A.Lala, J. - (1.) This application is made under very peculiar circumstances. Previously the suit under which this application is made along with a suit of the respondent/defendant being EOS No. 5 of 1991 were heard analogously by a bench of this Court (Ajoy Nath Ray, J.). Upon hearing both the suits on evidences and on arguments the Court felt to pass decrees as follows: "The suit No. 824 of 1989 instituted by Delta is decereed in terms of claim (a); the plaintiff will also be entitled to mense profits at the rate of Rs. 12/- per sq.ft. per month on 1922 sq.ft. from 1.6.88 until delivery of vacant possession. The plaintiff will be entitled to assessed costs of Rs. 50,000/- taking the costs at the rate of Rs. 5,000/- per day of hearing and having the costs to 10 days since the two suits have been heard together for 20 days. The extraordinary suit of the Foundation being No. 5 of 1991 is dismissed with costs assessed on the same basis at Rs. 50,000/- which is to be paid to Delta International by Dr. Prosanta Kumar Mohanati out of the funds of the Foundation or by sale, including those at Delhi, Bombay and Bangalore the addresses of which are available from the records of this suit". Claim (a) of the suit No. 824 of 1989 is as follows: "(a) A decree directing the defendant to deliver up vacant and peaceful possession of the premises situated at No. 4, Government Place North (Seventh floor), Calcutta - 700 001 more specifically described in Schedule "A" to the plant". Schedule "A" of the plaint under the decree in terms of prayer 'a' is as follows: Schedule of the Demised Premises All that the demarcated portion of the seventh floor of the premises No. 4, Government Place North containing an area of the 1922 sq.ft. more or less and delineated in the plan hereby annexed and therein marked Block 'A' and enclosed within Red Borders, the said premises being comprised in Holding No. 17 in block No. XXI of the South Division of the town of Calcutta and butted and bounded. On the North By - Premises No. 4, Council House Street, On the East by - Fancy lane, On the South by - Gopvernment Place North, and on the West - by Premises No. 3, Council House Street". "The suit No. 824 of 1989 instituted by Delta is decereed in terms of claim (a); the plaintiff will also be entitled to mense profits at the rate of Rs. 12/- per sq.ft. per month on 1922 sq.ft. from 1.6.88 until delivery of vacant possession. The plaintiff will be entitled to assessed costs of Rs. 50,000/- taking the costs at the rate of Rs. 5,000/- per day of hearing and having the costs to 10 days since the two suits have been heard together for 20 days. The extraordinary suit of the Foundation being No. 5 of 1991 is dismissed with costs assessed on the same basis at Rs. 50,000/- which is to be paid to Delta International by Dr. Prosanta Kumar Mohanati out of the funds of the Foundation or by sale, including those at Delhi, Bombay and Bangalore the addresses of which are available from the records of this suit". Claim (a) of the suit No. 824 of 1989 is as follows: "(a) A decree directing the defendant to deliver up vacant and peaceful possession of the premises situated at No. 4, Government Place North (Seventh floor), Calcutta - 700 001 more specifically described in Schedule "A" to the plant". Schedule "A" of the plaint under the decree in terms of prayer 'a' is as follows: Schedule of the Demised Premises All that the demarcated portion of the seventh floor of the premises No. 4, Government Place North containing an area of the 1922 sq.ft. more or less and delineated in the plan hereby annexed and therein marked Block 'A' and enclosed within Red Borders, the said premises being comprised in Holding No. 17 in block No. XXI of the South Division of the town of Calcutta and butted and bounded. On the North By - Premises No. 4, Council House Street, On the East by - Fancy lane, On the South by - Gopvernment Place North, and on the West - by Premises No. 3, Council House Street".
(2.) At the time of adducing evidence the concerned Lease Deed alongwith plan was exhibited. The area of occupation either in the suit of the plaintiff or in the suit of the defendant as per the schedule containing an area of 1922 sq.ft. fore or less.
(3.) Therefore, there is no dispute as to the area of occupation. There is no dispute as to the existence of the Lease Deed. There is also no dispute as regards existence of the plan being part and parcel of such lease deed. The Court proceeded on the strength of such documents and passed a decree. The decree was put for drawing up and completion of the same in the department of this High Court when for the first time the plaintiff/petitioner found that the plan is not available with the plaint as per the description in the schedule.;