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[Cites 7, Cited by 0]

Delhi District Court

E­571/09 vs Sh. P. Gopalan S/O Sh. R. Parthasarthi on 7 August, 2010

       IN THE COURT OF SH. BALWANT RAI BANSAL:  
       ARC (CENTRAL), TIS HAZARI COURTS: DELHI



E­571/09
Miss Indira Uppal
D/o late Sh. Des Raj Uppal
20, Todar Mal Road, New Delhi

                                                            .......Petitioner.

                       Vs.


1. Sh. P. Gopalan S/o Sh. R. Parthasarthi
2. Sh. P. Kannan S/o Sh. R. Parthasarthi
   9A/50, W.E.A., Karol Bagh,
   Ground Floor, New Delhi

                                                      ......Respondents.


ORDER:

­

1. Vide this order I shall dispose of an application for leave to defend moved by the respondents.

2. The brief facts necessary for disposal of application are that the petitioner has filed the present eviction petition u/s 14­C r/w Section 25­B of DRC Act in respect of three rooms, kitchen, bathroom, front and rear verandah, front and rear courtyard and garden on the ground floor of the property bearing No. 9A/50, E­571/09 1/23 W.E.A. Karol Bagh, New Delhi - 110005; stating that the petitioner leased the property to tenant P. Gopalan on 15.10.1984 and the petitioner being Government servant with Northern Railway is completing her 60 years of age and retiring on 30.11.2009 . It is stated that there was litigation between family and the petitioner succeeded and purchased the full 9A/50 in auction dated 06.08.2009 held by the Hon'ble High Court of Delhi and even without such purchase, she is one of the co­owner of the said property registered with MCD and DDA after the death of father in 1968. It is further stated that the petitioner is physically handicapped lady and she cannot climb stairs and, therefore, suit premises which is on the ground floor of the said property bearing No. 9A/50, W.E.A., Karol Bagh, New Delhi is required by the petitioner for her own residence after retirement on 30.11.2009. Hence, the present petition has been filed and it has been prayed that an eviction order may be passed in favour of the petitioner and against the respondents in respect of suit premises.

