Gordon Frazer & Co. Ltd. v. Lady Gymara Fernando
GORDON FRAZER & CO. LTD. v. LADY GYMARA FERNANDOCOURT OF APPEALRANASINGHE, J & RODRIGO, J.
C.A. APPLICATION 82/1979/LA; D.C. MT. LAVINIA 610/REDECEMBER 19, 1979 AND JUNE 10, 11, 1980
Landlord and Tenant – Estoppel – Framing of issues – Evidence Ordinance,Section 115 – Civil Procedure Code, Sections 93 and 146.
The respondent (plaintiff) sued the petitioner (defendant) for ejectment andarrears of rent alleging that the petitioner was her tenant. The petitioner took upthe position that at all times material to the action the tenant of the premises wasone R. W. and that the respondent had represented to the said R. W. and thepetitioner that R. W. was the tenant and that therefore she is estopped fromasserting that the petitioner was the tenant during the relevant period. R. W. wasno party to the action and the respondent averred no relationship between thepetitioner and R. W. issues framed by the petitioner’s counsel on estoppel on theground of representations made by the respondent to R. W. were rejected by theDistrict Judge and the petitioner’s counsel thereafter recast his issues which wereaccepted by court. Before the trial commenced the petitioner appealed from theorder rejecting the issues.
The fact that the petitioner’s counsel had without informing court immediately ofhis intention to appeal, proceeded to recast the issues which were ruled out.does not amount to an unquestioned and final acceptance of the order so madeby the District Judge. Any representation alleged to have been made by therespondent to the said R. W. could also be relied on by the petitioner in supportof the plea of estoppel. If it could be shown that notice of representations whichwere so said to have been made to the said R. W. “was intended to and did infact come” to the petitioner. The petitioner should be given an opportunity ofhaving his pleadings amended to set out fully the particulars which would entitlehim to rely on the representations made to the said R. W. before his beingpermitted to frame the relevant issues based on estoppel.
Cases referred to:
(1) Thevagnanasekeran v. Kuppamal 36 NLR 337.(1)
<2) Weerasooriya v. Controller of Establishments 51 NLR 189 at 191.
Alagappa Chettyv. Arumugam 2 CL Rep. 202.
Bank of Ceylon, Jaffna v. Chelliapillai 64 NLR 202.
Attorney-General v. Smith 8 NLR 229.
Silva v. Obeysekera 24 NLR 97 at 107.
Mariya Umma v. The Oriental Government Security Life Assurance Co, Ltd.57 NLR 145.
Abeysekera v. de Livera 71 NLR 465 at 473.
Martin v. Thenuwara 70 NLR 332.
(10) DeAiwisv. DeAlwis76NLR444.
Sri Lanka Law Reports
(1980) 2 Sri L.R.
APPEAL from the Order of the District Court of Mt. Lavinia
C. Ranganathan Q.C. with Mark Fernando for Defendant-Petitioner
H. W. Jayewardene Q.C. with P. A. D. Samarasekera for Plaintiff-respondent.
Cur adv vult.
19th July, 1980RANASINGHE, J.
The Plaintiff-Respondent (hereinafter referred to as the Respondent)instituted proceedings in the District Court, Mt. Lavinia, in Case No.610/RE against the Defendant-Petitioner (hereinafter referred to asthe Petitioner); for ejectment of the petitioner from Premises No.232/3, Havelock Road; for arrears of rent in a sum of Rs. 49,000/-; fordamages at the rate of Rs. 900/- per month from 1.8.1978 until theRespondent is placed in possession of the said premises.
The position taken up by the Respondent briefly is that: theRespondent leased out the said premises to the Petitioner byIndenture of Lease bearing No. 3113 dated 24.7.1971 ( a copy ofwhich has been annexed to the Respondent’s statement ofobjections, as “A”) for a period of three years at an annual rental ofRs. 10,800/- payable in twelve equal monthly instalments of Rs. 900/-each: that, upon the provisions of the Rent Act No. 7 of 1972 cominginto operation on 1.3.1972, the said lease became invalid and thePetitioner became a monthly tenant as from the said date, 1.3.1972:that the Petitioner had, as such tenant, paid all rents up to the end ofDecember 1972 and has fallen into arrears thereafter: that, on orabout 4.10.1977, the respondent gave the Petitioner notice to quitsaid premises.
