Judgment :- 1. For reasons I have set out in my orders in CRP. No. 192 of 1963 and in CRP. Nos. 290 and 291 of 1963, I do not as a rule, entertain revisions under S.115 of the Code against orders allowing or declining a stay under provisions like S.4 of Act 1 of 1957, or, as in the present case, under S.5 of Act 7 of 1963. To put the matter briefly there must be a case decided before S.115 of the Code can be invoked. And the only case so far decided in the present case is that the suit is not liable to be stayed under S.5 of Act 7 of 1963. In so deciding the court below exercised a jurisdiction which the law required it to exercise, and, even if its decision be wrong, it cannot be said that it acted illegally or irregularly in the exercise of its jurisdiction. If its decision be wrong and it proceeds to try and decide the suit, the case decided without jurisdiction would be the suit and not the present interlocutory application for a stay which it has dismissed. Therefore, in my view, no revision lies against that dismissal. 2. It might be said that in a case where the court has wrongly stayed the suit it has failed to exercise the jurisdiction to try the suit vested in it by law. But the Act is after all, a temporary statute and it is rarely, if ever, that a mistaken stay can cause injustice so as to persuade this court to exercise its discretionary power under S.115 of the Code. 3. Whether a transaction is a kanam or a kanom-kuzhikanam or otherwise conforms to the transactions implied in S.3 (26) of the Act, and whether, for that reason, a person holding under it is a tenant within the meaning of the Act, is rarely a matter to be decided on a mere study of the document embodying the transaction. It is a mixed question of fact and law, which, especially in view of S.10 of the Act which gets rid of the restriction in S.91 of the Evidence Act, will have to be decided on the evidence furnished not merely by the document and by the surrounding circumstances but on other evidence as well, even evidence contrary to the terms of the document. The usual practice seems to be to decide the matter, as has been done in the present case, on an interlocutory application without calling for any evidence apart from the document itself. It therefore seems to me particularly dangerous for this court to make a pronouncement, one way or the other, on material which is insufficient, and thus provide a decision which, though not res judicata, would be binding as a precedent in the trial of the suit even after the contemplated legislation, to which Act 7 of 1963 is but a prelude, has conferred in respect of the several transactions defined in the Act (and which definitions will be, by and large, adopted by the contemplated legislation) certain benefits of a permanent character on one party with corresponding disadvantages to the other. 4. There has been some discussion at the bar as to whether the proper procedure for the trial courts to follow in such cases is to decide the question of stay, as they generally seem to do, on an interlocutory application made by the party seeking the stay or to follow the course favoured by some of the decisions of this court, of deciding it on issues joined in the suit and tried as preliminary issues. In my view, S.5 of the Act unlike, for example, S.10 of the Code, is really a defence to the suit, a defence which the legislature has provided as a preclude to conferring on "tenants" certain benefits of a permanent nature by future legislation. Where the defence is established, it is a complete defence to a suit instituted after the commencement of the Act, and the suit will have to be dismissed. And it is none the less a defence for being only a partial defence to a suit instituted before the commencement of the Act, for in such a case although the suit cannot be dismissed, it cannot be tried and must await the contemplated legislation for its eventual decision in accordance with that legislation. And it is none the less a defence for being only a partial defence to a suit instituted before the commencement of the Act, for in such a case although the suit cannot be dismissed, it cannot be tried and must await the contemplated legislation for its eventual decision in accordance with that legislation. Therefore, it seems to me that, notwithstanding a decision one way or the other, whether right or wrong, on an interlocutory application, it would still be open to a party to plead the stay under S.5 as a defence to the suit and that, if that is pleaded, the court would have to decide that question as a preliminary issue after hearing all the evidence which both parties wish to adduce; and needless to add, it must do this entirely uninfluenced by what it might have said in its interlocutory order. 5. In this view, the proper, at any rate the better, course would seem to be to settle the necessary issues and try them as preliminary issues whenever a defence under S.5 of the Act is pleaded. The apprehension that, should it be found that the suit has to be stayed, the trial of those issues would be a violation of the section seems to me unfounded. An issue such as whether a suit or an issue will lie, or can be tried, in view of provisions like, for example S.11 or S.80 or S.86 of the Code, or S.5 of the Act itself, is properly settled and tried as a preliminary issue and I do not suppose that any one would say that the trial of that issue is a violation of those provisions. The trial of such an issue is not a trial of the suit itself but a trial of the question whether the suit can be tried or not. 6. I dismiss the petition with costs. Dismissed.