3. The respondent no. 1 filed the leave to defend application along with supporting affidavit contending that the petitioner is neither the landlord nor the owner of the premises and the petitioner has no locus standi to file the present petition. It is further contended that the petitioner had earlier filed eviction petitions u/s 14 (1) (e) of DRC Act and u/s 14 (1) (a) (b) (d) of E­571/09 2/23 DRC Act and both the petitions are still sub­judiced. In the said petition u/s 14 (1) (e) of DRC Act, the respondent filed leave to defend application disclosing triable issues which was allowed, against which the petitioner filed revision petition before the Hon'ble High Court of Delhi which has yet not been decided. It is stated that the petitioner knowingly well that earlier eviction petition was bound to be dismissed and thus instead of pursuing the said earlier eviction petition she filed the present petition on frivolous ground and in fact the petitioner has no bonafide need of any accommodation and by showing her physical handicap position she is trying to get the premises vacated. It is further stated that on one hand petitioner is showing herself as handicapped while in her office she has been working on upper floors and has been using the basement and the first floor in her house at 20, Todermal Raod, New Delhi. It is further stated that the malafide intention of the petitioner is apparent from the fact that on one hand she is alleging the property No. 9A/50, W.E.A., Karol Bagh, New Delhi to be the joint family property, while on the other hand executing the said lease deed in her name alone with the intention of taking undue advantage of her said handicap position in future for getting the premises vacated on this ground also. It is further stated that the motive and the malafide of the petitioner is also apparent from the letter dated 08.02.1993 issued E­571/09 3/23 to the respondent stating that she has received a sum of Rs. 1,30,000/­ from her brother Sh. G.K. Uppal and the respondent should pay the rent to Sh. G.K. Uppal in respect of the tenanted premises. Thus, the respondent started paying rent to Sh. G.K. Uppal, however again the petitioner wrote a letter dated 08.01.1994 to the respondent and requested to pay the rent to her or deposit the same in the court and further a letter was received by the respondent from Sh. G.K. Uppal on 29.01.1994 requesting the respondent to continue to pay the rent to him. It is also stated that at the time of lease deed dated 15.10.1984 in respect of ground floor , the first floor and the barsati floor was also under tenancy of K.L. Rao and Mrs. Durbe respectively who have vacated the premises later on and the same was lying vacant. The respondent has also contended that the petitioner has concealed the actual existing position of the accommodation available with her in the property No. 20, Todermal Lane, Delhi ­1 which is constructed over an area of about 5000 sq. ft. and is about 4 storyed building. It is stated that the entire proceedings and the pleadings of the parties in the partition suit in respect of the suit property and in respect of the property No. 20, Todermal Road, New Delhi would show that since the day of letting the premises to the respondent, the petitioner and her brothers and sisters in collusion with each other and with malafide intention want to get the premises vacated E­571/09 4/23 by adopting all foul means. It is further stated that the petitioner deliberately has not filed the site plan of the property bearing No. 20, Todermal Road, New Delhi - 1 and in fact the petitioner is in possession and control of entire ground floor and half of the basement floor in the said property and thus the petitioner is having more than sufficient accommodation in the said property. It is further stated that the site plan of the tenanted premises filed by the petitioner is also not correct. It is contended that the present petition is not maintainable for non­joinder of the alleged co­ owners of the suit property and further the petition is liable to be dismissed for non­joinder of necessary party i.e. Govt. It is further contended that the petitioner has not filed the auction report in respect of the alleged auction of property bearing No. 20, Todermal Road, Bengali Market, New Delhi - 1 and the alleged proceedings of the partition suit, the execution proceedings, their respective appeal and the alleged auction are manipulated and collusive of the petitioner and her family members to get the premises vacated from the respondent. It is stated that otherwise petitioner is having properties at Flat No. 1304, Mohan Dev Building, Tolstoy Marg, New Delhi - 1, three rooms flat in DCM Building, 16 Barakhamba Road, New Delhi - 1 and Flat No. 68, LGF in Gopaldas Bhawan, New Delhi­1 and a flat in Shimla besides ground floor and basement floor in property No. 20, E­571/09 5/23 Todermal Road, Bengali Market, New Delhi - 1 which she has deliberately concealed. Therefore, the respondent no. 1 has prayed for leave to contest the present petition.

4. It is pertinent here to mention that the respondent no. 2 has not filed leave to defend application despite the fact that he was duly served.

5. The petitioner has filed reply to leave to defend application along with counter affidavit in which it has been stated that the respondent became tenant by virtue of lease agreement with the petitioner and the petitioner continues to be owner of 9A/50, W.E.A., Karol Bagh, New Delhi after partition between the family members. It is further stated that the petitioner has not been given any share at 20, Todermal Road, New Delhi and only due to concession by Dr. Harish Uppal she is residing till ground floor of 9A/50, W.E.A., Karol Bagh, New Delhi is vacatd. It is further stated that the petitioner is handicapped female who needs ground floor as she cannot climb even a single stair and cannot walk even a single step without the use of wheel chair and the family who are looking after her will be occupying first and second floor. It is further stated that the petitioner has no right in property No. 20, Todarmal Road, New Delhi which has come to the share of 4 brothers including Sh. G.K. Uppal who vacated first and second floor and was claiming to be owner of full 9A/50, E­571/09 6/23 W.E.A., Karol Bagh, New Delhi. It is stated that the petitioner has bid for 9A/50, W.E.A., Karol Bagh, New Delhi while other brothers bid for 20, Todarmal Road, New Delhi. It is further stated that the petitioner has never worked on any floor except ground floor and the railways not only gave her job on the ground floor but also provided ramp for her wheel chair and even at 20, Todarmal Road, New Delhi, at ground floor a ramp is constructed for her wheel chair as she cannot climb even two stairs. It is further stated that the petitioner was accommodated by her brother Dr. Harish Uppal and for that reason he has taken ground floor at 20, Todarmal Road, New Delhi by depositing Rs. 50 lacs in Delhi High Court in Ex. 102/02 in October, 2009. It is stated that the petitioner has only 1/3rd share at 13th floor in commercial flat of 323 sq. ft. known as Mohan Dev building and the said flat without toilet cannot be used for residence. It is further stated that flat at DCM building does not belong to the petitioner but same belongs to Dr. Harish Uppal and it is again a commercial flat on 3rd floor of 270 sq. ft since 17.11.2009 as basement was vacated and handed over to Sh. G.K. Uppal and it is only one room flat with actual area being only 160 sq. ft and the petitioner has nothing to do with this flat. It is further stated that the petitioner does not own any three room flat at DCM building 16, Barakhamba Road, New Delhi or flat at 68, LFG, Gopal Das Bhawan, New Delhi or any flat in E­571/09 7/23 Shimla as alleged by the respondent nor the petitioner owns ground floor or basement floor of 20, Todarmal Road, New Delhi. The other contents of the application are stated to be wrong and denied and it has been stated that the petitioner being retired central government employee requires the premises let out by her for her own use as residence.

