Judgment :- Bhaskaran, J. 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 S.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 bona fide. In appeal, the Appellate Authority has reversed the order passed by the Rent Control Court and found that the claim was bona fide. It was also found that the tenant was not entitled for the benefit of the second proviso to S.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 bona fide 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. Point No.1 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 impleded 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. 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 S.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. 4. As per Rule 10 of the Kerala Buildings (Lease and Rent Control) Rules, an application for making the legal representative or legal representatives of a deceased personal shall be preferred within 30 days from the date of the death of the person concerned provided that where the application for impleadment is filed by legal representatives who are not in the party array, the Appellate Authority may in appropriate cases condone the delay in filing applications. A reading of the Rule may show that if the application is not filed within time when the respondent in an appeal dies, no application to implead the legal heirs or to set aside the abatement will lie. But S.22 of the Act makes the provisions of S.146 and Order 22 of the Code of Civil Procedure applicable to the proceedings, as far as possible. The rule has to yield to the provisions contained in the Act and a Division Bench of this Court, in Pankajakshi Amma v. Sarojam (1993(2) KLT 313) has held that in such cases, the Rent Control Court or the appellate authority, as the case may be, can consider the question of impleadment and condonation of delay under S.5 of the Limitation Act by virtue of S.22 of the Rent Control Act. Therefore, notwithstanding the rule under the Rules, petition could be filed for condonation of delay and impleadment under Order 22 CPC before the appellate authority. The learned counsel for the revision petitioners does not dispute this proposition but his only contention is that there should have been a separate application to set aside the abatement and in the absence of such a petition, the appeal had abated. He also relied on the decision of the Supreme Court, in Madan Naik v. Hansubala Devi (AIR 1983 SC 676) and contended that though no specific order for abatement, of proceeding is required, a specific order is necessary under Order 22 Rule 9 of the Code of Civil Procedure for setting aside the abatement. 5. The learned counsel for the respondents on the other hand contended that though filing of a separate petition under Order 22 Rule 9 and an order thereon is desirable, mere omission to do so would not make the judgment under appeal a void judgment. He relied on the decision in Lal Singh v. Gurnam Singh (AIR 1986 Punjab & Haryana 93), where the Punjab and Haryana High Court held that where an application to bring on record legal representatives of the deceased appellant was made after time prescribed therefore by law and the appeal had been abated, the application should be treated as an application to set aside the abatement also. Even if no such specific prayer was made in the appeal the matter should be decided after allowing the parties to lead evidence as to whether there was sufficient cause for setting aside the abatement, or not. The Punjab and Haryana High Court relied on the decision of the same High Court in Bachan Ram v. Gram Panchayat, Jonda (AIR 1971 Punjab and Haryana 243). The learned counsel also relied on the decision of the Orissa High Court in Babji v. Mt. Gurubara (AIR 1962 Orissa 94). The Punjab and Haryana High Court relied on the decision of the same High Court in Bachan Ram v. Gram Panchayat, Jonda (AIR 1971 Punjab and Haryana 243). The learned counsel also relied on the decision of the Orissa High Court in Babji v. Mt. Gurubara (AIR 1962 Orissa 94). In that case, the Orissa High Court held that an application to bring the legal representatives of the deceased defendant on record after the time prescribed therefore by law and continue the proceedings is in substance an application to set aside the abatement under Order 22 Rule 9 and the absence of formal order of abatement is no obstacle thereto: and the court has power to entertain such an application and decide whether the applicant was prevented by sufficient cause from continuing the proceedings. A Division Bench of the Delhi High Court in Union of India v. Kundan (AIR 1977 Delhi 38) has held that an application for substitution may in substance be treated as an application to set aside the abatement. 