Page No.# 1/9 vs Gautam Baruah on 21 February, 2026

                                                                        Page No.# 1/9

GAHC010251022025




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                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : CRP(IO)/471/2025

            THE STATE OF ASSAM AND 2 ORS.
            REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF ASSAM,
            DISPUR, GUWAHATI-781006

            2: THE DISTRICT COMMISSIONER
             KAMRUP (M)
             HENGRABARI
             GUWAHATI-781006

            3: THE CIRCLE OFFICER
             DISPUR REVENUE CIRCLE
             BELTOLA CHARIALI
             GUWAHATI-78102

            VERSUS

            GAUTAM BARUAH
            S/O OF LATE ANIL KUMAR BARUAH, RESIDENT OF BOSABARI HOUSE,
            K.K BARUAH ROAD, JORHAT-785001, AT B2, URVASHI APARTMENTS, UZAN
            BAZAR, GUWAHATI-781001 AND AT SARUSAJAI GAON, MOUZA- BELTOLA,
            GUWAHATI-781029, KAMRUP (M), ASSAM



Advocate for the Petitioner   : MR. B K BHAGAWATI, MR B S DEKA

Advocate for the Respondent : MR S KHOUND, MS. S. SAIKIA,MS. N BORAH
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                                  BEFORE
                     HONOURABLE MR. JUSTICE ROBIN PHUKAN

                                      ORDER

21.02.2026

Heard Mr. B. K. Bhagawati, learned Counsel for the petitioners and Mr. S. Khound, learned counsel for the respondent.

2. Correctness or otherwise of the order, dated 18.07.2025, passed by the learned District Judge, Kamrup (M) at Guwahati (Appellate Court, for short) in Misc.(J) Case No. 83/2024, arising out of Title Appeal No. 30/2023, is challenged in this petition, under Article 227 of the Constitution of India, by the three petitioners, i.e. (i) State of Assam (ii) The Deputy Commissioner Kamrup(M), Guwahati and (iii) The Circle Officer, Dispur Revenue Circle.

3. It is to be noted here that vide impugned order, dated 18.07.2025, the learned District Judge, Kamrup (M) at Guwahatihad rejected the petition filed by the petitioners under Order XXVI Rule 9 and 10 read with Section 107 and 151 CPC for appointment of a Commissioner to make local investigation of the disputed property as regard the allegation against the District Administration regarding wrongful demolition of boundary wall of the plaintiff/respondent.

4. Mr. Bhagawati, learned counsel for the petitioners, submits that the respondent herein, as plaintiff, instituted a suit, being Title Suit No.191/2015, for declaration, damages/compensation, permanent injunction, mandatory injunction along with consequential reliefs and the suit was decreed by the learned Civil Judge No. 2, Kamrup (M), Guwahati (Trial Court, for short). Mr. Bhagawati further submits that in the said suit, Page No.# 3/9

the defendants/petitioners could not file their written statement and consequently, closed its evidence although they were allowed to cross- examine the witnesses of the respondent/plaintiff. Mr. Bhagawati also submits that perusal of the Schedule-'C' of the suit land reveals that Northern Boundary of the Schedule-'C' land, is the National Highway NH-37 and the respondent/plaintiff in Para-6 of the plaint averred that on 28.10.2014, the officials of the District Administration demolished the Northern Boundary Wall measuring about 123 feet.

4.1.Mr. Bhagawati also submits that thereafter, a Task Force comprising of Commissioner GMC, Secretary GMDA, Project Director P.W.D. N.H. and Superintendent of Police, was constituted by the then Principal Secretary to the Chief Minister (Assam) and accordingly, to clear illegal structures and other constructions including in the N.H-37 from Khanapara to Jalukbari and upto LGBI Airport. He also submits that NH-37 was initially 4 Lane and thereafter, it was upgraded to 6 Lane Highway and inspite of upgrading NH- 37 to 6 Lane Highway, the water logging problems continued to persist, for want of proper drainage. The Task Force then carried out clearance work of illegal structure andobstructions over the NH-37 and other roads and dug a huge drain in the Northern Side of NH-37 from Khanapara to DeeporBill for proper draining of rain water to avoid water logging in the National Highway and for free flow of road traffic. Accordingly, the Task Force had cleared the obstructions over the Northern Side of NH-37 and also dug the huge drain over the National Highway land and there was no public outcry as the same was done for public interest and within the land of National Highway.

