V. B. Bansal ( 1 ) WORLD Trade Centre Welfare Society appellant/plaintiff filed this appeal, thereby challenging the order dated 26. 6. 1991 ofsatpal, J. vide which the interim stay granted on 18-3-1991 in IA. 2538/min Suit No. 900/91 was vacated. ( 2 ) WORLD Trade Centre Welfare Society is a Society registered underthe Societies Registration Act and was formed by most of the occupantsof the building known as World Trade Centre, situated at Barakhamba Lane,new Delhi. There are 62 members of the plaintiff who have been allotteddifferent spaces/portions in the aforesaid premises as per the detailsmentioned in Schedule a to the plaint. The plaintiff had filed a suit fordeclaration, mandatory injunction, permanent injunction and rendition ofaccount against M/s. Bharat Hotels Limited, a Company incorporatedunder the Indian Companies Act, defendant/respondent No. 1 (hareinafterreferred to as defendant No. . 1), M/s. Jagjit Cotton Textiles Limited, acompany incorporated under the Indian Companies Act, defendant/respondent No. 2 (hereinafter referred to as defendant No. 2) and New Delhimunicipal Committee defendant/respondent No. 3 (hereinafter referred toas defendant No. 3 ). A number of prayers were made in the suit, butsuffice it to refer to the Clause (d), (e), (g) and (i) of Para 18 of the plaint,which reads as under :-D Permanent Injunction thereby restraining the defendant No. 1and defendant No. 2 through its agents, employees, representatives etc. etc. from making any unauthorised additions andalterations in the premises and thereby changing the basicplan of the premises and not to encroach upon the commonareas. E. Mandatory Injunction, thereby directing the defendant No. 3to demolish the unauthorised construction already raised bydefendant Nos. 1 and 2 and restore the premises in theiroriginal position and to keep a check upon the constructionactivities of the defendant Nos. 1 and 2 in future and not toallow them to construct in contravention to the sanctioned andapproved plans. G. Mandatory Injunction, thereby directing the defendant No. 1to restore the fire escape facility to the occupants and membersof the plaintiff society on the ground floor plan which has beenclosed by them. 1. Mandatory Injunction, thereby directing the defendant No. 3to demolish the unauthorised construction already raised bydefendant No. 1 and to restore the premises in their originalposition as per the basic sanctioned plan. ( 3 ) BRIEFLY stated, the averments made in the suit have been that thedefendant No. 1 was allotted a plot of land measuring about 6. 0485 acresapproximately at commercial complex. ( 3 ) BRIEFLY stated, the averments made in the suit have been that thedefendant No. 1 was allotted a plot of land measuring about 6. 0485 acresapproximately at commercial complex. Barakhamba Lane, New Delhi, onlease for a period of 99 years with effect from 11. 3. 1981 by the defendantno. 3, the Deed of Licence in this regard was, however, executed on22. 4. 1982. A Commercial Complex known as World Trade Centre wasconstructed by defendant No. 1, who, by virtue of Clause 29 of the Licencedeed was empowered to create a Sub-Licence with regard to the offices,shops and show rooms constructed in the said building. The defendantno. 1 had issued a brochure highlighting the various salient features of theproject and giving details of the facilities which were to be made availableto its occupants. A number of advertisements had also been issued in thenewspapers in this regard. Different persons approached the defendantno. 1 and took offices, show-rooms and shops as per their requirementsfrom the defendant No. 1 regarding which Sub-Licence Agreements wereexecuted. Further averments made in the plaint have been that the defendant No. 1 assured the members of the plaintiff society that they would beproviding various services and conveniences and that Clause No. (4) underthe head main Features of the Project in the brochure mentioned that atwo-level parking garage with a total capacity of 700 cars with a directdrop-off entry to the enclosed shopping/office artium would be provided. There was a grievance even with regard to the action of the defendantno. 