisdiction of the Court.—Notwithstanding anything contained in these rules, any court may, in the

interest of justice or for the expeditious disposal of the case or for any other reason, issue commission in

any suit for the examination, on interrogatories or otherwise, of any person resident within the local limits

of its jurisdiction, and the evidence so recorded shall be read in evidence.]

application is made for the issue of a commission for the examination of a person residing at any place

not within 2[India] is satisfied that the evidence of such person is necessary, the Court may issue such

commission or a letter of request.

the examination of any person shall examine him or cause him to be examined pursuant thereto.

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 3[(subject to the provisions of rule 8)] from part of the record of the suit.

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 infirmity to attend to be personally examined, or exempted from personal

appearance in Court, or is a 4[person in the service of the Government] who cannot, in the opinion of

the Court, attend without detriment to the public service, or

(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

investigation to be 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, 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.

(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 depositions 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

1. Ins. by Act 46 of 1999, s. 29 (w.e.f. 1-7-2002).

2. Subs. by Act 2 of 1951, s. 3, for “the States”.

3. Subs. by Act 104 of 1976, s. 75, for certain words (w.e.f. 1-2-1977).

4. Subs. by the A.O. 1937, for “civil or military officer of the Government”.

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the parties to the suit may examine the Commissioner personally in open Court touching 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.

(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.

1

[Commissions for scientific investigation, performance of ministerial act and sale of movable

property

(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 this 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.

(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.

(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.

(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

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.

(1) The Court shall furnish the

Commissioner with such part of the proceedings and such instructions as appear necessary, and the

instructions shall distinctly 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

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.

(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

1. Ins. by Act 104 of 1976, s. 75 (w.e.f. 1-2-1977).

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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 Commissioners (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 the 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

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.

otherwise directed by the order of appointment,—

(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.

1

(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 as evidence in the suit except by the order

of the Court.]

(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

issued by a Court situate within or by a Court situate beyond the limits of 2[India], and for the purposes of

this rule the Commissioner shall be deemed to be a Civil Court:

1

[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 or

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.

1. Ins. by Act 104 of 1976, s. 75 (w.e.f. 1-2-1977).

2. Subs. by Act 2 of 1951, s. 3, for “the States”.

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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.

1

so far as may be, to proceedings in execution of a decree or order.

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.]

2

[Commissions issued of the instance of foreign Tribunals

(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 rule 20, issue a commission for the examination of such witness.

(2) Evidence may be given of the matters specified in clause (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.

(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.

within the local limits of whose jurisdiction the witness resides, or 3*** the witness resides within the

local limits of 4[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, land transmission of evidence to foreign

Court.—The provisions of rules 6, 15, 5[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 High Court, which shall forward it to the Government General in Council along with

the letter of request for transmission to the foreign court.]

1. Ins. by Act 104 of 1976, s. 75 (w.e.f. 1-2-1977).

2. Ins. by Act 10 of 1932, s. 3.

3. The words “the high Court is established under the Indian high Courts Act 1861, or the Government of India Act, 1915, and”

omitted by the A.O. 1937.

4. Subs. ibid., for “its ordinary original civil jurisdiction”.

5. Subs. by Act 104 of 1976, s. 75, for “16, 17 and 18” (w.e.f 1-2-1977).

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