Judgment :- T.V. Ramakrishnan, J. Revision petitioner is the tenant and the respondents are the landlords of the building sought to be evicted as per RCP 64 of 1989 filed under S.11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (for short 'the act) on the file of the Rent Control Court, Vadakara. Both the authorities below have ordered eviction finding that the need alleged by the respondents is bonafide. The orders passed by the authorities below are under challenge in this revision. 2. The case of the respondents is that the petition schedule building belong to them in co-ownership right. The building is a residential house and they need the same bonafide for occupation of the third respondent and his family as they find it difficult to live in the family house where there are several members living together. Opposing the relief prayed for in the RCP, petitioner has taken up the contention that the building in which the respondents including the third respondent and his family are living is a palatial one more than sufficient to accommodate all the members of the family. There is no bona fides in the need alleged and it is only a ruse to get eviction. While denying the bonafides of the need alleged, it was contended that the petition has been filed only as an attempt to get the rent of the building increased. He is residing in the building in question with his family for the last 2112 decades. He has effected repairs to the building spending huge amounts with the consent of the 11th respondent. We may relevantly note here itself that the petitioner has not specifically claimed the protection of the provisions contained in the second proviso to S.11(3) of the Act in the counter affidavit filed in the RCP. 3. In order to establish the bonafide need alleged by the respondents, the third respondent, for whose occupation the building was sought to be evicted, was examined as PW'.1. 3. In order to establish the bonafide need alleged by the respondents, the third respondent, for whose occupation the building was sought to be evicted, was examined as PW'.1. Apart from examining PW 1 in support of the case pleaded in the RCP, respondents have taken out a commission to inspect the family house called 'Edathil House' where all the respondents barring a few are living together and to submit a report regarding the space for accommodation, conveniences available in the said house and the inconveniences resulting from the joint residence of the respondents in the said house. The Commissioner appointed in the case has submitted a report and two plans indicating the lie of the rooms in the ground floor and first floor of the family house and the details of the household articles and other things noted by the commissioner in the various rooms at the time of his inspection. They have been marked as Exts. Cl to C3 by the Rent Control Court. On behalf of the petitioner, he has given evidence as RW.1. No document was produced on his side. 4. On a detailed consideration of the oral and documentary evidence available on record, the Rent Control Court has found that the need alleged by the respondents is true and bonafide. Examined as PW 1, the third respondent has stated that about 12 persons are residing in Edathil House where he is at present living along with his family. PW.1 has also stated that the respondents have no other house of their own except the building in question and that he is intending to live separately with his family in the petition schedule building. Further PW.1 has stated that his married sisters also have to come and reside in the house occasionally at least and that one of the married sisters is actually living in the family house along with her husband and children continuously. However, PW.1 during his cross-examination, has stated that the petitioner is eking out his livelihood by rearing up cows and buffalos and selling their milk and that the cows and buffalos are being kept and maintained in the open yard near the Railway gate. Examined as RW 1 petitioner has submitted that he has got a family consisting of wife and 7 children and that the petitioner schedule building is a small building consisting only of two rooms. Examined as RW 1 petitioner has submitted that he has got a family consisting of wife and 7 children and that the petitioner schedule building is a small building consisting only of two rooms. Edathil House is a palatial one having about 12 rooms sufficient to accommodate the respondents and their families. At present there are only 8 persons living in the house and as such the need alleged is only a ruse to get eviction. In the cross-examination, with reference to a suggestion that 4 of his sons have jointly purchased a property at Puthur, he has stated that his son Sri raman has purchased a property six years back at Vadakara and that there is a but in the said property where his daughter and son-in-law are residing at present. It is relevant to note that RW.1 has not spoken anything about his means of livelihood and the non-availability of other suitable alternative house in the locality for shifting Ms residence in case of eviction. 