Lissa Jain and others v. Thomas Paul and others (RCR Nos. 79 and 158 of 2018)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 28[TH] DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944** **RCREV. NO. 79 OF 2018** **AGAINST THE JUDGMENT DATED 15.01.2018 PASSED BY THE RENT CONTROL APPELLATE AUTHORITY-I, KOTTAYAM IN RCA.16 OF 2014 FROM RCOP NO.36 OF 2012 OF THE ADDITIONAL RENT CONTROL COURT, KOTTAYAM. REVISION PETITIONERS:** 1 LISSA JAIN AGED 41 YEARS, W/O. LATE JAIN PALLATHETU, PALLATHETTU HOUSE, THIRUNAKKARA KARA, KOTTAYAM VILLAGE. 2 NAMITHA SUSAN JAIN AGED 20 YEARS, D/O. LISSA JAIN, PALLATHETTU HOUSE, THIRUNAKKARA KARA, KOTTAYAM VILLAGE. 3 NIVIA MARIAM JAIN AGED 15 YEARS, D/O. LISSA JAIN, PALLATHETTU HOUSE, THIRUNAKKARA KARA, KOTTAYAM VILLAGE. IT IS RECORDED THAT PETITIONER NO.3 BECAME MAJOR AND THE FIRST PETITIONER (HER MOTHER) IS DISCHARGED FROM HER GUARDIANSHIP AS PER ORDER DATED 11/11/2021 I.A NO.3/2021 IN RCR 79/2018. BY ADVS. SRI.P.I.GEORGEKUTTY SRI.T.KRISHNANUNNI SR. ## **RESPONDENTS:** 1 THOMAS PAUL AGED ABOUT 64 YEARS, JACKSON MEDICAL STORES, PALLATHETTU BUILDINGS, KOTTAYAM - 1. *2 ULAHANNAN JOHN AGED 78 YEARS, PALLATHETTU BUILDING/ROOM NO. IX/864, KOTTAYAM - 1. (DELETED) *3 KURIAN VARKEY AGED ABOUT 64 YEARS, PALLATHETTU BUILDING/ROOM NO. IX/862, RCR Nos. 79 and 158 of 2018 2 KOTTAYAM - 1.(DELETED) *4 BABU JOSEPH AGED ABOUT 63 YEARS, EMPIRE LEATHER WORKS, NEAR CENTRAL JUNCTION, KOTTAYAM.(DELETED) *5 C.J. JACOB AGED ABOUT 65 YEARS, OF -DO- -DO- (DELETED) *6 DR. KORAH JACOB AGED 84 YEARS, PALLATHETTU BUILDING/ROOM NO. IX/865, KOTTAYAM - 1. (DELETED) *7 M.C. JOHN AGED ABOUT 71 YEARS, PALLATHETTU BUILDING/ROOM, NO. IX/870, KOTTAYAM - 1.(DELETED) *8 ZACHARIAH PHILIP AGED ABOUT 49 YEARS, PANIYATHARA, KUMARAKOM KARA, KUMARAKOM VILLAGE. (DELETED) *9 SATHY VIJAYAN AGED ABOUT 43 YEARS, THEKKEKAVIL (DEVI VILAS) MANGANAM KARA, VIJAYAPURAM VILLAGE. (DELETED) *10 SHEENA JOSE AGED ABOUT 51 YEARS, POTHALIL, VILLOONNI P.O./KARA, ARPOOKARA VILLAGE.(DELETED) *DELETED(RESPONDENTS 2 TO 10 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER VIDE ORDER DATED 03.10.2018 IN IA 2/2018.) BY ADVS. SRI.JOHN JOSEPH VETTIKAD SRI.JOSEPH ABRAHAM (KOTTAYAM) THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 28.11.2022, ALONG WITH RCRev..158/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RCR Nos. 79 and 158 of 2018 3 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA MONDAY, THE 28[TH] DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944 RCREV. NO. 158 OF 2018** **AGAINST THE JUDGMENT DATED 15/01/2018 IN R.C.A.NO.16/2014 OF THE ADDL.RENT CONTROL APPELLATE AUTHORITY-I, KOTTAYAM WHICH WAS FILED AGAINST THE ORDER DATED 20.2.2014 IN R.C.O.P.NO.36/2012 OF THE ADDL.RENT CONTROL COURT, KOTTAYAM.** ## **REVISION PETITIONER/1ST RESPONDENT/3RD COUNTER PETITIONER:** KURIAN VARKEY AGED ABOUT 64, S/O. JOHN VARKEY, KOTTARAMPARAMBIL HOUSE, MARIATHURUTH KARA, AYAMANAM VILLAGE (PALLATHETTU BUILDING ROOM NO. IX/862, KOTTAYAM - 1), PIN - 686 015. BY ADVS. SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY ## **RESPONDENTS/APPELLANTS/PETITIONERS & COUNTER PETITIONER NOS.1,2,4** ## **TO 10:** 1 LISSA JAIN AGED 42 YEARS, W/O. LATE JAIN, PALLATHETTU HOUSE, THIRUNAKKARA KARA, KOTTAYAM VILLAGE, PIN - 686 001. 2 NAMITHA SUSAN JAIN AGED 22 YEARS D/O. LISSA JAIN, PALLATHETTU HOUSE, THIRUNAKKARA KARA, KOTTAYAM VILLAGE, PIN - 686 001. 3 NIVIA MARIAM JAIN AGED 17 YEARS, D/O. LISSA JAIN, PALLATHETTU HOUSE, THIRUNAKKARA KARA, KOTTAYAM VILLAGE, PIN - 686 001. 4 THOMAS PAUL RCR Nos. 79 and 158 of 2018 4 AGED 64 YEARS, S/O. THOMAS, RESIDING AT KANNOTHRA HOUSE, MANGANAM KARA, VIJAYAPURAM VILLAGE (JACKSON MEDICAL STORES, PALLATHETTU BUILDINGS, KOTTAYAM - 686 001. 5 ULAHANNAN JOHN AGED ABOUT 79, S/O. ULAHANNAN (DIED), THOTTATHIL HOUSE, NATTASSERRY, PERUMBAIKADU VILLAGE, (PALLATHETTU BUILDING, ROOM NO. IX/864, KOTTAYAM -1), PIN - 686 006. (THE 5TH RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 10/12/2018 IN IA.NO.4/2018. 6 BABU JOSEPH AGED ABOUT 65, S/O. C.J. JOSEPH, EMPIRE LEATHER WORKS, NEAR CENTRAL JUNCTION, KOTTAYAM - 686 001. 7 C.J. JACOB AGED ABOUT 67, EMPIRE LEATHER WORKS, NEAR CENTRAL JUNCTION, KOTTAYAM - 686 001. 8 DR. KORAH JACOB AGED ABOUT 86, S/O. T.C.KORAH, THAZHATHU PUTHENPURAYIL THAZHATHANGADI, VELOOR VILLAGE (PALLATHETTU BUILDING, ROOM NO. IX/865, KOTTAYAM -1), PIN - 686 003. 