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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.