1 in stopping the parking of the vehicles of the members of theplaintiff. Further averments made in the plaint have been that in orderto achieve its illegal desire of minting money, without considering andappreciating the welfare and benefit of the occupants of the complex, thedefendant No. 1 has effected major structural changes and converted variousshops into one hall specifically shown in red colour in the plan marked asannexurep/1, which has been sold to defendant No. 2 at a much higherpremium. It has also been claimed that the defendant No. 1 has evenallotted the common corridors to the defendant No. 2 which have beencovered. It has also been claimed that the defendant No. 1 has evenallotted the common corridors to the defendant No. 2 which have beencovered. ( 5 ) FURTHER averments made are that there were corridors on all thefour sides of the complex and a person could take complete round of thevarious shops therein but because of the aforesaid construction and closureof the corridors it has become impossible to do so and this action of thedefendants 1 and 2 was illegal and mala fide. It was also in contravention ofthe building bye-laws and the rules. It has further been claimed that thedefendant No. 1 had provided a fire escape gate in a corner meant for theuse of the occupants of the complex which has now been closed. It has alsobeen claimed that the members of the plaintiff have paid the prices forcommon corridors which price was received by defendant No. 1 and by wayof illustration it has been mentioned that shop No. 41 at lower ground floorwas allotted to Shri V. P. Gupta, Secretary of the plaintiff society, who haspaid for a total area of 202 sq-ft. while the area in his occupation was135. 6 sq. ft. It is also claimed that consent of the plaintiff and its memberswas necessary before closing the corridor and the defendant No. 3 is bondto demolish the unauthorised construction. ( 6 ) IA. 2538/91 was moved by the plaintiff under Order XXXIXRules 1 and 2 read with Section 151 of the Code of Civil Procedure, whichcame up for bearing on 18. 3. 1991, when the following order was passed :" IA. . 2538/91office to register this application and number it. Noticereturnable on 17/05/1991. Meanwhile, defendants 1 and 2their officers, agents, employees, representatives, workers and anyone acting on their behalf are restrained from making any structuralchanges on the ground floor of the building known as Worldtrade Centre, Barakbamba Lane, New Delhi in the area asdemarcated in red pencil as shown in Annexure P-l to the Plaintat Page 30. The fire escape near the service elevators as well asthe corridors in the area demarcated in the red pencil shall not beblocked by the aforesaid persons. Dasti. Plaintiff shall comply with the provisions of Order 39 Rule, 3 withinthree days. " ( 7 ) DEFENDANT No. 1 moved an application,viz. IA. 3455/91, underorder XXXIX Rule 4 read with Section 151 of the Code of Civil Procedurewhile another application, viz. Dasti. Plaintiff shall comply with the provisions of Order 39 Rule, 3 withinthree days. " ( 7 ) DEFENDANT No. 1 moved an application,viz. IA. 3455/91, underorder XXXIX Rule 4 read with Section 151 of the Code of Civil Procedurewhile another application, viz. IA. 6786/91 under Order XXXIX Rule 4read with Section 151 of the Code of Civil Procedure was moved by defendant No. 2. Both the defendants had prayed for vacating the ex-parteinterim injunction granted on 18. 3. 1991. ( 8 ) IT has been pleaded by the defendant No. 1 that the ex-partead interim injunction order was obtained by the plaintiff on the basis ofmisleading and false statements, thereby causing grave prejudice andirreparable loss and injury to the defendants. It has also been pleaded thatthe plaintiff did not come to the Court with clean hands and distored thecorrect facts. It has also been pleaded that the premises at ground levelwere being used as offices but since many shops were unreserved an area of8340 sq. ft. in one block was available and the same was sub-licenced todefendant No. 2 on 12. 11. 1990. It has also been pleaded that before signingof the Agreement with the defendant No. 2 the premises in question hadalready been converted into a hall and there was no deviation from thesanctioned building plans and, thus, there was no breach of any municipalbye-laws or regulations. It was also claimed that all fire safety requirementsprescribed were being adhered to by the defendant No. 1 and that theplaintiff had never been charged for the common area which is alleged tohave been taken away from them. A prayer has, therefore, been made thatthe ad-interim injunction may be vacated. ( 9 ) IN the application for vacating the injunction moved by thedefendant No. 2 it has been pleaded that the defendant No. 2 agreed to takeoffice space measuring 8340 sq. fts. in the nature of a large hall, as shownin the plan annexed to the Agreement dated 12. 11. 1980, and the aforesaidspace was given to the defendant No. 2 for a period of 99 years for which asum of Rs. 3. 24. 56,500. 00 was paid to defendant No. 1. It is also claimedthat defendant No. 2 agreed to pay a sum of Rs. 16,345. 11. 1980, and the aforesaidspace was given to the defendant No. 2 for a period of 99 years for which asum of Rs. 3. 