R.M. LODHA, J. :---In this petition preferred under section 115 of the Code of Civil Procedure, 1908, the petitioner who is original defendant No. 1 in the suit, seeks to challenge the order dt. 29-11-91 passed by the City Civil Court, Bombay holding that the suit filed by the plaintiffs (respondent No. 1 and 2 herein) was triable by that Court and that the said Court has jurisdiction to entertain and try the suit.

2. The original plaintiffs who are respondents No. 1 and 2 herein filed a suit against the present petitioner/defendant No. 1 and the Municipal Corporation of Greater Bombay. It was inter alia averred in the said suit that the plaintiffs were owners in respect of the property being land bearing City Survey No. 730 (B) admeasuring about 12090 square meters and structures standing thereon. One portion of such property comprising of a structure consisting of ground and first floor, was let-out to the defendant No. 1. The tenancy was only with regard to the structure and not of land and it was let out to the defendant No. 1 for the purposes of commercial use only. The said structure which was let-out to the defendant No. 1 caught fire on 25th August, 95 and the complete structure occupied by the defendant No. 1 was gutted and destroyed. The case of the plaintiffs further was that on destruction of the structure let out to the defendant No. 1, the tenancy rights came to be extinguished and/or stood in abeyance at the option of the tenant. The plaintiffs averred in the plaint that defendant No. 1 was not entitled to carry on any work of construction and/or further construction on the said premises and the Bombay Municipal Corporation (B.M.C.) has also issued notice under section 354-A of the Bombay Municipal Corporation Act, 1888. The plaintiffs stated in the plaint that the suit did not attract any of the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short Bombay Rent Act), and, prayed for the reliefs that B.M.C. be directed by a mandatory order to issue further notices under section 351 of the B.M.C. Act, 1888 to the defendant No. 1, and defendant No. 1 be restrained from carrying on any work of construction and/or further construction on the disputed land in any manner whatsoever and/or from entering upon the said property through their contractors and/or instructing their contractors, developers to carry-on any work of construction of any nature whatsoever.

3. In the said suit the defendant No. 1 prayed for framing a preliminary issue whether the suit filed by the plaintiffs could be entertained and tried by the said Court and by the impugned order dt. 29-11-91 the trial Court held its jurisdiction in the affirmative giving rise to the present revision application.

4. The learned Counsel for the parties have been heard by me at considerable length.

5. Mr. Thakkar, learned Counsel appearing for the petitioner strenuously urged that on destruction of the tenanted property by fire the tenancy rights of the defendant No.1 did not come to an end and that the defendant No. 1 was entitled to remain in possession and while remaining in possession, the tenant was entitled to carry on necessary construction and repairs for protection of its tenancy rights. According to learned Counsel for the defendant No. 1, the claim or question pertaining to repairs or construction by the defendant No. 1 is a claim or question arising out of the provisions of the Bombay Rent Act and is, therefore, within exclusive jurisdiction of Court of Small Causes at Bombay under section 28 of the said Act and the joinder of the B.M.C. as defendant No. 3 to the suit between landlord and tenant filed for adjudication of such claim or question cannot take away the jurisdiction of the Court of Small Causes. In support of his contentions Mr. Thakkar the learned Counsel for the defendant No. 1 relied upon the Division Bench judgement of this Court in (Krishna Laxman Yadav and others, petitioners v. Narsinghrao Vithalrao S

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