Judgement

BACHAWAT, J. : The plaintiff was a typist clerk in the employ of the second defendant, the Bahrein Petroleum Co. Ltd. The 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 Sub-ordinate 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 Ernakulam 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.

2. 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 Procedure, 1908.

3. Counsel for the plaintiff-respondent submitted that it was open to the defendants to waive this objection, and if they lid so, they could not subsequently take the objection. This submission is well founded. As a general rule, neither consent nor wavier 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 cognisable by the Courts under the Code may be waived under this section. The waiver under S. 21 is limited to 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. Independently of this section, the defendant may waive the objection and may be subsequently precluded from taking it, see Hira Lal Patni v. Sri Kali Nath, 1962-2 SCR 747 at pp. 751-752.

4. 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, he 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 for raising the objection.

5. 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.