ORDER P.A. Mohammed, J. 1. The Correspondent of "Chinmaya Vidyalaya" in Balla village of Hosdurg Taluk is the revision petitioner. He is the second defendant in the suit filed by the first respondent, who is a teacher in the nursery section of the school run by "Chinmaya Mission". In the suit, the first respondent, inter alia, prayed for a mandatory injunction to reinstate her in the service of "Chinmaya Vidyalaya'. The suit was filed when her service was terminated by the Management on 21-8-1989. The revision arises from an order passed by the court below on a preliminary issue namely "Whether the court has jurisdiction to try the suit". Without taking evidence, the court below found that it has jurisdiction to try the suit. The correctness and legality of this finding is challenged in this revision. 2. Sub-r.(2) of R.2 of O.14 of the Code of Civil Procedure is thus: "2. Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue if first that issue relates to -- a) the jurisdiction of the Court, or b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with decision on that issue. Sub-r.(2) will be attracted only if the court is of the view that the case or any part thereof can be disposed of on an issue of a law only provided such issue relates to the jurisdiction of the court or a bar on the court to try the suit crested by any law for the time being in force what can be disposed of by the court under this sub-rule is an issue of law and nothing else because the word 'only' contained therein restricts scope of Its operation. If the adjudication of an issue also involves the question of fact, then such issue cannot be decided as a "preliminary issue'' in the suit. In other words, if the issue involves mixed question of law and fact, sub-r.(2) has no application. 3. If the adjudication of an issue also involves the question of fact, then such issue cannot be decided as a "preliminary issue'' in the suit. In other words, if the issue involves mixed question of law and fact, sub-r.(2) has no application. 3. It is necessary to examine whether the question of jurisdiction of the court to try the suit can be decided as a preliminary issue in this case without recording any evidence. In Muthayyan v. Manager, Kadalur Estate ( 1981 KLT 660 ) a question arose before this court whether a school teacher as a 'workman' as defined in the Industrial Disputes Act. In that case the petitioner was a teacher in the primary school in an estate. When he was dismissed from service the Government referred the dispute for adjudication. When the matter came up before the Labour Court, a preliminary objection was raised that the petitioner was not a 'workman'. Upholding the said objection the Labour Court rejected the reference. This court after quashing the award directed the Labour Court to adduce evidence about the functions of the teacher in the school. While analysing the question, Khalid, J. (as he then was) of this court observed thus: "What type of work does a teacher do? It cannot be said to be a technical work. Can it be a clerical work for hire or reward. A teacher may in the course of his work do some work which may be clerical in nature but that will not impress the character of his work with that of a clerical work. Is his work supervisory in nature? A definite answer is not possible .................................................................................. In my view, evidence has to be made available for coming to a proper decision. From the materials available in the case I find that the petitioner is employed in a school run by a plantation. The Plantation Act requires the running of such a school. The duties which a teacher in such a school discharges I hate to de proved by evidence. It may also be that in schools under the plantation a teacher does work other than teaching. Such evidence, if available may also help a decision of this difficult question." (Italics Supplied) 4. The Plantation Act requires the running of such a school. The duties which a teacher in such a school discharges I hate to de proved by evidence. It may also be that in schools under the plantation a teacher does work other than teaching. Such evidence, if available may also help a decision of this difficult question." (Italics Supplied) 4. What the above decision suggests is this; In order to qualify an employee as 'teacher' whether it be in the primary school In an estate or In the nursery section of a vidyalaya or any where else the evidence shall be necessary to ascertain the functions which the employee is expected to discharge. In the common parlance an employee may be Called 'teacher' but that will not be sufficient when he or she is faced with legal proof. The point appears to have been taken by the petitioner is that it was for the labour court to decide the dispute as to the retrenchment and not the civil court. The question of jurisdiction of the court to try the case thus arose for