P L D 1968 Lahore 712 (PLP)

A. R. SHEIKH, J.

The facts in this case are stated in the referring order dated the 19th of November 1966 and may be briefly recapitulated here for elucidation. Ali Muhammad petitioner sued Mirza Muhammad Husain respondent seeking declaration to the effect that he was the sole owner of motor tank No. D G 93 and the respondent has nothing to do with, it. He further prayed for a permanent injunction as consequential relief, restraining the respondent from denying the petitioner's. ownership and from interfering with his possessions. As against this, the respondent filed an application under section 8 of the Arbitration Act (X of 1940) for settlement of a dispute between the parties pertaining to the said motor tank. The suit and the application were consolidated and the following two issues were framed on the pleadings of the parties:‑ (1) Whether there is an arbitration agreement between the parties? If so, what is its effect? (2) Whether arbitration petition is barred under section 69 of the Partnership Act? The trial Court after finding both the issues for the respondent, stayed the petitioner's suit under section 34 of the Arbitration Act. The petitioner having remained unsuccessful in his appeal before the District Judge has invoked the revisional jurisdiction. of this Court under section 115 of the Code of Civil Procedure.

2. The main contention put forward on behalf of the petitioner centres round the interpretation of the words "other proceeding" appearing in subsection (3) of section 69 of the Partnership Act and I sitting singly referred the following question for consideration of the Full Bench to resolve the conflict of judicial authority: "Whether or not proceedings under section 8 of Act X of 1940 are covered by the words 'other proceedings' appearing in subsection (3) of section 69 of the Partnership Act of 1932?" In order to appreciate the arguments addressed tot he Full Bench it will be beneficial to reproduce section 69 of the Partnership Act in extenso: "

