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Allahabad High Court · body

2021 DIGILAW 1513 (ALL)

State of U. P. v. Modern Medicos Jhansi

2021-12-07

AJIT KUMAR

body2021
JUDGMENT : Ajit Kumar, J. Heard learned counsel for the parties. 2. By means of this petition filed under Article 227 of the Constitution, the petitioner State of U.P. and two others seek to set aside the judgments and decrees passed by the trial Court and Court of appeal in O.S. No. 213 of 2008 and Civil Appeal No. 70 of 2010 respectively whereby present petitioners have been saddled with the liability to pay an amount of Rs. 15,841.18 paise to the opposite party alongwith interest @ 18 per cent. 3. Learned Standing Counsel submits that since valuation of money recovery suit is less than Rs. 25000/- therefore, second appeal is barred in such matters under Section 102 of the Code of Civil Procedure, 1908 and hence this petition has been filed under Article 227 of the Constitution. 4. A preliminary objection has been raised by learned Advocate appearing for the respondents that since second appeal under Section 102 is barred in the matters of valuation of the original money recovery suit being less than 25,000/- under Section 102 of Code of Civil Procedure, 1908, a petition under Article 227 of the Constitution to circumvent such a bar, would equally not be maintainable. He has placed reliance upon the judgment of a coordinate bench of this Court in the case of Mahendra Singh v. Haqimuddin decided on 27.11.2008 and reported in 2008(10) ADJ 182 . 5. Meeting aforesaid preliminary objection, learned Standing Counsel has submitted that powers under Article 227 of the Constitution of India are the inherent powers of superintendence of the High Court upon the Courts and Tribunals subordinate to it through out territorial jurisdiction of the High Court and this power cannot be curtailed or limited by any Act of legislature. He submits that power of superintendence conferred upon the High Court is one of the basic features of our Constitution, and therefore, either by any Act of legislature or any amendment to the constitution, this power cannot be taken away. He submits that second appeal is though barred under Section 102 of the CPC but a petition under Article 227 of the Constitution at the same time would be maintainable. He has placed reliance upon a number of the authorities of the High Court and the Supreme Court. 6. He submits that second appeal is though barred under Section 102 of the CPC but a petition under Article 227 of the Constitution at the same time would be maintainable. He has placed reliance upon a number of the authorities of the High Court and the Supreme Court. 6. In view of the above rival submissions regarding maintainability of this petition, before I proceed to consider the present petition filed under Article 227 of the Constitution on its merit, I consider it appropriate to deal with preliminary objection raised by learned counsel appearing for the contesting respondents first in the light of various authorities on this issue. 7. In case of Mahendra Singh (supra) a coordinate bench of this Court in its judgment running in one and half page, in the third paragraph of it has quoted Section 102 which bars second appeal against the judgment and decree of the trial Court and the Court of appeal where valuation of suit for recovery of money is not exceeding Rs. 25,000/- and considering this bar the Court observed that holding a petition under Article 227 in such cases to be maintainable would frustrate the very purpose for which Section 102 has been incorporated under Code of Civil Procedure. vide paragraph 5, the ratio as laid down in the said judgment for holding petition not maintainable under Article 227 of the Constitution, it has been held thus: ''Learned counsel for the plaintiff appellate requests for return of the certified copies of the judgments and orders of the Courts below and the decree appealed against to enable him to file a writ petition challenging the said judgments and orders. There is no difficulty in accepting the above request of the counsel simplicitor but a writ petition under Article 227 against the judgments and orders of the Courts below would not be maintainable as it would amount to frustrating the very purpose of the amendment made under Section 102 Civil Procedure Code. The jurisdiction of the High Court under Article 227 of the Constitution of India is very limited and it cannot be permitted to be used to circumvent the provisions of the Civil Procedure ode and to invoke writ jurisdiction where the second appeal has been specifically barred particularly when the judgment and order of the Court of first instance had already been scrutinised once in appeal before the lower appellate Court.'' 8. After going through the aforesaid paragraph, I find that his Lordship has held a petition under Article 227 of the Constitution to be not maintainable only on the ground that since Section 102 of the CPC bars second appeal, a petition under Article 227 of the Constitution would frustrate the very purpose of the amendment. If this analogy is accepted in toto to hold a petition under Article 227 of the Constitution to be not maintainable would amount to taking a view quite contrary to the view taken by the Supreme Court in the past regarding scope of Article 227 of the Constitution of India. 