( 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 confirming the framing of issues would operate as res judicata between the parties; and (3) The issues suggested were covered by issue no. 1 and the same court had jurisdiction to decide issue no. 1 and it was not at all necessary to frame any more issues or refer the matter to the Tenancy Court.

( 3 ) NOW in order to appreciate the above contentions it may be stated that the suit is a suit for partition for certain survey numbers situated in village Dabholi. In the plaint it was stated that out of the properties which were required to be partitioned one of the survey numbers viz. survey no. 122 was a survey number in respect of which original defendant-Ramubhai Fakirbhai had obtained a certificate during the pro- ceedings under sec. 320 of the Act but the tenancy rights of that survey number belonged to joint Hindu family. In the written statement which was used that fact was denied and it was submitted by the defendants that he alone was cultivating that land as a tenant. So far as issue no. 1 is concerned it is as under: (1) Whether the suit property bearing survey no. 122 of Dabholi village is a joint family property ?

( 4 ) THE real question of controversy was as to whether deceased- Ramubhai was a tenant of survey no. 122 of village Dabholi or the tenancy rights were of the joint family of deceased Ramubhai and his deceased brother Jinabhai. It may hereby stated that so far as the parties are concerned Fakirbhai is a common ancestor who had two sons (1) Jina- bhai and (2) Ramubhai. Plaintiff-Gandabhai is the son of Jinabhai and he filed suit against his uncle Ramubhai and as he expired his heirs and legal representatives are brought on record. These are the circumstances under which the questions posed are required to be examined. We may state that the proceedings for which the legislature has provided an independent remedy or a different procedure and if the parties are not allowed to follow that procedure that question would always amount to case decided and consequently such orders will be open to revision. If it can be held that it was a case where jurisdiction was required to be exercised by a different forum and the civil court decided to exercise that jurisdiction itself it would be exercising the jurisdiction not vested in it by law and if such an order is allowed to stand it would cause a failure of justice and would cause irreparable injury to the party against whom that order is made. Under these circumstances the first objection of the learned advocate Shri Vyas would fail.

( 5 ) IN regard to the question of res judicata the learned advocate Shri R. N. Shah cited a case of Bhikhabhai Jethabhai and Others v. J. V. Vyas Additional Collector and Another reported in 4 G. L. R. at page 873. The Division Bench of this Court held as under:"any deci