6. The respondent has filed the rejoinder to the reply of the petitioner to leave to defend application in which the respondent has reiterated and re­affirmed the averments made in leave to defend application and those made in reply have been controverted.

7. I have heard the Ld. Counsel for both the parties and carefully perused the entire material available on record.

8. The present petition has been filed u/s 14­C read with section 25­B of DRC Act and in order to succeed in such a petition, petitioner has to prove that she is landlord and retired employee of the Central Government or of the Delhi Administration and the premises were let out by her which are required for her own residence and petition has been filed within one year from the date of her retirement.

9. In the present case also, undisputedly the petitioner was in the employment of Central Government with Northern Railway and she was to retire on 30.11.2009. The petitioner has also placed E­571/09 8/23 on record the copy of her identity card issued by Government of India, Northern Railway, DRM's Office, New Delhi duly attested by Gazetted Officer and pay slip to show that she was Govt. Employee with Northern Railway. She has also placed on record copy of extract of letter dated 25.11.2009 showing list of persons retiring from Office of DRM, Northern Railway Delhi from 01.01.2009 to 31.12.2013 in which the petitioner's name has been shown at serial No. 594 retiring on 30.11.2009. Hence, there can be no dispute regarding the maintainability of present petition.

10. Now, the respondent no. 1 has contended in his leave to defend application that petitioner has no locus standi to file the present petition as she is neither the landlord nor the owner of the suit premises. However, a perusal of the record reveals that the suit premises was let out by the petitioner herself to the respondent no. 1 vide registered lease deed dated 15.10.1984 and copy of same has been placed on record. The respondent has not disputed that the lease deed dated 15.10.1984 was not executed between the petitioner and the respondent no. 1. Therefore, when the petitioner herself has let out the suit premises to the respondent no. 1, he is estopped from challenging the title of the petitioner over the property in question by virtue of Section 116 of Indian Evidence Act.

11. Apart from this, so far ownership of the petitioner over E­571/09 9/23 the property in question is concerned, she was co­owner of the property in question at the time of execution of lease deed dated 15.10.1984 by which the suit premises was let out to the respondent no. 1. In this regard, copy of mutation certificates issued by DDA has been placed on record to show that property bearing No. 9A/50, WEA, Karol Bagh, New Delhi ­110005 has been mutated in the name of the petitioner as co­owner of the said property and it is a settled law that even one co­owner can maintain the eviction petition. Thereafter, by virtue of partition decree by the Hon'ble High Court of Delhi vide order dated 02.05.2008 by which arbitration award was upheld and Ex. 102/02 was directed to be executed. The public auction of the properties in terms of the arbitration award were ordered and the petitioner got purchased full 9A/50, WEA, Karol Bagh, New Delhi ­110005 and as such the petitioner has become the exclusive owner of 9A/50, WEA, Karol Bagh, New Delhi ­110005. The petitioner has placed on record the orders of Hon'ble High Court of Delhi dated 02.05.2008, 22.01.2009, 18.03.2009 in order to show that the arbitration award by which partition decree was passed was upheld and the properties were directed to be auctioned which also include the property in question . Therefore, there is no merit in the contention of the respondent no. 1 that the petitioner is not the owner of the property in question or that there exist no relationship E­571/09 10/23 of landlord and tenant between the parties.