9. One must not forget that power conferred upon the High Courts under Article 226 and 227 of the Constitution are inherent powers under the constitution and tracing history prior to the constitution of India coming into force, one would find that these powers always existed there under Section 15 of the High Courts Act, 1861 and Government of India Act, 1915 and 1935. 10. So tracing out the development of law in respect of judicial discharge of function of the High Courts having inherent powers qua the Courts and Tribunals subordinate to it, relevant provisions as contained in Section 15 of the High Courts Act, 1861, Section 107 of the Government of India 1915, Section 224 of the Government of India, 1935 and Article 227 of the Constitution of India as incorporated under the Indian Constitution, 1950, are reproduced hereunder: ''THE HIGH COURTS ACT, 1861 15. High Court to Superintend and to frame rules of the practise for Subordinate Courts : Each of the High Courts established under this Act shall have superintendence over all Courts which may be subject to its appellate jurisdiction, and shall have power to call for returns, and to direct the transfer of any suit or appeal from any such Court to any other Court of equal or Superior jurisdiction, and shall have power to make and issue general rules for regulating the practice and proceedings of such Courts, and also to prescribe forms for every proceeding in the said Court for which it shall think necessary that a form be provided, and also for keeping all books, entries and accounts to be kept by the officers and also to settle tables of fees to be allowed to the Sheriff Attorneys, and all clerks and officers of Courts and from time to time to alter any such rule or form or table: and the rules so made the forms so famed, and the tables so settled, shall be used and observed in the said Courts: provided that such general rules and forms and tables be not inconsistent with the provisions of any law in force, and shall before they are issued, have received the sanction, in the Presidency of Fort William of the Governor-General in council, and in Madras or Bombay of the Governor in Council of the respective Presidencies. GOVERNMENT OF INDIA ACT, 1915 ''(Section 107) - Powers of High Court with respect to Subordinate Courts : Section 15 : Each of the high Courts has superintendence over all Courts for the time being subject to its appellate jurisdiction, and may do any of the following things, that is to say:- (a) call for returns; (b) direct the transfer of any suit or appeal from any such Court any other Court of equal or superior jurisdiction; (c) make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts; (d) prescribe forms in which books, entries and accounts shall be kept by the officers of any such Courts; and (e) settle tables of fees to be allowed to the sheriff, attorneys and all clerks and officers of Courts: Provided that such rules, forms and tables shall not be inconsistent with the provisions of any 1 [law] for the time being in force, and shall require the previous approval, in the case of the high Court at Calcutta, of the Governor-General in Council, and in other cases of the local Government. GOVERNMENT OF INDIA ACT, 1935 224 (1) Administrative functions of High Courts : Every High Court shall have superintendence over all Courts in India for the time being subject to its appellate jurisdiction, and may do any of the following things, that is to say,'- (a) call for returns; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts; (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such Courts; and (d) settle tables of fees to be allowed to the sheriff, attorneys, and all clerks and officers of Courts : Provided that such rules, forms and tables shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor. (2) Nothing in this section shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision. ARTICLE 227 OF THE CONSTITUTION OF INDIA 227. (2) Nothing in this section shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision. ARTICLE 227 OF THE CONSTITUTION OF INDIA 227. Power of superintendence over all Courts by the High Court : ''(1) Every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction (2) Without prejudice to the generality of the foregoing provisions, the High Court may (a) call for returns from such Courts; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts; and (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such Courts (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such Courts and to attorneys, advocates and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor. (4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any Court or tribunal constituted by or under any law relating to the Armed Forces.'' 11. Upon bare reading of the aforesaid quoted provisions as enacted/incorporated from time to time, it is clear that this power of superintendence under High Courts Act, 1861 was independent of the provisions of other laws that conferred power of appeal/revision upon High Courts, though under Sub-section 2 of Section 224 of the Government of India, 1935 the power in relation to inferior Courts were limited to the cases where appeals or revisions were not maintainable, but while incorporating such a provision under the Constitution even that restriction has been done away with. 12. Although powers conferred upon the High Court under Article 227 of the Constitution is taken to be very wide one but at the same time not wider enough to exercise as an alternative to the forum of appeal. 