JUDGMENT 1. This is an Appeal by the Plaintiff in a suit for recovery of money from four persons as Defendants. Of these, the first two are brothers, and they are the step-brothers of the other two Defendants. The case for the Plaintiff is that the Defendants were members of a joint family, that the first Defendant was the head and as such looked after their affairs. The Plaintiff asserts that the Defendants have from time to time borrowed money from him to carry on a trade in rice, that accounts were adjusted between the parties on the 25th October 1908, when a sum of Rs. 2,115-9 was found due; and that the third Defendant on behalf of himself and his brothers signed the statements. The Plaintiff allows credit for payments alleged to have been subsequently made to him, and seeks to recover the balance of Rs. 2,000. The two sets of Defendants filed distinct written statements. The first two Defendants admitted that there had been transactions between them and the Plaintiff; but they alleged that although a sum of more than 10,000 had been paid to them on different occasions, the debt had been repaid. The third and fourth Defendants denied that there had ever been any transactions between them and the Plaintiff; they further stated that they were separate in mess and residence from the other Defendants and had no concern with them. In substance, they repudiated all liability under the transaction mentioned in the plaint. On these pleadings, four issues were raised in these terms : first, "whether the third and fourth Defendants are liable for the transaction, secondly, whether there was an adjustment of accounts between the parties on the 25th October 1908, and Rs. 2,115-9 was then found due by the Defendants and whether they had signed the Plaintiffs' account book in acknowledgment of that debt; thirdly, to what rate of interest are the Defendants liable ? and fourthly, whether the debt had been paid off? When the case came up for trial before the Court of first instance, the matter was referred for disposal to a Commissioner on the assumption that the case was one for adjustment of accounts. This order was made apparently with the assent of both the parties. Before the Commissioner, the parties went into evidence in detail and the proceedings were much protracted. This order was made apparently with the assent of both the parties. Before the Commissioner, the parties went into evidence in detail and the proceedings were much protracted. He ultimately submitted a report in favour of the Plaintiff. This report was rejected by the Court of first instance and the Court proceeded to consider the case on the merits. As regards the statement signed by the third Defendant, the Court came to the conclusion that it was not properly stamped and was not admissible in evidence. The document was consequently rejected and the result was that upon the remainder of the evidence on the record, no decree could be made in favour of the Plaintiff. Upon appeal that decree of dismissal has been affirmed by the District Judge. In the present appeal, the decree of the District Judge has been assailed on the ground that the procedure adopted by the Court of first instance was substantially erroneous and had produced an error in the decision of the case on the merits. The argument has been developed under three heads first, that the statement of account should no: have been thrown out in view of the provisions of sec. 36 of the Indian Stamp Act of 1899; and if the statement is accepted, it is good evidence against the third Defendant and affords sufficient foundation for a decree against him; secondly, that even if the statement is not held to be admissible, the first two Defendants are liable upon the admission made in their written statement, namely, that they had from time to time received large sums of money from the Plaintiff; and the burden of proof was upon them to establish that the debt had been repaid as alleged in their written statements ; thirdly, that the report of the Commissioner should not have been rejected, that even if it was rejected, the Court should have either directed a fresh enquiry by the Commissioner or based its decision upon the entire evidence on the record, that is, the evidence taken in Court as also the evidence taken by the Commissioner. In our opinion, it is clear that the suit has not been properly tried. 2. In our opinion, it is clear that the suit has not been properly tried. 2. In so far as the statement alleged to have been signed by the third Defendant on the 25th October 1908 is concerned, the District Judge has found that it was as a matter of fact executed by the third Defendant. Its genuineness cannot consequently be questioned in second appeal. The only question for consideration is, whether it was inadmissible in evidence, because it was not stamped. On behalf of the Appellant it has been contended that it was not an acknowledgment within the meaning of the Indian Stamp Act; and in support of this view reliance has been placed upon the decision in Galstaun v. Hutchison 16 C.W.N. 945 (1912). We are not prepared to accept this contention as well-founded The statement is in these terms:-- "Rs. 2,115 baki dena niti Kartick sudi ekom sambat 1965, Bakalam Gouri Sankar." This plainly is an acknowledgment that Rs. 2,115 was due at the date when the statement was signed. The terms of this statement are in material particulars different from those before the Court in the case of Galstaun v. Hutchison 16 C.W.N. 945 (1912). This was clearly a document which was required to be stamped under the provisions of the Indian Stamp Act. But it was accepted in evidence by the Court of first instance, and in view of the provisions of sec. 36 of the Indian Stamp Act, it is plain that it should not have been, at a subsequent stage of the proceeding, rejected by the Court. [Punchanund v. Taramoni ILR 12 Cal. 64 (1885)]. The document must thus be treated as part of the evidence on the record; it is prima facie good evidence against the third Defendant and affords foundation for a decree against him, unless he is able to explain how and why it came to be signed by him. He may possibly be able to show that he executed it under circumstances which do not make it binding as against him; this, therefore, will be the first point for consideration. 