Gauhati High Court
CRP(IO)/54/2024 on 14 July, 2025
Page 1 of 15
GAHC010026662024
2025:GAU-AS:8951
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Civil Revision Petition(I/O) No. 54/2024
1. Nityananda Chutia,
S/o of Bhugeswar Chutia(Father) and Usharani
Chutia (Mother),
R/o Vill-2 No. Padum Nagar, Boiragimoth,
Nizkadamanigaon,P.O. And P.S. Dibrugarh,
Assam, Pin-786003.
Petitioner
-Versus-
1. Sabir Azim Shah,
S/o of Late Nowrang Shah,
R/o Gabharupathar Tiniali, Near Gabharupathar Police
Outpost, P.O. P.S. and District-Dibrugarh, Assam, Pin-
786001.
2. Warish Shah,
S/o of Late Aurang Shah,
Serial No.2, 3 and 4 are resident of Shah Manzil,
Gabharupathar Tiniali, Dibrugarh, Assam, Pin-786001.
3. Rifat Anjar Shah,
S/o of Late Aurang Shah,
Resident of Shah Manzil, Gabharupathar Tiniali,
Dibrugarh, Assam, Pin-786001.
4. Nawaz Shah,
S/o of Late Rizwan Shah,
Resident of Jail Road, Khalihamari, Dibrugarh, P.O. And
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P.S. Dibrugarh, Assam, Pin-786001.
5. Sabib Hassan,
S/o of Late Rubina Begum,
Resident of Amolapatty, Opposite of Natyamandir, P.O.
P.S. And District- Dibrugarh, Assam, Pin-786003.
6. Sahik Hassan,
S/o of Late Rubina Begum,
Resident of Amolapatty, Opposite of Natyamandir, P.O.
P.S. And District- Dibrugarh, Assam, Pin-786003.
7. Jahanara Begum,
D/o of Late Alhajbulban Shah,
Resident of Molokhubasa, Byelane No. 1, Boiragimoth,
P.O. & P.S. & District- Dibrugarh, Assam, Pin-786003.
8. Smti. Nurjahan Begum,
D/o of Late Sheikh Ismail,
Resident of Noorjahan Mahal Convoy Road, P.O.
Boiragimoth, P.S. & District- Dibrugarh, Assam, Pin-
786003.
9. Smti Juli Phukan,
W/o of Sri Surjyaphukanbeheatingtiniali,
P.O. Jamira, P.S. Jamira Also-At Permanent Resident of
Choudang, P.S. Teok, District- Jorhat, Pin-785112.
10. Dee And A Solution Pvt. Ltd.,
A Company Duly Incorporated under the provisions of
the Companies Act, Having its registered office At DD-
II, Opposite Shiv Mandir, House No. 17 RGB Road,
Sundarpur, Guwahati-781005, District- Kamrup(M),
Assam Represented by its Director/Authorised
Representative Namely, Sri Amardeep Borah,
S/o of Late Satyam Borah,
A Resident of Opposite NCC Office VKV Path, Near
Railway Line,
P.O. Kadamoni, P.S. Dibrugar, Assam, Pin-786001.
11. Meghnath Das,
S/o of Late Dina Nath Das,
Resident of Puhari, Khaniyagaon, P.O. Mohanaghat,
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P.S. And District-Dibrugarh, Assam, Pin-786008.
12. Bikash Phukan,
S/o of Sri Khirodphukan,
The Resident of Jaimotipath, Boiragimoth,
P.O. And P.S. Dibrugarh, Assam, Pin-786003.
Respondents
WITH
Civil Revision Petition(I/O) No. 60/2024
1. Dee And A Solution Pvt. Ltd.,
A Company Duly Incorporated under the provisions of
the Companies Act, Having its registered office At DD-
II, Opposite Shiv Mandir, House No. 17 RGB Road,
Sundarpur, Guwahati-781005, District- Kamrup(M),
Assam Represented by its Director/Authorised
Representative Namely, Sri Amardeep Borah,
S/o of Late Satyam Borah,
A Resident of Opposite NCC Office VKV Path, Near
Railway Line,
P.O. Kadamoni, P.S. Dibrugar, Assam, Pin-786001.