The Petitioner, in the Petitioner’s answer has taken up the position;that, at all times material to the action, and more particularly in andafter January 1974, the tenant and the authorised occupant of thesaid premises was a person named Ranjan Wijeratne: that the saidRanjan Wijeratne was accepted and recognised by the Respondentas the tenant; that, on and after 13th January 1974, the Respondenthas acted on the basis, has represented to the said Ranjan Wijeratneand the Petitioner, and has also intentionally caused and permittedthe said Ranjan Wijeratne and the Petitioner to believe that the saidpremises were a surplus house, that the said Ranjan Wijeratne wasthe tenant and authorised occupant thereof, that the Respondent didnot wish to retain the ownership of the said premises, that the saidthat the said Ranjan Wijeratne was entitled on purchase the said
Gordon Frazer & Co. Ltd. i/. Lady Gymara Fernando (Ranasinghe, J.)
premises have vested in the Commissioner; of National Housing, andthat the said Ranjan Wijeratne was entitled to purchase the saidpremises from the said Commissioner: that the Respondent istherefore now estoppel from denying the said facts. The essence ofthe defence was, therefore, that the Petitioner was not during thematerial period, the tenant of the said premises, and that, in truth andin fact, the tenant was the person named Ranjan Wijeratne, and thatthe Respondent is estopped from asserting that the Petitioner wasthe tenant during the relevant period.
The case was taken up for trial on 9.10.97 and after certainadmissions were recorded, learned Counsel appearing for therespondent suggested the solitary issue as to whether, upon theadmissions recorded, the Respondent is entitled to ejectment asprayed for.
Learned counsel appearing for the Petitioner then suggested thefollowing issues:
At all times material to this action, was Ranjan Wijeratne of232/3, Havelock Road, Colombo.
the occupant of the premises in suit?
the tenant of the premises in suit?
Has the plaintiff accepted and recognized the said RanjanWijeratne as the tenant and/or the authorised occupant ofthe said premises.
at all times material to the action;
from the end of December, 1973?
As set out in paragraph 4 of the answer, is the plaintiffestopped from denying that:
the said premises were a surplus house within themeaning of the Ceiling on Housing Property Law?
the said Ranjan Wijeratne was the tenant and theauthorised occupant thereof?
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the plaintiff did not wish to retain the ownership of thesaid premises?
the said premises vested in the Commissioner ofNational Housing?
the said Ranjan Wijeratne was entitled to purchase thesaid premises from the Commissioner of NationalHousing?
On and after 13th January 1974:
have the said premises vested in the Commissioner ofNational Housing by reason of being a surplus housein relation to Dr. A. M. Fernando and/or other co-ownerof the said house?
is the Plaintiff estoppel from asserting or claiming thatthe defendant is the tenant of the said premises or isobliged to pay her rent in respect of these premises?
Issues bearing Nos. (6) and (7) are not very material for the purposeof the matters arising in this appeal.
Paragraph (4) of the Petitioner’s answer is as follows:-
“Further answering, the defendant states that on and after 13thJanuary 1974 the Plaintiff has acted on the basis, hasrepresented to the said Ranjan Wijeratne and the Defendant,and has intentionally caused and permitted them to believethat:
the said premises were a surplus house,
the said Ranjan Wijeratne was the tenant andauthorised occupant thereof;
She did not wish to retain the ownership thereof;
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the said premises vested in the commissioner ofNational Housing; and
the said Ranjan Wijeratne have acted on the plaintiff’ssaid representations and conduct. The Plaintiff isestopped from denying the said fact.”
and the defendant and the said Ranjan Wijeratne have acted onthe Plaintiff’s said representations and conduct. The plaintiff isestopped from denying the said fact”.
Upon objections being taken by learned Queen’s Counselappearing for the Respondent, the learned District Judge rejectedthe issues Nos. 2, 3, 4 on the ground that: the action has beeninstituted against the Petitioner on the basis of a failure to act inaccordance with the indenture of lease; these issues relate to aRanjan Wijeratne: the said Ranjan Wijeratne is nowhere referred to inthe answer as an attorney of the petitioner, or as a Director, nor hasany relationship being set out: the said Ranjan Wijeratne is not aparty to this case. The learned District Judge ruled out issue 5(c) asit also related to persons who are not parties to the action. Issue 5(c)was rejected for the reason that the grounds on which the saidestoppel is based have not been set out.
