Casus Omissus

Though the rule of casus omissus i.e. “what has not been provided for in the statute cannot be supplied by the Courts” is a strict rule of interpretation there are certain well known exceptions thereto. The following opinion of Lord Denning in Seaford Court Estates Ltd. v. Asher, (1949) 2 All ER 155 may be taken note of:

The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were… He (The Judge) must set to work in the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give “force and life” to the intention of the legislature… A judge should ask himself the question, how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.”

In Magor & St. Mellons Rural District Council v. Newport Corporation, (1950) 2 All ER 1226 the Learned Judge restated the above principles in a somewhat different form to the following effect: “We sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.”

Though the above observations of Lord Denning had invited sharp criticism in his own country we find reference to the same and implicit approval thereof in the judicial quest to define the expression “industry” in Bangalore Water Supply & Sewerage Board v. A Rajappa, (1978) 2 SCC 213. Paragraphs 147 and 148 of the opinion of Chief Justice M.H. Beg in Bangalore Water Supply would clearly indicate the acceptance of the Court.

Also see, CBI, Bank Securities & Fraud Cell v. Ramesh Gelli, (Criminal Appeal Nos. 1077-1081 of 2013) decided on 23.02.2016.

Also see, Was the Death of the Casus Omissus Rule ‘Undignified’? (30 Statute Law Review 73).