MANTU NAIK v. BANKIM CHANDRA MAITY — 1995 DIGILAW 419 (CAL)

T. CHATTERJEE, J. ( 1 ) - Defendant No. 2 in a suit, filed against Sri Radhakrishan Giri of village Mozilapur, Post Office Dunki, District. Midnapore for eviction from a shop room at Contai by the plaintiff/ opposite party is the petitioner before me in this revisional application. The plaintiff/opposite party has brought the aforesaid ejectment suit against the petitioner and the said Radhakrishan Giri, defendant/opposite party No. 2 in this revisional application in the first court of the Munsif at Contai, District Midnapore. In the aforesaid ejectment suit, although summons was served upon the opposite party No. 2 he did not enter appearance in the suit. It is the petitioner who after entering appearance had filed two applications under section 17 (2) and 17 (2a) of the West Bengal Premises Tenancy Act (hereinafter referred to as the said 'act') for determination of the arrears of rent payable by him to the plaintiff/opposite party and on such determination suitable instalments be granted to him for deposit of arrears of rent. The applications under section 17 (2) and 17 (2a) of the Act were however, contested by the plaintiff/opposite party in which the opposite party specifically pleaded that the petitioner was never a tenant under him. Therefore, according to the plaintiff/opposite party there was no relationship of landlord and tenant between him and the petitioner. Issues have been framed in the suit. Issue No. 4 is "whether there is any relationship of landlord and tenant between the petitioner and the opposite party No. 1". It may be mentioned at this stage that the petitioner did not raise any objection as to the jurisdiction of the trial court to take up the hearing of the aforesaid issue No. 4 along with the applications under section 17 (2) and 17 (2a) of the Act without taking up the other issues. In order to prove that there was relationship of landlord and tenant between the petitioner and the plaintiff/opposite party, evidence was also adduced in behalf of the petitioner. The plaintiff/opposite party, also in support of his case, adduced evidence. Issue No. 4 was found on fact by the learned Munsif, first court, at Contai, Midnapore against the petitioner by an order dated 24th April, 1990 and an application for review of this order was filed by the petitioner which was also rejected by the trial court. The plaintiff/opposite party, also in support of his case, adduced evidence. Issue No. 4 was found on fact by the learned Munsif, first court, at Contai, Midnapore against the petitioner by an order dated 24th April, 1990 and an application for review of this order was filed by the petitioner which was also rejected by the trial court. It is on record that subsequently by another order being order No. 72 passed on the same date-that is on 18th April, 1992, the trial court also rejected the petitions under section 17 (2) and 17 (2a) of the Act on a footing that there was no relationship of landlord and tenant between the parties. Feeling aggrieved by the aforesaid orders the petitioner has come up to this court is revision with an application for condonation of delay in moving the revisional application against the order dated 24th April, 1990 disposing of the issue No. 4 against the petitioner. Considering the facts and circumstances of this case I am satisfied that the delay in filing revisional application against the order dated 24th April, 1990 disposing of the issue No. 4 against the petitioner, has been properly explained by the petitioner and accordingly the delay in moving the same against the aforesaid order is condoned. ( 2 ) MR. Roychoudhury, appearing on behalf of the petitioner, has not questioned the findings arrived at by the Trial Court on the question of relationship of landlord and tenant between the petitioner and the opposite party and also has not questioned the validity of the order passed by the trial court rejected the petitions filed under section 17 (2) and 17 (2a) of the Act on a footing that in view of the finding that there was no existence of relationship of landlord and tenant between the petitioner and the opposite party, the applications under section 17 (2) and 17 (2a) of the Act filed by the petitioner who was found to be not a tenant under the plaintiff/opposite party by the aforesaid order, were not maintainable in law. The only question that was raised by Mr. Roychoudhury, appearing on behalf of the petitioner, is that the trial court had acted illegally and without jurisdiction in disposing of the issue No. 4 in separation of other issues framed in the suit. According to Mr. The only question that was raised by Mr. Roychoudhury, appearing on behalf of the petitioner, is that the trial court had acted illegally and without jurisdiction in disposing of the issue No. 4 in separation of other issues framed in the suit. According to Mr. Roychoudhury, in view of the amended provisions of Order 14 rules 1 and 2 of the Code of Civil Procedure, in procedure adopted by the learned Munsif in taking up the issue No. 4 in separation of other issues was not at all permissible and accordingly, the learned Munsif had no jurisdiction to take up the issue No. 4 for final decision without taking up other issues framed in the suit or issue No. 4 could not be disposed of at the time of disposal of the petitions filed under Section 17 (2) and 17 (2a) of the Act. According to Mr. Roychoudhury, in order to decide the applications under section 17 (2) and 17 (2a) of the Act, if any finding is required to be made on the question of relationship of landlord and tenant between the parties, it would be open to the Court to come to a finding on such question. But the finding arrived at, while deciding the petitions under section 17 (2) and 17 (2a) of the Act, would be construed to have been made only for the purpose of deciding the applications under section 17 (2) and 17 (2a) of the Act. Therefore, Mr. Roychoudhury contended that since this procedure was not followed and on the other hand the issue No. 4 was taken up in separation of the other issues and in view of the amended provisions of Order 14 rules 1 and 2 of the Code of Civil Procedure where it has been clearly said that all issues must be tried together, the trial court had acted illegally and with material irregularity in disposing of the issue No. 4 in separation of the other issues. This argument of Mr. Roychoudhury was however, contested by Mr. Sudhis Dasgupta who appeared on behalf of the plaintiff/opposite party. According to Mr. This argument of Mr. Roychoudhury was however, contested by Mr. Sudhis Dasgupta who appeared on behalf of the plaintiff/opposite party. According to Mr. Dasgupta, the petitioner cannot be permitted to raise this question in revision when the petitioner himself participated in the proceeding without raising any objection to the extent that the issue No. 4 cannot be decided in segregation of other issues or with the petitions under section 17 (2) and 17 (2a) of the Act. Mr. Dasgupta, however, contended that assuming the petitioner can be permitted to raise such question in this revisional application even then the amendment of Order XIV of the Code of Civil Procedure does not prohibit the court from taking up an issue of fact independently of other issues nor the position in law which was prevailing before the amendment of Order XIV of the Code of Civil Procedure has been changed on account of such amendment. ( 3 ) HAVING heard Mr. Roychoudhury for the petitioner and Mr. Dasgupta appearing on behalf of the plaintiff/opposite party and after taking into consideration the submissions made on behalf of the parties I am of the view that the learned Munsif had not acted illegally and with material irregularity in the exercise of his jurisdiction in taking up the issue No. 4 in separation of other issues framed in the suit or at the time of final disposal of the petitions under section 17 (2) and 17 (2a) of the Act. Therefore, no interference can be made against the impugned orders in the