69. Effect of non‑registration.‑(1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be onto have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. (2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. (3) The provisions of subsections (1) and (2) shall apply also to a claim of set‑off or other proceeding to enforce a right arising from a contract, but shall not affect‑ (a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or (b) the powers of an official assignee, receiver or Court under the Insolvency (Karachi Division and Dacca) Act or the Provincial Insolvency Act, 1920, to realise the property of an insolvent partners. (4) This section shall not apply‑ (a) to firms or to partners in firms which have no place of business in Pakistan or whose places of business in Pakistan are situated in areas to which, by notification under section 56, this Chapter does not apply, or (b) to any suit or claim of set‑off not exceeding one hundred rupees in value which, . . . . . is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887, or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim." This petitioner's contention is that the words "other proceeding to enforce a right arising from a contract" in subsection (3) are not ejusdem generis or sui generis with the words "a claim of set‑off" immediately preceding the said words and are in no way trammeled by the words "a claim of set‑off" and, therefore, the stay granted by the learned Courts below is a case of illegal assumption of jurisdiction. He further argues that the rule of ejusdem generis is applicable only when there is a distinct genus or category, which is not available in the subsection under consideration. He has analyzed the section to illustrate his point of view and argues that section 69 is of a penal nature and in order to permit partnerships to register themselves, application of section 69 was deferred for one year so that public may not suffer unnecessarily. He further argues that subsection (1) deals with suits to enforce a right arising from a contract or conferred by this Act, instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm, while subsection (2) covers suits to enforce a right arising from a contract instituted by or on behalf of a firm against any third party. According to him the scope of the bar is enlarged in subsection (3) by virtue of which provision a claim of set‑off or other proceedings to enforce a right arising from a contract is prohibited. Suits for dissolution of the firm and powers of the official assignee under the Insolvency Act are, however, exempt from the aforesaid prohibition. He maintains that subsection (4) is the proviso to the section as a whole in respect of foreign firms or firms dealing in a small way. The first authority relied on by learned counsel is Allen v. Emmerson and others ((1944) 1 K B 362) in which Asquith, J. while considering the applicability of ejusdem generis rule observed as under :‑-- "Are the words `theatre or other place of public entertain ment' in section 33 of the Act of 1871 to be read subject to the ejusdem generis rule or not? We are satisfied, on the one hand, that, if they have to be read subject to the restriction of this rule, a fun fair of the kind involved in this case is not a kind of `public entertainment' of the same genus as a theatre. We are not, however, of opinion that the ejusdem generis rule applies to the words in question, and this for the following, among other reasons: (a) the words in question are followed by words in brackets `(other than such places of entertainment as are now subject to the provisions of section 164 of the Barrow‑in‑Furness Corporation Act, 1868, and which last mentioned places are to continue subject to the provisions of that Act)'. Words excepting a species from a genus are meaningless unless the species in question prima Jacie falls within the genus. `All hats other than top hats' makes sense. `All top hats other than bowler hats' does not: nor does `all hats and other articles except gloves' if `other articles' is to be construed ejusdem generis with `hats'. Now, the places covered by section 164 of ‑the Act of 1868‑the places `excepted'‑do not fall within the assumed genus `theatres and other similar places of public entertainment' although there may be an overlap between the two. (b) No case was cited to us in which a genus has been held to be constituted, not by the numeration of a number of classes followed by the words `and other,' but by the mention of a single class (in this case theatres) followed by those words. (c) The tendency of the more modern authorities is to attenuate the application of the ejusdem generis rule: cf. Anderson v. Anderson (1895) 1 Q B 749." The next case referred to by him is United Towns Electric Co., Ltd. v. Attorney‑General for Newfoundland ((1939) 1 A E R 423). Their Lordships of the Judicial Committee while considering the exempting provision (section 30 : `The company shall be liable for water rates on all lands and buildings owned by it in the aforesaid towns, but otherwise the company shall be exempt from taxation') in the United Towns Electric Company Act, 1932, observed that: The Supreme Court appeal to have based their decision on the terms of section 30 of the Act of 1902, which they held to show that the term `taxation' was limited to taxes ejusdem generis with water rates, which are excepted in the earlier part of the sentence, and which are payable by statute to water companies and form no part of the revenue of the colony; . . . Their Lordships regret that they are unable to agree with the reasoning of the Supreme Court. In their opinion, there is no room for the application of the principle of ejusdem generis in the absence of any mention of a genus, since the mention of a single species‑for example, water rates‑does not constitute a genus, and, as regards the Act of 1929, section 10, if the appellant company's construction of it is accepted, would modify section 30 of the Act of 1902 by limiting the period of immunity in the case of the undertaking authorised by the Act of 1929." He has also referred us to the following extract from Article 191 of Statutory Construction by Crawford, (1940) Edn. on the subject of ejusdem generis: "

191. Ejusdem Generis.‑Where general words follow the designation of particular things, or classes of persons or subjects, the general words will usually be construed to include only those persons or things of the same class or general nature as those specifically enumerated. For example, where a law prohibits the exclusion of any persons on account of their color from `barber 'shops, eating houses, or other places of public resort', the latter phrase will be restricted to places 'of the same general character of those specifically enumerated. This is the rule known as `ejusdem generis', and it is founded upon the idea that if the Legislature intended the general words to be used in an unrestricted sense, the particular classes would not have been mentioned. It is especially applicable to penal statutes. But under no circumstances, and regardless of the type of statute involved, must the rule be used where the language of the statute under consideration is plain and there is no uncertainty. Its use is permissible only as an aid to the Court in its attempt to ascertain the intent of the law‑makers. Nor will it be proper for the Court to follow the rule where to do so will defeat or impair the plain purpose of the Legislature. It cannot be employed to restrict the operation of an act within narrower limits than was intended by the law‑makers. Nor is the rule to be applied where specific words enumerate subjects which greatly differ from each other, or where the specific words exhaust all the objects of the class mentioned. Under these circumstances, the general words must have a different meaning from that of the specific words or be meaningless. And, of course, the Legislature cannot be presumed to have used any word without intending that it mean something. Nor will the rule be applicable in one other situation: thus, where a statute enumerates person or things of an inferior rank, dignity, or importance, it is not to be extended by the addition of general words to person or things of a higher rank, dignity or importance than that of the highest enumerated, if there are any of a lower species to which the general words can apply. And still further, in any case, the context of the whole statute may rebut the application of the rule of 'ejusdem generis'. To hold otherwise, would make the legislative intent subordinate to the rule." Learned counsel invited our attention to the ejusdem generis rule as given in Corpus Juris Secundum at page 658 of Volume 82 (1953 Edn.):‑-- "Doctrine of Ejusdem Generis.‑Where general words follow the enumeration of particular classes of persons or things, the general words, under the rule or maxim of construction known as 'ejusdem generis,' will be construed as applicable only to persons or things of the same general nature or class as those enumerated, unless an intention to the contrary is clearly shown." The next book on Interpretation of Statutes cited at the bar in Maxwell, (11th Edition) at pages 326 to

