The main legal point established is that the issue of jurisdiction can be a mixed question of law and fact, and cannot be decided as a preliminary issue without recording evidence.

P.A. Mohammed, J.

1. The Correspondent of "Chinmaya Vidyalaya" in Balla village of Hosdurg Taluk is the revision petitioner. He is the second defendant in the suit filed by the first respondent, who is a teacher in the nursery section of the school run by "Chinmaya Mission". In the suit, the first respondent, inter alia, prayed for a mandatory injunction to reinstate her in the service of "Chinmaya Vidyalaya'. The suit was filed when her service was terminated by the Management on 21-8-1989. The revision arises from an order passed by the court below on a preliminary issue namely "Whether the court has jurisdiction to try the suit". Without taking evidence, the court below found that it has jurisdiction to try the suit. The correctness and legality of this finding is challenged in this revision.

2. Sub-r.(2) of R.2 of O.14 of the Code of Civil Procedure is thus:

"2. Where issues both of law and of 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 if first 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 decision on that issue.

Sub-r.(2) will be attracted only if the court is of the view that the case or any part thereof can be disposed of on an issue of a law only provided such issue relates to the jurisdiction of the court or a bar on the court to try the suit crested by any law for the time being in force what can be disposed of by the court under this sub-rule is an issue of law and nothing else because the word 'only' contained therein restricts scope of Its operation. If the adjudication of an issue also involves the question of fact, then such issue cannot be decided as a "preliminary issue'' in the suit. In other words, if the issue involves mixed question of law and fact, sub-r.(2) has no application.

3. It is necessary to examine whether the question of jurisdiction of the court to try the suit can be decided as a preliminary issue in this case without recording any evidence. In Muthayyan v. Manager, Kadalur Estate (1981 KLT 660) a question arose before this court whether a school teacher as a 'workman' as defined in the Industrial Disputes Act. In that case the petitioner was a teacher in the primary school in an estate. When he was dismissed from service the Government referred the dispute for adjudication. When the matter came up before the Labour Court, a preliminary objection was raised that the petitioner was not a 'workman'. Upholding the said objection the Labour Court rejected the reference. This court after quashing the award directed the Labour Court to adduce evidence about the functions of the teacher in the school. While analysing the question, Khalid, J. (as he then was) of this court observed thus:

"What type of work does a teacher do? It cannot be said to be a technical work. Can it be a clerical work for hire or reward. A teacher may in the course of his work do some work which may be clerical in nature but that will not impress the character of his work with that of a clerical work. Is his work supervisory in nature? A definite answer is not possible .................................................................................. In my view, evidence has to be made available for coming to a proper decision. From the materials available in the case I find that the petitioner is employed in a school run by a plantation. The Plantation Act requires the running of such a school. The duties which a teacher in such a school discharges I hate to de proved by evidence. It may also be that in schools under the plantation a teacher does work other than teaching. Such evidence, if available may also help a decision of this difficult question."

(Italics