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AppoIntment oI CommIssIoner

Code oI CIvII Procedure

TabIe OI Cases
1. A.MarcaIIIne Fernando v. St. FrancIs XavIer Church, Kottah, AR 1961 Mad 31.
2. AbduI ]aIII v. State oI Uttar Pradesh, AR 1984 SC 882.
3. Achhru MaI v. MauIa 8akhsh, AR 1925 Lah 29.
4. Chandu v. KIrpa Ram, AR 1952 HP 65.
5. Chettyar v. Maung 8a ChIt, AR 1930 Rang 315.
6. Damodaran v. KarImba PIantatIons Company LImIted, AR 1959 Ker 358.
7. Debendranath NandI v. Natha 8huIyan, AR 1973 OrIssa 240.
8. DIna Nath Law v. Metharam NavaIraI and Company, AR 1921 CaI 852.
9. FIImIstan LImIted 8ombay v. 8hagwandas, AR 1971 SC 61.
10.CopaI Das v. ]agannath, AR 1938 AII 370.
11.CourharI Das v. ]aharIaI SeaI, AR 1957 CaI 90.
12.LR (1970)2 Punj 640.
13.n Re: Lachman Das, AR 1952 AII 563.
14.n Re: P.Moosa Kutty, Re: AR 1953 Mad 717.
15.n SubramanIan ChettIar, AR 1955 Mad 210.
16.]amII Ahmed Khan v. Must. KhaIrUINIsa, AR 1970 DeIhI 205.
17.K.R Deosant v. W.K Deosant, AR 1971 8om 26.
18.KIshore Kumar v. Rakeshkumar ]ayprakash AgrawaI, AR 1992 Cuj 95.
19.KrIshna Sharan ShukIa v. 8aII 8hadar ShukIa, AR 1952 AII 140.
20.LachhmI DevI v. ChandrakaIa SaraogI, AR 1973 Pat 155.
21.M.C ManIckam v. V.S.M SIvaIIngam ChettIar, AR 1977 Mad 324.
22.M.N.D Varu v. 8oard oI Trustees, TIrupathI, AR 1959 Andh Pra 64.
23.Mandera Mukherjee v. SachIndra Chandra Mukherjee, AR 1962 Pat 211.
24.MunnaIaI v. Rajkumar, AR 1962 SC 1493.
25.NaraIn Dass v. Karam Chand, AR 1968 DeIhI 226.
26.Padam Sen v. State oI Uttar Pradesh, AR 1961 SC 218.
27.Panachand ChhotaIaI v. MansharIaI NandIaI, AR 1917 8om 155.
28.Pramatha Nath Sen Cupta v. SheIkh AbduI AzIz Meah, AR 1923 CaI 436.
29.RaghubIr DayaI Prasad v. RamekbaI Sah, AR 1986 Pat 83.
30.RahurIa RamkaII Kuer v. Chhatthoo SIngh, AR 1961 Pat 210.
31.Ram 8ahadur v. SrI Thakur SIrI SItaramjI Maharaj, AR 1934 Pat 32.
32.Ram KrIshna DaImIa v. Feroz Chand, AR 1960 Punj 430.
33.Ram Sewak KoerI MosadI KoerI v. HarIhar Prasad SIngh, AR 1927 Rang 175.
34.RamaIInga yar v. Sankaranarayana Ayyar, AR 1929 Mad 192.
35.RamnaraIn Sah v. 8asantI LaI Sah, AR 1933 Pat 681.
36.SInha v. LIIe nsurance CorporatIon oI ndIa, AR 1964 Pat 142.
37.SItaram v. Ram Prasad Ram, AR 1915 CaI 280.
38.SIvasankara PIIIaI v. PonnuswamI Nadar, AR 1973 Mad 450.
39.Surendranath Sen Cupta v. Secretary oI State, AR 1934 Pat 316.
40.SyamaIa PIctures LImIted v. M.V SIva Sarma, AR 1960 Andh Pra 387.
41.T.N CovIndarajuIu v. LakshmI AmmaI, AR 1961 Mad 158.
42.Veeradram v. Natraja, (1905)28 Mad. 28.

TabIe OI Statutes
1. Code oI CIvII Procedure, 1908.
2. FederaI RuIes oI CIvII Procedure.
3. The Code oI CIvII Procedure (Amendment) Act, 1976.

nterIm or InterIocutory orders are those orders passed by a Court durIng the pendency oI a
suIt or proceedIng whIch do not determIne IInaIIy the substantIve rIghts and IIabIIItIes oI the
partIes In respect oI the subject matter oI the suIt[1]. AIter the suIt Is InstItuted by the
pIaIntIII and beIore It Is IInaIIy dIsposed oI, the Court may make InterIocutory orders as may
appear to the Court to be just and convenIent[2]. nterIm or InterIocutory orders are
generaIIy made In order to assIst the partIes or Ior the purpose oI protectIon oI the subject
matter oI the suIt. CommIssIons IaII wIthIn the ambIt oI InterIocutory orders. Courts are
constItuted Ior the purpose oI doIng justIce and must be deemed to possess aII such powers
as may be necessary to do the rIght and undo the wrong In the course oI admInIstratIon oI
justIce[3]. AppoIntment oI CommIssIoner Is one such power gIven to the Courts In order to
heIp them to serve thIs purpose.
SectIons 7578 oI the Code oI CIvII Procedure deaI wIth the powers oI the court to Issue
CommIssIons and the detaIIed provIsIons wIth respect to CommIssIons have been made In
Order 26 oI the Code oI CIvII Procedure.
The Code oI CIvII Procedure contempIates the Issue oI CommIssIons Ior the purposes oI
examInIng wItnesses, makIng IocaI InvestIgatIons, perIormance oI mInIsterIaI acts, saIe oI
movabIe property, conductIng scIentIIIc InvestIgatIons, examInIng accounts and to make a
partItIon. The Code Iays down these generaI purposes Ior whIch CommIssIons may be
Issued but the Issue oI a CommIssIon Is a matter oI judIcIaI dIscretIon[4]. Thus commIssIons
may be Issued Ior other purposes too II the Court thInks It IIt to do so. t has been heId
In AbduI )nII v. 5InIe oj UIInr Frndesh( that Order 26 oI the Code oI CIvII Procedure does
not excIude the Inherent power oI the Supreme Court to appoInt CommIssIoners Ior makIng
InquIry Into aIIeged vIoIatIons oI IundamentaI rIghts.
Whenever the Court passes an order to Issue a CommIssIon a CommIssIoner Is appoInted by
the Court. The Court`s jurIsdIctIon and power to appoInt a CommIssIoner shouId IIow Irom
SectIon 75 read wIth Order 26 and II the jurIsdIctIon to pass an order appoIntIng the
CommIssIoner cannot be traced eIther to SectIon 75 or to Order 26 the Court cannot IaII
back upon SectIon 151 to pass such an order appoIntIng the CommIssIoner[6]. The
CommIssIoner carrIes out the purpose Ior whIch the CommIssIon Is Issued. He assIsts the
Court and submIts a report to the Court. HIs report Is admIssIbIe In evIdence but Is not
bIndIng on the Court. The CommIssIoner exercIses no judIcIaI IunctIon and Is duty bound to
IoIIow the InstructIons oI the court[7]. HIs report may or may not be used by the Court In
comIng to a decIsIon.
Order 26 makes provIsIons Ior CommIssIons to be Issued at the Instance oI IoreIgn Courts
ThIs project whIch deaIs wIth AppoIntment oI CommIssIoner dIscusses and anaIyses In
detaII the varIous provIsIons In the Code oI CIvII Procedure reIatIng to CommIssIons wIth
reIerence to reIevant case Iaw.
