1. ' SAJJAD Ali SHAH, J.-This 1st Appeal is filed against the impugned order dated 16th December, 1968 passed by 1st Civil Judge First Class, Karachi, whereby report of the Commissioner appointed by the Court for taking accounts has been confirmed and application made under Order XXVI, rules 11 and 12-C. P. C. By appellant/defendant raising objections against the report of the Commissioner has been rejected.
2. ' Brief facts giving rise to this appeal are that respondent/plaintiff had done cartage work for the appellant/defendant which is a Firm and also assisted- in the clearance of goods and used to be paid remuneration for his services rendered. It appears that the differences arose between the parties when respondent demanded higher rates and subsequently called-upon the appellant to settle accounts for the period of about three years from 6th October, 1953 to August, 1956 for which remuneration was allegedly not paid to him. Appellant used to maintain account books, which were handed over to the respondent for scrutiny and determination of the amount payable to him.
3. After exchange of notices respondent filed Suit for accounts, during the pendency of which joint application was made under Order XXIII, rule 3, C.P.C. For a preliminary decree with consent of the parties which was passed. Mr. S. Inayat Ali was appointed as Commissioner with the consent of the parties to take accounts and give his report. The Commissioner submitted his report dated 5th December, 1959 in the Court, which was challenged by the appellant. This report was ex parte as the Commissioner commenced proceedings in the absence of the appellant and the request made by his Advocate for adjournment was rejected. On 12th September, 1960 the report was sent back by the Court to the Commissioner for fresh inquiry and report with direction that parties should be given full opportunity to participate in the proceedings before him. The relevant portion from the order of the Court is as under :- "Remit the same to him for fresh inquiry and report on the state of accounts, after affording parties full opportunity to participate in the same and lead evidence if any, for or against the matter."
4. ' However, after recording the evidence adduced by the parties the Commissioner submitted his report on 30th January, 1963. The appellant raised a number of objections to the report of the Commissioner which did not find favour with the learned Lower Court and in consequence the objections were rejected, report was confirmed and final decree was ordered to be prepared in the terms of the report of the Commissioner and this order has been impugned against which the appeal has been filed.
5. ' Mr. S. M. Sadiq, Advocate for the appellant has contended before us that the report of the Commissioner, which is confirmed in the impugned order, is not in accordance with law as the Commissioner has outstepped the scope of Commission. In this context it was submitted that the Commissioner has made a legal mistake in giving a finding in his second report that respondent was entitled to recover an amount of Rs, 1,10,701.75, which is not consistent with account books and is an exorbitant amount particularly when account books were in custody of the respondent and after scrutiny of which he had sent a legal notice dated 16th October, 1957 in which specific amount of Rs, 19,566 was claimed as total dues of remuneration in respect of period of three years. This notice is mentioned in the plaint and copy whereof was annexed marked "A". It was contended that Commissioner was not empowered to determine the liability of the appellant nor the rate, at which the dues were to be claimed because it was one of the issues which was to be decided by the Court and also the question in respect of liability was a matter in issue to be decided by the Court.
6. It was also contended that the Commissioner was not competent to give his finding that entries made in the account books were forged or otherwise. The main attack on the impugned order appears to relate to the scope of the Commission. Before we go into the relevant provisions of law, which provide for Commission for taking accounts, it would be pertinent to point out that the learned Civil Judge has committed an error patent on the face of record when he has made an observation in the impugned order that his predecessor at the time of remitting the reference to the Commissioner had described the scope of the Commission and powers of the Commissioner to ascertain the liability of the appellant/defendant. The perusal of the order dated 12th September, 1960 passed by Sardar Allah Nawaz Khan clearly indicates that he had remitted the reference for fresh inquiry and report on the state of accounts after affording the parties full opportunity to participate in the same and lead evidence if any, for or against the matter but it is not mentioned in this order that the Commissioner had been allowed to determine the liability of the appellant.
7. The only clarification available in this order is that the Commissioner is required to give opportunity to the parties to lead evidence. Previous report of the Commissioner was ex parte and evidence was recorded in the absence of the appellant. It is therefore, obvious that the learned Single Judge in the impugned order had misconstrued the scope of the Commission. Secondly PLD 1958 Lah.
