1. By an order dated 8th February 2010 passed by this Court, this Court framed the following preliminary issue :

"Whether this Court has jurisdiction to decide the originating summons which has been taken out by the plaintiff in view of the suit being filed in the Small Causes Court under Section 41 of the said Act after the originating summons was filed?"

2. Learned counsel appearing for both the parties have accordingly addressed this Court on the preliminary issue framed by this Court. None of the parties have led oral evidence on the preliminary issue. Since the issue of jurisdiction is raised by the defendant, learned senior counsel appearing for the defendant addressed this Court first followed by the learned senior counsel appearing for the plaintiffs. Some of the relevant facts for the purpose of deciding this preliminary issue are as under:-

3. Defendant is a lessor of a large piece of land admeasuring 48057 sq. yards described in paragraph 1 of the plaint. By an Indenture of Lease dated 18th July 1898, executed between Mr Nawrosji Nusserwanjee Wadia on one part and the plaintiffs on the other part, the said Nawrosjee Nusserwanjee Wadia leased to the plaintiffs the suit property for a period of 999 years commencing from 1st December 1897 on the terms and condition contained therein. After obtaining possession of the suit land, the plaintiffs constructed a Mill Building, an Engine House, other buildings, drains, sewages, conveniences and appliances etc. and also constructed further structures on the land. It is the case of the plaintiffs that the plaintiffs were operating a textile mill known as Century Mill on the said properties for over a period of 100 years. The operations of the said mill was suspended from January 2007. By an order dated 11th January 2008, the Government of Maharashtra granted permission to the plaintiffs to close the mill and accordingly the plaintiffs closed the said mill.

4. By letter dated 31st January 2007, addressed to the plaintiffs the defendant contended that the user of the land and premises could not be changed from that of a Cotton Textile Mill and that any change of user from the Cotton Textile Mill would be contrary to the provisions of the Lease Deed. It is stated that the use of land and premises other than the use as a Cotton Textile Mill would require prior approval in writing of the defendant. Defendant requested the plaintiffs to furnish plans if any for the development of the land and premises together with any approvals/permissions required to be obtained from the Government or the Municipal Corporation. By letter dated 6th June 07, defendant recorded that in the meeting held on 2nd April 2007, the representatives of the defendant had stated that the plaintiffs had decided to close the mill and were not going to restart or operate the mill. The defendant recorded that at the said meeting the plaintiffs had confirmed that no plans had been finalized nor any application made to any authority for development of the said property. Defendant requested the plaintiffs to send a proposal in advance prior to finalizing any plans or making any application to any authority.

5. By letter dated 8th June 2007, the plaintiffs informed the defendant that the manufacturing operation at the textile mill in Mumbai had almost ceased in view of the fact that large number of workers were opting for retirement under the Voluntary Retirement Scheme. In the said letter the plaintiffs recorded that they had at the said meeting requested the representatives of the defendant to submit a proposal with regard to what the defendant would like the plaintiffs to do after official closure of the textile mill. The plaintiffs requested a meeting with the defendant. Defendant by letter through his representative sent a letter dated 18th June 2007 stating that the defendant was currently travelling and would respond to the said letter on his return. By letter dated 26th July 2007, the plaintiffs in