The power oI AppoIntment oI CommIssIoner Is an Important weapon In the armoury oI the
Court to enabIe the Court to assIst the partIes In the suIt and to protect theIr rIghts, speed
up proceedIngs, get evIdence and heIp the Court to come to an InIormed and reasoned
decIsIon. ThIs In turn wIII serve the greater purpose oI tImeIy ]ustIce deIIvered wIth IaIrness
and In keepIng wIth the Iaws oI the Iand and the prIncIpIes oI naturaI justIce.

Research MethodoIogy
AIm and ObjectIves
The aIm oI thIs project Is to perIorm a crItIcaI anaIysIs oI AppoIntment oI CommIssIoners as
envIsaged by the Code oI CIvII Procedure. The project IdentIIIes the varIous provIsIons In the
Code oI CIvII Procedure reIatIng to AppoIntment oI CommIssIoners and anaIyses them In
detaII wIth reIerence to reIevant case Iaw. The project aIso aIms at hIghIIghtIng the
Importance oI the system oI appoIntment oI CommIssIoners and CommIssIons.
Nature oI Project
The project Is anaIytIcaI as weII as descrIptIve In nature. However the majorIty oI the project
Is anaIytIcaI In nature.
Sources oI Data
The sources oI data used are prImary as weII as secondary. A host oI IeadIng text books on
the Code oI CIvII procedure have been used. Case reporters IIke the AII ndIa Reporter and
Supreme Court Cases have aIso been reIerred to.
Scope and LImItatIon
The scope oI thIs project Is IImIted to a crItIcaI anaIysIs oI the varIous provIsIons In the Code
oI CIvII Procedure reIatIng to CommIssIons and AppoIntment oI CommIssIoners vIz. Order
26. The project has not Iooked at anaIogous provIsIons In the CIvII Procedure oI other
Research QuestIons
The research questIons are:
1. What are the varIous provIsIons In the Code oI CIvII Procedure reIatIng to appoIntment
oI CommIssIonerZ
2. What are the purposes Ior whIch a CommIssIoner may be appoIntedZ
3. What Is the Importance oI a CommIssIoner and a CommIssIonZ
4. How, why and when are CommIssIons Issued at the Instance oI ForeIgn TrIbunaIsZ
5. What are the generaI provIsIons In the Code oI CIvII Procedure reIatIng to
6. What Is the reIevance oI the AppoIntment oI a CommIssIoner and a CommIssIonZ
Mode oI CItatIon
A unIIorm mode oI cItatIon has been adopted throughout the project.

Purposes OI ssuIng CommIssIons
SectIon 75 oI the Code oI CIvII Procedure,1908 enacts that a Court may Issue a CommIssIon
Ior any oI the IoIIowIng purposes:
O To examIne wItnesses
O To make a IocaI InvestIgatIon
O To examIne or adjust accounts
O To make a partItIon
O To hoId a scIentIIIc, technIcaI or expert InvestIgatIon
O To conduct a saIe oI property whIch Is subject to speedy and naturaI decay and whIch
Is In the custody oI the court pendIng the determInatIon oI the suIt
O To perIorm any mInIsterIaI act
CommIssIons Ior ExamInatIon oI WItnesses
Order 26 RuIes 18 deaI wIth commIssIons set up Ior the purpose oI examInIng wItnesses.
Rule 1 deaIs wIth cases In whIch court may Issue commIssIon to examIne wItness. A
CommIssIon to examIne wItnesses can onIy be Issued In the cases specIIIed In thIs ruIe and
RuIes 4 and 5 and In no other case[8]. ThereIore, a CommIssIon shouId not be Issued Ior the
examInatIon Ior the head oI a mutt on the ground that It Is derogatory to a person In hIs
posItIon to appear personaIIy In Court as a wItness. 8ut a CommIssIon may be aIIowed II the
head oI the mutt Is summoned by the opposIte party and the Court thInks that the
appIIcatIon Is vexatIous[9]. A CommIssIon may aIso be Issued wIth the consent oI the partIes
In cases not IaIIIng under thIs ruIe[10]. I the report oI one CommIssIoner Is unsatIsIactory,
the Court can remIt It to the same CommIssIoner or appoInt another CommIssIoner[11]. t
has been heId that a Court can Issue CommIssIon even aIter remand[12]. The Court can, suo
moIu, canceI the prevIous order IssuIng CommIssIon though there Is no express provIsIon In
thIs regard[13]. The successor oI a ]udge has the power to canceI the Issue oI a CommIssIon
made by hIs predecessor[14].
The Issue oI a CommIssIon Is a matter oI judIcIaI dIscretIon. The Supreme Court
In FImnsInn LId. ombny v. hngwnndns( saId that the InterpretatIon that a
CommIssIon shouId Issue as a matter oI rIght unIess the appIIcatIon Ior CommIssIon
amounts to an abuse oI the process oI the Court Is not correct. TheIr LordshIps observed
that the Iact that wItnesses cannot be crossexamIned properIy, or theIr examInatIon wIII
entaII heavy costs are not suIIIcIent cIrcumstances to InterIere wIth the dIscretIon oI the
Court. The questIon whether the wItnesses wIII appear beIore the CommIssIoner Is aIso
IrreIevant. t Is Ior the party to produce the wItnesses beIore the CommIssIoner. As a
generaI ruIe the dIscretIon wIII not be exercIsed In Iavour oI the appIIcant unIess:
O The appIIcatIon Is made bona IIde
O The Issue In respect oI whIch the evIdence Is requIred Is one whIch the Court ought to
O The wItness to be examIned wouId gIve evIdence materIaI to the Issue
O There are some good reasons why the wItness cannot be examIned In Court
8ut the Court does not have absoIute dIscretIon or Inherent power to Issue a CommIssIon
except when authorIzed by the provIsIons oI the Code, nor accordIng to the generaI trend oI
opInIon Is the Court bound to Issue a CommIssIon sImpIy because aII the condItIons IaId
down In the ruIe exIst. Where the examInatIon on CommIssIon may resuIt In manIIest
InjustIce to any party, or where It Is not caIcuIated to permIt the evIdence beIng tested IaIrIy,
or when the appIIcatIon Is made to avoId crossexamInatIon beIore the Court, the Court Is
not bound to Issue a CommIssIon[16]. The demeanour oI a wItness has vaIue onIy when the
evIdence Is evenIy baIanced but It Is not so Important as to take away the rIght to Issue
commIssIon under thIs ruIe In deservIng cases[17]. The Iact that the wItness sought to be
examIned Is Interested, or that the case oI the party askIng Ior the Issue oI the CommIssIon
Is ImprobabIe or that the ]udge thInks that no useIuI end wouId be attaIned by the evIdence
Is however, no ground per se Ior reIusIng to Issue a commIssIon[18]. t Is open to the Court
to order the Issue oI commIssIon on condItIon oI the appIIcant deposItIng In court securIty
Ior the costs oI the opposIte party In regard to the commIssIon[19].
RuIe 1 aIso exempts certaIn persons Irom beIng examIned as wItnesses beIore a
A ReIIgIous preceptor Is not entItIed to be examIned on CommIssIon on the ground oI hIs
socIaI status[20]. Thus a 8Ishop Is not entItIed to be examIned on CommIssIon owIng to hIs
rank as a spIrItuaI head and dIgnItary oI the church[21].
SectIon 132 oI the Code oI CIvII Procedure recognIzes the rIght oI 5nrdnnnshn IadIes who
can cIaIm the prIvIIege oI beIng examIned on CommIssIon[22]. A CommIssIon ought not to
be reIused to persons who owIng to sIckness or InIIrmIty are unabIe to attend Court. I
sIckness or InIIrmIty Is aIIeged, the Court wIII have to take Into account the character and
gravIty oI the sIckness and the rIsk consequent upon the reIusaI to Issue a CommIssIon[23].
