Kerala High Court · 2012

“CR” PIUS C. KURIAKOSE & K. HARILAL, JJ. ....................................................... R.C.R.NO.14 OF 2011 ......................................................... Dated this the 29th day of June, 2012. O R D E R Harilal, J. This is the third revision stemmed from R.C.P 19/1998of the Rent Control Court Vadakara, which was filed twoand a half decades ago, seeking eviction under 11 (3) of theKerala Building lease and Rent Control Act. Despite thelong lapse of time, the parties have won and lost alternativelyat different stages in the hierarchy of appellate courts andwent up to the Apex Court twice, the original petition is stillawaiting for its finality.2. The revision petitioner has sought evictioncontending inter alia that her elder son Anoop Krishnanaged 25 years is not having any avocation and that thetenanted premises is bona fide required for him to eke outhis livelihood. Initially, the original tenant has resisted therent control petition contending inter alia that he isentitled to get the right of fixity of tenure under the KeralaLand Reform Act, 1963. The Rent Control Court foundthat the tenant has the right of fixity of tenure and he is nota tenant falling under the Kerala Buildings (Lease and RentControl) Act. The landlord has preferred Rent Control AppealNo.38/1993. The appellate court modified the order holding R.C.R.NO.14 OF 2011 : 2 :that the petitioner can move the civil court for appropriatereliefs. 3. The tenants preferred first revisionC.R.P.No.114/1997 before this Court. In that revision theorder passed by the rent control court and the appellateauthority were set aside and the Rent Control Petition wasremanded back for fresh disposal. Thereafter the RentControl Court considered the right of fixity of tenurealone and found that denial of title raised by the tenants isnot bona fide. Against the said order, the tenants filedappeal as R.C.A.No.184/2004; but the appeal was dismissedby the appellate authority confirming the findings of theRent Control Court. The tenants preferred second revisionR.C.R.No.409/2005 before this Court. This Court confirmedthe concurrent findings of the courts below that the denialof title on the claim of permanent tenancy is not bonafide,dismissed the revision and the case was remitted back tothe Rent Control Court for considering the issue whetherthe petitioner is entitled to get eviction under Section 11(3)of the Building Lease and Rent Control Act. Though thetenants preferred SLP(C)No.27616/2009 before the SupremeCourt, that was also dismissed. Thus, the preliminary issuechallenging the maintainability of the Rent Control Petitionbefore the Rent Control Court has attained finality. Thenthe parties went for trial on the merit of the ground underSection 11(3). PW1 was examined and Exts.A1 to A17 weremarked for the petitioner. RW1 was examined and Exts. B1to B72 were marked for the respondents. Exts.C1 to C5 R.C.R.NO.14 OF 2011 : 3 :were marked as court exhibits. After the trial, the learnedRent Controller allowed the petition finding that the need isbona fide. The respondents preferred R.C.A.No.8/2010challenging the order of eviction. The appellate authoritythough concurred with the findings bonafide need, reversedthe findings under both limbs of the second proviso toSection 11 (3) and allowed the appeal on the finding thatthe tenants are entitled to get protection under secondproviso to Section 11(3) of the Act. This revision is filed by thelandlord challenging the impugned judgment passed by theappellate court. 4. Submissions at the Bar: Sri. P.B. Krishnan, the learned counsel for thepetitioner submits that there is no pleading claimingprotection under the second proviso to Section 11(3) of theAct in the counter statement. But the appellate authorityconsidered the issue of protection under the second provisoand allowed the appeal erroneously without pleadings.The finding that respondent No.4 is entitled to protectionunder second proviso is erroneous in law as the tenancyhas devolved upon all the legal heirs on the death of theoriginal tenant and the same is admitted in additionalcounter. The relevant date for judging the entitlement ofprotection is the date of rent control petition and not anysubsequent date in view of the decision reported inPadmanabhan Nair v. Devaki Brhamani Amma (2009(1)KLT 485). The income tax returns from the year 2000 R.C.R.NO.14 OF 2011 : 4 :onwards filed by the 4th respondent before the authoritiesare not relevant documents to determine the sources oflivelihood. The income as per the