Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it.
An order for the issue of a commission for the examination of a witness may be made by the Court either of its own motion or on the application, supported by affidavit or otherwise, of any party to the suit or of the witness to be examined.
A commission for the examination of a person who resides within the local limits of the jurisdiction of the Court issuing the same may be issued to any person whom the Court thinks fit to execute it.
(1) Any Court may in any suit issue a commission for the examination of-
(a) any person resident beyond the local limits of its jurisdiction;
(b) any person who is about to leave such limits before the date on which he is required to be examined in Court; and
(c) any person in the service of the 1[Republic] who cannot, in the opinion of the Court, attend without detriment to the public service.
(2) Such commission may be issued to any Court, not being the High Court Division, within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the Court issuing the commission may appoint.
(3) The Court on issuing any commission under this rule shall direct whether the commission shall be returned to itself or to any subordinate Court.
Where any Court to which application is made for the issue of commission for the examination of a person residing at any place not within Bangladesh is satisfied that the evidence of such person is necessary, the Court may issue such commission or a letter of request.
Every Court receiving a commission for the examination of any person shall examine him or cause him to be examined pursuant thereto.
Where a commission has been duly executed, it shall be returned, together with the evidence taken under it, to the Court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order; and thecommission and the return thereto and the evidence taken under it shall (subject to the provisions of the next following rule) form part of the record of the suit.
Evidence taken under a commission shall not be read as evidence in the suit without the consent of the party against whom the same is offered, unless-
(a) the person who gave the evidence is beyond the jurisdiction of the Court, or dead or unable from sickness or infirmity to attend to be personally examined, or exempted from personal appearance in Court, or is a person in the service of the 1[Republic] who cannot, in the opinion of the Court, attend without detriment to the public service, or
(b) the Court in its discretion dispenses with the proof of any of the circumstances mentioned in clause (a), and authorises the evidence of any person being read as evidence in the suit, notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same.
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 or any 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 2[within such time not exceeding three months as may be fixed by the Court]:
1[Provided that the Court may, on the prayer of the Commissioner and on sufficient cause being shown, extend the time.]
(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him to the Court.
(2) The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.
Report and depositions to be evidence in suit. Commissioner may be examined in person:
(3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it think fit.
In any suit in which an examination or adjustment of accounts is necessary, the Court may issue a commission to such person as it thinks fit directing him to make such examination or adjustment.
(1) The Court shall furnish the Commissioner with such part of the proceedings and such instructions as appear necessary, and the instructions shall distinctly specify whether the Commissioner is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his examination.
Court may direct further inquiry:
The proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where the Court has reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit.
Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.
(1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorized thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares.
(2) The Commissioner shall then prepare and sign a report or the Commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to the Court 1[within such time not exceeding three months as may be fixed by the Court]; and the Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same 2[:
Provided that the Court may, on the prayer of the Commissioner and on sufficient cause being shown, extend the time.]
(3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the Court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.
Before issuing any commission under this Order, the Court may order such sum (if any) as it thinks reasonable for the expenses of the commission to be, within a time to be fixed, paid into Court by the party at whose instance or for whose benefit the commission is issued.
Any Commissioner appointed under this Order may, unless otherwise directed by the order of appointment,-
(a) examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the Commissioner thinks proper to call upon to give evidence in the matter referred to him;
(b) call for and examine documents and other thinks relevant to the subject of inquiry;
(c) at any reasonable time enter upon or into any land or building mentioned in the order.
(1) The provisions of this Code relating to the summoning, attendance and examination of witnesses, and to the remuneration of, and penalties to be imposed upon, witnesses, shall apply to persons required to give evidence or to produce documents under this order whether the commission in execution of which they are so required has been issued by a Court situate within or by a Court situate beyond the limits of Bangladesh, and for the purposes of this rule the commissioner shall be deemed to be a Civil Court.
(2) A Commissioner may apply to any Court (not being the High Court Division) within the local limits of whose jurisdiction a witness resides for the issue of any process which he may find it necessary to issue to or against such witness, and such Court may, in its discretion, issue such process as it considers reasonable and proper.
(1) Where a commission is issued under this Order, the Court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders.
(2) Where all or any of the parties do not so appear, the Commissioner may proceed in their absence.
(1) If the High Court Division is satisfied-
(a) that a foreign Court situated in a foreign country wishes to obtain the evidence of a witness in any proceeding before it,
(b) that the proceeding is of a civil nature, and
(c) that the witness is residing within the limits of the 2[High Court Divisions,] appellate jurisdiction,
it may, subject to the provisions of rule 20, issue a commission for the examination of such witness.
(2) Evidence may be given of the matters specified in clauses (a), (b) and (c) of sub-rule (1)-
(a) by a certificate signed by the consular officer of the foreign country of the highest rank in Bangladesh and transmitted to the High Court Division through the Government, or
(b) by a letter of request issued by the foreign Court and transmitted to the High Court Division through the Government, or
(c) by a letter of request issued by the foreign Court and produced before the High Court Division by a party to the proceeding.
The High Court Division may issue a commission under rule 19-
(a) upon application by a party to the proceeding before the foreign Court, or
(b) upon an application by a law officer of the Government acting under instructions from the Government.
A commission under rule 19 may be issued to any Court within the local limits of whose jurisdiction the witness resides, or, where the witness resides within the local limits of the ordinary original civil jurisdiction of the High Court Division, to any person whom the Court thinks fit to execute the commission.
The provisions of rules 6, 15, 16, 17 and 18 of this Order is so far as they are applicable shall apply to the issue, execution and return of such commissions, and when any such commission has been duly executed it shall be returned, together with the evidence taken under it, to the High Court Division, which shall forward it to the Government, along with the letter of request for transmission to the foreign Court.]
Where a commission is issued for any purpose at any stage of a suit, the time taken by the Commissioner for returning the Commission after execution or for submitting the report, as the case may be, shall be excluded from the time fixed for doing anything or performing any act at that stage.]