Petitioner
Versus
1. Sabir Azim Shah,
S/o of Late Nowrang Shah,
R/o Gabharupathar Tiniali, Near Gabharupathar Police
Outpost, P.O. P.S. and District-Dibrugarh, Assam, Pin-
786001.
2. Warish Shah,
S/o of Late Aurang Shah,
Serial No.2, 3 and 4 are resident of Shah Manzil,
Gabharupathar Tiniali, Dibrugarh, Assam, Pin-786001.
3. Rifat Anjar Shah,
S/o of Late Aurang Shah,
Resident of Shah Manzil, Gabharupathar Tiniali,
Dibrugarh, Assam, Pin-786001.
4. Nawaz Shah,
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S/o of Late Rizwan Shah,
Resident of Jail Road, Khalihamari, Dibrugarh, P.O. And
P.S. Dibrugarh, Assam, Pin-786001.
5. Sabib Hassan,
S/o of Late Rubina Begum,
Resident of Amolapatty, Opposite of Natyamandir, P.O.
P.S. And District- Dibrugarh, Assam, Pin-786003.
6. Sahik Hassan,
S/o of Late Rubina Begum,
Resident of Amolapatty, Opposite of Natyamandir, P.O.
P.S. And District- Dibrugarh, Assam, Pin-786003.
7. Jahanara Begum,
D/o of Late Alhajbulban Shah,
Resident of Molokhubasa, Byelane No. 1, Boiragimoth,
P.O. P.S. And District- Dibrugarh, Assam, Pin-786003.
8. Smti. Nurjahan Begum,
D/o of Late Sheikh Ismail,
Resident of Noorjahan Mahal Convoy Road, P.O.
Boiragimoth, P.S. And District- Dibrugarh, Assam, Pin-
786003.
9. Smti Juli Phukan,
W/o of Sri Surjyaphukanbeheatingtiniali,
P.O. Jamira, P.S. Jamira Also-At Permanent Resident of
Choudang, P.S. Teok, District- Jorhat, Pin-785112.
10. Meghnath Das,
S/o of Late Dina Nath Das,
Resident of Puhari, Khaniyagaon, P.O. Mohanaghat,
P.S. And District-Dibrugarh, Assam, Pin-786008.
11. Nityananda Chutia,
S/o of Bhugeswar Chutia(Father) and Usharani Chutia
(Mother),
R/o Vill-2 No. Padum Nagar, Boiragimoth,
Nizkadamanigaon,P.O. And P.S. Dibrugarh, Assam, Pin-
786003.
12. Bikash Phukan,
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S/o of Sri Khirodphukan,
The Resident of Jaimotipath, Boiragimoth,
P.O. And P.S. Dibrugarh, Assam, Pin-786003.
For Petitioner 1. Mr. B.Dutta, Senior Advocate.
2. Mr.S. Deka, Advocate.
For Respondent(s) : Mr. N.J. Gogoi, Advocate.
Date of Judgment : 14.07.2025
BEFORE
HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGEMENT AND ORDER(CAV)
1. By this common order, this Court proposes to dispose of two
civil revision petitions, namely, CRP (IO) No. 54/2024 and CRP
(IO) No.60/2024, as in both the cases the order dated
25.01.2024, passed by the learned Civil Judge (Senior
Division), Dibrugarh, in Misc.(J) Case No. 15/2024, arising out
of Misc.(J) Case No. 01/2024 has been put to challenge under
Article 227 of the Constitution of India.
2. Heard Mr. B. Dutta, the learned Senior Counsel, assisted by
Mr. S. Deka, the learned Counsel for the petitioner in both the
above-mentioned cases. Also heard Mr. N.J. Gogoi, the
learned counsel for the respondent Nos. 1 to 7 in both the
cases.
