Supreme Court on adjournments: No more tarikh pe tarikh

NEW DELHI: More than 28 years after the “tarikh pe tarikh” dialogue in the film “Damini” encapsulated the common citizen’s views on the meandering case trial process, the 

Supreme Court

 on Thursday barred grant of repeated adjournments routinely and told trial court judges to risk becoming unpopular among advocates by refusing at the drop of a hat any request for deferment of hearings.

Frowning at the 10 adjournments granted by an 

MP court

 in an eviction suit to delay the process by four years, a bench of Justices M R Shah and A S Bopanna said, “The courts shall be very slow in granting adjournments... The time has now come to change the work culture and get out of the adjournment culture so that the confidence and trust put by the litigants in the justice delivery system is not shaken and the rule of law is maintained.”

SC: Repeated adjournments break the back of litigants

Writing the judgment, Justice Shah said many a time the tactic employed by unscrupulous litigants is to seek repeated adjournments and cause enormous delay to deny justice to the opposite party. “Repeated adjournments break the back of litigants. The courts are enjoined upon to perform their duties with the object of strengthening the confidence of the common man in the institution entrusted with the administration of justice.”

Any effort which weakens the system and shakes the faith of the common man in the justice dispensation has to be discouraged. Therefore, the courts shall not grant adjournments in a routine manner and mechanically and shall not be a party to cause for delay in dispensing justice. The courts have to be diligent and take timely action in order to usher in an efficient justice dispensation system and maintain faith in rule of law,” the bench said.

The SC was aware of the work culture in trial courts where a judge invites the displeasure of litigants and becomes unpopular among advocates if s/he takes a strict view and refuses adjournments sought routinely.

“The judicial officer shall not worry about that if his conscience is clear. The judicial officer has to bear in mind his duties to the litigants who are before the courts and who have come for justice and for whom courts are meant and make all efforts to provide timely justice to the litigants,” the SC said.

The SC said because of this untrammelled adjournment culture prevailing for years in the justice delivery system, the litigants' right to speedy trials has become elusive. “Arrears are mounting because of such delays, dilatory tactics, advocates asking for repeated adjournments and the courts mechanically and routinely granting it,” Justice Shah said.

It cannot be disputed that due to delay in access to justice and not getting timely justice may shake the trust and confidence of the litigants in the justice delivery system,” the SC warned.

Order VIII Rule 1 CPC | Time Limit For Filing Written Statement is Directory not Mandatory: Kerala HC

Recently, The Kerala HC ruled that the proviso to Order VIII Rule 1 CPC, fixing the time limit, is only directory.

The bench of Justices A. Muhamed Mustaque and Shoba Annamma Eapen observed that the binding judgment is an enunciation of the law, on a point directly and specifically arisen for consideration by the Apex Court.

In this case, The plaintiffs filed a suit for a declaration that the Government Order, ordering the dispossession of the plaintiffs from the suit premises is illegal and for a consequential injunction to restrain the defendants from dispossessing the plaintiffs from the suit property. 

An application was filed by the Additional Government Pleader to receive written statement after the condonation of delay of 47 days in filing the written statement. 

The plaintiffs raised objections in receiving the written statement after the outer limit of the period referred to in Order VIII Rule 1 CPC. 

Overruling these objections, the Sub Judge, in a reasoned order, condoned delay in filing the written statement and received the written statement on record. 

The issue for consideration before the bench was:

Is the time limit fixed under Order VIII Rule 1 of the Code of Civil Procedure for filing a written statement, mandatory or directory in character?

The bench relied upon the case of Kailash v. Nanhku & Others where the Apex Court considered the mandate of Order VIII Rule 1 CPC. The question considered was whether the time limit of 90 days as prescribed under the proviso appended to Order VIII Rule 1 CPC is mandatory or directory in nature. The Apex Court held that the time limit fixed is only directory in nature and further opined that the observation by the Apex Court in Dr.J.J. Merchant’s case is obiter

High Court further relied upon the case of M/s. R.N. Jadi & Brothers And Others v. Subhashchandra where the Apex Court considered the question of receiving written statement beyond 90 days. The Apex Court held that the time limit prescribed is directory in nature. However, the extension beyond 30 days is not automatic and should be exercised with caution and further held that the extension of time beyond 90 days must be granted only based on the clear satisfaction of the court.

The bench noted that when a point directly and specifically comes up for consideration before the Apex Court subsequently and the Apex Court decides the matter, the judgment of the subsequent Bench will have to be followed as a binding precedent. 

High Court after referring to various judgments observed that the proviso to Order VIII Rule 1 CPC, fixing the time limit, is only directory.

Case Title: M.M. Madhavan Namboodiri v. The Tahsildar 

Bench: Justices A. Muhamed Mustaque and Shoba Annamma Eapen

Case No.: OP(C) NO. 1139 OF 2018

Counsel for the appellant: Adv. B.G. Bhasker

Counsel for the respondent: Adv. B. Parthasarathy

Under Section 3(1) of the Employees Compensation Act, 1923[2], if personal injury is caused to an employee by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation.

Under Section 3(1) of the Employees Compensation Act, 1923[2], if personal injury is caused to an employee by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation.

How is workman's compensation calculated in case of death?