9 M.C. JOHN AGED ABOUT 69, S/O. M.M. CHANDY, PALLATHETTU BUILDING, ROOM NO. IX/870, KOTTAYAM - 686 001. THE NAME OF THE 9TH RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 11/11/2021 IN IA.NO.1/2021 IN RCR NO.158/2018. 10 ZACHARIAH PHILIP AGED 54 YEARS, S/O. PHILIP, PANIATHARA HOUSE, KUMARAKOM P.O., KUMARAKOM VILLAGE, PIN - 686 563. 11 SATHY VIJAYAN AGED 45 YEARS W/O. VIJAYAN, THEKKEKAVIL (DEVI VILAS), MANGANAM KARA, VIJAYAPURAM VILLAGE, PIN - 686 018. 12 SHEENA JOSE AGED 49 YEARS, W/O. JOSE MATHEW, POTHALIL, VILLOONNI P.O., ARPOOKARA VILLAGE, PIN - 686 008. BY ADVS. SRI.P.I.GEORGEKUTTY SRI.T.KRISHNANUNNI SR. THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 28.11.2022, ALONG WITH RCRev..79/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RCR Nos. 79 and 158 of 2018 5 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **--------------------------------------------------** **R.C.R Nos. 79 and 158 of 2018 ------------------------------------------Dated this the 28[th] day of November, 2022** ## **O R D E R** ## **C.S.Sudha, J.** These R.C.Rs under Section 20 of the Kerala Building (Lease and Rent Control) Act , 1965 (the Act) have been filed against the judgment dated 15/01/2018 in R.C.A.No.16/2014 on the file of the Rent Control Appellate Authority (RCAA), Kottayam against the order dated 20/02/2014 in R.C.P.No.36/2012 on the file of Rent Control Court (RCC) Kottayam. The revision petitioners in R.C.R.No.79/2018 are the respondents in the appeal and the petitioners-landlords in the R.C.P. The petitioner in R.C.R.No.158/2018 is the 3[rd] respondent in the appeal and the 3[rd] respondent-tenant in the R.C.P. The parties and the documents will be referred to as described in the R.C.P. 2. R.C.P.No.36/2012 was filed by the petitioners, three in number, against respondents 1 to 8 alleging the ground for eviction under section 11(3) of the Act. According to the petitioners, they are the owners of the building housing the petition schedule rooms, which have been let out to respondents 1 to 7 on a monthly rent. All the rooms, that is, petition schedule items 1 to 6 are _bona fide_ required for the use and occupation of the 1[st] petitioner to conduct a ready made dress sales-cum-tailoring RCR Nos. 79 and 158 of 2018 6 Shop. The 1[st] petitioner has no employment. Petitioners 2 and 3 are studying in Lourde Public School, Kottayam. The 1[st] petitioner has to raise income by starting the aforesaid business to meet the expenses of petitioners 2 and 3 and also for their future expenses and prospects. The rent being paid by respondents 1 to 7 for the tenanted premises is quite low. The 1[st] petitioner requires huge amounts for proper maintenance of the building as well as for payment of tax. The building is situated in the heart of Kottayam town, a very important commercial area. Respondents 8 to 10 are occupying the rooms on the basis of license granted in their favour. They had expressly agreed to vacate the respective rooms as and when required by the 1[st] petitioner. Therefore, they have been impleaded as proforma parties in the petition, so no relief is sought against them. The petitioners have no other building for the purpose of starting their proposed business. The respondents 1 to 7 are not entitled to the benefit of the second proviso to Section 11(3). Inspite of repeated demands respondents 1 to 7 are refusing to vacate the rooms, hence the R.C.P. 3. All the respondents except respondents 4 and 5 who were set _ex parte,_ entered appearance and filed counter disputing the allegations in the R.C.P. All of them denied the need alleged and claimed the protection of the second proviso to Section 11(3). Respondents 8 to 10 disputed the allegation of the petitioners that they are in possession of the schedule rooms in their capacity as licencees. 