( 1 ) THIS case has come up before this Full Bench in somewhat peculiar circumstances. In a suit instituted by the plaintiff-non-applicant at Mandsaur claiming damages for breach of contract against the defendant applicant, who is a resident of Raipur, the defendant in his written-statement among other pleas challenged the territorial jurisdiction of the Mandsaur court On the pleadings of the parties the learned trial court framed as many as seven issues including the issue about jurisdiction. Thereafter, the defendant applicant submitted an application under Order 14 Rule 2 and order 15 Rule 2 read with Section 151 C. P. Code praying that the issue about jurisdiction should be tried as a preliminary issue. The learned trial court, looking to the pleadings of the parties and the nature of controversy involved in the suit felt that the issue of jurisdiction could not be decided without recording evidence on all the issues, and therefore by its order dated 12-3-1976, directed that evidence of the parties on all the issues shall be first recorded and issue about jurisdiction shall be decided and thereafter, other issues shall be decided. Being aggrieved by this order, the defendant has come up in this revision.

( 2 ) WHEN the case came up for hearing before the learned Single Bench, he felt that though the only question for decision in this revision is whether the issue relating to jurisdiction of the trial court which requires the taking of some evidence, has to be decided as a preliminary issue or not, in view of the conflicting decisions of this court on this point, the papers be laid before the hon'ble the Chief Justice for constituting a larger Bench to hear and decide this revision itself. Accordingly, a Division Bench was constituted by the Chief justice, who on an assumption that it was called upon to answer the reference made by the Single Judge, answered the reference by its order dated 25-81977, reported in Ramdayal Umraomal v. Pannalal Jagannathji (1977 MPLJ 752): (AIR 1978 Madh Pra 16) as under: "accordingly we answer the reference as in paragraphs 4 and 5 above. "

Thereafter when this revision petition was again fixed for hearing before the learned single Judge on 13-10-1977 he directed that the case be listed before the same Division Bench, which had heard the reference initially as, looking to the wording of the order of reference dated 20-4-1976, he was of the opinion that the revision petition could not be heard and decided by him. It appears, that thereafter anyhow the case could not be listed for hearing before the same bench which had to decide the revision on merits, with the result that as per order dated 14-3-1978 of the Hon'ble the Chief Justice, the matter was placed for hearing before another Division Bench. This Division Bench, relying on Rule 9 and Rule 12 of Chapter I of the High Court Rules and Orders in Madhya pradesh by its order dated 31-8-1978 directed for constitution of a larger Bench which necessitated the Hon'ble the Chief Justice to constitute this Full Bench.

( 3 ) IT was urged by learned counsel for the applicant, that the court below committed a manifest error of law in taking the view that Issue No. 5 about jurisdiction could not be decided as a preliminary issue, even though it felt that it being a mixed question of law and fact could not be decided without recording evidence. He, further submitted that in all preliminary issues, whether they relate to jurisdiction, valuation, court-fee or limitation, some evidence is bound to overlap with the evidence of other issues for which the witnesses may also be the same, still the learned trial Court was bound to decide the preliminary issue first as it goes to root of the matter and in support of this submission, he placed reliance on the Full Bench decision in Santosh Chandra v. Gyan Sundar bai (1970 Jab LJ 290) which is relied upon by Single Bench decision in banchand v. Basanti Devi (1972 Jab LJ 448) as also on a single benc