Under the Workmen's Compensation Act, compensation is offered to the workers and their.
...
Compensation in Case of Death

1. 5000 funeral expense is payable.
2. 60% of monthly salary X relevant factors based on the age of the worker.
3. 1,40,000 is the minimum amount payable

വിദേശ പൗരത്വം എടുത്ത ഇന്ത്യക്കാർക്ക് സ്വത്തുക്കൾ വിൽക്കുകയോ പണയം വയ്ക്കുകയോ ചെയ്യണമെങ്കിൽ റിസർവ് ബാങ്കിന്റെ പ്രത്യേക അനുമതി വേണം; സുപ്രീം കോടതി വിധി

വിദേശ പൗരത്വം എടുത്ത ഇന്ത്യക്കാർക്ക് സ്വത്തുക്കൾ വിൽക്കുകയോ പണയം വയ്ക്കുകയോ ചെയ്യണമെങ്കിൽ റിസർവ് ബാങ്കിന്റെ പ്രത്യേക അനുമതി വേണം; സുപ്രീം കോടതി വിധി

June 15 2022

 

ന്യൂഡൽഹി :വിദേശികൾക്ക് റിസർവ് ബാങ്കിന്റെ അനുമതിയില്ലാതെ ഇന്ത്യയിലെ വസ്തുക്കൾ പണയം വയ്ക്കുവാനോ കൈമാറ്റം നടത്തുവാനോ ചെയ്യാൻ കഴിയില്ലെന്ന് സുപ്രീംകോടതി വിധിച്ചു. ജസ്റ്റിസ് എ എം ഖാൻവിൽക്കർ അധ്യക്ഷനായ മൂന്നംഗ ബെഞ്ച്, ഫോറിൻ എക്സ്ചേഞ്ച് റെഗുലേഷൻ ആക്ടിലെ 31ാം സെക്ഷന്റെ അടിസ്ഥാനത്തിലാണ് വിധി പ്രഖ്യാപിച്ചത്.

വിദേശികൾക്ക് ഇന്ത്യയിലെ റിയൽ എസ്റ്റേറ്റ് സംവിധാനങ്ങളിൽ ഇടപെടാൻ ആകില്ലെന്ന് FERA സെക്ഷൻ 31 ലോക്സഭയിൽ അവതരിപ്പിച്ചപ്പോൾ വ്യക്തമാക്കിയിരുന്നതാണ്. ആ നിയമത്തെ പരിപൂർണ്ണമായി നടപ്പാക്കാൻ ശ്രദ്ധ ചെലുത്തിയ സർക്കാരിന്റെ ഉദ്ദേശശുദ്ധിയെ കോടതി പരാമർശിച്ചു.

റിസർവ് ബാങ്കിന്റെ അനുമതി നേടാതെ സ്വത്തുക്കൾ കൈമാറ്റം നടത്തിയാൽ നിയമപരമായി അത് നിലനിൽക്കുന്നതല്ല. ഇതുവരെ നടന്ന കൈമാറ്റങ്ങൾ ഈ നിയമത്തിന്റെ കീഴിൽ വരില്ലെന്നും വിധിയിൽ പറയുന്നു

വിദേശ പൗരത്വം എടുത്ത നിങ്ങളുടെ പേരിൽ നാട്ടിൽ സ്വത്തുക്കൾ ഉണ്ടോ ? എങ്കിൽ അതു വിൽക്കുകയോ പണയം വയ്ക്കുകയോ ചെയ്യണമെങ്കിൽ റിസർവ് ബാങ്കിന്റെ പ്രത്യേക അനുമതി വേണം; സുപ്രീം കോടതിയുടെ സുപ്രധാനമായ വിധി പ്രവാസികളെ എങ്ങനെ ബാധിക്കും എന്നറിയാം

വിദേശ പൗരത്വം എടുത്തിട്ടുള്ള ഇന്ത്യാക്കാർക്ക് ഇനി നാട്ടിലുള്ള സ്വത്തുക്കൾ ക്രയവിക്രയം ചെയ്യുവാനും പണയപ്പെടുത്തുവാനുമൊക്കെ ഇനിമുതൽ റിസർവ് ബാങ്കിന്റെ പ്രത്യേക അനുമതി ആവശ്യമായി വരും. ഫോറിൻ എക്സ്ചേഞ്ച് റെഗുലേഷൻ ആക്ട് (ഫെറ) 1973 ലെ സെക്ഷൻ 31 ഉയർത്തിപ്പിടിച്ചാണ് ജസ്റ്റിസ് എ എം ഖാൻവില്ക്കർ അദ്ധ്യക്ഷം വഹിച്ച സുപ്രീം കോടതി ബഞ്ചിന്റെ വിധി. ഇതനുസരിച്ച്, ഇന്ത്യൻ പൗരനല്ലാത്ത ഒരാൾക്ക് ഇന്ത്യയിലെ സ്വത്തുക്കൾ വിൽക്കുവാനോ പണയപ്പെടുത്തുവാനോ റിസർവ് ബാങ്കിന്റെ പ്രത്യേകാനുമതി ആവശ്യമാണ്.

