Eviction of a tenant for non-payment of rent in Kerala
Eviction of a tenant of a rented building is not an easy task in Kerala. The tenant can be evicted only on the grounds specified in Section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (BRC Act) and such disputes are dealt with by the Rent Control Court (RCC), a designated Munsiff Court.
The RCC is also empowered to declare fair rent of the building if any party approaches it for the purpose.
Grounds for eviction enlisted in Section 11
The Section 11 of BRC Act enlists the legally permissible grounds under which a landlord can evict a tenant. Some of such grounds for eviction envisaged in the law are:
- If the tenant has not tendered the arrears of rent or not showing the reasons for nonpayment u/s 11 (2) (b)
- If the tenant needs the building for bonafide needs u/s 11 (3)
- If the tenant sublets or destroys the building or its parts against the contract, or it needs reconstruction, u/s 11 (4)
- When the landlord wants to renovate the building u/s 11 (5)
- If the landlord requires it for expanding his personal business u/s 11 (8)
If the building is given for some government officials specified u/s 11(11) or for running a government recognised courses, it is not possible for the landlord to evict the tenant so long as the tenancy continues.
To evict a tenant, send him a statutory notice
A landlord, who intends to evict a tenant under the proviso to Section 11 (2) (b) of the BRC Act, shall send a registered notice to the tenant intimating the default in payment of the rent.
The notice is just to remind the tenant about default in payment but need not be a demand notice that quantifies the amount of arrears.
Tenant is duty bound to pay the arrears of rent within 15 days
On receipt of the registered notice from the landlord, the tenant is bound to pay the arrears of rent with interest within 15 days of its receipt.
If not, landlord can file a Rent Control Petition (RCP)
If the tenant fails to pay the arrears of rent with six per cent interest within 15 days of receipt of the notice, the landlord can file a Rent Control Petition (RCP) to the RCC for a direction to evict the tenant, under Section 11(2) (a) of the BRC Act.
RCC will give the tenant an opportunity to show cause
On receipt of the application, the RCC shall give the tenant a reasonable opportunity of showing cause against the application, under Section 11(2) (a) of the BRC Act.
If the RCC is satisfied that the tenant has not paid the rent due within 15 days after the expiry of the time specified in the rent agreement or by the last day of the month, it shall issue an order directing to put the landlord in possession of the building.
Even then, if the tenant pays the arrears of rent along with the interest and the cost the court imposes, the RCC is bound to vacate the order.
Order of eviction should not be executed within one month
The order, thus issued by the RCC directing to put the landlord in possession of the building under Section 11 (2) (b), should not be executed before the expiry of one month or a further period the court may give in its discretion, thus says the Section 11 (2) (c) of the BRC Act.
Tenant can pay the arrears and vacate the order
The order issued under Section 11(2) (c) can be vacated by the tenant by paying the arrears of rent, as on the date of registered notice along with the six per cent interest and cost the court imposes, before execution of eviction of tenant within the one-month period, or the further period allowed by the court at its discretion.
Landlord can file an interlocutory application u/s 12
During the continuance of the petition filed under Section 11 for eviction, the landlord can file an interlocutory application (IA) under Section 12 of the BRC Act. Such a petition u/s 12 can be filed only when the tenant contests the petition filed under Section 11 of the BRC Act.
In the above IA filed under Section 12, the landlord can request the RCC to issue an order directing the tenant to deposit the admitted arrears of rent, and to continue to deposit any rent which may subsequently become due.
The term admitted arrears means the arrears RCC arrives at by going through the Rent Control Petition, the objections, and other related papers.
The precise object of the provisions of Section 12 of the BRC Act is to deny the defaulting tenant the right to contest the application for eviction before the RCC or to prefer an appeal before the District Court.
RCC can direct payment of arrears under Section 12
Under the Section 12 (1) & (2), the RCC can direct the tenant to deposit the then-existing arrears of rent within a period of not less than four weeks from the date of order, and to continue to deposit the rent which may subsequently become due in respect of the building within a period not less than two weeks from the date on which it accrues, till the termination of the proceedings before it.
However, the time granted to deposit admitted arrears of rent can be extended for only a further period not exceeding thirty days. [Shaji v Sivasubramoni [2018 (4) KLT 632].
The landlord will be allowed by the RCC to withdraw the amount so deposited.
RCC can evict u/s 12 (3), if tenant fails to pay arrears
If the tenant fails to deposit the admitted rent, the RCC shall direct the tenant to put the landlord in possession of the building, under Section 12 (3) of the BRC Act [Ramkumar v Ashok Jacob [ 2022 (1) KHC 495]. That order is final and that cannot be vacated by paying the arrears of rent.
