JUDGMENT

MAJMUDAR, J. :—In both the civil appeals the first one arising pursuant to the certificate of fitness granted under Article 133 of the Constitution by the High Court of Bombay and the other one arising out of special leave to appeal granted by this Court under Article 136 of the Constitution of India against another decision of the same High Court, a short question arises for our consideration. It is as under :-

"Whether the suit filed by the plaintiff claiming the right to possess the suit premises as a licensee, against defendant alleged licensor, who is said to be threatening to disturb the possession of the plaintiff licensee, without following due procedure of law, is cognizable by the court of small causes Bombay as per Section 41(1) of the Presidency Small Cause Courts Act (hereinafter referred to as "the Small Causes Courts Act"), 1882 or whether it is cognizable by the City Civil Court, Bombay, constituted under the Bombay City Civil Court Act."

2. The High Court by the impugned judgment in these appeals has taken the view that such a suit is not maintainable before the City Civil Court and should be filed in the Small Causes Court, Bombay, under Section 41(1) of the Small Causes Courts Act. The learned counsel for the appellants contended before us that the said view is not correct. Learned counsel for the respondents on the other hand has supported the same view.

3. Before we consider the aforesaid question, a few relevant facts leading to both these appeals deserve to be noted at the outset.

FACTS IN C. A. NO. 4913 OF 1989

4. The appellant-plaintiffs filed suit No. 1290 of 1984 in the Bombay City Civil Court against the respondent-defendant for permanent injunction on the ground that the appellants are in possession of the suit shop. That the respondent-defendant is tenant of the suit premises being Shop No. 4, Meghji Vallabhadas Trust Building, Bhavanishanker Road, Dadar, Bombay. That the defendant took the same premises in December, 1974 on rent and put the appellants into possession thereof under an irrevocable licence/tenancy agreement. It was agreed that Plantiff No. 1 had to pay licence fee to the defendant or to the landlord. The plaintiff further averred that due to some difference of opinion between the parties, the defendant started threatening the appellants that he would physically throw them out of the suit premises and hence the suit for permanent injunction restraining the respondent-licensor from disturbing the possession of the plaintiff-licensees of the suit premises.

5.We are not concerned with the defence of the respondent on merits for resolving the present controversy about the jurisdiction of the City Civil Court to entertain such a suit. Jurisdiction of the Court has to be decided at this stage on the averments in the plaint on demurrer, taking them to be true.

6. The appellants moved an application for temporary injunction pending the suit. While opposing the said application, the respondent contended that the City Civil Court has no jurisdiction to entertain the suit and it was only the Small Causes Court, Bombay, which could entertain such a suit. This contention was examined by the City Civil Court as a preliminary issue. After hearing both the sides, learned Judge of the City Civil Court came to the conclusion that the Court had jurisdiction to entertain such a suit for injunction and thereafter directed that the injunction application should be heard on merits.

7. The said order of City Civil Court was challenged by the respondent by filing Civil Revision Application No. 212 of 1985 in the High Court. The learned Chief Justice (Madhava Reddy, CJ) who heard the revision in the first instance thought it fit to refer the matter to a Division Bench, looking to the importance of the question involved. The revision application thereafter was placed before a Division Bench consisting of P. B. Sawant, J. (as he then was) and G. H. Guttal, J. Sawant, J. took the view that the City Civil Court