K. B. SAMARAKOON, Appellant, and P. V. G. GUNADASA, Respondent

018-NLR-NLR-V-74-K.-B.-SAMARAKOON-Appellant-and-P.-V.-G.-GUNADASA-Respondent.pdf


02
Samarakoon v. Ounadasa
1970Present : Pandita-Gunawardeno, J
K.B.SAMARAELOON, Appellant, tnzdP. V. G. GUNAJDASA, RespondentS. C. 52/CS—C. R. Kandy, 19744
Rent-controlled premises—Notice to quit on ground of arrears of rent—Payment ofarrears before expiry of date of termination of tenancy or before date of institutionof action—Effect—Action in ejectment—Dismissal with costs—Computationof rent due thereafter—Whether, in a subsequent action, the costs can be set offagainst rent due—Rent Restriction Act. {Cap. 274), as amended by Acts No. 10 of1061 and No. 12 of 1066, as. 12, 12A (1) {a), 12A (2), 13(1) {a). 13 (1 A),13 (IB), 14.
1 (1061) 65 N. L. R. 1S4.
PAXDITA-GUtCAIVARDENE, J.—Samarakoon v. Gunadasa
OS
Wboro, in a case governed by section 12 A (l) (a) of tho Rent Restriction Act,a tenant of premises the standard monthly rent of which does not oxcoed Rs. 100has boon in arrears of rent for threo months or moro nftor it has become duo, andhas been given notico of termination of his tenancy by tho landlord, ho cannotsavo himself from oviction by payment of arrears oither (i) beforo tho expirydato of tho termination of tho tenancy, or (ii) beforo tho dato of institution of thoaction. Onco lio falls into arrears for tho specified period, ho forfeits thoprotection of tho Rent Restriction Act and is liablo to oviction, unless ho isablo to plead section 12 A (2) of tho Act.
Dias v. Gon.cs (53 2v. L.R. 337) applied.
Mohan'.cd v. If’ahab (72 N. L. R. 333) not followed.
It is tho du'y of a tenant of rent-controlled premises to continue to payronts regularly oven during tho pendency of nn action in ejectment -relatingto tho promises. And if the action is dismissed with costs, the costs cannot boset off against tho rent duo in a subsequent action if tho tenant lias not had hiocosts taxed and in tho absonco of a specific issue.
-A.PPEAL from a judgment of the Court of Requests, Kandy.
D. Guruswamy, with Patrick de Alwis, for tho defendant-appellant.
C. Ranganalhan, Q.C., with Miss Ninnala Bandrasagara, for the plaintiiT-raspondent.
Cut. adv. vu-ll.
December 15, 1970. Pandita-Gunawakdeke, J.—
This is an action by tho plaintiff landlord for ejectment of the defendant,his tenant, on the ground of arrears of rent.
Beforo I discuss the particular facts of this case, it may be useful togive a brief resume of that aspect of the Rent Laws which purport todeal with arrears of payment of rent as a ground to sustain a landlord'saction for ejectment of the tenant.
The original Act No. GO of 1942 provided that no action for tho eject-ment of a tenant shall be instituted unless tho rent has been in arrearfor one month after it has become due. This Act was superseded by twoamending Acts Nos. 29 of 194S and 6 of 1953 consolidated in Chapter274 Volume 10 L. E. C. titled the Rent Restriction Act, and thereinafterreferred to as the principal Act. Tin's principal Act took over the sameprovision restricting the landlord’s right to institute proceedings forejectment unless the rent has been in arrear for one month after it hasbecome due (Section 13 (1) (a)).
By the Rent Restriction (Amendment) Act No. 10 of 19G1, Section 13of the principal Act was amended by the insertion of tho following newsub-sections (vide section G of the Amendment Act)—
€i
PA N D1T A.GUXAWARD EivE, J.—Samarakoon v. Gunadasa
(1A) “ The landlord of any premises to which this Act applies 6hallnot be entitled to institute any action or proceedings forthe ejectment of the tenant of such premises on the ground thatthe rent of such premises has been in arrear for one month afterit has become due—
(n) if the landlord lias not given the tenant three months’ notice .of the termination of tenancy, or
(b) if the tenant has, before such date of termination of tenancyas is specified in the landlord’s notice of such termination,tendered to the landlord all arrears of rent.