24. 56,500. 00 was paid to defendant No. 1. It is also claimedthat defendant No. 2 agreed to pay a sum of Rs. 16,345. 00 per month towardsmaintenance and other charges and that the grant of the space in questionwas in conformity with the sanctioned building plans and there was nodeviation or breach in this regard. It was also pleaded that all work/change,structural or otherwise, were carried out by defendant No. 1 prior to thehanding over of the space to defendant No. 2 and it had never acted in anymanner in contravention of the municipal bye-laws or any sanctioned plan. It has also been pleaded that the plaintiff had not suffered any loss and thatthe defendant No. 2 had made a substantial investment in getting thepremises from the defendant No. 1 and that all the changes had beeneffected and completed in September/october 1990. A prayer has, therefore,been made for vacating the injunction order. ( 10 ) AFTER hearing arguments by learned Counsel for the parties thestay was vacated vide the impugned order, as referred to above. ( 11 ) THIS appeal came up before D. P. Wadhwa and R. L. Gupta, JJ. After the arguments were concluded R. L. Gupta, J. came to the conclusionthat taking into consideration the totality of the circumstances, the appealhad no merit and that it deserves to be dismissed. D. P. Wadhwa, J. ,however, did not agree with the conclusion arrived at by R. L. Gupta, J. and was of the opinion that the appeal deserved to be allowed to the extentthat the defendants should be restrained from closing the passage/corridorsin the portion marked red in the Key Plan, Annexure P/l with the plaintand should also be restrained from blocking the free access to the fire escapeexisting in the disputed portion. He was also of the opinion that the defendants should be restrained from using the corridor/passage for any otherpurpose except as passage for the user of all other persons on the groundfloor. It was also observed by D. P. Wadhwa, J. that the learned Singlejudge was right in not restraining the defendant No. 2 from using the spaceshown as shops in the Key Plan for office purposes. It was also observed by D. P. Wadhwa, J. that the learned Singlejudge was right in not restraining the defendant No. 2 from using the spaceshown as shops in the Key Plan for office purposes. ( 12 ) SINCE different options have been given by D. P. Wadhwa andr. L. Gupta, JJ. the appeal has been referred to me for decision. I have heard Shri Mukul Rohtagi, Sr. Advocate, for the appellants,shri Ravinder Sethi, Sr. Advocate, for defendant no. 1 : Shri L. K. Bhushanfor defendant No. 2 and Shri B. J. Nayyar for defendant No. 3. I have alsogone through the records. ( 13 ) LEARNED Counsel for the appellant has submitted that before thedifferent shops were let out to the members of the plaintiff/appellant, abrochure was issued showing the existence of corridors which could not bedisturbed by defendant No. 1. He has also submitted that the membersof the appellant had taken the space as Sub-lessee on the basis of thepromises contained in the brochure and that the different individuals hadpaid for the common space, as is evident from the Sub-lease executedbetween the defendant No. 1 and individual members of the appellant. Hehas also submitted that it was not open to the defendant No. 1 to take awaythe rights of the appellants which have been in use by them since itsinception. It has also been submitted that corridors have been provided inthe complex so as to make the same accessible to all and by convertingnumber of shops into a big hall the defendant No. 1 has, in fact, destroyedthe very nature of the complex which was developed as a shopping complex. He has further submitted that even if there was an objection by even oneperson having a sub-lease in the shopping complex, it was not open to thedefendant No. 1 to give the corridor and a number of shops to the defendingno. 2, converting it into a big hall. He has also submitted that by doingso an irreparable loss has been caused to the members of the appellant andthat the balance of convenience lies in favour of the appellants. 2, converting it into a big hall. He has also submitted that by doingso an irreparable loss has been caused to the members of the appellant andthat the balance of convenience lies in favour of the appellants. It has alsobeen submitted that the defendants are estopped from changing the use ofthe corridors and, thus, prayer has been made that the appeal may beaccepted and the defendants 1 and 2 may be restrained from converting thecorridor into a portion of the ball so as to deprive the persons the. use of thiscorridor. It has also been submitted that the building bye-laws have beenviolated by the defendant No. 1, who has closed the corridors by violatingthe sanction plan. ( 14 ) SHRI Ravinder Sethi, Senior Advocate appearing for defendantno. 