Q1. I filed an eviction petition on the ground of bona fide requirement
under the Delhi Rent Control Act. Since, I was not too well I did not appear
for evidence before the Court and instead I got the examination of my Power of
Attorney who gave evidence before the court. Is such an evidence proper in a
case of bona fide requirement?
A. The best person to prove bona fide
requirement of a landlord is the landlord itself. In case you could not appear
before the court for some extreme reasons, you should have got yourself
examined on commission. The court generally takes an adverse inference in case
the landlord himself does not appear for leading evidence for a bona fide
requirement. It would be appropriate that even now you should filed an
application for your own evidence in the court and you should not rely upon the
evidence given by your Power of Attorney.
Q2. What are the essential requirements in case a widow wants to file an
eviction petition for getting back her tenancy let-out at a monthly rent of Rs.
1,500/-?
A. The essential things required for
filing an eviction petition by a widow are that she should be the land lady of
the premises and the premises should be required by her for her own residence.
The said apart nothing else is required to be proved in such a case.
Q3. I have instituted a petition for bona fide requirement under the
Delhi Rent Control Act. In the said petition I am claiming that I have a grown
up son of 18 years of age and I require one separate room for that son. Is such
a demand of requirement of a separate room justified?
A. Yes, such a demand is justified.
One single room is required for the grown up child who should be free to use
and live in that room in the manner he likes and should be free to devote his
time to his studies without disturbance. The ground is justified and bone fide
requirement can be proved on this ground.
Q4. How can a premises be sublet by a tenant?
A. Under law any subletting by a
tenant has to done by a written consent given by the landlord, who has let-out
the premises to the tenant. In case there is no written consent to the tenant
by the landlord to sublet, any subletting done by the tenant is illegal and in
such an eventuality the tenant should be liable for eviction from the premises.
Q5. Can a suit for eviction be filed against the tenant by the landlord,
if the monthly rent is Rs. 2,500/- ?
A. Under the Delhi Rent Control Act,
no suit for eviction of a tenant can be filed. Section 50 of the Delhi Rent
Control Act, clearly bars the jurisdiction of a civil court. For evicting a
tenant a petition can be filed only under the grounds mentioned in the Delhi
Rent Control Act, before a Rent Controller
Q6. I have filed a case against my tenant in which a question has arisen
about the difference between ‘tenant at sufferance’ and ‘tenant by holding
over’. Can you enlighten me on the same.
A. If after expiry of the period of
tenancy or after his determination a tenant continues in possession without
landlord’s consent, the said person (tenant) holds the property as tenant at
sufferance having no interest. For his ejectment no notice is necessary. But a
tenant by holding over is different. To be tenant by holding over he is to
continue in possession after the efflux of time with the consent express or
implied of the owner. It is a creature to bilateral consensual act. It is not
created by unilateral intendment.
Q7. Is it correct that whenever the rate of rent is altered, a fresh
tenancy comes into being ? If a landlord accepts enhanced rent during the
period of the tenancy, does the earlier tenancy comes to an end and a new
tenancy begins. What does law say on this ?
A. It is not correct to say that
whenever a rate of rent is altered, a fresh tenancy come into being and the old
tenancy stands surrendered by implication. Landlord accepting an enhanced rent
during the terms of tenancy say at 18th year when the tenancy was for 20 years,
it cannot be said that the earlier lease has not been surrendered by
implication. The old lease subsists and the end of the term the tenancy comes
to an end by efflux of time.
Q8. I am the co-owner of a property which is on rent. The tenant is not
paying the rent for the last four months, but the other co-owners of the
property are not interested in filing any case for the recovery of the arrears.
Can I file a case for recovery of my share of the arrears of rent ?
A. In a Co-owner’s suit for recovery
of proportionate rent and splitting up of tenancy, it is open to a co-owner to
pray for a decree for his share of arrears of rent by filing a suit on the
basis of unified and integral tenancy and without making any effort to split up
the same. It cannot be said that a co-owner must sue for the entire arrears of
rent and if he does not do so he cannot maintain an action.
Q9. A Notice by predecessor of interest ejectment suit by successor A
notice to terminate tenancy was issued by the Estate Manager of the Bombay Port
Trust (constituted under the Bombay Port Trust Act 1879) on behalf of its Board
of Trustees to the tenant occupying the building owned by the Port Trust.
Before the expiry of notice period there was a change in law and the successor of
Board to Trustees instituted the ejectment suit. Is such a suit legal and valid
in law ?
A. The right to eject tenant acquired
by the erstwhile Board of Trustees acquired by giving notice to quit ensured
for the benefit of the successor of the Board of Trustees. Therefore the suit
for ejectment filed by the successor Board was competent. It is no doubt true
that per se Section 109 of the Transfer of Property Act does not apply to the
facts of the instant case. It contemplates transfer of lessor’s right inter
vivos. But when right, title and interest in immovable property stand
transferred by operation of law, the spirit behind s. 109 per force would apply
and successor in interest would be entitled to the rights of the predecessor.