(IB) Where any action or proceedings for the ejectment of the tenantof any premises to which this Act applies is or are instituted onthe ground that rent has been in arrear for one month after ithas become due, the Court may, on being satisfied that the renthas been in arrear on account of the tenant’s illness or unemploy-ment or other sufficient cause, make order that a writ for eject-ment of the tenant from those premises shall not issue if thetenant pays to the Court the arrears of rent either in a lumpsum on such date, or in instalment .on such dates, as may bospecified in the Order; and if the tenant pays to the Court thoarrears of rent on sucli date or dates, his tenancy of those premisesshall, notwithstanding its termination by the landlord of thosepremises, be deemed not to have been terminated.”
Ordinarily the termination of a monthly tenancy by the landlord isby the giving of a month’s notice. By this amendment, the landlord wasrequired to give a period of three months’ notice ; and it was providedfurther that if before the date of the termination of the tenancy thetenant paid all arrears of rent, the landlord was precluded from institutingproceedings.
The new sub-section 1(B), already quoted, was an added advantage tothe tenant.
The Kent Restr'ction (Amendment) Act, Xo. 10 of 19GI, was againamended by Act No. 12 of 10fi<3. This (Amendment) Act, Xo. 12 of 19GG,made separate provisions for premises the standard monthly rent ofwhich did not exceed one hundred rupees, and for premises where thestandard monthly rent exceeded one hundred rupees. In respect ofpremises of the former category, it was enacted that no action shall beinstituted unless the rent has been in arrear for three months’ or moreafter it lias become due. This was a new section inserted immediatelyafter Section 12 of the principal Act and to have effect as section 12A(1) (<■/). The concession granted to all tepants bv amending section 13(IB) of the principal Act, namely, where the Court on being satisfiedthat the rent has been in arrear on account of the tenant’s illness orunemployment or other sufficient cause if the tenant pays the arrears ofrent either in a lunin sum or in instalments on a date or dates specified,
PANDITA-GLTN1 A W A It D E NE, J.—Samaratoon v. Gunadasa
05
the t-enant was to be permitted to continue in occupation and the tenancyis deemed not to have been terminated, was retained in the new sub-section 12A (2).
In the case of tenants whose monthly rental exceeded one hundredrupees, the Amending Act 12 of 19GG resolved that the arrears of rententitling the landlord to institute action be as in the Act No. 10 of 19G1,namely, where the rent has been in arrear for a month after it has becomedue and the notice terminating the tenancy be a three months’ notice.The tenant of such premises also retained the advantage of not beingliable to be sued in ejectment if before the date of termination of histenancy as specified in the landlord’s notice, he tendered to the landlordall arrears of rent; also the benefit provided by section 13 (IB).
The situation as at present in cases of a tenancy where the standardmonthly rental does not exceed one hundred rupees, is—
The tenant cannot be sued in ejectment unless his rent has beenin arrear for three months or more after it has become due.
The termination of his tenancy may be effected by a month’snotice.
Where an action in ejectment has been instituted if he satisfiesthe Court that the arrears of rent has been due to his illness orunemployment or other sufficient cause and undertakes to paythe arrears either in a lump sum or in instalments on specifieddates, he is permitted to continue as if his tenancy was notterminated.
The primary object of the Rent Restriction Act is —
To control rents.
To ensure to the tenant security of tenure.
In interpreting the rent law, it would be correct to approach a tenancycase on the basis that the Rent Act is to protect the tenant who fulfilshis obligations. But that does not mean that the Rent Act is to be inter-preted in such a way as to penalise (lie landlord. That is not the Law.
There is a statutory obligation on the tenant who is-governed by theRent Act to see that his rent is not in arrear for the period specified in theAct. In the event of the tenant violating his obligation, he loses theprotection under the Act and is liable to eviction. He can only savehimself from eviction if he can establish to the satisfaction of Court thatarrears were occasioned by his illness, unemployment or other sufficientcause and on his undertaking to make payment of all arrears in a lumpsum or in instalments (tide Section 12A (2); Section 2 Rent Restriction(Amendment) Act 12 of I960).
In M. M. Dias v. P. Vincent Gomes,1 Pulle J. (Nagalingam, A.C.J.and Swan J., agreeing) said :
1 UD54) So N. L. It. 337 at 342.
68
P Afs DITA • G U N'A WAR D E XE, J.—Sarnarakoon v. Gunadasa
“ It seems to me that being in arrears is a condition or state in whichthe tenant finds himself by his own lapse and upon that condition orstate supervening the tenant places himself outside the limits of theprotection and it is for him to show how thereafter ho regained thatprotection. .. The Rent Restriction Act has made heavy inroads
into the common law rights of the landlord and I do not see anj-thingoppressive in interpreting proviso (a) to mean that, having regard tothe new and extensive rights conferred on a tenant, it is a conditionprecedent to the continued protection of the Act against eviction thatthe tenant shall pay the rent not necessarily as it falls due, but atleast within a month thereafter.”