Thereupon learned Counsel for the Petitioner suggested four newissues numbered as 8, 9 and 10 and 11 as follows:-
“(8) (a) was the defendant in this case the tenant of thesaid premises in January 1974 or at any timethereafter?
(b) If not, can the plaintiff have and maintain thisaction?
(a) In January 1974 or thereafter has the Plaintiff
admitted that the defendant in this case is not thetenant?
(b) If so, can the plaintiff have and maintain this action?
As set out in paragraph (4) of the answer, is the plaintiffestoppel as against the defendant from denying thefacts therein set out?”
Issues 11(a) and (b) are not relevant for the questions which arise fordecision in this appeal.
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Learned Queen’s counsel appearing for the Respondent theinformed Court that he was not objecting to issues 8(a), (b) and 9(a),(b), but that he objects to the words “as set out in paragraph 4 of theanswer” in issue No. 10. The learned District Judge upheld theobjection so put forward to issue 10 on the ground that the saidRanjan Wijeratne is neither a defendant not an agent of defendant inthis case and that the defendant in this case is only the Petitioner.Thereupon learned Counsel for the Petitioner moved to recast issues10 and 11 as follows:-
10 (a) Upon the facts set out in paragraph 4 of the answer, didthe plaintiff intentionally act and so permit
to accept the said facts?
11. If so, is the plaintiff estoppel from denying the said facts?”.
The learned District Judge disallowed these two issues too for thereason that Ranjan Wijeratne is not a party to this case.
Thereupon learned Counsel for the Petitioner moved to omit thename of Ranjan Wijeratne, and recast issue (10) as follows:-
“10. Upon the facts set out in paragraph (4) of the answer,did the plaintiff intentionally act and so permit thedefendant to accept the said facts?
This issue was then accepted by the learned District Judge.Consequent upon this issue being accepted, an issue numbered(12) was suggested on behalf of the Respondent to the effectwhether, in any event, an estoppel, in tferms of the provisions ofSection 115 of the Evidence Ordinance, arises upon the facts set outin the said issue (10). Thereafter the trial of the said issues was fixedfor 19.8.1980, and the further proceedings were then adjourned.
The Petitioner filed the application, for leave to appeal from the'der made by the learned District Judge on 9.10.79 disallowing thesues suggested on behalf of the Petitioner, in this Court onj.10.79. When the matter of the Petitioner’s application for leave to
Gordon Frazer & Co. Ltd. v. Lady Gymara Fernando (Ranasinghe, J.)103
appeal was taken up, it was agreed between learned Queen’sCounsel appearing for the respective parties, after preliminaryargument, that this Court do hear arguments of learned Counsel inrespect of the interlocutory appeal itself, as it leave to appeal hasbeen granted, and that this Court do consider the said Order madeby the learned District Judge on 9.10.79 upon the issues suggestedby learned Counsel for the petitioner.
A consideration of the said Order of the learned District Judgemade on 19.10.79 disallowing issues Nos. 2, 3, 4, 5(c) and (e)suggested on behalf of the Petitioner shows that the reason why theywere disallowed was because the said Ranjan Wijeratne was not aparty to the action, and nowhere in the answer has any relationship,either as an Attorney or as a Director of the Petitioner or of any otherkind, been shown as between the petitioner and the said RanjanWijeratne.
Learned Queen’s Counsel appearing for the Respondent, whilstsupporting the order of the learned District Judge, also argued that,in any event, it is not open to the Petitioner to file an appeal becauselearned Counsel did accept and acquiesce in the said order of thelearned District Judge, and did thereafter even re-cast his issues,which as so re-cast were ultimately accepted both by theRespondent and the learned District Judge, so much so that theissues upon which the case has now been set down for trial are allissues which have been agreed upon and accepted by both parties.
It was also contended that the principles set out in the cases ofThevagnanasekaran v. Kuppamalm, Weerasooriya v. Controller ofEstablishments<2) at 191, and Alagappa Chetty v. Arumugami3) apply;and that the petitioner cannot now be heard to complain against thesaid Order of the learned District Judge. The essence of the principleadopted in these cases is summed up in the quotation set outby Macdonell C.J. at page 344 of the judgment inThevagnanasekeran's case (supra).
