Judgment :- Petitioner is the tenant of a residential building belonging to the first respondent. The landlady applied for eviction of the petitioner on the grounds of arrears of rent, and bona fide need for own occupation, for her residence, falling under subsections (2) and (3) of S.11 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act). Her case was that she was now residing with her daughter in the absence of any other house of her own in Cannanore, where this building was situate. The building occupied by the daughter belonged to the Communist Party of India, and a petition r.c.p.no.141 of 1983 was pending in the Rent Control court, Cannanore for eviction of the daughter. The landlady therefore needed the petition schedule building for her occupation, and the petition was accordingly laid for eviction on the grounds mentioned above,. 2. The petitioner contested the claim, inter alia with the plea that the landlady had earlier filed a petition R.C.P.No.41 of 1980 for eviction, which was dismissed for default. The bonafides of the landlady's claim was therefore suspect. She was an affluent person, whose children, except a daughter, were all in Canada. She herself had been out of Cannanore for long, since her marriage in 1935, and was not therefore likely to occupy the building in question, which was not suited for her requirements. 3. All the three authorities found that the petitioner has kept rent in arrear from March 1,1970 and ordered eviction on the ground of arrears of rent under S.11(2). Counsel for the petitioner has not been able to assail this concurrent finding in any manner. The order of eviction under S.11(2) of the Act has therefore to be confirmed. 4. Regarding bonafide need, the Rent Control Court was of the opinion that first respondent was not likely to occupy the building. She had been residing outside Cannanore since 1935, and all her sons were abroad. None of her children was going to stay with her. She cannot live in the building with all "the discomforts and sufferings of a lonely life in her old age when she was warmly welcomed by her prosperous children employed abroad". Bonafides was therefore found against, and the application for eviction under S.11(3) rejected. 5. The Appellate Authority and the Revisional Court however chose to differ. She cannot live in the building with all "the discomforts and sufferings of a lonely life in her old age when she was warmly welcomed by her prosperous children employed abroad". Bonafides was therefore found against, and the application for eviction under S.11(3) rejected. 5. The Appellate Authority and the Revisional Court however chose to differ. The Appellate Authority noted that the landlady did not have any other house in Cannanore which she could occupy. She was staving with her daughter in the town. A petition for eviction was pending against the daughter. Her daughter's landlord was the Communist Party of India and the genuineness of that application for eviction could not be doubted. The dismissal of the earlier application R.C.P.No.41 of 1980 did not warrant the conclusion that the landlady had settled down in a foreign country. The landlady's need and its bonafides were therefore upheld. The appeal was allowed ordering eviction on the ground of bonafide need for own occupation. 6. This decision of the Appellate Authority was confirmed by the Revisional Court functioning under S.20 of the Act after examination of the materials and the evidence available in the case. 7. The findings are concurrent that the first respondent needed the building bonafide for her residence. This finding is based on materials and evidence, and I do not find any reason to differ from the same. Petitioner has a complaint that the Revisional Court has not applied its mind to the question of bonafide need. Perusal of the Revisional Court's order does not however bear this out. 8. This is a petition under Art.227 of the Constitution of India. When the finding rendered by the Appellate Authority and the Revisional Court is supported by materials and the evidence on record, there is really no scope for interference by this court in exercise of the power under Art.227. 9. Counsel for the petitioner raised an alternate plea, that the first respondent is precluded from filing a second application for eviction, having regard to the dismissal for default, of her prior application R.C.P.No.41 of 1980 filed on the same ground. 9. Counsel for the petitioner raised an alternate plea, that the first respondent is precluded from filing a second application for eviction, having regard to the dismissal for default, of her prior application R.C.P.No.41 of 1980 filed on the same ground. The contention is that though the provisions of order IX of the Code of Civil Procedure, 1908 (C.P.C.) are not applicable to proceedings under the Act, still the principle underlying Order IX Rule 9 should govern and the first respondent is precluded from claiming relief in a second application for eviction on the same ground of bonafide need. Reliance is placed on the decisions of this court inAsher v. Ram, 1979 KLT 2j6Q Annamma Paily v. Thomas Mary, 1983 KLT 313, Sukumaran v, Susy Issac, 1985 KLT 1128 to content that even if a given provision of the C.P.C. is not expressly applicable, the principles thereof could be invoked in rent control proceedings. I may at once mention that in Asher's case, Janaki Amma, J. has held that Order IX Rule 9 C.P.C. does not apply to petitions under the Act. 10. lam afraid, I am not in a position to accept this contention so broadly stated by counsel for the petitioner. The procedural provisions of the C.P.C. may be applied to rent control proceedings in the absence of an express provision to the contrary, or in the absence of a conflict between the provisions of the C.P.C. and the provisions of the Act, or the Rules framed thereunder. The position of Order IX Rule 9 is however different. It creates a bar to afresh suitor proceeding when an earlier suit stands dismissed for default. In other words, the plaintiff or the petitioner LV deprived of a substantive right of