In what manner and under which circumstances commissioner can be issued? Explain the powers of Commissioner.

It is a well-established rule of jurisprudence that all judicial proceedings must be conducted in the presence of parties and before the court. The statement of witnesses must be made before the court and should be written down. But sometimes it becomes very necessary to visit the disputed place to serve justice to the parties. Under such circumstances, work is performed by means of the commissioner of the court. 

Provision has been made under sections 75 to 78 and order 26 of Civil procedure Code 1908. 

Under section 75 

Subject to such conditions and limitations as may be prescribed, the Court may issue a commission-

(a) To examine any person;
(b) To make a local investigation;
(c) To examine or adjust accounts, or
(d) To make a partition.
(e) For sale of property which is of decaying nature under the custody of the court. 
(f) To perform the ministerial act (. An act performed without the independent exercise of discretion.)

Section 76.Commission to another Court - 

(1) A commission for the examination of any person may be issued to any Court (not being a High Court) situate in a State other than the State in which the Court of the issue is situated and having jurisdiction in the place in which the person to be examined resides.
(2) Every Court receiving a commission for the examination of any person under sub-section (1) shall examine him or cause him to be examined pursuant thereto, and the commission, when it has been duly executed, shall be returned together with the evidence taken under it to the Court from which it was issued unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order.

Section 77 Letter of request - 

In lieu of issuing a commission, the Court may issue a letter of request to examine a witness residing at any place not within India.

(a) Courts situate in any part of India to which the provisions of this Code do not extend; or
(b) Courts established or continued by the authority of the Central Government outside India; or
(c) Courts of any State or country outside India.

Section 78 Commissions issued by foreign Courts.

Subject to such conditions and limitations as may be prescribed the provisions as to the execution and return of commissions for the examination of witnesses shall apply to commissions issued by or as the instance of-
(a) Courts situate in any part of India to which the provisions of this Code do not extend, or
(b) Courts established or continued by the authority of the Central Government outside India, or
(c) Courts of any State or country outside India.

(1) To Examination of witness – Rule 1 to 8 

The witness has to give his statement in court but due to some circumstance or inability of the witness, he/she cannot attend the Court. The Court has the discretion to relax the rule of attendance in court where the person sought to be examined as a witness resides within the local limits of the jurisdiction of the court. 
Example – An old man aged 80 years can’t walk properly, hence his lawyer can give an application in the court and the court can accept it. 
But if the witness is not appearing in the Court because he has some work is not a valid ground. 

(2) For Local investigation Rule 9 and 10 

under order 26 rule 9 the court can issue a commission for local investigation. According to Rule 9, the Court can issue a commission, if it considers proper at any stage of the suit, for the following purposes: 
(a) For an explanation in any disputed issue; 
(b) For determination of the market value of any property 
(c) For determination of mesne profits, damages and annual profits
 
under rule 10, the commissioner has to submit its report. The court can consider such a report on the basis of its merits and demerits. 
If the court is not satisfied with the report of the commissioner, then it can order for further investigation. 

(3) For Scientific Investigation 

The provision has been made for the issue if commission for scientific investigation under Order 26, Rule 10a. According to this, when the court thinks that any scientific issue is involved in the case before it and proper solution of that issue is not forthcoming, then the court, in the interest of justice, by investigating the case, can issue a commission for submission of its report. 

(4) To adjust accounts: Rule 11 and 12

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 fit directing him to make such examination or adjustment. 

(5) To make partition Rule 13 and 14

when a preliminary decree for partition of immovable property has been passed, the court may issue a commission to such person as it thinks fit to make a partition or separation according to the rights declared in such decree. 

(6) To Sell Property Rule 10 C

Where, in any suit, it becomes necessary to sell any movable property which is in the custody of the court pending the determination of the suit and which cannot be conveniently preserved, the court may, if, for reasons to be recorded, of opinion that it is necessary or expedient in the interest of justice to do so. Issue a commission to such person and instruct him to make a sales report. 

(7) Expenses Rule 15 

If the court thinks fit the court may order the party to deposit necessary expenses within the fixed period. 

(8) Power: Rules 16-18 

The commissioner may 
(i) Summon and procure the attendance of parties and their witnesses and examine them
(ii) Call for and examine documents 
(iii) Enter into any land or building mentioned in the order
(iv) Proceed ex parte if the parties do not appear before him in spite of the order of the court 
Rule 18-B empowers the court to fix the date for the return of a commission 

(9) Commissions for foreign tribunals: Rule 19-22 

If High Court is satisfied that a foreign court wishes to obtain the evidence of a witness residing within its appellate jurisdiction in a proceeding of a civil nature; it may issue a commission for the examination of such witness. 

The report of the commissioner would furnish prima facie evidence of the facts and data collected by the commissioner.