ORDER XXVI COMMISIONS

Introduction:
The procedure for issuing commissions for the examination of witnesses, conducting local
investigations, examining accounts, and creating partitions in suits is outlined in Order 26 of the
Code of Civil Procedure, 1908 (CPC ). The order delineates the procedures by which a court may
direct an investigation or examination that is conducted outside of its immediate jurisdiction or in
circumstances where direct court proceedings are not feasible. This order guarantees that justice
can be served in cases where witnesses or materials necessary for the case cannot be directly
brought before the court due to physical or logistical challenges.
This assignment explores the specific provisions of Order 26, which pertain to the powers of the
courts and commissioners and encompass a variety of commissions.

1. Commissions for the Examination of Witnesses (Rules 1–8)

Rule 1 - The issuance of commissions for the examination of witnesses
Under Rule 1, a court has the authority to issue a commission for the examination of witnesses
who:
-Are residents of the court's jurisdiction but are unable to attend due to infirmity or exemption.
-Despite being located outside the court's jurisdiction, they are essential to the case.
-Are government employees whose attendance may have a negative impact on public service.
This rule is particularly important in ensuring that the interests of justice are served even when
certain witnesses are physically unable to attend the court proceedings. It allows for flexibility
and accessibility in the judicial procedure.

Rule 2 - Order for Commission

An order for issuing a commission can be made by the court on its own initiative or upon the
request of any party concerned in the suit. The request must be supported by an affidavit or
another form of evidence. This rule ensures that commissions are not issued arbitrarily and that
there is a legitimate need for them.

Rule 3 - Where Witness Resides Within Court’s Jurisdiction

When the witness resides within the court’s jurisdiction, the commission can be issued to anyone
whom the court deems appropriate to effectuate it. This rule emphasizes the court’s discretion in
choosing the appropriate person to execute the commission, depending on the circumstances of
the case.

Rule 4 - Persons for Whose Examination Commission May Issue

This rule provides for the issuance of a commission for the examination of:
- Persons outside the local limits of the court’s jurisdiction.
- Persons who are about to flee the jurisdiction before they can be examined in court.
- Government servants who cannot attend the court without detriment to public service.
This rule facilitates the accumulation of testimony from individuals who cannot attend court,
ensuring that vital evidence is not lost due to geographical or professional constraints.

Rule 5 - Commission for Witnesses Outside Pakistan

When the witness resides outside Pakistan, a court can issue a commission for the examination of
the person, subject to conditions written down in this rule. It aids in cross-border litigation and
ensures that evidence from abroad is accessible.

Rule 6 - Court to Examine Witnesses Pursuant to Commission

The court receiving the commission is required to examine the witness or arrange for their
examination. This is a procedural safeguard to ensure that the commission serves its purpose.

Rule 7 - Return of Commission with Depositions of Witnesses

Once the commission is executed, the evidence collected is returned to the issuing court. This
ensures that the evidence is adequately documented and forms part of the official court record. In
some circumstances, if directed by the issuing court, the commission may be returned to a
subordinate court.

Rule 8 - When Depositions May Be Read in Evidence

Evidence taken under a commission may be read in court only under specific circumstances:
If the person who gave the evidence is no longer available due to death, illness, exemption, or
absence from the court’s jurisdiction.
If the court authorizes the reading of the evidence in its discretion.
This rule ensures that the evidence gathered through a commission can be admissible in court,
even when the witness cannot appear in person.

2. Commissions for Local Investigations (Rules 9-10)

Rule 9 - Commissions for Local Investigations
This rule enables courts to issue commissions to investigate matters that require an on-site
inquiry. This could include:

Ascertaining the market value of property.

Assessing mesne profits or damages.
Clarifying any disputed factual matters in the case.
The court is bound to observe any specific rules established by the Provincial Government
regarding who may execute such commissions.

Rule 10 - Procedure of Commissioner

Upon conducting the local investigation, the commissioner is required to return a report along
with the evidence collected. This report becomes part of the court record. The commissioner may
also be required to depose in court, and any party to the suit may examine the commissioner
regarding the investigation or report.

