Bailabel Type : non-bailable

Description

Order 26 of the Civil Procedure Code (CPC) deals with the appointment of commissioners for various purposes related to the investigation, inspection, and collection of evidence in civil suits. The objective of this order is to facilitate the gathering of evidence that cannot be directly presented in court or that requires a specialized skill or access to certain locations or objects. Commissioners are appointed by the court to carry out specific tasks and report back with their findings.

Commissions are typically issued for matters such as the examination of witnesses, inspection of property, collection of evidence, or assessment of damages. This helps in overcoming obstacles that may prevent the court from directly obtaining the necessary evidence.

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Key Provisions of Order 26

Rule 1: Appointment of Commissioners

1. When the Court Can Appoint a Commissioner:
   A court may appoint a commissioner on its own motion or upon the application of any of the parties involved in the case. The court typically appoints a commissioner when it is necessary for the purpose of inquiry, investigation, or report in relation to the suit.

   The appointment of a commissioner may be required in the following circumstances:

   • To examine a witness who is unable to attend the court due to illness, age, or distance.
   • To inspect property that is the subject matter of the suit.
   • To take inventory or assess damages.
   • To conduct a local investigation that is needed to help the court make an informed decision.

2. Discretion of the Court:
   The court has wide discretion in deciding when a commission should be issued, considering the necessity and purpose of the commission. Courts usually issue commissions when it is clear that the task cannot be performed effectively in court or when the presence of an expert or special skills is needed.

Rule 2: Type of Commissioners

1. Commissioners for Specific Purposes:
   Commissioners can be appointed for different types of tasks, including:
   • To examine a witness: A commissioner can be appointed to take the deposition of a witness who is unable to attend the court, and the deposition can be used as evidence in the case.
   • To inspect the property or the subject matter of the suit: If the suit involves land, buildings, or any property that needs to be physically inspected, a commissioner may be appointed to visit the site and report back with their findings.
   • To take inventory or assess damages: In cases of property damage or other losses, a commissioner may be appointed to examine and report on the extent of the damages.
2. Expert Commissioners:
   In certain cases, the court may appoint an expert to carry out the commission, especially when the matter involves technical or specialized knowledge (e.g., for an architect, surveyor, or forensic expert).

Rule 3: Procedure for Appointment

1. Application for a Commission:
   A party to the suit can apply for the appointment of a commissioner. The application must specify the purpose of the commission and the tasks to be carried out. The court may either grant or reject the application depending on the merit of the request.

2. Notice to Other Parties:
   Before the appointment of a commissioner, the court will issue a notice to the other parties in the suit, informing them of the intention to appoint a commissioner and the purpose of the commission. This ensures that all parties are aware of the process and can raise any objections if necessary.

3. Commissioner's Report:
   The commissioner is required to submit a detailed report to the court after completing the assigned task. The report must be thorough and unbiased, and the commissioner may also be required to testify in court regarding the findings in their report, especially if the findings are contested.

Rule 4: Powers of the Commissioner

1. Powers of the Commissioner:
   A commissioner is vested with certain powers to perform their duties, such as:

   • The authority to enter premises or inspect property that is relevant to the case.
   • The authority to summon witnesses and examine them if necessary.
   • The power to take inventory, measurements, and draw maps, where applicable.

   The powers given to the commissioner depend on the specific task for which they were appointed. The commissioner must act in accordance with the court’s instructions and report any findings accurately.

2. Assist with Collection of Evidence:
   The commissioner can help collect evidence that cannot be obtained directly by the court or parties, such as the seizure of documents, photographic evidence, or evidence related to damaged property.

Rule 5: Costs of the Commission

1. Payment for the Commission:
   The party requesting the appointment of the commissioner is generally responsible for bearing the costs associated with the commission. This includes the commissioner’s fees, travel expenses, and any other costs incurred during the process.

2. Reimbursement of Costs:
   If the suit is decided in favor of the party who requested the commission, the costs incurred may be reimbursed as part of the overall litigation costs. Alternatively, the court may order the losing party to bear the costs of the commission.

Rule 6: Report of the Commissioner

1. Submission of Report:
   The commissioner is required to submit their report in writing, summarizing the results of their examination, inspection, or other tasks they were assigned to perform. The report is then submitted to the court for review.

2. Court’s Use of the Report:
   The court may use the commissioner’s report as part of the evidence in the case. The report is considered a part of the record, and it may be accepted or contested by the parties involved. If any party disagrees with the findings, they can challenge the report and ask the court to examine the matter further.

3. Court's Consideration:
   The commissioner’s report is not binding on the court, but it holds significant weight. The court will evaluate the report in the context of all other evidence presented in the case and may rely on it to make a final decision.

Rule 7: Failure to Follow the Commissioner's Instructions

1. Obligation of the Commissioner:
   Commissioners must act in accordance with the directions issued by the court. If the commissioner fails to follow the instructions or does not submit the report in a timely manner, they may be held liable for costs or punished by the court.

2. Consequences for Non-Compliance:
   If a commissioner does not perform their duties as directed, the court may order the appointment of another commissioner or take appropriate action to ensure that the task is completed correctly.

Punishment

Failure to Comply with Commission:
If a commissioner fails to comply with their responsibilities or refuses to carry out the commission as directed by the court, the court may take actions, such as:

• Imposing costs or fines on the commissioner.
• Replacing the commissioner with another person.

Failure to Submit a Report:
If a commissioner does not submit the required report or fails to do so in a timely manner, the court may order penalties, including the payment of costs for the delay.