consideration. An issue has been framed by the court below in that regard. However, I cannot agree with the contention that this question as to jurisdiction of the court if purely an 'issue of law'. At this juncture I am being reminded of the decision of the Supreme Court in Miss A. Sundarambal v. Government of Goa, Daman & Diu and others ( AIR 1988 SC 1700 ) wherein it has been held that b teacher employed in a school does not fall within the definition of expression 'workman' though the school is an industry and therefore when service of teacher is terminated, it cannot be referred under S.10 of the Act. This decision does not say that in every case, therefore, the civil court has jurisdiction to try the case where such questions are involved. Neither there was any dispute at to the status of the appellant in that case as 'teacher' nor was there any question as to the nature of the functions she performed. What the Supreme Court ultimately decided was to uphold the finding of the High Court that the appellant therein was not a 'workman' though the school was an industry. Neither there was any dispute at to the status of the appellant in that case as 'teacher' nor was there any question as to the nature of the functions she performed. What the Supreme Court ultimately decided was to uphold the finding of the High Court that the appellant therein was not a 'workman' though the school was an industry. It cannot be said that this decision of the Supreme Court in any way makes it unnecessary to find oat the functions of a 'teacher' in a particular case to testify whether he or she will come within the definition of 'workman' as significantly pointed out in Muthayyan's case ( 1981 KLT 660 ). It is difficult to countenance the view that by reason of the aforesaid decision of the Supreme Court, the question as to jurisdiction is purely an 'issue of law' in this case. It is one thing to say, the law laid down by the Supreme Court is applicable. It is totally a different thing to say the court has no jurisdiction because of that law. In the latter case it can be said so, only after ascertaining the factual foundation in which case it turns to be an issue of fact and of law. In the present case this court is primarily concerned with the jurisdiction of court to decide a preliminary issue and not the application of law as such. 5. It is worthwhile to examine as to how the court below decided the question of jurisdiction in this case. After noticing the decision of this court in Muthayyan's case ( 1981 KLT 660 ) the court below agreed with the suggestion of the first respondent (plaintiff) that the teachers in the ordinary course will not come within the definition of 'workman' under the Industrial Disputes Act It appears, the court below has specifically noted the observation in the above case that the question has to be adjudicated after adducing detailed evidence by the Labour Court. The court below had also observed that the school whore the first respondent was working was not a public or aided school and it was an unaided private school to which the Kerala Education Rules were not made applicable. The court below had also observed that the school whore the first respondent was working was not a public or aided school and it was an unaided private school to which the Kerala Education Rules were not made applicable. The aforesaid observations of court below would sufficiently pinpoint that the decision as to the jurisdiction of the court to try the case can be disposed of only after recording evidence on certain facts. 6. From the foregoing discussion it has become obvious that what is required to be tried in the present suit is not only the issue of law but the issue of fact. It is nonetheless clear that issue of law relating to the jurisdiction of the court cannot be resolved without ascertaining facts after recording evidence. Thus it is a mixed question of law and fact. The Full Bench of the Madhya Pradesh High Court in M/s Ramdayal Umraomal v. M/s Pannalal Jagannathji ( AIR 1979 MP 153 ) held thus: "Therefore, after reviewing the entire case law on the point, we are of opinion that under O.14 R.2 C. P. Code, an issue relating to jurisdiction of the court can be tried as preliminary issue only if it can be deposed of without recording any evidence. If the issue about jurisdiction is a mixed question of law and fact requiring recording of evidence, the same cannot be tried as a preliminary issue." (Italics Supplied) The above decision has been followed by this court in Thiruvambadi Rubber Co. Ltd. v. Damodaran Nair ( 1984 KLT 586 ). 7. My conclusion, therefore, is that the finding recorded by the court below on issue No. 1 tried as a preliminary issue Is liable to be set aside, I do so. The court below if accordingly directed to try this issue also after recording evidence along with other issues framed in the suit. 8. In the result, the C. R. P. is allowed. No costs.