“Cannot Continue Enjoying Possession Without Payment”: Delhi High Court Refuses Further Protection to Tenant Facing Eviction
Delhi High Court Refuses to Protect Tenant Who Stayed Without Paying; Allows Landlord to Proceed With Eviction After Court-Ordered Deposit Remained Unpaid
Facts
The dispute concerns a residential property bearing No. 146, First Floor, Pocket-14, Sector-24, Rohini, Delhi. Respondent S.K. Joshi had let the property to Suresh Kumar under tenancy agreements executed in 2013, 2015 and 2016. According to the landlord, the tenant had defaulted in payment of rent from April 2018.
The landlord instituted a suit seeking possession, arrears of rent and damages/mesne profits. Since Suresh Kumar did not appear, he was proceeded against ex parte on 16 August 2022. The Trial Court ultimately decreed the suit in the landlord’s favour on 21 February 2023.
Suresh Kumar died on 28 September 2023. His legal representative, Devraaj S. Vashisht, subsequently applied under Order IX Rule 13 CPC to set aside the ex parte decree. The Trial Court dismissed that application on 22 May 2025, observing that Suresh Kumar knew about the suit during his lifetime and had deliberately avoided service through his son.
The legal representative then filed the present appeal before the Delhi High Court.
While issuing notice, the High Court granted interim protection against dispossession, but imposed a clear condition: the appellant had to deposit damages/mesne profits at ₹1,000 per day from 1 January 2019 to 11 June 2025, with 6% interest, along with ₹92,000 arrears of rent with 6% interest, within four weeks.
The appellant did not deposit any amount.
On 28 March 2026, the High Court therefore permitted the landlord to revive the execution proceedings. A subsequent application seeking recall of that order was also dismissed. The appellant then filed the present application seeking reduction/modification of the original deposit condition.
Issues
The central issue was whether the appellant could continue enjoying protection against eviction despite having failed to comply with the monetary condition upon which that protection was expressly granted.
The Court also had to consider whether alleged financial hardship, disputed service of summons, and the appellant’s claim that the deceased tenant had already paid ₹45.15 lakh towards purchase of the property justified reducing the deposit amount almost ten months after the deadline had expired.
Appellant’s Arguments
The appellant argued that the original tenant had never been properly served with summons in the civil suit. According to him, there was no material showing personal service or any acknowledgement signed by the tenant. He also disputed that a person named Arjun had authority to accept summons on the tenant’s behalf.
He further pleaded financial hardship, arguing that the deposit condition imposed an onerous burden and that the failure to comply was neither deliberate nor intentional.
A further contention was that Suresh Kumar had allegedly already paid ₹45,15,000 to the landlord as sale consideration for the suit property and its ground floor. The appellant alleged that despite receiving this amount, the landlord neither executed a sale deed nor refunded the money.
The appellant therefore argued that insisting upon the substantial deposit would effectively defeat his appeal and expose him to eviction before the underlying controversy could be decided.
Respondent’s Arguments
The landlord maintained that Suresh Kumar was merely a tenant whose tenancy had ended on 31 December 2018 after non-payment of rent since April 2018. Despite termination, he continued occupying the property, forcing the landlord to institute the possession suit.
The alleged ₹45.15 lakh sale consideration was strongly disputed. The landlord pointed out that no receipt, RTGS/NEFT details or other evidence of payment had been produced. The two bayana receipts relied upon by the appellant were alleged to be forged and fabricated.
The landlord also argued that summons had repeatedly been attempted, refused and eventually affixed at the property, and that the Trial Court had already recorded findings concerning valid service while dismissing the Order IX Rule 13 application.
Most importantly, the interim protection had always been conditional. Since the appellant chose not to comply with the deposit requirement, he could no longer claim the benefit of the stay while continuing to occupy the property.
Analysis of the Law
The Court focused primarily on the nature of conditional interim relief.
The earlier order had not granted an unconditional stay against eviction. The appellant’s possession was protected only on the express condition that the stipulated arrears, damages and interest were deposited within four weeks.
That four-week period expired on 9 July 2025. The appellant neither complied with the condition nor sought an extension or modification within the prescribed period. Instead, he continued remaining in possession without making any payment.
The present modification application was filed only on 28 April 2026—nearly ten months after the deadline expired and only after the Court had already permitted the landlord to revive execution proceedings. The Court expressly characterised the application as an “afterthought.”
The consequence was straightforward: because compliance with the deposit was the very condition upon which interim protection operated, failure to satisfy that condition meant that the protection ceased to subsist.
Precedent Analysis
Unlike many judgments concerning stay of money decrees or mesne-profit conditions, the Court’s decision here did not turn upon an elaborate analysis of external precedent.
The determination was principally fact-specific and procedural, based upon the Court’s own earlier conditional order, the appellant’s undisputed non-compliance, his failure to seek timely modification, and the subsequent orders permitting revival of execution.
Accordingly, the core principle emerging from the judgment is not that every tenant must necessarily deposit ₹1,000 per day to obtain appellate protection. Rather, where a court grants discretionary interim protection subject to a specific monetary condition, the beneficiary cannot continue taking advantage of that protection indefinitely while disregarding the corresponding obligation.
Court’s Reasoning
The Court found the appellant’s conduct decisive.
He had been granted the benefit he wanted—continued possession while his appeal remained pending—but had not fulfilled the condition attached to that benefit.
The Court observed:
“The Appellant cannot be permitted to continue enjoying possession of the Suit Property without making any payment whatsoever.”
The financial-hardship argument did not persuade the Court. If the deposit condition was genuinely impossible or excessively onerous, the appellant should have sought its modification within the four-week compliance period or at least within a reasonable time thereafter. Instead, he continued enjoying protection and approached the Court only after execution was revived.
The Court also refused to use the present application as a vehicle to decide the disputed allegations regarding non-service of summons or the alleged payment of ₹45.15 lakh towards purchase of the property. Those were issues going to the merits of the pending appeal and required consideration of pleadings and evidence. They did not justify belated modification of the deposit condition.
The balance of equities also weighed against the appellant. The landlord held an existing decree for possession, whereas the appellant remained in occupation without having complied with the payment condition imposed by the High Court.
Conclusion
The Delhi High Court dismissed the application seeking reduction of the deposit amount.
It clarified that because the appellant failed to fulfil the deposit condition, the earlier interim protection against dispossession had ceased to operate. Consequently, there was no legal impediment to the landlord proceeding with execution and seeking the appellant’s eviction forthwith in accordance with law.
Importantly, the Court did not dismiss the underlying appeal itself and did not finally adjudicate the appellant’s contentions regarding non-service of summons or the alleged ₹45.15 lakh sale transaction. Those questions remain issues on the merits of the appeal.
The immediate consequence of this order is narrower but significant: the appellant can pursue his appeal, but he cannot continue occupying the property under the protection of the High Court after failing to comply with the very condition on which that protection was granted.
Case Details
Case: Suresh Kumar (Since Deceased) Through LR Devraaj S. Vashisht v. S.K. Joshi
Court: High Court of Delhi at New Delhi
Case No.: RFA 545/2025
CNR: DLHC010377662025
Judge: Justice Tejas Karia
Reserved: 21 August 2026
Delivered: 15 September 2026
Application: Section 151 CPC seeking reduction/modification of the deposit condition
Result: Application dismissed; interim protection held to have ceased; landlord permitted to proceed with execution and seek eviction in accordance with law.
