Iqbal Ahmad, J.
1. This is an appeal by a defendant lambardar in a suit for profits filed in the Revenue Court under Section 226, Agra Tenancy Act. The suit was with respect) to the profits of 1338 Fasli and was instituted so far book as on 31st July 1934. Though more then three years have elapsed since the date of the institution of the suit, it is not even now possible to finally settle the controversy between the parties and and this is due solely to the fact that the learned Assistant Collector, who tried the suit, displayed a remarkable ignorance of the elementary provisions of law as to the method of recording evidence and abdicated his functions by appointing a Commissioner to whom was delegated the duty of deciding one of the cardinal issues in the case. The plaintiff claimed profits on the basis of gross rental and further claimed a share in certain amounts that he alleged were realized by the defendant lambardar and were not dictated by him in the siaha prepared by the patwari. The plaintiff alleged that the defendant has realized nazrana on letting out lands to new tenants and also on allotting building sites to certain tenants. The plaintiff further alleged that a sum of Rs. 89 should be added to the gross rental on account of rents of certain holdings which were shown in the patwari's papers as without settlement of rent. In short the plaintiff's case was that he was entitled to a decree on the basis of gross rental and further to a share in the amounts that were realized by the defendant over and above the recorded rental.
2. The defendant contested the suit on the usual pleas that are raised by lambardars in such Quits. He alleged that notwith standing the exercise of due diligence by him, he could not realize the rents in full. He denied the allegation of the plaintiff as to the realization of nazrana and of other items referred to above and contended that the plaintiff was entitled to a decree only on the basis of actual collections made by him. One of the issues framed by the Assistant Collector was as follows:
How much of the actual collections for lent made for 1338 Fasli has been concealed by the defendant if at all
3. On 12th September 1934, the Assistant Collector, on the application of the plaintiff, appointed one Munshi Bala Sahai Mukhtar as Commissioner and directed him to make an enquiry from the tenants and then submit a report as to the amounts that the defendant may have realized in 1338 Fasli on aooount of nazrana etc, and which amounts were not shown in the Siaha prepared by the patwari. The Commissioner proceeded to the village and made what may be characterized as secret enquiries. He summoned the tenants and recorded their statements behind the back of the parties without affording the par. ties an opportunity to cross-examine those tenants. He then submitted a report to the effect that certain items on account of nazrana etc had been realized by the defendant and were not shown in the Siaha. The learned Assistant Collector accepted the Commissioner's report in part and moulded bis decree accordingly. The parties were dissatisfied with the decree of the trial Court with the result that the defendant filed an appeal and the plaintiff filed a cross-objection in the lower Appellate Court. In that Court it was contended on behalf of the defendant that the report of the Commissioner based as it was on confidential enquiries alleged to have been made by him was inadmissible in evidence and could not be made the basis of the decision of the case. The learned Judge of the lower Appellate-Court overruled this contention and held that in view of the provisions of Rr. 16 and 17, Order 26, Civil P.C. it was open to the Commissioner to examine witnesses in the absence of the parties. The learned Judge then proceeded to consider the various items that had been allowed by the Assistant Collector and based his decision as regards most of the items entirely on the report of the Commissioner. He disagreed with the Assistant Collector as-regards certain items and varied the decree-passed by the Assistant Collector with respect to those items. As a result of his findings, he dismissed the appeal filed by the defendant and allowed in part the cross, objection preferred by the plaintiff. I am wholly unable to agree with the learned Judge of the lower Appellate Court. Order 26, Civil P.C. contains detailed provisions as regards the issue of commissions :(1) to examine witnesses, (2) for local investigation, (3) to examine accounts and (4) to make partition.
4. Rule 16, Order 26 authorizes the Commissioners appointed by the Court to examine' witnesses unless there is a direction to the contrary contained in the order of appointment. But this Rule is subject to the provisions of Rule 17 which enacts that the provisions of the Code 'relating to the... examination of witnesses... shall apply to persons required to give evidence' The provisions as regards the examination of witnesses are set forth in Order 18 of the Code which lays down inter alia that the evidence of witnesses shall be taken in open Court, and the method in which the evidence is to be recorded is prescribed by Section 138, Evidence Act which provides that witnesses shall; be first examined in chief, then cross, examined and then re-examined. It is therefore imperative that the parties must; be afforded an opportunity of examining, cross-examining and reexamining the; witnesses and the recording of statements of witnesses without affording such opportunity to the parties is not warranted by law. The provisions of Rule 16 of Order 26 are no doubt, as observed by the learned Judge of the lower Appellate Court per., missive in the sense that they vest a discretion in the Commissioner to examine j or not to examine a witness. But once the Commissioner has decided to examine a witness the mandatory provisions of Rule 17 of Order 26 come into play and those provisions in their turn attract the provisions of Order 18 of the Code and of Section 138, Evidence Act. It follows that it is not permissible for a Commissioner to record the statements of witnesses secretly and in the absence of parties without giving them dug notice of the date and time on which he proposes to examine the witnesses.
5. In the present case the Commissioner stated that he examined the tenants in the absence of the parties as he feared that the recording of the statements of the tenants in the presence of the parties might lead to a breach of the peace. I am not concerned with the question whether or not the reason assigned by the Commissioner for recording the statements of the tenants without giving notice to the parties was well-founded. But the fact remains that the parties had no opportunity of cross-examining the tenants who were examined by the Commissioner and their statements could not therefore be treated as evidence in the case. The Commissioner based his report on the statements of the tenants recorded by him and as those statements did not constitute legal evidence the report was inadmissible in evidence and could not be made the basis of a decision. For the reasons given above, I hold that the suit was not tried in accordance with law by the Assistant Collector and the learned Judge of the lower Appellate Court was also wrong in accepting the report of the Commissioner. There is therefore no other alternative open to me but to set aside the decrees of the Courts below and to remand the suit to the Assistant Collector with the direction to try it according to law. 1 accordingly allow this appeal, set aside the decrees of the Courts below and remand the case to the Assistant Collector with the direction to try and dispose of the same according to law. Costs here and hitherto will be costs in the cause and shall abide the result.