A medIcaI certIIIcate tendered In support oI an appIIcatIon Ior the Issue oI a commIssIon on
the ground oI IIIness Is InadmIssIbIe In evIdence[24]. nIancy however Is not a ground Ior
the Issue oI a CommIssIon[25].
t Is the duty oI the party obtaInIng the CommIssIon to take aII such steps as are necessary
to secure the attendance oI the wItnesses beIore the CommIssIoner. The examInatIon Is on
the same IootIng as that In Court and the opposIte party has the rIght to crossexamIne the
wItnesses. However II the crossexamInatIon Is unnecessarIIy proIonged or amounts to an
abuse oI process, the Court can IIx a tIme IImIt and order the crossexamInatIon to be
IInIshed[26]. 8ut the CommIssIoner has no power to dIsaIIow questIons and gIve ruIIng as to
poInts about admIssIbIIIty oI evIdence[27]. t Is aIso not open to any oI the partIes to move
the Court IssuIng the CommIssIon to obtaIn dIrectIons on the poInt whether the
CommIssIoner has the power to dIsaIIow questIons consIdered IrreIevant by hIm[28]. The
commIssIoner aIso has no power to record hIs IIndIngs on the basIs oI the evIdence
recorded by hIm on CommIssIon[29]. The purpose oI examInIng a wItness on commIssIon
wIII be adequateIy served by mereIy IssuIng InterrogatorIes Ior hIs examInatIon[30].
RuIe 1 Is not appIIcabIe to executIon proceedIngs. An order made under thIs ruIe In the
exercIse oI dIscretIon cannot be InterIered wIth In revIsIon unIess there has been a wanton
abuse oI the process oI the Court or the trIaI court has gone wrong on some vItaI prIncIpIe.
Rule 2 deaIs wIth Order Ior CommIssIon. A commIssIon may be Issued under thIs ruIe Ior
the examInatIon oI a wItness eIther suo moIIo or on the appIIcatIon oI a party or a wItness.
t Is to be noted that the ruIe requIres that the appIIcatIon oI a party or oI a wItness Is to be
supported by aIIIdavIt or otherwIse. t does not requIre that the aIIIdavIt must be made by
the party or the wItness hImseII[31].
Rule 3 contempIates the Issue oI a commIssIon by a Court to any person Ior examInIng a
wItness or a party resIdIng wIthIn the IocaI IImIts oI Its jurIsdIctIon. However the IaIIure to
Issue the CommIssIon to the CommIssIoner wIII not InvaIIdate the examInatIon actuaIIy heId
by hIm pursuant to the order oI the Court. The omIssIon to actuaIIy Issue the commIssIon Is
onIy an IrreguIarIty whIch II not objected to beIore the examInatIon commences wIII be
deemed to have been waIved[32].
RuIe 4 Is exhaustIve and provIdes Ior aII cases In whIch the IegIsIature Intends that a
CommIssIon shouId Issue. The power oI a court to Issue a CommIssIon Is not more
restrIcted under RuIe 4 than under RuIe 1[33]. A party Is entItIed to the Issue oI a
CommIssIon II It Is cIear that the wItness Is resIdIng outsIde the jurIsdIctIon oI the Court. t
Is not Ior the Court to decIde whether the party wIII be beneIIted or not by the Issue oI a
CommIssIon but a matter whIch Is entIreIy up to the party[34]. ExamInatIon oI a wItness on
CommIssIon as provIded under RuIe 4 stands on a sIIghtIy dIIIerent IootIng Irom the IssuIng
oI summons to a wItness under Order 16 RuIe 1. n the Iormer case the matter Is In the
dIscretIon oI the Court whereas In the Iatter case summons are Issued as a matter oI course.
The term 'resIdent` In thIs RuIe shouId not be heId to mean 'permanentIy resIdent`. A man
who casuaIIy makes a IIyIng vIsIt to a pIace Ior 10 or 20 days may not come wIthIn the
meanIng oI 'resIdent` as used In thIs RuIe but a wItness who Is In a partIcuIar pIace and Is
proved to be IIkeIy to remaIn there Ior more than sIx months must be heId to be a 'resIdent`
oI that pIace[35]. Under thIs RuIe a Court Is usuaIIy more IenIent whIIe processIng the
appIIcatIon oI the deIendant askIng hIs evIdence to be taken on CommIssIon as opposed to
an appIIcatIon IIIed by the pIaIntIII askIng Ior hIs evIdence to be taken on CommIssIon. ThIs
Is because the pIaIntIII has the choIce oI the Iorum and havIng chosen to InstItute hIs suIt In
a partIcuIar Court he cannot ask Ior hIs examInatIon eIsewhere. ThIs RuIe appIIes onIy to
suIts and not to executIon proceedIngs[36].
Rule 5 deaIs wIth the Issue oI a CommIssIon Ior the examInatIon oI wItnesses resIdIng
outsIde ndIa. The Courts usuaIIy aIIow a person resIdIng abroad to be examIned on
CommIssIon but they can exercIse dIscretIon In thIs regard and reIuse to order Issue oI
CommIssIon to examIne a wItness resIdIng abroad II they IeeI that there are adequate
reasons to do so. The Iact that wItnesses cannot be eIIectIveIy crossexamIned or theIr
examInatIon wIII entaII heavy costs are not adequate reasons to reIuse Issue oI a
commIssIon In case oI persons resIdIng abroad[37]. When a wItness resIdIng In a IoreIgn
country Is sought to be examIned on CommIssIon the Court shouId Issue a Letter oI Request
addressed to the presIdIng oIIIcer oI the Court wIthIn whose jurIsdIctIon the wItness resIdes,
requestIng hIm to have a CommIssIoner appoInted and to have the wItness examIned beIore
such CommIssIoner and Iorward the evIdence to the IssuIng Court aIter It has been duIy
Rule 6 states that "Every Court receIvIng a CommIssIon Ior the examInatIon oI any person
shaII examIne hIm or cause hIm to be examIned pursuant thereto". t has been heId that a
party who has not joIned In a CommIssIon Is entItIed to crossexamIne the wItness
examIned under the CommIssIon[39].
RuIe 7 deaIs wIth Return oI commIssIon wIth deposItIons oI wItnesses. The return shouId
show that that the evIdence was recorded as the Iaw requIres Ie. In the Ianguage In ordInary
use In the proceedIngs beIore the Court and duIy read over and sIgned by the wItnesses.
The report oI a CommIssIoner under thIs RuIe wIII Iorm a part oI the record and Is
admIssIbIe In evIdence.
RuIe 8 Iays down when evIdence on CommIssIon may be read as evIdence In a suIt. EvIdence
taken on CommIssIon cannot be used wIthout the consent oI the opposIte party unIess the
condItIons oI cIause (a) to thIs RuIe are IuIIIIIed or the record shows that the dIscretIon
under cIause (b) oI thIs RuIe has been exercIsed by the Court. The AIIahabad HIgh Court
In n Re: Lachman Das[40] has heId that though evIdence taken by the
CommIssIoner Is part oI the record It does not become evIdence unIess It Is tendered and
admItted under Order 26 RuIe 8. The Patna HIgh Court has concurred wIth thIs vIew
In SInha v. LIIe nsurance CorporatIon oI ndIa[41].
Where a document Is produced beIore the CommIssIoner and no objectIon Is taken to Its
admIssIbIIIty, no such objectIon can be taken beIore the court hearIng the suIt to whIch the
commIssIon Is returned. 8ut II the admIssIbIIIty oI the document Is objected to beIore the
CommIssIoner, the party who has raIsed the objectIon on one ground Is not precIuded Irom
objectIng to Its admIssIbIIIty on any other ground[42].
