August 29,2018:

The Author, Yash Soni is a student of BTech.LLB (Cyberlaw), University of Petroleum & Energy Studies, Dehradun, Uttarakhand. He is currently interning with LatestLaws.com

Q1. What is the general difference between sections and order in CPC?

Ans. Code of Civil Procedure 1908 is bifurcated into two major parts of the Act. As the first part of the Act consists of all the substantive laws i.e. SECTIONS which are there to deal all the civil problems of the society and the second part consists of Procedural laws i.e. ORDERS which are there govern the procedure of the substantive law of CPC.Q2. What is Commission?

Ans.  Any authority or document of authority is been delegated to any person (known as commissioner) for the act he might have done or to do any certain act or not to do the same. This is provided by the court during the proceeding and is formally known as the “commission”.

Q3. In what circumstances court can issue commission?

Ans.  The Order XXVI of Code of Civil Code defines the entire procedure of the court to delegate Commission in any the Civil Matter. Where under section 75 the commissioner is appointed and court may issue order to the commissioner for the examination of any person, for investigation in local limits, for examination or adjustment of accounts, make a partition, have scientific, technical investigation, deal the sale of property which is in possession of the court to proceed the suit pending and all other acts as deem fit by the court, perform any ministerial act.

Q4. Why the Jurisdictional limit is the main concern?

Ans. This is so, because court have power only to entertain the suit which falls under its jurisdictional limits. The suit is maintainable only if it is falling under following types of Jurisdiction:

  • Subject Matter Jurisdiction
  • Territorial Jurisdiction
  • Pecuniary Jurisdiction
  • Original or Appellate Jurisdiction

If the suit is not falling under the ambit of the above mention types than it is not maintainable and therefore, jurisdictions limit is the main concern.

Q5. Where the commissioner shall report its investigation and evidences?

Ans. According to Order XXVI Rule 4(3) the court at the time of issuing the commission to the commissioner also directs the reporting of the investigation to be returned either to the same court itself from where the commission is been issued or to any other subordinate court. This depends on the discretion and requirement of the court.

Q6. Can court issue the commission on any case which is not mention in section 75 of the CPC?

Ans. The issuing of the commission is exhaustive in nature and is the inherent power of the court given under section 151 of Code of Civil Procedure 1908, therefore court cannot issue on any other case. Only High Court and the Supreme Court have the power to issue the commission on any circumstance/case Bandhua Mukti Morcha versus Union of India AIR 1984 SC 802.

Q7. Can the witness be examined by the commissioner on the question where he shall not be?

Ans. No, the witness cannot be examined on such question, as he shall be given ground of privilege by the court to not been examined on such question. And the commissioner here is restricted to do so this is provided under Order XXVI Rule 16A(1) proviso.

 Q8. Is there any provision to examine the foreign witness?

Ans. Yes, Order XXVI Rule 19 provides the situation and the conditions where the High Court has the power to conduct the examination of the foreign witness.

Q9. What is expense of commission and where is it paid?

Ans. The Court order some minimal amount to be paid before issuing any commission as it deems reasonably fit, commonly known as “expense of commission”. According to the Order XXVI Rule15 the expense of commission is paid to the court by the party in whose favor the commission will be issue.

Q10. In what situations the court can issue the examination of witness by the commissioner?

Ans. According to the Order XXVI Rule 1 of CPC 1908, in any type of suit if the situation occurs where the witness is unable to show his presence in the court due to any valid reason or suffering any medical sickness or any other condition then the court may engage the commissioner and issue the commission. Also, commission for examination of witness shall be done only if it deems necessary to the court to do so.

Q11. How the issue, execution or return of commission to foreign country is conducted?

Ans. The issue, execution or return of the commission to foreign country is conducted according to the Order XXVI Rule 22 which states, The provisions of rules 6, 15 [316][Sub-rule (1) of rule 16A, 17, 18 and 18B] of this Order in so far as they are applicable shall apply to the issue, execution and return of such commissions, and when any such commission has been duly executed it shall be returned, together with the evidence taken under it, to the High Court, which shall forward it to the Central Government, along with the letter of request for transmission to the foreign court.

Q12. Can commissioner investigate or interrogate with the witness in his own way?

Ans. Commissioner can only have an examination or interrogation of the witness by the as directed by the court, the commissioner is restricted to certain powers which are prescribed under Order XXVI Rule 16 of CPC, 1908. Also Rule 16(A) of the same Order Court may provide the privilege to the witness for the question to deny to answer or restriction on certain point of investigation.

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