an important rule in interpretation of statutes

1. PUKHRAJ AGARWAL
CASUS OMISSUS

2. INTRODUCTION
 Term casus omissus means “cases of omission”.
 Omission in a statute cannot be supplied by
construction.
 A matter which should have been provided but
actually has not been provided in a statute cannot
be supplied by the courts, as to do so will be
legislation and not construction.
Hansraj Gupta v. DMET Co. Ltd. AIR
1933 P.C. 63
 Court can interpret the law but cannot legislate.

3.  A casus omissus cannot be supplied by the court
by judicial interpretative process except in the
case of clear necessity and when reason for it is
found in the four corners of the statute itself.
 The language employed in the statute is the
determinative factor of the legislative intent. The
first and primary rule of the construction is that
the intention of the legislature must be found in
the words used by the legislature itself. The
question is not what may be supposed and has
been intended but what has been said. The court
only interprets the law and cannot legislate it.

4.  Francis J. Mc. Coffery observes that it is a rule of
statutory construction that Casus Omissus which
means that case omitted from the language of a
statute but within the general scope of the statute
and which appears to have been omitted due to
inadvertence or by overlook cannot be supplied
by the court.

5. Some cases
 S.P. Gupta v. President of India AIR 1982 SC 149
the Supreme Court held that when the language of
a statute is clear and unambiguous there is no room
for application of the doctrine of Casus Omissus or
of pressing into service external aid in such a case,
the words used by the statute speak for themselves
and it is not the function of the court to add words or
expression merely to suit what court thinks is the
supposed intention of the legislature.

6.  Raghunath Rai Bareja v. Punjab National Bank
(2007) 2 SCC 230
The Apex Court observed that even if there is
defect or omission in the words used by the
Legislature, the Court cannot correct or make up
the deficiencies especially when literal reading
thereof produces an intelligible result
Ramesh Mehta v. Sanwal Chand Siinghvi AIR 2004
SC 2258.
The Supreme Court observed that although court
cannot supply to casus omissus, it is equally clear
that it should not interpret a statute so as to
create a casus omissus when there is really
none.

7.  Hiradevi v. District Board, Shahjahanpur AIR 1952
SC 362
Section 71 and Section 90 of the U.P. District Board
Act, 1922 and the Amendment Act 1933 were in
question.
Section 71 provided that a Board may dismiss its
Secretary by special resolution, which was
amended in 1933. However, the corresponding
Section 90 in the old Act which provided for
dismissal of the Secretary pending enquiry was
not amended. Therefore, Section 71 was
amended but not Section 90.

8.  Justice Bhagwati in this case observed that, it
was unfortunate that when legislature came to
amend Section 71, it forgot to amend Section 90
in conformity with amendment of Section 71. But
this lacuna cannot be supplied by any liberal
construction. No doubt, it is the duty of court to try
and harmonize the various provisions of an Act
passed by the Legislature. But, it is certainly not
the duty of the court to stretch the word used by
Legislature to fill in gaps or omissions in the
provisions of an Act.

9.  Also refer to
B.N. Sinha v Union of India 1998 (79) FLR SC 747
And
Secretary, Shiorai Education Society, Wani v.
Presiding Officer, School Tribunal, Aurangabad.
2000 (2) Mh LJ 752 (Bom. HC)

10. When omitted words can be supplied
 When the lacuna in the language is of such a nature
that unless the omitted word is supplied the statute
cannot operate or the true intention of the legislature
could not be established, the courts have inserted the
missing word in the language of a statute to ensure
that law is not turned to nullity. Some of the examples
are:
Jacob Mathew v State of Punjab (2005) 6 SCC 1,
Section 304-A of the IPC was construed by the
Supreme Court and Casus Omissus was supplied. It
was held that the word “gross” has not been used in
Section 304-A, yet it is settled that in criminal law
negligence and recklessness to be so held must be of
such a high degree as to be “gross”. The Expression
“rash or negligent act” as occurring in Section 304-A
has to be read qualified by the word “gross”.

11. Important cases for Casus Omissus
and Harmonious Construction
 Basavantappa v. Gangadhar Narayana
Dharwadkar (1986) 4 SCC 273
 P.K. Unni v. Nirmala Industries AIR 1990 SC 933
 Dadi Jagannadam v. Jammulu Ramulu AIR 2001
SC 2699
These cases relate to construction of Rule 89 of
Order 21 of CPC after the Amendment of Article
127 of the Limitation Act, 1963.

12.  Rule 89 of Order 21 of CPC provides that if any
person claiming an interest in the property sold in
execution of a decree applies to have the execution
sale aside and deposits within 30 days from the date
of sale, 5% of the sale money for payment to the
purchaser and the amount payable to the decree
holder, ‘the court shall make an order setting aside
the sale.’
 The period of limitation for applying under Rule 89
was also 30 days which was enlarged to 60 days by
way of an amendment in the Limitation Act.
 The Parliament however failed to make
corresponding amendment in the Rule 89 to enlarge
the period.

13.  The two judge bench in Dharwadkar held that it is
implied that the period in both the cases is
enlarged to 60 days
 Which was not accepted in Nirma Industries Case
 Later in Ramulu’s case Nirma Case was
overruled and the Supreme Court held that the
court must try to harmonise the conflicting
provisions.

14.  When two statutes are complementary to each other.
One statute cannot be allowed to overrule the other.
Instead one statute should be interpreted in such a
way to compromise with the another statute. This is
called Harmonious construction of Statutes.