exercise of my revisional power under section 115 of the Code of Civil Procedure. ( 4 ) BEFORE I take up the question raised by the parties as to whether the issue No. 4 could be disposed of in separation of other issues framed in the suit or with the petitions under section 17 (2) and 17 (2a) of the Act, it may be mentioned at this stage that Mr. Dasgupta was perfectly justified in making a comment that the petitioner was estopped from raising the said question as he himself adduced evidence in support of his case and did not raise before the trial court that such an issue could not be taken up for disposal in segregation of all other issues framed in the suit. Dasgupta was perfectly justified in making a comment that the petitioner was estopped from raising the said question as he himself adduced evidence in support of his case and did not raise before the trial court that such an issue could not be taken up for disposal in segregation of all other issues framed in the suit. Assuming that the petitioner can be permitted to raise the aforesaid questions in the civil revisional application for the first time, even then on merits also, I am in full agreement with Mr. Dasgupta that it was open to the Court in an appropriate case to take up a particular issue of fact for decision before the other issues are taken up for decision in the suit. However, this question shall be dealt with in detail later. Therefore, let me now consider that in view of the amendment effected in Order 14 rules 1 and 2 of the Code of Civil Procedure, whether the court still can take up an issue of fact for decision in separation of other issues raised in the suit or in other words whether a particular, issue of fact can be decided along with the petitions under section 17 (2) and 17 (2a) of the Act. In order to appreciate the rival submissions on this question, it would be fruitful to take up the question as to whether the court under Order XIV rule 2 of the Code of Civil Procedure can take up an issue of fact for decision. Order XIV deals with settlement of issues and determination of suits on issues of law and or on issues agreed upon. Order XIV rule 1 deals with framing of issues. Order XIV rule 2 says that court must pronounce judgment on all issues. The words 'court to pronounce judgment on all issues' were substituted by the amendment of 1976 with effect from 1st of February, 1977. Order XIV rule 2 sub-rule (1) says that court shall, subject to the provision of sub-rule 2, pronounce judgment on all issues excepting in a case where the court is of the opinion that a case may be disposed of on a preliminary issue. Order XIV rule 2 sub-rule (1) says that court shall, subject to the provision of sub-rule 2, pronounce judgment on all issues excepting in a case where the court is of the opinion that a case may be disposed of on a preliminary issue. Order XIV rule 2 confers power on the court to dispose of an issue of law only if it is of the opinion that if such issue is taken up first and the case or any part thereof may be disposed of finally. Therefore, the court is conferred with power to take up the preliminary issue of law to be decided before other issues are decided if that issue relates to the jurisdiction of the court or a bar to the suit created by any law for the time being in force. Therefore, from the discussions made hereinabove, it is evident that from a reading of order 14 rules l and 2 of the Code of Civil Procedure there is no bar to take up an issue of fact for decision along with an interlocutary application or to take up an issue of fact in segregation of other issues and thereafter to take up these issues framed in the suit subsequently and pronounce judgment on all issues. In my view, therefore, there is a no bar to the court, if it thinks fit that a particular issue of fact framed in the suit may be taken up for final decision along with an interlocutary application or in separation of other issues for hearing and deciding the same, but at the time of final hearing of the suit when all the issues are decided the court shall pronounce judgment on all the issues. In the case of Nandagopal Das v. Rabindranath Dey, 1987 (1) Calcutta High Court Notes 362, a Division Bench of this court dealt with the question as to when the finding of default on the application under section 17 (2) becomes final and forms the basis for final decision relating to default. A distinction was made in that decision as to the finding of default becoming final so far as the suit is concerned with the finding of default arrived at on an interlocutary application under section 17 (2) or 17 (2a) of the Act. A distinction was made in that decision as to the finding of default becoming final so far as the suit is concerned with the finding of default arrived at on an interlocutary application under section 17 (2) or 17 (2a) of the Act. In deciding the aforesaid question A. M. Bhattacharyya, J (as His Lordship then was) applied the principles laid down in paragraph 8 in the case of Aloka Ghosh v. Inspector General 66 Calcutta Weekly Notes 302, which are as follows:-"these observations are, therefore, again a clear authority for the proposition that ordinarily findings arrived at only to decide an application even in respect of any main issue in the suit are 'prima facie' findings for the purpose of said proceeding. and the main issue, even if otherwise determined in the said proceeding, would still thereafter remain 'open for a final decision at the time of hearing of the suit. ' But it must, however, be noted that as pointed out therein, if the court also takes up the relevant issue for determination along with the hearing of the application under section 17 and decides fully both the issue and the application together, then the decision on that issue woulod be final for the purpose of the suit also. The position, therefore, is that in view of the ratio in the Division Bench decisions in Ashlata Mitra and in Aloka Ghosh we would have to hold that the determination in respect of default and arrears of rent under an application under section 17 (2) of the Act would ordinarily be final for the purpose of that application only, and not for the purpose of the main trial unless the issue relating to default in the suit and the application under section 17 are heard and decided together. " (Emphasis supplied)from the aforesaid observation of the Division Bench of this court which was applied by another Division Bench of this court as noted hereinabove, it is therefore, evident that the Division Bench of our court clearly have held that when an application under section 17 (2) of the Act is decided and a finding is arrived at by the court on the question of relationship of landlord and tenant, such a finding of default made on the application under section 17 (2) of the Act would not be a final finding in the suit so far as the question of default is concerned. But at the same time, our Division Bench have also held that if the court takes up the relevant issue for determination along with the application under section 17 of the Act made decided the issue with the said application then the decision on that issue would be final for the purpose of the suit. It is true that the case reported in 66 Calcutta Weekly Notes 302 (Aloka Ghosh v. I. G. of Police) delivered at a time when Order XIV rule 2 of the Code of Civil Procedure, as amended, was not in force. At this stage one more fact needs to be noticed. The Division Bench decision in the case of Nanda Gopal v. Rabindranath 1987 (1) Calcutta High Court Notes 362 which applied the principle laid down in 66 Calwn 302 was pronounced at a time when the amended Order XIV of the Code of Civil Procedure was already in force. Such being the position, there should not be any difficulty in observing that when the aforesaid Division Bench decision of this court reported in 1987 (1) Calcutta High Court Notes 362 (Nanda Gopal v. Rabindranath) was pronounced, it was in their mind that the amended provision of Order XIV of the Code of Civil Procedure was already in