(2012) 262 KLR 878

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR.JUSTICE K.HARILAL 

FRIDAY, THE 29TH DAY OF JUNE 2012/8TH ASHADHA 1934 

R.C.R.No. 14 of 2011 (E) 

------------------------- 

RCA.8/2010 of RENT CONTROLE APPELLATE AUTHORITY/ ADDITIONA DISTRICT JUDGE, VADAKARA RCP.19/1988 of RENT CONTROL COURT/ MUNSIFF, VATAKARA 

REVISION PETITIONER(S)/PETITIONER IN RCR: 

---------------------------------------- 

T.K.PADMAKSHI, D/O.KUNHIRAMAN, RESIDING AT MEETHALE KADAYATHOTTATHIL, VATAKARA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. 

BY ADVS.SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN 

RESPONDENT(S)IN RCR: 

-------------------- 

1. AMMALU AMMA, W/O.LATE KUNHIKELU NAMBIAR, EDAVATHUKANDIYIL HOUSE, KOTTAPPALLI AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT - 673 101. 

2. E.BALAKRISHNAN, S/O.LATE KUNHIKELU NAMBIAR, "KRISHNA", CHERUVATH THAZHA KUNIYIL, NEAR LIBRARY, VATAKARA, KOZHIKODE DISTRICT - 673 101. 

3. VASANTHA KUMARI, D/O.LATE KUNHIKELU NAMBIAR, EDAVATHUKANDIYIL HOUSE, KOTTAPPALLI AMSOM DESOM, VATAKARA TALUK KOZHIKODE DISTRICT - 673 101. 

BY ADV. SRI.B.KRISHNAN BY ADV. SRI.R.PARTHASARATHY 

THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 09.03.2012, THE COURT ON 29.06.2012 PASSED THE FOLLOWING: RKM 

"CR" 

PIUS C. KURIAKOSE & K. HARILAL, JJ. 

....................................................... 

R.C.R.NO.14 OF 2011 

......................................................... 

Dated this the 29th day of June, 2012. 

Head Note:-

Kerala Building lease and Rent Control Act, 1965 - Sections 11(3) Second Proviso - Tenancy right -  Inheritable - the inheritable interest of the tenant would devolve upon all the heirs of the tenant on his death and all the legal heirs of such tenant would in law step into his position.  

Kerala Building lease and Rent Control Act, 1965 - Section 2(6)(1) - Tenant - Meaning of - Whether the legatee under a testimentory disposition would fall within the expression of 'tenant'?  

Held:- 'Tenant' means any person by whom or on whose account rent is payable for a building and includes; (i) the heir or heirs of a deceased tenant and (ii) a person continuing in possession after the termination of the tenancy in his favour. The above question was settled by the decision reported in Karthiayani v. Anandan (2004 (2) KLT 575). In this decision this Court held that if a legatee is also brought into the meaning of 'heir' under Section 2(6)(i) of the Act, the consequences will be disastrous. If the word 'heir' is interpreted to include a legatee, even a stranger may have to be inducted as a tenant and there is no embargo upon a stranger to become a legatee. If the legislature wanted to bring in testamentary heir also, the same would have been brought within the definition 'clause'. Therefore even if the legatee is one of the natural legal heirs, he alone cannot claim exclusive tenancy so as to disinherit all other legal heirs. Since the Kerala Buildings (Lease & Rent Control) Act used only expression 'heir', the word heir has to be tested in accordance with personal law of the tenant. Therefore the alleged Will, even if it is true, will not confer exclusive tenancy upon the 4th respondent alone and therefore the finding granting protection under the second proviso to Section 3 to one of the legal heirs alone is legally unsustainable.  

Kerala Building lease and Rent Control Act, 1965 - Sections 11(3) Second Proviso - the relevant point of time for determining the availability of alternate buildings to the tenants is the time of institution of the rent control petition and the burden of proof is that of the tenants. 

O R D E R 

Harilal, J. 

