DINESH MATHURversusO.P. ARORA AND ORS.

                                 DINESH MATHUR                                 A
                                           v.
                              O.P. ARORA AND ORS.

                                   APRIL 11, 1997

                   [K. RAMASWAMY AND D.P. WADHWA, JJ.)                         B

             Code of Civil Procedure, 1908 :

           Ad inte1im injunction-Grant of-Party m11ni11g hotel business since
     1937-Lower Cowts granting ad-interim injunction against mnning the busi- C
     ness-On appeal held balance of convenience does not lie in issuing the
     ad-interim injunction and the party cannot be adequately compensated if
     ultimately the other pmty succeeds in the suit, for prohibiting the mnning of
     the business by which he acquired goodwill having used the premises for 60
     years-<:owts below committed gross en-or of law in granting injunction.
                                                                               D
             CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3004 of
     1997.

           From the Judgment and Order dated 7.12.95 of the Delhi High Court
     in C.R.No. 974 of 1995.
                                                                                E
             M.P. Jha for the Appellant.

          Gopal Subramaniam, AK. Mahajan, S.P. Mehta, Shashi Bhushan
     and Pramod Dayal for the Respondents.

             The following Order of the Court was delivered :
                                                                                F
          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 G
     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 H
                                        873
    874                   SUPREME COURT REPORTS                   (1997] 3 S.C.R.

A 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 it not a case where the balance of convenience would lie if prohibition
B   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
C   notice the conduct on the part of the appellant in not obeying the ex-pmte
    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 arc triable
D   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-intelim
    injunction and he cannot be adequately compensated if ultimately the
    respondent succeeds in the suit for prol:ibiting the running of the business
E   by which he acquired a goodwill having used 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 intelim injunction stands
    dismissed. The trial Court is directed to dispose of the suit as expeditiously
F   as possible. No costs.

    G.N.                                                         Appeal allowed.