Court Commissioner and the Law regarding his Appointment
This article on ‘Court Commissioner and the law regarding his appointment.’ is written by Varunpal Singh and focuses on the law related to the appointment of a court commissioner. I. Introduction The court has to take into account various aspects for the disposal of cases filed by the civil court. But there are some subjects which are difficult… Read More »
This article on ‘Court Commissioner and the law regarding his appointment.’ is written by Varunpal Singh and focuses on the law related to the appointment of a court commissioner.
I. Introduction
The court has to take into account various aspects for the disposal of cases filed by the civil court. But there are some subjects which are difficult to get society from documents or to come to a conclusion on the basis of documents.
For example, when the dispute between the parties is for the way to and from and the plaintiff says that there is only one way to travel and that too has been stopped by the defendant, in such a situation, the court cannot come to any conclusion only on the basis of evidence.
Since such a physical situation cannot be presented before the court, nor can the court go to that particular physical situation and give any conclusion.
A Commission is basically the direction or role given by the Court to a person to act on behalf of the Court and the idea behind it is the execution of the functions which will help in giving full justice to the court. Such a person who runs the commission is known as the “Court Commissioner”.
II. When and in what case is the Court Commissioner appointed?
Section 75 of the Code of Civil Procedure empowers the appointment of commission and the procedure is described in detail in Order 26. The power of the court to issue commission and can be used by the court to do full justice among the parties. It can be used by the court either on the application of the party to the suit or with self-motivation.
Section 75 may order the issuance of a commission under the following circumstances-
(1) to record a person’s examination/statement,
(2) for local exploration/investigation,
(3) For examination/examination and adjustment of accounts/ accounts,
(4) to divide,
(5) Investigation that requires a scientist, technical or expert,
(6) to sell any property which is fast and functionary decaying (quickly damaged) and in the custody of the court till the settlement of the suit,
(7) To do any ministerial work
From time to time, the Supreme Court and the High Courts have issued commissions explaining the appointment of Commissioners. For example, the Andhra Pradesh High Court has decided to appoint Sarla Jain v. Sangu Gangadhar[1], referring to the supreme court’s verdict in the case of, Mohammad Mehtab Khan v. Khushnuma Ibrahim Khan[2], stating that the appointment of advocate-commissioner by the trial court for the purpose of demarcation of disputed property and fixing of boundary stones for the property of the defendant amounted to pre-trial decree as doing so is part of the prayer made in the original claim.
In such a case, the Commissioner cannot be appointed for the said purpose. Further, in this case, it was assumed that for the appointment of an Advocate-Commissioner, the Court has to take into account the following-
(1) Total arguments of both sides;
(2) Relief claimed in the suit;
(3) Appointment of Advocate-Commissioner for a specific purpose in the interim stage shall not be for grant of the pre-trial decree; and
(4) Appointment of Advocate-Commissioner to decide the actual dispute between the parties.
The Bombay High Court, while discussing in detail the commission powers of the court in the case of IC Corporation v. Daewoo Nigam[3], stipulated that the question of issuing commissions for investigation of resident witnesses outside India is not always easy.
The interests of justice, the power of the court created by the Code of Civil Procedure, the principles governing the use of conscience and many complex factors should enter into the final decision. Yet to begin with the principles that emerge from the analysis of the scheme of the Code of Civil Procedure must form the primary basis of the decision.
Therefore, a brief analysis of the plan of the Civil Procedure Code on the issue of commissions is important. Commissions are issued to examine any person or to carry out other functions like local inspection, checking of accounts, splitting etc.
A commission can be issued for the examination of a witness
“Any court (not high court) is located in a state other than the state in which the court is located”. But the court to which the commission is issued should have “a court with jurisdiction in the place where the person to be investigated lives”.
The reference to a “state” and “court with jurisdiction of the place where the witness lives” is a clear indication of legislative intent that Section 76 (1) applies only when a witness is examined who lives within India.
If that were not the case, the term “a state other than the State in which the court is located” and the reference to the jurisdiction of such a court would be redundant. It is an established rule of interpretation of methods that no word should be interpreted as meaningless.
After defining the court’s right to issue a commission for witness investigation within India, the Civil Procedure Code goes ahead to determine what should be done if the witness to be examined on the Commission “not within India” lives in any place.
Section 77 is a special provision relating to the issuance of commission for the investigation of a witness living outside India. Contrary to Section 76(1), Section 77 empowers the Court in India to issue a “Letter of Request to Examine a Witness living in any place, not within India”.
The request letter can be issued “in lieu of issuing a commission”. Here is the meaning of “instead of” instead. Therefore, it makes it clear that in case a witness is staying in a place that is not within India, the court cannot issue a commission, can issue a request letter.