This rule is essential for ensuring that investigations are adequately documented and can be
scrutinized by the court or the parties involved.

3. Commissions for Examining and Adjusting Accounts (Rules 11-12)

Rule 11 - Commission to Examine or Adjust Accounts
In cases where the examination or adjustment of accounts is necessary, the court may issue a
commission to an appropriate person to carry out the task. This ensures that financial disputes are
resolved in a structured manner, using experts when necessary.
Rule 12 - Court to Give Necessary Instructions to the Commissioner
The court provides the commissioner with the relevant proceedings and explicit instructions on
what is expected in terms of the examination or adjustment of accounts. The commissioner’s
findings, along with the evidence, constitute part of the court’s record.

If the court is dissatisfied with the commissioner’s findings, it can direct further inquiry or
actions, ensuring impartiality and thoroughness in the process.

4. Commissions for Partition of Immovable Property (Rules 13-14)

Rule 13 - Commission to Make Partition of Immovable Property
Where a preliminary decree for partition has been passed, the court may issue a commission for
the actual division of the property. The commissioner is responsible for dividing the property
according to the rights specified in the decree.

Rule 14 - Procedure of the Commissioner for Partition

The commissioner, after conducting necessary inquiries, divides the property into shares and
may even decide on compensation to equalize the value of the shares. The commissioner’s
report, detailing the partition, is then submitted to the court, which may confirm, modify, or
reject the report after hearing objections from the parties.

This rule ensures that the partition process is conducted in an orderly and transparent manner.

5. General Provisions (Rules 15-18)

Rule 15 - Expenses of Commission to be Paid into Court
Before issuing a commission, the court may require a party to deposit an amount for the
expenses of the commission. This ensures that the costs involved in executing the commission
are compensated.

Rule 16 - Powers of Commissioners

The commissioner has significant powers, including:
-Examining witnesses and documents.
-Entering lands or buildings pertinent to the inquiry.
This rule ensures that the commissioner can effectively compile all necessary evidence to assist
the court.

Rule 17 - Attendance and Examination of Witnesses Before Commissioner

The provisions of the CPC related to witness attendance, examination, and penalties apply to
those appearing before a commissioner. This ensures that witnesses are compelled to give
testimony as required by the commission.

Rule 18 - Parties to Appear Before Commissioner

The participants to the suit are required to appear before the commissioner, either in person or
through their representatives. If they fail to appear, the commissioner may proceed without them.
This ensures that the process is not delayed unnecessarily.

6. Commissions Issued at the Instance of Foreign Tribunals (Rules 19-22)

Rule 19 - Cases in Which High Court May Issue Commission to Examine Witnesses
The High Court may issue a commission for the examination of witnesses at the request of a
foreign court, provided the proceeding is civil in nature, and the witness is within the jurisdiction
of the High Court. This enables foreign courts to obtain crucial evidence from witnesses in
Pakistan.

Rule 20 - Application for Commission

The commission can be issued upon application by a party to the foreign proceeding or by a law
officer acting on behalf of the provincial government. This facilitates international cooperation in
legal matters.

Rule 21 - To Whom Commissions May Be Issued

The High Court may issue the commission to any court within its jurisdiction or to a person it
considers suitable. This flexibility ensures that the commission is executed effectively.
Rule 22 - Issue, Execution, and Return of Commissions
The rules enumerated in Order 26, including those on execution and return of commissions, also
apply to foreign commissions. Once the commission is executed, the evidence is sent to the High
Court, which forwards it to the relevant foreign court.

Conclusion
Order 26 of the Code of Civil Procedure, 1908 provides a comprehensive framework for the
issuance and execution of commissions, allowing courts to address situations where direct
attendance of witnesses or other necessary investigations are not feasible. It encompasses the
examination of witnesses, local investigations, adjustment of accounts, and partition of property,
offering flexibility while maintaining judicial control. Additionally, it provides mechanisms for
international cooperation in legal proceedings. The order ensures that evidence is gathered
efficiently, thereby fostering fairness and transparency in civil litigation.