force. In my view, when the amended provision of Order XIV was very much in force at the time of pronouncing the aforesaid Division Bench decision it must be presumed that the Division Bench of our court, while delivering the aforesaid judgment, kept in mind such amendment of Order XIV of the Code of Civil Procedure. Mr. In my view, when the amended provision of Order XIV was very much in force at the time of pronouncing the aforesaid Division Bench decision it must be presumed that the Division Bench of our court, while delivering the aforesaid judgment, kept in mind such amendment of Order XIV of the Code of Civil Procedure. Mr. Roychoudhury, appearing on behalf of the petitioner in this connection, relying on a decision of the Supreme Court in AIR 1970 Supreme Court page 1468 (Khushroo Gandhi and others v. N. A. Gojdar), contended that the trial court had no jurisdiction to decide the issue relating to the relationship of landlord and tenant with the application under Section 17 (2) of the Act or independently of other issues. In particular, paragraph 9 at page 1471 of the aforesaid Supreme Court decision was made a reference by Mr. Roychoudhury. I have carefully considered the aforesaid decision of the Supreme Court. The Supreme Court in that case has not said that an issue of fact in view of Order XIV of the Code cannot be taken up for disposal in separation of other issues. What the Supreme Court has held in that decision is that in a civil revisional jurisdiction the High Court has no jurisdiction or authority to decide one issue which was not decided by the trial court in view of the fact that the subject-matter of the said civil revisional application is an interlocutary order of the trial Judge as the High Court in revision has no jurisdiction to decide any other question excepting the order challenged before it and convert the revisional jurisdiction of the High Court into as original court. Therefore, it is difficult to understand how the Supreme Court decision can be of any assistance to Mr. Roychoudhury in deciding the question in hand. Mr. Roychoudhury also cited a single bench decision of this court reported in 1991 (1) CHN page 443 (Ram Prasad Bazaz v. Development Builders ). In the said single bench decision, another decision on which Mr. Roychoudhury had based his argument in support on his contention had also been considered. That decision in the case of K. Santhram v. A. R. Ammin reported in AIR 1987 Karnataka page 1. I have carefully read each and every paragraph of the single bench decision of this court. In the said single bench decision, another decision on which Mr. Roychoudhury had based his argument in support on his contention had also been considered. That decision in the case of K. Santhram v. A. R. Ammin reported in AIR 1987 Karnataka page 1. I have carefully read each and every paragraph of the single bench decision of this court. From a careful reading of the said judgment it appears to me that in that decision it has not been decided that issue regarding relationship of landlord and tenant cannot at all be taken up for disposal with the interlocutary aplication filed under section 17 (2) of the Act. A. K. Nandy, J (as His Lordship then was) in paragraph 15 of the decision clearly observed that His Lordship agreed with the observation of P. N. Mukherjee, J made in Viswanath's case reported in 65 CWN page 149. From the Viswanath's case it would be evident that P. N. Mukherjee, J held that in order to come to a finding as to the amount of rent payable to the landlord it was the duty of the court to consider whether there was any relationship of landlord and tenant between the parties if such dispute was raised. That apart from the single bench decision of this court reported in 1991 (1) CHN page 443 (Ram Prasad Bazaz v. Development Builders) it is also evident that A. K. Nandy, J (as His Lordship then was) also agreed with the views expressed by the Division Bench of this court in the case of Nanda Gopal Das v. Rabindra Nath where it was held that a finding as to the default of payment of rent on an application under section 17 (2) of the Act would not form the basis of final decision in the suit and such a decision was for the purpose of disposal of application only and they alone could not form the foundation of the final decision of the suit. Another aspect was also dealt with by A. K. Nandy, J in paragraph 14 of the said decision. According to A. K. Nandy, J when the issue cannot be framed far less can be decided until a written statement is filed, the decision under clause (a) or (b) of section 17 (2) cannot be made contingent upon filing of the written statement. According to A. K. Nandy, J when the issue cannot be framed far less can be decided until a written statement is filed, the decision under clause (a) or (b) of section 17 (2) cannot be made contingent upon filing of the written statement. His Lordship observed that the tenant may not choose to file written statement at all or postpone the same indefinitely and therefore the object and purpose of section 17 of the Act would then get defeated. ( 5 ) THEREFORE, A. K. Nandy, J in that decision contemplated only the cases where issues were not framed nor any written statement had been filed by the defendant tenant. In this case admittedly issues have been framed and issue relating to relationship of landlord and tenant was taken up without any objection having been raised by the petitioner. As noted hereinabove, in the aforesaid single bench decision of this court admittedly the issue was not framed nor the petitioner tenant had filed his written statement. In any view of the matter, this single bench decision also does not specifically opine that an issue regarding relationship of landlord and tenant in a suit for eviction which in framed in the suit cannot be decided with an application under section 17 (2) of the Act or in separation of other issues. Assuming, such a principle was laid down in the aforesaid single bench decision, even then in view of the Division Bench decision of this Court as noted hereinabove I am unable to rely on the single bench decision of this Court. In this connection, another Division Bench decision of this court reported in 1979 (2) Calcutta Law Journal, 297 (Sm. Parul Banerjee v. Anand Kr. Agarwalla) must be referred to. It appears that this Division Bench decision of this court was also delivered after the provision, of Order XIV were amended. This decision was pronounced on 14th of July, 1979 whereas the amendment of the Order XIV came into force with effect from 7th of February, 1977. Therefore, at the time when this judgment was delivered, the amendment of Order XIV was very much in force. This decision was pronounced on 14th of July, 1979 whereas the amendment of the Order XIV came into force with effect from 7th of February, 1977. Therefore, at the time when this judgment was delivered, the amendment of Order XIV was very much in force. ( 6 ) THEREFORE, we can safely say that while deciding the aforesaid question, this Division Bench also proceeded by keeping in mind the amended provisions of Order XIV of the Code and not on the basis of Order XIV of the Code prevailing before its amendment. It was clearly observed in the aforesaid decision that when there is a dispute as to the relationship of landlord and tenant between the parties, such dispute must be decided also with the application of the defendant tenant under section 17 (2) and 17 (2a) (b) of the Act. More precisely the direction made by the Division Bench in the said decision which would appear at paragraph 5 in page 300 of the said decision is quoted hereinbelow:-"as the learned subordinate judge has not decided the issue as to the relationship of landlord and tenant between the parties the impugned order must be set aside. The learned subordinate judge is directed to decide the issue of relationship of landlord and tenant between the parties along with an application of the defendant under section 17 (2) and 17 (2a) (b) of the Act in accordance with law and in the light