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WITH

CRP(IO)/60/2024

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 Page 1 of 15

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WITH

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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

Order downloaded on 04-08-2025 10:05:12 PMPage 15 of 15

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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