“Where jurisdiction over the subject-matter exists requiring onlyto be invoked in the right way, the party who has invited orallowed the Court to exercise it in a wrong way, cannotafterwards turn round to challenge the legally of proceedingsdue to his own invitation or negligence”.
A consideration of the position taken up on behalf of the petitionerdoes not show that the petitioner is in any way challenging the
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jurisdiction of the Court. The Petitioner does not com plain that thecourt has wrongly arrogated to itself a jurisdiction which the Court isnot entitled in law to exercise. The Petitioner’s complaint is that thecourt, whilst exercising an undoubted jurisdiction which the Courtwas possessed of, has, however, in the course of so exercising itspowers, made a wrong order. The petitioner complains only of awrong order made made in the course of a lawful exercise ofjurisdiction. Furthermore, a consideration of the proceedings doesnot, in my opinion, show that learned Counsel for the Petitioner couldbe said to have in any way contributed towards any error committedby the learned District Judge. The error, if any cannot be consideredto have been due to any negligence on the part of the Petitioner. Norcan the Petitioner’s Counsel be considered to have acquiesced in theorder complained of. The fact that learned Counsel had, withoutinforming court immediately of his intention to appeal, proceeded tore-cast the issues which had been earlier suggested by him andwhich were ruled out by the learned District Judge, does not amountto an unquestioned and final acceptance of the order so made by thelearned District Judge. The Petitioner has within the time granted tohim by law exercised his right to come before this Court – well beforethe date which the court had fixed as the date for the trial of theissues accepted by Court on the day the said order was made byCourt. The conduct of the Petitioner (either by himself or through hisattorney-at-law) either immediately after the said order was made on9.10.79 or thereafter up to the 25th October 1980, on which date theapplication to this Court was filed, cannot be said to have causedany detriment to the Respondent for which the Petitioner should inlaw, be held to be answerable. In this view of the matter, I am ofopinion that this contention put forward on behalf of the Respondentis not entitled to succeed.
The position taken up by the Petitioner, as set out in paragraph 4of the answer, is that the representations, which are alleged to havebeen made by the Respondent and which are relied upon by thePetitioner as constituting the estoppel set out therein, were made bythe Respondent not only to the Petitioner but also to Ranjan Wijeratnereferred to in the said answer. The said Ranjan Wijeratne, as alreadystated, is not a party to this case.
Learned Queen’s Counsel, appearing for the Respondent,contended that the Petitioner is entitled, with regard to the said pleaof estoppel, to rely not only upon the representations made by theRespondent directly to the Petitioner, but also upon the
Gordon Frazer & Co. Ltd. v. Lady Gymara Fernando (Ranasinghe, J.)105
representations said to have been made to the said RanjanWijeratne. Learned Queen's Counsel relies on Sector 19 of ChapterVI of Spencer Bower’s book entitled The Law Relating to Estoppel byRepresentation (2 edt.) wherein it is stated:
“A representee is deemed in law to include not only any personto whom the representation was directly and immediately made,but also any person to whose notice the representation thoughnot made to him, was intended to, and did in fact, come. Suchintention may be shown to have been expressed by therepresentator, when making the representation, in the form of arequest or authority to the person addressed in the first instanceto pass it on or report it to the person whom it was intended toreach, and who thus becomes the representee, or one ofseveral representees, as the case may be. Or such intentionmay be inferred from the representator’s proved or presumedknowledge that the representation was of such a character that,in the ordinary course of business, it would naturally andprobably be transmitted to third persons”.
Having set out this general rule the learned author, at page 111,states that the position therefore is that there are four main classes of
possible representees, viz:
“(i) any person to whom the representation was physically anddirectly made;
any principal or partner of such person…
any specific person, not being a representee of either ofthe above types, whom nevertheless the representatoractually or presumptively intended the representation toreach and effect, and whom it did in fact so reach andeffect; and
any member of the public or of a section of the community,who is proved to have acted on a representationaddressed in the first instance, not to any specificindividual, but to such public or section”.
