Ambrose J:

This was an appeal by the defendants from a judgment of the District Court giving the plaintiff possession of a certain house under s. 15(1)(h) of the Control of Rent Ordinance. This provision of the Ordinance empowers the Court to give judgment for possession "where the tenant ... has knowingly committed a breach of ... any provision of the Municipal Ordinance ... affecting the premises which exposes the landlord to any penalty, fine or forfeiture." The judgment was based on the finding that the defendant had committed a breach of s. 144(7) of the Municipal Ordinance which exposed the landlord to a fine by erecting a building at the rear of the house without obtaining approval of a plan and specification of the building.

It was submitted by Counsel for the appellants that the District Judge had failed to find whether the defendants had knowingly committed the breach.

Counsel for the respondent objected to this point being taken as it was not raised in the Court below. The appellants' answer to this objection was that in para. 8 of the defence they denied every averment in the statement of claim in these terms:

The Defendants claim the protection of the Control of Rent Ordinance.

Save as herein expressly admitted the Defendants deny each and every averment contained in the Statement of Claim as if the same were set out seriatim and specifically traversed.

It was decided by the Court of Appeal in England in the case of John Lancaster Radiators, Ltd v. General Motor Radiator Co. Ltd [1946] 2 All ER 685 that a traverse in the form adopted in para. 8 of the defence is a sufficient compliance with the rule that each allegation of fact, the truth of which is not admitted, must be specifically dealt with. In para. 3 of the statement of claim it was alleged that the defendants "knowingly erected an unlawful structure in contravention of s. 144(7) of the Municipal Ordinance and thereby exposed the plaintiff to a penalty under s. 144(10) of the said Ordinance." I ruled that the effect of para. 8 of the defence was to raise the point as to whether the defendants knowingly committed a breach of s. 144(7) of the Municipal Ordinance. If, however, I was wrong in so ruling, it was my opinion that the point could, nevertheless, be taken in this Court as it went to the jurisdiction of the District Court.

Counsel for the appellants cited the case of Sarah Cashin V. Goh Kah Seng , in support of his submission that, before the defendants could be deprived of the protection of the Control of Rent Ordinance, it must be proved that the defendants knew that they were committing a breach of the Municipal Ordinance at the time of their doing so. In that case Whitton J, said:

The main difficulties in the case arise in interpreting s. 15(1)(h) of the Control of Rent Ordinance. In this connection the first point is to determine the meaning and scope of the word 'knowingly'. It is noteworthy that this word did not appear in the corresponding s. - 14(1)(k) - of the earlier (1947) Control of Rent Ordinance. It seems safe to conclude, therefore, that when they added it the Legislature considered it desirable to give the tenant added protection by requiring proof of the existence of particular knowledge on his part before the section might operate against him ... the effect of adding the word 'knowingly' appears to be that before a tenant is deprived of this protection not only must he have committed a breach which exposes his landlord but also he must have known that he was committing a breach at the time of doing so.

The first answer submitted by Counsel for the respondent was that it was sufficient for the plaintiff to show that the defendants knew that the structure was being put up without approval of a plan and specification, and that it was not necessary to show that the defendants knew that what they were doing was a breach of the Municipal Ordinance. The cases cited by Counsel in support of his contention merely illustrated