Full Judgment Text
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PETITIONER:
DINESH MATHUR
Vs.
RESPONDENT:
O.P. ARORA & ORS.
DATE OF JUDGMENT: 11/04/1997
BENCH:
K. RAMASWAMY, D.P. WADHWA
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted. We have heard counsel on both sides.
This appeal, by special leave, arises from the judgment of
the High Court of Delhi, dated December 7, 1995 made in C.R.
No.974/90.
It is not necessary to narrate all the details for the
purpose of disposal of this appeal. Suffice it to state that
the respondent had a perpetual lease in 1937 and ever since
he has been using the premises for running a hotel. The
respondent filed a suit in 1991 for the first time alleging
that the appellant had violated clause 7(2) of the
conditions of lease as he has been obtained the prior
permission of the Commissioner. Ad-interim injunction was
granted. When he sought for vacation, it was not ordered. On
appeal, it was confirmed and revision was dismissed. Thus
this appeal, by special leave.
It is an indisputable fact that ever since 1937 the
appellant has been using the premises for commercial
purpose, viz., running a hotel business. It is not a case
where the balance of convenience would lie if prohibition on
running the hotel on the basis of the lease is granted to
him. Whether the appellant has violated the conditions of
the lease is a matter to be gone into in the suit itself. We
decline to go into the merits though Shri Gopal Subramaniam,
learned senior counsel, sought to impress upon us the non-
compliance of the covenants of the lease. He also brought to
our notice the conduct on the part of the appellant in not
obeying the ex-parte order of injunction granted on December
2, 1991 till September 24, 1994. It may be that he did not
obey the injunction but remedy is different. On that ground,
it cannot be said that balance of convenience lies in grant
of injunction in favour of the respondent. Granting
injunction is a matter of discretionary. Balance of
convenience and irremediable injury are triable issues and
are required to be examined and found positively. All are
apparently lacking. Since the appellant has been running the
business right from 1937, balance of convenience does not
lie in issuing the ad-interim injunction and he cannot be
adequately compensated if ultimately succeeds in the suit
for prohibiting the running of the business which he
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acquired a goodwill for using the premises from long 60
years. Under the circumstances, the courts below have
committed gross error of law in granting injunction.
The appeal is accordingly allowed. Ad-interim injuction
stands dissolved. The trial Court is directed to dispose of
the suit as expeditiously as possible. No costs.