Interim Protection Can Be Granted To Tenant Even Before Delay In Appeal Against Eviction Is Condoned: Allahabad High Court
The Allahabad High Court has held that an appellate court does not lose its power to grant interim protection in an appeal merely because the application for condonation of delay filed with that appeal is still undecided. An order preserving the subject matter of a proposed appeal, it held, stands apart from an order entertaining or deciding it.
Dr. Justice Yogendra Kumar Srivastava held,
“The mere pendency of an application seeking condonation of delay does not, by itself, denude the Appellate Court of the power to pass an appropriate protective order where the circumstances warrant preservation of the subject matter of the proposed appeal.”
The petitioner-landlord had moved the Rent Authority, Kanpur Nagar under Sections 4(3), 4(7) and 21(2) of the U.P. Regulation of Urban Premises Tenancy Act, 2021, seeking eviction of the respondents-tenants and arrears of rent. The rent case was allowed on 2nd September 2025. The tenants appealed to the Additional District Judge, Court No. 9, Kanpur Nagar, filing with the appeal an application for condonation of delay and one for interim protection.
The parties had earlier been sent to mediation and, in the meanwhile, steps under the Rent Authority's order had moved ahead, with Amin Parwana (a warrant directing the bailiff to deliver possession of property to decree holder) issued on 25th March 2026. Holding that the appeal might otherwise be rendered infructuous, the Appellate Court stayed that order.
Before the High Court, the landlord argued that no interim protection could have been granted while the delay remained un-condoned. He also relied on a Mediation Centre report recording that mediation had ended and the parties were unwilling to pursue it, to say that the basis on which the Appellate Court had acted no longer existed. His counsel did not dispute that the report was never placed before the Appellate Court.
The Court held that while a delayed appeal must cross the threshold of limitation in accordance with law, the pendency of that question does not oblige a court to let the subject matter be altered beyond recall meanwhile, leaving the appellate remedy illusory. It held that such protection decides nothing about the sufficiency of the cause shown and confers no substantive right on the appellant.
It cautioned, however, that the power is not a route around limitation, the jurisdiction to preserve being protective and provisional while the jurisdiction to decide the appeal depends on the threshold having been crossed.
“The distinction is material and has to be maintained so that an order intended merely to preserve the efficacy of the appellate remedy does not become a means of bypassing the statutory requirement governing a delayed appeal.”
On the facts, the Court observed that the Appellate Court had neither heard nor decided the appeal on merits and had done no more than extend protection on noticing that steps under the order challenged had begun. Its order therefore amounted neither to condonation of delay nor to a finding that the appeal was maintainable, held the Court.
On the Mediation Centre report, the Court declined to test the order against material never shown to the court that passed it.
“The correctness of the exercise of discretion by the Appellate Court has to be assessed with reference to the material and circumstances which were before it at the time of passing the order and not by introducing, at a later stage, a material document which was admittedly not brought to its notice.”
It held that the later availability of such material might justify an approach to the Appellate Court itself, but did not establish a jurisdictional defect or manifest error. It held that the jurisdiction under Article 227 of the Constitution of India being supervisory and not appellate, the Court would not substitute its own view merely because another was possible.
The challenge to the stay accordingly failed.
On the limited relief finally pressed, the Court disposed of the petition directing the Rent Tribunal/Appellate Court to decide the condonation application at the earliest and thereafter conclude the appeal, preferably within sixty days of presentation of a certified copy of the order, keeping in view Section 33(2) of the 2021 Act. Unnecessary adjournments were not to be granted to either side.
Case Title: Neelabh Gupta vs. Purshottam Das Gupta And 2 Others 2026 LiveLaw (AB) 622
Case Citation: 2026 LiveLaw (AB) 622