said documents is muchless than her total expenses and these documents give riseto a reasonable inference that tenants are not dependingupon the income which they derive from the business in thepetition schedule property for their livelihood. No enquiryon availability of vacant rooms was made in the locality.Similarly no enquiry was made in between 1987 and 2004.5. Per contra, Sri.B. Krishnan, the learned counsel forthe respondents vehemently argued that the tenants areentitled to challenge the correctness of the earlier findingsin RCR.No.409/2005 on the question of denial of title setupon permanent tenancy, again in this revision, in view of thedecisions reported in Mangal Prasad Tamoli v.Narvadeshwar Mishra (2005 (3) SCC 422) and M. SyedAlavi v. State of Kerala (1981 KLT 548 (F.B). According tothe learned counsel, the order passed in R.C.R.No.409/2005is an interlocutory order remanding the case to the trialcourt as in the decision cited above. Therefore thecorrectness of that order regarding Ext.B2 can be challengedagain in this revision as this is a revision challenging thefinal order. The learned counsel submitted that in thiscontext the decisions cited above are squarely applicableto the present case. Further he submitted that whatever bethe scope of the order in R.C.R.No.409/2005, it isinterlocutory in nature and as such the tenant has theright to again challenge the correctness of the earlier order R.C.R.NO.14 OF 2011 : 5 :as the findings regarding Ext.B2 is only a mistake. Thefindings of the appellate authority under the second provisoto Section 11(3) are correct and sustainable in all points ofview. Income tax returns sufficiently proved that the 4threspondent is depending on the income from the businessin the petition schedule building for her livelihood and thepoint of time to determine issue is not always the date ofpetition. Thus the counsel urged for dismissal of therevision petition. 6. Point No.1:We have given our anxious consideration to thearguments advanced by both counsel, particularly to thesubmissions of Mr. B. Krishnan asserting his right tochallenge the correctness of the order passed earlier bythis Court in C.R.P.No.409/2005 regarding Ext.B2. In view ofthe rival submissions, the first point to be considered iswhether the respondent tenant is entitled to challenge thecorrectness of the earlier interlocutory order of this Courtpassed in C.R.P.No.409/2005, confirming the rejection ofthe plea denying the title of the landlord, set up on the claimof permanent tenancy. Broadly, can the correctness of aninterlocutory order which was passed in revision bechallenged in revision from final order. 7. We have meticulously examined the decisions citedabove and its applicability to the present case. Both thedecisions - Mangal Prasad Tamoli v. NarvadeshwarMishra (2005(3) SCC 422) and M. Syed Alavi v. State ofKerala (1981 KLT 548(F.B) placed reliance on the decision in R.C.R.NO.14 OF 2011 : 6 :Satyadhyan Ghosal v. Smt. Deorajin Debi (AIR 1960 SC941). A short reference to the facts of the case inSatyadhyan's case is necessary for the proper appreciationof the proposition laid down in the decision. 8. There, the appellant before the Supreme Court waslandlord who had obtained a decree for ejectment oftenants. After the passing of the decree, Calcutta ThikaTenancy Act, 1949 came to statute book. Then the tenantsfiled application to rescind the decree made against themalleging that they are Thika tenants entitled to getprotection under Section 28 of the said new enactment.The learned Munsiff dismissed the application holding thatthey are not tenants under the said Act. The tenantspreferred a revision under Section 115 of the C.P.C beforeCalcutta High Court. During the pendency of the revision,Calcutta Thika Tenancy Act (amendment) 1953 came intoforce. This amendment omitted Section 28 of the OriginalAct. But, on a wrong interpretation of Section 1(2) of theCulcutta Thika Tenancy Act (amendment) the High Court setaside the order of the Munsiff court on the finding thatSection 28 is applicable and remanded back the case forfresh disposal. Thereafter the learned Munsiff allowed thepetition of the tenant and rescinded the decree which stoodin favour of the landlord. Though, the landlord preferredrevision under Section 115 of the C.P.C, the High Courtdismissed the same on the finding of res judicata. Againstthat order, the landlord preferred an appeal and in theappeal, the Supreme Court found that Section 28 is not R.C.R.NO.14 OF 2011 : 7 :applicable to the tenants and the High Court earlier