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Arun kumar (Executive)     03 March 2011

Tenant Eviction

Hi all,

I have a question regarding our property in delhi. We rented out our property without agreement and now tenant has filed a case for injunction. We do have bonafide reasons and staying on a rent inspite of having our own house. Is it better to show him as a tenant or a trespasse while drafting a reply. He do not have any proofs that he is a tenant. However, He changed address on driving license and aso have a ration card on our address.

 

regards



 16 Replies

H. S. Thukral (Lawyer)     03 March 2011

The tenant must have filed the case for injunction against forceful ejection. It is important to know what status he has claimed for himself  in the injunction suit. If he claims to be a tenant then alleged rate of rent ?  When was the property let out? Irrespective of suit for injunction file by him you can claim back the premises.  

1 Like

Kiran Kumar (Lawyer)     03 March 2011

very well advised by Mr. Thakural

 

Bonafide necessity or the personal necessity is the best of the grounds available for the eviction of tenant.

 

however, drafting of such a petition requires skill as all the ingredients required under the law have to pleaded carefully.

 

go ahead with your Eviction petition, the tenant has almost negligible defence against the ground of personal necessity.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     03 March 2011

There are many mistakes which landlords do as a rule which goes in favour of tenant.

1) Not issuing reciepts.

2) Noitce for claim of rent or for possession.

Arun kumar (Executive)     04 March 2011

house was rented out in january 2009 and in the case for injunction he has written that he is a tenant and we forcefully want to evict and he has no other place to live. Whereas my father is a retired govt. servant and that is our only property in fact we are staying on a rent right now. May I know if we can also file a case for eviction(as injunction case is already pending) and do we need to file a case for eviction in high court ??

 

regards

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     04 March 2011

First important stage is issue of notice where most of people including advocates make mistakes.

It is hypothatical question that whose claim is suprior. It is always defficult to dislodge any body form a  dwelling.

1) First you have to take care to issue proper notice , this is first hurdle. Far want of proper notice the case will be dismissed on preliminary issue.

2) You may suceed only if opponent does not have legal expert., and may not take up this issue.

3) There after the issue will be considered who has better need.

4) Here also if landlord makes mistakes in over confidence for non issue of rent reciepts or other criminal actions like threatening , unecessary police complaints that the matter becomes defficult.

TAKE CARE . THERE ARE NO OF ADVISORS TO TELL YOU ABOUT THIS AND THAT BUT THINGS ARE NOT THAT EASY.

1 Like

H. S. Thukral (Lawyer)     04 March 2011

If the rent is below 3500/- pm you can file an eviction petition under Delhi Rent Control act for your bonafide need. You have a strong case. If the rent is more than 3500/- you shall have to terminate the teancy by giving a notice as per the Transfer of Property Act and then file a suit for possession/damages etc. The suit shall be filed before a civil judge if the amount of annual rent plus any arrears of rent does not exceed 3 lacs. Before Distt judge if the amount exceeds 3 lakhs but less tha 20 lakhs. You can file the eviction petition/ suit for possession during the  pendency of injunction suit. I would rather advise that in the injunction suit you make a statement that you will not forcibly evict him and that will bring an end to that case. 

1 Like

H. S. Thukral (Lawyer)     04 March 2011

I beg to differ with Sh. shashikumar though I respect him for his simplicity. There is no requirement of a notice in case of an eviction petition under bonafide need. The Court will also not see that who has better need. The law is that the requirement of owner is bonafide and he does not have any other suitable alternate accomodation to meet his requirment. The need of tenant has no meaning.  We have favourable orders for owners in case of bonafide need of commercial property too where the tenant was well settled in business for last several years.  

Requirement of notice is in case the lease is under Transfer of property Act. and Shashikumar ji after the amendment in section 106 of TPA the chances of a good advocate faulting on notice clause are  rare. In case of a protected tenancy it is difficult to evict a tenant but there is no difficulty in case of simple lease. The  law in case of bonafide need has been further simplified and  made expedious. it is upon the tenant to show by evidence that the need of the owner is not genuine and he has ample accomodation to meet his requirement. The presumption of bonafide need is in favour of owner.

3 Like

Shailendra prasad singh (Lawyer)     04 March 2011

thanks for giving such information sir ji.

Arun kumar (Executive)     16 March 2011

thank you for your reply I also have one more question.

What will happen if temporary injunction if provided to tenant???? Will it be very difficult to evict a tenant once injunction is granted to him? As we have bonafide reasons and also staying on a rent in spite of having our own house.

Regards

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     16 March 2011

Injunction is lile cancer once granted very defficult to get it vacated.

Gulshan Tanwar (Advocate)     25 March 2011

Arup,

 

In your case there is no need of notice to be issued and you can directly go to Court under 'Bonafide', before going to initiate case against the tenant, also lodge caveat against the same tenant so that no application in any Court can be taken in absence of you or your lawyer, this is the best tactic which I always play, Caveat remains in for a period of 3 months from the date of filing and through regular caveats and under proper law you can make your home as your own within 2 dates of appearance.

Arun kumar (Executive)     25 March 2011

thanks for teh reply but will this also work in our case as we have been told by court that we cannot evict him forcefully or you can say that he has been allowed temporary injunction....can we proceed with the above procedure?

Gulshan Tanwar (Advocate)     25 March 2011

The status of the parties as well the orders of the court are crucial to give the reply.

H. S. Thukral (Lawyer)     25 March 2011

You are not going to evict the tenant forcefully. when you file a suit for eviction, this injunction has no meaning. It does not come in way of legal process. Go ahead as advised.


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