On a consideration of the abovementioned principle set out bySpencer Bower, with reference to the facts and circumstances set outin defence of the Petitioner, it would appear that any representations
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alleged to have been made by the Respondent to the said RanjanWijeratne could also be relied on by the Petitioner in support of thePetitioner’s plea of estoppel if the Petitioner could show that notice ofthe representations which are so said to have been made to the saidRanjan Wijeratne “was intended to, and did in fact, come” to thePetitioner. Such intention on the part of the Respondent could beproved either by any express declaration said to have been made bythe Respondent or by inference from the Respondent’s knowledge,either proved or presumed, that the representation was of such acharacter at, in the ordinary course of business, it would naturallyand probably be transmitted by the said Ranjan Wijeratne to thePetitioner. Thus, if the Petitioner could show that the representation,which is said to have been made to the said Ranjan Wijeratne fallswithin either class (ii) and or class (iii) of the four main classesreferred to by Spencer Bower, then the Petitioner would be entitled torely on the said representation, which is alleged to have been madeby the Respondent to the said Ranjan Wijeratne, as well.
As set out earlier the basis of the learned District Judge’s saidorder is that the said Ranjan Wijeratne is not a party to theseproceedings and that no relationship, as between the said RanjanWijeratne and the Petitioner, has been set out in the answer. In viewof the principle set out by Spencer bower, referred to above, it isclear that the mere fact that the said Ranjan Wijeratne is not a partyto he proceedings would not be decisive in determining the saidquestion; for if the facts and circumstances are such as to enable thePetitioner to bring himself within either of the two classes referred toabove, the Petitioner would then be entitled to prove therepresentation so alleged to have been made by the Respondent tothe said Ranjan Wijeratne.
A consideration of the averments of paragraph (4) of the answer,however, shows that the particulars that would be required to beestablished by the Petitioner to bring the Petitioner within either class(ii) and or class (iii) referred to above have not been fully set out. Thequestion which now arises, therefore is whether the Petitioner isnevertheless entitled to have such matters as are necessary to bringthe Petitioner within either one or both of classes (i) and (ii) of the fourclasses specified above, put in issue even though the particulars ofall such matters have not been specifically pleaded in the Petitioner’sanswer.
Section 146 of the Civil Procedure Code makes provision for thedetermination of issues on the day fixed for hearing of the action.
Gordon Frazer & Co. Ltd. v. Lady Gymara Fernando (Ranasinghe, J.)107
Sub-section (2) of section 146 provides that, if the parties do notagree as to the questions of fact and law to be decided betweenthem, it shall be the duty of the Court, upon the allegation made, inthe plaint or in answer to the interrogations or the contents ofdocuments produced by the parties and also after such examinationof the parties as the Court considers necessary, to ascertain uponwhat propositions of fact or of law the parties are at variance andthen proceed to record the issues on which the right decision of thecase appears to the court to depend. Section 93 of the CivilProcedure Code deals with the power of the Court to amend thepleadings.
In this case as the Petitioner and the Respondent could not at theoutset agree upon the issues on which the case should proceed totrial, the duty was cast on the learned District Judge to decide, upona consideration of the material referred to in Section 146(2) of theCivil Procedure Code the issues upon which it seemed to the learnedDistrict Judge that the right decision of the matters in disputebetween the parties depended.
In the case of Bank of Ceylon Jaffna v. ChelliapillalA) Lord Devlinstated:
“The civil Procedure Code gives in section 93 ample power toamend pleadings. Moreover the case must be tried upon theissues on which the right decision of the case appears to theCourt to depend’ and it is well settled that the framing of suchissues is not restricted by the pleadings; see Section 146 of theCode, Attorney-General v. Smith<5) and Silva v. Obeysekeram".
Where an answer was found to be defective for want of preciseinformation as to the grounds on which liability is repudiated andwhere it had not been referred for amendment, Gratiaen J. held in thecase of Mariya Umma v. The Oriental Government Security LifeAssurance Co. Ltd.(7) that in such circumstances: “Section 146 of theCivil Procedure Code imposed a special duty on the Judge himself toorder the defence to furnish full particulars of its grounds for avoidingliability, and the issues for adjudication should only have beenframed after the Judge had ascertained for himself ‘the propositionsof fact or of the law’ upon which the parties were at variance”.
