SCA/5362/2008 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5362 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= GADHIYA ABDULHAMID AHMEDBHAI MUMAN & 2 - Petitioner(s) Versus MUMAN UMARBHAI VALIBHAI & 13 - Respondent(s) ========================================================= Appearance : MR MAHENDRA K PATEL for Petitioner(s) : 1 - 3. None for Respondent(s) : 1 - 14. ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 19/06/2008 ORAL JUDGMENT The petitioners have challenged the order dated 30.1.2008 passed by the learned Court below Exh.13. In the said order, the learned Court has recorded as follows:- SCA/5362/2008 2/3 JUDGMENT “4. Considering the factual aspects and disputes, the present panchnama is demanded for a passage passing from S.no.25, 24 and 24/1 of village Untavada for going to the fields of village Untavada. There is no averment in the entire plaint regarding S. no. 25, 24 and 24/1 of the village Untavada and now panchnama is sought for such passage by the plaintiff. Even there is no averment as regarding the ownership and position of the fields of S. no. 25, 24 and 24/1.” From the said observations and findings recorded by the learned trial Court, it transpires that the request for drawing panchnama came to be made by the plaintiff without there being any proper and necessary averments justifying or warranting such order, in the plaint. Since there were no supporting and necessary averments in the plaint, as found by the learned Court on perusal of the plaint, the learned Court considered it inappropriate to issue directions for drawing panchnama with regard to the issue, which was not in the plaint. In the such circumstances and facts, there does not appear to be any manifest error or apparent illegality in the SCA/5362/2008 3/3 JUDGMENT order of the learned Court and that therefore, there is no reason to interfere with such purely discretionary and interlocutory order in a petitioner under Article 227 of the Constitution of India. Hence, the petition does not deserve to be entertained. It would, however, be open for the plaintiff to make necessary averments, if permissible in law and in accordance with law and if so permitted by the learned Court, and thereafter may make necessary application before the learned Court. With the aforesaid observations and clarification, present petition is disposed of. No order as to costs. [K.M.Thaker, J.] kdc