6. In Madan Naik’s case (AIR 1983 SC 676), the Supreme Court was not considering a situation like the one posed in this case. In that case, the plaintiff died pending the first appeal filed at the instance of the defendants and without noticing the death of the plaintiff/respondent, the appeal was dismissed. In second appeal, the matter was brought to the notice of the High Court. The High Court set aside the judgment of the appellate court and remanded the matter to the first appellate court for setting aside the abatement and substitution of the legal heirs. When the matter came back to the first appellate court, the first appellate court found that there was no reason to condone the delay and set aside the abatement. Without challenging the order in the application refusing to set aside the abatement, the defendants only filed a second appeal. Subsequently, an appeal was also filed from the order refusing to set aside the abatement with a petition to condone the delay. That appeal was allowed by the High Court. In the meanwhile the second appeal filed against the decision of the appellate authority was dismissed. Subsequently, an appeal was also filed from the order refusing to set aside the abatement with a petition to condone the delay. That appeal was allowed by the High Court. In the meanwhile the second appeal filed against the decision of the appellate authority was dismissed. It was contended before the learned single Judge who heard the appeal from the order refusing to set aside the abatement that since the second appeal was also dismissed it was not open to the judge to allow the appeal from the order and that appeal was liable to be dismissed. The Single Judge overruled that contention. However, in Letters Patent Appeal, the Division Bench held that the dismissal of the second appeal would render the appeal from the order refusing to set aside the abatement in fructuous. The appeal before the Supreme Court was filed against the decision in the Letters Patent Appeal. The Supreme Court found that the reasoning of the Division Bench was incorrect. The dismissal of the second appeal would not render the appeal from the order in fructuous as the appeal from the order under Order 22 Rule 9 was an appealable order and the appellate court had every right to entertain the appeal and pass orders. The second appeal was not disposed of on merit but was remanded only for enabling the parties to file necessary application in the first appellate court. Therefore, the context in which the observation was made by the Supreme Court about the necessity for an order to set aside the abatement has to be taken into account. More over, in this case, the proceedings are not before the civil court and the applicability of Order 22 of the Code of Civil Procedure to rent control proceedings and to what extent has to be considered. In this context, the observations of the Supreme Court in Union of India v. Ram Chandran (AIR 1964 SC 215) is apposite. “The provisions of the Code are with a view to advance the cause of justice. In this context, the observations of the Supreme Court in Union of India v. Ram Chandran (AIR 1964 SC 215) is apposite. “The provisions of the Code are with a view to advance the cause of justice. Of course, the Court in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time need not be over-strict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is not set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance.” 7. In this case, the revision petitioners did not challenge the order condoning the delay in filing the application for impleading the legal heirs of the deceased tenant. The matter was not agitated when the appeal was heard on merit. According to the learned counsel for the revision petitioners, under S.105 of the Code of Civil Procedure, the legal heirs can always challenge the correctness of the order passed by the 1st appellate court with regard to the orders which are not appealable. But it is clear from that section that such orders must, be affecting the decision of the case. With regard to the proceeding under the Kerala Buildings (Lease and Rent Control) Act, it is only by virtue of S.22 that the provisions of Order 22 of the Code of Civil Procedure are made applicable and S.22 of the Act itself says that order 22 Code of Civil Procedure shall as far as possible be applicable to the proceedings under the Act. Therefore, the words “as far as possible” allows flexibility in the application of the order. It is the substance of the law that is more important and not the form. 8. When the defendant in a suit dies, the plaintiff gets three months’ time under Article 120 of the Limitation Act to implead the legal heirs of the deceased defendant. Under Article 121 of the Limitation Act, the plaintiff can apply for setting aside the abatement within two months thereafter. 8. When the defendant in a suit dies, the plaintiff gets three months’ time under Article 120 of the Limitation Act to implead the legal heirs of the deceased defendant. Under Article 121 of the Limitation Act, the plaintiff can apply for setting aside the abatement within two months thereafter. If no application for impleading the legal heirs was made with a petition to set aside the abatement within the above-said period, the plaintiff can apply under S.5 of the Limitation Act to condone the delay in filing an application to set aside the abatement. In this case, the appellant had filed an application under S.5 of the Limitation Act and that petition was allowed and the legal heirs were impleaded. In such circumstances, we are of opinion that the absence of a formal application for setting aside the abatement and an order thereon should not result in the setting aside of the judgment itself as the matter was not argued at the time of hearing the appeal and both sides proceeded on the basis that the legal heirs have been validly impleaded after condoning the delay in filing the application for impleading. We therefore hold that the first point argued by the learned counsel for the revision petitioners is insufficient to set aside the judgment of the Appellate Authority. Point No.2 9. According to the landlords, the 4th petitioner wanted to start a hotel business in the petition schedule building as well as in the building behind that building. The landlords have filed another Rent Control Petition for eviction of