The Bahrein Petroleum Co. Ltd. Vs. P.
J. Pappu & ANR  INSC 155 (16 August 1965)
16/08/1965 BACHAWAT, R.S.
CITATION: 1966 AIR 634 1966 SCR (1) 461
CITATOR INFO :
R 1969 SC1147 (20) D 1992 SC1545 (4)
Arbitration Act (10 of 1940), ss. 34 and
39(1)- Application for stay-Dismissed-Appeal-If recognition of jurisdiction of
The respondent instituted a suit for recovery
of gratuity and arrears of salary from the appellants. The appellants applied
for stay of suit under s. 34 of the Indian Arbitration Act, 1940 and protested
against the jurisdiction of the court to try the suit. They fought up to the
appellate and revisional courts, and having failed to obtain the stay order,
they were compelled to apply to the trial court for permission to file their
written statement, and, on the permission being granted they filed it objecting
to the jurisdiction and also pleading on the merits. The question of
jurisdiction was tried as a preliminary issue, and the trial and appellate
courts decided in favour of the appellant. But on revision, the High Court held
that the objection as to territorial jurisdiction was waived by the appellant.
In the appeal to this Court,
HELD :The appellants did not waive their
objection as to the territorial jurisdiction of the trial court. [464 D-E] A
defendant may waive the objection as to jurisdiction and may subsequently be
precluded from taking it. But the appellants lodged their protest at the
earliest opportunity and persisted in their objection. An application to the
court before which the suit is pending for stay of the suit under s. 34 of the Arbitration
Act, is in no way a recognition that court has jurisdiction to try the suit,
nor can an appeal from an order of the Court, under s. 39(1), have that effect,
because the general definition of "Court" in s. 2(c) cannot be imported
into s. 34. The appellants need not allege nor prove a failure of justice in
consequence of the order of the High Court, because, S. 21, Civil Procedure
Code, does not preclude the objection as to the place of suing, if the trial
court has not given a verdict on the merits at the time when the objection is
taken in the appellate or revisional court. [463 B-C; F; 464 B-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 432 of 1965.
Appeal by special leave from the judgment and
order dated October 19, 1964 of the Kerala High Court in Civil Revision
Petition No. 536 of 1963.
G. B. Pai, J. B. Dadachanji, O. C. Mathur and
Ravinder Narain for the appellant.
Gopal Singh, for respondent No. 1.
The Judgment of the Court was delivered by
Bachawat, J. The plaintiff was a typist clerk in the employ of the second
defendant, the Bahrein Petroleum Co. Ltd. The 462 first defendant was the
recruiting agent of the Company at Bombay. The contract of service was signed
at Bombay. The zone of operation under the contract of service was Bahrein
Island outside India. The plaintiff instituted a suit for recovery of gratuity
and arrears of salary against the Company and its recruiting agent in the Court
of the Subordinate Judge of Cochin. Both defendants applied to the Cochin Court
for stay of the suit under s. 34 of the Indian Arbitration Act, 1940. The
Cochin Court refused to stay the suit. An appeal from this order to the
District Court of Emakulam was dismissed, and a revision petition to the High
Court was dismissed in limine. In the meantime, the Cochin Court passed an
order declaring that the suit should proceed ex parte. On an application by the
defendants, this order was set aside, and the defendants were allowed to file
their written statement. In their written statement, the defendants pleaded on
the merits and also disputed the territorial jurisdiction of the Cochin Court.
On the application of the defendants, the Cochin Court tried the preliminary issue
as to jurisdiction. The Cochin Court held that it had no territorial
jurisdiction to try the suit, and directed the return of the plaint for
presentation to the proper Court. An appeal to the District Judge of Ernakulam
was dismissed. But, on revision, the High Court of Kerala held that the
defendants had waived the objection as to the territorial jurisdiction of the
trial Court, set aside the orders of the lower Courts, and directed the Cochin
Court to try the suit on the merits. The second defendant now appeals to this
Court by special leave.
The defendants neither resided nor carried on
business, nor did any part of the cause of action arise within the local limits
of the jurisdiction of the Cochin Court. The Cochin Court had, therefore, no
territorial jurisdiction to try the suit under s. 20 of the Code of Civil
Counsel for the plaintiff-respondent
submitted that it was open to the defendants to waive this objection, and if
they did so, they could not subsequently take the objection.
This submission is well-founded. As a general
rule, neither consent nor waiver nor ,acquiescence can confer jurisdiction upon
a Court, otherwise incompetent to try the suit. But s. 21 of the Code provides
an exception, and a defect as to the place of suing, that is to say, the local
venue for suits cogniscible by the Courts under the Code may be waived under
this section. The waiver under s. 21 is limited ,lo objections in the appellate
and revisional Courts. But s. 21 'is a statutory recognition of the principle
that the defect as to the place of suing under ss. 15 to 20 may be waived.
of this section, the defendant may waive the
objection and may be subsequently precluded from taking it, see Seth Hira Lal
Patni v. Sri Kali Nath.(1) Counsel for the plaintiff further submitted that, as
a matter of fact, the defendants by their conduct have waived the objection.