5. The Commissioner has in his report stated that there are 7 rooms in the ground floor and 5 rooms in the first floor of Edathil House. He has further reported that he has found several articles kept in all the rooms. He has also reported that there is only one latrine and one bath room in the building. The details given by the Commissioner in his report itself would indicate that out of the 7 rooms noted by him in the ground floor only one room can be properly treated as a bed room. The Commissioner himself has described or indicated in his report the other six rooms as office room, the corridor room, a prayer room, a passage, a kitchen and a dining room. Commissioner has also reported that he has seen a cot and bed kept in the office room and the same is being used as a prayer room cum bedroom. In the rooms shown as corridor and passage, the Commissioner has seen several household articles like vessels, sewing machine, furniture, etc. In regarding the first floor also the details given by the Commissioner would show that one of the rooms is a stair case room and another room actually a corridor. Yet another one is described as an' Attam'. As such really three rooms in the entire building alone can be treated as bedrooms. In regarding the first floor also the details given by the Commissioner would show that one of the rooms is a stair case room and another room actually a corridor. Yet another one is described as an' Attam'. As such really three rooms in the entire building alone can be treated as bedrooms. On a detailed consideration of the oral and documentary evidence available on record, the Rent Control Court came to the conclusion that the need alleged by the respondents is bonafide and that there is no reason to refuse eviction. In appeal, on a re appreciation of the entire evidence on record, the appellate Authority has concurred with the conclusions reached by the Rent Control Court on the question of bona fides of the need alleged by the respondents. 6. It is necessary to note at this stage that the petitioner has while filing the appeal before the appellate Authority filed I.A. 714 of 1993 on 5.4.1993 praying for an amendment of the counter filed by him by adding a new paragraph as 3(a) after paragraph 3 of the counter in the RCP. That petition was opposed by the respondents by filing a counter and the same was being posted along with the appeal as ordered by the appellate Authority. The prayer portion of the IA would indicate that the petitioner wanted to raise a contention that the petition for eviction filed under S.11(3) is not maintainable taking up the stand that the petition ought to have been filed under S.11(8) of the Act. The petitioner also wanted to add an averment in the new paragraph that even if the need alleged is bonafide, the petition cannot be maintained in view of the fact that the petitioner and his family are residing in the petition schedule building and eking out their lively hood by rearing up cattle and selling milk and that in case eviction is ordered hardship likely to be caused to be petitioner and his family would outweigh the advantage which will accrue to the respondents. It was submitted by the learned counsel for the petitioner that no order was passed in the said I.A. by the appellate Authority before the disposal of the appeal. We have verified and found that the submission made by the learned counsel for the petitioner in this regard is true. It was submitted by the learned counsel for the petitioner that no order was passed in the said I.A. by the appellate Authority before the disposal of the appeal. We have verified and found that the submission made by the learned counsel for the petitioner in this regard is true. Learned counsel for the petitioner has in the facts and circumstances of the case challenged the orders passed by the authorities below as totally illegal and unsustainable in law. 7. There is no case for the petitioner that the respondents have any other building other than'Edathil House' - their family house. Both the authorities below have on an appreciation of the oral and documentary evidence available on record especially the details contained in the report of the Commissioner have come to the conclusion that the need alleged is true and bona fide. It is purely a finding of fact based upon an appreciation of the evidence available on record. Though the Commissioner has stated that there are 7 rooms in the ground floor and 5 rooms in the first floor in Edathil House, the appellate Authority has, according to us rightly, found that there is only one bedroom in the ground floor and three in the upstairs. If that be so, taking note of the number of co-owners owning the building and the fact that many of them have their own family it cannot be said that the conclusion reached by the authorities below regarding the bona fides of the need alleged is in any way unreasonable or illegal. As such we do not find any reason to interfere with the finding of the authorities below that the need alleged is true and bonafide. 8. The only other question to be considered is whether there is any ground to refuse the prayer for eviction in the facts and circumstances of the case. As we have already pointed out, in the written objection originally filed by the petitioner there is no claim raised based upon the provisions contained in the second proviso to S.11(3) of the Act. In his evidence also RW,1 has not; spoken anything about the source of his income for the livelihood of himself and his family and the non availability of other suitable alternative building in the locality. In his evidence also RW,1 has not; spoken anything about the source of his income for the livelihood of himself and his family and the non availability of other suitable alternative building in the locality. In the absence of necessary pleadings and evidence claiming the benefit of the provisions contained in the second proviso to S.11(3) of the Act, the Rent Control Court was justified in not considering in detail the question whether the petitioner is entitled to get such benefits. In the appeal, of course, it is true, that the petitioner has filed I. A. 714 of 1993 to amend the counter affidavit filed by him in the RCP and to add a new paragraph to raise additional contentions in the counter affidavit, Going through the averments sought to be incorporated in the counter affidavit also, we find that the petitioner has not really claimed the benefit of the provisions contained in the second proviso to S.11(3) of the Act, Except stating that the petitioner and his family are living in the petition schedule building and are eking out the livelihood by rearing up cattle and selling milk, the petitioner has not stated that he is carrying on any