( 1 ) THE present petitioners were the original opponents, whereas the present respondent was the original applicant in P. S. R. P. No. 16 of 1985 filed in the Small Causes Court, Ahmedabad under the provisions of Sec. 41 of the presidency Small Causes Courts Act, 1882 (the Act for short ).

( 2 ) THE relevant and pertinent facts, in brief, are as under :2. 1. The original applicant is a widow of Dr. C. H. Desai, who expired on 30th August 1989, and the original applicant, therefore, inherited all the properties as the sole heir including the tenancy rights to the property in question. The deceased husband of the original applicant had taken the premises on lease on a monthly rent of Rs. 200. 00 in the month of August 1951 from the then owner one jasubhai Lallubhai Sheth. After taking the said property on lease, later Dr. C. H. Desai had entered into a partnership with the original opponent No. 1 effective from September 1951. The said partnership continued with the business of running a maternity and nursing home as a licensee of the late Dr. C. H. Desai, but even after the partnership commenced its business, the tenancy rights in respect of the premises continued in the name of Dr. C. H. Desai and the said partnership firm continued its business only as a licensee of Dr. C. H. Desai. On the death of the said Dr. C. H. Desai, the tenancy right was inherited by the original applicant, and the present owner of the property (the present landlord) has accepted the original applicant as a tenant. Since the original applicant did not desire to continue the licence in favour of the partnership, she gave notice in that regard dated 10th April 1985 and ultimately filed the application to obtain vacant possession of the premises. For the purpose of this application, the value as stated in para 10 of the application is Rs. 4,000. The original opponent filed the reply Exh. 10 which was amended vide Exh. 30. It was contended by them that the "rack rent" of the premises is more than Rs. 3,000. 00 per year since the actual rent is Rs. 200. 00 per month, and that there is also municipal tax and education cess. After referring to the various amounts paid by them in various years as municipal tax and education cess, it was contended that the "rack rent", therefore, exceeds Rs. 3,000. 00 and that therefore, the trial Court had no jurisdiction to entertain the application. 2. 2. It may be noted that Sec. 41 of The Presidency Small Causes Courts Act, 1882 (hereinafter referred to as "the Act") was amended by Gujarat Act 20 of 1979 with effect from 1-1-1980, and the phrase "rs. 2,000/-" was substituted by the phrase "rs. 5,000/-". 2. 3 Thereafter the original opponents (present petitioners) gave an application exh. 39/a contending that rack rent is more than Rs. 5,000. 00, inasmuch as the actual annual rent of the premises is Rs. 2,400. 00, that the municipal tax and education cess is Rs. 2,090. 36, the electric consumption charges is about Rs. 3,500. 00, and that therefore the rack rent exceeds Rs. 5,000. 00, and consequently the Small Cause Court would not have jurisdiction to entertain the application. The prayer made in the said application Exh. 39/a was that the issue as to jurisdiction should be heard as a preliminary issue, and the application suggests that the preliminary issue be framed as stated in the said application. The suggested preliminary issue was as under : "whether applicant proves that the rack rent of suit premises is Rs. 5,000. 00 or below Rs. 5,000. 00 ? If not, whether the application under Sec. 41 of the Presidency small Causes Courts Act, 1882 is maintainable against the present opponents ?2. 4 The original applicant filed a reply at Exh. 40. It was contended therein that the aforesaid application was given by the opponents therein only with a view to delay the proceedings, that the rack rent would only mean the rent actually received by the landlord, and that the municipal tax and education cess payable to