ANNANTHAKRISHNAN ACHARY RADHAKRISHNAN DIED Vs. GOWRYKUTTY KUNJAMMA

JUDGEMENT

(1.) This Civil Revision Petition is filed challenging the judgment of the Rent Control Appellate Authority-II, Mavelikara in R.C.A. No. 6 of 1993. The landlords filed the Rent Control Petition under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act for the 4th petitioner to start a hotel business in the petition schedule building. The Rent Control Court dismissed the petition finding that the claim was not bonafide. In appeal, the Appellate Authority has reversed the order passed by the Rent Control Court and found that the claim was bonafide. It was also found that the tenant was not entitled for the benefit of the second proviso to Section 11(3) of the Act. Thus the Rent Control Appellate Authority granted an order of eviction as prayed for.

(2.) In this Civil Revision Petition, the learned counsel for the revision petitioners argued two points and those points are considered in the succeeding paragraphs. The first point is that the tenant died pending appeal before the Rent Control Appellate Authority and the legal heirs were not impleaded within time and the appeal had abated. Though subsequently an application for impleading the legal heirs was made with a petition to condone the delay and both the petitions were allowed, there was no petition to set aside the abatement and, therefore, the appeal had abated. The appellate authority passed the judgment without taking into account the fact that the appeal had abated. The second point argued is that the need alleged was not bonafide and the 4th petitioner was only a student at the time of filing the Rent Control Petition and his claim that he was unemployed and he wanted to do business of his own was not genuine.

(3.) The tenant died on 26-2-2001. An application for impleading the legal heirs was made before the appellate authority on 19-6-2001. Subsequently, an application for condonation of delay was filed on 12-11-2001. The appellate authority condoned the delay in filing the impleading petition and impleaded the legal heirs. When the appeal came up for hearing, the learned counsel for the respondents-tenants did not contend for the position that the appeal had abated and it could not be heard on merit. The appellate authority passed the judgment on merit and in the revision, the legal heirs of the tenant have taken up the contention that the appeal had abated. In the objection to the petition to condone the delay, there was no contention raised that the petition was not maintainable without an application for setting aside the abatement. The application for impleading was filed under Order 22 Rule 4 and Section 151 of the Code of Civil Procedure. The legal heirs did not take up the objection when the applications were allowed. There was no separate petition to set aside the abatement and the appeal was disposed of on merit. The legal heirs challenged the correctness of the judgment in appeal stating that the appeal had already abated and no judgment on merit could be passed.