Author: Juli
Tactics to resist petition for arrears of Rent
Section 11 (2) of Kerala Rent control Act states that “(a)A landlord who seeks to evict his tenant shall apply to the Rent Control Court for a direction in that behalf.
(b) If the Rent Control Court, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, it shall make an order directing the tenant to put the landlord in possession of the building, and if it is not satisfied it shall make an order rejecting the application thereof by him:”
Defenses that can be resorted by a tenant in a petition for eviction on the ground of Arrears of rent under section 11 (2), are
(i) Deny the rate of rent and period of arrears so that landlord has to prove both these aspects.
(ii) Deny the service of notice, because the service of notice is a mandatory condition.
(iii) The tenant can take the defense that the building does not belong to the petitioner and thus deny the title of the landlord. Though the landlord cannot evade the Rent Control Act the tenant can evade the summary procedure prescribed in the Rent Control Act by just denying the title of the landlord. The landlord has to go to the Civil Court and there too the tenant gets all the protection of the Rent Control Act. The landlord has to prove the ground under the Rent Control Act in the civil court also, after proving his title, the tenant is not deprived any of his right by denying the title of the landlord.
(iv) Apply for extension of time for payment of arrears, this extension of time can be given according to the discretion of the court and there is no limit.
(v) After all the procedure, i.e. Appeal and revision, deposit the arrears within 30 days of last order. This deposit need only for the original arrears as per the petition, the arrears accrued during the petition need not be deposited, in order to avoid eviction.
The conduct of tenant in the proceedings cannot be taken against him when deciding the case on merit. Any of the ground under this Act is to be proved to evict the tenant. Order must be in terms of the provisions of the Act.
Payment of substantial amount by tenant towards construction cost of building and expenditure for improving the building for the purpose of business is a valid defense for ground of eviction under S.11(2)(b.
Tactics to resist petition for tenant ceases to occupy the building
Section (S. 11 (4) (v)) of Kerala Rent control Act states that “if the tenant ceases to occupy the building continuously for six months without reasonable cause.”
Though the landlord cannot evade the Rent Control Act, the tenant can evade the summary procedure prescribed in the Rent Control Act by just denying the title of the landlord. The tenant can take the defense that the building does not belong to the petitioner and thus deny the title of the landlord. The landlord has to go to the Civil Court and there too the tenant gets all the protection of the Rent Control Act. The landlord has to prove the ground under this act in the civil court also, the tenant is not deprived any of his right by denying the title of the landlord.
The tenant can take the defense that the non occupation has not completed six months. It will be very difficult for the landlord to prove the exact period for which the building was kept idle. Further the tenant can take the position that there was reasonable cause for the non occupation.
The tenant should some how prolong the case in all the stages. Each posting we can manage to postpone will give us 3 to 4 months time. In the end you can have possession of the building as long as the court procedure prolongs. Even if the verdict of the court come against the tenant, the landlord has to file execution petition under section 14. There also you can file a revision to the appellate court.
The conduct of tenant in the proceedings cannot be taken against him when deciding the case on merit. Any of the ground under this Act is to be proved to evict the tenant. Order must be in terms of the provisions of the Act.
Tactics to resist petition for reconstruction
Section (S 11 (4) (iv)) of Kerala Rent control Act states that “if the building is in such a condition that it needs reconstruction and if the landlord requires bonafide to reconstruct the same and if he satisfies the Court that he has the plan and license, if any required, and the ability to rebuild and if the proposal is not made as a pretext for eviction:”
The tenant can take the defense that the building does not belong to the petitioner and thus deny the title of the landlord. The landlord has to go to the Civil Court and there too the tenant gets all the protection of the Rent Control Act. The landlord has to prove the ground under this act in the civil court also, the tenant is not deprived any of his right by denying the title of the landlord.
The tenant can plead that the building is not in such a condition that it requires reconstruction.
That the landlords requirement for reconstruction is not bonafide.
That there is no plan and license from the local authority for reconstruction.
The landlord has got no ability to reconstruct the building.
The proposal of reconstruction is made as a pretext for eviction.
There is no material advantage to the landlord.
