Code of Civil Procedure, 1908 | Order XXVI

Order XXVI Rule 10B CPC - Commission for Performance of a Ministerial Act

Order XXVI Rule 10B of the Code of Civil Procedure, 1908 (CPC) permits a civil court to appoint a commissioner to carry out a ministerial act that cannot conveniently be performed before the court. The court must record its reasons and find the appointment necessary or expedient in the interests of justice.

Text of Order XXVI Rule 10B CPC

(1) Where any question arising in a suit involves the performance of any ministerial act which cannot, in the opinion of the Court, be conveniently performed before the Court, the Court may, if for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to perform that ministerial act and report thereon to the Court.

(2) The provisions of rule 10 of this Order shall apply in relation to a commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.

Meaning of a ministerial act

A ministerial act is an administrative, mechanical or procedural task performed in accordance with instructions, rather than the judicial determination of contested rights. The commissioner assists the court with the specified task; the commissioner does not replace the judge or decide the suit.

Whether an act is ministerial depends on the particular direction of the court. The court should clearly describe the task, its scope and the manner in which completion is to be reported.

Conditions for appointing a commissioner

A question arising in a pending suit must involve a ministerial act.
The court must consider that the act cannot conveniently be performed before it.
The court must conclude that issuing a commission is necessary or expedient in the interests of justice.
Reasons must be recorded in the order appointing the commissioner.
The appointed person must carry out the task and report to the court within the terms of the commission.

Procedure and evidentiary effect under Rule 10

Order XXVI Rule 10 CPC applies to a Rule 10B commissioner. The commissioner returns a signed written report together with any evidence recorded in accordance with the commission. Under Rule 10(2), the report and the evidence taken by the commissioner, but not the evidence without the report, form part of the record and are evidence in the suit.

The court may examine the commissioner in open court. A party may also seek the court's permission to question the commissioner about the matters referred, the report or the manner of performance. Under Rule 10(3), if dissatisfied with the proceedings, the court may direct further inquiry.

Section 75 CPC authorizes courts, subject to prescribed conditions and limitations, to issue commissions for specified purposes, including performing a ministerial act. Order XXVI Rule 9 addresses local investigations; Rule 10A concerns scientific investigations; Rule 10B specifically addresses ministerial acts. These powers serve different functions and should not be treated as interchangeable.

Practical considerations

An application should identify the precise ministerial act, explain why performance in court is inconvenient, propose suitable terms for the commission and address expenses or timelines as directed. The court retains control over the proceedings and the ultimate evaluation of the commissioner's report.

Official legislation

Read the Code of Civil Procedure, 1908 on India Code (official PDF). Applicable state amendments, High Court rules and subsequent judicial decisions should also be checked for the court concerned.

This article explains the general CPC provision and is not a substitute for advice on the facts of an individual case.