13. 12. Although powers conferred upon the High Court under Article 227 of the Constitution is taken to be very wide one but at the same time not wider enough to exercise as an alternative to the forum of appeal. 13. In Chandrasekhar Singh and others v. Siva Ram Singh and others, (1979) 3 SCC 118 , summing up the position of law in relation to exercise of power under Article 227 of the Constitution, the Court has held thus: ''On a review of earlier decisions, the three-Judges Bench summed up the position of law as under : (i) that the powers conferred on the High Court under Article 227 of the Constitution cannot, in any way, be curtailed by the provisions of the Code of Criminal procedure; (ii) the scope of interference by the High Court under Article 227 is restricted. The power of superintendence conferred by Article 227 is to be exercised sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors; (iii) that the power of judicial interference under Article 227 of the Constitution is not greater than the power under Article 226 of the Constitution; (iv) that the power of superintendence under Article 227 of the Constitution cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory power as the Court of Appeal; the High Court cannot, in exercise of its jurisdiction under Article 227, convert itself into a Court of Appeal.'' 14. In the case of L. Chandra Kumar v. Union of India and others, Supreme Court has very categorically held that power conferred upon the Supreme Court and High Courts under Articles 32 and 226 and 227 of the Constitution respectively is a part of basic structure of our Constitution, forming its integral and essential feature, which cannot be tempered with much less be taken away even by a constitutional amendment, not to speak of a parliamentary legislation. However, Courts have repeatedly cautioned that power of judicial review though is an integral part of basic structure of the Constitution, but exercise of it has to have self imposed limitations because such a power has to be exercised sparingly only to ensure that Courts subordinate to the High Court obey the law, procedure and authority prescribed for. However, Courts have repeatedly cautioned that power of judicial review though is an integral part of basic structure of the Constitution, but exercise of it has to have self imposed limitations because such a power has to be exercised sparingly only to ensure that Courts subordinate to the High Court obey the law, procedure and authority prescribed for. The power, it has been held, is not exercisable to correct mere errors nor, to be exercised as a cloak of appeal in disguise. 15. In the case of State, through special Cell, New Delhi v. Navjot Sandhu and others, 2003 (3)ACR 2391 (SC), it has been held thus: ''Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunal's within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunal's within the bounds of their authority and not to correct mere errors. Further where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised ''as the cloak of an appeal in disguise'' 16. Relying upon the aforesaid authorities, Supreme Court in the case of Surya Devi Rai v. Ram Chander Rai and others, AIR 2003 SC 3044 , vide paragraph 38 has held thus: ''38. It is settled law that the jurisdiction under Article 227 could not be exercised ''as the cloak of an appeal in disguise'' 16. Relying upon the aforesaid authorities, Supreme Court in the case of Surya Devi Rai v. Ram Chander Rai and others, AIR 2003 SC 3044 , vide paragraph 38 has held thus: ''38. Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self-restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where 'a stitch in time would save nine'. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge.'' (emphasis added) 17. In case of Nagendra Nath Bora and another v. Commissioner of Hills Division and Appeals, Assam and others, (1958) 1 SCR 1240, Supreme Court had much early observed thus: the parameters for the exercise of jurisdiction, calling upon the issuance of writ of certiorari where so set out by the Constitution Bench : ''The Common law writ, now called the order of certiorari, which has also been adopted by our Constitution, is not meant to take the place of an appeal where the Statute does not confer a right of appeal. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even though of law, will not be sufficient to attract this extra-ordinary jurisdiction. Where the errors cannot be said to be errors of law apparent on the face of the record, but they are merely errors in appreciation of documentary evidence or affidavits, errors in drawing inferences or omission to draw inference or in other words errors which a Court sitting as a Court of appeal only, could have examined and, if necessary, corrected and the appellate authority under a statute in question has unlimited jurisdiction to examine and appreciate the evidence in the exercise of its appellate or revisional jurisdiction and it has not been shown that in exercising its powers the appellate authority disregarded any mandatory provisions of the law but what can be said at the most was that it had disregarded certain executive instructions not having the force of law, there is not case for the exercise of the jurisdiction under Article 226. 18. So also again in the Bathutmal Raichand Oswal v. Laxmibai R.Tarta, AIR 1975 SC 1297 , Supreme Court had very categorically held that power under Article 227 of the Constitution cannot be exercised ''as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issues raised in the proceedings.'' 