The facts of this case under consideration are as follows. The defendantwas the tenant of the plaintiff from 1964, paying a montldy rental of sixrupees. In December 1964 the plaintiff filed plaint seeking to eject thedefendant on the ground that he required these premises for his own useahd occupation (vide PI, plaint in C.R. Kandy 1S6S9). After trial, theCommissioner of Requests dismissed the plaintiff’s action on 11.1.06.It has been conceded that the defendant did not make payments afterDecember 1964 during the pendency of that case. On 11.1.66 when theplaintiff’s action was dismissed, Section 14 of the Rent Restriction Actcame into operation. Section 14 reads as follows :—
“ Where an action for the ejectment of any person from any premisesoccupied by him as a tenant is dismissed by a Court by reason of theprovisions of this Act, his occupation of those premises for any periodprior or subsequent to the dismissal of such action shall, withoutprejudice to the provisions of this Act., be deemed to have been orto be under the original contract of tenancy.”
The effect of the dismissal was to confer retrospectively on the tenant*his rights and status under the original contract of tenancy :
“ but equally so there would be imposed on him also the obligationsof the tenant. When a tenant defends an ejectment action, he shouldbe aware that either he would be liable in damages for his occupationduring the pendency of the action, if the plaintiff is ultimately successful,or he would by virtue of S. 14 retrospectively continue to be tenant,if the plaintiff fails. If therefore he wishes to secure to himself thefull benefit which S. 14 is intended to confer, he must regard himselfas a tenant" during the pendency of the action and pay the rent as itfalls due, or else deposit it in Court to the credit of the action. If hedoes not do so, he runs the risk, as in the present case, that theplaintiff can immediately serve him with fresh notice forthwith afterthe determination of the first action.”
per Fernando, A.J. (now C.J.) in L. IT. A.'Vincent v. K. G. Sumanascna.1This is an authoritative answer to the argument of learned counselfor the defendant that- during the pendency of the earlier action, tho
* {1054) 55 N. L. B. 47S at 4S0.
PAXD1TA-GUXAWARDKKli, J.—Samara/.oon v. Cunadasa
07
defendant was under no obligation to pay7. An argument on the same linesappears to have been advanced in the ease of Samarauecra v. Ranasinghe.1Sinncfanibv, J. (with whom were associated Basnayake, C.J. andde Silva, J.) in the course of his judgment, disposed of the argument inthese words :—
“ This places a tenant in a position of undue advantage. On noticeb ?ng given lie need not pay rent hut is entitled to occupy the premisestill the as ion which is instituted is disposed of. The final decision maytake several years particularly if there is an appeal, and if the landlordfails, he still lias a reasonable time in which to pay the arrears. Thiswas clearly not the intention of the legislature. The one cardinalprinciple which forms the basis of the entire Act is that the tenant’spossession must be preserved so long, and only so long, as he pays rentregular y.”
It was also contended, but not with much enthusiasm I thought,that once a contractual tenancy is terminated by notice, the tenant isa trespasser from w hom not rental but only damages could be claimed.And that the term “ statutory tenant- ” is a “ rnctc curiosity ” not recog-nised under our law. I think it is far too late in the day7 for counsel tomake such an assertion. I need only refer to the case of Fernando v.Samarauecra2 where Basnayake J. (as he was then) expressed himselfin this way :—
“It appears from the foregoing that a landlord who has terminatedthe contract of tenancy through a desire to get back his premises butis unable to satisfy the above requirements has to submit to the con-tinued occupation of his premises by7 a person whom he docs not wantthere but whom the statute will not permit him to eject therefromby process of law. Such a person cannot be described as a trespasserfor his occupation of the premises is not lawful. He is, since thetermination of the tenancy7, under no contractual relationship with thelandlord.
This creature of the statute whoso counterpart is to be found inEngland, has been called the ‘statutory7 tenant’ by7 Lord JusticeScrutton who also describes him as that anomalous legal entity whowould not ordinarily7 be described as a tenant. Lord Coleridge describesthe resulting legal relationship as a ‘statutory' tenancy’. AVhat arethe rights and obligations of this ‘anomalous legal entity7 ’ ? For theanswer we have to turn to the Rent Restriction Act.”