12. The respondent no. 1 has further contended that the lease deed dated 15.10.1984 was got executed by the petitioner through her attorney Sh. Harish Uppal and he was not having any valid attorney in his favour by the petitioner. I do not find any merit in this contention of the respondent no. 1 as the lease deed was executed between the petitioner and the respondent no.1 in respect of the suit premises in the year 1984 i.e. about 26 years ago and same has been relied and acted upon by the respondent no. 1 and he has not challenged the validity of the attorney through whom the said lease deed was got executed by the petitioner at that time. Therefore, after enjoying the suit premises for the last 26 years on acting upon the said lease deed, at this stage the respondents cannot be heard saying that the attorney was not valid to execute the lease deed.

13. Another contention of the respondent no. 1 is that lease deed was got executed by the petitioner to create a ground of eviction against the respondent in future to get the premises vacated. The respondent has further contended that at one hand the petitioner is alleging the co­owner of the property No. 9A/50, WEA, Karol Bagh, New Delhi while on the other hand by executing the said lease deed in her name alone she wanted to take advantage of her handicap position in future for getting the E­571/09 11/23 premises vacated. In my considered opinion, there is no merit in this contention of the respondent no. 1 as first of all, there is no bar in execution of lease deed in respect of a property by one of its co­ owner. Moreover, so far the contention of the respondent no.1 that the petitioner wanted to take advantage of her handicap position in future for getting the premises vacated and for that reason the lease deed was executed in the name of the petitioner alone is concerned, I do not find any merit in this contention. Admittedly, when the said lease deed was got executed by the petitioner in favour of the respondent no.1 , the petitioner was not in service with Central Government. The petitioner jointed service with Northern Railway in the year 1985 and the lease deed was executed in the year 1984. The petitioner has placed on record the certificate of service from Ministry of Railways (DRM Office) to show that she joined the service of Northern Railways on 02.09.1985. Further, when the lease deed was executed in the year 1984, the section 14­C of DRC Act i.e ground of eviction of a tenant on the ground that a landlord is Central Government employee and after retirement he has a right to vacate the tenanted premises for his bonafide requirement, was not on the statute book and same was incorporated by an amendment in DRC Act in the year 1988. Therefore, it cannot be said that the petitioner would have anticipated in the year 1984 itself about her service in the E­571/09 12/23 Central Government in the year 1985 and further that there would be an amendment in DRC Act by which said provision of section 14­C would be inserted. As such, contention of the respondent that lease deed was got executed by the petitioner to create a ground of eviction against the respondent in future to get the premises vacated is baseless. Moreover, if the petitioner had such an apprehension of getting the respondent evicted from the suit premises, she would not have executed lease deed with the respondent no. 1 and there was no occasion for the petitioner to let out the suit premises to the respondent no. 1. Therefore, the contention of the respondent no. 1 that since beginning the petitioner was creating the ground of eviction of the respondent is without any merit.

14. The respondent no. 1 has also contended in his leave to defend application that in previous petition filed by the petitioner u/s 14 (1) (e) of DRC Act, leave to defend application filed by him was allowed. Again, there is no merit in this contention of the respondent no. 1. The present petition has been filed u/s 14­ C r/w section 25­B of DRC Act and the previous petition u/s 14 (1) (e) r/w section 25­B of DRC Act filed by the petitioner has no bearing on filing of the present petition. Similarly, granting of leave in the said earlier eviction petition also does not raise any triable issue and has no bearing on filing of the present petition. Moreover, the E­571/09 13/23 petitioner has explained the reasons for granting of leave to the respondent in the earlier eviction petition as there was dispute between the co­owners of the property in question which has now been settled by the Hon'ble High Court of Delhi.

