ORDER XXVI CPC – COMMISSIONS

 

Order XXVI

of the Code of Civil Procedure, 1908 deals with Commissions—a procedural mechanism through which courts delegate specific fact-finding, evidence recording, investigation, or ministerial functions to a Commissioner when such acts cannot conveniently be performed by the Court itself.

The object of Order XXVI is:

• To ensure effective administration of justice

• To prevent delay

• To assist the Court in fact-finding

• To preserve evidence

• To secure convenience of parties and witnesses

I. COMMISSIONS TO EXAMINE WITNESSES (Rules 1–8)

1. Rule 1 – When Commission May Be Issued (Within Jurisdiction)

A Court may issue a commission to examine:

1. A person exempt from personal appearance under CPC

2. A person unable to attend due to sickness or infirmity

Important Points:

• Examination may be on interrogatories or otherwise.

• Commission on interrogatories requires reasons to be recorded.

• Medical certificate of registered medical practitioner may be accepted without examining the doctor.

Object:

To avoid hardship to persons who cannot attend court physically.

2. Rule 2 – Order for Commission

The Court may issue commission:

• Suo motu, or

• On application supported by affidavit.

3. Rule 3 – Witness Within Jurisdiction

If the witness resides within jurisdiction:

• Commission may be issued to any suitable person.

4. Rule 4 – Witness Beyond Jurisdiction

Commission may be issued for:

(a) Person residing outside jurisdiction
(b) Person about to leave jurisdiction
(c) Government servant unable to attend without detriment to public service

Mandatory Issue:

If under Order XVI Rule 19 the person cannot be compelled to attend personally, and evidence is necessary in interests of justice → commission shall be issued.

4A – Commission Within Jurisdiction for Expediency

Inserted to enable:

• Expeditious disposal

• Interest of justice

• Any sufficient reason

Evidence recorded shall be read in evidence.

5 – Witness Outside India

Court may issue:

• Commission, or

• Letter of request

If evidence is necessary.

6–8 – Execution and Admissibility

• Receiving Court must examine witness.

• Commission returned with depositions.

• Evidence can be read if:

  • Witness is dead

  • Beyond jurisdiction

  • Sick

  • Government servant

  • Or Court dispenses with proof

Landmark Case:

Salem Advocate Bar Association v. Union of India

Facts:

Challenge to amendments of CPC including provisions facilitating recording of evidence by commission.

Ratio:

Supreme Court upheld validity of amendments promoting:

• Speedy justice

• Recording evidence by commission

• Case management reforms

Significance:

Recognized commissions as tool to reduce delay and judicial backlog.

II. COMMISSIONS FOR LOCAL INVESTIGATION (Rules 9–10)

Rule 9 – Local Investigation

Court may issue commission to:

• Elucidate matter in dispute

• Ascertain market value

• Determine mesne profits

• Calculate damages

• Determine annual net profits

Proviso:

If State Government prescribes rules regarding appointment, Court must follow them.

Rule 10 – Procedure

Commissioner must:

1. Conduct inspection

2. Record evidence

3. Submit written signed report

Evidentiary Value:

• Report + evidence form part of record.

• Commissioner may be examined in Court.

• Court may order further inquiry.

Landmark Case:

Haryana Waqf Board v. Shanti Sarup

Ratio:

Commissioner’s report is evidence but not conclusive.
Court must independently assess evidence.

Significance:

Commissioner aids Court but does not replace judicial determination.

III. SCIENTIFIC INVESTIGATION & MINISTERIAL ACTS (Rules 10A–10C)

Rule 10A – Scientific Investigation

Used when:

• Matter involves technical/scientific inquiry

• Court cannot conveniently conduct investigation

Example:

• Forensic examination

• Engineering defects

• DNA analysis

Rule 10B – Ministerial Act

Where act cannot be conveniently performed before Court.

Examples:

• Measurement

• Verification

• Sealing procedure

Rule 10C – Sale of Movable Property

When movable property:

• In custody of Court

• Cannot be conveniently preserved

Sale must follow execution sale procedure.

IV. COMMISSIONS TO EXAMINE ACCOUNTS (Rules 11–12)

Applicable in:

• Partnership disputes

• Mortgage suits

• Administration suits

Commissioner may:

• Examine accounts

• Adjust accounts

• Report opinion (if instructed)

Court may order further inquiry if dissatisfied.

V. COMMISSIONS TO MAKE PARTITION (Rules 13–14)

Applicable when:

• Preliminary decree for partition passed

• Not covered by Section 54 CPC

Duties of Commissioner:

• Divide property into shares

• Allot shares

• Equalize value via money compensation

• Submit report

Court may:

• Confirm

• Vary

• Set aside

Final decree passed accordingly.

Landmark Case:

Shub Karan Bubna v. Sita Saran Bubna

Ratio:

Clarified stages of partition:

1. Preliminary decree

2. Commissioner’s division

3. Final decree

Significance:

Explained role of commissioner in partition proceedings.

VI. GENERAL PROVISIONS (Rules 15–18B)

Rule 15 – Expenses

Court may require deposit of expenses before issuing commission.

Rule 16 – Powers of Commissioner

Unless restricted:

• Examine parties & witnesses

• Call documents

• Enter land/buildings

Rule 16A – Objections

If objection raised:

• Question + answer + objection recorded.

• Privilege questions not answered until Court decides.

Rule 17 – Summoning Witnesses

Commissioner deemed Civil Court for:

• Summoning

• Attendance

• Examination

If not Judge:

• Cannot impose penalties.

• Court may impose on application.

Rule 18 – Parties Must Appear

If absent:

• Commissioner may proceed ex parte.

Rule 18A – Applies to Execution Proceedings

Order XXVI applicable in execution as well.

Rule 18B – Time for Return

Court must fix date for return of commission.
Extension only for sufficient cause.

VII. COMMISSIONS AT INSTANCE OF FOREIGN TRIBUNALS (Rules 19–22)

High Court may issue commission if:

1. Foreign court requests

2. Proceeding is civil in nature

3. Witness resides within jurisdiction

Evidence of request may be by:

• Consular certificate

• Letter of request

• Party production

Executed commission returned to High Court and transmitted to foreign court.

Nature of Commissioner

Commissioner is:

• Officer of Court

• Fact-finding agent

• Not adjudicator

• Bound by Court’s instructions

Evidentiary Status

• Report is evidence

• Not binding

• Court must apply independent mind

Distinction Between Commission & Delegation of Judicial Power

Commission	Judicial Delegation
Fact finding	Decision making
Auxiliary	Core judicial function
Permissible	Not permissible

Key Examination Points

1. Commission is discretionary.

2. Interrogatory commission requires recorded reasons.

3. Report not conclusive.

4. Court may order fresh inquiry.

5. Applicable to execution proceedings.

6. High Court handles foreign tribunal commissions.

7. Partition commission follows preliminary decree.

8. Scientific investigation introduced in 1976 amendment.

Objectives of Order XXVI

• Speedy disposal

• Convenience of witnesses

• Technical assistance

• Preservation of evidence

• Proper valuation & division

• International judicial cooperation

Conclusion

Order XXVI CPC serves as an essential procedural instrument ensuring:

• Judicial efficiency

• Substantive justice

• Reduction of delay

• Proper fact-finding

• Flexibility in complex litigation

It balances procedural rigor with practical convenience and is a significant tool in modern civil litigation.