M.L. Jain, J.
(1) The International Airports Authority of India (herein the Authority) granted a contract to the Delhi Airport Porters Labour Contract & Construction Society Ltd. (herein the petitioner) having 110 members, for porter age service for the incoming and outgoing passengers in the domestic side of the Palam Airport upon a fixed monthly license fee of Rs. 48,000.00. Initially the period of license was from 24.11.79 to 23.11.80. It was extended from 24.11.80 to 23.11.81, but the formal contract was executed on 11.2.81. It was terminal at any time by the authority by giving three months notice in writing without assigning any reason. When the agreement is permanent of the structure, installations and equipments and all other things whatsoever brought by the licensee shall be removed by the licensee and the premises shall be left open to the authority without claiming any compensation whatsoever. A further condition of the license was that the provisions of the Public Premises (E.O.U.O.) Act. 1971 and the rules framed there under shall be applicable for all matters, provided in that Act. The agreement, no doubt, in the title is described as lease and license for porter age. But without prejudice to the contention of the parties, 1 snail, for the purposes of this order, take it as it were a license and not a lease. Sometimes in August, 1983, the authority decided to discontinue the porter age service for the arrival side w.e.f. 24.9.83 but continued to extend the contract for the departure side up to 23.12.83. The authority inserted an advertisement in the Nav Bharat Times on 23.8.83 and in some other leading newspapers calling tenders for grant of license for porter age for departure 1984. Rajdhani Law Reporter side. The last date for filing the tender was 23.9.83. In spite of repeated reminders, no form of tender was supplied to the petitioner, perhaps on account of certain complaint. On 1.9.83, the authority informed the petitioner that they could not be considered for future contract. The petitioner was, however, directed to deposit license fee for the month of January, 1984 only for departure service. If appears that the license was now given to the Palam Airport Workers Society (herein the rival society), and, thereforee, on 17.1.84 the petitioner was informed that the porter age of the' petitioner, shall stand terminated w.e.f. 24.1.84. They were also requested to make suitable arrangement for closing the porter age activities after 24 hours on 23.1.84 under intimation to the authority.
(2) On 19.1.84, the petitioner filed a suit in the court of Sub-Judge, Delhi against the authority for declaration that their agreement could not be terminated as there was a relationship of landlord and tenant between them and the authority and that the letter of 17.1.84 was illegal because they were not given any show cause notice why they were not considered for participating in tender and that their contract could not be terminated without three months notice and they could not be disposed otherwise than by resort to the Public Premises (E.O.U.O.) Act, 1971. They prayed for permanent injunction restraining the authority from dispossessing them from the domestic side of the Palam Airport and from interfering with the porter age service rendered by them.
(3) Along with the suit they also moved an application under Order 39 Rule 1 & 2 Cpc for temporary injunction which was opposed by the authority. On 23.1.84, the trial court directed the Authority to maintain status quo and thereafter by order dt. 25.1.84, dismissed the application. It was of the view that the petitioners had no legal right to continue with the license. It was further of the view that they failed to show how the provisions of Public Premises Act has been infringed. It further observed that they had not come with clean hands. They were informed on 1.9.83 that their case could not be considered but this fact was not mentioned by them in the plaint. As regards the balance of convenience it observed that it was in favor of the rival society in whose favor the contract has been sanctioned. The petitioner filed an appeal on 27.1 84. On that date, the Additional S.S.J. directed the parties to maintain the status quo. However, by his order dt. 28.1.84, he dismissed the application for interim injunction. No sooner than the order was pronounced, the petitioner made an application to the Additional S.S.J. that they intend to file a revision petition and they should be allowed 15 days time for the purpose and in the meantime the status quo be directed to be maintained. That application was rejected. Thereafter the petitioner rushed to file the present revision and after receiving the order from the Hon'ble the Chief Justice the case was heard by me at my residence; I admitted the revision, issued notice and directed the dispossession of the petitioner shall in the meanwhile be stayed. The certified copy of the order is alleged to have been shown to the officials of the authority at about 6.30 p.m. But the order was not complied with and it is now alleged that with the help of police the rival society was inducted into the premises. It was mentioned by the authority that they had done so at about 6 p.m. The petitioners have, thereforee, moved the present application under Order 39 Rule 1 & 2 Civil Procedure Code that the authority be directed to restore status quo in compliance with the orders of this court. Notice was taken by the authority, but was unable to file a written reply because one day time was not sufficient for them for the purpose. The matter was heard on 2.2.84. Since then I have also examined the records of the lower court. The Ld. Counsel for the authority submitted that the revision was not maintainable because the lower courts were entitled to make an order right or wrong as long as it fell within their jurisdiction. That apart the petitioner kept quiet from 1.9.83 and did not challenge the order of disbarment. They also concealed fact from the court below. thereforee, the case suffered from undue delay and want of bonafides. It was also urged that since the new contractor has already been inducted, they were necessary party and in their absence no relief can be granted to the petitioner so as to affect their rights. Even in Roman Daya Ram Shetti v. The International Airport Authority, : (1979)IILLJ217SC , the Supreme Court did not set aside the contract. though it found it to be arbitrary. The petitioner lost right on 23.12.83 and it had no further right to continue in the premises. Even if it is said that the petitioner had any right, then they were at the most entitled to damages and not reinstatement.