331. Under the caption `Generic Words Following More Specific' the author observes:‑-- "Ejusdem Generis.‑It is, however, the use of a general word following, but not preceding, other less general terms ejusdem generis which affords the most frequent illustration of the rule under consideration. In the abstract, general words, like all others, receive their full and natural meaning though they should not be extended so as to confine matters to which they are obviously not germane. . But the general words which follows particular and specific words of the same nature as itself takes its meaning from them, and is presumed to be restricted to the same genus as those words. In other words, it is to be read as comprehending only things of the same kind as those designated by them, unless, of course, there be something to show that a wider sense was intended, as, for instance, a proviso specifically excepting certain classes clearly not within the suggested genus. "Unless there is a genus or category there is no room for the application of the ejusdem generis doctine " Learned counsel has also referred us to the following passage occurring at page 181 of Craies on Statute Law (Sixth Edn.):‑-- "The ejusdem generis rule is one to be applied with caution and not pushed too far, as in the case of many decisions, which treat it as automatically applicable, and not as being, what it is, a mere presumption, in the absence of other indications of the intention of the Legislature. The modern tendency of the law, it was said, is 'to attenuate the application of the rule of ejusdem generis'. To invoke the application of the ejusdem generis rule there must be a distinct genus or category. The specific words must apply not to different subjects of a widely differing character but to something which can be called a class or kind of objects. Where this is lacking, the rule cannot apply, but the mention of a single species does not constitute a genus. 'Unless you can find a category,' said Farwell L. J., there is no room for the application of the ejusdem generis doctrine,' and where the words are clearly wide in their meaning they ought not to be qualified on the ground of their association with other words." Learned counsel further argues that the word "or" appearing in between the words "a claim of set‑off" and "other proceeding" .is disjunctive and not conjunctive. For this purpose he referred to Article 188 of Crawford on Statutory Construction (1940 Edn.) at p. 322, and Attorney‑General for Palestine v. Fakhry Ayyas (1947 A C 332 at p. 334) and maintained that for this reason also the words "other proceeding" are neither subject to the rule of ejusdem generis nor are they to be construed as sui generis.

3. He next contends that the words "other proceeding" occurring in clause (b) of subsection (4) of section 69 lend support to his interpretation. He maintains that any suit or claim of ‑set‑off not exceeding one hundred rupees in value which is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887, is completely exempt from the prohibition legislated in section 69 and similarly the section is not applicable to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim. He contends that the words "such suit or claim" appearing after "other proceeding" in subsection (4) are referable to suit or claim of set‑off, of the kind mentioned immediately above in the subsection and are restricted in application whereas the same words followed by the phrase "to enforce a right arising from a contract" occurring in subsection (3) are of wide import. According to him the bar of the section having been extended and expanded an subsection (3), the words "other proceeding" would cover all proceedings in a Court of law which are not suits in the generic sense of the word to enforce a right arising from a partnership contract and are not to be read as limited to defensive proceedings. In furtherance of his argument, Mr. Rustam S. Sidhwa argued that the word "other" prefixed to the word "proceeding" is used to distinguish what precedes and from that angle also the words "a claim of set‑off" are not to be considered do be a category or genus to attract the rule of ejusdem generis. For this purpose he referred us to Black's Law Dictionary, which gives the following meaning of the word "other":‑- "Different or distinct from that already mentioned; addi tional, or further. Following an enumeration of particular classes `other' must be read as 'other such like', and includes only others of like kind and character." He also invited our attention to Kingsmill v. Sharington (76 E R 379), In re: Skeats' Settlement, Skeats v. Evans ((1889) 42 Ch. D 522), In re: Newen Neven v. Barnes ((1894) 2 Ch. D 297) Qazi Mir Muhammad v. Messrs M. N. Syndicate and another (P L D 1956 Sind 71), Satish Chandra Chakrobarty v. P. N. Das & Cu. (A I R 1938 Pat. 238) and Farid Sons Ltd. v. The Karachi Cotton Association Ltd. (P L D 1956 Kar. 315). Coming to the word "proceeding" he argued that it is a term of wide application and is not to be restricted to a claim of set‑off. He relied on: The Federated Amalgamated Government Railway and Tram Service Association v. The New South Nabes Railwaly Trafc Employees Association ((1906) 4 C L R 488 at p. 494) and Govindaswami Mudaliar v. Rasu Mudaliar (A I R 1935 Mad. 232).

