( 1 ) THE petitioner is the original plaintiff of Special Civil Suit No. 100 of 1977 pending is the Court of Civil Judge (S. D.) Surat. He gave application-Exh. 40 by which he requested the Judge to frame two issues and refer those issues to the Tenancy Court under the pro- visions contained in sec. 85 of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as the Act ). The learned Civil Judge rejected that application on the ground that the suit was of 1977 and the issues were framed on 4-7-1978 and thereafter also after death of the original defendant the defendants who are the heirs adopted the written statement. Those issues were confirmed and thereafter this particular application was given. Being aggrieved by that order passed the plaintiff has filed this petition.

( 2 ) THE learned advocate Shri D. D. Vyas appearing on behalf of the defendants strongly opposed this petition mainly on the following grounds: (1) Such a petition is not maintainable under the provisions contai- ned in sec. 115 of the Civil Procedure Code as the order passed by the learned Civil Judge (S. D ) cannot be considered to be a case decided; (2) The order confirmi