Q10. I let out one floor of my house to a tenant but the lease was not
registered. have been accepting rent from him. Is the lease for the period
mentioned in the lease deed. Is a notice necessary for evicting my tenant ?
A. When a tenant continues in
possession after expiry of the term contemplated on an unregistered deed of
lease, and pays rent, he is a tenant by holding over from month to month, the
unregistered lease deed being inadmissible and term of lease being not a
collateral purpose. For his eviction notice under Section 106 of the Transfer
of Property Act Act is mandatory.
Q11. What is the difference between a joint tenant and tenants in common
?
A. The basis distinction between
joint tenants and tenants in common is that in case of joint tenants there is
unity of title and possession, while in the case of tenants in common, though
there is a unity of possession there no unity of title.
Q12. I have filed a suit for vacation of my rented property. The tenant
has challenge the validity of the notice I served him under Section 106 of the
Transfer of Property Act. What is the legal requirement for such a notice ?
A. What s. 106 requires is that a
lease from month to month is terminable on the part of either the lessor or the
lessee by 15 days’ notice expiring with the end of a month of the tenancy. A
legal termination of the monthly tenancy thus requires two conditions to be
fulfilled viz. That there must be a notice terminating the tenancy giving 15
day’s notice and it must be expire with the end of the tenancy month. A notice giving
mere 15 days’ time by itself will not answer the requirement of s. 106 but it
must also indicate that the 15 days’ period must expire with the end of the
tenancy month.
Q13. My uncle had taken a property on rent where he is carrying on
certain manufacturing of goods. The landlord has served a notice for ejectment
on the basis that the property was let out for residential and not
manufacturing purpose. What is required to be shown by us to prove that the
tenancy was for manufacturing purpose ?
A. The tests for determining if a
lease is for manufacturing purpose are (1) that it must be proved that a
certain commodity was produced, (2) that the process of production must involve
either labour or machinery, (3) that the end product which comes into existence
after the manufacturing process is complete, should have a different name and
should be put to a different use. In other words the commodity so transformed
as to lose its original character.
Q14. My father owned a premises which were on rent with a tenant. During
the tenancy since my father required some money, the property was mortgage to
the tenant. Now my father has repaid the amount to the tenant. Would it mean
that the tenancy is automatically surrendered by the tenant ?
A. When a landlord mortgages the
premises to his tenant, then no redemption of the mortgage the landlord does
not ipso facto get the right to eject the tenant. When mortgage is executed the
question whether the tenancy stood impliedly surrendered or not is the
yardstick. If it is, the landlord gets the right to evict. There is no question
of merger of the two rights, for neither of them is a higher or lesser estate.
Q15. My Landlord is disputing that my tenancy is nit a lease but a
license. There is no written agreement between us. How does one differentiate
whether it is a lease for a license?
A. The crucial test in each case is
whether the instrument is intended to create or not to create an interest in
the property the subject matter of the agreement. If it is in fact intended to
create an interest in the property it is a lease, if it is does not it is a
license. In determining whether the agreement creates a lease or a license the
test of exclusive possession though not decisive is of significance.
Q16. A was inducted as a tenant in the premises, but the rent was always
paid by the firm in which A was a partner. Is it not that the partnership firm
becomes a tenant under such circumstances ?
A. A relationship of landlord and
tenant is created by contract. Mere payment of rent does not necessarily
establish relationship of landlord and tenant. A was found to be the tenant,
the fact that a firm made payment of rent on behalf of A who was partner of
that firm would not make the firm a tenant.
Q17. I am living in a rented premises with disputed ownership the pay
monthly rent to “B’ Is mere acceptance of rent sufficient to make `B’ the
landlord?
A. Landlord is the person who has the
right to receive rent. Mere acceptance of rent does not make `B’ the landlord
unless he has the legal right to receive the rent.
Q18. What is a Standard rent? How is standard rent fixed? When can I
make an application for fixation of standard rent?
A. Standard rent is the rent which
the land lord is expected to receive from the tenant. Standard rent is only
provided if the property is under Rent Control Legislation . Under Section 6
the Standard rent to be fixed. Under the provisions of Delhi Rent Control Act
the application for the fixation of Standard Rent Act can be moved within two
years of the creation of the tenancy. Delhi Rent Control Act will be applicable
only if a the rent is less than Rs. 3,500/-
Q19. I have sub-let the house where I am presently living. Does it
constitute a ground for eviction?
A. If the rent is less than Rs. 3,500
then subletting a one of the grounds for eviction u/s 4 ( d) Rent Control Act.
