PAPPU Vs. EVANS

JUDGEMENT

(1.) 1st defendant, was the recruiting agent at Bombay of the 2nd respondent - company, which was the 2nd defendant. The respondents filed interlocutory applications before the Cochin court for stay of the suit under S. 34 of the Indian Arbitration Act, both the petitions were dismissed; and one of the respondents filed an appeal under S. 39 (1) of the Act to the court of the District Judge of Ernakulam, which was also dismissed. Then he filed a civil revision petition before this Court, which again was dismissed in limine.

(2.) IN the meantime, the respondents were declared ex parte by the Cochin Court. After the dismissal of the revision petition the respondents filed an application for setting aside the ex parte, which was allowed on payment of costs. Thereafter, they filed their written statements, wherein they raised pleas both on merits as well as against the territorial jurisdiction of the Cochin court to entertain the suit. Issues were also settled; and the respondents then filed an application for disposal of the issues relating to territorial jurisdiction as preliminary issues The Cochin court agreed with the contention of the respondents that it had no territorial jurisdiction to entertain the suit and returned the plaint. This decision was confirmed in appeal by the District Court of Ernakulam whereupon the petitioner filed this civil revision petition. Vaidialingam, J. placed the matter before a Division Bench; and hence the case is before us.

(3.) THE counsel of the petitioner argues that this attempt to obtain stay under S. 34 was a concession that the Cochin court had jurisdiction to try the suit; and therefore, it was a submission to its jurisdiction. It is interesting to scrutinise now S. 34. THE expression used in the section is "judicial authority" and not the term "court", which is defined in S. 2 (c) of the Act. "court" is defined 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. This means that the 'court' is the court having jurisdiction to try the suit; so that, if the "judicial authority" in S. 34 is a "court" as defined in the Act, then an application for stay under that section is a concession that the court before which the application is filed is a court having jurisdiction to try the suit and thus a submission to its jurisdiction.