wronglyset aside the order passed by the Munsiff Court andremanded the case for fresh consideration. The SupremeCourt rejected the argument of the tenant that the earlierremand order was not challenged and thereby the landlordwas precluded from challenging that order again in appealagainst the final order. In the above factual and legalmatrix the Supreme Court held as follows: “In our opinion the order of remand wasan interlocutory order which did notterminate the proceedings and so thecorrectness thereof can be challenged in anappeal from the final order. We holdtherefore that the appellant is not precludedfrom raising before us the question thatSection 28 of the original Thika Tenancy Actwas not available to the tenants after theThika Tenancy (Amendment) Act came intoforce”. 9. The moot point that falls for consideration of thisCourt in the light of the above decision is whether theproposition laid down in the above decision is applicable tothe case on hand. We have examined the facts of the instantcase in view of the case law cited above. Firstly, though theimpugned order seems passed before the final order and inthat context and sense it can be said to be an interlocutoryorder, in effect it is not an interlocutory order, because it hasterminated the entire proceedings on an issue and thatattained finality, particularly when the Special Leave PetitionNo.27616/2009 was dismissed by the Supreme Court. Thoughcalled interlocutory and in form the later proceedings in R.C.R.NO.14 OF 2011 : 8 :which the same question sought to be raised again is acontinuation of the earlier proceedings, it is in substance anindependent subsequent proceedings. It has the force of adecree or final order and must be distinguished from otherinterlocutory orders which lead to a final order. Subsequentproceedings to decide the remaining issue under Section 11(3) is an independent proceeding in the same Rent ControlPetition unconnected with the earlier issue which wassettled finally. The view, that we are taking now regardingthe nature, force and effect of interlocutory orders issupported by the decision in Hook v. AdministratorGeneral of Bengal (AIR 1921 PC II), wherein the SupremeCourt held as follows:“Interlocutory orders which have the forceof a decree must be distinguished from otherinterlocutory orders which are a step towardsthe decision of the dispute between parties byway of a decree or a final order. MoheshureSingh's case, Forbes' case and Sheonath's casedealt with interlocutory judgments which did notterminate the proceedings and led up to a decreeor final order. Ram Kirpal Shukul's case, BaniRam's case and Hook's case deal with judgmentswhich though called interlocutory, had, in effect,terminated the previous proceedings.”10. Secondly, as rightly pointed out by Mr. P.B.Krishnan the order passed in C.R.P.No.409/2005 is not anorder remanding the case for fresh consideration aftersetting aside the order passed by the court below as seen inthe decision cited. It is an order remitting back the case toRent Control Court to consider the remaining issues under R.C.R.NO.14 OF 2011 : 9 :Section 11(3) which was not taken up for trial so far,though the petition was pending since the last 25 years.Therefore we find that the order passed in C.R.P.No.409/2005is not an interlocutory order remanding the case for freshconsideration as in the decisions cited above. It is an orderwhich attained finality and determined the bona fides of thedenial of title and maintainability of the Rent Control Petitionin the Rent Control Court. Therefore any attempt toexamine the correctness of that order would be hit by theprinciples of res judicata and lack of jurisdiction. Thirdly inthe decisions relied on by the counsel for the tenants, thecorrectness of an interlocutory order which was notchallenged earlier was challenged in appeal against thefinal order, when the earlier order did not terminate theprevious proceedings finally and led to final order.Fourthly, in the instant case, rightly the courts below havenot again gone into this question as the same has beenconcluded earlier by the order passed inR.C.P.No.409/2005. So, there is no illegality, irregularity orimpropriety in the orders passed by the courts below on thispoint. We are not persuaded to examine the correctnessof the earlier order which has attained finality as we have nojurisdiction to do. Therefore, we reject the argumentsadvanced by the learned counsel for the respondents on thispoint. Point No.2:11. The next point to be considered is whether theneed alleged is bona