4.2.It is the further submission of Mr. Bhagawati that thereafter, the Page No.# 4/9

respondent had instituted the aforesaid suit alleging damages caused to the hisPatta land, only against three authorities i.e., the present appellants, and therefore, the suit was bad for non-joinder of necessary parties, but the Learned Trial Court failed to consider this vital aspect. He also submits that the construction permission from National Highway Authority of India is necessary, but the respondent/plaintiff did not file any document to show that he took any permission from the said authority nor the plaintiff impleaded the said authority as a party to the suit and even if any wall etc. were pulled down, it was illegally constructed by the plaintiff over the land of NH-37 and as per amended Rule 18(ii) of the Assam Land Revenue and Regulation, the respondent/plaintiff is not entitled to get any compensation. But despite that the learned Trial Court has decreed the suit. The respondent/plaintiff in the Title Suit, had prayed for exercising the power under Order 26 Rule 9 CPC to elucidate the matter in dispute including the question of damages and compensation and the plaintiff duly prayed for such local commission in Paragraph-16 of hisplaint. But the learned Trial Court failed to consider such prayer.

4.3.Mr. Bhagawati also submits that against the said decree the petitioners herein has preferred an appeal being Title Appeal No. 30/2023,and during the pendency of the said appeal the petitioners had pray before the learned appellate court to exercise the power of Order 26 Rule 9 CPC. But, vide impugned order dated 18.07.2025, the learned appellate court had rejected the petition and the order is being impugned in this revision petition. According to him, the impugned order is illegal and arbitrary and it requires interference of this Court. He submits that the respondent herein has not Page No.# 5/9

impleaded some other necessary parties such as National Highway Authority and that the wall is situated over the land of National Highway Authority and to determine the same, appointment of Commission is very much necessary and therefore, he contended to allow this petition.

4.4.Mr. Bhagawati has referred following decisions to bolster his submission:-

(i) Shreepat vs. Rajendra Prasad &Ors., reported in 2006(6) Supreme 389;

(ii) Haryana Wakf Board vs. ShatiSarup&Ors, reported in 2008(8) SCC 671;

(iii) Rajaram Mali vs. SmtiSushmaShukla(Misc. Appeal No. 1282 of 2025.

5.Per contra, Mr. Khound, learned counsel for the respondent has vehemently opposed the petition. Mr. Khound, supporting the impugned order of the learned appellate Court submits that the petitioners herein had failed to file their written statement and though they were allowed to cross- examine the witnesses of the plaintiff,they could not setup their case by filing written statement and also could not lead evidence in support of their defence and during the trial they had failed to make any such plea before the learned trial Court and now at the appellate stage they cannot be allowed to fish out the evidence in the name of the Commission. Under such circumstances, Mr. Khound has contended to dismiss this petition.

5.1. In support of his submission, Mr. Khound has referred following case laws:-

(i) NityanandaChutia vs. SabirAzim Shah [Civil Revision Petition (I/O) No. 54/2004];

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(ii) RajibBarooah vs. Purnimati Plantation (P) Ltd., reported in (2018) 2 GLR 204;

(iii) Pankaj Kumar Mahato vs. State of Assam and Ors., reported in 2018 (2) GLR 210;

(iv) Swastik Assam Real Estate (P) Ltd. &Anr. vs. RatanRaha and Ors., reported in 2018 SCC OnLineGau 2350.

6. Having heard the submission of learned counsel for both the parties, this Court has carefully gone through the petition and the documents placed on record and also perused the impugned order, dated 18.07.2025, and also gone through the decisions relied upon by learned counsel for both the parties.