This is the third revision stemmed from R.C.P 19/1998 of the Rent Control Court Vadakara, which was filed two and a half decades ago, seeking eviction under 11 (3) of the Kerala Building lease and Rent Control Act. Despite the long lapse of time, the parties have won and lost alternatively at different stages in the hierarchy of appellate courts and went up to the Apex Court twice, the original petition is still awaiting for its finality. 

2. The revision petitioner has sought eviction contending inter alia that her elder son Anoop Krishnan aged 25 years is not having any avocation and that the tenanted premises is bona fide required for him to eke out his livelihood. Initially, the original tenant has resisted the rent control petition contending inter alia that he is entitled to get the right of fixity of tenure under the Kerala Land Reform Act, 1963. The Rent Control Court found that the tenant has the right of fixity of tenure and he is not a tenant falling under the Kerala Buildings (Lease and Rent Control) Act. The landlord has preferred Rent Control Appeal No.38/1993. The appellate court modified the order holding that the petitioner can move the civil court for appropriate reliefs. 

3. The tenants preferred first revision C.R.P.No.114/1997 before this Court. In that revision the order passed by the rent control court and the appellate authority were set aside and the Rent Control Petition was remanded back for fresh disposal. Thereafter the Rent Control Court considered the right of fixity of tenure alone and found that denial of title raised by the tenants is not bona fide. Against the said order, the tenants filed appeal as R.C.A.No.184/2004; but the appeal was dismissed by the appellate authority confirming the findings of the Rent Control Court. The tenants preferred second revision R.C.R.No.409/2005 before this Court. This Court confirmed the concurrent findings of the courts below that the denial of title on the claim of permanent tenancy is not bonafide, dismissed the revision and the case was remitted back to the Rent Control Court for considering the issue whether the petitioner is entitled to get eviction under Section 11(3) of the Building Lease and Rent Control Act. Though the tenants preferred SLP(C)No.27616/2009 before the Supreme Court, that was also dismissed. Thus, the preliminary issue challenging the maintainability of the Rent Control Petition before the Rent Control Court has attained finality. Then the parties went for trial on the merit of the ground under Section 11(3). PW1 was examined and Exts.A1 to A17 were marked for the petitioner. RW1 was examined and Exts. B1 to B72 were marked for the respondents. Exts.C1 to C5 were marked as court exhibits. After the trial, the learned Rent Controller allowed the petition finding that the need is bona fide. The respondents preferred R.C.A.No.8/2010 challenging the order of eviction. The appellate authority though concurred with the findings bonafide need, reversed the findings under both limbs of the second proviso to Section 11 (3) and allowed the appeal on the finding that the tenants are entitled to get protection under second proviso to Section 11(3) of the Act. This revision is filed by the landlord challenging the impugned judgment passed by the appellate court. 

4. Submissions at the Bar: Sri. P.B. Krishnan, the learned counsel for the petitioner submits that there is no pleading claiming protection under the second proviso to Section 11(3) of the Act in the counter statement. But the appellate authority considered the issue of protection under the second proviso and allowed the appeal erroneously without pleadings. The finding that respondent No.4 is entitled to protection under second proviso is erroneous in law as the tenancy has devolved upon all the legal heirs on the death of the original tenant and the same is admitted in additional counter. The relevant date for judging the entitlement of protection is the date of rent control petition and not any subsequent date in view of the decision reported in Padmanabhan Nair v. Devaki Brhamani Amma (2009(1) KLT 485). The income tax returns from the year 2000 onwards filed by the 4th respondent before the authorities are not relevant documents to determine the sources of livelihood. The income as per the said documents is much less than her total expenses and these documents give rise to a reasonable inference that tenants are not depending upon the income which they derive from the business in the petition schedule property for their livelihood. No enquiry on 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 for the respondents vehemently argued that the tenants are entitled to challenge the correctness of the earlier findings in RCR.No.409/2005 on the question of denial of title setup on permanent tenancy, again in this revision, in view of the decisions reported in Mangal Prasad Tamoli v. Narvadeshwar Mishra (2005 (3) SCC 422) and M. Syed Alavi v. State of Kerala (1981 KLT 548 (F.B). According to the learned counsel, the order passed in R.C.R.No.409/2005 is an interlocutory order remanding the case to the trial court as in the decision cited above. Therefore the correctness of that order regarding Ext.B2 can be challenged again in this revision as this is a revision challenging the final order. The learned counsel submitted that in this context the decisions cited above are squarely applicable to the present case. Further he submitted that whatever be the scope of the order in R.C.R.No.409/2005, it is interlocutory in nature and as such the tenant has the right to again challenge the correctness of the earlier order as the findings regarding Ext.B2 is only a mistake. The findings of the appellate authority under the second proviso to Section 11(3) are correct and sustainable in all points of view. Income tax returns sufficiently proved that the 4th respondent is depending on the income from the business in the petition schedule building for her livelihood and the point of time to determine issue is not always the date of petition. Thus the counsel urged for dismissal of the revision petition. 