3. If it is found that the document binds Gouri Sankar, the next question will be, does it bind the other Defendants, that is, had Gouri Sankar authority to make an acknowledgment so as to prejudice their position. 3. If it is found that the document binds Gouri Sankar, the next question will be, does it bind the other Defendants, that is, had Gouri Sankar authority to make an acknowledgment so as to prejudice their position. If this is answered in the negative, the case against these Defendants must be investigated on the accounts between the patties. As already stated, the Plaintiff founds his claim on the transactions mentioned in the plaint which, according to his allegation, culminated in a settlement of accounts on the 25th October 1908. If the Defendants or some of them are able successfully to repudiate that statement, the matter will be reopened; and in that event, the case will be retried on the basis of the pleadings. The first two Defendants admitted in their written statement that they received large sums from the Plaintiff from time to time. Their allegation is that these sums have been repaid. The burden of proof primarily rests upon them to establish the plea of payment. 4. As regards the report of the Commissioner, we may point out that the course adopted by the Court of first instance was not quite in accordance with law. The Defendants applied for the examination of the Commissioner as witness. The Court rejected the application, on the ground that the Defendants were not entitled to examine the Commissioner as a witness. The Court had apparently in view the provisions of r. 10 (2) of Or. XXVI of the Code of 1908 which corresponds to sec. 180 of the Code of 1859 and sec. 393 of the Code of 1882. That sub rule is in these terms:--"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 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." It will be observed that the Commissioner may be examined with the permission of the Court by any of the parties to the suit. The object of this provision is obvious. The object of this provision is obvious. The Legislature intended to afford protection to the Commissioner who is a quasi-judicial officer, and such protection is afforded on grounds of Public policy so as to make it impossible for either of the parties to subject the Commissioner to a vexatious examination. As was explained by the Judicial Committee in the case of O'Rourke v. The Commissioners for Railways 15 App. Cases 371, (377) (1890), and by the House of Lords in Duke of Buccleuck v. Metropolitan Board of works L.R. 5 H.L. 418, (433, 462) (1872), a similar protection is afforded to every person occupying a quasi-judicial office; and in the provisions of sec. 121 of the Indian Evidence Act the Legislature in this Country has adopted the same principle. In the case before us, the permission of the Court was sought by one of the parties; that permission cannot be arbitrarily withheld. The District Judge has made it a matter of adverse comment against the Plaintiff that the Commissioner was not examined; apparently his attention was not drawn to the circumstance that the application for examination of the Commissioner had been made by one of the parties but had been refused by the Court of first instance. In the circumstances of this case, the application should have been granted, because one of the objections taken to the report of the Commissioner is that it does not give reasons for the conclusions. It is precisely in a case of this description that the examination of the Commissioner may prove useful. We must hold accordingly that the report of the Commissioner has been rejected on insufficient grounds and that an opportunity should have been afforded to the parties to clear up matters by the examination of the Commissioner. The result is that this appeal is allowed, the decrees of the Courts below set aside and the case remanded to the Court of first instance to be retried in accordance with law. The Court will consider whether a Commissioner should or should not be appointed. If a Commissioner is appointed, the matter referred to him for investigation must be specified. We feel bound to add that a Commissioner was appointed by the Court of first instance originally, pot so much for the benefit of the parties as to suit the convenience of the Court. If a Commissioner is appointed, the matter referred to him for investigation must be specified. We feel bound to add that a Commissioner was appointed by the Court of first instance originally, pot so much for the benefit of the parties as to suit the convenience of the Court. The result has been that four years have been wasted without any appreciable advantage to the parties. The cost incurred up to this stage will abide the result.