77. General. The general law as to Commissions and Letters of Request is contained in Sections 75 to 78 and Order XXVI of the Code of Civil Procedure, and the forms to be used are Nos. 7 to 8 of Appendix H of Schedule 1 of the said Code.
78. Expenses of Commission. Applications for the issue of commissions should be made as early as possible. Notice of any such application should be given to the other side. If, the application is granted, the Court should fix a sum for the expenses of the Commission, which should ordinarily, provide a reasonable fee to the Commissioner. If, at any time the sum so fixed is found to be insufficient, it may, for special reason, be increased by the Court. When the Commission is executed to the satisfaction of the Court, the full sum fixed should be paid to the Commissioner; but where the Commission is not executed at all or not fully or satisfactorily executed or the work done turns out to be less than was expected, it will be in the discretion of the Court to direct a less amount to be paid, or to make any other order in the matter which it thinks just and proper in the circumstances.
79. Issue of Commission to Revenue officials. The following directions relate to the issue of commissions to Revenue officials: -
I. No Revenue Court, of grade lower than the Court of the Collector, shall issue a commission to a Revenue Official to make a local investigation or to examine accounts or to make a partition of immovable property, not paying revenue to Government, except with the previously obtained sanction of the Deputy Commissioner.
II. When a commission is issued under the preceding rule to any Revenue official below the rank of Tehsildar, moderate fees, may be allowed by the Court issuing the commission, if such Court is satisfied with the manner which the commission has been executed, and considers the services rendered sufficiently onerous to deserve remuneration;
Provided that in the case of commission issued by a Court subordinate to that of the Collector, no fees shall be allowed except with the approval of the Deputy Commissioner, and of such amount as he considers appropriate.
80. Issue of Commissions for local investigation, etc. Whenever it becomes necessary in the course of a suit to appoint a Commissioner to make a local enquiry or to examine accounts (see Order XXVI), the Revenue Officer who makes the order for such appointment should write the order with his own hand, and specify therein: -
(a) the precise matter of the enquiry;
(b) the reason why the evidence bearing on that matter could not reasonably be taken in the usual way at the trial in Court.
81. Duties of Commissioner so appointed. The Commissioner’s duties should be strictly limited by the order to such matters as taking accounts and depositions of witnesses, inspecting the land or other subject of dispute and reporting to the Court, either by means of a map or plan, or in writing, or both, the existing physical features of the subject inspected, its boundaries and situation, relative to other subjects, and so on, as the case may be. The functions of the Commissioner are thus limited to procuring evidence and information for the purpose of the trial; and this evidence, including the maps, reports, and record of evidence made by the Commissioner must be adduced in open Court before the parties and placed on record like all other evidence. The Court has no power to depute to the Commissioner the final determination of any issue between the parties.
82. Selection of Commissioners. Great care should be exercised by the Courts in selecting persons for appointment as Commissioners for the purpose of making local inquiries; and Deputy Commissioner should exercise strict supervision over the action of Subordinate Courts in this respect. The habitual employment of the same persons should not be encouraged. The issue of commissions to petition-writers and persons who hang about the Courts should not be permitted.
83. The same. Courts Readers or other ministerial officers should never be appointed to make local investigation, such as finding out the market value of the property, etc. Such Commissions should be issued wherever possible to retired Revenue Officers or professional men, such as engineers, contractors, auctioneers and accountants.
Commissioners to examine accounts should be selected from men competent in the particular form of accounts. It is absolutely futile to issue commissions in a particular form of account to a person who is unable even to read the script in which those accounts are written.
85. Letters of Requests to a foreign country. Letters of Request for execution in a foreign country should invariably be sent through the State Government. They should be accompanied by a complete list of questions to be put to the witness. Translations of the Letter of Request and of the interrogatories and cross-interrogatories and of any other document about which the witness is to be examined, should in all cases be furnished by the party at whose instance the letter of Request is issued in the language of the country in which the commission is to be executed and shall be transmitted with the Letter of Request. In cases where both parties are to be represented at the examination, the letter of Request might further ask that the agents of the parties be permitted to ask such further questions in examination and cross-examination as they may be advised.
86. The same. As the foreign authorities responsible for executing Letters of Request, etc., are entitled to the payment of any out-pocket expenses actually incurred in obtaining the evidence for Indian Courts, the Courts should therefore satisfy themselves before sending any document for execution that in case of such a demand being made the money will be forthcoming.