4. Referring to Messrs United Cotton Factory, Hyderabad v. Ahmad Khan (P L D 1960 Kar. 774), he maintains that the contention that the proper place for the words "other proceeding" was alongside the word "suit" in subsections (1) and (2) and not as they appear in juxtaposition to a claim of set‑off in subsection (3) of section 69' is not a sound basis for coming to the conclusion that the words "other proceedings" are controlled by the immediately proceeding words "a claim of set‑off". The language of the section, according to him, shows that the draftsman deals with suits by partners inter se or against the firm and suits by firms against third persons in subsection; (1) and (2) respectively and then he deals with a claim of set‑oil' and while dealing with that subject introduces other proceeding to enforce a right arising from a contract and immediately thereafter in the same subsection incorporates the two exceptions to this extended scope of tire prohibition. He says that if the words "other proceeding" had been placed in juxtaposition with the word "suit" to subsections (1) and (2), the exceptions (the right for enforcement of any right to sue for dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved. firm, or the powers of an official assignee under the Insolvency (Karachi Division and Dacca Act or the Provincial Insolvency Act) mentioned in subsection (3) would have to be repeated. every time and this would have rendered the section cumbersome. He maintains that the intention of the Legislature is clear in, this regard and the argument of juxtaposition is not very helpful. The next decision placed before the Court is Hafiz Qamar Din v. Nur Din (A I R 1936 Lah. 136), in which a learned Single Judge while dealing with section 69 (3) (a) observed:-- " ..that only a suit as understood in forensic Language is excluded by section 69 and not an application as contemplated in para. 20 of Schedule 2." It was further observed that: "The word `suit' has not been defined, but it has been, described in various authorities. One indicia of a suit is that it begins with a plaint. Now it is perfectly clear that an, application under Schedule 2, para. 20 is not a plaint. The language of the paragraph is entirely against the contention that the application is a plaint. The proceedings may be treated as a suit for certain purposes, but they are not a suit, properly so called . . . . I may also point out that under section 69, subsection (3) (a), the provisions of subsection (1) are not to affect the enforcing of any right to sue for the dissolution of partnership. The arbitration proceedings were: on the face of them taken for the purposes of the dissolution of partnership and on that ground too the proceedings under Schedule 2, para. 20 would be protected." paragraph 20 of Schedule 11 of the Code of Civil Procedure, since repealed, reads as under: "20. (1) Where any matter has been referred to arbitration without the intervention of a Court, and an award has been made thereon, any person interested in the award may apply to any Court having jurisdiction over the subject‑matter of the award that the award be filed, in Court. (2) The application shall be in writing and shall be numbered and registered as a suit between the applicant as a plaintiff and the other parties as defendants. (3) The Court shall direct notice to be given to the parties to the arbitration, other than the applicant requiring them to show cause, within a time specified, why the award should be filed." In this decision the learned Judge was not considering the words "other proceedings" in subsection (3) and, therefore, it is argued, and rightly so, that it need not be considered critically.

