POWER OF COURT TO ISSUE A COMMISSION :    COMMISSION FOR LOCAL INVESTIGATION:   COMMISSION TO EXAMINE OR ADJUST ACCOUNTS : COMMISSION TO EXAMINE WITNESS ON REQUEST OF FOREIGN COURT

INTRODUCTION

In civil litigation, it is often necessary for the court to obtain evidence from individuals who, for various reasons, cannot appear personally before the court. To facilitate the administration of justice without unnecessary delay or hardship, the Code of Civil Procedure, 1908 (CPC), empowers courts to issue commissions for various purposes, including the examination of witnesses, local investigations, adjustment of accounts, inspection of documents, and partition of property. The issuance of such commissions ensures that essential evidence can be obtained efficiently while upholding procedural fairness. This document outlines the legal framework governing commissions under Sections 75–78 and Order XXVI of the CPC, supplemented by relevant provisions of the Lahore High Court Rules.

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RELEVANT PROVISIONS

• Sections 75–78 and Order XXVI of the Code of Civil Procedure, 1908

• Lahore High Court Rules, Vol. I, Chapters 5.A & 7 (List of persons exempted from personal appearance)

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WHAT IS A COMMISSION?

A commission is a formal written order issued by the court authorizing a person (known as a commissioner) to carry out specific tasks such as the examination of witnesses, local inspections, account examinations, document inspections, or partition of property. The purpose is to aid the court in reaching a just decision in situations where direct court proceedings are impractical.

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POWER OF COURT TO ISSUE A COMMISSION – SECTION 75

Subject to prescribed conditions, a court may issue a commission for the following purposes:

a) To examine any person
b) To make a local investigation
c) To examine or adjust accounts
d) To make a partition
e) To inspect any document

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A. COMMISSION TO EXAMINE WITNESSES

1. When a Commission May Be Issued

The court has the power to issue a commission to examine a witness in the following situations:

a) When the person is exempted from personal appearance (e.g., women, government officials, special persons – see Sections 132 & 133 CPC and Lahore High Court Rules)
b) When the person is suffering from illness or infirmity
c) When the person is otherwise unable to attend court

2. Mode of Issuance – Order XXVI, Rule 2

A commission may be issued:

a) By the court on its own motion
b) On the application of any party or the witness, supported by an affidavit or otherwise

3. Who May Be Examined – Rule 4

A commission may be issued for a person who:

a) Resides within the court’s local jurisdiction
b) Resides outside the court’s jurisdiction
c) Is about to leave the jurisdiction before the scheduled appearance
d) Is in government service and whose appearance would be detrimental to public service

4. Witness Within Jurisdiction – Rule 3

A commission may be issued to any competent person. The application must satisfy the following:

• Made in good faith

• Prevents unnecessary delay

• Evidence is material and necessary for just adjudication

• Supported by affidavit

• Medical certificate required (in case of illness or infirmity)

5. Person Residing Outside Pakistan – Section 77 & Rule 5

If the witness resides outside Pakistan and their evidence is necessary, the court may issue a commission or a letter of request.

6. Examination and Admissibility – Rules 6, 7, and 8

Evidence recorded under commission cannot be used without the consent of the opposing party unless:

• The witness is outside the court’s jurisdiction, is deceased, sick, infirm, exempt from personal appearance, or a government servant

• The court, in its discretion, dispenses with proof of the above

7. Expenses of Commission – Rule 15

Before issuing a commission, the court may require the party at whose instance the commission is issued to deposit reasonable expenses within a fixed time.

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B. COMMISSION FOR LOCAL INVESTIGATION

1. Cases Where Local Investigation is Required – Rule 9

Commission may be issued to:

a) Elucidate matters in dispute
b) Ascertain market value of property
c) Determine mesne profits or damages
d) Determine annual net profits

2. Procedure – Rule 10

The Commissioner shall:

• Inspect the site

• Record evidence

• Submit a written report (which forms part of the record)

• May be examined in court

• If unsatisfactory, further inquiry may be ordered

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C. COMMISSION TO EXAMINE OR ADJUST ACCOUNTS – Rules 11 & 12

The court may issue a commission to examine or adjust accounts, and provide:

• Relevant case documents

• Clear instructions

• Whether to submit a report or merely transmit proceedings

The commissioner’s report becomes evidence but may be reassessed by the court.

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D. COMMISSION TO MAKE PARTITION – Rules 13 & 14

In cases of a preliminary decree for partition:

• Commissioner divides the property as per decree

• May equalize shares monetarily

• Submits a signed report (or separate reports if multiple commissioners disagree)

• Court may confirm, vary, or set aside the report and pass a final decree accordingly

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POWERS OF THE COMMISSIONER – Rule 16

Unless restricted by court order, the commissioner may:

a) Examine parties and witnesses
b) Call for documents
c) Enter any land or building at reasonable times

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E. COMMISSION TO EXAMINE WITNESS ON REQUEST OF FOREIGN COURT – Rules 19 to 22

1. When Commission May Be Issued – Rule 19

The High Court may issue a commission if:

a) Requested by a foreign civil court
b) The witness resides within the appellate jurisdiction of the High Court

2. Proof of Request – Rule 19(2)

May be established via:

• Consular certificate

• Letter of request through Central Government

• Letter of request produced by a party

3. Application for Commission – Rule 20

May be made by:

• Party to the foreign proceeding

• Law officer of the Provincial Government

4. To Whom Commission May Be Issued – Rule 21

Issued to:

• A court within whose jurisdiction the witness resides

• Any suitable person within the High Court’s jurisdiction

5. Execution and Return – Rule 22

Executed commissions and evidence are returned to the High Court for forwarding to the Central Government.

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CONCLUSION

The issuance of commissions under the CPC serves as a crucial procedural tool that facilitates the fair and efficient dispensation of justice. By enabling courts to obtain evidence and perform necessary inquiries without requiring personal attendance or direct intervention, the law ensures that cases are adjudicated thoroughly and expeditiously. Whether to examine witnesses, inspect properties, evaluate accounts, or execute a partition, commissions uphold the principles of due process and judicial convenience. Courts must exercise this power judiciously, ensuring compliance with the statutory requirements and the overriding objective of securing a just outcome.