3. By the impugned order dated 25.01.2024, passed in Misc.(J)
Case No. 15/2024, arising out of Misc.(J) Case No. 01/2024, in
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connection with T.S. No. 01/2024, the application under Order
26 Rule 9 read with Section 151 of the Code of Civil
Procedure, 1908, filed by the respondent Nos. 1 to 7, who are
the plaintiffs in T.S. No. 01/2024, praying for issuance of a
commission for verifying, as to whether constructions, which
are carried out by the DEE and A Solution Pvt. Ltd. and Sri
Meghnath Das, [who are the respondent Nos. 10 and 11 respectively
in CRP(IO) No. 54/2024, as well as the petitioner and respondent No. 10
respectively in CRP(IO) No. 60/2024],is over the land as described
in the Schedule-„D‟ and „E‟, i.e., Dag No. 441(O), Periodic Patta
No. 278(O), Dag No. 738(N),Periodic Patta No. 566(N), Dag
No. 441(O), Periodic Patta No. 278, all in the land covered by
Scheduled-„A‟ and „B‟, i.e., Dag No. 122, Periodic Patta No. 22
and Dag No. 38, was allowed.
4. The respondent Nos. 1 to 7, along with two others, as
plaintiff‟s, have filed the T.S. No. 01/2024, before the Court of
the learned Civil Judge (Senior Division) Dibrugarh, arraying
the petitioner as one of the defendants, praying for
declaration of right, title & interest, eviction, recovery of khas
possession and permanent injunction. Along with the plaint,
the respondent Nos. 1 to 7 had also filed a Misc.(J) Case No.
01/2024, under Order 39 Rule 1 and 2 read with Section 94
and 151 of the Code of Civil Procedure, 1908 praying for grant
of temporary injunction. In the said Misc. Case, the Trial
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Court, by order dated 03.01.2024 at the time of issuance of
notice to the opposite parties, was pleased to grant ad-interim
injunction restraining the opposite parties from raising any
construction over the Scheduled-„A‟, ‟B‟, „D‟ and ‟E‟, land till the
next date of the case, i.e. till 02.02.2024.
5. After coming to know about the passing of the ad-interim
injunction dated 03.01.2024, the respondent No. 10 of CRP
(IO) No. 54/2024, namely, DEE and A Solution Pvt. Ltd.
appeared in the case and filed an application under Order 39
Rule 4 of the Code of Civil Procedure, 1908 praying for
vacating and setting aside ex-parte interim injunction order.
The said application was registered as Misc. (J) Case No.
14/2024.
6. Thereafter, by order dated 25.01.2024, passed in Misc. (J)
Case No. 14/2024, the Trial Court was pleased to modify the
ad-interim order dated 03.01.2024, to the extent that the
respondent No. 10 of CRP (IO) No. 54/2024, namely, DEE and
A Solution Pvt. Ltd. was allowed to carry out the construction
activities over the Scheduled-„D‟ land. It was also clarified that
the ad-interim order dated 03.01.2024 shall not affect the
Scheduled-„E‟ land.
7. In the meanwhile, on 20.01.2024, on an offdate, the plaintiffs
(respondent Nos. 1 to 7 herein) filed an application under
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Order 26 Rule 9 read with Section 151 of the Code of Civil
Procedure, 1908 praying for issuance of a commission by
appointing Circle Officer, West Revenue Circle, to ascertain
and verify and to submit a report whether the construction
which was carried out by the DEE and A Solution Pvt. Ltd. as
well as, Sri Meghnath Das are in the land covered by
Scheduled-„D‟ & „E‟ lands.
8. Mr. B. Dutta, the learned Senior Counsel, for the petitioner has
submitted that after filing of the application under Order 26
Rule 9 by the respondent Nos. 1 to 7 before the Trial Court, it
did not afford an opportunity of hearing to the present
petitioner and by the impugned order dated 25.01.2024 issued
the commission by appointing the Circle Officer, West Revenue
Circle, Dibrugarh to determine whether any construction work
has been carried out over the Scheduled-„A‟ and „B’ land.