1, has on the other hand submitted that the defendant No. 1 has notviolated the terms of the licence granted in favour of the individuals in respect of the shops given to them. It has also been submitted that the respondent No. 1 was within its right to give to defendant No. 2 a number of shopsafter converting them into a big hall and the area in front of the same. Hehas further submitted that initially the construction was made to have thisarea as a shopping complex but most of the members of the appellant havethemselvesstarted using the shops as offices and the other shops were lyingvacant and so the defendant No. 1 was fully justified in converting them intoa big hall and in giving the same to defendant No. 2 for use as an office. Ithas also been submitted that the shops had already been converted into a bighall and the open space in front of the shops had already been included inthe hall and, thus, there was no case for the issue of a mandatory injunctionso as to direct the defendant No. 1 to remove the construction already made. It has also been submitted that there was no question of the breach of anyterms and, thus, principles of promissory estoppel were not applicable in theinstant case. A prayer has, therefore, been made that the appeal be dismissed having no force. It has also been submitted that there was no question of the breach of anyterms and, thus, principles of promissory estoppel were not applicable in theinstant case. A prayer has, therefore, been made that the appeal be dismissed having no force. ( 15 ) SHRI L. K. Bhushan, learned Counsel for defendant No. 2, hassubmitted that a huge amount has been paid by the defendant No. 2 todefendant No. 1 having no knowledge about the existence of any terms tothe members of the appellant about the availability of a corridor. It has alsobeen submitted that the space in question had already been converted into ahall and that the plaintiff had no prima facie case and balance of conveniencelies in favour of defendant No. 2 who would suffer irreparable loss if theyare estopped from using the premises, which they have already taken fromdefendant No. 1. A prayer has, therefore, been made that the appeal maybe dismissed. ( 16 ) SHRI B. J. Nayyar, learned Counsel for defendant No. 3 has submitted that there has not been any violation of the municipal bye-laws andthat there is no requirement of a fire escape for the shop keepers on theground floor. ( 17 ) AS ready referred to, defendant No. 1 had constructed ashopping Plaza and different shops had been given to the individuals for beingused as shops. The learned Trial Judge had appointed a local Commissionerwho gave a report which clearly indicates that most of the shops were beingused as offices by members of the plaintiff society. There is no doubt thatobjections have been raised by the plaintiff about the correctness of thereport of the local Commissioner but the fact remains that prima facie therewas sufficient material on record before the learned Trial Judge for coming toa primafacte conclusion that most of the shops were being used by membersof the plaintiff as offices. In these circumstances, there can possibly be noobjection to the defendant No. 1 giving shops to the defendant No. 3 afterconverting them into a ball. When the shopping complex was being usedby the members of the plaintiff themselves as offices, I do not find anyprima fade ground to stop similar use by the defendants 1 and 2. In factd. In these circumstances, there can possibly be noobjection to the defendant No. 1 giving shops to the defendant No. 3 afterconverting them into a ball. When the shopping complex was being usedby the members of the plaintiff themselves as offices, I do not find anyprima fade ground to stop similar use by the defendants 1 and 2. In factd. P. Wadhwa and R. L. Oupta, have expressed their opinion that prima fadethere could not be any objection to the conversion of the shops into a hall bythe defendant No. 1 to be used by the defendant No. 2 as an office. ( 18 ) THE only question which remains for consideration is as towhether the defendants 1 and 2 could close the corridor in front of the shopswhich have been converted into a hall and can these defendants be asked toremove the construction which has already been raised. Submission of thelearned Counsel for defendants 1 and 2 had been that this construction hadbeen raised before filing of the suit and that passing of a mandatory injunction for the removal of the construction