4. PW1 was examined and Exts.A1 and A2 were marked on the side of the petitioners. CPW1 to CPW8 was examined and Exts.B1 to B25 was marked on the RCR Nos. 79 and 158 of 2018 7 side of the respondents. The reports of the advocate commissioner have been marked as Exts.C1 and C2 and the copy of the Accommodation Register as Ext.X1. The RCC found the need to be not _bona fide_ and hence dismissed the R.C.P. In R.C.A.No. 16/2014 filed by the petitioners against the said order, the order of RCC was reversed and the R.C.P. was allowed under Section 11(3) of the Act. The respondents-tenants took up the matter in revision. This Court in R.C.R.No. 137/2016, 140/2016 and 256/2016 by order dated 03/10/2017 confirmed the findings of the RCAA regarding the _bona fide_ need. However, it was found that the RCAA had not considered the oral testimony of all the witnesses examined on behalf of the respondent to establish that they are entitled to the benefit of the second proviso to section 11(3). On the other hand it had considered the oral testimony of CPW3 alone. It was also found that the documents relied on by the respondents had also not been considered by the RCAA. As the Appellate Authority had omitted to consider the aforesaid evidence, it was held that the entire evidence available on record to substantiate the respondents' case relating to the second proviso to section 11(3) required consideration afresh. Hence, the finding under the second proviso to section 11(3) of the Act was set aside and the appeal was remanded to the RCAA for a fresh consideration and disposal relating to the claim of the respondents that they are entitled to the benefit of the second proviso to section 11(3) of the Act. It was made clear that the findings on the _bona fides_ of the need of the petitioners and the first proviso to section 11(3) of the Act would stand confirmed. RCR Nos. 79 and 158 of 2018 8 5. Pursuant to the remand, the RCAA by the impugned judgment found the 1[st] respondent alone entitled to the protection of the second proviso to section 11(3). It was found that the second, third and the sixth respondents had not adduced any evidence to substantiate their claim under the second proviso to section 11(3). The appeal was thus dismissed. Aggrieved by the finding that the 1[st] respondent is entitled to the benefit of the second proviso to section 11(3), the petitioners have filed R.C.R.No.79/2018. The 3[rd] respondent aggrieved by the finding of the RCAA that he is not entitled to the benefit of the second proviso has filed R.C.R.No. 58/2018. 6. When the matter came up for hearing, it was submitted that respondents 8, 9 and 10 have surrendered the premises to the petitioners. Respondents 4 and 5 were set _ex parte_ by the RCC. The 2[nd] respondent is submitted to have surrendered the premises after the remand. The 6[th] respondent has not filed any revision. 7. The only point that arises for consideration is whether there is any illegality, irregularity or impropriety in the findings of the RCAA. 8. Heard Sri.Krishnanunni, the learned senior counsel for the petitioners in R.C.R.No.79/2018 and Sri.John Joseph Vettikad, the learned counsel for the petitioner in R.C.R.No.158/2018. 9. Section 20 of the Act says that, the High Court may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under the Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, RCR Nos. 79 and 158 of 2018 9 and it may pass such order in reference thereto as it thinks fit. It is true that this Court under Section 20 is not expected to reappraise the evidence produced by the parties in exercise of its revisional jurisdiction and the limited question that falls for its consideration is whether the procedure followed by the RCC and the RCAA is illegal, irregular or improper. However, it is well settled that the powers of S.20 are wider than that is conferred under S.115 CPC. The nature and scope of the powers of revision under S.20 has been considered by the Apex Court in the decision in **Nalakath Sainuddin v. Koorikadan Sulaiman, 2002 KHC 762: 2002 (6) SCC 1.** It has been held that when the aid of the High Court is invoked on the revisional side, it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Subject to limitations placed on the exercise of revisional jurisdiction, it remains a part of the general appellate jurisdiction of a superior Court in a wider and larger sense. It has been further held that, a jurisdiction to examine the propriety of the order or decision carries with it the same jurisdiction as the original authority to come to a different conclusion on the said set of facts. If any other view is taken, the expression "propriety" would lose its significance. It was further held in that- (i) There is no reason to read and interpret S.20 of the Act narrowly and limit the scope of revisional jurisdiction conferred on the High Court thereby. (ii) Once