Commissions, Abatement, Death & Marriage CPC-IV-Commissions+Abatement Commissions, Abatement, Death & Marriage

Commissions & “ Commissioners” Commissioners - Officers appointed by Court to perform certain specialized tasks; Tasks performed mainly outside of Court; Commissioners generally appointed from:- i) Lawyers, or ii) Others with specialized skills;

Issuance of Commissions-I (O. XXVI) Commissions Issued for various purposes, such as:- Examination of witnesses (R.1); Local investigation (R.9); Scientific investigations (R. 10 A); Ministerial Acts (R. 10 B); Sale of movable properties (R. 10 C); Examining or adjusting accounts (R. 11); Partition of immovable properties (R. 13);

Issuance of Commissions-II Commissions also issued under O. XXXIX R. 7 CPC for inspection of property;

Issuance of Commissions-III U / O. XXXIX the appointed commissioners can:- Enter upon any property in possession of any party to suit; Take any samples; Make observations or experiments for obtaining full information / evidence;

Persons who may be examined on Commission (R. 9) Residing beyond local jurisdiction; Within jurisdiction but at an inconveniently long distance (Or. XVI R. 19) ; About to leave such limits before scheduled examination in Court; Residing outside India; Government servants whose absence from duties would be detrimental to public service ;

Evidence on Commission Commission for recording evidence issued to the concerned Local Court but not High Court; A return may be directed to issuing Court or any other Subordinate Court; Such Commission may also be issued for any other reason, in the interest of justice or for expeditious disposal, to examine any person even within local limits of jurisdiction.

Persons examined on Commission-I (R. 9) Evidence of witness examined on Commission may be read (R. 8):- When witness is beyond local jurisdiction; If dead or unable to attend personally due to sickness or infirmity; Otherwise exempted from personal appearance; In Government service and in Court’s opinion cannot attend without detriment to public service; The Court in its discretion can also take into evidence any such deposition even though reason for taking evidence by commission has ceased;

Persons examined on Commission-II Questions objected to before Commissioner (R. 16):- Commissioner to note down the question, answer, objections & name of the party /pleader objecting; Not to take down answer to a question objected on ground of privilege, but may continue with rest of the examination; Court to later decide question of privilege ; If Court decides there is no question of privilege, the witness may be recalled by Commissioner or Court, and then examined;

Commissioner’s procedure in local investigation (R 10):- After local investigation as necessary, reduce to writing the evidence taken and return to Court with his signed report; Report may be taken into evidence - forms part of the record; Parties may examine commissioner personally with Court’s permission on any matter referred in his report or his manner of investigation ; Anyone may be appointed commissioner subject to any specific State Government Rules (Proviso to R. 9);

Powers of commissioners (R. 16 ):- To examine parties or other witnesses; To call for and examine documents and other relevant things; To enter upon any land or building at any reasonable time; Expenses of commissioner to be paid in Court (R 15);

Abatement (Order XXII) Abatement - Suit becoming redundant on account of any person ceasing to exist as a party; Concept of Abatement applies in respect of both sides; Suit does not abate on a party’s death if right to suit survives (R. 1);

Abatement -II Abatement of Suit If no substitution is effected within 90 days of death; A fresh suit on the same cause of action becomes barred (R. 9{1}) ; Setting Aside Abatement May be applied by legal representative by proving that there was any sufficient cause of preventing substitution within time (R. 9{2}); Pleader’s duty to report party’s death (R. 10A):- Contract presumed;

Substitutions-I A Party dying during Suit pendancy substituted by his Legal heirs; Right to sue survives if after death of any plaintiff or defendant, the surviving parties alone retain interest in the matter (R. 2);

Substitutions-II Any plaintiff or defendant may be substituted by his legal heirs within 90 days of his death (Rs. 4 & 5 ); In default, suit abates in respect of such deceased;

Substitutions-III Court may proceed in absence of a person representing the deceased’s estate if there is no legal representative; It can also appoint Administrator General or any Court Officer or other person, to represent the deceased (R. 4 A); Any subsequent Judgement or decision of Court will bind estate of deceased;

Effect of Marriage-I Suit not abated by marriage of female party (R. 7); Decree against a female defendant would be executable against her alone (1);

Effect of Marriage-II If husband legally liable for debts of wife, decree may be executed against him also; Likewise, decree in favour of wife may be executed by husband with Court’s permission (2);