of the observations made hereinabove. " (Emphasis supplied)from the observation made hereinabove of the Division Bench of this court can it not be said that the Division Bench indicated firmly that where a dispute regarding relationship of landlord and tenant between the parties is raised it would be fit and proper in that case for the Court to take up the issue of relationship of landlord and tenant for disposal with the application under section 17 (2) and 17 (2a) of the Act? As noted hereinabove, the amended provision of Order XIV of the Code came into force from 2nd February, 1977. Therefore, when the judgment was delivered in the year 1979 it must be presumed that such a direction was made by the Division Bench keeping in mind the amended provision of Order XIV of the Code of Civil Procedure. As noted hereinabove, the amended provision of Order XIV of the Code came into force from 2nd February, 1977. Therefore, when the judgment was delivered in the year 1979 it must be presumed that such a direction was made by the Division Bench keeping in mind the amended provision of Order XIV of the Code of Civil Procedure. In another Single Bench decision of this court reported in 1987 (1) Rent Control Journal page 250 (Kedar Sardar v. M/s. Shmarmal Premchand and others) it has been held that in view of section 17 of the Act, the issue raised with regard to the relationship of landlord and tenant must be decided first before the suit for eviction is taken up for hearing. Therefore, from this judgment also, which has been delivered after the amendment of Order XIV of the Code of Civil Procedure it is evident that whenever an issue with regard to the question of relationship of landlord and tenant is raised, the said issue must be decided before the suit for eviction is taken up for hearing. In the case of Union of India v. A. K. Choudhury and another reported in 1978 Calcutta High Court Notes, page 371 a Division Bench of this court comprising M. M. Dutta and D. C. Chakraborty, JJ at page 374 observed as follows:"it has been already stated that the principal defence of the petitioner in the written statement is absence of relationship of landlord and tenant between the parties. It is unfortunate that the learned Chief Judge did not think it proper to decide the dispute as to the relationship of landlord and tenant between the parties. When a tenant takes the plea of absence of relationship of landlord and tenant between the parties, such plea must be decided before any order is passed directing the tenant to pay or deposit rent. The proper course for the court is to frame an issue in regard to that plea and decide the same before it passes any order under Section 17 (2) and 17 (3) of the Act. The petitioner also took the plea of the absence of relationship in the application under section 17 (2) and thereby raised a dispute as to the amount of rent. The petitioner also took the plea of the absence of relationship in the application under section 17 (2) and thereby raised a dispute as to the amount of rent. It appears that an issue has been framed by the learned Chief Judge in that regard and he could have decided that issue simultaneously with the hearing of the application under section 17 (2 ). " (Emphasis supplied) ( 7 ) FROM the aforesaid observation made in the judgment of the Division Bench of this court which was delivered on 8th of March, 1978 that is to say the judgment was delivered at a time when the amended Order XIV had already come into force. The Division Bench decision of this court has clearly observed that when such a plea is raised it is the duty of the Court to decide the said issue simultaneously with the applications under section 17 (2) and 17 (2a) of the Act. At the risk of repetition I may mention here that this observation by the Division Bench was also made keeping in mind the amended provision of Order XIV of the Code of Civil Procedure. It is difficult to understand as to why reliance was placed by Mr. Roychoudhury in the case of Mothura Prosad v. Doshebi, AIR 1971 SC 2355 . That decision of the apex court of our country considered that the question relating to jurisdiction of the court cannot be deemed to have been finally determined by any erroneous interpretation of that court and if by erroneous interpretation of the statute the court holds that it has no jurisdiction, the question would not operate as res judicata. It was further observed that similarly by erroneous decision, if the court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties when the cause of action in the subsequent litigation is the same or otherwise because if this decision is considered as conclusive, it will assume the status of a rule of law applicable to the parties relating to the jurisdiction of the court in derogation of the rule declared by the legislature. It is difficult to understand how the aforesaid decision of the Supreme Court can be applied for the purpose of determining as to whether the court can decide an issue of fact along with an interlocutary application in separation of other issues under the amended Order XIV of the Code of Civil Procedure. That decision, as noted hereinabove, dealt with the question of res judicata in respect of a decision of a court relating to the jurisdiction of the court which had no jurisdiction. Mr. Roychoudhury thereafter relied on a decision of the Supreme Court reported in AIR 1964 Supreme Court 497 (Major S. Khanna v. Briga. F. J. Dillon) which of course dealt with Order XIV rule 2 of the Code of Civil Procedure before the amendment and the scope of section 115 of the Code of Civil Procedure. In that deicision it was held by the Supreme Court that Order XIV rule 2 did not confer any jurisdiction upon the court to try mixed issue of law and fact as preliminary issue. Before the amendment of Order XIV rule 2 of the Code of Civil Procedure the language in Order XIV rule 2 of the Code of Civil Procedure was relating to the jurisdiction to try issues of law. Apart from that the issues of law only could be taken up for disposal only where in the opinion of the court the suit may be disposed of on the issue of law alone. But the Code confers no jurisdiction upon the Court to try a suit on mixed of issues of law and fact as preliminary issues. It was further observed by the Supreme Court that normally all the issues in a suit should be tried by the court; not to do so, especially when the decision on issues even on law depends upon the decison of issues of fact, would result in lop-sided trial of the suit. Nobody can have any quarrel over this question before the amendment of the provisions of the Order XIV rule 2 of the Code of Civil Procedure as it was open to the Court to decide an issue of law if it was in the opinion of the Court that the suit may be disposed of on such issue of law alone. But the Code conferred no jurisdiction upon the Court to try a suit on a mixed issue of law and fact as preliminary issue. It cannot be disputed that a mixed issue of law and fact cannot be decided as a preliminary issue in view of the fact that decision of such issue shall depend on evidence to be adduced on other issues as well. The Supreme Court only held in that case that this tupe of issue cannot be considered to be a preliminary issue. Therefore, it cannot be decided as a preliminary issue. Can it be said that the issues regarding relationship of landlord and tenant between the parties can be decided by the trial court as a preliminary issue as it is clear that the decision of the issue relating to relationship of landlord and tenant is an issue of fact. So far as this case is concerned, the issue in question was never taken up by the trial court for decision as a preliminary issue as it is evident that if the unamended provision of Order XIV rule 2 was applied, disposal of such preliminary issue would have disposed of the suit in its entirety which was not done by the trial court. If the amended provision of Order XIV rule 2 of the Code was applied, that too would have disposed of the case either in its entirety or in