ഇത്തരത്തിലുള്ള സ്വത്തുക്കൾ കൈമാറ്റം ചെയ്യുമ്പോൾ, റിസർവ് ബാങ്ക് അനുമതി നൽകുന്നതുവരെ കൈമാറ്റത്തിന് നിയമപരമായ സാധുത ലഭിക്കുകയില്ല എന്നും ജസ്റ്റിസ് ഇന്ദു മൽഹോത്ര, അജയ് രസ്തോഗി എന്നിവർ ഉൾപ്പെട്ട ബഞ്ച വ്യക്തമാക്കി. എന്നിരുന്നാലും, ഇതുവരെ നടന്ന ഇടപാടുകൾ വീണ്ടും പുനപരിശോധിക്കേണ്ടതില്ലെന്നും കോടതി വ്യക്തമാക്കി. ബെങ്കലൂരുവിലെ ഒരു സ്വത്തുകൈമാറ്റവുമായി ബന്ധപ്പെടുത്തി നടന്ന കേസിലാണ് ഈ സുപ്രധാന വിധി വന്നത്. 1977-ൽ ചാൾസ് റൈറ്റ് എന്നൊരു വിദേശിയുടെ വിധവ റിസർവ് ബാങ്ക് അനുമതി വാങ്ങാതെ സ്വത്ത് വിറ്റതുമായി ബന്ധപ്പെട്ട കേസായിരുന്നു അത്. അനുമതി വേണമെന്ന് ഉറപ്പിച്ചു പറയുമ്പോഴും പഴയ കാര്യങ്ങൾ കുത്തിപ്പൊക്കേണ്ടതില്ല എന്നതീരുമാനത്തിൽ ഈ സ്ഥലത്തിന്റെ ഇടപാട് നിയമവിധേയമാക്കുകയും ചെയ്തു.

ഒ സി ഐ കാർഡുള്ള ഇന്ത്യാക്കാരുടെ പല അവകാശങ്ങളും എടുത്തുകളഞ്ഞ് സർക്കാർ പുതിയ നിയമം കൊണ്ടുവരുന്ന ഘട്ടത്തിൽ തന്നെയാണ് വിദേശ ഇന്ത്യാക്കാർക്ക് മറ്റൊരു തിരിച്ചടിയായി ഈ വിധി വന്നിരിക്കുന്നത്. ഇതനുസരിച്ച്, നിങ്ങൾ വിദേശ പൗരത്വം എടുത്തിട്ടുണ്ടെങ്കിൽ , നാട്ടിലെ സ്വത്തിൽ എന്തെങ്കിലും ക്രയവിക്രയങ്ങൾ നടത്തുന്നതിനു മുൻപായി റിസർവ് ബാങ്കിന്റെ പ്രത്യേക അനുമതി എടുത്തിരിക്കണം. അത് എടുക്കാതിരിക്കുന്നിടത്തോളം കാലം ഈ സ്വത്തുമായി ബന്ധപ്പെട്ട ഇടപാടുകൾക്ക് നിയമപരമായ സാധുത ഉണ്ടായിരിക്കില്ല.

നിരവധി മലയാളികളെ നേരിട്ട് ബാധിക്കുന്ന ഒരു കാര്യം തന്നെയാണിത്, പ്രത്യേകിച്ച് മദ്ധ്യ കേരളത്തിൽ. ഗൾഫ് മലയാളികൾക്ക് അവിടങ്ങളിലെ പൗരത്വമില്ലാത്തതിനാൽ എൻ ആർ ഐ സ്റ്റാറ്റസ് ആണ് ഉള്ളത്. എന്നാൽ, അമേരിക്ക, ബ്രിട്ടൻ തുടങ്ങിയ പാശ്ചാത്യ രാജ്യങ്ങളിൽ എത്തിച്ചേർന്നവർ, ഒരു നിശ്ചിത കാലാവധി തീരുമ്പോൾ അവിടത്തെ പൗരന്മാരായി മറുകയാണ് പതിവ്. ഓവർസീസ് സിറ്റിസൺസ് ഓഫ് ഇന്ത്യ എന്ന പ്രത്യേക സ്റ്റാറ്റസ് ആയിരുന്നു ഇവർക്ക് ഉണ്ടായിരുന്നത്.

ഇരട്ടപൗരത്വം എന്ന ആശയം ചർച്ചയിൽ നിൽക്കുന്ന സമയത്ത് ഒ സി ഐ കാർഡുള്ളവർക്ക് ഇന്ത്യൻ പൗരന്മാര്ക്കുള്ള എല്ലാ അവകാശങ്ങളും, വോട്ടവകാശം ഒഴികെ, നൽകിയിരുന്നു. ഇതനുസരിച്ച്, നാട്ടിൽ സ്ഥലം വാങ്ങിക്കൂട്ടിയിട്ടുള്ളവർനിരവധിയാണ്. ഇനി സ്വത്തുക്കളുടെ കാര്യത്തിൽ മുന്നോട്ട് പോവുക ഇവരെ സംബന്ധിച്ചിടത്തോളം പ്രയാസമേറിയ കാര്യമാകും, പ്രത്യേകിച്ച് റിസർവ് ബാങ്കിന്റെ അനുമതിയൊക്കെ വാങ്ങുക എന്ന കാര്യമുള്ളപ്പോൾ. . തീർച്ചയായും ഇത് കേരളത്തിലെ റിയൽ എസ്റ്റേറ്റ് മേഖലയിൽ ഒരു തിരിച്ചടിക്ക് കാരണമായേക്കാം

11 facts you must know about ancestral property in India

How many generations can claim ancestral property?

In case of a classified ancestral property that has remained undivided, four generations of the male lineage have their claim. This means on Ram’s ancestral property, his son Shyam, Shyam’s son Ghanshyam and Ghanshyam’s son Radhe Shyam have inheritance rights. In other words, the father, the grandfather, the great grandfather and the great-great grandfather have inheritance rights over an undivided ancestral property.