would cause irreparable loss tothe defendant Nos. 1 and 2 and that balance of convenience also lies in theirfavour. It may be noted that in the Licence Deeds executed by the defendant No. 1 in favour of the individual members of the appellant, there isno mention of the details of the common area. It is not the case of theappellants that the shops of the members of the appellant have becomeinaccessible. The only grievance has been that there is a closure of onecorridor from one side or the other so as to prevent the persons from thatside to have a free access to the shops of the Shopping Plaza. Had therebeen no violation of the terms by any one by using the shops as officesthere could be a prima fade grievance of the members of the appellant thatthey would be suffering an irreparable loss. In the instant case members ofthe appellant having themselves violated the salient features mentioned inthe brochure, cannot be heard to say at this stage that they have sufferedirreparable loss or they have a good prima facie case for the grant of mandatory injunction for the demolition of the construction already made by thedefendant Nos. 1 and 2. In the instant case members ofthe appellant having themselves violated the salient features mentioned inthe brochure, cannot be heard to say at this stage that they have sufferedirreparable loss or they have a good prima facie case for the grant of mandatory injunction for the demolition of the construction already made by thedefendant Nos. 1 and 2. ( 19 ) THE interlocutory remedy is intended to preserve in stains quothe rights of the parties which may appear on a prima facie case. Grant ofinjunction is an equitable relief and the grant or refusal of an interlocutorymandatory injunction shall ultimately rest in the sound judicial discretion ofthe Court to be exercised in the light of the facts and circumstances in eachcase. Existence of the prima fade case must be shown by the plaintiff inthe first instance, who has also to show that non-grant of the injunctionwould result in an irreparable injury which cannot be compensated adequately. Mandatory injunction is granted on an interlocutory application onlyto restore the status quo and not to establish a new state of things, differentfrom the state which existed at the date when the suit was instituted. ( 20 ) IT has clearly been stated by the learned Counsel for defendantno. 2 that the defendant No. 2 was not aware of the existence of a corridorfor use by the persons to whom other shops had been given and that it isthe defendant No. 2 who would suffer an irreparable loss if the constructionalready raised before the filing of the suit is demolished and it may not bepossible to compensate it adequately if ultimately the plaintiff fails. Usuallythe prayer for the grant of interlocutory injunction is at a stage when theexistence of a legal right asserted by the plaintiff and its alleged violation areboth contested and uncertain and remain uncertain till they are establishedat the trial. The Court at this stage acts on certain well established principles of administration of this form of interlocutory remedy which is bothtemporary and discretionary. The Appellate Court would not interfere inthe exercise of discretion of the Court of the first instance and substitute itsown discretion except where the discretion has been shown to have beenexercised arbitrarily, capriciously or perversely or where the Court hasignored the settled principles of law regarding grant or refusal of interlocutory injunction. The Appellate Court would not interfere inthe exercise of discretion of the Court of the first instance and substitute itsown discretion except where the discretion has been shown to have beenexercised arbitrarily, capriciously or perversely or where the Court hasignored the settled principles of law regarding grant or refusal of interlocutory injunction. The Appellate Court would not re-assess the material andseek to reach a conclusion different from the one arrived at by the Trialcourt on the ground that if it was to be assessed by the Appellate Court itwould reach a different conclusion. Reference in this regard can be madeto the case Wander Ltd. and Another v. Antox India P. Ltd. , (1990) (Supp.)S. C. C. 727. ( 21 ) THE question as to whether there is any promissory estoppelagainst the defendants 1 and 2 would have to be gone into after evidence isled by the parties. Apart from the issuing of the brochure there is nomention about the corridors in front of the disputed shops, as being includedin the common area of the individual members of the plaintiff/appellant inthe documents executed in their favour. It is apparent at this stage that inviolation