part. This was also not done by the Trial Court. In any view of the matter, the question of applying the provisions of Order XIV rule 2 of the Code prevailing before its amendment could not arise as at the relevant point of time the amended provision of Order XIV of the Code was already in force. What the trial court did is that the issue of fact regarding the existence of relationship of landlord and tenant between the parties was decided at the time of final disposal of the applications under sectioin 17 (2) and 17 (2a) of the Act. ( 8 ) IN my view, this was permissible in law even under the amended Order XIV rule 2 of the Code. ( 8 ) IN my view, this was permissible in law even under the amended Order XIV rule 2 of the Code. ( 9 ) IN my view, the amended Order XIV rule 2 of the Code of Civil Procedure however permits the Court to adopt such a procedure and if such procedure is adopted, time to dispose of the suit shall be minimised and the expenses to be borne in the suit would be far less. ( 10 ) IN the case of Srinath Das v. Probodh Chunder Das, 11 Calcutta Law Journal page 580, Sir Ashutosh Mukherjee observed that the Court has inherent power to regulate its procedure in such a manner as to shorten litigation and minimise expenses and result in substantial justice to the litigant parties. ( 11 ) THEREFORE, following the above observation made in the aforesaid decision by Sir Ashutosh Mukherjee it can be very well said that to minimise the time and expenses and to do substantial justice it was also open to the Court to decide the issue regarding relationship of landlord and tenant between the parties in separation of other issues framed in the suit or at the time of final disposal of the application under section 17 (2) of the Act. Apart from that the issue relating to relationship of landlord and tenant between the parties cannot be said to be a preliminary issue and therefore, the Supreme Court decision which was based on the unamended provision of Order XIV rule 2 of the Code only decided that when a mixed issue of law and fact had been raised, such an issue could not be decided as a preliminary issue. The Supreme Court never considered in that decision whether under the amended provision of Order XIV or under the unamended provision of Order XIV of the Code, the court is or was not conferred with the power to take up one issue along with the final hearing of the application under section 17 (2) of the Act. What would be the effect of the decision of the issue regarding relationship of landlord and tenant which was taken up for disposal along with the application under section 17 (2) of the Act? What would be the effect of the decision of the issue regarding relationship of landlord and tenant which was taken up for disposal along with the application under section 17 (2) of the Act? So far as this issue is concerned, I am of the firm opinion that in view of the aforesaid decision of the Division Bench of this court, with which I am in full agreement, the decision in respect of the issue in question would be final. That is to say the findings as regards the relationship of landlord and tenant would not be permitted to be reagitated at the final hearing of the suit. Order XIV rule 2 sub-rule (1) of the Code, however, contemplates, in my view, that the judgment must be pronounced on all issues. It does not say that for pronouncement of judgment on all issues the court must take up all the issues together and decide them at a time. In my view, when a decision is made in respect of one issue, at time of pronouncement of the judgment of other issues the court would be required only to state that as the said particular issue had already been decided, further decision on the said issue need not be required. What Order XIV rule 2 sub-rule (1) says is that the court is to pronounce judgment on all issues subject to provisions of sub-rule (2) of Order XIV rule 2 of the Code. Therefore, in my view, it would be clear from Order XIV rule 2 sub-rule (1) that there is no bar on the part of the court to decide an issue in separation of other issues with the interlocutary application and then to pronounce judgment on all issues. For the reasons aforesaid, I am therefore, of the opinion that the decision in S. S. Khanna v. J. Dillon (AIR 1964 Supreme Court 497) relied on by Mr. Roychoudhury would not be helpful to the petitioner in this case. For the same contention Mr. Roychoudhury relied on various other decisions which must be dealt with. For the reasons aforesaid, I am therefore, of the opinion that the decision in S. S. Khanna v. J. Dillon (AIR 1964 Supreme Court 497) relied on by Mr. Roychoudhury would not be helpful to the petitioner in this case. For the same contention Mr. Roychoudhury relied on various other decisions which must be dealt with. Let me first deal with the decision of Punjab and Haryana High Court reported in AIR 1975 Punjab and Haryana 230 (Hasdwori Lal v. Parkaz Mal and Ors.) ( 12 ) THIS decision also relates to the Court's jurisdiction to try an issue as preliminary issue in respect of valuation of suit requiring probe into market value of the suit property. In that decision it was held that where the issue of determination of valuation of suit property required probe into the market value of the property in the suit the same could not be tried as a preliminary issue. From a reading of the aforesaid judgment of Punjab and Haryana High Court it does not appear to me that court looses its jurisdiction after the amendment of the provisions of Order XIV of the Code to try the issue in separation of the other issues of the suit. According to the decision of Punjab and Haryana High Court reading of Order XIV as it existed (earlier and after the amendment clearly indicates that the consideration of an issue as a preliminary issue has been made permissible only in related cases. It was observed that in the unamended Code, the categorisation was only between issues of law and fact and it was mandatory for the court to try the issues of law in the first instance and postpone the settlement of issues of fact until after the issues of law had been determined. The learned Judge of Punjab and Haryana High Court held that in the amended provision there is a mandate to the court that notwithstanding that the case may be disposed of on a preliminary issue court has to pronounce judgment on all the issues. That is to say that the Punjab and Haryana High Court held that the court shall pronounce the judgment on all issues subject to Order XIV rule 2 of the Code. That is to say that the Punjab and Haryana High Court held that the court shall pronounce the judgment on all issues subject to Order XIV rule 2 of the Code. From a plain reading of the entire judgment of the Punjab and Haryana High Court it cannot be said that the court is not conferred with power either under the unamended provision or under the amended provision of Order XIV rule 2 to take up an issue in separation of other issues and thereafter pronounce judgment at the final hearing of the suit on all issues. Mr. Roychoudhury then relied on another single bench decision of this Court reported in AIR 1981 Calcutta 51 (Mahabir Prasad Laha v. Viswanath Kotheri and others ). Relying on the said decision he contended that when a mixed question of law and fact arises, Order XIV rule 2 of the Code comes into play and court has no power under Order XIV rule 2 of the Code to decide one issue along with an interlocutary application filed under section 17 (2) of the Act. In my view, again there is no dispute about the principle laid down by the single bench decision of this court but this decision is not applicable to the facts and circumstances of this case. It is true that under Order XIV rule 2 of the Code of Civil Procedure a mixed question of law and fact could not be decided as a preliminary issue. It cannot be disputed that the issue regarding the relationship of landlord and tenant is always an issue of fact and not even a mixed question of law and fact. Therefore, I do not find any inspiration as