Also, whenever someone inherits a property from any of his paternal ancestors up to three generations above him, his legal heirs of up to three generations below him would get equal right, as coparceners in that property.

So, when Radhe Shyam inherits a property from his father, three generations below him would have an inheritance claim on it.

What is an undivided property?

If Ram decided to divide the property between Shyam and his other sons, the chain will be broken and the property inherited by Shyam will no longer qualify as an ancestral property but a self-acquired property. Simply stated, for a property to remain ancestral, no division should take place up to the four generations. An ancestral property that has been divided through a partition deed or a family arrangement, ceases to be an ancestral property as soon as the arrangement comes into effect. In other words, when a division or a partition takes place in a joint Hindu family, the property becomes self-acquired in the hands of the family member, who has received it.

Passing its judgment in the Uttam versus Saubhag Singh & Others case on March 2, 2016, the Supreme Court ruled that a joint family property ceases to be a joint family property in the hands of the various persons who have succeeded to it under Section 8 of the Hindu Succession Act, 1956, as they hold the property as tenants in common and not as joint tenants.

Can properties obtained through a gift or will be ancestral properties?

Properties that one acquires by way of a gift deed and through the execution of a will, do not qualify as ancestral properties. Also note that through a gift deed, a father can give this self- acquired property to a third party in his lifetime. Through a will, the property ownership is transferred after the demise of the donor.

Exclusion from ancestral property

One is free to write a will and exclude one’s offspring (sons as well as daughters) from inheriting their self-acquired property. In 2016, the Delhi High Court ruled that an adult son had no legal claim on his parents’ self-acquired property. “Where the house is a self-acquired house of the parents, a son, whether married or unmarried, has no legal right to live in that house and he can live in that house, only at the mercy of his parents up to the time the parents allow,” the HC order said.

The same, however, is not true for ancestral property. A father does not have a choice to exclude his son from possession of his ancestral properties. However, the Delhi HC, in November 2018, ruled that harassed parents can evict their children from any type of property. The type of the property, ruled by the HC, would in no manner act as a deterrent in eviction of children and legal heirs, who ill-treat their elderly parents.

After an amendment in the laws through the Delhi Maintenance and Welfare of Parents and Senior Citizens (Amendment) Rules, 2017, through which the term ‘self-acquired’ was done away with, seniors can apply for eviction of their sons, daughters and legal heirs from the property of any kind ─ movable or immovable, ancestral or self-acquired, tangible or intangible.

 

Start of ownership right in an ancestral property

In case of ancestral properties, the right of the stakeholder arises at the time of his birth. In other forms of inheritance, such as inheritance through a will, the right arises at the time of the owner’s death. So, in the above stated example, Shyam’s right in his ancestral property will arise at the time of his birth and not at the time of his father Ram’s demise.

The same, however, is not true for ancestral property. A father does not have a choice to exclude his son from possession of his ancestral properties. However, the Delhi HC, in November 2018, ruled that harassed parents can evict their children from any type of property. The type of the property, ruled by the HC, would in no manner act as a deterrent in eviction of children and legal heirs, who ill-treat their elderly parents.

After an amendment in the laws through the Delhi Maintenance and Welfare of Parents and Senior Citizens (Amendment) Rules, 2017, through which the term ‘self-acquired’ was done away with, seniors can apply for eviction of their sons, daughters and legal heirs from the property of any kind ─ movable or immovable, ancestral or self-acquired, tangible or intangible.

 

Start of ownership right in an ancestral property

In case of ancestral properties, the right of the stakeholder arises at the time of his birth. In other forms of inheritance, such as inheritance through a will, the right arises at the time of the owner’s death. So, in the above stated example, Shyam’s right in his ancestral property will arise at the time of his birth and not at the time of his father Ram’s demise.

The same, however, is not true for ancestral property. A father does not have a choice to exclude his son from possession of his ancestral properties. However, the Delhi HC, in November 2018, ruled that harassed parents can evict their children from any type of property. The type of the property, ruled by the HC, would in no manner act as a deterrent in eviction of children and legal heirs, who ill-treat their elderly parents.

After an amendment in the laws through the Delhi Maintenance and Welfare of Parents and Senior Citizens (Amendment) Rules, 2017, through which the term ‘self-acquired’ was done away with, seniors can apply for eviction of their sons, daughters and legal heirs from the property of any kind ─ movable or immovable, ancestral or self-acquired, tangible or intangible.

 

Start of ownership right in an ancestral property

In case of ancestral properties, the right of the stakeholder arises at the time of his birth. In other forms of inheritance, such as inheritance through a will, the right arises at the time of the owner’s death. So, in the above stated example, Shyam’s right in his ancestral property will arise at the time of his birth and not at the time of his father Ram’s demise.

The Supreme Court on Tuesday held that daughters, like sons, have an equal birthright to inherit joint Hindu family property. The court decided that the amended Hindu Succession Act, which gives daughters equal rights to ancestral property, will have a retrospective effect.11-Aug-2020

How to evict a tenant in India

Introduction

Renting a house or flat is a difficult task. It is not an easy effort to find a tenant and sign a rental agreement with someone you can trust with your property. A person takes a huge risk by lending his property to a stranger. Many times, after renting out their property to tenants, the landlord needs the property for their personal use or has to evict the tenant for different reasons, many of which might be due to the fault of the tenant himself; however, despite several requests from the owner, the tenants may often refuse to leave the property. Hence, this article aims to help owners to evict tenants from their property.