(4) I have considered over these objections. It appears to me that lower court has not exercised their jurisdiction in a proper manner and since a great prejudice has been caused to the petitioners, revision to this court does lie, u/s 115 CPC. Their orders have rendered the suit infructuous, a course which cannot be permitted. The rival society could not be made a party because when the suit was filed it had not been inducted into the premises. It is near about the issue of the stay order by this court that the status quo was disturbed. The authority, thereforee, alone is answerable at this stage.
(5) As to prima-facie case, certain facts were indisputable. (1) Petitioners were to work the contract up to 31-1-84 having paid the fee for that month ; (2) They were debarred from filing competitive tender in violation of the natural justice; (3) The authority knew that a suit for declaration and injunction were pending and a revision was going to be filed ; (4) Speed with which the authority acted showed that they had got scent of the order of this court and they were trying to change the situation so that the petitioner may have to make the rival society a party and may be faced with the fate accompli and consequent change in the cause of action.
(6) Now these facts show that the petitioners have a prima-facie case. The balance of convenience will not be disturbed if the petitioners are allowed to continue and new society is asked to hold back till the decision of the suit which can be expedited. As regards the case of irreparable injury, undue damages may be claimed later on, but at the present moment, 110 families have been put without work by an arbitrary and clandestine act of the authority which can not be said to be dignified or justified. This is thus the situation which calls for action by this court. There is ample authority for doing so. In Magan Lal v. Chotte Lal I.L.R. 26 Bom 136. the plaintiff sued to restrain defendant from erecting a certain door. The plaintiff also applied for an interim injunction which was refused, the defendants thereupon erected the door. The lower court dismissed the suit on the ground that on the erection of the door a new and a different cause of action has arisen for which a fresh suit must be filed. The High Court reversed the lower court, remanded the case and on the suit as framed, the court also granted mandatory injunction for removal of the door. The suit was rightly framed in the light of the circumstances which existed when it was brought. It was the defendants subsequent conduct which rendered it necessary that the plaintiff should be given, as prayed for in his plaint, such other relief as the court may think of. The court observed that after the plaintiff application for interim injunction has been rejected the defendant proceeded with the building so that when the case came on for hearing the mischief which has been apprehended by the plaintiff had become an accomplished fact. It was held that the defendants subsequent conduct entitled the plaintiff to mandatory injunction even during the course of the trial of suit. In. M.C. Chetty v. P. Subarmanyam A.I.R. 1918 Mad 588 it was held that the description of the temporary injunction in Specific Relief Act does not exclude issue of mandatory injunction. Temporary injunction may take not only the form of restraining a person from further erection of the building but may also direct that he should pull down as much as he had erected after he became aware of the institution of the suit.
(7) Jaya Narayan v. Brojendra Nath A.I.R. 1951 (38) Pat 546 was a suit for permanent injunction restraining the defendant from constructing the building. The injunction was vacated on 1.3.50. The appeal was filed on 7.3.50. The Appellate Court granted the interim injunction. Before that the defendant took advantage of the order of the trial court vacating ad-interim injunction and the delay in filing appeal, hastened with the construction. It was observed that the conduct of the defendant quite clearly showed that they were trying to defeat any appeal which might eventually be filed by the plaintiff and the order which might be passed in his favor. The High Court accordingly by mandatory injunction directed the defendant to pull down the structure. In Nandan Pictures Ltd. v. Art Pictures Ltd. 1956 Calcutta 428, it was observed that mandatory injunction are a form of equitable relief and they have to be discharged in aid of equity and justice to the fact of each particular case. If a mandatory injunction is granted on an inter-locator application, it is granted only to restore the status quo. The one case in which the mandatory injunction is issued on I.A. is where, that notice of the institution of the plaintiff's suit and the prayer made in it for an injunction to restrain the doing of certain act, the defendant does that act and try and alter the factual base upon which the plaintiff claims his relief. An injunction issued in such a case in order that the defendant cannot take advantage of his own act and defeat the suit by saying that the old cause of action no longer survives and a new cause of action for new type of suit had arisen. When such is found to be the position, the court grants mandatory injunction even on an I.A. directing the defendant to undo what he had done with notice of the plaintiff's suit and the claim therein and thereby restore the position which existed at the date of the suit. In Goverdhan Singh v. Mulak Dass in A.I.R. 1973 J. & K. 1963, it was held that both under Order 39 Rule 2 and S. 151 Civil Procedure Code ., the court has power to pass an order even in mandatory from if such order is required to maintain status quo between the parties. The situation that the authority has created is just the same as was done in aforesaid case and the court will fail in its duty if it does not ask the authority to undo what it has done and restore the status- quo. While doing so, I am not taking note of the allegation that my earlier order was willfully disobeyed because no formal complaint for contempt has been made and I do not have the reply of the authority before me. I, thereforee, accept this application and direct the authority to suspend the license/lease/contract of the rival side and allow the petitioner to continue to operate as they were doing before 17-1-1984 until the disposal of the revision petition.