Suit and proceeding for eviction section 11 -13
SUITS AND PROCEEDINGS FOR EVICTION
In this blog you will read about rights of tenant against eviction from section 11 to section 13 which include section 11(a),(b) section 12, 12(a) section 13.
Contents of the article :-
1. Protection of the tenant against the eviction.
2. Restoration of possession of defense person Section 11a
3. Recovery of Possession of Residential Building by Railway persons (11-B)
4.When a tenant can get the benefit of protection against eviction (Section12)
5. Restoration of possession to the tenant in the event of fire:Section 12-A:
6. When the tenant is entitled for restoration of possession (section 13)
Let's start ;-
Under Section 11-13 of j&k home and rent control act 1966 various rights with relation to possession , against eviction are granted to tenant.
Sub-section (1) of Section 11 has two parts. The first part opens with the words “Notwithstanding anything to the contrary in any other Act or Law”. These words
are known as non-obstante clause. A non-obstante clause is used in a provision to indicate that, that provision should prevail despite anything to contrary in any other provision. The non-obstante clause of the section hence means any law in force or any contract between the parties which is contrary to the provisions of Section 11(1) is not enforceable. The Second part of the Section is Proviso attached to the Section which provides certain grounds on which a decree or order for eviction can be passed by the Courts.
The first part of Section 11(1) prohibits the Courts the from passing an order or decree for the recovery of possession of the demised house or shop in favour of the landlord
against a tenant, including a tenant whose lease has expired. Such type of clauses which protect the tenant from arbitrary eviction or prohibits the Courts from passing any Order or Decree against a tenant including a tenant whose tenancy has expired,
Section 111 of the Transfer of Property Act
provides that when the tenancy of a tenant expires, it is his duty to surrender the possession to the landlord. At this juncture, Section 11 Sub-section(1) of J&K Houses and Shops Rent Control Act comes into operation and restrict the operation of Section 111 of Transfer of Property Act. It provides an opportunity to the tenant to possess the house or shop till he require.
As prior to Rent Control Act, in Jammu and Kashmir the relationship between the landlord and the tenant was governed by the Circular No.136 of 1894 (as discussed earlier in House control act legislation history in j&k ) . By virtue of this Circular the Judicial Courts were empowered to issue the Order for the eviction on a simple application made by landlord in that behalf.
Despite this fact that Section 11 Sub-section (1) provide protection to the tenant against
the eviction, it does not curtail the powers of the landlord or restrict the landlord in any case to get the eviction when the tenant is not a good tenant or where the premises is personally required to him.
Under the following circumstances the decree of the recovery of possession of any house or shop may be passes in favour of landlord .
1. when the tenant transferred his tenancy right in whole or on part otherwise than by sub-lease. The clause expressly provides that the lessee by transferring the whole or part of the interest in his tenancy rights with possession otherwise than by sub-lease renders himself liable for being ejected of the tenanted premises. Notice to the lessor of the transfer does not affect the liability.
Illustration:- ‘A’ leases out a house to ‘B’ for a term of nine years commencing on the
1st January, 1990. ‘B’ on the 1st of January,1991transferr his tenancy rights in half of the house with possession thereof in favour of ‘C’ retaining the other half to himself as a tenant of ‘A.’ He is liable to be ejected from the house under this clause.
the landlord’s right to evict a tenant who has transferred his tenancy rights in whole or in part with possession thereof is not confined only to the tenant who has transferred the tenancy rights, but even against the transferee of such tenant
2. If the tenant has sub-let the whole or a major portion of the house or shop for more than seven consecutive months.
3. If the tenant has violated the provision of TP Act, section 108 which deals with the rights and liabilities of lesser and
lessee.
4. Where the tenant has been using the house or shop or any part, or allowing the
house or shop or any part to be used for immoral or illegal purposes:
If the immoral or illegal purpose or object of the tenant is proved before the Court the land lord can get the tenant evicted from the House or shop. The words “has been using” occurring in the clause indicate that the act of immoral or illegal use must continue at the date of presentation of the suit. The using of the premises for illegal or immoral
purpose is a condition precedent for the application of this ground. Therefore, from the analysis of this clause it is obvious that the following ingredients are necessary to be proved by a landlord to evict his tenant on this ground;-
(i). There must be a tenancy subsisting between the landlord and the tenant in terms of the Act.
(ii). The tenancy must be relating to the house or shop.