What are eviction laws in India

A rental tenancy is simply a type of a lease in which the property is temporarily transferred from the owner, who is known as the lessor, to the tenant, who is referred to as the lessee, according to Section 105 of the Transfer of Property Act, 1882. But, The Rent Control Act of 1948, which was enacted by the Government of India to calibrate the rentals of real properties and to govern the evictions of tenants in India, encompasses all the provisions relating to tenants and landlords. The most important requirement, however, is that you should have a proper rental agreement in place with your tenant, which defines details such as the rent amount, the duration of the agreement, the security deposit, and the purpose of the stay. While tenants are protected from arbitrary eviction from their homes except for specified reasons and under specified conditions under the Rent Control Act, the landlord retains the right to evict a tenant if the tenant commits certain specified acts or if the landlord requires the home for his own personal use.

How to prepare for a suit for eviction

The most significant document is the rent agreement, which contains the terms and conditions of the contract and creates the contract between a landlord and a tenant. The contract should include an eviction clause that may be used in case there is any disagreement. Evicting a tenant is only possible when the lease ends or when the landlord cancels the lease by providing a formal notice under Section 106 of the Transfer of Property Act, 1882, and if the tenant still refuses to vacate, the landlord will have to file a lawsuit and get an order from the court. 

Grounds for eviction of tenant in India

You can state any of the following grounds for the eviction of a tenant from your property:

• If you need the property for your own requirement or for a member of your family
• If a tenant has leased a previously rented house/flat/property to another individual without your permission or acknowledgement
• If the worth or value of the property has relatively decreased because of the tenant’s action
• If the landlord plans to build another structure, which will necessitate the property’s destruction
• If you want to construct a new structure, you’ll have to demolish the existing one
• One can initiate an eviction suit if the tenant fails to pay the rent amount (as indicated in the rental agreement) for more than 15 days after the due date
• If the neighbour finds the tenant’s activities distasteful, and the landlord has received complaints against the tenant
• If the tenant has utilised the rented property for illegal purposes or for reasons not specified in the rental agreement
• If the tenant is establishing that he or she is the owner of the rented property on purpose

What one should not do while evicting a tenant

The landlord has the right to evict a tenant from his/her property based on the grounds stated above. However, he/she should keep in mind the following points:

• The landlord must not carry out the eviction by using illegal methods like shutting off basic services such as electricity or water supply, changing the locking mechanism of the rented home, throwing away the goods of the tenant, or imposing penalties on his own unless it is mentioned in the rent agreement. These are criminal offences, and if the landlord is proven guilty, the tenant has the right to pursue charges against him
• The rental agreement must be for only 11 months and include an optional renewal provision. It provides future protection against eviction issues.
• A landlord cannot remove a tenant without first providing the tenant with an eviction notice.
• The reasons for eviction must be justified under the rental laws of the state where the property is situated.
• The rent agreement must be established with the help of a property lawyer and must include terms about how to use the property, the termination of the rent agreement, the amount of rent, and so on.
• The Supreme Court of India has ruled that for at least five years a landlord cannot evict a tenant if the rent is paid on time and the landlord does not want the property for personal use.

Process of evicting a tenant in India

The following method must be followed to evict the tenant after establishing the reasons for the eviction and understanding what should not be done to evict a tenant:

Step 1 – Send a notice to the tenant to vacate

An eviction notice must be filed in a court of competent jurisdiction, stating the basis for eviction as well as the time and date by which the tenant must leave the property, and it must then be issued to the tenant. The landlord must allow the tenant a reasonable amount of time to quit the rented property. After getting a legal notice from the court, the tenants in the number of situations vacate the rented premises.

Step 2 – File a suit for eviction

After obtaining the court’s eviction order, the tenant has the option of refusing to leave the rented property and challenging the eviction. In this instance, the landlord might retain the services of a rental property attorney to file an eviction lawsuit against the tenant. The tenant’s eviction lawsuit is filed in the civil court that has jurisdiction over the rented property.

Step 3 – Final notice for eviction

The court hears both parties and, relying on the arguments and facts presented, issues a final legal notice of eviction for the tenant. Once the court issues the final eviction order, the tenant must leave the rental property as they cannot overlook this notice. 

Some Frequently Asked Questions (FAQs)

1. What to do if the tenant is not paying the rent

Ideally, the rental contract would include a plan of action in the event of non-payment of rent. Nonetheless, non-payment of rent is one of the most prevalent reasons for eviction under state tenancy laws. A legal notice might be given to the tenant in question, with details of the payment due, the tenant’s need to comply or depart, and the course of action you’ll take if the tenant does not comply or evict.

2. Can police be called to evict a tenant

You cannot evict the tenant or threaten to evict the tenant, no matter how serious the situation is. This is known as a “self-help eviction,” and it is against the law. Before a legitimate eviction may take place, the court must issue an eviction notice.

3. What can I do if a tenant refuses to move out 

If the tenant refuses to leave despite the legal justifications, an eviction procedure may be initiated. Non-payment of rent and reluctance to move out at the conclusion of the lease period are both valid reasons for eviction.

4. How can I evict a tenant without a lease in India 

Since the individual state laws include tenancy at will, an eviction might be carried out in accordance with their rules. Other typical grounds for eviction include engaging in activities that may impair the rental property’s usability or worth, permitting someone else to occupy the property without the landlord’s consent, using the property for illegal purposes, and the end of the lease period. Before eviction may begin, an eviction notice must be sent.