trade or business in the building in question and that he i s depending upon the income earned from such trade or business as the main source of his livelihood and that there are no other suitable alternative building in the locality available for his residence and for conducting the trade or business carried on by him in the petition schedule building. On the other hand, what was attempted to be raised by incorporating a new paragraph was a contention regarding the maintainability of the petition for eviction taking up the stand that the petition ought to have been filed under S.11(8) of the Act and that the hardship likely to be caused to the petitioner would outweigh the advantage which is likely to accrue to the respondents if eviction is ordered. In the circumstances, we do not find any merit in the contention vehemently advanced by the learned counsel for the petitioner that the petitioner ought to have been granted the benefit of the provisions contained in the second proviso to S.11(3) of the Act. In the circumstances, we do not find any merit in the contention vehemently advanced by the learned counsel for the petitioner that the petitioner ought to have been granted the benefit of the provisions contained in the second proviso to S.11(3) of the Act. The further contention that the disposal of the appeal by the appellate Authority without passing any orders in I. A. 714 of 1993 is illegal and the same should be set aside and the appeal should be remanded for fresh trial and disposal after passing orders on I,A. 714 of 1993 cannot also be sustained in law. First of all, we find that the petitioner should not have been allowed to raise a contention regarding the maintainability of the RCP by incorporating a new contention to that effect for the first time in the counter affidavit at the belated stage of appeal. However, the contention regarding the maintainability itself is based upon a palpably a wrong assumption that the respondents should have filed the RCP under S.11(8) of the Act and not under S.11(3) of the Act. We find that there is no scope for raising such a contention at all in the facts and circumstances of the case. Admittedly, the petitioner was not occupying a part of the building which was occupied by the landlords. The petition schedule building is an independent building occupied in its entirety by the petitioner and his family. Respondents were occupying a separate building fully in their possession. As such no petition could have been filed under S.11(8) of the Act against the petitioner for eviction. As such there was no scope for allowing the petitioner to raise a contention challenging the maintainability of the petition on that basis. 9. Similarly, even as per LA. 714 of 1993, the petitioner has not sought for permission to incorporate necessary averments regarding the two essential ingredients to be pleaded for the purpose of claiming the benefit of the provisions contained in the second proviso to S.11(3) of the Act. As such we find that even if the prayer in LA. 714 of 1993 was allowed, it would not have been possible for the petitioner to claim successfully the benefit of the provisions contained in S.11(3) of the Act. As such the omission to pass orders on LA. 714 of 1993 has not resulted in any prejudice to the petitioner. As such we find that even if the prayer in LA. 714 of 1993 was allowed, it would not have been possible for the petitioner to claim successfully the benefit of the provisions contained in S.11(3) of the Act. As such the omission to pass orders on LA. 714 of 1993 has not resulted in any prejudice to the petitioner. It can only be treated as an error or omission committed by the appellate-authority which has not caused any prejudice to the petitioner. No failure of justice has happened as a result of the said omission and as such we do not find any reason to interfere with the orders passed by the authorities below in this case on that ground also. 10. Relying upon the deposition of PW.1, the learned counsel for the petitioner has contended that tenant is entitled to the protection provided under the second proviso to S.11(3) of the Act even if there was no specific claim put forward by the tenant to that effect in the counter affidavit filed in the RCP. We do not find any merit in the above contention also. First of all as pointed out by the learned counsel for the respondents the so called admission of PW.1 is only to the effect that tenant is living in the house and rearing up buffalos and cows by keeping them in the open yard near the Railway gate and feeding them from there and eking out his livelihood by selling the milk obtained from such cattle. There is no admission that the cattle are reared up from a portion of the building or any trade or business is being carried on in the petition schedule building. So also there is no admission that there is no other suitable alternative building in the locality for carrying out the activity out of which the tenant is eking out his livelihood. Secondly, in the absence of a specific claim put forward in the counter affidavit there may not be any justification to allow the tenant to claim the benefit solely based upon an admission like the one made by PW.1 in this case. Secondly, in the absence of a specific claim put forward in the counter affidavit there may not be any justification to allow the tenant to claim the benefit solely based upon an admission like the one made by PW.1 in this case. In this view of the matter, we do not think it necessary to consider in detail the merit of the contention of the learned counsel for the petitioner that the decision reported in Parvathy Animal v. Sankara Menon (1982 KLT 62) and followed in Meenakshy v. Kamalakshy Amma (1994 (2) KLT 434) requires reconsideration. 