a revision petition is entertained by the High Court, whichever be the party invoking the revisional jurisdiction, the High Court acquires jurisdiction to call for and examine the records of the authority subordinate to it. The records RCR Nos. 79 and 158 of 2018 10 relating to "any order" and / or any proceedings, are available to be examined by the High Court for the purpose of satisfying itself as to the (a) legality, (b) regularity, or (c) propriety of the impugned order, including any part of the order, or proceedings. The only limitation on the scope of the High Court's jurisdiction is that the order or proceedings sought to be scrutinized must be of the subordinate authority. Any illegality, irregularity or impropriety coming to its notice is capable of being corrected by the High Court by passing such appropriate order or direction as the law requires and justice demands. The Court can examine whether the findings rendered by the appellate authority are plausible and to consider that aspect, the Court can refer to the pleadings and evidence adduced by the parties. A pedantic approach cannot be made while examining the issue in the light of the requirement of the Act ( **Simon v. Rappai, 2008 (2) KHC 863** ). 10. In the light of the aforesaid principles, let us examine whether there is any illegality, irregularity or impropriety in the findings of the RCAA. The second proviso to section 11(3) of the Act says that the RCC shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. Referring to the proviso, the learned counsel for the respondents relying on the decisions reported in **Krishnankunju Raveendran v. Sukumara Pillai, 1999 KHC 604** and **Sadanandan v. Kunheen, 1991 KHC 474** RCR Nos. 79 and 158 of 2018 11 argued that the first respondent examined as CPW 3 and his son examined as CPW8 have clearly deposed that there are no suitable rooms available in the locality for them to shift their business. The 3[rd] respondent has shown reasons for not occupying the rooms stated to be lying vacant in the locality. The testimony of neither CPW3 nor CPW8 has been discredited in anyway. Hence, relying on the aforesaid cases, the argument is that the respondents have succeeded in establishing that they are entitled to the benefit of the second proviso to section 11(3). 11. Per contra, it was argued by the learned senior counsel for the petitioners relying on the decisions in **Rajan v. Dileep Kumar, 2010 (2) KLT 668; Mohammedkutty v. Janaki** , **2002 (3) KLT 811; K.V.Kunhamina vs K.T Aboobacker Haji** , **2016 (3) KLJ 247; Sivarajan v. Raheela K. Jalal** , **2017 (2) KLT 508** and **Xavier v. Krishnakumar** , **2000 (3) KLT 809,** that it is the duty or burden of the tenant to prove that suitable rooms are not available in the locality for them to shift their business. When the landlord has shown existence of vacant rooms, the burden is on the tenant to explain that they are not suitable for his needs and therefore the RCAA erred in placing the burden on the landlords to prove the non-availability of suitable rooms in the locality. 12. A Division Bench of this Court in **Sadanandan** _(Supra)_ considered the manner or degree of proof required to be established by the tenant in which the negative aspect contained in the second proviso relating to availability of suitable rooms in the locality has to be proved. It has been held that since the proviso works RCR Nos. 79 and 158 of 2018 12 as an exemption, the person who desires to get the exemption has to prove the ingredients of the proviso. But being a negative aspect and that too, the availability of a suitable building in the locality, the nature and quantum of evidence that has to be proved by the tenant may, in appropriate cases, be confined to a positive affirmation by the tenant before the court, that no suitable building is available in the locality not successfully challenged in the cross examination. Then the burden would shift to the landlord since he can positively prove the fact that buildings are in fact available. **Krishnankunju** _(Supra)_ has reiterated the dictum in **Sadanandan** _(Supra)._ 13 _._ We also refer to the decisions relied on by the petitioners. In **Rajan** _(Supra)_ it has been held that when the availability of other buildings in the locality is established, the burden to prove that the