Order 38 and section 75-78 of the Code of Civil Procedure 1908 rules of appointment of commission

1. Commission
(Order 26 & Section 75-78)
• Section 75 to 78 of CPC deal with the powers
of the court to issue commissions &
• detailed provisions have been made in Order
26 of the Code
• The power of the court to appoint
Commission is discretionary & can be
exercised for doing full and complete justice
between the parties

2. Court may issue commission for
following purposes
(section 75)
i) To examine witnesses
ii) To make local investigation
iii) To adjust accounts
iv) To make partition
v) To hold investigation
vi) To conduct sale
vii) To perform ministerial act

3. To examine witnesses
(s. 76-78 & Order 26 Rules 1-8)
• As a general rule, Evidence of a witness should be
taken in open court & tested by cross-
examination
• Inability to attend court on grounds of sickness or
infirmity or detriment to the public interest may
justify issue of a commission
• The court has discretion to relax the rule of
attendance in court where witness resides
beyond the local jurisdiction of Court or any
other grounds which Court thinks sufficient.

4. Order XXVI
• There are 23 Rules in Order XXVI
• Rule 1: Cases in which Court may issue
commission to examine witness
• Rule 2: Order for Commission
• Rule 3: Where witness resides Court’s
jurisdiction
• Rule 4: Persons for whose examination
commission may issue

5. Order XXVI (26)
• Rule-5: Commission or Request to examine
witness not within Bangladesh
• Rule-6: Court to examine witness pursuant to
commission
• Rule-7: Return of commission with
depositions of witnesses
• Rule-8: When deposition may be read in
evidence

6. Order XXVI(26)
• Rule-9: Commissions to make local investigation
• Rule-10: Procedure of Commissioner
-Report & depositions to be evidence in
suit & Commissioner may be examined
• Rule-11: Commissions to examine or adjust
accounts
• Rule-12: Court may give Commissioner
Instruction, Proceeding & Report to be evidence
• Further Inquiry

7. Order 26
• Rule-13: Commission to make Partition of
Immoveable Property
• Rule-14: Procedure of Commission
• Rule-15: Expenses of Commission Paid to Court
• Rule-16: Powers of Commissioners
• Rule-17: Attendance & Examination of Witnesses
• Rule-18: Parties to Appear before Commissioner

8. Order XXVI
• Commissions issued @ the instance of Foreign Tribunal
• Rule-19: Cases in which HCD may issue Commission to
examine witness
• Rule-20: Application for Commission
• Rule-21: To whom Commission may be issued
• Rule-22: Issue, Execution & Return of Commissions &
Transmission of Evidence to Foreign Court
• Rule-23: Exclusion of Time Taken by Commissioner

9. Rule 1:Commission to Examine
Witnesses
• Any Court may in any suit issue a commission
for the examination on interrogatories or
otherwise
• of any person resident within the local limit
jurisdiction
• Who is exempted under this Code from
attending Court or
• Who is from sickness or infirmity unable to
attend it

10. Rule-2: Order for Commission
• An order for Commission may be made by
- the Court either of its own motion or
- On the application, supported by affidavit, of
any party of the suit or
- Of the witness to be examined

11. Grounds for issuing Commission
(Order 26)
i) If the witness resides within local jurisdiction of
Court & is exempted under the Code from
attending Court
ii) If he resides beyond the local jurisdiction of
Court
iii) If he is about to leave the jurisdiction of Court
iv) If he is government servant and can’t attend
Court without detriment to Public Service
v) If he resides out of Bangladesh & court satisfied
his evidence is necessary

12. Rule:5-Commission outside
Bangladesh
• Where any court to which application is made
• for the issue of Commission for the
examination of a person residing not within
Bangladesh
• is satisfied that evidence of such persons in
necessary,
• the Court may issue such commission or a
letter of request

13. Considerations for Issuing Commission
outside BANGLADESH
• The examination of Witness is material on any of
the issues raised in the Case
• Application for Commission is not delayed one &
it is not filed to delay or detract the Proceeding of
Court
• Applicant must satisfy the Court he has no control
over the witness & personal examination is not
possible
• No oppression on the applicant that he will not
be prevented from putting his case fairly before
the court at the trial

14. R.9: Commission for Local
Investigation
• Court may issue commission for purpose of
- Elucidating any matter in dispute or
- Ascertaining the market value of any property
- Any mesne profits or damages or annual net
profit
Report must be submitted within 3 months
Extension may be given on sufficient reasons

15. Object of Local Investigation
• To obtain evidence which from its very nature
can only be obtained on the spot
• Where Plot number & Khatian number are not
mentioned in Sale Deed executed before CS,
Local Investigation is necessary
• Where the suit land has not been properly
described & remains vague & unidentified,
Local Investigation should be held

16. When Local Investigation should held
• Court can on the application of a party to the
suit appoint a commissioner
- To take an inventory of account books
- To ascertain value of the suit property
- For ascertaining whether a deed relate to suit
land or
- Ascertaining the existence of some structure
on the suit land

17. When Local Investigation should NOT
be allowed
• Where the identity of suit property is not
challenged
• To ascertain skill of woman as a singer & her
way of life
• to report on a matter which must be decided
by court
• To ascertain who is on the possession of the
suit land
• To ascertain the violation of injunction order

18. Value & Admissibility of
Commissioner’s Report
• A commissioner’s report is evidence in the suit
and it is the duty of the court to consider it
before reaching conclusion
• Report and his deposition in Court both can
be considered
• Commissioner’s report is only evidence on the
points to which the commission refers
• Report is a piece of evidence which should be
considered along with other evidence

19. Functions & Duties of Commissioner
• To follow the direction of the Court and has no
authority to go beyond the direction
• Commissioner shall hold the investigation
after giving notice to concerned parties
• A party may examine the commissioner with
the permission of the court.

20. Commission to examine accounts
(Rule 11-12)
• Court may issue a commission for examination
or adjustment of accounts it thinks necessary
• Commissioner will determine the quantum of
the liability not the factum of liability
• Commissioner shall have the power to call
upon any parties to produce books of
accounts

21. Commission to Effect Partition
( Rule 13,14)
• Where a preliminary decree for partition is
passed,
• Court may issue a commission to make
partition according to the rights as declared in
such decree
• S/he shall divide the shares as per Preliminary
order
• Prepare & sign a report with share of each
party and submit it to Court within 3 months

22. Power & Duties of Commissioner in
Partition Suits
• Ascertain the partible properties
• Valuation of partible properties
• Allotment of shares as per preliminary decree
• After submission of report, parties should be
given opportunity to file objection against the
report & examine the commissioner
• After hearing objection, court may vary or set
aside the report on merit of the objection

23. Powers of Commissioner(R.16)
• Examine the parties & any witness and any
other persons whom Commissioner thinks
proper
• Call and examine the documents & other
things relevant to the subject of inquiry
• Enter upon or into any land or building
mentioned in order
• Entitled to record the demeanor of witnes