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Commissions

Commissions may be issued to examine witnesses. It is discussed under Order 26.

Rule 1 talks that any individual who lives within the jurisdiction of the court and who is either excluded from attending the court or who has been unable to attend due to illness or infirmity may be examined by a court on interrogatories on such persons by issuing commissions.

This duty necessitates the court to keep a record of the reasons for issuing the commission as well as the circumstances that lead to the issuance of the commission. To satisfy itself regarding the witness's illness or infirmity, the judge may take a medical certificate validly signed by a certified medical practitioner. It is not needed that a medical practitioner is a witness as he is issuing such certificate.

As per rule 2, the court may issue commission to examine the witness by its own (suo moto), or by the application of any parties to the law suit on examination of witness.

As per rule 3, the commission may issue any suitable person to examine the witnesses residing within the jurisdiction of the court issuing such commission.

As per rule 4, commissions are usually issued to any individual who lives outside the territorial jurisdiction of the court issuing the Commission, a person who lives within the territorial jurisdiction of the court issuing Commission but is also about to depart the territorial limit even before the date of his examination, and a government servant who is attending the court may induce a hindrance to his government service.

According to rule 5, a court has the authority to issue a Commission or a letter of request for examination of a person who lives outside India, given that an application for such a Commission is submitted to the court and the court is satisfied that evidence of such a person is really expedient.

As per rule 6, the court that received the commission for examinations of a person shall examine or cause an examination of that person to be conducted in accordance with the commission.

As per rule 7, the commission is carried out by the executing court, and after that, it is handed to the issuing court. The commission, as well as the evidence obtained under it, must be surrendered. However, if the issuing commission's order specifies otherwise, the commission must be returned in compliance with that order. The return of the commission, as well as the evidence obtained under it, shall become part of the suit's recording.

Rule 8 talks about exceptions. As a general rule, evidence obtained through a commission cannot be used as evidence in court, although there are several exceptions: if the person who gave the testimony is beyond the court's jurisdiction, deceased, or unable to attend the court for his personal examination owing to illness or infirmity.

The individual who provided the evidence is not required to appear in court. If the person who gave evidence is a government employee who cannot attend court without affecting his or her service. If the court does not need proof of any of the aforementioned situations and allows any person's evidence to be read as testimony in the lawsuit.

The court may issue commission to make clear any conflicts, to check out market price of the property, to quantify the concentration of any mesne profits, to check losses, and to assure annual profits, in accordance with the provision of the rule 9.

The court must be convinced that a local investigation is required. Any person may be given a commission for local inquiry, and that person is required to conduct an investigation and submit a report to the court. The court will be confined by the state government's laws regarding the persons to whom such a commission will be given.

According to rule 10, the Commissioner will conduct a local investigation and describe the outcomes. He must convert the evidence gathered into writing and produce his report, which he will deliver. The court received the Commissioner's report as well as the evidence. The Commissioner's report and the evidence he gathered will be used as evidence in the case and will be part of the record. If the court is unsatisfied with the commissioner's actions, it may order a further inquiry.

The Commissioner may indeed be directly examined by the court or any of the parties to the lawsuit on any of the matters addressed by him, his report, as well as the method in which he has made his investigation or inspection. The court may issue a commission to any person instructing him to investigate a matter and report back to it (rule 10A), to any person instructing him to undertake a ministerial act (rule 10B), or to sell movable property that is adequately protected and in the court's custody (rule 10 C).

As per rule 11 and rule 12, the commission should examine/adjust the accounts and take the necessary instructions of the court.

Commissions can make partition of immovable property according to rule 13. Also given that a prior decree for the partition of immovable property has been issued and that the case is not encompassed under s. 54 of the Civil Procedure Code. [s. 54 - a decree for partition of an undivided estate assessed to payment of revenue to the govt. or for the separate possession of share of such an estate, and provides that such partition shall be made by the collector.]

According to rule 14, the commissioner should follow some procedure. He must make the required inquiries. As instructed in the order, separate the property into as many shares required. Assign such shares to the various parties. Make a report and have it signed. If the commission was given to more than one person and they disagree, they must create and sign separate reports assigning each party's share.

If the parties file an objection, the court hears them and, if necessary, modify or set it aside the commissioner's report. If the court overturns the commissioner's findings, it will either appoint a new commission or issue orders as it sees fit.

Rule 15 states that the party directing the commission's issuance is responsible for the commission's expenses. The court will assess whatever the amount is reasonable. The money must be deposited with the court within the time frame specified.

Rule 16 states that the commissioner will examine the parties, witnesses, and other persons, has the authority to request and examine documents, and is entitled to inspect land and buildings at any reasonable time. Rule 16A states that if a party objects to a question posed to a witness during the course of the procedure, the commissioner shall record the question, the witness's answer, the objection voiced, and the names of the objecting party or his lawyer.

As per rule 17, the commission will be treated as a civil court, but fines must be sought from the court that issued the commission.

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