5. What happens if the tenant refuses to leave after being presented with an eviction notice

Non-compliance with the eviction notice will result in judicial action if the landlord decides to pursue it.

Conclusion

Many landlords have complained about tenants not paying rent on time, not maintaining the property in good repair, and extending their stay after the rental agreement’s term has expired. The Rent Control Act of 1948 was designed to address the issue of rent and rent control. Following its enactment, which acted as a Union law, other states began amending and adding to the statute to better fit their requirements and companies. These state statutes and amendments differ somewhat from the federal legislation. The Rent Control Act of 1948 was created to govern the laws of property rental and ensure that neither landlords nor the renters take advantage of one another. The statute is primarily aimed at tenants, although there are safeguards to protect landlords’ rights as well

notice to vacate premises

Why send notice to vacate premises?

Sending an eviction notice to the tenant by the landlord in India is a formal intimation. A legal notice to the tenant to vacate the premises from the landlord is assumed as an opportunity for the tenant to find a new place. Notice to tenant to vacate is a situation where a tenant is given a reasonable time to leave the rented place and find a new one. In order to vacate the rented property, a legal notice works really well.

In any tenancy, the situation gets worse for a landlord when the tenant is a bully. Such tenants do not want to leave the premises and create an uncalled nuisance for the landlord. India is one such place where such issues are quite prevalent. The tenant forcefully stays in possession, thereby inviting the landlord to exercise the right to file a suit for eviction against the tenant. But before filing a suit, the landlord should first send notice to the tenant to vacate the premises.

“Before filing the case, sending a legal notice to the tenant acts as a final warning. In case the tenant still does not vacate the premises, you should then file the case for eviction of the tenant

Introduction

A tenant eviction notice is basically a legal document in the form of a notice indicating stipulated time in which the tenant should vacate the leased premise it is given by the landlord to the tenant.

What is an eviction?

The period eviction refers back to the civil system via means of which a landlord can also additionally legally cast off a tenant from their condo assets. Eviction can also additionally arise whilst the tenant stops paying lease, whilst the phrases of the condo settlement are breached, or indifferent conditions accredited via way of means of law.

An eviction is the courtroom docket-ordered elimination of a tenant from the assets wherein they reside. A landlord can also additionally determine to evict a tenant for non-charge of lease, damages, unlawful activity, violating the phrases of the hire, or if the owner desires to take ownership of the assets.

What is an eviction notice?

An eviction notice is a letter dispatched with the aid of a landlord to a tenant to tell them that they ought to restore sure trouble or vacate the assets inside a sure variety of days.

In a few instances, the owner can also additionally accept as true that the hassle isn’t fixable and ship what’s called an incurable eviction be aware. In this case, the tenant has no desire however to vacate the assets inside a sure variety of days.

It has been held in the case of Achintya Kumar Saha v. Nanee Printers (2004, SCC 368) that; herein view of the rent control laws and the concept of statutory tenancy evolved in the respect of urban building it is now generally necessary to determine tenancy by a notice to quit before claiming ejectment on grounds admissible under such laws.

If the tenant is uncooperative and does not want to settle the dispute peacefully and does not even agree to vacate the land, the landlord can issue an eviction notice. Not only a tenancy of temporary term but also of fixed-term can be challenged and determined by the eviction notice.

When to send an eviction notice?     

1. Rent not paid:  A landlord can evict a person for non-payment or delay of a month or two depending on how long the tenant has been living in the property.
2. Subletting: A landlord can evict a person when he rented his property for one person and the tenant added two more tenants and started taking rent would be a serious reason for filing an eviction notice.  
3. Damaging the property: If the tenant has seriously damaged the property and is unwilling to pay for the damages, the landlord may evict them.
4. Self–use: If the owner needs the premises for his purpose or the purpose of his family members.
5. Commercial use: If the owner needs the premises to run the business using their own property he may send an eviction notice.

Procedure to evict the tenant

In the judgment of the case Narayan v. Kunbhan Mannadiar it was held that the landlord cannot issue the notice of eviction just because he wants to but only if has a valid and legal reason. The reason to ask the tenant to get out from the place must be a justifiable reason and must not be derived from a mere demand for more possessions. 

For sending an eviction notice to the tenant there is some essential step followed during the course of sending notice: 

Step 1

Firstly, the owner must send an eviction notice before 30 days of filing the suit. A checklist of documents consisting of a serious, valid, legitimate reason for issuing such a notice. The owner will be required to send scanned copies of documents for verification by the lawyer. The notice must be framed in a way that reflects the clear issue and stipulated time that the tenant is legally bound to do so.

Step 2

Secondly, on the refusal of the tenant, the petition will be filed, drafted, and shared after reviewing the same and approved within 7 days. The owner is required to print the draft and sign and send it via courier/post.

It has been held in the case of Munisami Naidu v. C. Ranganathan, AIR 1991 SC 492 the Board was entitled to institute proceedings against the tenant as the notice period had expired. Similar was the case in Vasant Kumar Radhakishan Vora v. The Board of Trustees of the Port of Bombay, AIR 1991 SC 14 where the plaintiff sued the defendant for not conforming to the eviction notice.

Step 3

Thirdly, the case will be filed before the civil court within 3 days as the signed document is being received. Thereafter the lawyer will present the argument before the court and after all hearing and argument evidence presented. Court gives the judgment in favour of any party and the final decision has to be followed by the parties.