CommIssIons Ior LocaI nvestIgatIons
Rule 9 provIdes Ior CommIssIons to make IocaI InvestIgatIons. 8eIore amendment the Issue
oI a CommIssIon Ior IocaI InvestIgatIon was restrIcted to cases where It was InconvenIent Ior
the ]udge to make the InvestIgatIon hImseII. However now a ]udge may Issue a CommIssIon
In any case where he deems It IIt to do so, IrrespectIve oI hIs own convenIence. An order by
a ]udge Ior the Issue oI a commIssIon Ior IocaI InvestIgatIon shouId be a judIcIaI order and
must not be arbItrary. The object oI a IocaI InvestIgatIon Is not so much to coIIect evIdence
whIch can be taken In Court but to obtaIn evIdence whIch Irom Its pecuIIar nature can onIy
be had on the spot[43] and to eIucIdate any poInt whIch Is IeIt doubtIuI on the evIdence
taken beIore the Court[44]. The IocaI InvestIgatIon by the CommIssIoner Is mereIy to assIst
the Court. The report Is not In any way bIndIng on the Court whIch can arrIve at Its own
concIusIon, even at varIance wIth such report. Cases oI boundary dIsputes and dIsputes
about the IdentIty oI Iands are Instances when a Court may order a IocaI InvestIgatIon under
thIs RuIe. An appeIIate Court has the power to Issue a CommIssIon Ior a IocaI InvestIgatIon
under thIs RuIe read wIth SectIon 107 oI the Code oI CIvII Procedure. NotIce needs to be
gIven to the partIes beIore the InvestIgatIon by the CommIssIoner commences[45].
Rule 10 Iays down the procedure to be IoIIowed by the CommIssIoner wIth respect to a IocaI
InvestIgatIon. Sub ruIe (2) Is Intended to aIIord protectIon to the CommIssIoner who Is a
quasIjudIcIaI oIIIcer and such protectIon Is aIIorded on grounds oI pubIIc poIIcy so as to
make It ImpossIbIe Ior eIther oI the partIes to subject the CommIssIoner to a vexatIous
examInatIon[46]. A CommIssIoner appoInted to do a certaIn work must do It hImseII and
cannot get It done by someone eIse[47]. A CommIssIoner Is aIso bound to record the state
oI thIngs as actuaIIy exIstIng and not draw upon hIs own ImagInatIon or make surmIses[48].
The report submItted by a CommIssIoner aIter IocaI InvestIgatIon Is evIdence In the suIt and
shaII Iorm part oI the record. The Court or the partIes wIth the permIssIon oI the Court can
examIne the CommIssIoner In Court wIth respect to any oI the matters reIerred to hIm or
mentIoned In hIs report or as to hIs report or as to the manner In whIch he conducted the
InvestIgatIon. A Iurther InquIry may be dIrected by the Court where Ior any reason It Is
dIssatIsIIed wIth the proceedIngs oI the CommIssIoner[49].
CommIssIons Ior ScIentIIIc nvestIgatIon, PerIormance oI MInIsterIaI Act and SaIe oI MovabIe
Rules 10A, 10 and 10C deaI wIth CommIssIons set up Ior ScIentIIIc nvestIgatIon,
PerIormance oI MInIsterIaI Act and SaIe oI MovabIe Property respectIveIy. Under these
provIsIons where any questIon arIsIng In a suIt InvoIves any scIentIIIc examInatIon, the
perIormance oI a mInIsterIaI act or the saIe oI movabIe property In the custody oI the Court,
whIch cannot, In the opInIon oI the Court, be convenIentIy conducted or perIormed beIore
the Court or In the case oI movabIe property preserved, the court may, II It thInks It
necessary or expedIent In the Interests oI justIce so to do, Issue a CommIssIon to such
person as It thInks IIt, dIrectIng hIm to InquIre Into such questIon, to perIorm the mInIsterIaI
act or conduct such saIe and report thereon to the Court.
CommIssIons to ExamIne or Adjust Accounts
RuIe 11 deaIs wIth CommIssIons Issued to examIne or adjust accounts. The wordIng oI thIs
RuIe cIearIy provIdes that no order can be made Ior the appoIntment oI a CommIssIoner
unIess the examInatIon or adjustment oI accounts Is consIdered necessary[50]. I the
accounts are compIIcated and requIre an examInatIon then the Court may appoInt a
CommIssIon under thIs RuIe. The Court can Issue commIssIons to examIne accounts onIy Ior
the purposes specIIIed In SectIon 75 (c ). There Is no provIsIon In the CIvII Procedure Code
Ior the appoIntment oI a CommIssIoner to seIze the account books In the possessIon oI the
pIaIntIII on the ground oI the deIendant`s apprehensIon that they wouId be tampered wIth.
Court`s Inherent powers cannot be Invoked Ior the purpose oI IssuIng CommIssIons Ior
examInatIon or adjustment oI accounts[51].
RuIe 12 Is tItIed 'Court to gIve CommIssIoner necessary InstructIons`. Under thIs RuIe the
Court Is bound to IurnIsh the CommIssIoner wIth the requIsIte proceedIngs and Issue
deIInIte InstructIons as to what he shouId do wIth respect to adjustment or examInatIon oI
accounts. t Is not the IunctIon oI the CommIssIoner to act as arbItrator and settIe the
dIsputes between the partIes but to decIde them judIcIaIIy on a consIderatIon oI the
evIdence and to submIt hIs report to the Court[52]. He Is In the posItIon oI an assIstant to
the Court so as to enabIe the Court to understand and apprecIate the accounts and come to
a decIsIon. t Is the rIght oI the partIes to attack hIs IIndIngs and It Is Incumbent on the
Court to consIder these objectIons, and come to Its own Independent concIusIon[53]. The
proceedIngs and report oI the CommIssIon shaII be evIdence In the suIt unIess the Court
dIrects Iurther InquIry. Such Iurther InquIry wIII be dIrected onIy when the Court Is
dIssatIsIIed wIth the report and proceedIngs oI the CommIssIoner.
CommIssIons to make PartItIons
Rule 13 provIdes that Where a preIImInary decree Ior partItIon oI ImmovabIe property has
been passed, the Court may Issue a commIssIon to such person as It thInks IIt to make the
partItIon or separatIon accordIng to the rIghts as decIared In such decree, except In
undIvIded estates assessed to the payment oI revenue where the partItIon Is made by the
CoIIector under SectIon 54 oI the CIvII Procedure Code.
Where In a suIt Ior partItIon oI joInt IamIIy property, the trIaI court appoInts a commIssIoner
dIrectIng hIm to submIt hIs proposaIs Ior partItIon oI the property, and Ior that purpose
authorIzes hIm to ascertaIn the property whIch was avaIIabIe Ior partItIon and to ascertaIn
the IIabIIIty oI the joInt IamIIy and Ior decIdIng those questIons, the CommIssIoner was
empowered to record statements oI the partIes, Irame Issues and to record evIdence as
mIght be necessary, the Court does not, by so authorIzIng the CommIssIoner, abdIcate Its
IunctIons to the CommIssIoner. The CommIssIoner was mereIy caIIed upon to make
proposaIs Ior partItIon on whIch the partIes wouId be heard, and the Court wouId adjudIcate
upon these proposaIs In the IIght oI the preIImInary decree and the contentIons oI the
partIes. The proposaIs oI the CommIssIoner cannot Irom theIr very nature be bIndIng upon
the partIes nor the reasons In support thereoI[54].