5. On the other hand learned counsel for the respondent argued that the words "or other proceeding" in subsection (3) should be considered to be in the nature of defensive proceeding and no other because the words immediately preceding are "a claim of set‑off" and the interpretation placed on these words in Messrs United Cotton Factory, Hyderabad v. Ahmad Khan should not be departed from. He also contended that as laid down in Smt. Shukantla v. Peoples' Bank of Northern India Ltd. (A I R 1941 Lah.392), the words "other proceeding" are to mean legal proceeding and, therefore, these words should be read as analogous to the preceding words. In this regard he invited our attention to Chhajju Ram v. Neki and others (AIR 1922 P C 112), which is a case dealing with Order XLVI1, rule 1, C. P. C. and the words "any other sufficient reason" were interpreted to be analogous to the other two cases such as discovery of new and important matter or evidence, or some mistake or error apparent on the face of the record. He also referred us to Basheshwar Pratap Sahi and another v. Prath Nath and others (AIR 1934 P C 213) and Suruj Mian and another v. Assistant Manager, Government Acquired Estate, Brahmanbaria and others (P L D 1960 Dacca 1045). He further argued that the words "other proceeding" should not be interpreted in a wider sense so as to exclude the jurisdiction of the Civil Court because the policy of law is not to curtail jurisdiction of the Civil Court which is invested with general jurisdiction by virtue of the provisions of section 9 of the Code of Civil Procedure. He relied on Municipal Committee Gujranwala and others v. Mian Ghulam Mustafa and another (P L D 1958 Lah. 31). He also argued that the Act was enforced in 1932 and the interpretation placed on these words, in the territory now forming Pakistan carved out of British India, for the last thirty‑five years has become almost settled and by applying the rule of stare decisis no new interpretation should be put on the same now. He tried to derive support in this regard from Koro v. The State (P L D 1963 Kar. 256).

6. In order to ascertain the intention of the Legislature in placing this particular section on the statute book we have considered it advantageous to refer to the Report and the Notes on Clauses by the Special Committee, which was entrusted with the draft of the Bill before the passage thereof. In the notes on clauses referring to clause 68 of the Draft Bill (section 69 of the Act), the Committee recorded the following remark:‑- "This important clause provides the pressure which is to be brought to bear on partners to have the firm and themselves registered. Its force has already been disc assed in paragraphs 19 to 23 of our Report." Paragraphs 19 to 23 of the Report, reproduced below, are self explanatory:‑ "

19. The framing of inducements to register changes in a firm has been difficult, but the devices proposed in the Bill are put forward as being as strong as may be create, in the absence of a penal sanction and without altering any of the established principles of partnership law. As regards a partner newly introduced to a firm, if he fair to register he will incur a grave risk of being unable to claim his dues from his partners, and will have to rely solely on their good faith or sue for dissolution. On the other hand, the third party who deals with a firm and knows that a new partner has been introduced can either make registration of the new partners a condition for further dealings, or content himself with the certain security of the other partners and the chance of proving by other evidence the partnership of the new but unregistered partner. A third party who deals with a firm without knowing of the addition of a new partner counts on the credit of the old partners only, and will not be prejudiced by the failure of the new partner to register. "

20. As regards outgoing partners the Bill provides that the estate of a deceased partner or of an insolvent partner is in no case liable for the acts of the firm after his death or insolvency. This rule is well established and is hard and fast. Nothing in the way of registration of the death or insolvency of a partner, therefore, can improve the position of third parties; and no inducement need be offered, beyond the desire which will actuate most firms to keep their entry to the register up‑to‑date, for the information and benefit of intending customers. These are exceptions mentioned above, where the existence of a name on the register may not establish the partnership of the person named. "

21. As regards retired or expelled partners, who are legally on the same footing, there will be strong inducement to have the changes noted in the register. The law provides that a retired or an expelled partner continues to be liable for the acts of the firm, and the firm continues to be liable for any act of theirs purporting to be done on behalf of the firm, until public notice is given of the retirement or expulsion. Clause 71 of the Bill provides that this public notice can be given as regards retirement and expulsion only by notice to the Registrar, which will be recorded in the register. Hence, when a partner retires or is expelled, it will be in his own interest and also in the interest of the remaining partners to give immediate notice of the change to the Registrar. "