In the case of Padma Sen v. State of Uttar Pradesh[4], a three-judge bench of the Supreme Court has held that the court has no inherent power under Section 151 to appoint an Advocate-Commissioner to seize the account book from the possession of the plaintiff. The defendant applied that he feared they would be molested.
The Supreme Court further said that the court cannot forcibly seize the advocate-commissioner by appointing him, but he can summon him and if not produced, he can punish the party and make adverse estimates against him.
If the documents are forged and while in the possession of the plaintiff, the defendant can prove forgery and dispute the entries. The Supreme Court has categorically stated that it is not the job of the court to collect evidence in favour of any one party.
In the case of Haryana Wakf Board v. Shanti Swarup and others[5], the Supreme Court stipulated that in cases where the boundary of the disputed land is required, it would be appropriate for the Court to issue directions for local investigation under The Code of Civil Procedure and appoint them.
The Andhra Pradesh High Court in the case of Jammi Venkata Krishna Rao and others v. Jammi Venkathanuma Rabindranath[6], stipulated that the commissioner noting the physical characteristics of the property enables the court to take appropriate decision on the identity of the property.
The appointment of a Commissioner for this purpose does not mean collecting evidence, especially when the litigants are arguing that the defendants are trying to erase the physical characteristics, noted by the said Commissioner, it enables the court to understand physical identity. The date of the trial and any deletion thereafter can be easily known during the trial by the court.
While hearing the appeal to dismiss the application of the petitioners for appointment of the commissioner in Jharkhand High Court in the case of Jageshwar Mahato v. State of Jharkhand[7], he opined that a case was filed by the petitioner for declaration of ownership rights and possession in the lower court as the circle officer had issued a notice to the petitioner directing him to remove encroachment on 3 decimal lands.
The petitioner was evicted from his house and the main gate was sealed by the defendant officials. Keeping in view all these facts and circumstances, it was necessary to appoint an Advocate-Commissioner to explain the real truth. The high court held that the trial court had erred in rejecting the petitioners’ application.
CPC Order 39 Rule 7 provides for inspection of any property which is the subject matter of the case and for this purpose the court can authorize any person to enter any land or building in the possession of any other party. Order 26 Rule 9 also provides that if the court considers a local inquiry necessary to clarify any matter in the dispute, it can appoint a commission and seek a report.
Order 26 of the CPC, Rule 10 lays down the procedure which has to be followed by the Commissioner appointed under Rule 9. This procedure given under CPC will be used where inspection becomes integral to deciding a factual dispute in a just and fair manner. The court further said that it was a suitable case for the appointment of an advocate-commissioner and hence the trial judge’s order was quashed.
In the case of Bandhu Mukti Morcha v. Union of India[8], regarding the appointment of Court Commissioner of Constitutional Courts, it was clarified that the Supreme Court and the High Court can exercise their powers to appoint commissions for any purpose.
The Supreme Court further said that the appointment of commission using Article 32 of the Constitution is different from the commission appointed under the CPC. It was further stated that the Supreme Court may, in the exercise of its jurisdiction, appoint a Commission to look into violation of fundamental rights.
In the case of Radheshyam Rastogi v. Ashish Kumar[9], when the eviction order was passed and the application for appointment of an independent engineer/advocate commissioner was dismissed. In this, the Supreme Court determined that the eviction order was primarily flawed as the prayer for the appointment of an independent engineer/advocate commissioner was rejected.
An independent Engineer Commissioner should be appointed to find out if the tenant premises are in dilapidated condition and require demolition and reconstruction.
In the case of Nadar Mahajan Sangam S. Velachami Nadar Kalluri v. District Registrar (Committees)[10], the Supreme Court directed the civil court to appoint an advocate as commissioner in case of an election dispute between the members of the society who will conduct elections as per the rules of the society and take charge of management till elections are held.
Since the election itself was essential for the operation of the society, the appointment of an advocate-commissioner for settlement of disputes was found necessary in the interest of justice.
III. Conclusion
The appointment of the Commissioner is guided by circumstances in every case and these circumstances should be considered independently by the Court. The evaluation of the law and procedure laid down in the above articles shows that the appointment of a Commissioner for local visits and for examination of physical characteristics is generally an essential procedure in civil litigation.
References
[1] C.R.P. No. 5837/2015
[2] (2013) 9 SCC 221
[3] [AIR 1990 Bom 152]
[4] AIR 1961 SC 218
[5] [(2008) SCC 671]
[6] [2015 (5) ALT 14]
[7] [2018 SCC OnLine Jhar 1351]
[8] (1984) 3 SCC 161
[9] [(2008) 10 SCC 225]
[10] [(1997)10 SCC 170]