fide. The courts below have R.C.R.NO.14 OF 2011 : 10 :concurrently found that the need alleged in the petition isbona fide. Against the said finding no serious argumentswere addressed before us challenging the said finding.Thus, that point has attained finality. Point No.3: 12. The next point to be considered is whether theneed alleged is hit by the first proviso to Section 11(3). Ithas come in evidence that there are two other rooms inthe ownership and possession of the petitioner in the samebuilding. But, it has also come out in evidence that thoserooms have already been occupied by the petitioner andhis another son for conducting sadhoo beedy agency andAdvocate’s office respectively. There is no evidence that thelandlord is in possession of other rooms. Hence, it is foundthat the petition is not liable to be rejected by virtue of thefirst proviso to Section 11(3). Point No.4: 13. The next point to be considered is whether thetenant is entitled to get protection under the second provisoto Section 11(3) of the Act. Before proceeding on this point,we have to consider another point vehemently argued bythe counsel for the landlord. The learned counsel for thelandlord submitted that there is no pleading explicitlyclaiming benefit under the second proviso to Section 11 (3)of the Act in the counter statement filed by the tenants.Though the appellate authority has found that there is nopleading claiming benefit of the second proviso to Section11(3) in the counter statement, the appellate authority has R.C.R.NO.14 OF 2011 : 11 :wrongly gone into that question and found in favour of thetenant. The learned counsel for the petitioner placedreliance on the decision in Chandran v. Sunil Kumar (2004(3) KLT 420). Per contra, the counsel for the tenant placedreliance on the decision in Shaji Varghese v. Cherian(1993(3) KLT 133). 14. Here, the point to be considered is whether theappellate authority has erred in considering the protectionunder the second proviso to Section 11(3) in the absence ofspecific pleadings explicitly made in the counter filed by thetenants. In view of the rival submissions and the decisionscited by the counsel, we have examined the counter. We findthat there is no positive pleading explicitly claiming theprotection under second proviso. In para-3 of the petition,the landlord has stated that “tenant is getting income fromother sources such as landed properties and other business,and that there are other vacant rooms available in thelocality near the petition schedule building to shift thebusiness of the tenant”. This contention in the petition isdenied by the original tenant in para-17 of the counterstatement contending that “contentions in para-3 of the RentControl Petition is not correct and without any basis”.What else is required in his pleadings? Is the absence ofpositive averments claiming protection fatal to the tenants? 15. Let us consider the nature of the statutory mandateunder second proviso to Section 11(3) of the Act. Theprotection under the second proviso to Section 11(3) is astatutory protection and it is a bar on the rent control R.C.R.NO.14 OF 2011 : 12 :court from giving any direction to the tenant to put thelandlord in possession, if the tenant is depending for hislivelihood mainly on the trade or business carried on insuch building and there is no other suitable buildingsavailable in the locality for such person to carry on suchtrade or business. Thus the second proviso precludes theRent Controller from passing an order of eviction, if thesetwo conditions are found in favour of the tenant. In short,a statutory duty is cast on the Rent Controller to look intothese aspects and arrive on a definite finding, beforepassing an order of eviction, notwithstanding the fact thatthere is no specific positive averments from the part of thetenant claiming protection under the second proviso. Sothe denial of the positive averments of the landlord underthe second proviso to Section 11(3) in the counter statementis sufficient as it is a negative fact, as far as the tenant isconcerned. Since the second proviso provides for a statutoryrequirement casting duty on the court, strict adherence torules of pleadings is not warranted. 