Remuneration of Advocate Commissioners under Indian Civil Procedure

Remuneration of Advocate Commissioners under Indian Civil Procedure: Doctrinal Foundations, Judicial Trends, and Normative Guidelines

1. Introduction

The institution of an Advocate Commissioner constitutes a pivotal procedural device in Indian civil litigation. Whether appointed to record evidence under Order XVIII Rule 4 of the Code of Civil Procedure, 1908 (CPC), to undertake local investigation under Order XXVI Rule 9, or to perform any other incidental act contemplated by Section 75, Commissioners facilitate expeditious and effective adjudication. Yet, the quantum of their remuneration has generated recurrent controversy, oscillating between allegations of oppressive costs and concerns of under-compensation. This article undertakes a doctrinal and jurisprudential analysis of the principles governing the fixation, apportionment, and recovery of remuneration payable to Advocate Commissioners within the Indian legal framework.

2. Statutory and Regulatory Framework

2.1 Code of Civil Procedure, 1908

  • Section 75 empowers courts to issue commissions for specified purposes and vests ancillary authority to direct “such orders as may be necessary”.
  • Order XXVI regulates the issue, execution, and return of commissions. While the Order is silent as to quantum, Rule 15 obliges the court to “fix the amount of the Commissioner’s remuneration and incidental expenses and specify by whom the same shall be paid”.
  • Order XVIII Rule 4(7), introduced by the 2002 Amendment, provides that “the court may fix the amount to be paid as remuneration for the services of the Commissioner” when evidence is recorded on commission.
  • Section 151 preserves inherent judicial power, supplying residual authority to regulate remuneration when express provisions are deficient.

2.2 High Court Rules

Several High Courts supplement the CPC by prescribing indicative tariffs. Rule 174-C of the Bombay High Court (Original Side) Rules, 1980, for instance, allows remuneration “at the rate of Rs 200 per hour subject to a minimum of Rs 200 per day or such other rate as the Court may direct”[1]. Analogous schedules exist on the original and appellate sides of other High Courts, though none are uniform nationwide.

3. Evolution of Judicial Approach

3.1 Early Cautionary Jurisprudence

In Ramnarain Sah v. Basanti Lal Sah (1933)[2] the Patna High Court admonished subordinate courts for granting “excessive remuneration”, exhorting that fees be “inclusive, reasonable, and commensurate with the low present-day fees of legal practitioners”. The court linked disproportionate fees to judicial laxity, thereby establishing proportionality as an early guiding principle.

3.2 Supreme Court Decisions

  • Padam Sen v. State of U.P. (1960)[3]—While centred on the validity of a commissioner’s appointment, the Court underscored that commissioners derive their authority strictly from the CPC; consequently, any remuneration order must fall within the statute’s four corners or the court’s inherent power.
  • Salem Advocate Bar Association (I) (2003) and Salem Advocate Bar Association (II) (2005)[4]—Though primarily adjudicating the constitutionality of CPC amendments, the Supreme Court emphasised the necessity of model rules, including matters “relating to costs, including the remuneration of commissioners”. The Court’s directive to constitute the Jagannadha Rao Committee signalled an institutional commitment to standardisation and reasonableness.

3.3 High Court Trend Post-Amendment

Decisions after 2002 display a dual emphasis: (a) commensurateness of remuneration with the nature and complexity of work, and (b) protection of litigants from oppressive financial burdens.

  • Ashok Kumar Kedia v. Balaji Builders (1989, Madras HC) condemned “disproportionate, exorbitant, unreasonable” fees, equating them to a penalty on litigants[5].
  • C. Dharmalingam v. District Registrar (2010, Madras HC) sanctioned ₹50,000 for the commissioner and ₹10,000 each for three assisting advocates, illustrating judicial willingness to recognise substantial labour when justified[6].
  • K. Dayanand v. P. Sampath Kumar (2014, AP HC) fixed ₹30,000 and directed the respondents—as the parties seeking benefit from the commission—to bear both remuneration and travel expenses[7].
  • L&T Finance Ltd. v. G.G. Granites (2013, Madras HC) reiterated that fees “shall be commensurate with the work done” lest financiers shift undue burden onto borrowers[8].