suit by precluding a fresh suit. It is not a mere procedural provision, but a substantive provision barring a right, which otherwise inheres in every person to approach the court for rederessal of his grievances. A valuable right available to a party is thus taken away. Such deprivation of rights ought not to be lightly inferred or effected by analogy. There should be statutory provision which either expressly or by necessary implication bars the right. Admittedly there is no provision in the act or the Rules barring fresh proceedings in such cases. A valuable right available to a party is thus taken away. Such deprivation of rights ought not to be lightly inferred or effected by analogy. There should be statutory provision which either expressly or by necessary implication bars the right. Admittedly there is no provision in the act or the Rules barring fresh proceedings in such cases. The only provision in the Act is S.15 which requires the Rent Control Court to summarily reject any application made under the specified sub sections of S.11, which raises between the same parties or parties under whom they claim, substantially the same issues as have been finally decided or purported to have been finally decided in a former proceeding under the Act. Evidently this provision will not apply as there is no final decision when an application is dismissed for default. Counsel for the petitioner did not rightly rely on this section. There is no other provision expressly barring the second proceedings. 11. In fact the Supreme Court has in Surajmal v. Radheshyam AIR 1988 S.C.1345, held that a second petition for eviction on the ground of bona fide need will lie despite the dismissal of an earlier application on merits, as bona fide need has to be considered with reference to the time when the petition for eviction is filed, and it cannot be assumed that once the question of necessity is decided against the landlord in one proceeding, he will not have bona fide or genuine necessity forever in future. The decisions of this court in AnnammaPaily v. Thomas Mary 1983 KLT 313 and Mavelikara Ex.Servicemen's Co-operative Society v. Rajamma 1986 KLT 513 are also to the like effect. The position therefore, is that even the dismissal on merits, of a petition for eviction on the ground of bona fide need, does not bar a second petition. The position must a fortiori be so when the earlier dismissal was one for default, without a decision on merits. 12. This view of mine about the bar of Order IX Rule 9 in the absence of an express provision is supported by the decision of a Division Bench of this court in Achutha Menon v. Narayanan, 1974 KLT 485, which arose out of proceedings under the Kerala Land Reforms Act, 1963. An application for fixation of fair rent was dismissed for default. A second application was filed. An application for fixation of fair rent was dismissed for default. A second application was filed. The question was whether this was barred. Rule 99 of the rules framed under the Act provides that the procedure prescribed in the C.P.C. for applications shall, "as far as can be made applicable" be followed in the disposal of applications under the Act. Based on this, it was contended that the second application was not maintainable by virtue of Order IX rule 9 C.P.C. The Division Bench referred to the decision in Thamukutty v. Athankutty, 1961 KLT 31, rendered under the provisions of Malabar Tenancy Act, where it had been held that Order IX rule 9 C.P.C. did not apply to proceedings under that Act, despite section 49 thereof, which attracted the procedure laid down in the C.P.C. to applications under the Act. The Division Bench applied this decision and held that only the procedural provisions of the C.P.C. were attracted, and not the substantive provisions in Order IX Rule 9. This decision applies squarely to the case on hand. 13. Order IX Rule 9 C.P.C. cannot therefore, be invoked to preclude the landlady in this case from claiming relief. The present application for eviction was therefore, maintainable. It was not barred by the dismissal for default of R.C.P.NO.41 of1980. 14. "The petitioner has a further contention that he is entitled to the protection of the second proviso to section 11(3) of the Act as he is carrying on business in the premises. It has been noted by the Appellate Authority and the Revisional Court that the building was a residential one, let out is such, in which the petitioner started conducting business only in the year 1971. They applied the decision in ParvathyAmmal v. Sankara Menon,1982 KLT 62 and held that the petitioner was not entitled to the protection of the second proviso to S.11(3). I am in agreement with the view taken and reject this contention of the petitioner. 15. No other points are raised before me. The original petition is therefore, liable to be dismissed. It is accordingly dismissed, without any order as to costs. The petitioner is however given time to vacate till and inclusive of June 30, 1989 on condition that he files a statement in the Rent Control Court undertaking to vacate the building in question on or before that date. The original petition is therefore, liable to be dismissed. It is accordingly dismissed, without any order as to costs. The petitioner is however given time to vacate till and inclusive of June 30, 1989 on condition that he files a statement in the Rent Control Court undertaking to vacate the building in question on or before that date. He shall also pay the entire arrears of rent till date and continue to pay damages, for use and occupation of the building hereafter, at the same rate as the rent payable hitherto. The arrears of rent shall be paid within a period of one month from today. The statement aforesaid shall be filed on or before May 22, 1989. If the rent is not paid, or the statement not filed within time, the first respondent shall be entitled to execute the decree for eviction and take possession from the petitioner, without waiting till June 30,1989. The original petition is dismissed subject to the above directions. Issue photo copy on usual terms.