the building behind the petition schedule building as both the buildings are required for doing hotel business. The learned counsel for the respondents submitted that the 4th petitioner’s father was doing hotel business in these two buildings. Though the learned counsel for the revision petitioners contended that the 4th petitioner was a student at the time of filing the Rent Control Petition, there is no dispute that at the time of giving evidence he had discontinued his studies and he was in a position to start the hotel business. According to the learned counsel for the revision petitioners, there is nothing to show that the 4th petitioner had financial ability to start a business. According to the learned counsel for the revision petitioners, there is nothing to show that the 4th petitioner had financial ability to start a business. As PW.1, he had stated that he had Rs.1,00,000/- in cash to start the business and the learned counsel argued that such a case was unbelievable. Mere absence of financial ability to start a business by itself is not sufficient to dismiss an application for eviction on the ground of bona fide need. There are several ways where finance can be obtained for doing business. P.W.1 had agricultural income. There is no reason to think that P.W.1 will have no financial resources for doing a hotel business. 10. According to the learned counsel for the revision petitioners, the landlords have sold two rooms in the same building to strangers and if there was any bona fide need, those rooms should not have been sold. But it is brought out in evidence that those rooms were tenanted premises and were sold to the tenants themselves. It is also contended that the 4th petitioner can start hotel business in the room behind the petition schedule building since there was already a hotel business in that building. But according to P.W.1, only if there is road frontage and the petition schedule room is also obtained, a hotel business can be profitably conducted. The learned counsel also submitted that subsequently the 4th petitioner has gone to Middle East and there is no likelihood of his starting a business. There is no evidence to that effect and merely because an application for eviction is pending in the Rent Control Court, the tenant is not expected to sit idle during the pendency of the entire litigation. Though the Act contemplated only 4 months period for disposal of the Rent Control Petition, taking into account the time consumed for the disposal of the Rent Control Petition, Appeal and Revision, it is not practical for any landlord to sit idle till the final disposal of the revision. In this case itself, the Rent Control Petition was filed as early as in 1991 and the revision is heard after 14 years of the filing of the Rent Control Petition. The learned counsel for the respondents submitted that even if he has gone abroad he will come back as and when the room is obtained. In this case itself, the Rent Control Petition was filed as early as in 1991 and the revision is heard after 14 years of the filing of the Rent Control Petition. The learned counsel for the respondents submitted that even if he has gone abroad he will come back as and when the room is obtained. Though at the time of filing the Rent Control Petition, the 4th petitioner was studying in a technical institution, he discontinued that study by the time the evidence was taken in the case. It only showed that the 4th petitioner was not really interested in continuing the studies and he wanted to do some business. According to us, the first Appellate Authority was therefore justified in finding that the 4th petitioner has established bona fide need and the Rent Control Court was not correct in dismissing the application. The Appellate Authority has taken into account the entire evidence in the case and has come to a conclusion on appreciation of evidence. Since the finding on bona fide need is a finding of fact and no serious legal infirmity is brought out in revision to hold otherwise, we uphold the finding of the Appellate Authority. The only question, then to be considered is whether the tenant is entitled to the benefit of the second proviso to S.11(3) of the Act. As held by the Appellate Authority, the tenant did not adduce any evidence with respect to his income form the petition schedule building and he failed to establish that he was depending for his livelihood mainly on the income from the business carried on in the building. With regard to the second limb of the second proviso to S.11(3), P.W.1 had pointed out the availability of vacant rooms in the same locality for the tenant to occupy. The revision petitioners adduced no evidence to show that those rooms were not available. On the above facts, the Appellate Authority found that the tenant was not entitled to the benefit of the second proviso to S.11(3). That finding also does not call any interference in revision. The revision petitioners adduced no evidence to show that those rooms were not available. On the above facts, the Appellate Authority found that the tenant was not entitled to the benefit of the second proviso to S.11(3). That finding also does not call any interference in revision. In the result, the Rent Control Revision is dismissed and the tenant is granted four months’ time from today to vacate the premises on condition that he pays the entire arrears of rent, if any within one month and also files an undertaking to vacate the premises on or before the expiry of four months. The affidavit must also be filed within one month from today.