JUDGMENT : 1. By this special appeal, challenge is made to the order dated 21.7.2009 passed by the learned Single Judge, whereby, writ petition preferred by the petitioner-appellant against the award passed by the Industrial Tribunal, Jaipur dated 21.4.1995 was allowed in part. 2. Learned counsel for the appellant submits that vital issue whether appellant falls in the definition of 'industry' and the respondent No. 2 falls in the definition of 'workman' has not been decided by the learned Single Judge and the Industrial Tribunal. The individual Doctor, running a clinic, does not fall in the definition of 'industry' and as a consequence thereof, respondent cannot be considered to be a 'workman'. The issue aforesaid goes in the roots of the case. If it is decided by holding that petitioner appellant does not fall in the definition of 'industry' the Tribunal was not having jurisdiction to adjudicate the issue. The aforesaid being a legal issue, can be raised at any time. It is more so when the evidence was led by the parties in respect of the said issue. 3. A perusal of the award of the Tribunal makes a reference of the evidence and discussion thereupon. Learned Single Judge committed illegality in not discussing the issue as to whether an individual Doctor running a clinic fall in the definition of 'industry' and the respondent in the definition of 'workman' as given under section 2(s) of the Industrial Disputes Act, 1947 (for short 'the Act of 1947'). It is being a legal issue thus raised before the learned Single Judge. It was also raised before the Tribunal. The learned Single Judge refused to decide the issue after holding it to have been raised for the first time. In the light of the aforesaid, judgment of the learned Single Judge may be interfered. The issue may be adjudicated by the Division Bench or the case be remanded back to the learned Single Judge for adjudication. 4. A reference of the judgment of the Apex Court in the case of Harshad Chiman Lal Modi v. DLF Universal Ltd & Another, (2005) 7 SCC 791 has been given. Therein, the issue of jurisdiction pertaining to territorial or pecuniary jurisdiction over subject matter was considered in reference of plea of waiver and acquiescence. 4. A reference of the judgment of the Apex Court in the case of Harshad Chiman Lal Modi v. DLF Universal Ltd & Another, (2005) 7 SCC 791 has been given. Therein, the issue of jurisdiction pertaining to territorial or pecuniary jurisdiction over subject matter was considered in reference of plea of waiver and acquiescence. It was held that a decree passed by a court without having jurisdiction, is non est and its validity can be questioned whenever decree is sought to be enforced. A decree passed by a court without jurisdiction is a "coram non judice." It is, however, held that objection in regard to territorial jurisdiction has to be taken at the earliest. Where a court has no jurisdiction over subject matter of suit, it cannot take up the cause and an order passed therein is a nullity. The ratio propounded therein applies to the present case as petitioner appellant does not fall in the definition of 'industry' as given in section 2(j) of the Act of 1947. 5. A reference of the judgment in the case of Chief Engineer, Hydel Project & Others v. Ravinder Nath & Others, (2008) 2 SCC 350 has also been given. Therein, the issue about jurisdiction was raised for the first time before the Apex Court and was permitted. It was looking to the fact that the issue was pertaining to the jurisdiction of the Civil Court barred under the Act of 1947. The objection about the jurisdiction was permitted and was allowed in the facts and circumstances of the case. In view of the aforesaid judgment also, learned Single Judge should have addressed the issue raised by the petitioner as it touches the jurisdiction of the Tribunal. 6. If the petitioner appellant does not fall in the definition of 'industry' obvious consequence is that the dispute referred to the Tribunal would not maintainable. The prayer is accordingly made to set aside the judgment of the learned Single Judge so also of Tribunal and remand the case for its adjudication afresh. 7. Learned counsel for respondent has opposed the appeal. It is submitted that the issue was not raised before the Tribunal while submitting written statement. It could not have been raised for the first time in the writ petition. 7. Learned counsel for respondent has opposed the appeal. It is submitted that the issue was not raised before the Tribunal while submitting written statement. It could not have been raised for the first time in the writ petition. In view of above, if the issue as to whether petitioner appellant falls within the definition of 'industry' is not discussed by the learned Single Judge, no illegality has been committed. The detailed arguments in reference to the issue raised by learned counsel for petitioner appellant has been made. 8. We have considered rival submissions of the parties and perused the record. 9. In this appeal, the challenge is made to the order passed by the learned Single Judge so also the award passed by the Industrial Tribunal, Jaipur dated 21.4.1995. The main thrust of the argument is about jurisdiction of the Tribunal. It is submitted that petitioner is not falling in the definition of 'industry' thus non-petitioner No. 2 cannot be considered to be 'workman' so as to refer the dispute to the Tribunal. 10. For appreciation of the aforesaid argument, we have gone through the written statement submitted by the petitioner appellant before the Tribunal. The perusal of the written statement does not reveal an objection of the nature raised herein. 11. On completion of the pleadings, parties led their evidence which has been discussed by the learned Tribunal in its award. A perusal of the award does not reveal discussion of the evidence in reference to the issue as to whether the petitioner appellant falls in the definition of 'industry' as given under the Act of 1947. After going through the paras of the award referred by learned counsel for petitioner appellant, we do not find any discussion of the issue referred above. In view of the above, we do not find that either there exist pleading or evidence to find out whether appellant falls within the definition of 'industry'. The learned Single Judge thus declined to decide the issue raised before it for the first time. It cannot be said to be pure question of law. 12. According to learned counsel for the petitioner appellant, its being legal issue, can be raised in the writ petition and it should have been considered and decided by the learned Single Judge. 13. It cannot be said to be pure question of law. 12. According to learned counsel for the petitioner appellant, its being legal issue, can be raised in the writ petition and it should have been considered and decided by the learned Single Judge. 