A defendant who takes all possible steps to contest the case of the plaintiff on merits and is not deprived of any legitimate right to defend or opportunity to defend the suit cannot raise the question of jurisdiction in an appeal.

K. L. BAPNA, J.

( 1 ) THIS is a revision against an order of the learned Civil Judge, Jodhpur dated 11-2-1955.

( 2 ) MESSRS. Laxmi Motors Company of Jodhpur instituted a suit for recovery of Rs. 4,997/- in the Court of Civil Judge, Jodhpur on 16-9-1953 against the defendant Premier Automobiles Ltd. , Bombay, on the allegation that the plaintiffs were the agents of the defendant for the sale of automobile cars and after the agreement of agency had come to an end, an account was taken up by which the defendant agreed to be indebted to the tune of Rs. 14,411-6-3 and that while the defendant had remitted Rs. 10,411-6-3 a sum of Rs. 4,000/ remained outstanding. The plaintiff claimed Rs. 997/- on account of interest on the aforesaid sum. When the suit came for hearing on 31-1-1954 a lawyer for the defendant entered appearance. The order recorded is

"counsel for the defendant wants time to file written statement. Plaintiffs lawyer has no objection. The case he-posted for 10-2-1954"

On 10-2-1954 two applications were submitted on behalf of the defendant. In one application it was alleged that according to the terms of the agreement between the parties recourse should be taken to arbitration before the institution of the suit. It was therefore, prayed that the proceedings in the suit should be stayed under Section 34 of the Arbitration Act. The second application said that by an agreement between the parties the only Court which could exercise jurisdiction was the Bombay Court.

( 3 ) THE learned Civil Judge decided against the defendant on a plea under Section 34 of the Arbitration Act and further directed the defendant to file his written statement and to take the objection as to jurisdiction as a plea therein and which will then be enquired into. The defendant has come in revision.

( 4 ) IN this application for revision by the Premier Automobiles Ltd. , it is urged that the Court should have decided the objection as to the jurisdiction first and it is further contended that the decision in respect of the plea under Section 34 of the Arbitration Act was erroneous. It is contended that the Civil Court should not have compelled the defendant to file his written statement.

( 5 ) SO far as the correctness or otherwise of the order under Section 34 of the Arbitration Act is concerned the order was an appealable one and since no appeal has been filed it is not possible to interfere in revision.

( 6 ) ON the question of jurisdiction the lower Court has not given any decision. The apprehension of the petitioner is that if he complies with the order of Court to file written statement, (although the Court has permitted him to take the plea of jurisdiction) the consequences under the law according to the decision of this Court in Kamanlal v. Ramgopal, ILR (1954) 4 Raj 262: (AIR 1954 Raj 135), would be that he would be debarred from agitating this question on the ground that by filing the written statement on the merits he would be submitting to the jurisdiction of the Court.

( 7 ) I have gone through the decision referred to by learned counsel for the defendant. That decision can be supported on the special facts of the case which are narrated at pages 269 and 270 (of ILR Raj): (at p. 137 of AIR) and are as under ;

"we have no hesitation in holding that both defendants Ramanlal and Murli Dhar submitted themselves to the jurisdiction of the Churu Court inasmuch as they did not limit their contest to a protest as to jurisdiction only in that Court but fought the case on all points relating to the merits, led evidence, and cross-examined the plaintiff who appeared as a witness on his own side and fully took the chance of a judgment in their favour and having done all that they cannot be allowed now to disown the Churu Court and to say that it had no jurisdiction to entertain any suit against them. "

The observations of the Court, a few paragraphs above the passage cited, are rather wide and which have probably caused an apprehension in t