6. Point No.1: We have given our anxious consideration to the arguments advanced by both counsel, particularly to the submissions of Mr. B. Krishnan asserting his right to challenge the correctness of the order passed earlier by this Court in C.R.P.No.409/2005 regarding Ext.B2. In view of the rival submissions, the first point to be considered is whether the respondent tenant is entitled to challenge the correctness of the earlier interlocutory order of this Court passed in C.R.P.No.409/2005, confirming the rejection of the plea denying the title of the landlord, set up on the claim of permanent tenancy. Broadly, can the correctness of an interlocutory order which was passed in revision be challenged in revision from final order. 

7. We have meticulously examined the decisions cited above and its applicability to the present case. Both the decisions - Mangal Prasad Tamoli v. Narvadeshwar Mishra (2005(3) SCC 422) and M. Syed Alavi v. State of Kerala (1981 KLT 548(F.B) placed reliance on the decision in Satyadhyan Ghosal v. Smt. Deorajin Debi (AIR 1960 SC 941). A short reference to the facts of the case in Satyadhyan's case is necessary for the proper appreciation of the proposition laid down in the decision. 

8. There, the appellant before the Supreme Court was landlord who had obtained a decree for ejectment of tenants. After the passing of the decree, Calcutta Thika Tenancy Act, 1949 came to statute book. Then the tenants filed application to rescind the decree made against them alleging that they are Thika tenants entitled to get protection under Section 28 of the said new enactment. The learned Munsiff dismissed the application holding that they are not tenants under the said Act. The tenants preferred a revision under Section 115 of the C.P.C before Calcutta High Court. During the pendency of the revision, Calcutta Thika Tenancy Act (amendment) 1953 came into force. This amendment omitted Section 28 of the Original Act. But, on a wrong interpretation of Section 1(2) of the Culcutta Thika Tenancy Act (amendment) the High Court set aside the order of the Munsiff court on the finding that Section 28 is applicable and remanded back the case for fresh disposal. Thereafter the learned Munsiff allowed the petition of the tenant and rescinded the decree which stood in favour of the landlord. Though, the landlord preferred revision under Section 115 of the C.P.C, the High Court dismissed the same on the finding of res judicata. Against that order, the landlord preferred an appeal and in the appeal, the Supreme Court found that Section 28 is not applicable to the tenants and the High Court earlier wrongly set aside the order passed by the Munsiff Court and remanded the case for fresh consideration. The Supreme Court rejected the argument of the tenant that the earlier remand order was not challenged and thereby the landlord was precluded from challenging that order again in appeal against the final order. In the above factual and legal matrix the Supreme Court held as follows: 

"In our opinion the order of remand was an interlocutory order which did not terminate the proceedings and so the correctness thereof can be challenged in an appeal from the final order. We hold therefore that the appellant is not precluded from raising before us the question that Section 28 of the original Thika Tenancy Act was not available to the tenants after the Thika Tenancy (Amendment) Act came into force". 

