Saturday, 9 June 2018

NOTES ON COURT COMMISSIONER


S 75 of CPC provides that court may a commission-
a) to examine any person;
b) to make a local investigation;
c) to examine or adjust accounts;
d) to make partitions;
e) to hold a scientific, technical or expert investigation;
f) to conduct the sale of property which is subject to speedy and natural decay, and which is in custody,of the court pending the determination of suit; or
g) to perform any ministerial act;


Read important judgments on court commissioner:


Order 26.R1. Cases in which court may issue commission to examine witness:-
Court may issue commission for examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction
1) who is exempted from attending the court or who is from sickness or infirmity unable to attend it:
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 sickness or infirmity of any person without calling the medical practitioner as a witness.

Read important judgment on recording of evidence: 

O 26 R 4. Persons for whose examination commission may issue:-
1) Court may issue commission for 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 government who cannot attend court without detriment to public service.
Provided that where under R 19 of O 16, 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 interest of justice:

O 16 R.19. No witness to be ordered to attend in person unless resident within certain limits-
No one shall be ordered to attend in person to give evidence unless he resides-
a) within the local limits of the court's ordinary original jurisdiction,or
b) without such limits but at a place less than one hundred or less than five hundred kilometres distance from court house:
2) Such commission may be issued to any court not being high court,or to any pleader or other person within the local limits of whose jurisdiction such person resides;

O 26.R 4- A(inserted by Amendment Act 2002) Commissioner for examination of any person resident within the local limits of jurisdiction of the court:- Court may in the interest of justice or for expeditious disposal of the case or for any other reason issue commission for examination of any person resident within local limits of its jurisdiction, and evidence so recorded shall be read in evidence.

O 18 R 4. Recording of evidence ( Inserted by amendment Act 2002) :-
1) In every case,the examination in chief of a witness shall be on affidavit and copies therof shall be supplied to opposite party by the party who calls him for evidence.
2) Cross examination and re-examination of witness in attendance whose examination in chief by affidavit has been furnished to court shall be taken either by court or by commissioner appointed by it:
3) Commissioner shall record evidence and return such evidence together with his report in writing signed by him and evidence taken shall form part of record of suit.
4) Commissioner may record such remarks as he thinks material respecting the demeanour of any witness while under examination:
Provided that any objection raised during the recording of evidence before commissioner shall be recorded by him and decided by court at the stage of argument.
5) Report of commissioner shall be submitted to court appointing the commission within sixty days from the date of issue of commission unless
the court for reasons to be recorded in writing extends the time.
8) Provisions of O 26 R.16,16-A,17 and 18 shall be applicable to issue, execution and return of commission under this rule.

O.26 R 10. Procedure of commissioner:-
1) Commissioner after such inspection and after reducing to writing the evidence taken by him,shall return such evidence, together with his report in writing signed by him to court.
2) Report and depositions to be evidence in suit:-
Court or any of parties with permission of court may examine 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.

O 26. R 16. Powers of commissioners:-
a) examine parties
b) examine documents
c) at any reasonable time enter upon or into any land or building mentioned in the order.

O 26 R 16-A. Questions objected to before the commissioner :-

O 26 R 17. Attendance and examination of witnesses before commissioner:-
All provision of civil procedure code relating to summoning ,attendance and examination of witnesses also apply to persons required to give evidence or produce documents and for the purposes of this rule, commissioner is deemed to be a civil court.
Provided that when 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 by which commission was issued.
2) Commissioner may apply to any court not being a high court within the local limits of whose jurisdiction a witness resides for issue of any process against such witness, and court may issue such process as it considers reasonable and proper.

O 26 R 18. Parties to appear before commissioner;

O 26 R 18-A. Provision of this order shall apply to proceedings in execution of decree or order;


O 26 R 18-B. Court to fix time for return of commission;

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