13. In our opinion, not only a party needs to raise the issue about the status of the employer i.e. whether it is falling in the definition of 'industry' or not and then to lead evidence. The issue raised by the appellant herein is a mixed question of fact and law. The appellant did not raise an objection about the jurisdiction of the Tribunal on the ground urged herein thus question to lead evidence does not arise. 14. Whether the appellant falls in the definition of 'industry' can be adjudicated if the evidence is led by the parties. Mere stating that an individual Doctor running a clinic would not fall in the definition of 'industry' cannot be accepted to oust the jurisdiction of the Tribunal. It is not such a case where the issue can be dealt with without factual background or the evidence thereupon like the issue raised before the Apex Court in the case of Chief Engineer, Hydel Project (supra). There, the issue was pertaining to jurisdiction of the Civil Court which is per se a legal issue and no evidence was required to support it. The nature of the objection raised herein needs evidence and it can be when a proper pleading is made and evidence is led by the parties followed by the argument before the Tribunal. 15. It is settled law that even for adjudication of an issue before the Tribunal, a party has to plead and thereupon to lead evidence. In absence of pleading, even if the evidence is led, it is to be ignored in view of the judgment of the Apex Court in the case of Shanker Chaturvedi v. Britannia Biscuit Company Ltd. AIR 1979 SC 1652 . The perusal of the written statement does not show objection of the nature raised herein. In view of above, judgment of the Apex Court in the case of Chief Engineer, Hydel Project (supra) cannot be applied. 16. The perusal of the written statement does not show objection of the nature raised herein. In view of above, judgment of the Apex Court in the case of Chief Engineer, Hydel Project (supra) cannot be applied. 16. So far as judgment in the case of Harshad Chiman Lal Modi (supra) is concerned, it applies to the cases where an order has been passed by the court having no competence and jurisdiction for it. It is to be treated as nullity. It is further held that the issue of territorial and pecuniary jurisdiction has to be raised at the first instance or at the earliest possible time. 17. The issue raised herein again is not such where it can be held that the Tribunal was not having competence to adjudicate the reference. No justification could be given by learned counsel for the petitioner appellant as to why the issue raised herein was not pleaded and argued before the Tribunal. In the case of Britannia Biscuits (supra), the Apex Court refused to consider the evidence led by one party for the reason that the other party had no opportunity to lead evidence in absence of the pleading. In view of the judgment aforesaid, we are unable to accept any of the arguments raised by learned counsel for the petitioner appellant as the issue raised herein is not purely a legal issue and can be decided without pleading and the evidence by the parties. Whether the employer fall in the definition of 'industry' needs pleading and proof in view of the judgment of the Delhi High Court in the case of Officer In-charge (CAZRI) v. Presiding Officer & Another, Writ Petition (C) No. 5016/1997, decided on 5.10.2007. Paras 5, 6 and 8 of the above judgment are reproduced here as under:- 5. Whether the petitioner/management is an 'industry' or not, is not a purely legal issue, but a mixed question of fact and law. It was for the petitioner/management to establish as to whether it is an 'industry' or not before the Tribunal and for the said purpose, it was required to make not only averments to the said effect in its written statement, but also to support the same with relevant facts pertaining to the nature of the petitioner organization, nature of work being carried out by it etc. so as to claim exemption from being covered under the Act. so as to claim exemption from being covered under the Act. Had the petitioner/management taken such an objection, the respondent/ workman could also have got an opportunity to rebut the said plea and put forth her stand before the Tribunal. Thereafter, it would have been for the Tribunal to return a finding on whether or not the research work carried out by the petitioner/management is a commercial activity or whether its activities are connected with the production, supply or distribution of material goods or services. However, such an opportunity was not availed of by the petitioner/management before the Tribunal. By not availing of such an opportunity before the appropriate forum, the petitioner/management also deprived the respondent workman of an opportunity to rebut the said allegations by making deposition in support of her case. The petitioner/ management has put the respondent/workman through the entire gamut of completion of proceedings, filing of documents, leading of evidence and addressing arguments, spanning a period of almost a decade. Now, the petitioner/management cannot be heard to state that it is entitled to raise a plea of it not being an 'industry' at this stage and seek setting aside of the award, as the same shall amount to relegating the parties back by two decades. 6. On the grounds of equity alone, the Court cannot permit such a plea to be raised at this belated stage. The petitioner/management chose to take its chances before the Tribunal on merits when it submitted itself to the jurisdiction of that forum and did not press for an issue to be framed as to whether it is an 'industry' or not. For the aforesaid reason, the judgments referred to by the petitioner/management herein cannot be of any assistance to it as the petitioner/management has not been diligent or vigilant enough to raise such pleas that were available to it at the first instance, or even in the course of the proceedings before the Industrial Adjudicator by seeking an amendment of its written statement. To permit the petitioner to take the said plea at such a belated stage would virtually amount to allowing an amendment of the written statement of the petitioner/management and a re-trial of the entire matter, which request this Court is not inclined to entertain in the peculiar facts of the present case 8. To permit the petitioner to take the said plea at such a belated stage would virtually amount to allowing an amendment of the written statement of the petitioner/management and a re-trial of the entire matter, which request this Court is not inclined to entertain in the peculiar facts of the present case 8. Hence, the plea of the petitioner/management that the Tribunal ought not to have entertained the reference on the ground that the petitioner is not an 'industry' is not found acceptable. Needless to state that the aforesaid observations are confined to the facts of the present case and as no finding is being returned on the said issue by this Court, the petitioner shall be at liberty to raise such a plea before an appropriate forum and establish its claim on merits in any other case." 18. In view of the discussion made above, we are not inclined to accept the only argument raised before us. The special appeal is dismissed accordingly.