( 1 ) TO grant or not to grant leave to urge this new plea of Act of State is the question we must resolve at the threshold. In our opinion whether or not the Municipal Court has jurisdiction to try the suit from the standpoint of the plea of Art of State is a mixed question of law and facts. Such a plea must in the first place be raises in the written statement. An issue must be framed on this question and parties must have an opportunity to adduce evidence in regard to this plea. It is possible that in a given case a pointed issue may not be raised and yet the parties may have understood that defence of Act of State was sought to be urged and parties may adduce evidence on the point. So far as the present case is concerned apart from the fact that there was no such plea in the written statement and no such issue was raised the parties never realised that the defence of Act of State Was sought to be relied upon by the State in order to defeat the present suit. This position is incapable of being disputed having regard to the fact that even the learned Govt. Pleader who appeared in the trial Court did not raise any such contention and did not urge any argument in t