Section 75: Power of Court to issue commissions

 

Code of Civil Procedure 

 

PART III

INCIDENTAL PROCEEDINGS

COMMISSIONS

 

75. Power of Court to issue commissions.—Subject to such conditions and limitations as may be prescribed, the Court may issue a commission—

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition;

¹[(e) to hold a scientific, technical, or expert investigation;

(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;

(g) to perform any ministerial act.]

Note 1. Ins. by Act 104 of 1976, s. 26 (w.e.f. 1-2-1977).

 

Code of Civil Procedure 

Commentaries:

Section 75 CPC empowers the court to issue commissions. [1] 

A perusal of the rule 10A of Order 26 shows that a discretion has been vested in the Civil Court to get any scientific investigation conducted only if it needs necessary or expedient in the ends of justice. The basic rationale of this provision is that the Commission is going to held in extracting the truth. There is established procedure known to law that the Commissioner's report form part of the record and the same becomes evidence as a whole in the suit.[1]

An order passed in the incidental proceedings will have a direct bearing on the result of the suit.[1] 

The Hon'ble Supreme Court held that "incidental" or "ancillary" proceedings are taken recourse to in aid of the ultimate decision of the suit and any order passed therein would have a bearing on the merit of the matter.[1][6] Whenever an order is passed by the court in exercise of its ancillary power or in the incidental proceedings, the same may revive on revival of the suit. [1][6] The expression "ancillary" means aiding; auxiliary; subordinate; attendant upon; that which aids or promotes a proceeding regarded as the principal.[1][7]

Commissioner whose integrity is unquestionable his elaborate report cannot be overruled by the Court. [1] [2] It would normally be wise and safe for the courts to leave the decision to experts who are more familiar with the problems they face than the courts generally can be.[1] [4A to 4E] The Commissioner's report should not be rejected except on clearly defined and sufficient grounds.[1][8]

The Commissioner's report even if accepted by itself does not however, mean that the parties are precluded from challenging the evidence of the Commissioner or assailing the report by examining any other witness to counter the effect of the report.[1][3]

It is now settled law that the report of the Commissioner is part of the record and that therefore the report cannot be overlooked or rejected on spacious plea of non-examination of the Commissioner as a witness since it is part of the record of the case.[1][5]

Authorities:

[1] The Sunni Central Board Of Waqfs ... vs Gopal Singh Visharad [Allahabad High Court]

[2] AIR 1924 Cal.620, Amrita Sundari Versus Munshi

[3] AIR 1997 Cal.59, Amena Bibi Versus Sk.Abdul Haque

[4A] (2010) 3 SCC 732, Victoria Memorial Hall Versus Howrah Ganatantrik Nagrik Samity

[4B] State of Bihar V. Dr.Asis Kumar Mukherjee, [SC]

[4C] Dalpat Abasaheb Solunke V. Dr.B.S.Mahajan, [SC]

[4D] Central Areca Nut & Cocoa Mktg.& Processing Coop.Ltd. V. State of Karnataka [SC]

[4E] Dental Council of India V. Subharti K.K.B Charitable Trust. [SC]

[5] 1995 Supp (4) SCC 600, Misrilal Ramratan and others Mansukhlal and others

[6] 2004(6) SCC 378 Vareed Jacob v. Sosamma Geevarghese

[7] (2006) 13 SCC 136 G.L. Vijan v. K. Shankar

[8] Chandan Mull's case reported in 44 Cal WN 205 at p. 212 : (AIR 1940 PC 3, at pp. 5, 6)