The Rent Restriction Act lias introduced to us this “ anomalous legalentity ”, the statutory tenant, and so he will remain with us until theRent Act ceases to be operative.
After the dismissal of plaintiff’s earlier action on Il.l.GG the defendanttook no step to make any7 payment of rent. And on 27.5.G6 the plaintiffthrough his proctor, sent a notice (P2) to the defendant demanding thearrears of rent due from 11.1.65; with notice to quit and vacate the
1 (105S) SO N. L. R. 305 al 300.
* (1051) 52 N. L.R. 27S al 2S1-2S2.
6S
PANDITA GUNAWARDENE, J.—Samarakoon v. Gunadasa
premises on or before 30.6.6G “as yon are in arrears of rent ” adding“allow us however to recommend an amicable settlement’’. This indeedwas a generous gesture which the defendant has failed to apprec ate.
It was suggested that the notice (P2) terminating the tenancy wasinvalid in tha, three months' notice had not been given. In the case oftenants whose monthly rental docs not exceed one hundred rupees,three months’ notice is not required. The period of three months’ noticewould bo applicable only to tenants whose monthly rental exceeds onehundred rupees. The learned Commissioner of Requests ha3 correctlyanswered this issue in favour of the plaintiff.
In response to the notice (P2J, the defendant on 1G.6.6G, i.e., fourteendays prior to the terminal date of the tenancy, by letter P4 -ent to theplaintiff rupees seventy-two “ being rent for twelve months It issignificant that this payment by the defendant by way of rent, strikesat the root of counsel’s contention that since the dismissal of the plaintiff’searlier action, he is not bound to make any payment due up to 11.1.66which is the date of the judgment in that action.
Issue (2) raised by the defendant reads :—
“Does the decree in C. R. Kandy Case No. IS6S9 operate as re;
judicata and estop the plaintiff from claiming any arrears of rent
up to 11.1.6G ’’.
I am at a loss to understand why this issue was permitted. It does notarise for the obvious reason that the plaintiff made no claim to this pay-ment ; for the defendant at time of action brought, had paid all rentsup to the end of April, 19GG. On 29.7.G6 the defendant remitted a furtheramount of twenty-four rujoecs being “four months’ rent from 1st January,19GG to 30th April, 19GG ” (vide P5). On 22.9.GG the plaintiff institutedthe present action against the defendant on the ground of arrears ofrent, giving credit to the payments totalling rupees nincty'-six.
The position at the time of the institution of this action on 22.9.G6was that the defendant Mas still 4 nmnths in arrears of rent, and sincethe last payment of Rs. 24 on 29.7.G6. the defendant in fact has madeno Anther payment. In the course of his evidence at the trial, thedefendant stated “ I have not paid any money after I paid the sum ofRs. 24. I have not paid as the plaintiff hasnotpaid me my costs due tome in the earlier case. There is no other reason for my not paying rentsafter that ”.
Learned Counsel endeavoured to base an argument on this statementof the defendant. His argument M as that the costs duo to the defendantin the earlier case should be considered as a set-off against the rent duo.This argument cannot be entertained ; firstly for the reason that thiswas not the position taken up in the defendant’s ansMcr and no suchissue Mas raised ; secondly, the defendant has not had his costs taxed.
“ I do not knoM- the amount of costs due to me ” said the defendant.
PANDIT A -G l’ X A V. J<DKX JO. .1.—Snuuir-ihoon v. thma-lasaOil
There can be. no set-oil’ fur legal costs where tli<“ bill lias not been taxed'(Aril Ktjosi v. Ktjosi Aaron J/oshetteamlothers. South African Late Reports'
T.P. D. Jii'21, jjarje 624).
It is abundantly clear on tlx- evidence in this ease that at the timeof the plaintiff’s notice terminating (lie tenancy, namely. 27.5.GO, thedefendant was in arrears of rent for a. period well ovc-r three, months.He had violated the obligation imposed on him under Section I2A 1 (a)of the Rent Act and therefore forfeited the protection afforded himagainst eviction. Any payment thereafter cannot avail the defendant.For said Basnayahe. J. in FernandoSamaraireera1 .
The consequences of the failure to observe the obligations imposedIjy the statute cannot be avoided by doing late what should have beendone in time.
