SUNIL ISHWARLAL DAMANIA Vs. SHIVPRASAD RUNGTA

JUDGEMENT

(1.) The petitioner and his brother Ravindra Ishwarlal Damania who is added as the second respondent in this petition, are the tenants of a flat on the first floor of a building called Sharat Sadan situated at 33, Tagore Road, Santacuz Bombay. The first respondent is the owner of that building and was at all material times the landlord vis-a-vis the petitioner and his brother, hereinafter referred to as the defendants. The first respondent, hereinafter referred to as the plaintiff filed a suit, being R.A.E. & R. Suit No. 491/2578 of 1972 for possession of the aforesaid flat, hereinafter referred to as the suit premises which was dismissed by the Small Causes Court at Bombay by its judgment and order dated 7th of June, 1977. An appeal being Appeal No. 404 of 1977 preferred by the plaintiff was allowed by the Appellate Bench of the Small Causes Court by its judgment and order dated 25th of April, 1978.

(2.) At this stage it is necessary to mention that in the plaint which was presented to the Court of first instance, in all the relevant paragraphs, the description of the suit premises was correctly mentioned as the premises situated on the first floor of the building. Even in the title of the plaint the address of the defendants was shown correctly as the first floor of Sharat Sadan. In the trial Court when the evidence was led both the plaintiff and the defendants were fully conscious that the premises which were in possession of the defendants was the flat on the first floor of Sharat Sadan. The finding given by both the courts below was on the basis that the defendants were in possession of the flat on the first floor of the building. When the appeal Court decreed the suit by reversing the decree of the dismissal passed by the trial Court it only proceeded to mention that the defendants to deliver vacant and peaceful possession of the suit premises to the plaintiff.

(3.) The difficulty has arisen and it has given rise to this fresh spate of litigation because in the prayer clause of the plaint the plaintiff had prayed as follows :---