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TMI Blog1965 (8) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a statutory recognition of the principle that the defect as to the place of suing under ss. 15 to 20 may be waived. Independently 463. 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.( [1962] 2 S.C.R. 747, 751-752.) 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 subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 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 Coc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 clea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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