Commission order 26

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) If the witness resides within local jurisdiction of Court & is exempted under the Code from attending Court If he resides beyond the local jurisdiction of Court If he is about to leave the jurisdiction of Court If he is government servant and can’t attend Court without detriment to Public Service 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