Though this submission found favour with the High Court, we are unable to
accept it. If the defendant allows the trial Court to proceed to judgment
without raising the objection as to the place of suing and takes the chance of
a verdict in his favour, the clearly waives the objection, and will not be
subsequently permitted to raise it. It is even possible to say that long and continued
participation by the defendant in the proceedings without any protest may, in
an appropriate case, amount to a waiver of :the objection. But, in this case,
we find no conduct of the defendants which amounts to a waiver, or which
precludes them from 'raising the objection.
At the earliest opportunity and before taking
any steps in the suit, the defendants applied for stay of the suit under s. 34
of the Indian Arbitration Act, 1940. In the petition for stay, they protested
against the jurisdiction of the Court to try the suit. In; paragraph 5 of the
petition, they clearly pleaded that the Cochin 'Court had no jurisdiction to
entertain the suit. They objected lo the trial of the suit on the merits,
pressed for a stay order before 'the Cochin Court and fought up to the
appellate and revisional 'Courts. Having failed to obtain the stay order, they
were compelled to apply to the Court for permission to file their written
,statement, and on the permission being, granted, they filed it objectIng to
the jurisdiction and also pleading on the merits. Throughout, the defendants
protested against the jurisdiction of the Court 'to try the suit. They lodged
their protest at the earliest oppor- tunity, and persisted in their objection
thereafter. At no stage they waved or abandoned their objection.
The High Court was of the view that the
effect of ss. 2(c), 34 and 39 of the Indian Arbitration Act was that by filing
the appeal 'under s. 39 against the order of the Cochin Court refusing to stay
'the suit, the defendants must be deemed to have conceded that the Cochin Court
was a Court having jurisdiction to try the suit. An application under s. 34
lies to the judicial authority, before which the suit is pending. Section 39(1)
permits an appeal from, an order of a Court under s. 34. Section 2(c) defines a
"Court" (1)  2 S.C.R. 747, 751-752.
464 as a Civil Court having jurisdiction to
decide the questions forming the subject-matter of the reference if the same
had been the subject-matter of a suit. On a combined reading of ss. 2(c), 34
and 39, the High Court concluded that by filing the appeal 'under S. 39(1), the
defendants conceded that the Cochin Court before which the application under s.
34, was made was a Court as defined in s. 2(c), and, therefore, a Court having
jurisdiction to 'try the suit. We are unable to accept this line of reasoning.
Even Substituting the word "Court" for the words "judicial
authority" in 34, it would appear that the general definition of
"Court" in s. 2(c) cannot be imported into s. 34. An application for
stay of a suit must be made to the Court before which it is pending. That Court
may or may not be the Court having jurisdiction to ,decide the questions
forming the subject- matter of the reference, if the same had been the subject-
matter of a suit. Still, the application must be made to the Court and to no
other. An applicant to the Court before which the suit is pending for stay of
the suit under s. 34 is in no way a recognition that Court has ,jurisdiction to
try the suit, nor can an appeal from an order of 'the Court under s. 34 have
that effect. We, therefore, hold that The defendants did not waive their
objection as to the territorial jurisdiction of the Cochin Court.
Counsel for the plaintiff also submitted that
the defendants -having neither alleged nor proved that there has been a failure
,of justice in consequence of the order of the High Court, they 'are precluded
by S. 21 of the Code from raising this objection in 'this Court. We think that
this contention has no force. The suit has not yet been tried on the merits. So
far, only the preliminary issue as to jurisdiction has been tried. That issue
was decided in favour of the defendants by the trial Court and the District
Court I and against them by the High Court, and from the order of the 'High
Court, this appeal has been filed. There cannot be a consequent failure of
justice at this stage.
The condition "unless 'there has been a
consequent, failure of justice" implies that at the 'time when the
objection is taken in the appellate or revisional 'Court, the suit has already
been tried on the merits. The section 'does not preclude the objection is to
the place of suing, if the trial Court has not given a verdict on the merits at
the time when the objection is taken in the appellate or revisional Court. The
'point is clearly brought out in the judgment of Venkatarama Aiyar, J. in Kiran
Singh and others v. Chaman Paswan and others(2) thus :
(1)  1 S.C.R. 117, 122.
(2) 1955] 1 S.C.R. 117,122.
465 .lm15 "The policy underlying
sections 21 and 99 of the Civil Procedure Code and section 11 of the Suits
Valuation Act is the same, namely, that when a case had been tried by a Court
on the merits and judgment rendered, it should not be liable to be reversed
purely on technical grounds, unless it had resulted in a failure of justice,
and the policy of the Legislature has been to treat objections to jurisdiction
both territorial and pecuniary as technical and not open to consideration by an
appellate Court, unless there has been a prejudice on the merits." The
appeal is allowed, the judgment of the High Court set aside, and the orders of
the trial Court and the District Court are restored. There will be no order as