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. Plaintiff's 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 the mind of the defendant. These observations are :
'Be that as it may, it appears to us to be well settled that when the defendant appears not only to protest jurisdiction but he also pleads to the merits, such an appearance amounts to voluntary submission on his part and his protesting the jurisdiction in such a case when he also pleads to the merits does not detract from the principle of submission in any way: See Guiard v. De Clerrnont and Conner, 1914-3 KB 145 and Subramania v. Anna-swami, AIR 1948 Mad 203. It is true that all these cases were based on foreign judgments, but it appears to us that the same principle should be held applicable to a case like the present as well, the fundamental principle being that a Court has jurisdiction in an action over any person who has by his conduct precluded himself from objecting to the jurisdiction of the Court. Such a case undoubtedly occurs where a person voluntarily submits to its jurisdiction.'
All that need be said is that the learned Judges who decided Ramanlal's case, ILR (1954) 4 Raj 262: (AIR J954 Raj 135) had the particular case before them and the wide observations were made with respect to the particular facts before them. That case is no authority for the proposition that if the plea of jurisdiction is raised along with the other defences the defendant is deprived of his right to agitate the question of jurisdiction even in the trial Court. What that case may be said to have decided is that if a defendant while disputing the jurisdiction of the Court leads evidence on all other points and takes full part in the conduct of the trial on the merits he cannot be heard later to say that the Court had no jurisdiction.
Apart from that decision the language of Section 21, C. P. C. is also clear and no objection as to the place of suing can be permitted unless -- (1) such objection has been taken in the trial Court at the earliest opportunity, (2) unless there has been consequent failure of justice. Where, therefore, a defendant takes all possible steps to contest the case of the plaintiff on merits and he is not deprived of any legitimate right to defend or opportunity to defend the suit, the law does not permit this question to be raised in an appeal. I am, therefore, inclined to think that there should be no reasonable apprehension in the mind of the defendant if he files his written statement and takes up the plea of jurisdiction and requests the Court to decide the question of jurisdiction first and I have no doubt that the Court will do so because this is required of the Court under Order XIV, Rule 2, C. P. C.
8. There is no force in this revision. It is accordingly dismissed with costs.