16. Going by the decision in Chandran v. Sunil Kumar(2004(3) KLT 420), it could be seen that the above decisionwas held in a different context pertaining to subsequentevents affecting bona fide need occurred after the filing ofthe petition. That was a case wherein the rent controlcourt and the appellate authority placed reliance on fewanswers brought out in cross examination of the landlord’sson (deponent) without pleadings to hold that landlord’s sonwent abroad and there is no bona fides in the plea. Thus R.C.R.NO.14 OF 2011 : 13 :we find that Chandran v. Sunil Kumar (cited supra) is notapplicable to the present case as it is rendered in a differentcontext under different sections, particularly in thebackdrop of subsequent events having fundamental impacton the 'bona fde need'. On the other hand, the decisionreported in Shaji Varghese v. Cherian (cited supra) isaptly applicable to the facts of the present case as theoverwhelming evidence shows that parties have gone totrial with full knowledge about the protection under secondproviso to Section 11(3) of the Act and no prejudice wascaused to the landlord in the absence of explicit positivepleadings. Lack of positive averments explicitly claimingprotection under the second proviso to Section 11(3) andnegativing pleadings averred by the landlord in the contextof that proviso in the counter statement are not fatal anddenial of the tenant in the counter statement is sufficient asthere is a statutory bar against granting of eviction, unlessthe requirements under the second proviso is found infavour of the tenant. At the same time, we reiterate thattwo limbs of Section 11(3) are conjunctive and notdisjunctive and the burden of proving by adducing evidenceto get the protection under the second proviso is on thetenant as has been settled in the decisions reported inThanuja Sunderdas v. Sisirkumar Raj (2008(4) KLT 241(F.B) and Eanu Haji v. Mustafa (2004(2) KLT 668) . 17. Point No.5:Coming to the next question whether the tenant isentitled to get protection under the first limb of the second R.C.R.NO.14 OF 2011 : 14 :proviso to Section 11(3) of the Act. On an analysis of theevidence let in by both the parties, it is quite evident thatparties have gone for trial with full knowledge aboutprotection under the second proviso to Section 11(3) of thetenant. Have the tenants discharged their burden of proof?The 4th respondent was examined as RW1 to prove theaverment that his main income is the income derived fromthe hotel and lodging business in the petition schedulebuilding and he had no other source of income. To provethis fact, he has produced Exts.B65 to B72, the income taxreturns for the years from 2000 -2001 to 2007-08. Thesereturns were filed by RW1, one of the legal representativesof the original tenant, as proprietress of the hotel andlodging. In this context, it is pertinent to note that there isno pleadings to the effect that tenancy right was givenexclusively to the 4th respondent (RW1) by the originaltenant. RW1 has categorically deposed that it is as per theWill of her father (original tenant) she got absolute rightand possession over the building. But no evidence wasforthcoming in the trial to prove her claim, particularly whenthe right of tenancy devolved upon all legal heirs by thedeath of the original tenant and sufficient impleadments andamendments were made in the Rent Control Petition to thateffect. Sri. P.B. Krishnan argued that as there is no case thatrespondent No.4 alone was the tenant, the legalrepresentatives as a body must establish their entitlementto the protection. The finding that respondent No.4 isentitled to protection under the second proviso is solely R.C.R.NO.14 OF 2011 : 15 :insufficient as the tenancy has devolved upon all the legalrepresentatives. We see substantial force in the saidargument advanced by the counsel. 18. The tenancy right is inheritable. Therefore theinheritable interest of the tenant would devolve upon allthe heirs of the tenant on his death and all the legal heirsof such tenant would in law step into his position. Thereforeenquiry under the second proviso confining to one of the legalheirs alone and finding that she is entitled to protectionunder second proviso is insufficient and not correct as thetenancy devolved upon all legal heirs of the original tenant.19. The learned counsel for the tenants per contrasubmitted on this point that the original tenant died leavinghis Will and testament in favour of the 4th respondent. But,no such Will was produced and proved in accordance withthe statutory requirement under Section 63 of the IndianSuccession Act and Section 68 of the Indian Evidence Act.Even if there is a Will, the question that arises forconsideration is whether the legatee under a testimentorydisposition would fall within the expression of 'tenant'?'Tenant' means any person by whom or on whose accountrent is payable for a building and includes; (i) the