Rule 14 Iays down the Procedure oI CommIssIoner wIth respect to commIssIons Issued Ior
the purpose oI makIng partItIons oI ImmovabIe property. t Is not contempIated by thIs RuIe
that that the CommIssIoner shouId propose a number oI schemes and ask the Court to
choose any one oI them. OnIy the shares as ascertaIned by the decree have to be worked
out by hIm. Where a partItIon cannot be made wIthout destroyIng the IntrInsIc vaIue oI the
property or where It wouId be InconvenIent to destroy the excIusIve possessIon oI one co
sharer the Court may award money compensatIon Instead oI dIvIdIng the propertIes[55]. A
commIssIoner cannot be appoInted Ior the partItIon oI revenue payIng ImmovabIe property
as a partItIon oI revenue payIng Iand whIch has the eIIect oI breakIng up the joInt IIabIIIty oI
the sharers Ior revenue cannot be eIIected by the CIvII Court[56]. Such a partItIon can onIy
be eIIected by the CoIIector because the revenue Is eIIected. However the court can eIIect a
partItIon oI nonrevenue payIng ImmovabIe property. Thus a CommIssIoner may be
appoInted Ior vaIuatIon oI joInt IamIIy dweIIIng houses and whIIe submIttIng hIs report the
CommIssIoner shouId gIve reasons Ior IIxIng the vaIuatIons oI dIIIerent Items oI
property[57]. The duty oI the CommIssIoner under thIs RuIe Is not to gIve possessIon but to
aIIot the shares and prepare a report IIxIng the shares and dIstInguIshIng the same by
metes and bounds II so ordered by the Court[58].

CommIssIoners CeneraI ProvIsIons
Order 26, RuIes 1518 oI the Code oI CIvII Procedure reIate to generaI provIsIons reIatIng to
CommIssIons and CommIssIoners. t Is ImperatIve to Iook at these generaI provIsIons In
order to gaIn a cIear and totaI understandIng oI CommIssIoners and CommIssIons In the
Code oI CIvII Procedure.
RuIe 15: Expenses oI CommIssIon to be paId Into Court
The ruIe provIdes that the Court may, II It thInks IIt, order the party requIrIng the
commIssIon to deposIt the necessary expenses thereoI. The ruIe Is not exhaustIve and does
not prevent the Court Irom ImposIng any terms that It chooses as a condItIon precedent to
the IssuIng oI a commIssIon. Nor does an omIssIon on the part oI the Court to requIre the
deposIt oI the expenses prevent the CommIssIoner Irom recoverIng hIs remuneratIon Irom
the party at whose Instance he was engaged[59]. There Is a conIIIct oI judIcIaI opInIon on
the poInt that II the party who has been ordered by the Court to deposIt the expenses oI the
CommIssIon does not compIy wIth the order then the CommIssIoner can execute the order.
The weIght oI the authorIty Is oI the vIew that the CommIssIoner can execute the order In
case oI noncompIIance by the party. Such an order, dIrectIng the party to pay a certaIn sum
to the CommIssIoner, cannot be made a part oI the decree as the CommIssIoner Is not a
party to the suIt.[60]
The 'expenses oI the commIssIon` do not IncIude expenses oI the other partIes to the
IItIgatIon, Ior exampIe, the expenses needed Ior the opposIte party or hIs counseI to attend
the pIace where the commIssIon Is to be executed[61]. Such expenses cannot be ordered to
be deposIted even under SectIon 151, Code oI CIvII Procedure[62]. 8ut an order dIrectIng
costs oI CommIssIoner to be borne by the petItIoner In any event Is wIthIn the jurIsdIctIon oI
the court and Is not open to objectIon[63].
The object oI requIrIng the expenses to be deposIted beIorehand Is that the CommIssIoner
who Is an OIIIcer oI the Court ought not to be drIven to a separate suIt or executIon to get
hIs Iees. FaIIure to deposIt the requIred Iees cannot aIIord a ground Ior rejectIng the report
oI the CommIssIoner, or strIkIng oII the deIence or Ior dIsmIssIng the suIt. Courts In
appoIntIng CommIssIoners and In IIxIng theIr remuneratIons under Order 26, Code oI CIvII
Procedure act judIcIaIIy and not admInIstratIveIy.[64]
There Is no express provIsIon whIch aIIows a court to dIrect a party to deposIt a Iurther sum
aIter the commIssIon has Issued. 8ut It can do so under Its Inherent powers[65].
Expenses oI the commIssIon may be apportIoned between the partIes to a suIt Ior
dIssoIutIon oI partnershIp and takIng oI accounts, In proportIon to theIr shares[66].
t has been heId that the matter oI reductIon or dIsaIIowance oI a CommIssIoners bIII Is a
matter Ior the trIaI court and the Court wIII not be justIIIed In reopenIng or reducIng the
Iees IIxed In the presence oI the partIes and paId Into court[67]. The Court shouId IIx
remuneratIon Ior the CommIssIoner that Is commensurate to the dIIIIcuIty and Importance
oI the work done. The remuneratIon Is not Ior Iabour expended on or Ior days spent but Ior
an eIIIcIent pIece oI work. I he mereIy executes the CommIssIon nomInaIIy, he Is not
entItIed to any Iees. Where a CommIssIoner has aIready taken payments provIsIonaIIy, he
must reIund them II It Is subsequentIy Iound that they have not been earned by reaI work
but that the CommIssIoner has executed the CommIssIon onIy nomInaIIy[68].
RuIe 16:Powers oI CommIssIoners
A CommIssIoner has the power to:
1. ExamIne the partIes and wItnesses
2. CaII Ior and examIne documents
3. At any reasonabIe tIme enter upon or Into any Iand or buIIdIng mentIoned In the
The provIsIons oI thIs ruIe are permIssIve In the sense that they vest dIscretIon In the
CommIssIoner to examIne or not to examIne a wItness. t has been heId by the Punjab and
Haryana HIgh Court that the IunctIon oI the CommIssIoner appoInted to examIne accounts
Is not conIIned onIy to makIng addItIons, subtractIons and muItIpIIcatIons It Is open to hIm
to IInd out by recordIng evIdence or otherwIse whether the entrIes as they appear In the
account books do reaIIy gIve the correct pIcture oI accounts[69].
t has been observed that an order rejectIng the appIIcatIon Ior Issuance oI a commIssIon
can be revIsed[70].
Where a CommIssIoner wants to Iodge a compIaInt Ior the prosecutIon oI a person, the
CommIssIoner must obtaIn the sanctIon oI the Court concerned.
Rule 16A:Questions obected to before the Commissioner.
RuIe 16A was added by the 1976 Amendment Act In order to cIarIIy the posItIon as to the
procedure to be adopted when a questIon Is put beIore the CommIssIon. ThIs RuIe Is
Intended to provIde that where a questIon put to a wItness Is objected to In proceedIngs
beIore the CommIssIoner, the CommIssIoner shaII take down the questIon, the answer, the
objectIons and the name oI the person so objectIng. Any such answer can be read as
evIdence In a suIt onIy by order oI the CIvII Court to that eIIect.
AIthough RuIe 16A authorIzes the CommIssIoner to take down the questIon, the answer and
the objectIon etc. occasIon may arIse where the objectIon to the questIon put to the wItness
may be raIsed on the ground oI prIvIIege. I, In such a case, the CommIssIoner Is requIred to
take down the answer to the questIon, then, the prIvIIege cIaImed wouId be Iost. Thus the
provIso to RuIe 16A Iays down that In such a case the CommIssIoner Is not aIIowed to take
down the answer to a questIon or mIght be aIIowed to contInue wIth the examInatIon oI the
wItness IeavIng the party to get the questIon oI prIvIIege decIded by the Court.
Rule 17: Attendance and examination of witnesses before Commissioner.