7.It appears that the learned appellate Court in the impugned order had held that admittedly the appellants/ defendants have failed to adduce any evidence in support of their claim that the wall stood on the national highway or in the vicinity thereof which entitled them to demolish the same without notice, therefore, there is nothing for the court to seek further elucidation of the matter by resorting to Order 26 Rule 9 CPC when even the basic evidence, whether oral or documentary, is missing. The learned appellate Court had also observed that the defendant had failed to discharge their onus to prove their case byadducing oral or documentary evidence and in such a situation, the court cannot assist the defendant/appellant in fishing out or unearthing evidence to support their case. Thereafter, it went on to observe as held by the Hon'ble Supreme Court that a Commissioner cannot be appointed to retrieve evidence when the plaintiff himself has failed to adduce the basic evidence. Moreover, no such application was made at the trial and it is at the belated stage of the Page No.# 7/9

appeal when such recourse has been made and when the plaintiff has already secured a decree in his favor and acceding to the prayer of the appellantsat this stage would amount to permitting them to introduce evidence in a indirect manner when they had failed to do so directly at the time of the trial. Such back door entry of evidence cannot be permitted and thereafter, it had rejected the petition.

8. The aforesaid finding of the learned appellate Court, when examined in the light of the submissions, so advanced by counsel of both the parties before this Court, and also in the light of the object of Order XXVI Rule 9 CPC, this Court finds no merit in the submission of Mr. Bhagawati, the learned counsel for the petitioners.

9.The primary object of Order XXVI Rule 9 CPC is to elucidate disputed matters through on-site examination, rather than to gather evidence for any party.It empowers courts to appoint a Commissioner for local investigations in civil suits.

9.1. There is no doubt that the appellate courts may allow an application under Order XXVI Rule 9 CPC under strict conditions tied to Order XLI Rule 27 CPC. But, while the Appellate Court consider such a prayer, it has to satisfy itself existence of following facts and circumstances in the case, and should allow it in a routine manner:-

(i) In the event of elucidating a material issue by the Commission the same will have a direct bearing on the outcome of the appeal.

(ii) The material issue could not be made available despite due diligence and reasonable effort during trial.

(iii) Refusal of appointment of such Commission will result in failure Page No.# 8/9

of justice.

9.2. In the case in hand, the petitioners had failed to file a written statement, which leads to passing of a decree under Order VIII Rule 10 CPC. No evidence was lead during trial by the petitioners as no written statement was filed. They had failed to setup their defence before the learned Trial Court. That being so, there is no material issue, that could be elucidated by appointing a Commission. They had not filed any application before the learned Trial Court for appointment of such Commission. Nothing is placed on record to demonstrate their due diligence; rather their conduct demonstrated their lackadaisical attitude towards the case demolished. Since no written statement was filed to raise a contention that the wall of the respondent was situated over the land of National Highway Authority not on the land of the respondent herein, so as to appoint a Commission to elucidate the said issue, the contention of the petitioners cannot be accepted. Under the given facts and circumstances, the petitioners cannot be permitted to invoke the provisions of Order 26 Rule 9 of the Code of Civil Procedure and call upon the Court to generate evidence for them.The petition filed by the petitioners at best can be termed as "fishing expeditions" or attempts to fill evidentiary gaps from trial lapses.

10. Thus,having examined the impugned order passed by the learned Court below and having heard learned Counsel for both the parties, this Court does not find any perversity in the impugned order, requiring any interference of this Court.

11. This Court has also carefully gone through the decisions referred by Mr. Bhagawati, learned counsel for the petitioners and it appears that the present case is factually distinguishable from those cases, as herein this Page No.# 9/9

case, the petitioners had failed to file their written statement. Therefore, the decisions so relied upon by Mr. Bhagawati, would not come into his assistance. On the other hand this Court finds substance in the submission of Mr. Khound, learned counsel for the respondent and the decisions referred by him also advanced his argument and accordingly, the same is accepted.

12.In the result, this Court finds no merit in this petition and accordingly, the same stands dismissed.

JUDGE

Comparing Assistant