9. The moot point that falls for consideration of this Court in the light of the above decision is whether the proposition laid down in the above decision is applicable to the case on hand. We have examined the facts of the instant case in view of the case law cited above. Firstly, though the impugned order seems passed before the final order and in that context and sense it can be said to be an interlocutory order, in effect it is not an interlocutory order, because it has terminated the entire proceedings on an issue and that attained finality, particularly when the Special Leave Petition No.27616/2009 was dismissed by the Supreme Court. Though called interlocutory and in form the later proceedings in which the same question sought to be raised again is a continuation of the earlier proceedings, it is in substance an independent subsequent proceedings. It has the force of a decree or final order and must be distinguished from other interlocutory orders which lead to a final order. Subsequent proceedings to decide the remaining issue under Section 11(3) is an independent proceeding in the same Rent Control Petition unconnected with the earlier issue which was settled finally. The view, that we are taking now regarding the nature, force and effect of interlocutory orders is supported by the decision in Hook v. Administrator General of Bengal (AIR 1921 PC II), wherein the Supreme Court held as follows: 

"Interlocutory orders which have the force of a decree must be distinguished from other interlocutory orders which are a step towards the decision of the dispute between parties by way of a decree or a final order. Moheshure Singh's case, Forbes' case and Sheonath's case dealt with interlocutory judgments which did not terminate the proceedings and led up to a decree or final order. Ram Kirpal Shukul's case, Bani Ram's case and Hook's case deal with judgments which 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 an order remanding the case for fresh consideration after setting aside the order passed by the court below as seen in the decision cited. It is an order remitting back the case to Rent Control Court to consider the remaining issues under 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.409/2005 is not an interlocutory order remanding the case for fresh consideration as in the decisions cited above. It is an order which attained finality and determined the bona fides of the denial of title and maintainability of the Rent Control Petition in the Rent Control Court. Therefore any attempt to examine the correctness of that order would be hit by the principles of res judicata and lack of jurisdiction. Thirdly in the decisions relied on by the counsel for the tenants, the correctness of an interlocutory order which was not challenged earlier was challenged in appeal against the final order, when the earlier order did not terminate the previous proceedings finally and led to final order. Fourthly, in the instant case, rightly the courts below have not again gone into this question as the same has been concluded earlier by the order passed in R.C.P.No.409/2005. So, there is no illegality, irregularity or impropriety in the orders passed by the courts below on this point. We are not persuaded to examine the correctness of the earlier order which has attained finality as we have no jurisdiction to do. Therefore, we reject the arguments advanced by the learned counsel for the respondents on this point. 

Point No.2: 

11. The next point to be considered is whether the need alleged is bona fide. The courts below have concurrently found that the need alleged in the petition is bona fide. Against the said finding no serious arguments were 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 the need alleged is hit by the first proviso to Section 11(3). It has come in evidence that there are two other rooms in the ownership and possession of the petitioner in the same building. But, it has also come out in evidence that those rooms have already been occupied by the petitioner and his another son for conducting sadhoo beedy agency and Advocate's office respectively. There is no evidence that the landlord is in possession of other rooms. Hence, it is found that the petition is not liable to be rejected by virtue of the first proviso to Section 11(3). 

Point No.4: 

13. The next point to be considered is whether the tenant is entitled to get protection under the second proviso to Section 11(3) of the Act. Before proceeding on this point, we have to consider another point vehemently argued by the counsel for the landlord. The learned counsel for the landlord submitted that there is no pleading explicitly claiming 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 no pleading claiming benefit of the second proviso to Section 11(3) in the counter statement, the appellate authority has wrongly gone into that question and found in favour of the tenant. The learned counsel for the petitioner placed reliance on the decision in Chandran v. Sunil Kumar (2004 (3) KLT 420). Per contra, the counsel for the tenant placed reliance on the decision in Shaji Varghese v. Cherian (1993(3) KLT 133). 

14. Here, the point to be considered is whether the appellate authority has erred in considering the protection under the second proviso to Section 11(3) in the absence of specific pleadings explicitly made in the counter filed by the tenants. In view of the rival submissions and the decisions cited by the counsel, we have examined the counter. We find that there is no positive pleading explicitly claiming the protection under second proviso. In para-3 of the petition, the landlord has stated that "tenant is getting income from other sources such as landed properties and other business, and that there are other vacant rooms available in the locality near the petition schedule building to shift the business of the tenant". This contention in the petition is denied by the original tenant in para-17 of the counter statement contending that "contentions in para-3 of the Rent Control Petition is not correct and without any basis". What else is required in his pleadings? Is the absence of positive averments claiming protection fatal to the tenants? 