The tenant should some how prolong the case in all the stages. Each posting we can manage to postpone will give us 3 to 4 months time. In the end you can have possession of the building as long as the court procedure prolongs. Even if the verdict of the court come against the tenant, the landlord has to file execution petition under section 14. There also you can file a revision to the appellate court.
The conduct of tenant in the proceedings cannot be taken against him when deciding the case on merit. Any of the ground under this Act is to be proved to evict the tenant. Order must be in terms of the provisions of the Act.
Tactics to resist petition for where the tenant acquires possession of a building
Section 11 (4) (iii) of Kerala Rent control Act states that if the tenant already has in his possession a building or subsequently acquires possession of or puts up a building, reasonably sufficient for his requirements in the same city, town or village;
Acquisition of buildings by one of the co – tenants, cannot entail eviction of common tenancy.
The tenant can take the defense that the building does not belong to the petitioner and thus deny the title of the landlord. The landlord has to go to the Civil Court and there too the tenant gets all the protection of the Rent Control Act. The landlord has to prove the ground under this act in the civil court also, the tenant is not deprived any of his right by denying the title of the landlord.
The petition under the ground of tenant acquiring building in the locality can be effectively defended by contesting that the building is in another person’s name.
The tenant should some how prolong the case in all the stages. Each posting we can manage to postpone will give us 3 to 4 months time. In the end you can have possession of the building as long as the court procedure prolongs. Even if the verdict of the court come against the tenant, the landlord has to file execution petition under section 14. There also you can file a revision to the appellate court.
The conduct of tenant in the proceedings cannot be taken against him when deciding the case on merit. Any of the ground under this Act is to be proved to evict the tenant. Order must be in terms of the provisions of the Act.
Tactics to resist petition for reducing value or utility of Building
Section 11 (4) (ii) of Kerala Rent control Act states that “if the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently;”
Defenses a tenant can take during contesting a petition for reducing value or utility of Building are that the building does not belong to the petitioner and thus deny the title of the landlord. The landlord has to go to the Civil Court and there too the tenant gets all the protection of the Rent Control Act. The landlord has to prove the ground under this act in the civil court also, the tenant is not deprived any of his right by denying the title of the landlord.
The petition on the ground of reducing value or utility of the building materially and permanently can be defended that the work done does not reduce value materially and permanently. Reduction of value should be material as well as permanent. Both the limbs, material and permanent nature, must be present in order to constitute the ground. Likewise the reduction of utility should be material as well as permanent. Both the limbs, material and permanent nature, must be present in order to constitute the ground. And further plead that the work done has only enhanced the value or utility.
The tenant can take the defense that the building does not belong to the petitioner and thus deny the title of the landlord. The landlord has to go to the Civil Court and there too the tenant gets all the protection of the Rent Control Act. The landlord has to prove the ground under this act in the civil court also, the tenant is not deprived any of his right by denying the title of the landlord.
The tenant should some how prolong the case in all the stages. Each posting we can manage to postpone will give us 3 to 4 months time. In the end you can have possession of the building as long as the court procedure prolongs. Even if the verdict of the court come against the tenant, the landlord has to file execution petition under section 14. There also you can file a revision to the appellate court.
The conduct of tenant in the proceedings cannot be taken against him when deciding the case on merit. Any of the ground under this Act is to be proved to evict the tenant. Order must be in terms of the provisions of the Act.
Tactics to resist petition for Subleting
Section 11 (4) i of Kerala Rent control Act states “if the tenant after the commencement of this Act, without the consent of the landlord, transfers his right under the lease or sub-lets the entire building or any portion thereof if the lease does not confer on him any right to do so:”
Effective Defenses that can be taken to resist a petition for subletting are enumerated below.
To effectively defend a petition for sub-letting make a partnership deed (not Limited liability partnership as LLP is a separate entity and will constitute subletting) with the original tenant or power of attorney from the original tenant.
Denial of title can also be effectively applied to defend this ground.
The tenant can take the defense that the building does not belong to the petitioner and thus deny the title of the landlord. The landlord has to go to the Civil Court and there too the tenant gets all the protection of the Rent Control Act. The landlord has to prove the ground under this act in the civil court also, the tenant is not deprived any of his right by denying the title of the landlord.
