The court established that the applicability of the Bombay Rent Act depends on the lease's terms and requires fresh examination by the Small Cause Court.

1. Leave granted.

2. This appeal is directed against the judgment and order dated 1-4-2004 passed by the High Court of Judicature at Bombay in Civil Revision Application No. 22 of 2000, whereby and whereunder the revision application filed by the petitioner herein, assailing an order dated 7-8-1999 in Small Cause Suit No. 91 of 1988, was dismissed. The parties hereto allegedly entered into a tenancy agreement in relation to the premises described more fully and in details in para 2 of the plaint. It is not in dispute that by reason of the order dated 5-3-1991, the Bombay High Court in Civil Revision Application No. 328 of 1991, directed the Small Cause Court wherein the suit for possession was filed by the respondent herein, to determine the question of jurisdiction as a preliminary issue. Pursuant thereto and in furtherance thereof a preliminary issue as to whether the Court of Small Causes has jurisdiction to try the suit, was framed.

3. Before we advert to the order passed by the learned Small Cause Court on the said issue, it may be noticed that the plaintiff had filed an application purported to be for return of the plaint, on the premise that the Small Cause Court had no jurisdiction so as to enable him to re - file the plaint in a civil court. The said plea was rejected on the premise that the averments made in the plaint demonstrated that the jurisdiction to entertain the suit was with the Small Cause Court.

4. On the aforementioned purported preliminary issue, the learned Judge of Small Cause Court, by reason of an order dated 7-8-1999, relying on an earlier order dated 25-8-1988 and also relying on a decision of this Court in Uttamchand v. S. M. Lalwani1 opined that the provisions of the Bombay Rent Act , 1947*, were not applicable to the suit. A revision application taken thereagainst by the petitioner was dismissed by the High Court stating:
"On bare reading of S.26 and Entry 4 in the Second Schedule, if read together with the title clause of the said suit as same being filed under S.26 of the Provincial Small Cause Courts Act , 1887, I find that the order passed by the Civil Judge, SD, Jalgaon, concluded that the Court of Civil Judge, SD is having jurisdiction to entertain the suit under the said , 1887 and the Bombay Rent Act is not applicable to the said case, is definitely proper and justified. "

5. One of the questions which indisputably would arise for consideration of the Small Cause Court would be as to whether having regard to the nature and character of the demise made in favour of the appellant by the respondent herein, the same would constitute transfer of the premises together with the machineries installed therein or it was principally a demise of the machinery and incidentally the premises had also been transferred.

6. The decision of this Court in Uttamchand1 as also in Dwarka Prasad v. Dwarka Das Saraf , 1976 (1) SCC 128 : 1976 (1) SCR 277 came to be considered by a three - Judge Bench of this Court in Natraj Studios (P) Ltd. v. Navrang Studios 1981 (1) SCC 523 wherein, inter alia, it was held that the real subject of the lease was the cinema apparatus and fittings, including "subsidiarily and incidentally" the building. The question has to be considered in a different manner to a situation where an agreement had been entered into for use of a building and other premises wherein machineries, equipments, property and other materials, etc. have also been permitted to be used.

7. In Natraj Studios 1981 (1) SCC 523 Uttamchand1 was also distinguished stating that the dominant intention of the parties was that the building should be