Under thIs RuIe the CommIssIoner Is gIven the powers oI Court In regard to the summonIng
and procurIng the attendance oI wItnesses. For the purposes oI thIs RuIe he Is deemed to be
a Court. The reason Ior thIs Is the CommIssIoner Is a deIegate oI the Court actIng under Its
authorIty. AIthough under Order 26, RuIe 16 It Is In the dIscretIon oI the CommIssIoner to
examIne or not to examIne a wItness, yet once the CommIssIoner has decIded to examIne a
wItness, the mandatory provIsIons oI thIs ruIe come Into pIay and those provIsIons In theIr
turn attract the provIsIons oI Order 18 oI the Code oI CIvII Procedure and SectIon 138,
ndIan EvIdence Act, 1872. Hence, the partIes must be aIIorded an opportunIty oI
examInIng, crossexamInIng and reexamInIng the wItnesses and It Is not open to the
CommIssIoner to examIne the wItnesses In the absence oI the partIes wIthout gIvIng them
suIIIcIent notIce oI the tIme and pIace when he proposes to examIne the wItnesses. The
CommIssIoner has not been made a ]udge Ior the purposes oI examInIng the wItnesses and
the dutIes oI the ]udge under RuIes 5 and 6 oI Order 18 are not attracted under Order 26,
RuIe 17. Hence, not readIng over the deposItIon to the wItness and InterpretIng the same In
the Ianguage oI the wItness and sIgnIng It by the CommIssIoner recordIng the evIdence
does not vItIate the evIdence recorded and the Court can reIy on such evIdence[71].
A CommIssIoner appoInted to examIne a wItness has no power to dIsaIIow questIons he
consIders IrreIevant[72].
AccordIng to subruIe (1) oI RuIe 17 when a new CommIssIoner Is appoInted In the vacancy
caused by the death or otherwIse oI the prevIous CommIssIoner, evIdence oI wItnesses
recorded beIore the Iatter, wIII be evIdence In the cause under Order 18, RuIe 15, wIthout
the wItnesses havIng to be reexamIned.
Sub ruIe (2) oI RuIe 17 enabIes the Court wIthIn the IocaI IImIts oI whose jurIsdIctIon a
wItness resIdes to Issue a summons Ior hIs examInatIon on the appIIcatIon oI the
CommIssIoner. n the absence oI any such provIsIon In the oId Code oI CIvII Procedure It was
heId that where a wItness IaIIed to appear beIore a CommIssIoner pursuant to a notIce
Issued by hIm, the onIy course IeIt open to the CommIssIoner was to return the CommIssIon
to the Court Irom whIch It was Issued and the Iatter Court wouId then send the CommIssIon
to the Court wIthIn the IocaI IImIts oI whose jurIsdIctIon the wItness to be examIned
Rule 18: Parties to appear before Commissioner.
Under thIs ruIe It Is obIIgatory on the part oI the Court to order the partIes to appear beIore
the CommIssIoner eIther In person or by theIr recognIzed agents or pIeaders. The partIes
must be IndIvIduaIIy gIven an opportunIty to make representatIon oI theIr respectIve cases
beIore the CommIssIoner, by beIng served wIth notIces. Where the Court has not dIrected
the partIes to appear beIore the CommIssIoner as requIred by thIs ruIe, any notIce gIven by
the CommIssIoner hImseII to a party wIII not be suIIIcIent. However there Is a controversy
over thIs and It has been heId In some cases that the object oI thIs RuIe Is that the work oI
the CommIssIoner shouId be done In the presence oI the partIes. Hence, II the Court IaIIs to
gIve a dIrectIon to the partIes but the partIes are present owIng to a notIce Issued by the
CommIssIoner, the object oI the RuIe Is satIsIIed and the report oI the CommIssIoner wIII
not be vItIated Ior Iack oI dIrectIons oI the Court[74].
When neIther a dIrectIon Is gIven by the Court, nor a notIce gIven by the CommIssIoner, hIs
report Is not admIssIbIe In evIdence[75]. Where a party IaIIs to appear beIore the
CommIssIoner In pursuance oI the order oI the Court, the Court can proceed under Order
17, RuIe 2 oI the Code oI CIvII Procedure. The CommIssIoner`s report whIch has been
obtaIned In contraventIon oI the statutory requIrements has to be set asIde and a decIsIon
based on such a report cannot be sustaIned[76].
There Is no provIsIon In the Code oI CIvII Procedure whIch says that a CommIssIon couId be
Issued onIy aIter notIce has been Issued to the deIendant and, thereIore, an order
appoIntIng the CommIssIoner wIthout notIce to hIm and hearIng hIm Is not IIIegaI and
opposed to the provIsIons oI Order 26, RuIe 18. However Courts have heId that as a matter
oI practIce notIce ought to be gIven to the opposIte party beIore orderIng a
Rule 18A: Application of Order to execution proceedings.
ThIs ruIe provIdes that the provIsIons oI Order 26 shaII appIy to proceedIngs In executIon oI
a decree or an order.
Rule 18: Court to fix a time for return of Commission.
The Court IssuIng a CommIssIon shaII IIx a date on or beIore whIch the CommIssIon shaII be
returned to It aIter executIon, and the date so IIxed shaII not be extended except where the
Court, Ior reasons to be recorded, Is satIsIIed that there Is suIIIcIent cause Ior extendIng the
date. ThIs RuIe was added In order to avoId deIay In CommIssIon proceedIngs.

CommIssIons ssued At The nstance OI ForeIgn TrIbunaIs
Order 26, RuIes 1922 oI the Code OI CIvII Procedure,1908 were Inserted as Courts In ndIa
are sometImes requIred to take evIdence Ior IoreIgn trIbunaIs In commercIaI and cIvII
matters and It was consIdered desIrabIe that the outIInes oI the procedure to be IoIIowed
shouId be shown In the CIvII Procedure Code In order to secure unIIormIty oI practIce In
ndIan Courts and to gIve InIormatIon to IoreIgn trIbunaIs.
Rule 19 states that:
I a HIgh Court Is satIsIIed
a) That a IoreIgn court sItuated In a IoreIgn country wIshes to obtaIn the evIdence oI a
wItness In any proceedIng beIore It,
b) That the proceedIng Is oI a cIvII nature, and
c) That the wItness Is resIdIng wIthIn the IImIts oI the HIgh Court`s appeIIate jurIsdIctIon,
t may, subject to the provIsIons oI RuIe 20, Issue a commIssIon Ior the examInatIon oI such
RuIe 19 Iurther states that:
EvIdence may be gIven oI the matters specIIIed In cIauses a, b and c:
a) 8y a certIIIcate sIgned by the consuIar oIIIcer oI the IoreIgn country oI the hIghest
rank In ndIa and transmItted to the HIgh Court through the CentraI Covernment, or
b) 8y a Ietter oI request Issued by the IoreIgn court and transmItted to the HIgh Court
through the CentraI Covernment
c) 8y a Ietter oI request Issued by the IoreIgn court and produced beIore the HIgh Court
by a party to the proceedIng.
RuIe 19 does not appIy to the Courts reIerred to In SectIon 78 cIauses (a) and (b).
Sub ruIe (2) IndIcates the method by whIch the request contaIned In sub ruIe (1) may be
estabIIshed, but does not prevent the HIgh Court Irom requIrIng Iurther evIdence II It thInks
AccordIng to Rule 20 a HIgh Court may Issue a CommIssIon under RuIe 19 upon appIIcatIon
by a party to the proceedIng beIore the ForeIgn Court or upon an appIIcatIon by a Iaw
oIIIcer oI the State Covernment.
Rule 21 Iays down that a CommIssIon wIII be Issued to any court wIthIn whose jurIsdIctIon
the wItness resIdes or to any person deemed IIt to execute It where the wItness resIdes
wIthIn the IocaI IImIts oI the orIgInaI cIvII jurIsdIctIon oI the HIgh Court.