This dictum was quoted with approval in Dias0‘antes-., by Pulle, J.
who made his own contribution in these words :—
" 1 cannot assent to the proposition that- any disability to maintainan action for rent by reason of a valid tender before action hasnecessarily the effect of restoring the tenant to the status ofirremovability—which is the protection afforded by the Act—if infact he lost, that protection the moment lie was in arrears of rentbeyond one month after it became due.”
Speaking for myself, I am respectfully in complete agreement withtho views expressed by Basnayakc, C.J., and Pulle, -J., and there isnothing I can usefully add. except to say that as (he law is at present,where a tenant of rent controlled premises, the monthly rent of whichdoes not exceed Rs. JUO, has been in arrears of rent for three months ormore after it lias become due., upon notice of termination of his tenancyby the landIon!, he cannot save himself from eviction by payment ofarrears either
before the expiry date of the. termination of the tenancy, or
before the date of institution of the action.
In tlie context of this ease, the question of “late” payment doesnot arise- for the reason that on the tormina] date of the. notice terminatingthe contractual tenancy, there were arrears of six months’ rental ;and on the date of institution of the action, there were arrears of fourmonths’ rent not remitted. The defendant can only rescue himselfby seeking the indulgence of Court as provided for in Section I2A (2)of tlie Act, namely, satisfying the Court that, he has been in arrearson account of illness or unemployment or other sufficient cause”. Thecircumstances of this case cannot permit the defendant, to seek thisindulgence. He had not sought it in the Trial Court and lie cannotseek it in Appeal. In fact the defendant's conduct, ns is evident fromthe proceedings, militates against my showing, even were it possiblenow, a compliant concern towards him.
* (1951) 52 .V. L. N. 27S at 2S3.
2 (19-54) 55 -Y. L. It. 337 at 242.
70
PAXJDITA-GUN'AWARDEXE, J.—Samarakoon v. Gunadasa
111 reality there is nothing more I need sa3- to dispose of this appeal.But in view of the fact that in the course of the argument learnedCounsel for the defendant endeavoured to seek in aid the judgment ofSamcrawjekramc, J. in V. .1. Mohamed v. 31. L. A. ]Vahab 1 it hasbecome necessary for me to make reference to it; the more so for thereason that learned Queen’s Counsel for the plaintiff made a strongsubmission that it has been wrongly decided. It was emphasizedthat the judgment “ cut across the view ” expressed in the DivisionalBench case of Dins v. Gomes.2
In the case of Mohamed v. Wuluib (supra) the payment of the arrears ofrent, unlike, in this ease, had been made before the action was filed-That judgment would therefore have no application to the facts of thiscase. However, in view of the criticism directed: at that judgmentand moreover, because of the firm opinion I have expressed that in aease to which Section 12A (1) (a) of the Bent Rest riction Act is applicable,no subsequent tender of payment can protect the tenant, unless he caninvoke the provisions of Section 12A (2) of the Act, I feel compelled,albeit with some reluctance, to consider it.
In the coarse of his judgment in Mohamed- v. U'ahab (supra)Samerawickrame, J. in referring to the Divisional Bench case said
The Court held that once a tenant has been in arrears of rent forone month after it- has become due, he forfeits the protection givento him by the Act against being rejected and that he cannot regainthe protection by the mere act of tendering the arrears before theinstitution of action. The provision which was considered by theDivisional Court sets out the circumstances where authorizationof the board was not necessary. It also provides that in thosecircumstances, no application for authorization may be entertainedby the board. It would thus appear that the circumstances wereconsidered to be such as have arisen at the stage of an applicationto the board made prior to the filing of an action. There was, therefore,if I may say so with respect, good ground'for the Divisional Courtto hold that the provision contemplated rent being in arrear at atime prior to the institution of the action.’' I
I would with respect say that in the case of arrears 'of rent-,authorization of the. Board is not necessary and no application forauthorization can be entertained by the Board. The Board has nothingwhatever to do in such a case. The Divisional Court iu Dins v. Gomes(supra) in clear and unambiguous terms, laid it clown that once a tenanthas been in'arrear of rent for one month after it has become clue, lieforfeits the protection given to him by the Act against being ejected, lfecannot regain the protection by the* mere act of tendering the arrearbefore the institution of the action.