9. The learned Senior Counsel for the petitioner has submitted
that by passing the impugned order, the Trial Court has
committed grave illegality inasmuch as, it is well settled that
the powers of the Court under Order 26 Rule 9 of the Code of
Civil Procedure, 1908 cannot be exercised to assist a party to
collect evidence. He submits that it is for the parties in a civil
suit to adduce evidence in support of their case and the
commission under Order 26 Rule 9 of the Code of Civil
Procedure, 1908 may be issued only in a case, where the
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Court feels it necessary to appreciate the evidence, which is
already on record. However, he submits that the commission
may not be issued under Order 26 Rule 9 of the Code of Civil
Procedure, 1908 in order to fish out the evidence in support of
one of the parties.
10. The learned Senior Counsel, for the petitioner has submitted
that the impugned order has also been passed in violation of
the mandate of Rule 230 (1)(c) of the Gauhati High Court Civil
Rules and Orders which provides that while issuing a
commission for local investigation the order should reflect as
to why such matter could not be proved or ascertain in the
ordinary way by producing documents at the proper time and
witness at the trial.
11. The learned Senior Counsel, for the petitioner has also
submitted that a commission under Order 26 Rule 9 can be
issued only in a suit, however, in the instant case, the
commission was issued in the Misc. Case and not in
connection with the suit, as in the main suit the pleadings are
not yet completed and issues are yet to be framed.
12. The learned Senior Counsel, for the petitioner has, therefore,
submitted that the impugned order is liable to be set aside, as
it is violative of the statutory provisions of law.
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13. In support of his submissions, the learned Senior Counsel, for
the petitioner has cited the following rulings:-
(i) “Ananta Phukan Vs. Satyendra Ch. Bezbaruah
and Ors.” reported in “(2015) 3 GLR 594;”
(ii) “Swastik Assam Real Estate Pvt. Ltd. Vs. Ratan
Raha” reported in “2018 (4)GLT 505.”
14. On the other hand, Mr. N.J. Gogoi, the learned counsel for the
respondent Nos. 1 to 7 has opposed the prayer of the
petitioner and has submitted that the Trial Court has correctly
issued the commission under Order 26 Rule 9 of the Code of
Civil Procedure, 1908 to verify and to submit a report, as to
whether any construction work has been carried out over
Scheduled-“A” and “B” land.
15. He submits that as the DEE and A Solution Pvt. Ltd. as well as
Sri Meghnath Das were allowed to continue construction only
in respect of Scheduled-„D‟ and Scheduled-„E‟ land, the Trial
Court correctly held that it was to find out the truth and in
order to render justice the necessity of issuing commission
was felt in this case. He, therefore, submits that as the
defendant Nos. 1 and 3 wrongly encroached the land of the
plaintiff and has started construction in the Scheduled-“A” and
Scheduled-“B” land, the Trial Court was correct in issuing
commission in this case. He, therefore, submits that the
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revision petitions filed under Article 227 of the Constitution of
India by the present petitioner are liable to be dismissed.
16. I have considered the submissions made by the learned
counsel for both sides. I have also gone through the materials
available on record.
17. On perusal of the averments made in the petition filed by the
respondent Nos. 1 to 7 under Order 26 Rule 9 of the Code of
Civil Procedure, 1908, it appears that the said respondents
have alleged that the petitioner of CRP(IO) No. 60/2024 and
one Sri Meghnath Das [respondent No. 10 in CRP(IO) No.
60/2024] by virtue of the order, passed under Order 39 Rule 4
of the Code of Civil Procedure, 1908 were allowed to make
construction over Scheduled -„D‟ and „E‟ land. However, the
respondent Nos. 1 to 7 have alleged that the said construction
is being carried out over Scheduled „A‟ and „B‟ land and
therefore, to find out the truth, it is necessary to issue the
commission.
18. There is no dispute as regards the statutory provisions
contained in Order 26 Rule 9 of the Code of Civil Procedure,
1908 that commission to make local investigation may be
issued in any suit for the purpose of elucidating or clarifying
any matter in dispute. The object of local investigation is not
to collect evidence which can be taken in Court but to obtain
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evidence which from its very peculiar nature can be available
only on the spot.