4. Doctrinal Principles Governing Remuneration

4.1 Reasonableness and Proportionality

Courts consistently invoke the twin tests of reasonableness and proportionality. The Madras High Court in Ashok Kumar Kedia articulated that remuneration “could never be disproportionate, exorbitant, unreasonable” and must reflect “just compensation”[5]. These formulations draw normative sustenance from the broader constitutional mandate of access to justice (Articles 14 and 39-A).

4.2 Judicial Discretion tempered by Guidelines

The statutory language—“the court may fix”—confers discretion, but the Salem cases exhort High Courts to frame model rules to confine variance. Thus, discretion is structured, not unfettered, aligning with the Supreme Court’s broader philosophy that procedural prescriptions must advance, not thwart, justice[4].

4.3 Party Autonomy and Cost-Shifting

Although Order XXVI Rule 15 empowers the court to decide “by whom” remuneration shall be paid, jurisprudence often places initial liability on the applicant but ultimately allows costs to follow the event, preserving indemnity for the successful litigant. The AP High Court’s direction in K. Dayanand exemplifies this cost-shifting approach[7].

4.4 Interim and Final Remuneration

Several judgments distinguish between initial and final fees. In C. Dharmalingam the court fixed ₹25,000 as “initial remuneration” and reserved the commissioner’s right to seek additional payment upon filing a final report[6]. This bifurcation mitigates liquidity constraints while ensuring adequate compensation commensurate with eventual labour.

4.5 Transparency and Record

Courts increasingly mandate commissioners to file memos of expenses with supporting vouchers. The Patna High Court (1933) anticipated this by advocating “careful scrutiny and check upon bills of fees”[2], a practice now echoed in contemporary orders to prevent speculative claims.

5. Persistent Challenges

  • Differential Standards: Absence of pan-Indian uniformity leads to divergent tariffs across jurisdictions, undermining predictability.
  • Delayed Payment: Non-payment, illustrated in Chinnarasu v. Anbu (2019)[9], can stall proceedings and vitiate the objective of expeditious trial.
  • Risk of Inflated Claims: Instances of commissioners demanding fees exceeding the aggregate professional fees of counsel erode litigant confidence, prompting judicial censure[5].
  • Lack of Objective Metrics: Complexity, distance, and time are relevant, yet rarely quantified systematically, leaving scope for subjective assessments.

6. Toward Normative Coherence: Proposed Guidelines

  1. Adoption of Model Schedules: Pursuant to Salem (II), each High Court should publish graduated fee schedules tied to (a) nature of commission (evidence, local investigation, seizure, etc.), (b) quantum in dispute, and (c) estimated time.
  2. Mandatory Cost Memorandum: Commissioners should file a pre-execution budget for court approval, save in urgent ex parte matters.
  3. Interim Disbursement Mechanism: Facilitate staggered payments—initial deposit by applicant, subsequent disbursements on the basis of progress reports.
  4. Ceiling and Escalation Clause: Provide an upper limit subject to court-sanctioned escalation upon demonstrated necessity.
  5. Digitised Oversight: Incorporate remuneration orders into the National Judicial Data Grid for transparency and empirical calibration of future schedules.

7. Conclusion

The jurisprudence on the remuneration of Advocate Commissioners reflects a delicate balance between compensating professional labour and safeguarding litigants from prohibitive costs. Statutory provisions confer discretion, but judicial pronouncements—spearheaded by the Salem Advocate Bar Association cases—mandate that such discretion be channelled through reasoned, proportional, and transparent orders. Institutionalising model schedules and procedural safeguards will harmonise practice, enhance predictability, and fortify the overarching objective of affordable and expeditious justice in India.

Footnotes

  1. Smt. Savitriben M. Sanghvi v. Dr. Pankaj Gandhi, Bombay HC, 2008 (discussion of Rule 174-C).
  2. Ramnarain Sah v. Basanti Lal Sah, Patna HC, 1933.
  3. Padam Sen v. State of U.P., (1961) AIR SC 218.
  4. Salem Advocate Bar Association, T.N. v. Union of India, (2003) 1 SCC 49 & (2005) 6 SCC 344.
  5. Ashok Kumar Kedia v. Balaji Builders, Madras HC, 1989.
  6. C. Dharmalingam v. District Registrar, Madras HC, 2010.
  7. K. Dayanand v. P. Sampath Kumar, Andhra Pradesh HC, 2014.
  8. L&T Finance Ltd. v. G.G. Granites, Madras HC, 2013.
  9. Chinnarasu v. Anbu, (2019) SCC OnLine Mad 36033.