The conduct of tenant in the proceedings cannot be taken against him when deciding the case on merit. Any of the ground under this Act is to be proved to evict the tenant. Order must be in terms of the provisions of the Act. The tenant can make use of all the delaying tactics without any fear of passing an eviction order against him.
The tenant should some how prolong the case in all the stages. Each posting we can manage to postpone will give us 3 to 4 months time. In the end you can have possession of the building as long as the court procedure prolongs. Even if the verdict of the court come against the tenant, the landlord has to file execution petition under section 14. There also you can file a revision to the appellate court.
Tactics to resist petition for additional accommodation
S. 11 (8)
Section 11 (8) of Kerala Rent control Act states that “A landlord who is occupying only a part of a building, may apply to the Rent Control Court for an order directing any tenant occupying the Whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his personal use.”
The tenant can take the defense that the building does not belong to the petitioner and thus deny the title of the landlord. The landlord has to go to the Civil Court and there too the tenant gets all the protection of the Rent Control Act. The landlord has to prove the ground under this act in the civil court also, the tenant is not deprived any of his right by denying the title of the landlord.
The tenant can plead that the landlord does not require the additional accommodation for his personal use, and that that the claim of the landlord is not bonafide.
The tenant can further plead that the hardship that cause to the tenant outweigh the advantage to the landlord.
The conduct of tenant in the proceedings cannot be taken against him when deciding the case on merit. Any of the ground under this Act is to be proved to evict the tenant. Order must be in terms of the provisions of the Act. The tenant can make use of all the delaying tactics without any fear of passing an eviction order against him.
The tenant should some how prolong the case in all the stages. Each posting we can manage to postpone will give us 3 to 4 months time. In the end you can have possession of the building as long as the court procedure prolongs. Even if the verdict of the court come against the tenant, the landlord has to file execution petition under section 14. There also you can file a revision to the appellate court.
Tactics for Own Use
Section 11 (3) of the rent control Act provides for eviction of a tenant on the ground of own use. “(3) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bonafide needs the building for his own occupation or for the occupation by any member of his family dependent on him.
Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so:
Provided further that the Rent Control Court 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:
Provided further that no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument:
Provided further that if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him.”
This is the most common petition filed by the landlords to evict their tenants. We can positively win the case if we are able to prolong the case to a certain period of time by the procedures in the court. In the meanwhile there will be any subsequent event that can be used in favour of us or to prolong the litigation. Prolonging the litigation itself is a boon to our interest because all these time we can have possession and enjoyment of the building in question, that too at the rate of rent we used to pay. There are Court decisions in favour of tenants that any subsequent event that have a bearing on bonafide own use is to be looked into even at appellate or revisional stage of the suit or proceedings. Death of the landlord is detrimental to the case of the landlord but death of the tenant is of no consequence because even the heirs of the tenant is the tenant as per rent control laws. On the death of landlord the case has to be remanded. In Sheshambal vs. Chelur Corporation 2010 (3) SCC 470, JT 2010 (2) 260 In a case of bonafide requirement, it is always necessary, till the decree of eviction is passed that the landlord should satisfy that the need is bonafide subsists. In a case where the need is available at the time of filing the petition, but at the time of granting the decree it may not continue to subsist, in that event, the decree for eviction could not be made. Similarly pending appeal or revision or writ petition, the need may become more acute. The court should take into account all the subsequent events to mould the relief. the High court ought to have considered this aspect of the matter. Important matter we have to bear in mind is that we should some how or other prolong the litigation so that some subsequent event will be of great assistance in the result of the litigation.
There are provisos in the Kerala Rent Control Act to protect the tenant from eviction on the ground of own use under certain circumstances. The circumstances are;
i. The Landlord has another building in his possession
ii. The tenant is depending on the business conducted in the building for his livelihood.
iii. there is no other building available in the locality for conducting the business of the tenant.
iv. Landlord got right of possession within one year
v. Tenancy commenced after 1940
vi. Tenancy period is over.