15. Let us consider the nature of the statutory mandate under second proviso to Section 11(3) of the Act. The protection under the second proviso to Section 11(3) is a statutory protection and it is a bar on the rent control court from giving any direction to the tenant to put the landlord in possession, if the tenant is depending for his livelihood mainly on the trade or business carried on in such building and there is no other suitable buildings available in the locality for such person to carry on such trade or business. Thus the second proviso precludes the Rent Controller from passing an order of eviction, if these two conditions are found in favour of the tenant. In short, a statutory duty is cast on the Rent Controller to look into these aspects and arrive on a definite finding, before passing an order of eviction, notwithstanding the fact that there is no specific positive averments from the part of the tenant claiming protection under the second proviso. So the denial of the positive averments of the landlord under the second proviso to Section 11(3) in the counter statement is sufficient as it is a negative fact, as far as the tenant is concerned. Since the second proviso provides for a statutory requirement casting duty on the court, strict adherence to rules 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 decision was held in a different context pertaining to subsequent events affecting bona fide need occurred after the filing of the petition. That was a case wherein the rent control court and the appellate authority placed reliance on few answers brought out in cross examination of the landlord's son (deponent) without pleadings to hold that landlord's son went abroad and there is no bona fides in the plea. Thus we find that Chandran v. Sunil Kumar (cited supra) is not applicable to the present case as it is rendered in a different context under different sections, particularly in the backdrop of subsequent events having fundamental impact on the 'bona fde need'. On the other hand, the decision reported in Shaji Varghese v. Cherian (cited supra) is aptly applicable to the facts of the present case as the overwhelming evidence shows that parties have gone to trial with full knowledge about the protection under second proviso to Section 11(3) of the Act and no prejudice was caused to the landlord in the absence of explicit positive pleadings. Lack of positive averments explicitly claiming protection under the second proviso to Section 11(3) and negativing pleadings averred by the landlord in the context of that proviso in the counter statement are not fatal and denial of the tenant in the counter statement is sufficient as there is a statutory bar against granting of eviction, unless the requirements under the second proviso is found in favour of the tenant. At the same time, we reiterate that two limbs of Section 11(3) are conjunctive and not disjunctive and the burden of proving by adducing evidence to get the protection under the second proviso is on the tenant as has been settled in the decisions reported in Thanuja Sunderdas v. Sisirkumar Raj (2008(4) KLT 241 (F.B) and Eanu Haji v. Mustafa (2004(2) KLT 668) . 

Point No.5: 

17. Coming to the next question whether the tenant is entitled to get protection under the first limb of the second proviso to Section 11(3) of the Act. On an analysis of the evidence let in by both the parties, it is quite evident that parties have gone for trial with full knowledge about protection under the second proviso to Section 11(3) of the tenant. Have the tenants discharged their burden of proof? The 4th respondent was examined as RW1 to prove the averment that his main income is the income derived from the hotel and lodging business in the petition schedule building and he had no other source of income. To prove this fact, he has produced Exts.B65 to B72, the income tax returns for the years from 2000 -2001 to 2007-08. These returns were filed by RW1, one of the legal representatives of the original tenant, as proprietress of the hotel and lodging. In this context, it is pertinent to note that there is no pleadings to the effect that tenancy right was given exclusively to the 4th respondent (RW1) by the original tenant. RW1 has categorically deposed that it is as per the Will of her father (original tenant) she got absolute right and possession over the building. But no evidence was forthcoming in the trial to prove her claim, particularly when the right of tenancy devolved upon all legal heirs by the death of the original tenant and sufficient impleadments and amendments were made in the Rent Control Petition to that effect. Sri. P.B. Krishnan argued that as there is no case that respondent No.4 alone was the tenant, the legal representatives as a body must establish their entitlement to the protection. The finding that respondent No.4 is entitled to protection under the second proviso is solely insufficient as the tenancy has devolved upon all the legal representatives. We see substantial force in the said argument advanced by the counsel. 