PA X D11 A-G UX A \ A1 i I >]*. X J£. tJ.—,s'titt,tir<ikoon t*. toindasri71
Beferring to Section 12A (1) (a). Samerawickranio. -J. further statedin Mnhn med r. Wahnb1 :■—
J think'; this provi.-ion indicates the- nature of an action broughtunder Section 12A (1) (a), namely, that it is brought on the. groundthat rent has been in arrear for three months or more. One wouldnormally expect a ground of an action to subsist at tlm date of itsinstitution. The words " has been may be used to denote a fact,continuing to subsist, up to the occurrence of a certain event or theperformance of some, act—vide Kx par.'s Kiunimj. ft appears to me.therefore, that in Section 12A (i) (a). the requirement that rent- hasbeen in arrear for three months or more after it has become, due. isnot satisfied unless rent is in arrear up to ami at the date ofthe inst itution of the action."
The ease of V. M. Abdul Sumc.d v. 11. D. Sirinayake,2 has beenmentioned in support of this proposition. There Aih-s. J. said :—
" For the plaintiff to succeed in appeal’, lie must satisfy the Courtin this ease, that the defendant was in arrears of rent for three monthsat the time of the institution of the action.”
No reason has been given for this view and A lies. -J. docs not appearto have considered the line of decisions, namely, Fernando v.Samaraweera, 3 Suyamhidiagain Cheltiar v. Pcchchi dluttu Che-liar, 4Dias v. Gomes (supra), Samaraiceera v. Banasinjhc 3, which arc :n directconflict with the view lie formed. Apparently these decisions werenot cited to him.
Sam era wiclcrame, J. whilst interpreting the words ” has been” in.the phrase ” Ha s been in arrear for three months or more ” to denote afact continuing to subsist up to the ‘occurrence of a certain event., hasimplied that the. event up to the occurrence of which the state of arrearsmust subsist, is the institution of the action. I should think that theevent hero must he taken to he the accrual of the landlord’s right toinstitute action and not the date of the. institution of the action. Hadthe legislature meant otherwise, it would have, I expect, expresseditself in appropriate terms.
One may also look at the matter from another angle. If the claimof the landlord is merely a claim for the recovery of arrears of rent,i.e., a money claim, it may be said that if prior to action filed the arrearsare paid, tlie cause of action does not subsist. But where the landlordclaims recovery of property based on the ground of arrears of rent theposition is, indeed, different.
1 (1969) 72 -V. L. It. 333 at 330.3 {1931) 32 .V. L. Tt. 278.
3 {1967) 70 A". L. It. 47 al JS.1 (1931) S3 X. h. It. 382.
5 (1938) 39 -V- L. It. 393.

72
PAI'.'DITA-GUNAW'ARDEXE, J.—Samarakoon v. Gunadasa
Much as I respect the opinions of Samerawickrame, j., I find myselfunable to agree with him when lie also says, ibid at page 335 1 :—
“ It appears to me unlikely that the legislature intended thattenants of premises whose standard rent is below Rs. 100, should beliable to be ejected by reason of arrears of rent, even though therehad been a tender of rent before the actual institution of the action.It is not probable that the legislature intended that tenants of suchpremises should be placed in a worse position in this regard than thetenants of premises whose standard rent is in excess of Rs. 100.Nor is it probable that the legislature intended to place tenants ofsuch premises in a position of so much greater disadvantage comparedto that which they enjoyed under the law before it was amended byAct 12 of 1966. It is also relevant that the provision in sub-scction(2) which empowers the Court to permit a tenant to pay into Courtthe arrears of rent and in such a case, not to issue a writ of ejectmentis some indication that tho legislature contemplated arrears duo atthe date of institution of action.”
The language of the Rent Restriction (Amendment) Act 12 of 1966is clear and there is no room for thinking that the legislature “ slippedup ”, if I may be permitted to use such an expression, in inadvertentlyomitting what should have been there included.
“It isJnot the function of any Judge to dll in what he conceivesto be the gaps in an Act of Parliament/ If ho docs so, he is usurpingthe function of the legislature ” observed Lord Morton of Henrytonin the ease of Mayor and Si. Meltons Burnt District Council v. NewportCorporation. 2 ”
I would, accordingly, affirm tho judgment of the Commissioner ofRequests and dismiss tho appeal. The plaintiff is entitled to his costsin appeal as well as costs in tho lower Court.
Appeal dismissed.
{1069) 72 A*, h. 11. 333 at 333.
'■ {1951) 2 A. E. II. S39 at S47.