11. However we may briefly deal with the contention and express our prima facie view on the point since we find the point to be of general importance. ib Parvathy Animal's case (Supra), a learned Single Judge of this Court has held that a residential building tenant cannot claim the protection of the provision contained in the second proviso to S.11(3) of the Act even if he is conducting a trade or business in a portion of the building and the second proviso is not applicable to a building let out as residential accommodation. The said decision was followed by a Division Bench in Meenakshy's case (Supra) without any discussion. The learned counsel has submitted that there may not be any justification to hold that under no circumstance second proviso of S.11(3) may apply to a part of a building let out for residential purpose. It is a proviso to sub-s.(3) of S.11 of the Act which is applicable to both residential and non-residential tenancies. A building can be let out for both residential and non-residential purposes. So, also there may be cases where a residential building tenant might have been permitted to use a portion of the building for conducting a trade or business for eking out his livelihood. In such cases where a building was permitted to be used partly as a residential accommodation and partly for non-residential purposes and second proviso will certainly have application and the tenant may legitimately claim the protection of the second proviso, was the submission of the learned counsel for the petitioner. In such cases where a building was permitted to be used partly as a residential accommodation and partly for non-residential purposes and second proviso will certainly have application and the tenant may legitimately claim the protection of the second proviso, was the submission of the learned counsel for the petitioner. It was submitted that if at all there is any just able reason to exclude the applicability, of the proviso to any case it can be excluded only to cases where the building was let out only for residential purpose and the tenant has without the knowledge and consent of the landlord used part of the building for non-residential purposes. The case dealt with in Parvathy ammal's case (Supra) was such a case and the decision should have application only to such cases. Learned counsel has submitted that even in such cases the proviso will have application as use of a part of a residential building for non-residential purposes cannot be objected to by the landlord under any of the provisions of the Act. The fact that in a room or portion of a residential building a trade or business is carried on by a person or family residing in the other portion of the residential building may not be a reason to hold that there is conversion of the residential building into a non-residential building for the purpose of S.17 of the Act. Similarly it may not be possible to contend that by such use the building has ceased to be residential one or that it has been put to a purpose different from the one for which it was let out. The mere fact that the second proviso refers to the non-availability of an alternative building suitable for the purpose of carrying on the trade or business carried on by the tenant may not also be a sufficient reason to hold that the proviso may have application to non-residential tenancies alone. The mere fact that the second proviso refers to the non-availability of an alternative building suitable for the purpose of carrying on the trade or business carried on by the tenant may not also be a sufficient reason to hold that the proviso may have application to non-residential tenancies alone. It was submitted that as a provision granting protection to tenants against eviction it may not be just and proper to interpret the provision so as to exclude the protection of the proviso to tenants who may be compelled to live in a part of a building and carrying on a trade or business in the other part for eking out their livelihood if they are also to prove that there is no alternative suitable building to carry on their trade or business hitherto carried on by them in the building sought to be evicted. We find prima facie force in the above submission of the learned counsel for the petitioner. As such we would have acceded to the request of the learned counsel for reference of the case to a Full Bench for reconsideration of the correctness of the decision in Parvathy ammal's case (Supra) and followed in Meenakshy's case (Supra) if there was a specific claim put forward by the petitioner asked upon the second proviso to S.11(3) of the Act and that he had established the requirements of the proviso. But the petitioner has not claimed the benefit of the second proviso to S.11(3) of the Act in this case and as such while arguing with the counsel for the petitioner that the view taken in Parvathy Ammal 's case (supra) and followed by the Division Bench in Meenakshy's case (supra) requires to be reconsidered, we would decline the prayer for reference of this case to a larger Bench for deciding the said question, 12. In the circumstances, we find no reason to interfere with the orders of eviction passed by the authorities below. However, taking note of the fact that the petitioner and his family are residing in the petition schedule building for about a period of 21/2 decades, we would grant the petitioner time till 31.8.1997 to vacate and surrender possession of the building to the respondents on condition that the petitioner flies an affidavit containing an unconditional undertaking to that effect within a period of three weeks Iron today before the execution court. Time granted will also be subject to the condition that the petitioner deposits the entire arrears of rent till date and continues to pay rent which falls due for the above period regularly. If default is committed in complying with any of the conditions mentioned above, the respondents can execute the order and take delivery of the building forthwith. Subject to the above direction, the CRP is dismissed. However, there will be no order as to costs.