The requirements of Order XVIII, Rules 5 and 6, C.P.C., relating to reading over of the evidence, interpreting the same in the language of the witness, and signing it by the Judge who recorded, are not applicable to the evidence recorded by a Commissioner.

JUDGMENT :- Plaintiffs 1, 3 and 4 are the appellants. The suit was filed by the appellants along with the second 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 second plaintiff, whose children are plaintiffs 1, 3 and 4, is the owner, first defendant has been in possession and enjoyment of the land under an oral lease granted by the second 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 first defendant the trial Court relied on the admission of the second plaintiff who was examined as P.W. 4 on commission. In appeal the lower appellate court confirmed the finding that the first 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 the learned counsel for the appellants contended that both the trial Court and the lower appellate Court relied on the evidence of the second 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 XXVI, Rule 17 read with Order XVIII, Rules 5 and 6, C.P.C. 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 XVIII, Rule 5, C.P.C. The Commissioner was examined at the stage of the appeal and he admitted that he did not read 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 second plaintiff after it was recorded. In these circumstances the question for consideration is whether the evidence is admissible at all.

3. Order XXVI, Rule 17 (1) reads as follows :-

"17 (1). The previsions of this Code relating to the summoning, attendance and examination of witnesses, and to the remuneration of, and penalties 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 provisions of this rule, to a person required to give evidence before a Commissioner the provisions of the Code relating to examination of witnesses shall apply. The question for consideration is whether the requirements of Rules 5 and 6 of Order XVIII 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.

4. Order XVIII 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.

5. 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