JUDGMENT This application has been filed by the defendant and it is directed against the appellate order of the Subordinate Judge, Jamshedpur, by which he has affirmed the order passed by the Munsif Of Jamshedpur, by which he had rejected the petitioner's application for setting aside an award filed in Court on the 17th November, 1965, in Title Suit No. 1125 of 1964. The learned Munsif by his order rejected the defendant's application and ordered that a decree be prepared in accordance with the award, with certain modifications. 2. The relevant facts are these: By petition dated the 8th February, 1965, the parties to the title suit had agreed to refer their disputes to arbitration of seven arbitrators, mentioned in that petition. Paragraph 4 of that petition stated thus : "That the parties hereby declare and undertake that they will abide by the decision of the aforesaid arbitrators and in case of any difference of opinion among the arbitrators, the parties will abide by the decision of the majority of the arbitrators." The arbitrators had been asked to submit their award by the 7th April, 1965. But, it appears that several extensions of time had to be given by the Court until the 22nd September, 1965. On that day, the learned Munsif passed an order to the effect that the award had still not been received from the arbitrators and a reminder may be sent to them. In these circumstances, the a ward was filed on the 17th November, 1965, signed by five of the seven arbitrators on the 16th November, 1965. On the 6th January, 1966 a petition was filed by the petitioner defendant and a rejoinder to this had been filed soon after by the plaintiff. No evidence was adduced by any of the parties before the learned Munsif and he held, amongst others, that both the parties had appeared before five of the arbitrators and that no party had raised objection that two of the arbitrators had not taken part in the arbitration. The learned Munsif has stated that it appears that since the decision of the arbitrators did not go in favour of the defendant that it has, for the first time, come to Court to get the award set aside on the plea that two members of the arbitrators had not participated in the proceeding. On this point the learned Subordinate Judge has also concurred. On this point the learned Subordinate Judge has also concurred. He had also stated that the defendant had taken part before the five arbitrators, knowing full well that all the seven arbitrators were not participating in the proceeding. According to the learned Judge, the conduct of the defendant showed that it was fully prepared to an arbitration being done by these five arbitrators. 3. Learned counsel for the petitioner has argued that according to the arbitration agreement, all the seven arbitrators had to take part in the proceeding and as all of them had not deliberated and arbitrated, the award was illegal. It is argued that the very fact that five out of seven arbitrators have signed the award in question shows that Paragraph 4 of the arbitration agreement was not complied with. My attention has been drawn to the letter of the Chairman of the arbitration committee sent to the Court enclosing the award and it is argued that this very document shows that at least two of the: arbitrators had not participated in the deliberations. Learned counsel for the opposite party has contended, on the other hand, that the petitioner is estopped from arguing the point mentioned above, because he had taken part in the proceedings before at least five arbitrators and, therefore, it is (stopped by conduct from challenging the award as given by them. reliance is placed on a decision of this Court in the case of (1) Baikunth Misser V. Gaurishankar Tewari and others, reported in 1967 B. L. J. R 132. Having heard learned counsel for the parties, I am of the opinion that the petitioner has not made out any case for interference by this Court under Section 115 of the Code of Civil Procedure. Whatever had been urged on its behalf be fore the Court of appeal below has been fully considered. The facts make it clear that the petitioner had appeared before the arbitrators who had signed the award and had produced its evidence before them. At page 6 of the award it is mentioned that the correspondence between the parties had been placed before the arbitrators and they had gone through the same. It is mentioned that these arbitrators held several sittings and had heard the parties at length and had perused the papers produced by them. At page 6 of the award it is mentioned that the correspondence between the parties had been placed before the arbitrators and they had gone through the same. It is mentioned that these arbitrators held several sittings and had heard the parties at length and had perused the papers produced by them. Page 8 of the award has mentioned some of the contentions raised by the defendant. It appears from page 9 of the award that the defendant had argued that on the renewal of the lease, electrical charges and water charges should be paid by the plaintiff according to his actual consumption and the defendant is prepared to install a separate electrical sub-meter and a separate water sub-meter for the purpose of recording water and electric consumption by the plaintiff in the premises. On this contention the plaintiff had, in fact, agreed to this arrangement and on this agreement, this term was incorporated in the terms of the renewed lease. It appears that the plaintiff had further agreed to pay Rs. 300/- to the defendant as good-will money towards construction of staircase and installation of meter for electric and water. In these circumstances, I am of the opinion that the defendant should not be permitted to argue at this stage that because all the arbitrators named in the arbitration agreement had net participated in the deliberations, the award must be set aside. In my opinion, the principle laid down in Baikunth misser's