Mr. Roychoudhury has got from this single bench decision to hold that the court is not conferred with any jurisdiction to take up one issue for final decision with an interlocutary application or in separation of other issues framed in the suit. At the risk of repetition I say that the issue relating to relationship of landlord and tenant was not decided by the trial court by the impugned order as a preliminary issue, what the trial court had done is that it practically disposed of an issue of fact alone with the applications under section 17 (2) and 17 (2a) of the Act. From the discussions made hereinabove and in view of the Division Bench decision of this court as noted hereinabove. I am unable to hold that the procedure, which was adopted by the trial court, was not available to the court in view of Order XIV rule 2 of the Code. If for minimising the time and expenses, the court is of the opinion that the decision of the issue of fact would be taken up for disposal at the time of deciding the application under section 17 (2) of the Act, it would be open to the court to decide the same fact which is interconnected with the applications under section 17 of the Act in separation of other issues framed in the suit. As noted hereinabove, Order XIV rule 2 sub-rule (1) of the Code clearly says that the court shall pronounce judgment on all issues and nothing else. In this case, as noted hereinabove, one of the issues was taken up and decided. It was not decided as a preliminary issue but an issue of fact was disposed of before other issue of fact and law were decided by the court. Therefore this decision is of no assistance to Mr. Roychoudhury. Mr. Roychoudhury thereafter relied on a single bench decision of this court reported in 84 Calwn 426 (Mohindra Ranjan Ghosh v. Madan Mohan and another ). In that decision also G. K. Roy, J (as His Lordship then was) held that an issue regarding non-joinder of the parties cannot be decided as a preliminary issue in view of Order XIV rule 2 of the Code of Civil Procedure. In view of the discussions made hereinabove and in view of the fact that in the aforesaid single bench decision of this court also it was not held that the court was precluded from deciding one issue in separation of other issues, I am unable to rely on this judgment of this court which was relied on by Mr. Roychoudhury. In view of the discussions made hereinabove and in view of the fact that in the aforesaid single bench decision of this court also it was not held that the court was precluded from deciding one issue in separation of other issues, I am unable to rely on this judgment of this court which was relied on by Mr. Roychoudhury. ( 13 ) FOR the reasons aforesaid and in view of the discussions made hereinabove I do not find any reason to hold that the Division Bench decisions of this court which have laid down that in a proper case the court can decide issue of relationship of landlord and tenant along with the application under section 17 (2) of the Act cannot be applied as all the decisions of the Division Bench were delivered at a time when the amended provisions had already come in force and in view of my observations made hereinabove I am unable to agree with Mr. Roychoudhury that the issue regarding relationship of landlord and tenant could not be taken up for disposal in separation of other issues or along with the application under section 17 of the Act. ( 14 ) BEFORE parting with this aspect of the matter it would be necessary to deal with the question as to whether by the introduction of the amended provision of Order XIV rules 1 and 2 of the Code of Civil Procedure any substantial change has been enacted in Order XIV rule 2 of the Code excepting that delay in disposal of cases was sought to be minimised by the legislature by effecting such amendment. Order XIV rule 2 before its recent substitution was as follows:"where issues both of law and fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on the issues of law only it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. " ( 15 ) IT was a well settled rule that in appealable cases all issues arising in the suit ought to be ordinarily tried and decided. " ( 15 ) IT was a well settled rule that in appealable cases all issues arising in the suit ought to be ordinarily tried and decided. The reason for the introduction of this rule is to avoid piecemeal trial, protracted litigation and remand of the cases where the appellate court sets aside the decision of the trial court on the preliminary issue upon which the trial court has disposed of the suit. Rule 2 of Order XIV of the Code of Civil Procedure before its amendment was an exception to this normal principle of trial. If the court was of the opinion that the case or any part thereof could be disposed of on an issue of law only, it was mandatory on the part of the Court to try such issue as preliminary issue and disposed of the suit or any part thereof as the case might be on such preliminary issue. From the unamended provision of rule 2 of the Order XIV of the Code, it is, therefore, evident that when the court was of the opinion that the case or any part thereof could be disposed of on the issue of law only, in that case the court had no jurisdiction to take up all the issues for trial together with the issue of law. In that case it was mandatory on the part of the court to take up the issues of law only and decide the suit on such question of law only by postponing the settlement of issues of fact until after issues of law had been determined. In that case the issue of law would be made to be a preliminary issue. In the eventuality the court decided to take up such preliminary issue then it need not say that the preliminary issue would be decided at the time when the suit itself would be tried. The word 'shall' used in the unamended rule 2 of the Order XIV of the Code has a special significance. In my view, when a preliminary issue was framed, the court had no other option, but to decide the preliminary issue first and postpone the settlement of the issues of fact until after the issues of law had been determined. The word 'shall' used in the unamended rule 2 of the Order XIV of the Code has a special significance. In my view, when a preliminary issue was framed, the court had no other option, but to decide the preliminary issue first and postpone the settlement of the issues of fact until after the issues of law had been determined. Therefore, in the unamended Order XIV rule 2 of the Code of Civil Procedure, in my view, there was no question of taking up all the issues together if the preliminary issue is framed by the Court. Order XIV rule 2 of the Code of Civil Procedure as now amended runs as follows: (1)notwithstanding that a case may be disposed of on a preliminary issue, the court shall subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2)where issues both of law and 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 first if 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 the decision on that issue. ( 16 ) FROM a bare look to the amended provision of rule 2 of Order XIV of the Code of Civil Procedure it is evident that the amended rule is divided into sub-rules (1) and (2 ). Sub-rule (1) of Order XIV rule 2 of the Code of Civil Procedure has recognised the unamended rule that all the issues arising in the suit must be ordinarily tried notwithstanding that the case can be disposed of on a preliminary issue. Sub-rule (2) of Order XIV rule 2 of the Code of Civil Procedure provides a limited exception to the ordinary rule of trial. ( 17 ) IN sub rule (2) of rule 2 of Order XIV of the Code of Civil Procedure the incorporation of the word 'may' in my view, has again some special significance. Sub-rule (2) of Order XIV rule 2 of the Code of Civil Procedure provides a limited exception to the ordinary rule of trial. ( 17 ) IN sub rule (2) of rule 2 of Order XIV of the Code of Civil Procedure the incorporation of the word 'may' in my view, has again some special significance. It is my firm opinion that by the incorporation