18. The tenancy right is inheritable. Therefore the inheritable interest of the tenant would devolve upon all the heirs of the tenant on his death and all the legal heirs of such tenant would in law step into his position. Therefore enquiry under the second proviso confining to one of the legal heirs alone and finding that she is entitled to protection under second proviso is insufficient and not correct as the tenancy devolved upon all legal heirs of the original tenant. 

19. The learned counsel for the tenants per contra submitted on this point that the original tenant died leaving his Will and testament in favour of the 4th respondent. But, no such Will was produced and proved in accordance with the statutory requirement under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. Even if there is a Will, the question that arises for consideration is whether the legatee under a testimentory disposition would fall within the expression of 'tenant'? 'Tenant' means any person by whom or on whose account rent is payable for a building and includes; (i) the heir or heirs of a deceased tenant and (ii) a person continuing in possession after the termination of the tenancy in his favour. 

20. The above question was settled by the decision reported in Karthiayani v. Anandan (2004 (2) KLT 575). In this decision this Court held that if a legatee is also brought into the meaning of 'heir' under Section 2(6)(i) of the Act, the consequences will be disastrous. If the word 'heir' is interpreted to include a legatee, even a stranger may have to be inducted as a tenant and there is no embargo upon a stranger to become a legatee. If the legislature wanted to bring in testamentary heir also, the same would have been brought within the definition 'clause'. Therefore even if the legatee is one of the natural legal heirs, he alone cannot claim exclusive tenancy so as to disinherit all other legal heirs. Since the Kerala Buildings (Lease & Rent Control) Act used only expression 'heir', the word heir has to be tested in accordance with personal law of the tenant. Therefore the alleged Will, even if it is true, will not confer exclusive tenancy upon the 4th respondent alone and therefore the finding granting protection under the second proviso to Section 3 to one of the legal heirs alone is legally unsustainable. 

21. According to Exts.B65 to B70, taxable income from 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 pertaining to the period starting from twelve years after the filing of the rent control petition. So we are not inclined to take these documents as relevant documents evidencing the only sources of income of either RW1 or respondent Nos. 2 to 4 as the same do not relate to relevant period. 

22. Even if Exts.B65 to B72 are taken as documents evidencing the sources of income, RW1 has given evidence in her deposition that total expense for each year is much more than the income shown in each return and it would come up to Rs.2,90,000/- including Rs.1,64,000/- as educational expenses of her children per year. RW1 deposed that her two children are studying for Engineering and for that she requires Rs.1,64,000/- per year for their educational expenses. RW1 was cross examined touching the veracity and credibility of the income shown in Exts.B65 to B72. The materials elicited from RW1 is sufficient to disprove the income shown in these documents and it falsifies Exts.B65 to B72, the returns filed by RW1. As rightly found by the Rent Controller, necessarily the 4th respondent must have some other sources of income. Even if the income tax authorities have accepted these documents as correct income during the said period, we are not inclined to accept it as correct income of RW1 in view of the contrary evidence elicited in examination. We reject these documents as unbelievable, irrelevant and devoid of truth in view of contrary evidence. 

Point No.6: 

23. The next point to be considered is whether the tenants are entitled to get protection under the second limb of the second proviso to Section 11(3) of the Act. The learned counsel for the landlord placed reliance on the decision reported in Padmanabhan Nair v. Devaki Brahamani Amma (2009(1) KLT 485) and argued that relevant date for judging the entitlement to the protection under second limb of the 2nd proviso is the date of the rent control petition and not any subsequent date. The counsel for the tenants per contra argued that subsequent events should be taken stock of and plea that the point of time should be the date of petition, should not be a universal and invariable rule. We find that the relevant date of determination is settled by the Division Bench of this Court in the decision reported in Kochappan v. Chellappan (1976 KLT 1). In the above decision, the Division Bench of this Court expressly overruled the judgment in Ikkorakutty v. Hariharan (1973 KLT 986) and held that the burden of proof in the context of the second proviso to Section 11(3) is that of the tenants and the relevant point of time for determining the availability of alternate buildings to the tenants is the time of institution of the rent control petition. This decision is seen followed in the decision reported in Padmanabhan Nair v. Devaki Brahmani Amma (2009 (1) KLT 485. We also notice of the decision reported in Prasannan v. Haris (2005 (2) KLT 365) wherein a Division Bench of this Court held that subsequent events having fundamental impact over the need alleged can also be taken into consideration. But the parties have no such case of subsequent events having 'fundamental impact' on the availability of alternate buildings after the institution of the rent control petition and no amendment was made by the parties in their pleadings in this respect. So this decision has no application in the instant case and we are inclined to follow the decision in Kochappan v. Chellappan (cited supra)