15. Another contention of the respondent no. 1 in his leave to defend application is that the entire proceedings and the pleadings of the parties in the partition suit in respect of the suit property and in respect of the property No. 20, Todermal Road, New Delhi shows that since the day of letting the premises to the respondent, the petitioner and her brothers and sisters in collusion with each other with malafide intention want to get the premises vacated. The aforesaid contention of the respondent is not only fallacious but also baseless in view of the observations of the Hon'ble High Court of Delhi vide order dated 09.02.2009 that, "The dispute in the present matter is between the brothers and sisters over inherited estate which has been going on for 20 years. The second round of litigation began when the execution proceedings were taken out. The objection to execution proceedings were dismissed on 02.05.2008 and it was directed that, at the first instance, the prospect of inter se bidding should be explored. The lack of harmony between the parties is to such an extent that even this proposal of inter se bidding did not work out, E­571/09 14/23 even though valuation was got done through the valuer in respect of the two properties where are subject matter of dispute i.e. 20, Todarmal Road, New Delhi, and 9A/5, WEA, Karol Bagh, New Delhi." In view of the aforesaid observations of the Hon'ble High Court of Delhi, there is no occasion for the respondent to contend that the petitioner and her brothers are in collusion with each other to get the suit premises vacated from the respondent when they have been fighting with each other for the last 20 years.

16. The respondent has also contended that the site plan of the property in question filed by the petitioner is not correct and is not according to the site. First of all, the respondent no. 1 has not disclosed how the site plan of the property in question is not correct and only vague plea has been raised by the respondent no.

1. Further, the respondent has not filed any counter site plan and it is a settled law that if a tenant does not file any site plan, then site plan filed by the landlord is assumed to be correct. Reliance may be placed upon in the authority titled as R.K. Bhatnagar Vs. Sushila Bhargav 1986 RLR 232 and Jagmohan Singh Vs. K.M. Bhatnagar 1995 RLR 527.

17. The respondent no. 1 has further contented in his leave to defend application that the present petition is not maintainable for non­joinder of the alleged co­owners of the suit property and E­571/09 15/23 further the petition is also liable to be dismissed for non­joinder of necessary party i.e. Govt. As it has already been held herein above that there exist relationship of landlord and tenant between the parties, therefore the respondent is estopped from raising such plea that the present petition is bad for non­joinder of necessary party i.e Govt. So far the contention of the petitioner that petition is not maintainable for non­joinder of the co­owners of the suit property is concerned, it is a settled law that even one co­owner can maintain the eviction petition. It has been held in AIR 2006 SC 1471 that eviction suit filed by one of the co­owner on ground of bonafide personal need, he need not show consent given by other co­owners. Moreover, vide order dated 02.05.2008 passed by the Hon'ble High Court of Delhi, by which the partition has been finalized, the petitioner has become the exclusive owner of 9A/50, WEA, Karol Bagh, New Delhi in which the suit property is located.

18. It has also been contended by the respondent no. 1 in his leave to defend application that auction relied upon by the petitioner in respect of the suit property No. 9A/50, WEA, Karol Bagh, New Delhi is unreliable and doubtful as the other brother ascertain its value to Rs. 3.0 crores has not given any bid and the petitioner was the only bidder which can be easily inferred from E­571/09 16/23 the judgment dated 18.03.2009 and 22.01.2009 and all these proceedings are manipulated and collusive of the petitioner and her family members to get the premises vacated from the respondent. Again, all the aforesaid contentions of the respondent are without any merit in view of observations of the Hon'ble High Court of Delhi vide order dated 09.02.2009. Vide order dated 22.01.2009, the properties were ordered to be auctioned by way of public auction and they were put to public auction. No public person participated in the auction of the above two properties and only Ms. Indira Uppal, one of the parties gave bid for property bearing No. 9A/50, WEA, Karol Bagh, New Delhi and thereafter, parties were asked to give inter se bidding in respect of different floors of property No. 20, Todarmal Road, New Delhi. As such, when the properties were ordered to be auctioned by the Hon'ble High Court of Delhi and no outsiders bidders participated in the auction and the parties were directed to give inter se bidding in respect of the property, then it cannot be said that inter se bidding was collusive or manipulated. The petitioner has also placed on record the copies of the judgment dated 02.05.2008, 22.01.2009, 02.03.2009, 18.03.2009, 09.11.2009, 17.11.2009, 07.12.2009 and auction report and all these orders of the Hon'ble High Court of Delhi reveals that the respondent is raising only a frivolous plea regarding the collusion and manipulation between the petitioner E­571/09 17/23 and her brothers and sisters to get the suit property vacated or that the aforesaid transactions are the sham transactions.