of the word 'may' instead of 'shall' as was prevailing in the Order XIV rule 2 of the Code of Civil Procedure before its amendment the intention of the legislature was to make this sub-rule as discretionary and not mandatory. ( 18 ) THEREFORE, under sub-rule (2) of rule 2 of Order XIV of the Code of Civil Procedure even where both issues of fact and law arise in the same suit and if the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only it may try that issue first. ( 19 ) A comparative reading of the aforesaid provisions as it existed prior to the amendment and after the amendment, would clearly indicate that the consideration of a preliminary issue and its disposal has now been made permissible only in limited case. In the amendment Order XIV rule 2 of the Code, the categorisation was only between issues of law and of fact and it was mandatory for the court to try the issue of law at the first instance and to postpone the settlement of the issues of fact until after the issues of law had been determined. On the other hand, in the amended provision it is mandatory on the part of the court to pronounce judgment on all the issues notwithstanding that the case may be disposed of on a preliminary issue. The only exception to this is contained in sub-rule 2. Sub-rule (2) relaxes the mandate to a limited extent by conferring discretion upon the court if it is of the opinion that the case or any part thereof can be disposed of on the issues of law only it may try that issue first. The exercise of this discretion is further limited to the contingency that the issue to be so tried must be related to the jurisdiction of the Court or to a bar to the suit created by a law in force. The exercise of this discretion is further limited to the contingency that the issue to be so tried must be related to the jurisdiction of the Court or to a bar to the suit created by a law in force. In the 14the edition of Mulla's Code of Civil Procedure at page 1206 the Author observed that the amended rule made a departure from the rule as it stood before the amendment in three respects. (i)that though a case may be capable of being disposed of on a preliminary issue, the Court is given a mandate to try all the issues, (ii)that exception is made to this mandate by giving discretion to try an issue as to jurisdiction or a statutory bar to the suit as a preliminary issue and for that purpose postpone the settlement of the rest of the issues, and (iii)that in a given case the court may decline to try even an issue relating to its jurisdiction or to a statutory bar to the suit as a preliminary issue if it considers expedient to do so. ( 20 ) FROM the discussion made hereinabove and considering the aforesaid observation made by the Author in the Mulla's Code of Civil Procedure 14th Edition, it is, therefore, evident that the amended Order XIV rule 2 of the Code of Civil Procedure did not take away right of the court to deal with an issue of fact in an appropriate case in order to minimise the cost of litigation and the time to complete such litigation to decide one issue of fact in separation of other issues or to decide the same at the time of disposal of the petition under section 17 of the Act. In my view, Order XIV rule 2 of the Code of Civil Procedure has only restricted the court from deciding any issue of law as a preliminary issue and to postpone the settlement of the issues of fact unless after the issues of law have been determined whereas the unamended rule made it mandatory for the court to decide an issue of law first by postponing the settlement of the issues of fact. Incorporation of the word 'shall' in the unamended provision of Order XIV rule 2 of the Code and subsequent amendment of Order XIV rule 2 of the Code by incorporating the word 'may' still make it clear that even in a case where the bar to the suit created by any law or jurisdiction of the court arises, the court still has discretion to decide whether such issues shall decided as a preliminary issue or not. In order to find out why amendment was brought into force, I have looked into the report of the Law Commission in respect of the amendment effected in Order XIV rule 2 of the Code of Civil Procedure and after looking into it I have no hesitation in my mind that such recommendation for amendment was made only to avoid delay in disposal of cases. Article 14. 3 in Chapter 14 of the report of the Law Commission may be useful for our purpose and therefore, I am of the opinion that the said Article which gives reasons for effecting amendment of Order XIV rule 2 of the Code should be produced which is as follows:14. 3 This rule has led to one difficulty. Where a case can be disposed of on a preliminary point (issue) of law, often the courts do not inquire into the merits, with the result that when, on an appeal against the finding on the preliminary issue the decision of the court on that is reversed, the case has to be remanded to the court of first instance for trial on the other issues. This causes delay. It is considered that this delay should be eliminated by providing that a court must give judgment on all issues, excepting, of course, where the court finds that it has no jurisdiction or where the suit is barred by any law for the time being is force. This causes delay. It is considered that this delay should be eliminated by providing that a court must give judgment on all issues, excepting, of course, where the court finds that it has no jurisdiction or where the suit is barred by any law for the time being is force. " ( 21 ) FROM the aforesaid reason given for causing amendment of Order XIV rule 2 of the Code of Civil Procedure by the Law Commission it is, therefore, evident that such an amendment was recommended by the Law Commission only for the purpose of overcoming the delay in disposal of cases and that this delay could be eliminated by providing that the court must give judgment on all issues excepting of course, where the court finds that it has no jurisdiction or where the suit is barred by any law for the time being in force. Keeping the reasons for recommending the amendment of the Code of Civil Procedure and in view of my discussions made hereinabove, I am therefore, of the firm opinion that the provisions indicated in amended Order XIV rule 2 of the Code or before its amendment are identical so far as the jurisdiction of the court to decide an issue of fact either with an interlocutary application or in separation of other issues in the suit. In other words, even after the amendment of Order XIV rule 2 of the Code the power of the court to decide as issue of fact remains the same as it was before its amendment. By the introduction of the amendment in Order XIV rule 2 of the Code certain restrictions have been made to decide an issue of law as a preliminary issue and taking of preliminary issue for hearing in separation of other issues was made discretionary whereas under the unamended provision of Order XIV rule 2 of the Code such a power was not discretionary but mandatory. I am therefore, in agreement with the argument of Mr. Dasgupta that by incorporation of such amendment in Order XIV rule 2 of the Code of Civil Procedure, the law that was prevailing before its amendment remains the same after its amendment so far as the discretion of the court to decide an issue of fact with an interlocutary application or in separation of other issues, framed in the sut. Dasgupta that by incorporation of such amendment in Order XIV rule 2 of the Code of Civil Procedure, the law that was prevailing before its amendment remains the same after its amendment so far as the discretion of the court to decide an issue of fact with an interlocutary application or in separation of other issues, framed in the sut. In my view, therefore, even after the amendment of Order XIV rule 2 of the Code, the right of the court to take up one issue of fact and decide the same in separation of other issues or to take up and decide such an issue along with an application under section 17 of the Act has not been taken away by the