19. In case of Sadhna Lodh v. National Insurance Co. Ltd., 2003(3) SCC 524 , while dealing with the scope of Article 227 of the Constitution the Supreme Court observed that a petition filed under Article 227 of the Constitution by the ensurer was wholly misconceived as statutory right to file an appeal was provided for under the statute. The Court observed, in such situation it was not open for the High Court to entertain a petition under Article 227 of the Constitution. The Court observed, in such situation it was not open for the High Court to entertain a petition under Article 227 of the Constitution. The Court further observed that even where remedy by way of appeal has not been provided for against the order and judgment of District Judge, the remedy available to the aggrieved person is to file revision before the High Court but where revision against such order is barred under Section 115 of the Code of Civil Procedure then petition under Article 227 of the Constitution would lie. This above judgment has been further relied upon in the case of Radhey Shyam and others v. Chhabi Nath and others, 2015(3) ADJ 210 , the Supreme Court has very categorically held that power under Article 227 of the Constitution cannot be whistled down by any legislative Act vide paragraph 21 of the judgment, it held thus: ''21. It is true that this Court has laid down that technicalities associated with the prerogative writs in England have no role to play under our constitutional scheme. There is no parallel system of King's Court in India and of all other Courts having limited jurisdiction subject to supervision of King's Court. Courts are set up under the Constitution or the laws. All Courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227, Writ jurisdiction is constitutionally conferred on all High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of Tribunals or authorities or Courts other than judicial Courts. There are no precedents in India for High Courts to issue writs to subordinate Courts. Control of working of subordinate Courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence under Article 227. Orders of Civil Court stand on different footing from the orders of authorities or Tribunals or Courts other than judicial/Civil Courts. While appellate or revisional jurisdiction is regulated by statutes, power of superintendence under Article 227 is constitutional....'' 20. Orders of Civil Court stand on different footing from the orders of authorities or Tribunals or Courts other than judicial/Civil Courts. While appellate or revisional jurisdiction is regulated by statutes, power of superintendence under Article 227 is constitutional....'' 20. Thus from the above discussion, I may safely conclude that powers under Article 227 of the Constitution are inherent and independent of the provisions contained in other central or State Acts and merely because power of revision or appeal is either barred or taken away under any Act of parliament or State legislature that would not amount to an automatic abrogation of the power or putting feters upon powers of the High Court, otherwise exercisable under Article 227 of the Constitution. 21. In my considered view since judgments as referred to above have not been considered in the case of Mahendra Singh (supra), with great respect to the coordinate bench, I am more bound by the judgments of the Supreme Court under Article 141 of the Constitution and, accordingly, I hold that merely because second appeal is not maintainable under Section 102 of the Code of Civil Procedure, against the judgment arising from the money recovery suit having valuation not more than 25,000/, a petition under Article 227 of the Constitution would be absolutely maintainable. However, I may hasten to add that power is to be exercised very sparingly not to correct any mere error of facts but to ensure that Civil Courts have exercised power within bounds of law and following propriety. 22. Thus, I hold that this petition under Article 227 of the Constitution to be maintainable even in the face of bar created under Section 102 of Code of Civil Procedure,1908 23. Now, I proceed to consider the petition on merits. 24. Briefly stated facts of the case are that petitioners who claim to be a partnership firm running a medical agency, instituted a suit for recovery of money of Rs. 15,814.18 paise @ 18 per ent interest. As many as five issues were framed by the trial Court in the suit and all the issues were answered in favour of the plaintiffs and the suit was decreed. 15,814.18 paise @ 18 per ent interest. As many as five issues were framed by the trial Court in the suit and all the issues were answered in favour of the plaintiffs and the suit was decreed. The present petitioners preferred a civil appeal against the judgment of the trial Court dated 29th July, 2010 raising specific ground that suit for money recovery by a partnership firm which was not registered, was not maintainable in view of bar created under Section 69 of the Indian Partnership Act, 1932. The Court of appeal, however, rejected the arguments of petitioner and dismissed the appeal confirming the order of trial Court vide order dated 15th March, 2011. 