(iii). The use of house or shop or any part of the house or shop for illegal or immoral purpose may be by the tenant or any person residing with him or even by a stranger as the words used are “using or allowing the use”.
5. another ground to the landlord to evict the tenant from the demised house or shop on the ground that the tenant has failed to
occupy the house or shop for a period of not less than seven consecutive months. The clause has specifically used both the words “use or occupy” which means that mere possession is not sufficient.
6. landlord can also evict a tenant from the demised premises where the condition of the house or shop has materially deteriorated owing to the act of waste by, or negligence or default of the tenant, or any person residing with the tenant or for whose behavior the tenant is responsible.
7. Where the tenant is guilty of conduct which is nuisance or annoyance to
occupiers of adjoining or neighbouring houses or shops including the landlord
8. where the house or shop is reasonably required by the landlord
(i). either for purpose of building or rebuilding; or
(ii) for his own occupation; or
(iii) for the occupation of any person for whose benefit the house or shop is held,
the landlord is subject to the conditions engrafted in the proviso and explanation attached to the clause can evict the tenant on any of these grounds.
Recovery of Possession of a residential building by defence personal (11-A)
Under section 11A the possession of residential building shall be stored within 1 month from the a date of the application to the controller if the following conditions are satisfied ;-
a) If the landlord is a member of defence forces and produces a certificate of commanding officer, that he's served, serving officer.
b) that the land lord is member of defence services and requires it for his own occupation on retirement, discharge certificate from commanding officer of such retirement.
c) if the landlord is the wife of deceased members of defense service and produce a certificate from commanding officer that her husband has martyred.
Recovery of Possession of Residential Building by Railway persons (11-B)
the employees of the Railways Department also enjoy the special benefit under Section 11-B of the Act with respect to recovering of their residential building and to let out to the tenants. According to the provisions of this Section where the landlord serving in the Railways Department of the Government of India within one year prior to or within one year after the date of his retirement applies to the Controller along with a certificate from the authority competent to remove him from the services indicating the date of
his retirement , accrues a right to recover immediately the possession of such residential building or any part or parts of such building if let-out in part or parts.
When a tenant can get the benefit of protection against eviction (Section12)
However, if a suit for ejection is instituted against the tenant under this clause, he is still protected under section 12 of the Act.
A) the landlord filed a suit for recovery of possession against tenant and when the tenant default under sec. 11(1)i) and court shall determine the amount of rent with interest of 9.38% P.A.
B) the fixed rate shall be paid within 15 days of the order.
C) if the fixed rent is paid by tenant or deposited in the court, the suit for recovery of possession of house or shop shall be dismissed by the court.
D. If during proceeding of the suit the landlord and tenant may make a joint application at any stage of the suit that tenant is ready to pay and deposit month by month rent at the rate which us due and also the arrear of the rent. The court may order to dismiss the case.
Restoration of possession to the tenant in the event of fire:Section 12-A:-
Sub-section (1) of Section 12-A gives the ex-tenant of a house or shop a prior right of re-entry to the newly constructed building which had been destroyed in fire. After the completion of the building which has gutted in fire the landlord under Sub-section (2) of Section 12-A is obliged to give a one month prior notice to the ex-tenant to re-enter the building.
However the tenant now has to pay the rent according to the market value and convey his consent to the landlord with in a
period of 15 days from the date of the receipt of the notice. Failing to reply within the prescribed period would forfeit his right of re-entry.
When the tenant is entitled for restoration of possession (section 13)
Section 13 of the Act engrafts the remedy available to the tenant ejected on any one of the following grounds to re-occupy the demised premises on the basis of which he had succeeded to obtain a decree for possession in his favour.
(1). Where the landlord recover the possession of any house or shop from the tenant by virtue of a decree passed on the basis of clause ‘h’ of the proviso of section 11 (1) and the building or rebuilding of the house or shop is not commenced within the six months.
(2). Where the house or shop is not occupied by the landlord or the person for whose benefit the house or shop is held within two months of the date of vacation of the house or shop by such tenant made in pursuance of a decree under clause ‘h’ of the proviso to sub-section (1) of Section 11.
(3). Where the house or shop has been occupied in pursuance of a decree on the ground of personal requirement, or requirement of a person for whose benefit the property is held is again let out within six months from the date of such vacation to any person other than such tenant without the permission of the Controller obtained in the prescribed manner.
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