19. The respondent has further contended in his leave to defend application that the petitioner is having properties at Flat No. 1304, Mohan Dev Building, Tolstoy Marg, New Delhi - 1, three rooms flat in DCM Building, 16 Barakhamba Road, New Delhi - 1 and Flat No. 68, LGF in Gopaldas Bhawan, New Delhi­1 and a flat in Shimla besides ground floor and basement floor in property No. 20, Todermal Road, Bengali Market, New Delhi - 1 which she has deliberately concealed.

20. In reply to the same, the petitioner has stated in her counter affidavit that she has only 1/3rd share at 13th floor in commercial flat of 323 sq. ft. known as Mohan Dev building and the said flat is without toilet cannot be used for residence and further there is super area wastage of about 20% and as such the actual area comes to only about 80 sq. ft . In the rejoinder, the respondent has vaguely denied the same. Further, the respondent has not placed on record any thing to show that the aforesaid averment made by the petitioner in her counter affidavit is incorrect. As such, the aforesaid flat which is built on the 13th floor in Mohan Dev Building without facility of toilet cannot be said to be fit for the purpose of residence and for bonafide requirement of the petitioner since said flat is commercial one and as it is located E­571/09 18/23 at the 13th floor is of no use for the petitioner who is handicapped person.

21. So far the three rooms flat in DCM Building, 16 Barakhamba Road, New Delhi - 1 is concerned, the petitioner has categorically stated in her counter affidavit that same belongs to Dr. Harish Uppal and it is again a commercial flat on 3rd floor of 270 sq. ft since 17.11.2009 as basement was vacated and handed over to Sh. G.K. Uppal and it is only one room flat with actual area being only 160 sq. ft as super areas and the she has nothing to do with this flat. Again, the respondent has not placed on record anything to controvert the said averment made by the petitioner in her counter affidavit and, therefore, in the absence of any material even to show prima facie to show that said flat belongs to the petitioner, it cannot be said that the alleged three rooms flat in DCM Building, 16 Barakhamba Road, New Delhi - 1 is owned by the petitioner.

22. Similarly, the petitioner has stated in her counter affidavit that she does not own any flat at 68, LFG, Gopal Das Bhawan, New Delhi or any flat in Shimla as alleged by the respondent nor the she owns ground floor or basement floor of 20, Todarmal Road, New Delhi. The respondent has also not placed on record anything to show that the petitioner is owner of the aforesaid flats. Therefore, it cannot be said that the petitioner is E­571/09 19/23 owner of the aforesaid flat at 68, LFG, Gopal Das Bhawan, New Delhi or any flat in Shimla in the absence of any material placed on record by the respondent no. 1. It has been held in Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors., 155 (2008) DLT 383 that "Leave to defend not be granted to tenant on basis of false affidavit and false averment and assertions and only those averments in affidavit are to be considered by Rent Controller which have some substance in it and are supported by some material." Since, the respondent has not placed on record any material even to show prima facie that the petitioner owns the aforesaid flats as alleged by the respondent, the plea of the respondent is vague and unsubstantiated.