legislature. Accordingly, there is no force in the argument of Mr. Roychoudhury. At the risk of repetition, in my view, if such an issue is decided in separation of other issues, only criterion indicated in the amended as well as in the unamended rule 2 Order XIV of the Code of Civil Procedure is that the court shall pronounce judgment on all issues. As already noted hereinabove if this issue of fact is decided in the manner it was done by the trial court it cannot dispose of the suit on such issue but shall pronounce judgment on all issues that have been framed in the suit. At the final disposal of the suit the court can only say that in view of earlier adjudication no further adjudication need be made on the issue of relationship of landlord and tenant between the parties. Therefore, there is no substance in the argument of Mr. Roychoudhury on this question and accordingly, the argument of Mr. Roychoudhury is not accepted. ( 22 ) THERE is another aspect of this matter. Mr. Dasgupta, appearing on behalf of the plaintiff/opposite party, contended that the issue regarding relationship of landlord and tenant between the parties was directed to the taken up for hearing by the trial court without the other issues and this issue was disposed of in which the petitioner participated and did not raise any objection as to the procedure adopted by the trial court raising the bar of Order XIV rule 2 of the Code of Civil Procedure. Mr. Roychoudhury however, contended in reply to this contention of Mr. Mr. Roychoudhury however, contended in reply to this contention of Mr. Dasgupta that there was no estoppel against the statute and, therefore, the petitioner was entitled to raise the aforesaid question even at the revisional stage. In support of this contention Mr. Roychoudhury cited two Supreme Court decisions one of which is reported in AIR 1970 Supreme Court 1354 (N. Sethramaiah v Kotaiah) and the other reported in AIR 1955 Supreme Court 504 (Amar Singhji v. State of Rajasthan ). ( 23 ) AFTER giving my anxious considerations to the rival contentions of the parties on the question of estoppel I am of the view that Mr. Dasgupta was right in his submission that the petitioner having participated in the proceeding is now estopped from making any grievance against the procedure adopted by the trial court by taking the issue regarding relationship of landlord and tenant between the parties at the time of final hearing of the application under section 17 of the Act. In my view, the aforesaid decisions of the Supreme Court have no manner of application to the facts and circumstances of this case. From both the decisions it would be evident that a party under a statute was entitled to claim something which was conceded before a particular authority. In that context the Supreme Court held that there cannot be any estoppel against the statute. So far as this case is concerned, Order XIV rule 2 of the Code of Civil Procedure does not specifically say that any issue of fact cannot be taken up in separation of other issues. The parties have accepted the procedure for disposal of the issue regarding relationship of landlord and tenant at the final disposal of the application under Section 17 of the Act. That being the position, I am in agreement with Mr. Dasgupta that now in this revisional application such a question should not be permitted to be raised. In this connection a decision of the Supreme Court reported in AIR 1968 Supreme Court 1286 ( Tikaram and Sons v. Commissioner, Sales Tax) may be referred. That being the position, I am in agreement with Mr. Dasgupta that now in this revisional application such a question should not be permitted to be raised. In this connection a decision of the Supreme Court reported in AIR 1968 Supreme Court 1286 ( Tikaram and Sons v. Commissioner, Sales Tax) may be referred. In para 7 at page 1292 the Supreme Court observed as follows:-"in other words, it must be taken that the appellants had voluntarily submitted to the jurisdiction of the Revisional Authority and of the High court on the matter in issue and having submitted to the jurisdiction and having taken the chance of judgment in its favour, it is not right that the appellants should take exception to the jurisdiction of the High Court when the judgment has gone against it. We cannot therefore, permit the appellants to canvass in this court for the first time the question whether it was competent for the High Court to decide the question of law referred to it under section 11 of the Act. We accordingly, reject the argument of the appellants on this aspect of the case. " (Emphasis supplied) ( 24 ) IN view of the aforesaid observations made by the Supreme Court in the case of Tikaram and Sons v. Commissioner, Sales Tax, as mentioned hereinabove, I am therefore in agreement, with Mr. Dasgupta that the petitioner having participated in the disposal of the issue No. 4 and not having raised any objection before the trial court in the manner the issue No. 4 was decided, and the petitioner having adduced evidence in support of his case in respect of issue No. 4, he cannot be permitted in the revisional jurisdiction of this court to raise the question of taking up the issue No. 4 independently and in separation of other issues or to raise the question that the issue No. 4 could not be decided at the time of final disposal of the applications under sections 17 (2) and 17 (2a) of the Act, the petitioner therefore is not entitled to raise the question that the procedure adopted by the trial court in deciding the issue No. 4 in the revisional jurisdiction of this court was illegal and without jurisdiction. In a celebrated decision, in the case of Dwijendra Narayan v. Joges Chandra Dey reported in 39 Calcutta Law Journal, page 40, Sir Ashutosh Mukherjee, observed that a party litigant cannot be permitted to assume inconsistent positions in court to play fast and loose, to blow hot and cold to approbate and reprobate to the detriment of his opponent. It was also observed in the aforesaid decision that this doctrine applies not only to the successive stages of the same suit, but also to another suit other than the one in which the position was taken up, provided the second suit grows out of the judgment in the first. Again in another decision of this court reported in AIR 1944 Calcutta page 53 (Girish Chandra Santra v. Purna Chandra Bhattacharyya) a learned single Judge of this court also held that where a person has moved the court under section 47 of the Code of Civil Procedure and invited a decision on his application, it is not for him to turn down and say because the decision has gone against him that neither was he competent so to have moved the court, nor was it competent for the court to have dealt with the matter on being so moved. Relying on the aforesaid principles laid down by Sir Ashutosh Mukherjee in the case of Dwijendra Narayan Roy v. Joges Chandra Dey and also the principle laid down in the case of Girish Chandra Santra v. Purna Chandra Bhattacharyya and taking into consideration the observations made by the Hon'ble Supreme Court in the case of Tikaram and Sons v. Commissioner, Sales Tax, as noted hereinabove, I am, in agreement with Mr. Dasgupta that the petitioner having participated in the matter of disposal of issue No. 4 in separation of other issues, is not entitled to raise the question of jurisdiction of the trial court to decide the issue No. 4 in separation of other issues. ( 25 ) FOR the reasons aforesaid I am, therefore, not inclined to interfere with the order of the trial court disposing of the issue No. 4 which relates to the relationship of landlord and tenant between the parties without taking up the other issues framed in the suit. Accordingly, this revisional application fails. There will be no order as to costs. Certified xerox copies of the judgment be given to the parties, if applied for. Accordingly, this revisional application fails. There will be no order as to costs. Certified xerox copies of the judgment be given to the parties, if applied for. Application fails.