25. Assailing the two orders passed by the Court of first instance in O.S. No. 213 of 2008 and that of appeal in civil appeal No. 70 of 2010, learned Standing Counsel has placed heavy reliance upon judgment of the Supreme Court in the case of Jagdish Chandra Gupta v. Kajaria Traders (India) Ltd., AIR 1964 SC 1882 and judgment in the case of Krishna Motor Services by its Partners v. H.B. Vittala Kamath, (1996)10 SCC 88 and submitted that since plaintiffs claimed to be a partnership firm and claimed money recovery from the petitioners to whom plaintiffs claimed to have executed an agreement for supply of medicines, could not have maintained the suit as suit would clearly stand barred under Section 69 of the Indian Partnership Act. 1932 (hereinafter referred to as Partnership Act), the plaintiff being an unregistered firm. 26. Per contra, learned counsel appearing for the respondent has submitted that suit in question would not be barred under Section 69 of the Partnership Act because plaintiffs were not seeking enforcement of any right arising out of any partnership agreement, inasmuch as, respondents-defendants being not partners of the firm, any enforcement of right of contract against such a third person would not be hit by Section 69 of the Partnership Act. 27. In order to appreciate the above arguments, it is first necessary to go through the bare facts pleaded by respective parties in the suit and further as to whether plaintiffs' firm in the suit in any manner ever entered the contract or agreement with the respondents for supply of medicines. 28. 27. In order to appreciate the above arguments, it is first necessary to go through the bare facts pleaded by respective parties in the suit and further as to whether plaintiffs' firm in the suit in any manner ever entered the contract or agreement with the respondents for supply of medicines. 28. Upon bare reading of the plaint case, brought on record as annexure 1 to this petition, it clearly transpires that respondents claimed to be a partnership firm running a medical agency and that the defendants petitioners had placed some order for supply of the medicines and bill for Rs. 15,598.92 paise was signed and sent to the defendants for payment. It was claimed that outstanding amount of Rs. 15,841.18 paise/- remained unpaid despite repeated requests. Hence notice was issued under Section 80 of the Code of Civil Procedure after service, 1908 and even after service of notice when the payment was not made, the suit was instituted as O.S. No. 213 of 2008. 29. Written statement was filed in the case by the defendants, in which they absolutely denied to have purchased any medicine from the medical agency of the firm standing in the name of M/s. Modern Medicos. They also claimed in the written statement that defendant No. 2 had died, and therefore, there existed no partnership in law, and hence, suit was not maintainable. It was also claimed that no order placing the supply of medicines was ever executed in the name of firm as claimed to be dated 19.10.1985 and 9.3.1987. It was also claimed that those orders claimed by the plaintiffs were found to be forged inasmuch as suit was time barred. 30. Upon perusal of both the plaint and written statement as brought on record, I do not find any averment either coming in the plaint or in the written statement that ever any partnership agreement or any sort of agreement worth its name was entered between the parties for supply of medicines. 31. It was a simple case where order was placed to the petitioners plaintiffs as claimed by the plaintiffs in the suit and that they supplied the medicines but payments were not made. 32. 31. It was a simple case where order was placed to the petitioners plaintiffs as claimed by the plaintiffs in the suit and that they supplied the medicines but payments were not made. 32. Amongst the issues framed by the trial Court issue No. 1 was to the effect whether plaintiffs were entitled for recovery of money as claimed in the suit and dealing with this issue, the Court returned a finding of fact to the effect that as per P.W. 1 witness account two supplies were made on 19.10.1985 and 9.3.1987 in response to which medicines were supplied to the store of the defendants and bills were sent for payment, copies of which were available on record. The defence witness No. 1 when was examined he would claim to have joined Government Ayurvedic College in the year 2006 but he failed to bring stock and dispatch register of that time in question and rather claimed that there was no entry in the register of 1987. However, looking to the seal on the bill he claimed that though there was seal, but name of K.P. Pandey was hand written and there was no order number that was necessary to ensure supply of medicines. He accepted that on the receipt, there was a signature and seal of Principal but he could not recognize the signature. The Court, therefore, having appreciated and analysed that the statements of respective witnesses finally held that when the letters were written to the higher authority to ensure payments as such documents had been brought on record as paper No. 108-C and 109-C and then 110-C, it satisfactorily demonstrated that there was a bill pending, otherwise though letters would not have been written. Having come to answer this issue in favour of the plaintiffs, the Court decreed the suit returning further findings that all issues favour the plaintiffs. 33. Thus, I do not find any statement of fact coming up either in the witness account of plaintiffs or defendants nor, do I find any plaint case or defence case that there was any agreement entered into between the partnership firm and defendants for supply of medicines. 