Chittalosh Mookerjee, J. - (1.) The plaintiff-respondent-firm has instituted, in the City Civil Court at Calcutta, a suit against the Commissioner, Corporation of Calcutta, for a decree declaring that the defendant has no right to create obstruction to the works done in the premises No. 19, Synagogue Street, Calcutta in accordance with the plan submitted on 13th February, 1976 and for permanent injunction restraining the defendant, Commissioner, his officers and agents from causing any obstruction and/or interference/ to the works done in the suit premises No. 19, Synagogue Street, Calcutta in accordance with the said plan. On 8th June, 1979, the plaintiff-respondent filed in the trial court a petition under Order 39, Rules 1 and 2 of the Code of Civil procedure. The trial court by its Order No. 3 dated 8th June, 1979 issued a Rule upon the defendant to show-cause why the prayer for temporary injunction would not be granted. The Court also passed an ex parte order of ad interim injunction restraining the defendant from causing any obstruction to or interference with the works done at premises No. 19, Synagogue Street in accordance with the plan submitted on 13th February, 1976 till the disposal of the Rule. The defendant after entering appearance in the suit filed an application under Order 39, Rule 4 of the Code for vacating the said ad interim injunction and he also filed an affidavit-in-opposition to the plaintiffs petition for temporary injunction. Parties also filed further affidavits. The learned Judge, 8th Bench, City Civil Court at Calcutta, by his Order No. 15, dated 20th November, 1979 allowed the plaintiffs application under Order 39, Rules 1 and 2, of the Code and made the ad interim injunction passed on 8th June, 1979 absolute. He dismissed the defendants application under Order 39, Rule 4 of the Code of Civil Procedure.
(2.) The Commissioner, Corporation of Calcutta, the defendant-appellant, being aggrieved by the said order, has preferred this appeal. On the application of the appellant, this Court has been pleased to stay till the disposal of this appeal, the operation of the order of temporary injunction obtained by the plaintiff-respondent. In our view', the above order of the trial court should be set aside because without fully considering whether the plaintiff has a prima facie case and whether the balance of convenience is in favour of granting an order of temporary injunction in the plaintiffs favour, the Court below has passed the order challenged in this appeal. The Court below has not also applied its mind to all the relevant facts and circumstances of the case.
(3.) Mr. Ghosh, learned Advocate for the appellant, has submitted that ordinarily an order of temporary injunction is passed to maintain status quo until the final determination of the case. In the instant case, by granting the temporary injunction, the trial court has permitted the plaintiff to construct upon the aforesaid premises even before the Court has decided as to whether or not the plaintiff is entitled to lawfully construct according to the plan submitted by it on 13th February, 1976, which was admittedly never formally sanctioned. But, according to the plaintiff, the same should be deemed to have been sanctioned. At the interlocutory stage, the plaintiff has been practically granted the entire relief which it might obtain only in the event of its success in the suit. There is considerable substance in the above submission made on behalf of the appellant. The order for temporary injunction has been granted almost in terms of prayer (b) in its plaint of the suit. If the order for temporary injunction as granted by the trial court is allowed to stand, the plaintiff would be entitled to continue and complete the construction works in accordance with the aforesaid plan submitted on 13th February, 1976 before the adjudication as to whether or not the works proposed to be executed by the plaintiff would contravene any of the provisions of the Calcutta Municipal Act, 1951 or any of the rules or bye-laws made thereunder.;