22. Similar considerations apply when a firm is dissolved. All the partners will still be liable for the acts of any of them which would have bound the firm if done before its dissolution until public notice is given. Here again, it will be in the interest of all the partners that early notice should be given, and this can only be done by notice to the Registrar. "

23. To sum up, it is anticipated that once a firm has been registered the register of firms will continue to contain a complete and up‑to‑date list of all partners who will be liable for the debts of the firm to persons who propose to deal with the firm." In the celebrated commentary on the Partnership Act, 1932, by Pollock and Mulla (First Edition), the comment on section 69 at page 160 of the book runs as under:‑ "This section, came into force on the first of October 1933, see section 3 above. Its effect, stated broadly, is to put a firm in a registration district, if it does not choose to be registered, and also its partners, under disabilities which may be extremely incon venient. There is no direct compulsion but a pretty strong persuasive pressure to come on the register. No member of an unregistered firm can enforce his rights under the partnership contract against either the firm or any present or past member of it, neither can the firm sue its customers on their contracts. The firm remains liable to be sued by persons outside it, and cannot plead a set‑off. Only suits for dissolution of the firm, and the powers of official assignees under the Insolvency Acts, are exempt from the prohibition. A small and harmonious firm dealing in a small way and mainly for ready money might be content to take these risks (mitigated as they are by the proviso of subsection (4) (b) as to claims not exceeding Rs. 100 in value). For a business of any considerable magnitude they appear sufficiently deterrent." It may be incidentally mentioned that the Right Honourable Dinshah Fardunji Mulla was one of the members of the Special Committee appointed to examine the provisions of the Bill to amend the Law relating to partnership. The matter has been the subject of discussion before the Indian Courts of parallel jurisdiction and ultimately the question has gone up to the Supreme Court of India in a case reported as Jagdish Chandra v. Kajaria Traders (India) Ltd. (AIR 1964 SC 1882), wherein it has been held that the words `other proceedings' are to be R construed as of vide application untrammelled by the words "a claim of set‑off" appearing in subsection (3).

7. The analysis of the section clearly shows that in the first subsection the draftsman deals with suits by partners inter se or against the firm; in the second subsection he deals with suits by firms against third persons and then the scope is widened in subsection (3) when defensive pleas in the form of a claim of set‑off are also brought in within the prohibition and simultan eously other proceeding to enforce a right arising from a contract are also added to the bar. At the came time, because the scope of the prohibition had been expanded, the draftsman puts in the two exemptions to this wide scope in the form of sub‑clauses 3(a) and 3(b). When he comes to the fourth subsection, he gives two cases of complete exemption from the section itself. This is the scheme of the section but it is not to be interpreted to mean that because the words "other proceeding" do not find place in subsections (1) and (2). which deal with a suit, i.e., proceedings of original nature according to its forensic connotation initiated before a Court, the said words are necessarily of the nature of a claim of set‑off, which may have the effect of defeating a suit or destroying it by a counter‑claim against the plaintiff. Had the words "other proceeding" in subsection (3) been construed as proceedings of defensive nature only it would have been hardly necessary for the draftsman to explicitly qualify the words "other proceeding" occurring in sub section (4) (b) by the phrase "incidental to or arising from any such suit or claim". Of course, the word "suit" or "claim" has reference to a suit or a claim of set‑off mentioned in the sub‑clause itself. We do not subscribe to the view that "other proceeding" used in this subsection means other proceeding in the suit itself taken by the defendant to off‑set the claim of the plaintiff because it is difficult to think of any right other than a set‑off (legal or equitable) which is of the same nature as a claim of set‑off and can be raised by a defendant in a suit. As a matter of fact we posed a question to learned counsel for the respondent as to what sort of defensive proceeding can be conceived of in a suit for the purposes of the sub‑clause, independently of the plea of set‑off, and he was not able to give a satisfactory reply in this regard.