Filing of objection or counter statement by the tenant against the eviction petition is not a prerequisite to issue an eviction order by the RCC, under Section 12 (3) of the BRC Act.
No separate show cause needed before eviction u/s 12(3)
The High Court, in Shaji M v SNDP Sakhayogam, states that it is not necessary for the RCC or the Appellate Authority to issue any separate notice to the tenant to enable him to show sufficient cause for not depositing the admitted arrears of rent.
It is enough that before passing an order under Section 12(3) of the BRC Act, the RCC or the Appellate Authority should normally adjourn the hearing of the case to a date beyond the date fixed for payment or deposit of admitted rent, thereby allowing the tenant reasonable time to show sufficient cause for not paying or depositing the admitted rent within the time limit stipulated in the order passed under Section 12(1) and (2).
Such an opportunity to be afforded to the tenant to show sufficient cause is not an empty formality.
Appeal or revision
On receipt of the order from the RCC, an aggrieved party can file an appeal as per Section 18 of the BRC Act to the District Court, and subsequently a revision under Section 20 of the act to the High Court of Kerala.
Unless the tenant pays the admitted arrears as per the above order of the RCC under Section 12, the tenant cannot contest the RCP for eviction filed by the landlord under Section 11 of the BRC Act. Similarly, the tenant will be deprived of filing an appeal under Section 18 of the BRC Act in this regard as well. This is what the High Court of Kerala says in Thazheveettil Naushan & Others v Elizabeth Reggive [2024 91) KLT 175].
Execution of the order
Execution of the judgements of the RCC under Section 11 and 12 of the BRC Act is done by the Munsiff Court having jurisdiction over the area of the building, by an Execution Petition filed under Section 14 of the BRC Act.
No appeal on an order of revision is permissible on an order of execution but a Revision Petition can be filed to the court to which appeals ordinarily lie against an order of the Munsiff, the District Court.
Civil court can evict when tenant disputes landlord’s title
If the tenant disputes the title of the landlord and claims permanent tenancy, the landlord is entitled to sue for eviction in a civil court and such court can pass a decree for eviction.
RCC can fix fair rent of the building in dispute
In case of any dispute between the landlord and the tenant regarding the rent of the building, the RCC has authority to fix the fair rent after conducting an inquiry, on an application by the landlord or the tenant.
The landlord is at liberty to increase fair rent as per the Supreme Court guidelines issued in Mohammad Ahmad v Atma Ram Chauhan [ AIR 2011 SC 1940].
No res judicata in rent control matters
There is no res judicata in rent control matters in the RCC. Therefore, the landlord can file subsequent applications on same matter in the RCC if the issues in them are substantially different due to difference in circumstances.
Simultaneous suit for arrears in civil court & an eviction petition in RCC
A landlord can simultaneously file a suit for arrears of rent in the civil court and another petition for eviction of tenant in RCC under Section 11 of the BRC Act.
Landlord shall not curtail any amenities enjoyed by the tenant
Landlord cannot curtail any amenities enjoyed by the tenant without just and sufficient cause.
In case of such curtailment the tenant can approach the Accommodation Controller with a petition. The accommodation Controller can inquire into the issue and issue appropriate order including restoration of the amenities by the landlord.
Order for eviction binding on subtenants
Any order for eviction of a tenant passed under the BRC Act is biding on all sub-tenants under such tenant, if such an order is not obtained by fraud or collusion, under Section 21 of the BRC Act.
A sub-tenant cannot be made party to the proceedings if she had not given notice of sub-tenancy to the landlord (Jessy v Alex Eapen : 2013 (2) KLT 16].
RCC may pass final orders within four months
The RCC shall, as far as practicable, pass final orders in any proceedings within four months from the date of appearance of the parties, under Section 24 of the BRC Act.
The High Court of Kerala in Abdul Razak P M v K C Thomas & Others [2022 (4) KHC 260] directed the RCC’s and Appellate Authorities ( District Courts) to ensure time bound disposal of the application filed under Section 12 of the BRC Act in pending RCPs and Rent Control Appeals.
Further reading
- Thazheveettil Naushan & Others v Elizabeth Reggive
- The Kerala Buildings (Lease and Rent Control) Act, 1965
- Koyakkanari Sivadasan v K.K.Nirmala [ 2022 (3) KLT 313]
- Mohammed Shameer v Ashokan [ 2015 (1) KLT 396]
