CPC Alternate Assignment: MD Najesh Afrose 16010126437 4 Year BBA LLB (Hons.) Div-E

CPC Alternate Assignment
MD Najesh Afrose
16010126437
4th year BBA LLB (Hons.)
Div-E
Q 1. Analyse the power of the courts to issue commission in light of the legal
provisions and case laws.
A. The concept of ‘Commission’ is an important subject matter in the branch of Civil
Procedure Code, 1908 (hereinafter “the Code”). Commission is an impartial person who is
appointed by the Court and act as an agent of the Judge. The power of the Court to issued
Commission by the Court for doing full and complete Justice between the parties. Sections 75 to
78 of the Code deals with the powers of the court to issue commissions and detailed provisions
has been made in Order 26 of the Code. The power of the court to issue commission is
discretionary and can be exercised either on application by a party to the suit or suo moto.
Section 75 provides for the court to issue commissions for the following purposes:
(a) To examine witnesses (sections 76-78; Rules 1-8): The court may issue a
commission for the examination on interrogatories or otherwise of any person in the
following circumstances:
i. Commission to another court (not being a high court): If the person to be examined
as a witness reside within the local limits of the court’s jurisdiction (Section 76);
ii. Letter of Request: If the person resides beyond the local limits of the Jurisdiction of
the courts, that is, outside India (Section 77), or
iii. Commission Issued by Foreign Courts: If he is about to leave the Jurisdiction of the
court (Section 78).
As a general rule, the evidence of a witness in an action, whether he is a party to the suit or
not, should not be taken in an open court and tested by cross examination. In ability 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
the where the person sought to be examined as a witness resides beyond the local limits of
the jurisdiction of the court or on any other ground which the court thinks sufficient.
In Vinayak trading Co. v. Sham Sunder & Co. 1 it was held that if a party or a witness
apprehends danger to his life if he appears before the court, he can be examined on
commission.
Further, in Satish Chandra v. Kumar Satish2 it was held that Where a party accused of
fraud seeks to examine himself on commission, the court may refuse the prayer since the
opportunity of noting his demeanour would be lost.
(b) To make local investigation (Rules 9 & 10):
i. Commissions to make local investigation (Rule 9): In any suit in which the court
deems a local investigation to be requisite or proper for the purpose of elucidating any
matter in dispute, or of ascertaining the market value of any property, or the amount of any
1 A.I.R. 1987 AP 236

2 A.I.R. 1923 PC 73
mesne profits or damages or annual net profits, the court may issue a commission to such
person as it thinks fit directing him to make such investigation and to report thereon to the
court.
ii. Procedure of the commissioner (Rule 10): This lays down the following to be
followed by the commissioner:
1. The commissioner shall return the evidence he gathered reduced in writing
to the court.
2. Report and depositions by the commissioner is to be treated as evidence in
suit.
3. If dissatisfied the proceedings, the court may examine the commissioner in
person.
In Padam Sen v. State of U.P.3 in this case it was held that the object of local
investigation evidence which can be taken in court but to obtain evidence the which from
it’s very peculiar nature can be had only on the spot.
(c) To adjust accounts (Rules 11 & 12): If the court deems fit, it may issue commission to such
person where there is a need for examination and adjustment of accounts (Rule 11). The
court is to give necessary instructions to the commission and the report and proceedings of
the commission shall be treated as evidence (Rule 12).
(d) To make partition (Rules 13 & 14): Under these rules the court may empower a
commission to make partition of immovable property (Rule 13). Rule 14 describes the
procedure for the commissioner.
(e) To perform ministerial act (Rule 10-B): When the proceedings in any suit lead to the
requirement of a ministerial act which the court feels cannot be performed appropriately
before the court, it may form a commission for executing the same. However, this cannot
include judicial functions as it was held in Jagatbhai v. Vikrambhai4.
Limitations: Apart from the inability to perform judicial functions as already mentioned, this
power has a few other limitations like a commission cannot be formed to scrutinize votes in an
election.5 Further, A civil court, hence cannot appoint a commission to seize account books in
possession of any party on the ground that an opposite party has an apprehension that they would
be tempered with as it is not the business of the court to collect evidence for a party or to protect
the rival party from the evil consequence.6
3 A.I.R. 1961 SC 218

