Inability to attend the Court on grounds of sickness or infirmity or detriment to the public interest may justify issue of a commission. The Court has a discretion to relax the rule of attendance in Court where the person sought to be examined ac a witness resides beyond the local limits of the jurisdiction of the Court or on any other ground which the Court thinks sufficient, e.g., a witness, who being a Pardhanashin lady can be examined on commission.
The power, however, should not be exercised on the ground that the witness is a man of rank or having social status and it will be derogatory for him to appear in person in the Court. Sections 75 to 78 deal with the powers of the Court to issue commissions and the detailed provisions are mentioned in Order 26 of the Code.
Purposes of Commissions:
Section 75 enacts that the Court may issue a commission for any of the following purposes:
(i) To examine witnesses;
(ii) To make local investigation;
(iii) To examine accounts;
(iv) To make partition;
(v) To hold scientific investigation;
(vi) To conduct sale or;
(vii) To perform a ministerial act.
Powers of the Commissioner:
The powers of the Commissioner are classified under Order 26, Rules 16, 17 and 18.
The Commissioner may-
1. Summon and procure the attendance of parties and their witnesses and examine them;
2. Call for the examine documents and other relevant things to the subject of inquiry;
3. At any reasonable time enter upon or into any land or building mentioned in the order;
4. Proceed ex-parte if the parties do not appear before him inspite of the order of the Court.
Duties of the Commissioner:
1. It is the duty of the Commissioner to fix the date for execution of the commission and to inform both the parties.
2. It is the duty of the Commissioner to execute the commission with reference to subject matter referred to the commission.
3. It is the duty of the Commissioner to file the report within the time stipulated by the Court.
4. It is the duty of the Commissioner to appear before Court when called for with reference to the subject matter of the commission executed by him.
Rights of the Commissioner:
It is the right of the Commissioner claim for fee fixed by the Court.
It is the right of the Commissioner to seek enhancement of fee fixed by the Court or the commission.
3. It is his right to fix the date of commission keeping in view the time fixed by the Court for filing the report in Court.