Rule 22 provIdes Ior Issue, executIon and return oI CommIssIons and transmIssIon oI
evIdence to IoreIgn court. AIter the CommIssIon has been executed It shaII be returned
together wIth the evIdence to the HIgh Court, whIch shaII Iorward It to the CentraI
Covernment aIong wIth the Ietter oI request Ior transmIssIon to the IoreIgn court.

WhIIe appoIntIng a CommIssIoner the Court has to exercIse judIcIaI dIscretIon and the Court
shouId very jeaIousIy InquIre, In every case, Into the reason Ior a CommIssIon beIore
passIng an order Ior the Issue oI a CommIssIon. UsuaIIy the most common IunctIon oI a
CommIssIon Is to examIne wItnesses and make IocaI InvestIgatIons. CommIssIons greatIy
reduce the workIoad oI the Court and heIp the Court In deIIverIng speedy justIce. Very oIten
Important wItnesses may not be abIe to come to Court to depose owIng to sIckness or
threat to theIr IIves or sImpIy because they IIve too Iar away Irom the Court`s terrItorIaI
jurIsdIctIon. n such cases the appoIntment oI a CommIssIoner to examIne the wItnesses on
CommIssIon wIII provIde InvaIuabIe heIp to the suIt proceedIngs and enabIe the Court to
admInIster justIce. CommIssIons greatIy reduce the workIoad oI the Court by doIng cIerIcaI
work IIke caIcuIatIons, accounts etc. and other such mInIsterIaI acts. Through IocaI
InvestIgatIons CommIssIons eIucIdate matters In a dIspute and enabIe the Court to come to
a weIIInIormed decIsIon. Thus the appoIntment oI CommIssIoners and the smooth and
eIIIcIent workIng oI CommIssIons Is oI great assIstance to the Courts and uItImateIy to the
partIes who reap the beneIIts.
CommIssIons greatIy reduce the expenses oI the Court too as the expenses oI the
CommIssIon are borne by the party at whose Instance the commIssIon Is set up. The
CommIssIoner acts on the InstructIons oI the Court and Is whoIIy under Its controI. The
Court may repIace the CommIssIoner II It IeeIs that the CommIssIoner Is not carryIng out hIs
InstructIons satIsIactorIIy. PartIes may try to brIbe the CommIssIoner or InIIuence hIm In
order to strengthen theIr case but the controI oI the Court can heIp In preventIng thIs
The report oI a commIssIoner aIthough not bIndIng on the Court gIves the Court great Iood
Ior thought and has great persuasIve vaIue. t mIght be the basIs on whIch the Court makes
Its judgment.
There have been severaI arguments agaInst AppoIntment oI CommIssIoners. Detractors oI
CommIssIons say that In thIs modern dIgItaI age the roIe oI CommIssIons has become
redundant. They argue that wItnesses who are unabIe to depose In Court can depose
dIrectIy to the ]udge through teIevIsIon or web conIerencIng. AIIIdavIts can be submItted by
the partIes over the nternet and conIIrmed through dIgItaI sIgnatures. However such
methods are not a reaIIstIc vIew In a deveIopIng country IIke ndIa where most oI the
popuIatIon IIves In ruraI areas and the technIcaI knowhow or expertIse Is sImpIy not there
to enabIe examInatIon oI wItnesses eIectronIcaIIy. Moreover these methods wouId Impose a
great IInancIaI burden on the partIes and the Courts. Thus It wouId not be pragmatIc to say
that CommIssIons have become redundant. They stIII render InvaIuabIe servIce and the
appoIntment oI a CommIssIoner whenever necessary Is oI great heIp to the Court In the
admInIstratIon oI ]ustIce.
The Importance oI the CommIssIon and the appoIntment oI CommIssIoner can be seen In
the new stance oI AmerIcan CIvII Procedure veerIng towards a sImIIar process as the
CommIssIon In whIch the Court has great controI over the IunctIons oI the commIssIoner
and the purpose Ior whIch the CommIssIon has been set up. Through the CommIssIon and
the appoIntment oI CommIssIoner Courts In ndIa exercIse aImost totaI controI over the
purpose Ior whIch the CommIssIon has been set up. n the UnIted States the partIes and
theIr attorneys perIorm aII the IunctIons oI examInatIon oI wItnesses, InvestIgatIon, Iact
gatherIng, coIIectIon oI evIdence etc. (purposes Ior whIch CommIssIons may be set up In
ndIa) wIth IIttIe or no InterIerence Irom the Court. However thIs Is now changIng.
AmerIcan trIaI judges are exercIsIng IncreasIng controI over the conduct oI Iact gatherIng
whIch Is one oI the purposes Ior whIch a CommIssIoner may be appoInted In ndIa.
n cases wIth many partIes and many Issues, the IeeIIng grew that courtcentered controI
was needed to prevent the conIusIon and dupIIcatIon that wouId resuIt II the adversarIes
were "IejI Io IhemseIves, ench 5ursung Ihe course IhnI s mosI jnvornbIe Io hs 5nrIcuInr
cIenI." The AmerIcan IegaI IraternIty thus deveIoped a anual for Complex Litigation. The
ManuaI eIIects judIcIaI controI over adversary IactgatherIng through a set oI Interconnected
AccordIngIy "the essence" oI what the ManuaI propounds "Is the exercIse oI judIcIaI controI
over compIex IItIgatIon pIus a posItIve pIan Ior dIscovery and pretrIaI preparatIon."[79]
AccordIng to the manuaI the court convenes dIscovery conIerences and breaks dIscovery
Into "waves." Thus, the court decIdes what subjects may be InvestIgated In what sequence.
ThIs power has now been codIIIed Ior the ordInary FederaI RuIes oI CIvII Procedure In
revIsed ruIe 26(I): "FoIIowng Ihe dscovery conjerence, Ihe courI shnII enIer nn order
IenInIveIy denIjyng Ihe ssues jor dscovery 5ur5oses, esInbIshng n 5Inn nnd scheduIe
jor dscovery . . . . [80]
Thus the very essence oI the appoIntment oI CommIssIoner In ndIa vIz. controI oI the Court
over the CommIssIon and the CommIssIoner actIng whoIIy on the InstructIons oI the Court
are beIng Incorporated Into the Iact gatherIng process In the UnIted States oI AmerIca whIch
hItherto IeIt the entIre process oI Iact gatherIng, examInatIon oI wItnesses and gatherIng oI
evIdence etc. whoIIy to the partIes and theIr attorneys wIth mInImaI or no Court
InterIerence. AIthough many AmerIcan courtrooms remaIn untouched by the new
deveIopments, the changes have occurred broadIy enough to have about themseIves the
Iook oI the Iuture.
ThIs change In the AmerIcan stance Is a vIndIcatIon oI the ndIan posItIon and speaks
voIumes Ior the system oI CommIssIons set up by the Code oI CIvII Procedure. The
Importance oI the CommIssIons and AppoIntment oI CommIssIoners cannot be Iurther
emphasIzed and It hIs hoped that Courts wIII contInue to admInIster justIce more eIIectIveIy
and eIIIcIentIy through the system oI AppoIntment oI CommIssIoners.

1. ]ohn H. LangbeIn, "%he Cermnn AdvnnInge n CvI Frocedure" 52 U. ChI. L. Rev. 823
(UnIversIty oI ChIcago Law RevIew, 1985).
1. C.8 Upadhya, DIgest on The CIvII Procedure Code (AIIahabad: MaIhotra Law House,
2. C.K TakwanI, CIvII Procedure (Lucknow: Eastern 8ook Company, 2001).
3. D.V ChItaIey, Code oI CIvII Procedure VoIume V (Nagpur: AII ndIa Reporters LImIted,
4. M.P Tandon and Rajesh Tandon, The Code oI CIvII Procedure (AIIahabad: AIIahabad
Law Agency, 1990).