heir or heirs of a deceased tenant and (ii) a person continuing in possession after thetermination of the tenancy in his favour.20. The above question was settled by the decisionreported in Karthiayani v. Anandan (2004 (2) KLT 575). Inthis decision this Court held that if a legatee is also R.C.R.NO.14 OF 2011 : 16 :brought into the meaning of 'heir' under Section 2(6)(i) ofthe Act, the consequences will be disastrous. If the word 'heir'is interpreted to include a legatee, even a stranger mayhave to be inducted as a tenant and there is no embargoupon a stranger to become a legatee. If the legislaturewanted to bring in testamentary heir also, the same wouldhave been brought within the definition 'clause'. Thereforeeven if the legatee is one of the natural legal heirs, he alonecannot claim exclusive tenancy so as to disinherit all otherlegal heirs. Since the Kerala Buildings (Lease & RentControl) Act used only expression 'heir', the word heir hasto be tested in accordance with personal law of thetenant. Therefore the alleged Will, even if it is true, willnot confer exclusive tenancy upon the 4th respondentalone and therefore the finding granting protection underthe second proviso to Section 3 to one of the legal heirsalone is legally unsustainable. 21. According to Exts.B65 to B70, taxable incomefrom 2000-01 to 2007-08 is Rs.67,763/-, Rs.74,200/-,Rs.81,769/-, Rs.80,770/-, Rs.67,265/ and Rs.88,539/-respectively. These are self serving documents pertainingto the period starting from twelve years after the filing ofthe rent control petition. So we are not inclined to takethese documents as relevant documents evidencing theonly sources of income of either RW1 or respondent Nos. 2to 4 as the same do not relate to relevant period. 22. Even if Exts.B65 to B72 are taken as documentsevidencing the sources of income, RW1 has given evidence in R.C.R.NO.14 OF 2011 : 17 :her deposition that total expense for each year is much morethan the income shown in each return and it would comeup to Rs.2,90,000/- including Rs.1,64,000/- as educationalexpenses of her children per year. RW1 deposed that hertwo children are studying for Engineering and for that sherequires Rs.1,64,000/- per year for their educationalexpenses. RW1 was cross examined touching the veracityand credibility of the income shown in Exts.B65 to B72.The materials elicited from RW1 is sufficient to disprove theincome shown in these documents and it falsifies Exts.B65to B72, the returns filed by RW1. As rightly found by theRent Controller, necessarily the 4th respondent must havesome other sources of income. Even if the income taxauthorities have accepted these documents as correctincome during the said period, we are not inclined to acceptit as correct income of RW1 in view of the contraryevidence elicited in examination. We reject thesedocuments as unbelievable, irrelevant and devoid of truth inview of contrary evidence. Point No.6:23. The next point to be considered is whether thetenants are entitled to get protection under the second limbof the second proviso to Section 11(3) of the Act. The learnedcounsel for the landlord placed reliance on the decisionreported in Padmanabhan Nair v. Devaki BrahamaniAmma (2009(1) KLT 485) and argued that relevant date forjudging the entitlement to the protection under secondlimb of the 2nd proviso is the date of the rent control R.C.R.NO.14 OF 2011 : 18 :petition and not any subsequent date. The counsel for thetenants per contra argued that subsequent events should betaken stock of and plea that the point of time should be thedate of petition, should not be a universal and invariablerule. We find that the relevant date of determination issettled by the Division Bench of this Court in the decisionreported in Kochappan v. Chellappan (1976 KLT 1). Inthe above decision, the Division Bench of this Courtexpressly overruled the judgment in Ikkorakutty v.Hariharan (1973 KLT 986) and held that the burden ofproof in the context of the second proviso to Section 11(3)is that of the tenants and the relevant point of time fordetermining the availability of alternate buildings to thetenants is the time of institution of the rent controlpetition. This decision is seen followed in the decisionreported in Padmanabhan Nair v. Devaki BrahmaniAmma (2009 (1) KLT 485. We also notice of the decisionreported in Prasannan v. Haris (2005 (2) KLT 365) whereina Division Bench of this Court held that subsequent eventshaving fundamental impact over the need alleged can alsobe taken into consideration. But the parties have no suchcase of subsequent events having 'fundamental impact' on theavailability of alternate buildings after the institution of therent control petition and no amendment was made by theparties in their pleadings in this respect. So this decisionhas no application in the instant case and we are inclinedto follow the decision in Kochappan v. Chellappan (citedsupra) R.C.R.NO.14 OF 2011 : 19 :24. The next point to be considered is whether alternatesuitable buildings are available in the locality to shift thebusiness carrying on in the petition schedule property? 