Mariya Umma's case (supra) was subsequently cited withapproval and followed in the case of Abeysekera v. de Livera™where
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the Supreme Court, holding that an issue which had been framedwas too vague to enable a court to satisfactorily arrive at a justdecision, sent the case back to the District Court directing the partyconcerned to furnish the necessary particulars to enable the DistrictCourt to frame issues as contemplated in the judgment of theSupreme Court.
The view that the framing of issues should not be restricted to thepleadings as they stand was also affirmed in the case of Martin v.Thenuwaram where it was held that pleadings may be amended afterissues which do not strictly arise from the pleadings are permitted tobe framed. The same view was also taken in the case of De Alwis v.DeAlwis<10).
It is, therefore, settled law: that the framing of issues on which theparties are to proceed to trial is not strictly confined to the pleadingsas they stand: that it is open to the trial Judge, if it appears to him tobe necessary for a proper decision of the matters which are indispute between the parties, either to permit the party concerned tosuggest, or ex mero motu for the trial judge himself to adopt suchissues as are so considered necessary, even though such issues donot strictly arise upon the pleadings already filed: that the trial judgecould also, if it becomes necessary to do so, direct a partydefendant, whose answer is found to be defective for want of preciseinformation as to the grounds on which liability is repudiated, tofurnish, before such issues are adopted, full particulars of thegrounds on which liability is sought to be avoided.
A consideration of the averments set out in paragraph (4) of theanswer shows that not only have several particulars, which have tobe established by the defendant before the defendant could, on thebasis of the abovementioned general principle set out by SpencerBower, seek to rely on the representations, which are said to havebeen made by the Respondent to the said Ranjan Wijeratne, notbeen averred therein, but also that the specific alternative position,coming within the scope of the said general principle and whichwould be relevant to the Petitioner’s own defence, has not beenaverred with any degree of precision. This defect, however, shouldnot at this early stage of the action be allowed to be made use of todeny the Petitioner the opportunity of placing the Petitioner’s defencefully before the trial Court. It is, however, most desirable that theseveral particulars required to enable the Petitioner to bring thePetitioner within the ambit of the above-mentioned general principle,
Gordon Frazer & Co. Ltd. v. Lady Gymara Fernando (Ranasinghe, J.)109
set out by Spencer Bower, should be clearly and expressly averred inthe answer before the Court proceeds to adopt such issues as wouldbe considered necessary for a full and proper determination of theplea of estoppel relied on by the Petitioner and outlined in theaverments of paragraph (4) of the Petitioner’s answer as it presentlystands.
It is not doubt true that no application was made on behalf of thePetitioner to the learned District Judge to have the answer amended.Even so, the learned District Judge had wide powers which hehimself could have exercised in a situation such as this even withoutany application on behalf of the Petitioner. It must, however, be notedin fairness to the learned District Judge that his attention does notseem to have been drawn to the above-mentioned principle set outby Spencer Bower.
For the reasons set out above, the Petitioner’s appeal is allowed;and the order of the learned District Judge, made on 9.10.79,disallowing the issues numbered 2, 3, 4, 5(c) and (e), suggested bylearned Counsel for the Petitioner is set aside. The learned DistrictJudge is directed to grant the Petitioner an opportunity of havingparagraph (4) of the Petitioner’s answer amended in order to set outfully the particulars which would entitle the Petitioner to rely, inaccordance with the above-mentioned general principle set out bySpencer Bower, also on the representations which are said to havebeen made to the said Ranjan Wijeratne by the Respondent. Oncethe said amendment, and any necessary consequentialamendments, are made, the issues properly arising therefrom arethen to be suggested by the respective parties, and are to be thendecided on by the learned trial judge.
in view of the foregoing order, in regard to issues numbered 2, 3,
4, 5(c) and (e), order is also made, pro forma, setting aside the orderaccepting issues 5(a), (b) and (d), 6, 7, 8(a) and (b), 9(a) and (b),10(a), 11 and 12. The issues relating to matters, other than the pleaof estoppel, as would be embodied in paragraph (4) as amended,could also be suggested afresh, and adopted thereafter.
The Petitioner is entitled to the costs of this appeal. TheRespondent’s costs of the proceedings held before the District Courton 9.10.79 will have to be paid to the Respondent by the Petitioner.
RODRIGO, J. -1 agree.