JUDGMENT - F.I. REBELLO, J.:---Rule. Learned Counsel for the respondents waive notice. By consent, petition is taken up for hearing and final disposal. Heard forthwith.

2. This petition is directed against an order dated 30th January, 2002, whereby the Appellate Bench of the Small Causes Court in Appeal No. 490 of 1999 allowed the appeal against an order dated 20th September, 1999 passed by a learned Judge of the Small Causes Court in injunction Notice No. 5749 of 1998 in RAD (ST) No. 2946 of 1998.

3. A few facts may be adverted to in order to correctly appreciate the controversy that arises. Prior to 26th January, 1931, one Ardeshir B. Patel was the tenant in respect of the premises at West Front on the 2nd floor of the building known as “Mama Chambers” situated at 93, August Kranti Marg, Cumballa Hill, Mumbai 400 006. Ardeshir B. Patel expired leaving behind his widow Mrs. Pirojbai Ardeshir Patel and three sons Behram, Kurshed and Dhunjishaw. The widow of Ardeshir Patel, Pirojbai expired on 5th September, 1967. Rent receipts were transferred in the name of Behram from that of deceased Ardeshir Patel. On 31st October, 1982, Hilla, the widow of Behramji expired. On 9th December, 1985 Mrs. Jaloo Khurshed Patel, the wife of Mr. Khurshed expired. All the three sons of late Ardeshir expired between 26th December, 1985 and 25th April, 1998. Respondent No. 2, the widow of Dhunjishaw Patel was the only heir and legal representative surviving. She became the tenant. Rent receipts were issued in her name. The property belongs to a trust who needed the suit premises for accommodating the doctors working in the Cumballa Hill Hospital.

4. R.A.E. Suit No. 846/1543 of 1998 was filed against respondent No. 2 for eviction from the suit flat. On service of the summons on respondent No. 2, respondent No. 2 submitted to a decree on admission on 6th November 1998 and a decree was passed in terms of the minutes of the order. The case of the petitioners is that on 2nd December, 1998 the bailiff of the Small Causes Court handed over the possession of the suit flat to petitioner No. 2 at about 2 p.m. whereafter petitioner No. 2 put his own lock on the suit flat.

5. It is the case of the petitioners that they learnt that respondent No. 1 along with his father and 6 to 7 persons broke the lock of the suit flat and took forcible possession of the suit flat. The petitioners filed a complaint at Gamdevi Police Station as also the F.I.R. Respondent No. 1 after taking forceful possession filed a suit in the Small Causes Court being R.A.D. Suit No. 1975 of 1998 for a declaration that respondent No. 1 is a lawful tenant of the suit flat and for a further declaration that the decree dated 6th November, 1998 is a nullity. Relief by way of permanent injunction against the petitioners from interfering with the possession of respondent No. 1 was also sought. An injunction notice was taken out for interim relief. The same was contested by the petitioners. One of the objections raised was that the suit as framed and filed is not maintainable and, therefore, liable to be dismissed. An objection was also raised under section 9-A that the Court had no jurisdiction to entertain the suit under section 28 of the Bombay Rent Act with a prayer that the issue of jurisdiction be tried as a preliminary issue. Parties filed their respective affidavits. On 20th September, 1999, a learned Judge of the Court of Small Causes held that the suit was not maintainable under law and the Court had no jurisdiction to entertain and try the suit.

Against the order dated 20th September, 1999 dismissing the suit as not maintainable, an appeal came to be preferred before the Court of Small Causes, being Appeal No. 490 of 1999. There were some other applications which will not be adverted to. On 30th January, 2002 the Appellate Bench of the Small Causes Court allowed the appeal and set aside the order dated 20th September, 1999 holding that the suit was maintainable and the Court had jurisdict

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