If the rent is more than Rs. 3,500 then there is no formal condition agreed
upon between the landlord & tenant about the subletting in that eventuality
. The landlord has the right to make the lease on account of subletting. Under
the termination of lease the landlord has the ground to file a suit for
possession.
Q20. I am a tenant under a valid lease agreement. I have not been
receiving electricity bills for the meter installed in the premises under my
occupation. However, the said meter is in the name of my landlord. Suddenly,
one day NDMC officials informed me that my meter is to be disconnected on
account on non-payment of bills. Can I seek any relief from the Court as the
meter is in the name of my landlord?
A. There is no privity between tenant
and the NDMC and as such no relationship could be established between them . It
is better to obtain duplicate bills from the NDMC and pay the same to avoid
disconnection.
Q21. We are tenant of a house . We have not given rent for the month of
March & April we are old tenant since 1994. We don’t have the new agreement
& our landlord want us to vacate the house. We are already fighting in the
court. Can he take us out without any notice? Can we stay there for longer?
A. You have not specified in your
question as to what is the monthly rent of the premises and as to whether the
Agreement under which it was taken was in writing and was registered and what
was the duration of the tenancy. Further you have also not mentioned about the
nature of the litigation pending in the Court. In any event in case the monthly
rent is below Rs. 3,500/-, the provisions of Delhi Rent Control Act, would be
applicable, wherein you can be evicted only under certain specified grounds
which includes not payment of rent , subletting of the premises, bonafide
requirement of the landlord etc. In case the monthly rent is above Rs. 3,500/-
and agreement is registered (if over one year) then the terms of the lease
would prevail. The landlord under such circumstances is liable to serve you
with a notice under Section 106 of the Transfer of Property Act giving 15 days
time on the expiry of the tenancy month for terminating the tenancy. Thereafter,
he has to file a suit for ejectment which will be tried by the Court. The
landlord cannot forcibly evict you from the premises and the procedure before
the Court will take few years to be decided. The strength of your case can only
be told on having details of the case. You should however, pay the rent to the
landlord either by sending the same by money-order or by depositing the same in
court in the litigation already pending.
Q22. I am a tenant of 2 separate tenements, one shop and one float, but
I have only one rent receipt for both. The entire building is now being
redeveloped by a private developer who says that since I have only one rent
receipt I can get only one tenement viz., a flat of 750 sq. ft. How do I verify
the user (residential/non residential)?
A. If you have sufficient proof to
establish that two properties, i.e. one shop and one flat, are absolutely
separate from each other, then it will be taken as two different properties.
This can be proved by way of evidence of various persons who have visited the
shop and the flat. As you have stated that there is only one receipt, the
question is whether in the receipt two rents are mentioned or a single rent is
mentioned ? If two rents are mentioned in a single receipt that by itself is a
proof that there are two different properties. If there is single rent
mentioned in the rent receipt, then it has to be seen if two properties are
anywhere indicated in the receipt, which will help you to prove your case.
Further, whether the shop is separable from the residential portion, the same
is also a fact to prove that there are two different properties, i.e. a shop
and a flat. In your case the different users, itself proves that there are two
separate properties and you can always claim compensation for two properties.
Q23. “Sufficient cause”, as required by rent controller for non deposit
of rent within statutory period, if shown by the tenant that he could not
deposit the same as advocate did not take necessary steps and he later changed
the advocate and also informed the controller his willingness to pay the
arrears, if no affidavit of the previous advocate was submitted but Rojnama
entries do suggest that on 2 previous occasion the advocate was not personally
present and tenant himself had to submit the Vakalatnama of his advocate, can
the controller rule that tenant has not shown sufficient causes?
A. While construing as to what is a
‘sufficient cause’, the courts normally look into various aspects of the case.
The matter is solely at the discretion of the court concerned and if a good
cause is shown, the courts normally condone any irregularity or default by a
party. It is but obvious that in the situation mentioned by you, the previous
advocate who has defaulted in depositing the arrears of rent, would not give
his affidavit admitting his default. In such case you should file your own
affidavit and further bring the proofs which would show that you had given the
amount of arrears to the advocate for being deposited and it was on account of
the default of the advocates that the needful could not be done. If the same is
done the court would construe the same as a sufficient cause.
Q24. “Sufficient cause” , as required by rent controller for non deposit
of rent within statutory period, if shown by the tenant that he could not
deposit the same on medical ground i.e. suffering slip disc and submits also
medical certificate from Government hospital and also from specialist private
doctor, can the rent controller reject the certificates outright as the tenant
was personally present in the court on prior occasion to file Vakalatnama of
advocate where the matter was adjourned to a further date, although the tenant
has pleaded that he was present in the court disregarding medical advise and
with great difficulty as his advocate was not present in the court on that day?