8. We further find force in the contention of learned counsel for the petitioner that the argument `that if the Legislature had by this provision intended to cover all sorts of proceedings to be hit by section 69, the proper place for the words `other proceedings' should have been in juxtaposition to the word `suit' in subsections (1) and (2) of section 69 and not as they appear in subsection (3) closely allied to the words `claim of set‑off' is not available for the reason that if "other proceeding" had been incorporated along with the word "suit" in juxtaposition in subsections (1) and (2), as suggested, the repeated insertion of the two exemptions for cases envisaged in clauses (a) and (b) of subsection (3), namely, suits for dissolution of a partnership or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm or the powers of official assingees under the Insolvency Act, would have made the reading and application of the section not only cumbersome but also unintelligible.

9. The doctrine of ejusdem generis, is stated with clarity by Sutherland in sections 4909 and 4910 of his classical work on statutory Construction (Volume 2), to be "a variation of the a doctrine of naciture a sociis. Where general words follow specific words in an enumeration describing the legal subject the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words. The doctrine applies when the following conditions exist: (1) the Statute contains an enumeration by specific words; (2) the members of the enumeration constitute a class ; (3) the class is not exhausted by the enumeration ; (4) a general term follows the enumeration ; and (5) there is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires." Similarly at page 662 of the Corpus Juris Secundum it has been observed: `However, it is not a rule of universal application and it is not controlling in all instances. It is only a rule of construction, to be applied as an aid in ascertaining the legislative intent, or an instrumentality for ascertaining the correct meaning of words when there is uncertainty; and in a proper case other rules or cannons of statutory construction may and should be used in aid of, or even in preference to, the ejusdem generis rule. The doctrine may be invoked where there is ambiguity, but it as inapplicable where the legislative intent is clearly expressed'. Applying the test laid down in the aforementioned weighty observations and the statement of law contained in various other books on interpretation of statutes already referred to in the judgment we are of the confirmed view that when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified. But the specific words must form a distinct genus or category. It is not an inviolable rule of law, but is only C permissible inference in the absence of an indication to the contrary. Now in the instant case the words "a claim of set‑off" preceding other "proceeding" are neither a genus nor a category. There is no enumeration or sufficiency of illustration and as such the rule of ejusdem generis is not attracted. We accordingly, following with respect the ratio decidendi of Allen v. Emmerson and others and United Town Electric Co., Ltd. v. Attorney‑General for Newfoundland, hold that the words "other proceeding" are to be construed unfettered by the words "a claim of set‑off". Needless to add that in view of the Privy Council judgment in Attorney‑General for Palestine v. Fakhry Ayyas the word "or" in between the two sets of words "a claim of set‑off" and "other proceeding" is disjunctive and not conjunctive and this aspect of the case also supports the construction placed by us on the subsection in question.

10. The other argument of learned counsel for the respondent that the rule of stare decisis should be applied in the case is not acceptable because precedents on the subject are so ‑scanty that it cannot be said that the exposition of the particular section in the country has been finally expounded and the same 1has become settled and final and known all over the country and that a new interpretation placed now will not be in the interest of the public or the administration of law itself. The argument is therefore, repelled.

11. The question is, therefore, ,answered in the affirmative and we find that the proceedings under section 8 of the Arbitration Act are covered by the words "other proceeding" appearing in subsection (3) and although the same are not a suit is the foiensic connotation and are not initiated by presentation of a plaint, since they are proceedings included in the words "other proceeding", which words are to receive their full meaning unfettered by the words "a claim of set‑off" the same would be barred by section 69 (3) of the Partnership Act, 1932, if the partnership in question is unregistered and the deed of partnership relied upon by the respondent is also found to be a valid and operative document between the parties. S. H. KADRI, J.‑

I am in respectful agreement with the judgment of my learned brother, A. R. Sheikh, J.,1 though there is considerable force in the contrary view also. I have preferred to subscribe to this view mainly for the reason that the punitive measure in section 69 of the Partnership Act can be rendered ineffective and the compulsion of registration of firms loses its force if the existing view is not F modified. A large number of unregistered firms is likely A remain in the business field without any fear which is harmful to the business community at large. This decision, I trust, is capable of sealing the loophole and it may coerce the registration of unregistered firms. K. B. A. Reference answered.