Procedure to evict a tenant under the Uniform Residential Landlord-Tenant Act (URLTA), 1872

The landlord can evict a tenant under the Uniform Residential Landlord-Tenant Act (URLTA),1872 through the way of eviction notice as prescribed under the Act. Under Section 12 of the Uniform Residential Landlord-Tenant Act (URLTA),1872 it talks about eviction notice i.e a formal written letter sent by the landlord to the tenant to evict a person by communicating the termination of the Tenancy Agreement.

It was held in the case of Achintya Kumar Saha v. Nanvee Printers it was held that according to the Indian Rental Laws, 1948 the rights of the landlord to evict their tenants are subject to providing the justified reasons for such actions.

What information does the eviction notice include?

An eviction letter must consist of all the specified information of the tenancy agreement, the name of both the parties, the purpose of the notice must be specified and how long the tenant may have to address the issue before any further legal measures are taken.

There are the following details that are covered under the notice:

• Addresses of the rental property,
• Address of the owner,
• The tenant name (the one who pays the lease or everyone who has occupied),
• Status of the hire,
• Date of hire,
• The reason that the notice is being served (the cause for the eviction will country the form of being aware this is being produced),
• Date when the landlord signs the notice,
• Proof of service.

Conclusion

Renting an apartment, house or property is a common practice in our society and is beneficial simultaneously for both the owner and the tenant. But there are also cases where the landlord gets tired of the tenant as he does not pay the rent or sorts to some unlawful or hazardous activities at the premises and hence the owner asks the tenant to leave the premises and restore his property back.

Dispute between landlord and tenant can be settled peacefully but in some cases, if the tenant refuses to do so the landlord has to file an eviction notice for the further process.

Tenants are hoping to invoke the doctrine of force majeure as legal protection against the non-fulfilment of their contractual obligations. Even large corporations like PVR and Reliance Retail have been forced to invoke this maxim. Statutory bodies like the RERA in many states have had to take note of the pandemic as a force majeure.

What is force majeure?

Though the Indian Contract Act does not refer to “force majeure” as such. The term is used as a convenient label to refer to a foreseeable stipulated circumstance or a supervening superior force that prevents someone from fulfilling their part of the contract.

The occurrence of a ‘force majeure’ would trigger the consequences stipulated in the contract. A typical force majeure clause would first define the events that would constitute a ‘force majeure’ and would then specify what consequences would follow if such an event occurred. The phrasing of the clause will decide whether a specific event falls within the force majeure clause and what consequences must follow. Force majeure is not a magic wand upon the waiving of which all contractual obligations, such as payment of rent, are terminated.

The ‘sanctity of a contract’ is the first and golden rule of contract law. Contracts must be honoured and performed, and there is no easy way to wriggle out of them. They are governed by the Contract Act and have the sanction of law which binds parties to faithfully perform their obligations.

tenancy     agreements and COVID-19 Lockdown: A ‘Majeure’ Headache

Tenants are hoping to invoke the doctrine of force majeure as legal protection, but the route may not be simple.

May 28, 2020 | P.V. Kapur

    

An empty shopping mall in Ahmedabad, March 16, 2020. Photo: REUTERS/Amit Dave/File Photo

When Prime Minister Narendra Modi appeared on our televisions and screens on March 24, he was announcing the beginning of a nationwide lockdown. To contain the spread of the coronavirus, the entire population was asked to stay indoors. People have not been able to go to work, many have lost their jobs, corporations have imposed salary cuts, incomes of self-employed people have taken a major hit. This is certainly not a good time to indulge.

The lockdown has sent shockwaves across the economy. The ability of people to spend money is no longer what it used to be. This has also had a significant effect on landlord-tenant relations. While the tenants’ ability to pay rent has been adversely affected, the economics of the landlords has also been disturbed. Tenants are seeking a waiver of rent as they have been unable to access their premises or because their incomes have been impacted.

Tenants are hoping to invoke the doctrine of force majeure as legal protection against the non-fulfilment of their contractual obligations. Even large corporations like PVR and Reliance Retail have been forced to invoke this maxim. Statutory bodies like the RERA in many states have had to take note of the pandemic as a force majeure.

What is force majeure?

Though the Indian Contract Act does not refer to “force majeure” as such. The term is used as a convenient label to refer to a foreseeable stipulated circumstance or a supervening superior force that prevents someone from fulfilling their part of the contract.

The occurrence of a ‘force majeure’ would trigger the consequences stipulated in the contract. A typical force majeure clause would first define the events that would constitute a ‘force majeure’ and would then specify what consequences would follow if such an event occurred. The phrasing of the clause will decide whether a specific event falls within the force majeure clause and what consequences must follow. Force majeure is not a magic wand upon the waiving of which all contractual obligations, such as payment of rent, are terminated.

The ‘sanctity of a contract’ is the first and golden rule of contract law. Contracts must be honoured and performed, and there is no easy way to wriggle out of them. They are governed by the Contract Act and have the sanction of law which binds parties to faithfully perform their obligations.

t India Mall in Noida has been shut indefinitely in Noida as business suffers. Photo: Shome Basu/The Wire

Implied or explicit

According to Indian law, a force majeure clause is not ordinarily an implied term of a contract. A court would not normally read such a clause into a contract. Besides, the threshold of proving an implied term is very high, especially for a fundamental term which will have the effect of releasing a party from performing its obligations. Ideally, it ought to be expressly stipulated.