case should be made applicable here also. What had happened in that case is that two arbitrators had been appointed but they had not appointed an umpire, as required by Article 2 of the First Schedule of the Arbitration Act. This Court held that the petitioner before it had a right to object to the proceeding being carried on by two arbitrators without appointment of an umpire, but he had not exercised this right. He had waived it. I am of the opinion that whatever may have been stated in Paragraph 4 of the arbitration agreement, that was in fact waived by conduct by this petitioner when it had appeared before five of the arbitrators and had argued its case and had even taken advantage of the concession made by the plaintiff. He had waived it. I am of the opinion that whatever may have been stated in Paragraph 4 of the arbitration agreement, that was in fact waived by conduct by this petitioner when it had appeared before five of the arbitrators and had argued its case and had even taken advantage of the concession made by the plaintiff. The question of the principle of waiver and acquiescence has been dealt with by this Court in a recent Full Bench decision (2) (M/S Bokaro & Ramgarh Ltd. V. Dr. Prasun Kumar Banerjee-Civil Revision No. 757 of 1966, decided on the 25th August, 1967). Reference has been made therein to the case of Palmar V. The Metropolitan Railway Company [(l862) 31 L. J. Q. B. 259 ], where it was held that arbitration clauses being introduced for the benefit of the parties, they are at liberty to renounce at their pleasure the advantage which those clauses afford. In the instant case also, whatever may have been in the contemplation of the parties on the 8th February, 1965, it is clear that they had agreed to the arbitration proceeding being conducted by five out of the seven arbitrators only. Some argument has been advanced by learned counsel for the petitioner to the effect that even these five arbitrators had not taken part in the arbitration proceeding. I do not think that the petitioner can be heard in this context without leading evidence on the point. The court of appeal below has correctly stated that no evidence had been adduced on behalf of the defendant before the learned Munsif. The decision reported in (3) A. I. R 1952 Patna 461 (Deo Narain Singh and others V. Siabar Singh and others) has been relied upon by learned counsel for the petitioner and reference has been made to the recital in this judgment where it is stated that the award in that case had stated that the arbitrators had heard the parties. But the learned Judge of this Court held that the Munsif had made no endeavour to examine any of the arbitrators in proof of this recital in the document. This case is quite distinguishable, whatever the petitioner had stated in its petition dated the 6th January, 1966 had been controverted by the plaintiff by his rejoinder filed soon thereafter, and it was the duty of the defendant to prove its allegations. This case is quite distinguishable, whatever the petitioner had stated in its petition dated the 6th January, 1966 had been controverted by the plaintiff by his rejoinder filed soon thereafter, and it was the duty of the defendant to prove its allegations. Learned counsel for the petitioner has also relied upon the case of (4) Abu Hamiel Zahir Ala V. Golam Sarwar, reported in 25 Calcutta Law Journal 396. But, that was a case of an appeal and not of a civil revision. In the circumstances of the instant case, if this Court comes to the conc1usion that the petitioner is not entitled to any relief, having acquiesced before five of the arbitrators that they could proceed with the arbitration, no relief can be given to the p8titioner in a civil revisional application. Learned counsel for the petitioner has further relied upon the case of (5) Ambika Prasad Thakur and others V. Siva Parsan Singh and others, reported in A. I. R. 1960 Patna 587. But that decision is also not in point. All that was held therein was that the Court had jurisdiction under Section 14 of the. Arbitration Act and some other allied sections to enquire into the existence of an alleged award and to ask the parties to produce evidence oral and documentary. There is no doubt that the learned Munsif, in the instant case, could decide the point urged by the petitioner now, on evidence, but no evidence was led. Therefore, this decision cannot be of any assistance at this stage. I am of the opinion that all the above mentioned contentions raised on behalf of the petitioner must fail. However, there are two points in this case which have not been correctly decided by the learned Subordinate Judge. He has held that the appeal in the court of appeal below did not lie and he has held that the application filed on the 6th January 1966 by the defendant had been filed beyond the period of limitation [presumably, under Article 119 (b) of the Limitation Act]. In both these points the learned Subordinate Judge has erred. An appeal did lie in this case under Section 39 of the Arbitration Act and no question of limitation had arisen, because no notice contemplated by Article 119 (b) had been given to the defendant of the filing of the award. In both these points the learned Subordinate Judge has erred. An appeal did lie in this case under Section 39 of the Arbitration Act and no question of limitation had arisen, because no notice contemplated by Article 119 (b) had been given to the defendant of the filing of the award. It appears that after the award had been filed on the 17th November, 1965, the defendant's lawyer had been informed of it on the 8th December, 1965. In the circumstances, Article 119 (b) could not have been utilised against the defendant for holding that his petition was barred by limitation. Nevertheless, on the grounds decided earlier, this application must fail and it is dismissed. In the circumstances of the case, however, there will be no order for costs. Application dismissed.