23. The respondent has also contended in his leave to defend application that petitioner has deliberately not filed the site plan of the property bearing No. 20, Todermal Road, New Delhi - 1 and in fact the petitioner is in possession and control of entire ground floor and half of the basement floor in the said property and thus the petitioner is having more than sufficient accommodation in the said property. However, there is no merit in this contention of the respondent since as per order dated 07.12.2009 passed by the Hon'ble High Court of Delhi, the said property bearing No. 20, Todermal Road, New Delhi - 1 does not belong to the petitioner E­571/09 20/23 and she has no right. The petitioner has also placed on record the letter dated 01.12.2009 regarding handing over and taking over of possession in terms of the order dated 17.11.2009 in Ex. 102/02 of the Hon'ble High Court of Delhi which shows that the petitioner has handed over vacant and peaceful possession of the portion of the basement in her possession at 20, Todarmal Raod, New Delhi to Sh. G.K. Uppal and Sh. G.K. Uppal has handed over the vacant and peaceful possession of the portion in his possession i.e. first and second floor of 9A/50, WEA, Karol Bagh, New Delhi. Therefore, contention of the respondent that the petitioner is in possession and control of entire ground floor and half of the basement floor in the said property is without any merit in view of the orders passed by Hon'ble High Court of Delhi in the aforesaid judgments by which the property No. 20, Todarmal, New Delhi has come into the share of Sh. G.K. Uppal.

24. In view of aforesaid discussions, the respondent no. 1 has failed to raise any triable issue in his leave to defend application. On the other hand, the petitioner has successfully established that she was in the service of the Central Government with Norther Railways, DRM's Office, New Delhi and she retired on 30.11.2009 from her services. The petitioner has become the exclusive owner of the entire property bearing No. 9A/50, WEA, E­571/09 21/23 Karol Bagh, New Delhi and Sh. G.K. Uppal has vacated the first and second floor of the said property which is also in possession of the petitioner. The petitioner has also established that she has no other property except the property beairng No. 9A/50, WEA, Karol Bagh, New Delhi for the purpose of bonafide requirement of residence. Although, the petitioner has got vacant possession of the first and second floor of the aforesaid property from Sh. G.K. Uppal, but she requires the suit premises for her residence as she is handicapped person and she cannot walk even a step without wheel chair and cannot climb the stairs and further the first and second floor is required for the family who looks after her. It is also case of the petitioner that the railways not only gave her job on the ground floor but also provided ramp for her wheel chair and even at 20, Todarmal Road, New Delhi, at ground floor a ramp is constructed for her wheel chair as she cannot climb even two stairs. The petitioner has also placed on record the certificate issued by AIIMS, New Delhi to show her 80% physically handicapped. The respondent has not disputed the physical handicap of the petitioner and, therefore, in view of the fact that petitioner is 80% handicapped person and she cannot climb the stairs, the ground floor portion is more comfortable and convenient for her residence. Therefore, the requirement of the petitioner of the suit premises which is on the ground floor cannot E­571/09 22/23 be said to be malafide.

25. Accordingly, the application seeking leave to defend the petition moved by the respondent no. 1 is dismissed and an eviction order is passed u/s 14­C r/w Section 25­B of DRC Act in favour of the petitioner and against the respondents in respect of suit premises i.e. three rooms, kitchen, bathroom, front and rear verandah, front and rear courtyard and garden on the ground floor of the property bearing No. 9A/50, W.E.A. Karol Bagh, New Delhi - 110005; more specifically shown in red colour in site plan Ex. C­1 (exhibited today while passing the order).

File be consigned to Record Room. 




Announced in the open court                         (Balwant Rai Bansal)
on 7th August, 2010                               ARC(Central), Delhi  




E­571/09                                                                 23/23
                                      E­571/09



07.08.2010

              Present:      Petitioner with the counsel.

                            Respondent no. 2 in person.

Vide my separate order announced in the open court, the leave to defend application moved by the respondent no. 1 is dismissed and an eviction order is passed u/s 14­C r/w Section 25­B of DRC Act in favour of the petitioner and against the respondents in respect of the suit premises.

File be consigned to Record Room.

(B.R. Bansal) ARC (Central), Delhi/07.08.2010 E­571/09 24/23