25. The petitioner claims that there are severalbuildings available in the locality and she had pointed outnames of certain buildings wherein vacant rooms areavailable. RW1 had pointed out 283 buildings in her chiefaffidavit but, according to her, none of these buildings areavailable, when her husband made enquiries. Let us examinethe credibility and reliability of the evidence adduced byboth parties on this aspect. Though 283 buildings arehighlighted and claimed that her husband had madeenquiries, when cross examined, she could not sayspecifically as to who are the owners and who are thetenants in those buildings, as rightly observed by thelearned Rent Controller. She deposed that all thesebuildings are located in the locality of the petition schedulebuilding. It has come out in evidence that enquiry was madein Ward Nos.20,29,30,33 of Vadakara Municipality, but thetenants have not made any enquiries regarding the availabilityof other suitable buildings in Ward No.21, the locality wherepetition schedule building is situating. Besides, no enquirywas made in the period between 1987 and 2004. Thus bytestification, enquiries with respect to 283 building claimedin chief affidavit have lost its basis and credibility. In thecross examination, when pointed out the availability ofvacant rooms in the first floor of a building having 1500 sq.feet plinth area, she deposed that she cannot afford such R.C.R.NO.14 OF 2011 : 20 :a building. The rent control petition was filed in the year1988 and evidence was given in 2009. It is unbelievablethat despite the long lapse of time in an area where 283buildings were pointed out, RW1 could not find out asuitable one in the locality to shift her business. On anevaluation of the evidence given by RW1 and documentaryevidence, we are not satisfied that no vacant suitablebuildings are available in the locality for shifting the hoteland lodge business, particularly in view of the long lapse oftime, after the filing of the rent control petition. Theappellate authority went wrong by finding that no vacantbuildings are available in the locality. We find that thetenants are not entitled to get protection under the secondlimb of the second proviso to Section 11(3) of the Act. Conclusion: 26. Considering the jurisdiction under Section 20 ofthe Kerala Buildings (Lease and Rent Control) Act, theprime question that arises for our decision in view of theabove discussion is whether there is any illegality,irregularity and impropriety in the impugned order underchallenge in this revision. For the foregoing reasonsdiscussed in detail, we find that the appellate authoritymiserably failed to consider the law and evidence availableon record in its correct perspective and thereby theimpugned judgment is vitiated by illegality and irregularity.27. In the result, we set aside the impugned judgmentpassed by the appellate authority, restore the order passedby the Rent Controller and thereby allow this revision. R.C.R.NO.14 OF 2011 : 21 :28. Though the counsel for the tenant prayed for oneyear's time for surrendering the petition schedule property,considering the long lapse of time i.e, two and a half decadesafter the filing of the petition for eviction, we are notinclined to grant so much of time. At the same time, we areof the view that time can be granted till 31st December,2012 to vacate the petition schedule building subject to thefollowing conditions:i. The respondents/tenants shall file an affidavit beforethe Rent Control Court, Vadakara within six weeks fromtoday stating that they will surrender the petition schedulebuilding to the appellant/landlord on or before 31st December,2012.ii. They will discharge arrears of rent , if any, accruedso far in respect of the building within one month of thedate of filing of the affidavit. The respondents/tenants shallpay occupation charge at the rate of Rs.1,500/- per monthfrom the date of this order till 31st December, 2012. Sd/- PIUS C. KURIAKOSE, JUDGE. Sd/- K.HARILAL,JUDGE. ClTrue copyP.S.To Judge