33. Thus, I do not find any statement of fact coming up either in the witness account of plaintiffs or defendants nor, do I find any plaint case or defence case that there was any agreement entered into between the partnership firm and defendants for supply of medicines. It was a mere case of demand raised to the firm for supply of medicines that was claimed to have been made and findings of facts if have come to be recorded in that respect by the trial Court, the Court sitting in civil appeal held that the argument regarding bar of Section 69 of Partnership Act, was not attracted to the facts of the case and so also the authorities cited were not applicable. 34. Having carefully gone through the pleadings raised, I also do not find any enforcement of right claimed in the suit having its source in the partnership agreement. It was a simple case of demand and supply and no agreement was reached between the parties. The suit was not filed for enforcement of any rights nor, a third party, namely, defendants against whom suit was instituted, it was ever claimed that such third persons, namely, defendants were parties to any agreement at any point of time. However, further in order to deal with this legal aspect as argued by the learned counsel for the petitioner, it would be appropriate to reproduce Section 69 of the Partnership Act, in its entirety: ''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 or to 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. (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 sub-sections (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 Presidency-towns Insolvency Act, 1909 (3 of 1909) or the Provincial Insolvency Act, 1920 (5 of 1920) to realise the property of an insolvent partner. (4) This section shall not apply,- (a) to firms or to partners in firms which have no place of business in 8 [the territories to which this Act extends], or whose places of business in 9 [the said territories], are situated in areas to which, by notification under 10 [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, in the Presidency-towns, is not of a kind specified in Section 19 of the Presidency Small Cause Courts Act, 1882 (5 of 1882), or, outside the Presidency-towns, is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887 (9 of 1887), or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim. State Amendments.'' 35. Upon bare reading of the aforesaid provisions, it becomes explicit that legislature intended to non suit an unregistered partnership firm in case if a suit is instituted for enforcement of a right arising from a contract under this Act, i.e. Indian Partnership Act, otherwise, instituted by a partners or on behalf of a person suing as partner in a firm or any other person who is claimed to have been partner in the firm. 36. Thus sub-section 1 of Section 69 of the Partnership Act is not attracted. 36. Thus sub-section 1 of Section 69 of the Partnership Act is not attracted. Sub-section 2 of Section 69 also states that no suit would be maintainable to enforce the right arising from a contract by a firm or in its behalf against any third party unless the firm is registered and persons suing have been shown in the register of firm as partners in the firm. Sub-section 3 also bars proceedings to enforce a right arising from such a contract. 37. In the present case no enforcement of right arising out of any contract under Partnership Act is sought to be enforced inasmuch the claim for recovery of money as set up in the plaint is not shown by way of any partnership agreement or agreement entered with a partnership firm as a third party. It was a pure contract where demand for medicine was raised was accepted and so supply was made. Such contract cannot be claimed to be arising out of any partnership agreement or contract. Thus, suit by a partnership firm may be an unregistered firm, is not hit by Section 69 of Partnership Act. It is hit only when contract emanates from partnership agreement and enforcement of any right arising out of such agreement is involved in the suit. 38. In the case of Jagdish Chandra Gupta (supra) while dealing with scope of Section 69 vide paragraph 5 and 6 the Court has held thus: ''(5) The first question to decide is whether the present proceeding is one to enforce a right arising from the contract of the parties. The proceeding under the eighth section of the Arbitration Act has its genesis in the arbitration clause, because without an agreement to refer the matter to arbitration that section cannot possibly be invoked. Since the arbitration clause is a part of the agreement constituting the partnership it is obvious that the proceeding which is before the Court is to enforce a right which arises from a contract. Whether we view the contract between the parties as a whole or view only the clause about arbitration, it is impossible to think that the right to proceed to arbitration is not one of the rights which are founded on the agreement of the parties. The words of S. 69 93), ''a right arising from a contract'' are in either sense sufficient to cover the present matter. The words of S. 69 93), ''a right arising from a contract'' are in either sense sufficient to cover the present matter. (6) It remains, however, to consider whether by reason of the fact that the words ''other proceeding'' stand opposed to the words ''a claim of set-off'' any