said premises are not suitable for the purpose of the tenant is quite heavy upon the tenant. In **Mohammedkutty** _(Supra)_ it has been held that the use of the expression 'suitable building' can only mean suitable for the needs of the tenant. The availability of buildings in the locality and its suitability are all matters of evidence. The Court has to decide each individual case on its merits. The expression "suitable buildings available in the locality to carry on trade or business" assumes importance to understand the meaning of the second proviso. The building must be suitable to carry on the business or trade which is being conducted in the tenanted premises. Once it is established that building is available, the available building is to be suitable to carry on the business or trade RCR Nos. 79 and 158 of 2018 13 conducted in the tenanted premises. But once the suitability and availability is established, it is the look out of the tenant to negotiate with the prospective landlord and obtain possession . Further, for the tenant to succeed he must show that he had made earnest enquiries about the availability of other buildings in the locality for shifting his business [ **K.V.Kunhamina** _(Supra)]_ . In **Sivarajan** _(Supra)_ , it has been held that a mere assertion that no suitable buildings are available in the locality is not sufficient for shifting the burden of proof. 14. Here the question is, on whom does the burden lie in establishing the second proviso to Section 11(3) of the Act. It is no doubt true that the burden is on the tenant to establish both the limbs of the proviso. In the case on hand, the respondents rely on Ext.C1 report in which it is stated that there are no suitable rooms available in the locality. It is seen that on the request of the petitioners, the advocate commissioner again visited the locality and has filed Ext.C2 commission report. In Ext.C2 there is reference to several rooms of whose shutters were found closed. It was argued on behalf of the respondents that merely because shutters of several rooms were found closed, it cannot be concluded that the said rooms are vacant. The advocate commissioner is seen to have visited the area on 02/09/2013 at 04.00 p.m. The advocate commissioner has also specifically reported that certain rooms/buildings were lying vacant, which is referred to in paragraphs 9 and 10 of Ext.C2 report. It is stated that about 150 mtrs away from the tenanted premises a building by name Hillson Heights is lying vacant. It is also reported that near RCR Nos. 79 and 158 of 2018 14 Dhanya - Remya theatre situated about 50 mtrs away from the tenanted premises, two rooms were found with their shutters down and in front of the said rooms, a banner was seen to the effect that the ground floor is available for rent and also that the entire premises having an area of 3600 sq ft. is available to be taken on lease as whole or it can be divided into shops having 800 sq ft. and taken on lease. In the proof affidavit filed by CPW8, it is stated that the aforesaid two buildings are not suitable for shifting their business being conducted in the tenanted premises. It is stated that Hillson heights is not available for lease as it has been kept for the occupation of owner of the said building. The building near Dhanya Remya Theatre is also not suitable for their business because the owners are not ready and willing to give the building on lease for conducting a medical store. 15. During the course of arguments, it was submitted by the learned counsel for the respondents that one of the rooms which is available is having an area of about 4000 sq ft. which is not required for the business of the respondents. When the first respondent was examined as CPW3, he deposed that his tenanted premises has an area of 800 sq ft. If that be so the room near the theatre mentioned herein above appears to be suitable. The 3[rd] respondent examined as CPW6 in the cross examination admits that one or two rooms reported by the advocate commissioner are available. However, according to him, said rooms are quite big, and so not suitable for him. Therefore, the fact that the rooms are infact available has been brought out by the petitioners in this case. Now the burden has shifted to the tenants to establish RCR Nos. 79 and 158 of 2018 15 that they are not suitable for their needs, for which they could have examined the owners of at-least the two buildings referred to in paragraphs 9 and 10 in Ext.C2 commission report. However, the same has not been done by the respondents. 