19. Proviso to Rule 9 of Order 26 of the Code of Civil Procedure,
1908 provides that where State Government has made rules
as to persons to whom such commissions shall be issued, the
Court shall be bound by such rules. It is clarified here that
while issuing Commission under Order 26, Rule 9 of the Code
of Civil Procedure, 1908, the Court is also bound by the rules
made by the High Court under Section 122 of the Code of Civil
Procedure, 1908.
20. Rule 230 in Chapter 11 of the Gauhati High Court Civil Rules
and Orders provides as follows-
230. (1) When a subordinate civil court, either on its own
motion or on the application of a party, directs a local inquiry,
the order for such inquiry shall be drawn up by the presiding
judge himself and shall contain following matters-
(a) whether the inquiry is directed by the Court Proprio
motu, or upon application, and if upon application from
which party;
(b) What the points are which requires elucidation for
ascertainment in that particular way;
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(c) Why such matter could not be proved or ascertained in
ordinary way by producing documents at the proper
time and witnesses at the trial;
(d) The instructions given to Commissioner,
(2) in all orders of investigation by the Commissioner under
Order 26, Rule 9, these rules shall be cited as well as Section
or Order or Rule on the Code.
21. Thus, from the above provision contained in Rule 230 (1)(c), it
appears that any order directing issuance of a Commission for
local investigation should contain as to why such matter could
not be proved or ascertained in the ordinary way by producing
documents at the proper time and witnesses at the trial.
22. In the instant case, in the petition filed by respondent Nos. 1
to 7 before the Trial Court under Order 26 Rule 9 of the Code
of Civil Procedure, 1908, on 20.01.2024, in Misc.(J) Case No.
15/2024, the only allegation has been made that the Opposite
Party Nos. 3 and 4 are making construction over „A‟ and „B‟
Scheduled land and has prayed for issuance of a Commission
to verify the same.
23. However, nothing has been mentioned in the petition as to
why the said allegation could not be proved or ascertained in
the ordinary way by producing documents at proper time and
witnesses at the trial. In the impugned order also, there is
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more reflection as to why the matter for which Commission
has been issued could not be proved or ascertained in the
ordinary way by producing documents at the proper time and
witnesses at the trial.
24. It is a settled proposition of law that the purpose of local
investigation under Order 26 Rule 9 of the Code of Civil
Procedure 1908 is not to fish out evidence for the parties
where parties can themselves adduce such evidence. It is only
when the Court finds that the party themselves cannot
produce evidence to that effect, the Court would issue
Commission for local investigation. However, in the instant
case, there is no indication in the impugned order as to why
the respondent Nos. 1 to 7 could not produce the evidence
regarding the allegations made by them in their petition. Thus,
in this case, there has been violation of the provisions
contained in Rule 230(1)(c) of the Gauhati High Court Civil
Rules and Orders, while passing the impugned orders.
25. Moreover, the purpose of issuance of a commission to make
local investigation under Order 26 Rule 9 is for elucidating any
matter in dispute, however, in the instant case, the issues are
yet to be framed and the real dispute between the parties in
the suit would be known only after framing of the issues in the
suit. Hence, before framing of issues in the suit, a commission
to make a local investigation for the purpose of elucidating
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any matter in dispute could not have been issued. Thus, for
the reasons stated in the foregoing paragraph, this Court is of
considered opinion that by passing the impugned order, the
Trial Court has improperly exercised its jurisdiction under
Order 26 Rule 9 of the Code of Civil Procedure, 1908 for the
purposes which is not recognized by law, i.e., to assist a party
to collect evidence where the evidence can be adduced by the
party itself.
26. Accordingly, the impugned order is liable to be interfered with
and set aside which this Court does hereby. The impugned
order dated 25.01.2024 passed by the Court of the learned
Civil Judge (Senior Division), Dibrugarh, in Misc.(J) Case No.
15/2024 in T.S. No. 01/2024 is hereby set aside.
27. The CRP (IO) No. 54/2024 and CRP (IO) No.60/2024, are
accordingly, allowed.
28. Send a copy of this judgment to the Trial Court immediately.
JUDGE
Comparing Assistant
s
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