page 245, CHAPTER XXV. OF COMMISSIONS. A.-Commissions to examine Witnesses. M. 383. (175) Any Court may in any suit issue a commission for the examination on in mine witness. Cases in which Court may issue commission to exa- terrogatories or otherwise of persons resident within the local limits of its jurisdiction, who are exempted under this Code from attending the Court, or who are from sickness or infirmity unable to attend it. * (t) Order for commission may be made either on applica tion of parties or by Court + Ss. 194 &c., of its own accord. + See notes (e, f) p. 27. suit or of the witness When witness resides ton. issued to any person When witness resides M. 384. Such order may be made by the Court either of its own motion, or on the application, supported by affidavit, of any party to the to be examined. commission for the examination of a person who resides within the local limits of the jurisdiction of the Court issuing the same, may be whom the Court thinks fit to execute M. 386. (72, 175, 176) Any Court may in any suit issue a commission for the examination of(a) any person resident beyond the local limits of its jurisdiction; (b) persons who are about to leave such limits before the date on which they are required to be examined in Court; and *(v) (c) civil and military officers of Government who cannot, in the opinion of the Judge, attend the Court without detriment to the public service. Such commission shall ordinarily be issued to any Court, not being a High Court,‡ within the local limits of whose jurisdiction such person resides, and which can most conveniently execute the same: Provided that if he resides beyond the local limits of the jurisdiction of the Court issuing the commission and within the towns of Calcutta, Madras, Bombay, or Rangoon, the commission shall be Small Causes within whose jurisdic When witness is within Provided also that, under special circumstances, the commission may be directed to any person whom the Court issuing the commission thinks fit to appoint. The receiving Court must examine pursuant to the commission, and return it after due execution, with evidence taken under it according to directions received. Commission and return thereto shall form part of record, but not be read as evidence without consent of party against whom it is offered, unless (i) the witness is beyond Court's jurisdiction, (ii) or dead, (iii) or unable to be personally examined from sickness or infirmity, (iv) or exempted from personal appearance in Court, or (r) the Court in its discretion so authorize, notwithstanding proof that the cause for taking it has ceased to exist. These provisions apply to (i) Courts situate beyond British India established by Her Majesty or the G. G. in C., or (ii) situate in any part of the British Empire other than British India, or (iii) Courts of any foreign country for the time being in alliance with Her Majesty. The Calcutta High Court, in their Circular Orders, pp. 46, &c., give the following instructions about commissions : Such commissions ought not generally to be directed to the District Courts, the terms of the law requiring that they be issued ordinarily to the Court within whose jurisdiction the witness may reside, "and which can most conveniently execute the same." This language clearly points to the Courts of first instance with narrow local limits, so that on the one hand the labour of examination may be divided and may not accumulate on the District Court, and on the other that the witness may attend the nearest Court. The commission should therefore, in ordinary cases, and especially those issuing from munsifs' Courts, be addressed to the munsif within whose jurisdiction the witness resides, by whom, for the above reasons, the evidence can usually be taken more conveniently than by the Subordinate Judge. (C. O., 1872, No. 7, February 20th.) The privilege of obtaining commissions by Courts in respect of which no fee is at present levied is largely used, and the duty of acting under such commissions is often a serious addition to the duty of the various Judges. At the same time, the business of the Civil Courts has almost universally so increased that they ought not to be called upon to perform this additional duty; and notoriously, from their frequent inability to perform it, great delay and inconvenience arise. The High Court is of opinion that this state of things should be held to constitute "special circumstances" under which it is competent to the Civil Courts to issue commissions to other persons. The High Court considers further that the proper persons to execute such commissions will usually be the pleaders of the District Court, or those pleaders of the munsif's Court who have passed examinations under Act XX of 1865. The Court therefore directs that When such commission is applied for, the Court issuing the same shall make choice of some pleader practising in the Court within whose jurisdiction the witness resides, and issue the commission accordingly. For the remuneration of the commission so appointed, the Court shall require the party applying to pay in a fee of Rs. 4 for each witness to be examined if the Court be that of a munsif, or of Rs. 10 for each witness in the case of any higher Courts; and the commission shall not issue until such fee be paid. The commission, together with the amount of the fee, shall be sent to the Court in which the commissioner is a practising pleader, and the commission shall be immediately delivered to him (unless he refuse to act). If the witness or witnesses appear before him and are examined, so that he can make a return within the time limited, on his returning the commission duly executed the fee shall be paid over to him, otherwise it shall be sent back, together with the commission, to the Court which issued it. Every District Judge shall furnish, on application, to the Judge of any neighbouring district, a list of all pleaders attached to the several Courts in his district who are qualified and willing to execute such commissions under these rules. The foregoing rules do not apply to cases coming under 386. The High Court is pleased to prescribe for general adoption in all the Civil Courts subject to its control, the accompanying form* for commissions issuing for the examina tion of witnesses. The North-West Provinces' High Court, in a Circular Letter No. 3 of August 1872, noticed that the munsarim of a Court should not be appointed a commissioner. The Court observes, firstly, that the provisions of 396 should only be resorted to in cases which present special features, rendering an enquiry on the spot essential to the proper determination of the matters in issue, it being in the highest degree desirable that cases should be determined on evidence adduced in the presence of the Court by whom the issues fall to be decided; and, secondly, that the chief ministerial officer of the Court is not ordinarily the fittest person to intrust with such a duty. * Form not printed, but will be found on page 49, U. C. O. C. H. C. *See p. 65. The Court on issuing any commission under this section shall direct whether the commission shall be returned to itself or to any subordinate Court. M. 387. (177, 178) When witness is not within British India.' When any Court, to which application is made for the issue of a commission for the examination of a person residing at any place not within British India, is satisfied that his evidence is necessary, the Court may issue such commission. 