4 A.I.R. 1985 Guj 34
5 Habibbhai v. Maganbhai: 1995 1 Guj LR 871
6 Supra 3.
Q 2. Discuss the provisions regarding the withdrawal and adjustment of the
suit as provided under the Civil Procedure Code with help of illustrations and
case laws.
A. Order 23 deals with withdrawal and adjustment of suit. Provisions dealing with withdrawal
are provided in rules 1, 2 and 4 while for compromise the provisions can be found in rules 3 and
3B.
Withdrawal: As provided by Order 23, Rule 1(1) at any time after the institution of a suit
the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon a part of his
claim. Such withdrawal may be with the leave of the court (qualified) or without the leave of the
court (absolute). The plaintiff who has already moved an application of this nature cannot
withdraw the application for withdrawal of the suit, even before the orders are passed on the
withdrawal application, that is, that the suit is, as far as the plaintiff is concerned, struck off from
the file. This is based on the assumption that there is withdrawal in fact as well as in law.
However, it may be executed in cases where any vested right does not come into existence before such
prayer is made.7 Moreover, when such plaintiff withdraws the suit without the leave of the court, he
will be precluded to institute a fresh suit in respect of the same cause of action. At the same time, the
defendant may be awarded with all the costs by the Court payable by the plaintiff. 8 In case where there
are two or more plaintiffs, the suit or any part of the claim cannot be withdrawn without the consent of
all plaintiffs unless any one of them abandons only his interest in the claim. There must be certain
grounds which shall be satisfied by the court such as a formal defect which may fail the suit. There
must also be existence of those sufficient grounds for allowing a plaintiff to institute a fresh suit with
other terms and conditions as the court may think fit. The term formal defect means some defect of
form or procedure though not affecting the merits of the case. These can be ranging from anything
between misjoinder of parties or cause of action, a mistake in not seeking proper relief, improper
evaluation of the subject matter of the suit, defect in prayer or absence of jurisdiction, etc. 9
The provision also has effect on other proceedings such as appeals, revisions, writ petitions, execution
proceedings and representative suits. The applicant has a right to withdraw his appeal unconditionally
if he makes such an application, the court must grant it, subject to costs, and has no power to say that it
will not permit the withdrawal and will go on with the hearing of the appeal. 10 While for revision the
7 R. Ramamurthy v. V. Rajeswara : AIR 1973 SC 643

8 Kinkan Trading Company v. Suresh Govind : AIR 1986 SC 1009
9 S. H. Kelkar v. Mandakini Bai : AIR 1970 Mys 163
10 Bijayananda Patnaik v. Satrughna Sabu : AIR 1963 SC 1566
provisions of withdrawal were applied in certain instances and sometimes where not made applicable
thereto.
Compromise: In the case of Hiralal Moolchand v. Barot Raman Lal 11 a general principle laid
down that all matter that can be decided before a court of law in a suit can also be settled by means of
a compromise. Where the court is satisfied that a suit has been adjusted wholly or in part by any lawful
agreement in writing and signed by the parties or where the defendant satisfies the plaintiff in respect
of the whole or any part of subject matter of the suit, the court shall record such agreement,
compromise or satisfaction and pass a compromise decree accordingly.
There are few conditions which must be satisfied for a valid compromise between the parties to the
suit:
(a) there must be a lawful agreement of compromise;
(b) which must be reduced in writing, signed by both parties;
(c) the same shall be recorded by court.
In case of a suit, it can be recorded by the trial court where as in case of an appeal or revision,
such recording of a compromise decree is to be done at the appellate court or the revisional court
thereof. In case of an execution proceeding, such recording must be made by the executing court itself.
Lawfulness of the agreement of compromise is the satisfaction of the court which must be
realised so that a compromise of the same can be recorded upon and thus is instrumental for Rule 3
proceedings. It is upon the court to ensure such decree’s enforcement against all the parties to the suit.
The court has to consider all the evidences and affidavits with respect to such compromise agreement
so that the court can determine lawfulness of the same and in case, satisfaction of the court is not
meted out, the court may even recall its decree of compromise. Explanation to Rule 3 of the foregoing
provision has also provided that an agreement or compromise which is void or voidable under the
Indian Contract Act, 1872, shall not be deemed to be lawful within the meaning of Rule 3. 12
Special provisions:
(a) Compromise by a minor: no next friend or guardian of minor shall, without the leave of the
court, enter into any agreement or compromise on behalf of the minor with reference to the
suit, unless such leave is expressly recorded in the proceeding. 13
(b) Representative suit: no agreement or compromise in a representative suit can be entered into
without the leave of the court and before granting such leave, the court should give notice to
the persons interested.14
While not being an actual decree, the process of execution of a compromise decree is
analogous to the execution of the actual one. But at the same time, if the decree gives effect to an
11 AIR 1993 SC 1449

12 Banwari Lal v. Chando Devi : (1993) 1 SCC 581
13 Order XXXII Rule 6 and 7
14 Order XXIII Rule 3-B
unpleasant compromise or is passed by the court of wrong jurisdiction, it shall be null and its validity
can be set up even in the execution. 15 Henceforth, appeal lies only against the decree and as it has
already been mentioned, compromise decree is not an actual decree, so no appeal lies against it
15 Nai Bahu v. Lala Ramnarayan : AIR 1978 SCC22

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1 A.I.R. 1987 AP 236

3 A.I.R. 1961 SC 218

7 R. Ramamurthy v. V. Rajeswara : AIR 1973 SC 643

11 AIR 1993 SC 1449

15 Nai Bahu v. Lala Ramnarayan : AIR 1978 SCC22

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