The following are the conditions for eviction under own use. In other words, if the landlord wants an eviction of his tenant on the ground of own use then he has to prove;
1. He bonafide needs the building.
2. He has no other building of his own in his possession, if he has other buildings he has to prove special reasons to have this building.
3. The tenant has other income and that the tenant is not depending on this trade or business carried on in such building for his livelihood. and
4. There are other suitable buildings available in the locality for the tenant to carry on such trade or business.
5. The landlord got his right over the property prior to one year. (if he got the right from a living person)
6. The landlord should not transfer his decreetal right to any other person i.e. he has to execute the eviction order himself, otherwise the transferee has to prove his bonafide need.
7. The tenancy commenced after 1940. (s. 11 (17) ((Personal right of the tenant, hence the legal heirs will not get the protection),
8. If the tenancy is commenced before 1940 the landlord is living outside the city town or village for more than 5 years and, (s. 11(17)
a. Requires the building bona fide for his own permanent residence or, )s. 11(17)
b. For the permanent residence of any member of his family or, (s.11(17).
c. The landlord is in dire need for a place for residence and has none of his own. (s. 11 (17).
9. Landlord who got evicted the tenant on s.11 (3) must occupy the premises within one month of date of obtaining possession and should not vacate it within six months. The court can order redelivery of possession of the tenant under section 11 (12) if the landlord is not able to show reasonable cause for such non-occupation or vacation as the case may be.
10. The tenancy period is over Sec. 11 (9)
You can challenge all the above points and further take any of the delaying tactics including non appearance and let the court pass an exparte decree. You will get 30 days time to vacate an exparte decree.
Further you can file an appeal if any decree is passed against you. While filing appeal you make any of the co tenant opposite party and give a wrong address so that the service of notice will get a long time.
The tactics to be followed in a Rent Control Petition
IF any petition is being filed by the landlord, the foremost tactic to be followed by a tenant is to get the proceedings delayed. The delaying tactics cannot be taken into consideration while deciding the matter judiciously and on merit.
Thereafter each petition is to be looked separately for specific pleadings to be taken while defending each grounds of eviction. The grounds of eviction under The Kerala Buildings (Lease and Rent Control) Act are
- Arrears of Rent (11 (2) b
2. Own Use (11 (3)
3. Sub Letting (11 (4) i)
4. Reducing Value or Utility of the Building (11 (4) ii)
Tactics to resist petition for reducing value or utility of Building
5. Tenant Acquiring another Building (11 (4) iv)
Tactics to resist petition for where the tenant acquires possession of a building
6. Reconstruction (11 (4) v)
7. Ceases to occupy (11 (4) vi)
Tactics to resist petition for tenant ceases to occupy the building
8. Additional Accommodation (11 (8)
Defenses that can be taken for a petition for arrears of rent are :-
For a petition for eviction on the ground of Arrears of rent under section 11 (2),
(i) Deny the rate of rent and period of arrears so that landlord has to prove both these aspects.
(ii) Deny the service of notice, because the service of notice is a mandatory condition.
(iii) The tenant can take the defense that the building does not belong to the petitioner and thus deny the title of the landlord. Though the landlord cannot evade the Rent Control Act the tenant can evade the summary procedure prescribed in the Rent Control Act by just denying the title of the landlord. The landlord has to go to the Civil Court and there too the tenant gets all the protection of the Rent Control Act. The landlord has to prove the ground under the Rent Control Act in the civil court also, after proving his title, the tenant is not deprived any of his right by denying the title of the landlord.
(iv) Apply for extension of time for payment of arrears, this extension of time can be given according to the discretion of the court and there is no limit.
(v) After all the procedure, i.e. Appeal and revision, deposit the arrears within 30 days of last order. This deposit need only for the original arrears as per the petition, the arrears accrued during the petition need not be deposited, in order to avoid eviction.
The conduct of tenant in the proceedings cannot be taken against him when deciding the case on merit. Any of the ground under this Act is to be proved to evict the tenant. Order must be in terms of the provisions of the Act.
Payment of substantial amount by tenant towards construction cost of building and expenditure for improving the building for the purpose of business is a valid defense for ground of eviction under S.11(2)(b.
Kerala Building Tenants 