5. P.M 8akshI, MuIIaThe Code oI CIvII Procedure (8ombay: N.M TrIpathI PrIvate LImIted,
6. S.N SIngh, CIvII Procedure Code (AIIahabad: CentraI Law Agency, 1990).s
7. S.Venkataraman, The Code oI CIvII Procedure (Madras: Madras Law ]ournaI OIIIce,
8. T.L Venkatarama AIyar, MuIIa on The Code oI CIvII Procedure VoIume (8ombay: N.M
TrIpathI PrIvate LImIted, 1967).
9. VeduIa ]agannadha Rao, The Code oI CIvII Procedure (Hyderabad: AsIa Law House,

[1] C.K TakwanI, CvI Frocedure (Lucknow: Eastern 8ook Company, 2001)at 186.
[2] SectIon 94(e) oI the Code oI CIvII Procedure, 1908.
[3] 5u5rn note 1 at 187.
[4] M.P Tandon and Rajesh Tandon, %he Code oj CvI Frocedure (AIIahabad: AIIahabad Law
Agency, 1990)at 251.
[5] AR 1984 SC 882.
[6] Kshore Kumnr v. Rnkeshkumnr )ny5rnknsh AgrnwnI, AR 1992 Cuj 95.
[7] 5u5rn note 1 at 188.
[8] P.M 8akshI, uIIn-%he Code oj CvI Frocedure (8ombay: N.M TrIpathI PrIvate LImIted,
1990)at 871.
[9] Veerndrnm v. NnIrn]n (1905) 28 Mad. 28 as cIted In T.L Venkataraman AIyar, uIIn on
Ihe Code oj CvI Frocedure VoIume II (8ombay: N.M TrIpathI PrIvate LImIted, 1967)at 1319.
[10] Co5nI Dns v. )ngnnnnIh, AR 1938 AII 370.
[11] 5u5rn note 8 at 873.
[12] Achhru nI v. nuIn nkhsh, AR 1925 Lah 29.
[13] Nnrnn Dnss v. Knrnm Chnnd, AR 1968 DeIhI 226.
[14] CheIIynr v. nung n ChI, AR 1930 Rang 315.
[15] AR 1971 SC 61.
[16] Rnhurn RnmknI Kuer v. ChhnIhoo 5ngh, AR 1961 Pat 210.
[17] In Re: 5ubrnmnnnn CheIInr, AR 1955 Mad 210.
[18] D.V ChItaIey, Code oj CvI Frocedure VoIume IV (Nagpur: AII ndIa Reporters LImIted,
1971)at 101.
[19] Rnghubr DnynI Frnsnd v. RnmekbnI 5nh, AR 1986 Pat 83.
[20] Fnnnchnnd ChhoInInI v. nnshnrInI NnndInI, AR 1917 8om 155.
[21] A.nrcnIIne Fernnndo v. 5I. Frnncs Xnver Church, KoIInh, AR 1961 Mad 31.
[22] Rnhurn RnmknI Kuer v. ChhnIhoo, AR 1961 Pat 210.
[23] 5u5rn note 18 at 103.
[24] %.N Covndnrn]uIu v. Lnkshm AmmnI, AR 1961 Mad 158.
[25] 5u5rn note 18 at 103.
[26] Id.
[27] Rnm Krshnn DnImn v. Feroz Chnnd, AR 1960 Punj 430.
[28] Rnm Krshnn DnImn v. Feroz Chnnd, AR 1960 Punj 430.
[29] Krshnn 5hnrnn 5hukIn v. nI hndnr 5hukIn, AR 1952 AII 140.
[30] 5u5rn note 25.
[31] Rnm 5ewnk Koer osnd Koer v. Hnrhnr Frnsnd 5ngh, AR 1927 Rang 175.
[32] DnnnnIh Lnw v. eIhnrnm NnvnIrn nnd Co., AR 1921 CaI 852.
[33] RnmnIngn Iynr v. 5nnknrnnnrnynnn Ayynr, AR 1929 Mad 192.
[34] T.L Venkataraman AIyar, uIIn on Ihe Code oj CvI Frocedure VoIume II (8ombay: N.M
TrIpathI PrIvate LImIted, 1967)at 1321.
[35] In Re: 5ubrnmnnnn CheIInr, AR 1955 Mad 210.
[36] 5u5rn note 18 at 108109.
[37] FImnsInn LId. ombny v. hngwnndns, AR 1971 SC 61.
[38] 5u5rn note 18 at 112.
[39] 5u5rn note 34 at 1323.
[40] AR 1952 AII 563.
[41] AR 1964 Pat 142.
[42] 5u5rn note 18 at 116.
[43] In Re: F. oosn KuIIy, AR 1953 Mad 717.
[44] DebendrnnnIh Nnnd v. NnIhn huynn, AR 1973 OrIssa 240.
[45] 5u5rn note 18 at 117.
[46] 5Inrnm v. Rnm Frnsnd Rnm, AR 1915 CaI 280.
[47] Dnmodnrnn v. Knrmbn FInnInIons Com5nny LmIed, AR 1959 Ker 358.
[48] .N.D Vnru v. %he onrd oj %rusIees, %ru5nIh, AR 1959 Andh Pra 64.
[49] 5u5rn note 4.
[50] Chnndu v. Kr5n Rnm, AR 1952 HP 65.
[51] Fndnm 5en v. 5InIe oj UIInr Frndesh, AR 1961 SC 218.
[52] 5u5rn note 34 at 1328.
[53] Id.
[54] unnnInI v. Rn]kumnr, AR 1962 SC 1493.
[55] 5u5rn note 18 at 136.
[56] K.R DeosnnI v. W.K DeosnnI, AR 1971 8om 26.
[57] Courhnr Dns v. )nhnrInI 5enI, AR 1957 CaI 90.
[58] Rnm nhndur v. 5r %hnkur 5r 5Inrnm] nhnrn], AR 1934 Pat 32.
[59] FrnmnIhn NnIh 5en Cu5In v. 5hekh AbduI Azz enh, AR 1923 CaI 436.
[60] 5u5rn note 8 at 880.
[61] Lnchhm Dev v. ChnndrnknIn 5nrnog, AR 1973 Pat 155.
[62] 5u5rn note 18 at 141.
[63] Id.
[64] 5u5rn note 18 at 141.
[65] 5ynmnIn FcIures LmIed v. .V 5vn 5nrmn, AR 1960 Andh Pra 387.
[66] .C nncknm v. V.5. 5vnIngnm CheIInr, AR 1977 Mad 324.
[67] Rnmnnrnn 5nh v. nsnnI LnI 5nh, AR 1933 Pat 681.
[68] 5urendrnnnIh 5en Cu5In v. 5ecreInry oj 5InIe, AR 1934 Pat 316.
[69] LR (1970)2 Punj 640.
[70] 5u5rn note 18 at 144.
[71] 5vnsnnknrn FIIn v. Fonnuswnm Nndnr, AR 1973 Mad 450.
[72] Rnm Krshnn DnImn v. Feroz Chnnd, AR 1960 Punj 430.
[73] 5u5rn note 18 at 145.
[74] 5u5rn note 18 at 146.
[75] )nmI Ahmed %nbnn v. usI. Khnr-UI-Nsn, AR 1970 DeIhI 205.
[76] nndern ukher]ee v. 5nchndrn Chnndrn ukher]ee, AR 1962 Pat 211.
[77] 5u5rn note 18 at 146147.
[78] ]ohn H. LangbeIn, "%he Cermnn AdvnnInge n CvI Frocedure" 52 U. ChI. L. Rev. 823
(UnIversIty oI ChIcago Law RevIew, 1985).
[79] Id.
[80] Id.