388. Every Court Court to examine wit ness pursuant to commis sion. receiving a commission for the examination of any person shall examine him pursuant thereto. M. 389 (179) After the commission has been duly executed, it shall be returned, together Commission when executed to be returned to with the evidence taken under it, to Court issuing it with de- the Court out of which it issued, positions of witnesses. unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order; and the commission and the return thereto, and the evidence taken under it, shall (subject to the provisions of the next following section) form part of the record of the suit. M.390. (179) Evidence taken under a commission shall not be read as evidence in the suit without the consent of the party against whom the same is offered, unless (a) the person who gave the evidence is beyond the jurisdiction of the Court, or dead, or unable from sickness or infirmity to attend to be personally examined, or exempted from personal appearance in Court, or When depositions may be read in evidence. of (b) the Court in its discretion dispenses with the proof any of the circumstances mentioned in the last preceding clause, and authorizes the evidence of any person being read as evidence in the suit, notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same. M. 391. The provisions hereinbefore contained as to the execution and return of commissions shall apply to commissions issued by Provisions as to execu tion and return of commissions to apply to commissions issued by Foreign Courts. (a) Courts situate beyond the limits of British India and established by the authority of Her Majesty or of the GovernorGeneral in Council, or (b) Courts situate in any part of the British Empire other than British India, or (c) Courts of any foreign country for the time being in alliance with Her Majesty. NOTES TO SECTIONS CCCLXXXIII, CCCLXXXIV AND CCCLXXXVI. 245 The Judicial Commissioner, Oudh, directs that the deposition of witnesses should ordinarily he recorded in the same manner as ordinary depositions, unless otherwise directed in the commission. When taken, it should be placed in an envelope, and sealed in the presence of the recording officer, after which the envelope and its enclosures should be forwarded at once to the Court out of which the commission issued, unless otherwise directed. C. O. I., 47. Lastly, special attention is directed to the Government of India Resolution, Home Department, 10-1101 of July 1875, which directs that the practice of taking fees for commissions by officers who are paid by Government for all they do in their official capacity is improper, and must be discontinued. The Bombay High Court direct that whenever it becomes necessary, in the course of a suit, that a commissioner or Civil Court amin should be appointed to make a local inquiry, the judicial officer who makes the order for such inquiry should write the order with his own hand, and shall specify therein : (a) the precise matter of the enquiry, and (b) the reason why the evidence bearing on that matter could not reasonably have been taken in the usual way at the trial in Court; and the commissioner's duties should be strictly limited by his parwana to such matters as taking accounts and depositions of witnesses, inspecting the land or other subject of dispute, and reporting to the Court. either in the shape of a map, or in writing, or both, the existing physical features of the subject inspected, its boundaries and situation relative to other objects, and so on, as the case may be. The Court has no power to depute to him the determination of any issue between the parties. The functions of the commissioner or amin are limited to procuring evidence and information for the purposes of the trial, and this evidence, including the maps, reports, &c., of the amin, must be adduced in open Court before the parties, and be subjected to objections and testing according to the foregoing rules, like all other evidence. (t) But not for that of an infant of tender years. Re 8. B. Dasi, Hyde's Rep., II. 152. It has been issued even when cause was But its issue without notice to the opposite A party who has not joined in a commis- ed under it. Gregory v. Dooley Chund Kandary, S. W. R., XIV. 17. The Calcutta High Court, in the case Doucett v. Wise, In. Jur., N. S., I. 357, | hold that a commission will not be granted at the instance of either party to enable him to give evidence for himself, except under very strong circumstances indeed, such as when he is seriously ill. In examination under a commission, the evidence should be taken as prescribed in the Code. Illegal questions and answers may be objected to and struck out at the trial; but a party cannot object to the answers to illegal questions put by his own side. Hutchinson v. Bernard, Moo. and Rob., II., 1. Broughton, in his Civil Procedure Codes, R., II. 73. B.-Commissions for Local Investigations. A commission may be issued, whenever it is deemed requisite or proper, to elucidate any matter in dispute, or ascertain market value of any property, or amonnt of mesne profits, or damage, or annual nett profits, and such matter as cannot be conveniently elucidated by Judge in person. The commission to be issued to any person deemed proper, unless local Government have made any rules as to who shall be appointed. After local inspection as far as necessary, and reducing to writing evidence taken, the commissioner shall return evidence, with written report subscribed by him. Reports and depositions B.-Commissions for Local Investigations. M. 392. (180) In any suit or proceeding in which the local investigations. Commission to make to be requisite or proper for the purpose of elucidating any matter (x) in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual nett profits, and the same cannot be conveniently conducted by the Judge in person, the Court may issue a commission to such person as it thinks fit, directing him to make such investigation and to report thereon to the Court: Provided that when the Local Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.(y) M. 393. (180) The commissioner, after such local in spection (z) as he deems necessary, and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing, subscribed with his name, to the Court. Procedure of commis sioner. Report and depositions to be evidence in suit. The report of the commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit, and shall form part of the record; but the Court, or any of the parties to the suit may, with the permission of the Court, examine the commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to the manner in which he has made the may be Commissoner examined in person. See p. 249. investigation.*(a) C.-Commissions to examine Accounts. Commission to examine or adjust accounts. M. 394. (181) In any suit in which an examination or adjustment of accounts is necessary, the Court may issue a commission to such person as it thinks make such examination or adjustment. The Court shall furnish the Commissioner with such part of the proceedings and such detailed instructions as appear necessary, fit, directing him to tions. and the instructions shall distinctly specify whether the commissioner is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his examination. |