16. Further, the 3[rd] respondent has not adduced any evidence to show that the income derived from the tenanted premises is his sole means of livelihood. The first respondent on the other hand has produced Exts.B11 to B16 which are stated to be computer printouts of his income tax returns and the balance sheet of the business that is being conducted in the tenanted premises. According to him, he is conducting a medical shop on a partnership basis. Admittedly, Exts.B11 to B16 are computer printouts. When CPW3 in his cross examination was asked as to the person who had prepared the said documents and its authenticity, replied that the same were prepared by his Chartered Accountant; that he cannot vouch for its authenticity and that it is the Chartered Accountant, who can vouch for the same. Admittedly, the certification that is required under Section 65B of the Evidence Act is not there in the aforesaid documents. It is true that the aforesaid documents have been marked and let in evidence without any objection being raised by the petitioners during the trial. Under the law of Evidence, it is necessary that the contents of the documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of its contents but not its truth. Documents having not been produced and marked as required under the Evidence Act, cannot be relied upon by the court. Contents of the documents cannot be proved RCR Nos. 79 and 158 of 2018 16 by mere filing it in a court. ( **LIC of India v. Ram Pal Singh Bisen** , ( **2010) 4 SCC 491** ). **In Kaliya v. State of M.P** , ( **2013) 10 SCC 758** , it has been held by the Apex Court that a mere admission of a document in evidence does not amount to its proof. Mere marking of exhibit on a document does not dispense with its proof, if it is otherwise required to be done in accordance with law. 17. It was submitted by the learned counsel for the respondents relying on the decision in **Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantoean** , **2020 (4) KHC 101,** that the court can in appropriate cases allow the party to produce the certificate as required under Section 65B of the Evidence Act at a later point of time to see that the party is not prejudiced by want of a fair trial. The matter had been remanded specifically for the purpose of considering the question whether the respondents are entitled to the benefit of the second proviso to Section 11(3). Therefore, a further opportunity is not required to be given to the respondents for adducing evidence in support of their case. Now even assuming that the contention of the first respondent that the income from the business being conducted in the tenanted premises is his sole income is taken to be true, he still cannot get the benefit of the second proviso because he is to prove both the limbs of the proviso which are conjunctive and not disjunctive. In this case, the evidence on record shows that there are rooms available in the locality. The respondents have not discharged their burden of proving that the said rooms are not suitable for their need. Hence the RCAA has substantially erred in holding that the first respondent is entitled to the benefit of the RCR Nos. 79 and 158 of 2018 17 second proviso to Section 11(3) and hence an interference is called for. In the result, R.C.R.No.158/2018 is dismissed. R.C.R.No.79/2018 is allowed. The impugned judgment of the RCAA is set aside and eviction ordered under Section 11(3) of the Act. Taking into account the facts and circumstances in this case, we deem it appropriate and reasonable to grant the respondents-tenants six months' time to vacate the building on condition that they file an undertaking before the RCC on or before **23/12/2022** to vacate the tenanted premises within a period of six months from today and also on condition that the respondents-tenants pay the arrears of rent if any, on or before 23/12/2022 and also continue to pay the monthly rent on or before the 10[th] day of every succeeding month till they vacate the tenanted premises. Interlocutory applications, if any pending, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** Jms/21.11