Judgment.- Plaintiffs 1, 3 and 4 are the appellants. The suit was filed by the appellants along with the 2nd plaintiff for an injunction restraining the defendants from interfering with their possession and for recovery of a sum of Rs. 300 as damages. The defence was that though the 2nd plaintiff, whose children are plaintiffs 1, 3 and 4, is the owner, the 1st defendant has been in possession and enjoyment of the land under an oral lease granted by the 2nd plaintiff. The trial Court found that the plaintiffs are not in possession of the suit property, that the defendants are in possession and that the oral lease set up by them was true. In regard to the oral lease, in addition to the evidence of the 1st defendant, the trial Court relied on the admission of the 2nd plaintiff who was examined as P.W. 4 on Commission. In appeal the lower appellate Court confirmed the finding that the 1st defendant was in possession and the plaintiffs were not in possession on the date of suit. The lower appellate Court also confirmed the finding on the question of oral lease. 2. In this Second Appeal learned Counsel for the appellants contended that both the trial Court and the lower appellate Court relied on the evidence of the 2nd plaintiff who was examined on Commission as P. W. 4,but that the recording of the evidence of P.W. 4 by the Commissioner was not in accordance with Order 26, rule 17 read with Order 18, rules 5 and 6, Civil Procedure Code on the ground that the evidence was not read over to the witness and explained in a language known to her and therefore the evidence is inadmissible. The evidence recorded by the Commissioner admittedly does not contain the endorsement as required under Order 18, rule 5, Civil Procedure Code. The Coissioner was examined at the stage of the appeal and he admitted that he did not read over the evidence to the witness after the evidence was recorded. The evidence was recorded in English and P.W. 4 does not know English language. The Commissioner has also stated in his evidence that he had not explained the evidence in Malayalam to the 2nd plaintift after it was recorded. In these circumstances the question for consideration is whether the evidence is admissible at all. The evidence was recorded in English and P.W. 4 does not know English language. The Commissioner has also stated in his evidence that he had not explained the evidence in Malayalam to the 2nd plaintift after it was recorded. In these circumstances the question for consideration is whether the evidence is admissible at all. Order 26, rule: 17 (1) reads as follows: “17 (1). The provisions of this Coderelating tc the summoning, attendance and examination of witnesses, and to the remuneration of, and penal lies 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 India, and for the purposes of this rule the Commissioner shall be deemed to be a civil Court.” As per the provision of this Rule, to a person required to give evidence before a Commissioner the provisions of the Code relating to examination cf witnesses shall apply. The question for consideration is whether the requirements of Rules 5 and 6 of Order 18 relating to reading over of the evidence, interpreting the same in the language of the witness and signing it “by the judge who recorded” is applicable to the evidence recorded by a Commissioner and if it is not recorded what is the legal effect of the same. 3. Order 18 deals with hearing of suit and examination of witnesses. Rule 4 requires that the evidence shall be taken orally in open Court in the presence of the Judge. Rule 5 requires the evidence to be recorded in a narrative and where an appeal lies it shall be read over in the presence of the Judge and the witness and shall be signed by the Judge. Rule 6 requires that where the witness gave the evidence in a language different from that in which it was recorded, it shall be interpreted to him in the language in which it was given. Rule 7 requires the evidence to be taken in compliance with section 138 of the Evidence Act. Rule 6 requires that where the witness gave the evidence in a language different from that in which it was recorded, it shall be interpreted to him in the language in which it was given. Rule 7 requires the evidence to be taken in compliance with section 138 of the Evidence Act. Rules 10 and 11 deal with cases where the actual question and answer have to be recorded and how objections to any answer will have to be noted Rule 12 enables the Court to record any remarks as to demeanour of witnesses while under examination. Rule 17 deals with recalling of witnesses. It is seen from the Rules that some rules speak of Court and some rules speak of what the Judge in whose presence the evidence is recorded shall have to do. Order 26, rule 17 does not generally attract the entire provisions of Order 18 relating to examination of witnesses to the proceedings before a Commissioner. It only makes the provisions applicable “to the person required to give evidence” and for purposes of the Rule the Commissioner shall be deemed to be a civil Court. I am of opinion that the Commissioner has not been made a Judge for the purposes of examining the witnesses and the duties of the Judge under Rules 5 and 6 of Order 18 are not attracted under Order 26, rule 17. 4. The necessity for a certificate as required under rules 5 and 6 of Order 18 in the case of evidence recorded by a Judge is based on the fact that a Judge who recorded the evidence in Court could not be called in evidence in any other proceedings where that evidence is sought to be relied on. It was alsoput on the ground that the public policy requires that where the evidence of awitness is put against him in a different proceeding he should have had an opportunity of knowing that the evidence recorded is to be used. In the same proceedings in cases where it was recorded by the Commissioner, the party against whom that evidence is sought to be relied on could call the Commissioner who recorded the evidence as a witness and question him on the correctness of the record. Further, as already stated, rule 17 of Order 26 attracts the provisions of Order 18 only to the witnesses. Further, as already stated, rule 17 of Order 26 attracts the provisions of Order 18 only to the witnesses. A witness may be a party or may not be a party. If he is not a party to the proceedings the evidence of that witness could not be relied on in any criminal proceedings against that witness for perjury or other offence in the absence of a certificate appended as required under rules 5 and 6 of Order 18. That is purely on the basis of public policy that a prior statement of an accused could not be put against him without proof of the knowledge of the contents and that it was a statement by the accused. So the requirement in a criminal prosecution about the need for a certificate is not based on the fact that rules 5 and 6 had to be complied with by the Commissioner but on a different principle of public policy. 