of the conditions contained in the brochure members of the plaintiff have started using the shops as offices. Can they, in these circumstances,object to the inclusion of the place in front of the shops in the shops by thedefendant No. 1 at this stage? My answer is that this aspect will have tobe gone into during trial and the defendants 1 and 2 cannot be asked todemolish the construction already made and the space included in the hall. Learned Counsel for the appellant when asked to point out as to how thecommon area was calculated mentioning the areas in the documents executed in favour of the individual members of the appellant, he was not able togive any answer and, in fact, submitted that it was very difficult to state atthis stage as to bow the area was calculated. It is, thus, clear that this is amatter which has to be gone into during trial. ( 22 ) LEARNED Counsel for the appellant has also submitted that therewere two fire exits in the shopping complex and out of them one has beenclosed by the defendant No. 1, which was not permissible. It is, thus, clear that this is amatter which has to be gone into during trial. ( 22 ) LEARNED Counsel for the appellant has also submitted that therewere two fire exits in the shopping complex and out of them one has beenclosed by the defendant No. 1, which was not permissible. He has submitted that on this account alone the appellant was entitled to the relief ofmandatory injunction, directing the respondents 1 and 2 to remove the construction blocking the corridors. Learned Counsel for the respondent No. 1. on the other hand, has submitted that the appellant had madefalse averments in the plaint to the effect that the fire escape has beenclosed, meaning thereby that there was no fire escape and thatthis, perhaps, was one of the main considerations on account ofwhich the ex-parte stay was granted He has submitted that, in fact,there were two fire escape routes and the defendant No. 1 has madeprovision for one more fire escape at the spot. Learned Counsel for theappellant has submitted that the provision of another fire escape will haveto be proved during trial, but it has been submitted that the fire escapecould not be closed by the defendants. It has been stated by the learnedcounsel for the respondent No. 3 on getting instructions from the concernedauthorities that no fire escape was required for the shop-keepers on theground floor. Even otherwise, as per the case of the appellant, there weretwo fire escape routes and the defendant No. 1 by making provision ofanother fire escape has now made two fire escapes available for the publicat large. Therefore, it cannot be said that no fire escape exists at the spot. ( 23 ) THE main grievance of the appellant has been that by convertingthe passage corridor, access to various shops has been curtailed andon this account the members of the appellant are bound to suffer. Thereis no denial of the fact that other corridors are available for the public tomove around in the shops in the Shopping Plaza. ( 24 ) IT is pertinent to mentioned that the defendant No. 1 has fileda copy of the Completion Plan in which there are no corridors. Learnedcounsel for the defendant No. 3 appears to be right in his submission thatthere is no violation of the rules or bye-laws of the respondent No. 3 inclosing the corridors in such circumstances. ( 24 ) IT is pertinent to mentioned that the defendant No. 1 has fileda copy of the Completion Plan in which there are no corridors. Learnedcounsel for the defendant No. 3 appears to be right in his submission thatthere is no violation of the rules or bye-laws of the respondent No. 3 inclosing the corridors in such circumstances. ( 25 ) IT is clear from the records that the shopes and the area infront of them have been included in a hall prior to the institution of thepresent suit by the plaintiff. The defendant No. 2 has claimed ignoranceabout any agreement with the members of the plaintiff to have corridors allaround and claimed having paid huge amount of Rs. 3. 24,56,5co. 00besidesagreeing to pay Rs. 16,345. 00per month to the defendant No. 1. Plaintiffshave not been able to prove a prima facie good case and the balance of convenience is in favour of defendant No. 2 who would suffer irreparable lossif the construction is ordered to be demolished at this stage. It is, however,made clear that observations made in this order are only for the purpose ofdeciding this appeal and the suit would be decided on the basis of evidencewhich may be produced by the parties during trial. ( 26 ) AFTER giving my thoughtful consideration to all the facts, I haveno hesitation in coming to the conclusion that the application for ad interim.