SCA/6618/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6618 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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 ? ========================================================= TAJ MOHAMMED FAKIR MOHAMMED - Petitioner(s) Versus IQBAL HUSSEIN MOHAMMED IBRAHIMBHAI & 6 - Respondent(s) ========================================================= Appearance : MRS NASRIN N SHAIKH for Petitioner(s) : 1, MR ASIFKHAN I PATHAN for Respondent(s) : 1 - 7. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 02/09/2008 ORAL JUDGMENT By way of this petition under Article 227 of the Constitution of India, the petitioner – original defendant has prayed for appropriate writ, order SCA/6618/2008 2/4 JUDGMENT and/or directions, for quashing and setting aside the order passed by the learned Chamber Judge, Court No.8, City Civil Court, Ahmedabad, below Exh.20 in Civil Suit No.616 of 2008 dated 04.04.2008, by which, the learned Chamber Judge, Court No.8 of the City Civil Court, Ahmedabad, has rejected the application submitted by the petitioner – original defendant to appoint the Court Commissioner for preparation of Panchnama and Map of the Chawl, more particularly to consider whether their latrines in the properties were occupied by respondents No.1 to 7 or not. 2. Considering the impugned order, it appears that the learned Chamber Judge dismissed the said application by holding that the dispute is not regarding existence of toilets in the premises in the occupation of the plaintiffs and that the plaintiffs have come to the court with a case that they have a right of using the suit plot for various purpose as mentioned in the suit. However looking to the counter-claim, the learned Chamber Judge was not right in observing that dispute is not regarding existence of toilets in the premises in the occupation of the plaintiffs. Under these circumstances looking to their counter-claim, the SCA/6618/2008 3/4 JUDGMENT impugned order passed by the learned Chamber Judge, Court No.8, City Civil Court, Ahmedabad below Exh.20 in Civil Suit No.616 of 2008 dated 04.04.2008 deserves to be quashed and set aside. 3. At this stage, Shri A.I.Pathan, leraned advocate on behalf of respondents No.1 to 7 has submitted that as such the prayer of the petitioner – original defendant for preparation of Panchnama and Map of the premises was not only of the respondents No.1 to 7 but other occupants also who are not before the Court. Miss N.N. Shaikh, learned advocate appearing on behalf of defendant has submitted that Panchnama of the premises be restricted with regard to the existence of the toilets in the occupation of the original plaintiff only. 4. Under these circumstances and for the reasons stated above, the petition succeeds and the impugned order passed by the learned Chamber Judge, Court No.8, City Civil Court, Ahmedabad below Exh.20 in Civil Suit No.616 of 2008 dated 04.04.2008 is hereby quashed and set aside and the learned trial Judge is SCA/6618/2008 4/4 JUDGMENT directed to appoint the Court Commissioner to prepare the Panchnama with respect to the existence of the toilets in the premises in the occupation of the land of original plaintiffs – respondents No.1 to 7 herein only. Rule is made absolute. In the aforesaid facts and circumstances of the case, no order as to costs. [M.R.SHAH, J.] bddave