A. B. CHAUDHARI,J.

Heard. Admit on the preliminary objection to the maintainability of the letters patent appeal.

2. In the present letters patent appeal there is a challenge to the judgment and order dated 23.2.2010 in W.P. No.5521 of 2009 by which the writ petition filed by the respondents was allowed. The counsel for the respondents, Mr. A. C. Dharmadhikari, raised a preliminary objection as to the maintainability of the present letters patent appeal in the light of the decision of Supreme Court in the case of Shalini Shyam Shetty & anr. Vs. Rajendra Shankar Patil reported in 2010(7) SCALE 428: [2010 ALL SCR 1681] decided on 23.7.2010. Since the preliminary objection was raised to the above effect relying on the aforesaid decision of Supreme Court, we have heard both the learned counsel for the parties on the said preliminary objection regarding maintainability of the letters patent appeal.

3. In support of the preliminary objection, counsel for the respondents made the following submissions

(i) The subject matter of the writ petition before the learned Single Judge was purely a dispute between the landlord and the tenant, namely the suit was filed for eviction of the tenant on certain grounds.

(ii) The learned Single Judge thus examined the correctness of the impugned judgment before him and having found a total perverse approach of the said court and incorrect application of law and in a clear error of jurisdiction vested in the appellate court, set aside the appellate judgment and thus allowed the writ petition.

(iii) Mr. Dharmadhikari referred to several paragraphs of the aforesaid judgment of supreme court in order to countenance his preliminary objection.

(iv) Perusal of the prayer clause in the writ petition shows that no writ muchless writ of certiorari was even sought by the respondents in the writ petition and the only prayer was to quash and set aside the judgment and order passed by the District Judge-3.

4. Per contra, Mr. M. G. Bhangde. learned senior counsel, made the following submissions (a) Writ petition that was filed by the respondents was admittedly under Articles 226 and 227 of the Constitution of India with a prayer therein to quash and set aside the judgment of District Judge-3 in Regular Civil Appeal No.140 of 2008. In the case of Surya Dev Rai Vs. Ram Chander Rai - (2003) 6 SCC 675: [2003(4) ALL MR 761 (S.C.)] the ratio decidendi laid down by the Supreme Court is that a writ of certiorari will lie even to demolish the order of civil court or in the instant case that of District Judge, and that is the present legal position laid down by the Supreme Court and therefore the judgment of the learned Single Judge quashing the judgment rendered by the District Judge, though in a dispute between landlord and tenant. it will have to be held that the learned Single Judge issued a writ of certiorari quashing the said appellate judgment Though it is true that the said issue has been referred by a Bench of Supreme Court to a larger bench in the case of Radhey Shyam Vs. Chhabi Nath reported in (2009)5 SCC 616 : [2009 ALL SCR 1765] (Paras 32 & 33), fact remains that there is no decision yet taken by the larger Bench of the Supreme Court and therefore the said judgment in Surya Dev Rai. supra. has a binding effect as on the date. The judgment in the case of Surya Dev Rai has been approved and followed in the subsequent judgment in the case of M.M.T.e. Ltd. Vs. Commissioner of Commercial Tax - (2009) 1 SCC 8 with reference to the earlier decision of Supreme Court on the issue regarding maintainability of the letters patent appeal. The three Judge Bench of Supreme Court in the case of M.M.T.C. Ltd., supra, approved Surya Dev Rais judgment and will have to be applied for considering the question in the present appeal.

(b) The case of Shalini Shetty and the order of Bombay High Court from which it arose. if seen show that the Bombay High Court had merely in a few lines dismissed the writ petition holding that the writ