24. The next point to be considered is whether alternate suitable buildings are available in the locality to shift the business carrying on in the petition schedule property? 

25. The petitioner claims that there are several buildings available in the locality and she had pointed out names of certain buildings wherein vacant rooms are available. RW1 had pointed out 283 buildings in her chief affidavit but, according to her, none of these buildings are available, when her husband made enquiries. Let us examine the credibility and reliability of the evidence adduced by both parties on this aspect. Though 283 buildings are highlighted and claimed that her husband had made enquiries, when cross examined, she could not say specifically as to who are the owners and who are the tenants in those buildings, as rightly observed by the learned Rent Controller. She deposed that all these buildings are located in the locality of the petition schedule building. It has come out in evidence that enquiry was made in Ward Nos.20,29,30,33 of Vadakara Municipality, but the tenants have not made any enquiries regarding the availability of other suitable buildings in Ward No.21, the locality where petition schedule building is situating. Besides, no enquiry was made in the period between 1987 and 2004. Thus by testification, enquiries with respect to 283 building claimed in chief affidavit have lost its basis and credibility. In the cross examination, when pointed out the availability of vacant rooms in the first floor of a building having 1500 sq. feet plinth area, she deposed that she cannot afford such a building. The rent control petition was filed in the year 1988 and evidence was given in 2009. It is unbelievable that despite the long lapse of time in an area where 283 buildings were pointed out, RW1 could not find out a suitable one in the locality to shift her business. On an evaluation of the evidence given by RW1 and documentary evidence, we are not satisfied that no vacant suitable buildings are available in the locality for shifting the hotel and lodge business, particularly in view of the long lapse of time, after the filing of the rent control petition. The appellate authority went wrong by finding that no vacant buildings are available in the locality. We find that the tenants are not entitled to get protection under the second limb of the second proviso to Section 11(3) of the Act. 

Conclusion: 

26. Considering the jurisdiction under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, the prime question that arises for our decision in view of the above discussion is whether there is any illegality, irregularity and impropriety in the impugned order under challenge in this revision. For the foregoing reasons discussed in detail, we find that the appellate authority miserably failed to consider the law and evidence available on record in its correct perspective and thereby the impugned judgment is vitiated by illegality and irregularity. 

27. In the result, we set aside the impugned judgment passed by the appellate authority, restore the order passed by the Rent Controller and thereby allow this revision. 

28. Though the counsel for the tenant prayed for one year's time for surrendering the petition schedule property, considering the long lapse of time i.e, two and a half decades after the filing of the petition for eviction, we are not inclined to grant so much of time. At the same time, we are of the view that time can be granted till 31st December, 2012 to vacate the petition schedule building subject to the following conditions: 

i. The respondents/tenants shall file an affidavit before the Rent Control Court, Vadakara within six weeks from today stating that they will surrender the petition schedule building to the appellant/landlord on or before 31st December, 2012. 

ii. They will discharge arrears of rent , if any, accrued so far in respect of the building within one month of the date of filing of the affidavit. The respondents/tenants shall pay occupation charge at the rate of Rs.1,500/- per month from the date of this order till 31st December, 2012. 

Sd/- PIUS C. KURIAKOSE, JUDGE. 

Sd/- K.HARILAL,JUDGE. 

Cl True copy P.S.To Judge