THE BAHREIN PETROLEUM CO. LTD. versus P. J. PAPPU AND ANOTHER

Citation: [1966] 1 S.C.R. 461 · Decided: 16-08-1965 · Supreme Court of India · Bench: K. SUBBA RAO · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

• 
• 
A 
THE BAHREIN PETROLEUM CO. LTD. 
v. 
P. J. PAPPU AND ANOTHER 
August 16, 1965 
B 
[K. SUBBA R.Ao, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.] 
c 
D 
E 
F 
G 
Arbitration Act (10 of 1940), ss. 34 and 39(1)- Application for 
stay-Dismissed-Appeal-If recognition of jurisdiction of Court. 
The respondent instituted a suit for recovery of gratuity and arrears 
Qf salary from the appellants. 
Tho 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 courl9, and having failed to obtain the stay order, they 
vrere compelled to apply to the trial court for permis9ion to file their 
written statement, and, on the permission being granted they filed it object-
ing to ,the jurisdiction and also pleading on the merits. The question of 
jurisdiction was tried as a preliminary issue, and the trial and appel1ate 
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, 
1iELD : 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 subse-
quently be precluded from taking it. But the appellants lodged their 
protest at the earliest opportunity and persi~ted 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 
that court has jurisdiction to trv the su1t. nor can an appeal from an order 
of the Court, under s. 39(1), have that effect, because the general defini-
tion of "Court" ins. 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 bas not given a 
verdict on the merits at the time when the objection is taken in the appel-
late 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, 0. C. Mathur 
and Ravindet 
Nar•in, for the appellant. 
,.. 
Gopal Singh, for respondent No. 1. 
"': H 
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 
~62 
SUPREl\IE COURT REPORTS 
[1966] I S.C.R. 
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 
out~ide India. 
The plaintiff instituted a suit for recovery of 
gratuity and arrears of salary against the Company and its recruit-
ing 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 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 state-
ment. 
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 i.,suc 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 dis-
missed. But, on revision, the High Court of Kerala held that the 
defendants had waived the objection as to the territorial jurisdic-
tion 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. 
111c dckndants

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