8. 451 and 1907 C L J 105 were cited before the learned Civil Judge and have been mentioned by him iii the impugned order but no reasons are given by him for not following them although they clearly lay down in very unequivocal language that in a Commission for accounts the Commissioner can only determine the quantum but not the liability which is to be determined by the Court and also that the Court cannot delegate its juidcial powers to the Commissioner in determining the issues.
9. This might have been done because of misconstruction of scope of Commission laid down in the order of Sardar Allah Nawaz Khan as stated above.
10. ' Order XXVI, rule 11 provides that in any suit in which an examination or adjustment of accounts is necessary, the Court may issue a Commission to such person as it thinks fit directing him to make such examination or adjustment. Rule 12 (I) provides that the Court shall furnish the Commissioner with such part of the proceedings and such instructions as appear necessary, and the instructions shall distinctly specify whether the Commissioner is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his examination.
11. Sub-rule (2) of rule 12 further provides that proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where the Court has reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit. Further procedure with regard to Commission for taking accounts is prescribed in Sind Civil Courts Rules.
12. ' A clear legal position is crystallised by numerous pronouncements, which lay down clearly the scope of Commission and powers of the Commissioner. It has been held in Assarnak and another v. Hundomal and another (1) that as a general rule, it is better for the Court itself to settle the exact terms of the order to the Commissioner, that is, not to make him a sort of inferior Judicial Officer. It is generally the business of the Court to ascertain which books are true or false, which party is or is not keeping back the books, what documents are relevant and the like, and it is, as a general rule, desirable that these matters should be decided before a Commissioner is appointed. In Ugra Narain Choudhary and others v. Haribana Choudhary and others (2) it has been held that a Judge cannot delegate any of his functions to the Commissioner and ask him to take evidence and try an issue although it may not have the effect of entirely divesting him of his responsibility in the matter.
13. In Rehmatullah & Sons v. Sheikh Hafizullah (3) it has been held that it is well settled that the Court cannot delegate its judicial powers to a Commissioner in the matter of taking evidence and determining issues. Where a Commissioner is appointed for taking accounts, the question of liability should be determined by the Court and that of quantum by the Commissioner. Where a Commissioner's report went far beyond his proper functions, for instances where he decided that an important document was genuine and not false as alleged by the plaintiff and considered the question of (1) AIR 1925 Sind 265 (2) AIR 1930 Pat. 557 (3) PLD 1958 Lab. 451 the probative value of the evidence led before him, and the Court proceeded to order the appointment of a new local Commissioner without giving him any instructions or exact terms of reference, such order of the Court could not be sustained. Such view that in a Commission for accounts, the Commissioner could decide only quantum and not question of liability and that the Commissioner has no power to decide question of genuineness or otherwise of documents produced is again reiterated in the case of A'firza Riazul Hassan v. Hafiz Mirza Hafizul Hassan (1).
14. In view of the legal position enunciated above it is indisputably clear that the scope of the Commissioner is limited and in the instant case the Commissioner has exceeded his powers by determining the liability of the appellant and going into the question of increased rates, which is subject-matter of issue to be decided by the Court and also giving finding with regard to the entries in the account books that they are forged. Consequently the impugned order of the learned Civil Judge confirming the report of the Commissioner which is not in conformity with the scope laid down in the previous order of the Court has no merit and is set aside. The case is remanded to the trial court for making a reference to the same Commissioner under Order XXVI, rule 12 for the terms of reference as laid down in the order passed by Sardar Allah Nawaz Khan dated 12th September, 1960 after consideration of evidence already brought on the record by specifying the amounts as borne out from the account books on the credit side or debit side vis-a-vis without making any comments with regard to the genuineness or otherwise of the entries or determining the liability. Question of increased rate as claimed by the respondent is also to be left out for determination by the trial Court as it is subject-matter of issue. As this is an old matter the trial Court can direct the Commissioner to submit the report within one month from the date of such direction. The question of fees payable to the Commissioner should also be determined by the trial Court. In the result appeal is allowed with costs.