5. The learned Counsel for the appellants relied on a decision of this Court in Ethiraj v. Gopalaswami Chettiar.1That was a case where a Small Cause Court in recording evidence in an application under section 9 of the Madras City Tenants Protection Act did not append the certificate as required under rules 5 and 6. The question related directly with reference to the evidence recorded in a Court and not the evidence recorded by a Commissioner. Even there the Court had relied on the decisions which dealt with criminal prosecutions. When the evidence given by the particular witness was sought to be relied on against him as an accused, the need for guaranteeing the accuracy of the deposition was raised and the deposition without such certificate was held not admissible in the criminal prosecution. In fact, in some of the decisions cited therein it is seen that the recording of the evidence in the presence of the Judge and his listening to the reading during the time when the deposition is interpreted and read over to the witnesses though this requirement also is under the same rule 5 was held not mandatory and any contravention of the same would only amount to an irregularity. Ultimately, the learned Judge also was of the opinion that the Small Causes Court had not recorded the evidence as a narrative but had recorded, as usually done in Small Causes Courts, as memo evidence. Ultimately, the learned Judge also was of the opinion that the Small Causes Court had not recorded the evidence as a narrative but had recorded, as usually done in Small Causes Courts, as memo evidence. Recording of evidence in an application under section 9 of the Madras City Tenants Protection Act should be in the narrative as while hearing that application the Court is hearing the matter as a civil Court and not as a Small Causes Court. The decision will, therefore, have to be restricted the facts of that case. 6. The learned Counsel also relied on the decision in Kashiram Budhia v. Chanujuram Budhia1. Though in one part of the judgment the learned single Judge of the Calcutta High Court held that Order 18, rules 5 and 6 applied to proceedings conducted by the Commissioner for partition appointed by the Original Side of the High Court, on the facts of that case it could be seen that a direction was given to the Commissioner to record the evidence in a particular way on an application by the plaintiff. The order appointing the Commissioner gave directions to examine witnesses upon oath or solemn affirmation and to take depositions in writing and return the same with the Commission. The Commissioner examined one Surajmull as a witness. While he was examining other witnesses, Surajmull was prosecuted in a Criminal Court under section 162 read with section 10-B of the Indian Penal Code and the statement given by him before the Commissioner was sought to be relied on against the accused. In a criminal revision case in that proceedings, the High Court held that inasmuch as the deposition had not been read over and explained to the witness they were not admissible under section 80 of the Evidence Act and no secondary evidence of its contents also was possible under section 91 of the Evidence Act. The plaintiff in that case therefore filed an application to the Court to direct the Commissioner to record evidence and read over and explain the same to the witnesses. In that application, the learned single Judge gave a direction that “with regard to all witnesses who have been called and whose examination had not been concluded, and with regard to all witnesses who may hereafter be called at the reference, Mr. In that application, the learned single Judge gave a direction that “with regard to all witnesses who have been called and whose examination had not been concluded, and with regard to all witnesses who may hereafter be called at the reference, Mr. J. M. Ghose (Commissioner) should see that the provisions of rules 5 and 6 of Order 18 are carried out, that is to say, that the depositions should be read over and explained to the respective witnesses when each witnesse’s evidence is completed, and that, when necessary, they should be translated into a language which the witnesses understands. I do not think it necessary to give any directions with regard to the depositions which have already been completed”. Certainly it is open to the Court to direct the Commissioner to append the certificate as required under rules 5 and 6 after reading over the evidence and interpreting the same to the witnesses. The observation of the Judge that rules 5 and 6 of Order 18 are applicable to the evidence recorded by a Commissioner was an obiter and not the ratio of that judgment. If really rules 5 and 6 are applicable, no directions need have been given. Further, the Court could not have stated that there was no direction necessary with regard to the depositions which had already been completed. This decision was relied on by a single Judge of the Bombay High Court in Biharilal Ramaharan Cotton Mills Ltd. v. China Cotton Exporters2, where the question was whether the Commissioner appointed for the purpose of taking accounts of a partnership is a Court within the meaning of the Civil Procedure Code so that on his death a successor could continue the proceedings from the stage at which his predecessor had left under rule 15, Order 18. The Court relied on the fact that under rule 17, Order 26 the Commissioner shall be deemed to be a civil Court. The learned Judge held that the “Commissioner was also a Judge for the purposes of the Code”. It is not necessary for me to consider the correctness of the judgment except to say that that was not one which considered the question of the necessity or the mandatory nature of rules 5 and 6 of Order 18 in their application to the recording of evidence by a Commissioner. It is not necessary for me to consider the correctness of the judgment except to say that that was not one which considered the question of the necessity or the mandatory nature of rules 5 and 6 of Order 18 in their application to the recording of evidence by a Commissioner. One other decision relied on by the learned Counsel for the appellants is in Nand Kishore v. Lala Shiam Sundar Lal1. That was a case where the Assistant Collector who constituted the Revenue Court under the Agra Tenancy Act appointed the Commissioner who examined the witnesses behind the back of the parties and in a confidential way. The Court relied on rule 16 of Order 26 and section 138 of the Evidence Act for holding that the recording of the evidence behind the back was illegal. 7. As already noted, in this case the Commissioner was examined as a witness though at the appellate stage. There was no question as to the correctness of the statement recorded and the Commissioner was cross-examined only regarding the reading over and explaining the evidence in the language known to the witness. The evidence is also not sought to be relied on in a criminal proceeding against the witness. In the foregoing circumstances, there was nothing illegal in the Courts below relying on the evidence of P.W. 4. The findings of the Courts below on the question of possession and oral lease cannot therefore be interfered with. The second appeal fails and it is dimissed. No. order as to costs. No leave. S.J. ---------- Appeal dismissed.