limitation in their meaning was contemplated. It is on this aspect of the case that the learned Judges have seriously differed. When in a statute particular classes are mentioned by name and then are followed by general words, the general words are sometimes construed ejusdem generis, i.e. limited to the same category or genus comprehended by the particular words but it is not necessary that this rule must always apply. The nature of the special words and the general words must be considered before the rule is applied. In Allen v. Emerson, (1994) 1 KB 362. Asquith J. gave interesting examples of particular words followed by general words where the Principle of ejusdem generis might or might not apply. We think that the following illustration will clear any difficulty. In the expression ''books, pamphlets, newspapers and other documents'' private letters may not be held included, if 'other documents' be interpreted ejusdem generis with what goes before. But in a provision which reads ''newspapers or other document likely to convey secrets to the enemy'', the, words 'other document' would include document of any kind and would not take their colour from 'newspapers'. It follows, therefore, that interpretation ejusdem generis or noscitur a sociis need not always be made when words showing particular classes are followed by general words. Before the general words can be so interpreted there must be a genus constituted or a category disclosed with reference to which the general words can and are intended to be restricted. Here the expression ''claim of set-off'' does not disclose a category or a genus. Set-offs are of two kinds- legal and equitable-and both are already comprehended and it is difficult to think of any right ''arising from a contract'' which is of the same nature as a claim of set-off and can be raised by a defendant in a suit. Mr. Set-offs are of two kinds- legal and equitable-and both are already comprehended and it is difficult to think of any right ''arising from a contract'' which is of the same nature as a claim of set-off and can be raised by a defendant in a suit. Mr. B.C. Misra, whom we invited to give us examples, admitted frankly that it was impossible for him to think of any proceeding of the nature of a claim of set off other than a claim of set-off which could be raised in a suit such as is described in the second sub-section. In respect of the first sub-section he could give only two examples. They are (i) a claim by a pledger of goods with an unregistered firm whose goods are attached and who has to make an objection under O 21 R 58 of the Code of Civil Procedure and (ii) proving a debt before a liquidator. The latter is not raised as a defence and cannot belong to the same genus as a ''claim of set-off''. The former can be made to fit but by a stretch of some considerable imagination. It is difficult for us to accept that the Legislature was thinking of such far-fetched things when it spoke of ''other proceeding'' ejusdem generis with a claim of set-off.'' 39. This above judgment has come to be further considered by the Supreme Court in the case of Krishna Motor Service (supra) whereby Supreme Court vide paragraph 8 has held thus: ''In Jagdish Chandra Gupta's case (supra), the facts were that right to dissolution of the partnership firm was itself in dispute and the suit was filed for that purpose. Therefore, when the application under Section 8 (1) of the Act was filed, this Court had held that since the partnership firm was not registered as enjoined under sub-section (1) of Section 69, the main part of sub-section (3) excluded the application for enforcement of the right to reference in other proceedings including enforcement under Section 8 of the Act. In Prem Lata's case (supra), the facts were that by a deed of partnership was executed but the firm was not registered under Section 65 of the partnership Act, On the demise of one of the partners, the legal representatives called upon other partners to render accounts of the dissolved firm. In Prem Lata's case (supra), the facts were that by a deed of partnership was executed but the firm was not registered under Section 65 of the partnership Act, On the demise of one of the partners, the legal representatives called upon other partners to render accounts of the dissolved firm. It is settled law that on the demise of one of the members of the firm, the partnership stands dissolved. Therefore, the claim had arisen under the exception engrafted under Section 69(3). In the backdrop of those facts and considering the effect of the provisions in the light of the ration in Jagdish Chandra Gupta's case, another Bench of this Court to which one of us (K.Ramaswamy, J.) was a member had held in Smt Prem Lata's case that Section 20 stands attracted to make an application for reference. Later, ratio clearly applies to the facts in this case.'' 40. Thus it comes out absolutely clear that suit in the present case was not hit by Section 69 of Indian Partnership Act, 1932. So far as the argument regarding merit of the claim raised in the suit as decreed by the Courts below is concerned, I do not find any substantial issue to be involved in the concurrent findings of fact that have come to be returned by the Courts below, and which, in my considered view, require any further interference in exercise of power under Article 227 of the Constitution of India. 41. This petition accordingly fails and is dismissed with no order as to cost.