A. The ground mentioned by you in the
query for being construed as a sufficient cause, may not hold good before the
court. The same might be rejected on the ground that if you are unwell, some other
person could have been deputed by you to deposit the arrears or to engage an
advocate to do the needful. The medical certificate may just help you to seek
condonation of delay in depositing the arrears only for a few days, but not for
any longer time. Further, if the tenant was present in the court and the order
was passed and the tenant was aware of the same, it is immaterial that he was
present there against the medical advice. If he could be present to attend the
hearing, there can be no justification for not depositing the arrears on the
said date.
Q25. We had given one floor of our house on rental basis for two years.
Our tenant had neither given rent from past one & half years nor he is
willing to vacate it. Now tenancy time of 2 years is going to over in this
month. We had also made a simple agreement on affidavit witnessed by property
dealer BUT NOT A LEGAL ONE BY COURT. WHAT SHOULD I PROCEED ?
A. You should issue legal notice to
the tenant for the non payment of rent and also terminate the tenancy by way of
notice, which should be of 15 days expiring at the end of the tenancy month.
After the expiry of notice period, if the rent is more than Rs. 3,500/- p.m.
you can file the suit for recovery of possession along with arrears of rent.
You can also file an application for deposit of future rent in the court, If
the rent is below Rs. 3,500/- p.m., you can file the petition for eviction on
non payment of rent. If it is a newly constructed property and the letting is
first letting then you can file the suit for possession irrespective of rate of
rent. In such a case the Rent Act is not applicable.
Q26. During pendency of eviction proceedings if there are arrears of
rent should the controller direct the tenant to pay such arrears if the tenant
wants to contest further proceedings?
A. If the eviction petition is on the
ground of non payment of rent then the Rent Controller is under duty to pass an
order for deposit of rent u/s 15 (1) of Delhi Rent Control Act. If the eviction
petition is on any other ground then you have to make an application under
Section 15 (2) of Delhi Rent Control Act for direction to the tenant to deposit
the rent. If no rent is deposited as per order of the court, the court has the
right to strike off the defense of the tenant.
Q27. What do the term “sufficient cause” and bonafide payment mean?
A. The term “sufficient cause” means
a good and reasonable cause which will satisfy the court about the conduct of a
person being genuine and “bonafide payment” means payment tendered genuinely
and in good faith generally with the actual belief that the person to whom
payment is being made is the actual owner or has valid right and title tot the
particular thing/property.
Q28. What are the grounds on which delay can be condoned for non deposit
of rent within the statutory time?
A. As such there are no written
grounds for condonation of delay for deposit of rent. U/Sec, 15(7) of Delhi
Rent Control Act., “Sufficient Cause” is the only ground which further depends
from to facts of the case and the Court may if convinced, condone such delay.
Q29. What should I do to make sure that if I rent my property to
someone, as to make it safe. The rent would be around Rs.15,000/- per month.
A. The Delhi Rent Control Act, 1988
was primarily in acted to safeguard the interest of the tenant . However after
the amendment made in the Delhi Rent Control Act, in the 1988 the provisions
was made that in case the tenancy is over Rs. 3,500/-, the provisions of the
Delhi Rent Control Act, 1958 would not to be applicable. In the eventuality the
person is governed by the normal loss relating to the contract between the
party and in a tenancy said law is defined under the Transfer of Property Act.
There can be no provision or term in a lease deed which can secured you 100%.
However the violating of the property if the would be appropriating better if
the rent is kept above Rs. 3,500/-, so that the tenant is not entitled to the
protection under Delhi Rent Control Act. If the lease is to be executed for a
more than a period, the same is bound under law to be register under Indian
Registration Act. and if your are executing a lease over one year you should
get the register otherwise the terms of the lease cannot be led as evidence in
the court . Even if you write all the request terms, the tenant can still
refused to vacant at the end of the tenancy in which eventuality you will have
no option but to proceed to the court for eviction of the tenant which normally
take a few years, however the precaution which can be taken if that is a good
amount can be kept as security and further a clause should be incorporated in
lease deed specifying a huge amount as damages in the even talk the tenant
willing to vacate the premises.
Q30. If premises are rented to a partnership firm and subsequently the
firm is dissolved and the 2 partners continue to occupy the premises for their
individual businesses, if the landlord files eviction proceedings against only
1 partner and manages to get a decree of eviction, is the other person also
bound by that decree and in case he is not can he obtain a stay from the
executing court or what are the other options for him?
A. If the decree is against the one partner then the partner who had been
left, has the right to be heard and he may get the stay from the executing
court. In your case if the landlord had made the firm also a party and there is
a decree against the firm in that case the decree against the firm means decree
against all the partners.
Source: vakilno1.com