If the contract does stipulate a Force Majeure it has to be strictly and narrowly construed. Even the court cannot rewrite that clause or read into it what is not expressly stipulated. Nothing can be added or taken away.

Also Read: Will ‘Act of God’ Clauses in India Inc’s Contracts Help Restart the Economy?

The mere occurrence of a force majeure event is not by itself a reason to be excused from performance. Even if governments declare the coronavirus outbreak as a ‘force majeure’, it would only serve as evidence that a force majeure event has occurred. It would not alone be sufficient to excuse tenants from the rent due. Moreover, only those consequences which are stipulated in the force majeure clause would flow. Therefore, the language of the clause will dictate when the clause kicks in, and whether a party is exempted from performing its obligations. If the clause states that the event ought to be such that it “causes failure of the lessee to perform its obligations” or that it “prevents a party from fulfilling its obligations”, one must determine not only the nature of the obligation that the tenant claims it is failing or prevented from performing, but also whether such ‘failure’ or prevention is directly caused by the force majeure event.

In such a clause if the lessee desires to be excused from discharging its liability it must not only demonstrate that the force majeure was beyond its control but also prove that the event itself has caused the lessee to fail to perform its responsibility. The fact that if the tenant was compelled to perform its obligation, it would cause economic hardship or inconvenience, is not sufficient to take refuge under the force majeure clause. If there is an alternative way to overcome the effect of the force majeure event, the tenant would not be excused from payment of rent. If the tenant has funds available then its obligation to pay rent is not impacted. The tenant cannot rely on the force majeure clause, without trying to mitigate or explore alternative ways of performing the contract.

Anticipation is also a key. Relying on ‘Act of God’ as a force majeure event, in the words of our Supreme Court “does not operate as an excuse from liability, if there is reasonable possibility of anticipating their happening”. In the recent past the world was inflicted with epidemics like SARS and H1N1. Eminent personalities like Bill Gates, former US President Barack Obama, are only a few examples of people who cautioned the world on the need to be prepared for a deadly pandemic. As to whether COVID-19 and the resultant lockdown were ‘anticipated events’ and therefore ‘force majeure events’, would require some debate. Though tenancy agreements entered into prior to the SARS and H1N1 pandemics, may qualify as a force majeure event since a pandemic such as COVID-19 was not an anticipated event yet the consequent ‘lockdown’ may not satisfy that requirement. But this is not to say that on the happening of the pandemic or the lockdown the tenant would be automatically entitled to suspend payment of rent. The tenant will be entitled to claim only that relief which is stipulated in the agreement.

Unless the force majeure clause expressly stipulates, even the inability to ‘use’ the premises does not solely satisfy its requirements. ‘Use’ does not only mean the ability to come and go from the premises. It also includes its utilisation to house equipment, servers, furniture, security personnel etc.

Some of these views have been echoed by the Delhi high court in a judgment delivered on May 21. Noting various decisions of the Supreme Court, the learned judge considered the following factors:

• Nature of the property
• Financial and social status of the parties
• The amount of rent the property commands in the market
• Any contractual condition that permits non-payment or suspension of rent;
• Protection under the Government’s executive orders

The court, having taken these into account, denied relief to a tenant who was seeking suspension of rent due to COVID-19 and the resulting lockdown.

Most force majeure clauses provide for a notice period. In those cases, a tenant must issue a timely intimation to the landlord of his intention to invoke the clause. If the tenant omits to issue a timely notice but does so later on, he would be entitled to waiver of rent only for the period after the date of the notice.

 Court of India in New Delhi. Photo: PTI

Frustration of contract

There is a popular notion that in the absence of a force majeure clause, the occurrence of COVID-19 can be cited as an event that has made performance of obligations under the lease agreement impossible or impracticable; and therefore the contract stands ‘frustrated’ within the meaning of Section 56 of the Contract Act.

Section 56 of the Contract Act has no application to leases:

The essential ingredients of the second part of Section 56 are that:

1. There should be a valid and subsisting contract;
2. There must be some part of the contract yet to be performed; and
3. The contract, after it has been entered into, becomes impossible to performed.

There is no doubt that the doctrine of frustration applies to contracts. A lease, however, is more than a mere contract as it results in the creation of an estate, or an interest in favour of the lessee. Once the lessee has been put in possession of the premise there is nothing more to be performed and thus condition (2) would not be satisfied. Section 56 i.e. doctrine of frustration has no application in cases of completed transfer unless there is an express provision to the contrary in the contract itself or in local usage.

As made clear by the Delhi high court in Airport Authority of India vs Hotel Leela Venture Limited, the events which discharge a contract cannot invalidate a concluded transfer. The said judgment also clarifies that Section 108 (e) of the Transfer of Property Act, which defines, inter alia, the obligations of a lessee, is a special law and would supersede the doctrine of frustration, as the latter is a part of general law 

Living on rent without a rent agreement. Is it legal?

Yes, it is legal to stay on a property on rent without actually drafting a written rental agreement.

In the absence of a rent agreement, the implied consent/contract is assumed if the owner is collecting the rent every month.

Even though it is recommended to have a rent agreement to safeguard both parties' interests, the Indian law permits a tenant and a landlord to have a prosperous relationship without a written agreement.

So, the non-existence of a rental agreement does not affect the legal rights of the tenant or the landlord as both are encapsulated under the common law.

Typically, if you aren't contracted via a rent agreement, it is accepted as an oral lease.

An oral lease though does not offer much room for restrictions and guidelines, it provides flexibility to both tenants and landlords.