Law: Civil Procedure Code (V of 1908)

Section:

P L D 1961 (W. P.) Peshawar 36  Civil Procedure Code (V of 1908)---O. XXVI, r. 15-Commission" and "Commissioner"-Meaning and scope " Expenses of the commission"-Whether restricted to fees of the commissioner only -Court, whether can order payment of expenses of counsel for opposite party for any extra engagement.   The words "commission" and-"commissioner" are employed separately in some of the rules of Order XXVI, Civil Procedure Code, 1908, and they are not interchangeable. Where the Legis lature uses two different words .in the same context or different contexts, they are intended to connote different meanings. The word "commission" is of a wider import than "commissioner", the latter meaning a person who is commissioned by the Court to carry out some specified work, whereas, the former connotes the entrustment or the authority created for the execution of that work. The expenses of the commission, therefore, refer not only to the fee of the commissioner, but to the entire expense includ ing all the ancillary expenses that may be incurred in the discharge of the entrustment or in the execution of the authority for doing a particular work. For example, if the execution of the commis sion entails some technical advice the expenses of a technical advisor may be allowed by the Court, and then the expenses of the technical advisor would be expenses of the commission to be paid by the party at whose instance, or for whose benefit, the emission is set up. But the term "expenses of the commission" cannot be extended to include the expenses of the counsel for the opposite-party for any extra engagement which may be necessitated for him by the setting up of the commission at the instance of the other party. Therefore; an order for pay ment of the fees of the opposite counsel is not covered by the terms of rule 15 of Order XXV1 of the Civil Procedure Code, 1908. Still however the said rule is not exhaustive of the power of the Court in this direction judicial discretion to be exercised with ail due considerations that determine judicial discretion and if in the exercise of that…