JUDGMENT The judgment of the Court was as follows :–– Mookerjee, J.: 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 plaintiff's 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 plaintiff's 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 defendant's 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. 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 plaintiff's 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. 4. 4. It is not very much disputed that the respondent had previously submitted to the Corporation of Calcutta a plan together with an application for permission to erect a ten-storied building with a basement after demolishing the then existing structure at premises No. 19, Synagogue Street. On 1st December, 1965 the Corporation of Calcutta had sanctioned the said plan. The said plan was once renewed and the same had expired on 30th November, 1975. The plaintiff-respondent had made some constructions on the vacant space of premises No. 19, Synagogue Street abutting on the Brabourne Road. According to the defendant-appellant, certain unauthorised constructions and deviations from the said sanctioned plan dated 1st December, 1965 having been detected on 22nd March, 1974, a notice under section 416 of the Calcutta Municipal Act, 1951 was served upon the plaintiff. Therefore, on 24th December, 1974 a notice of a case under section 414 of the Calcutta Municipal Act was served upon the plaintiff. The said demolition case was placed for hearing before the Deputy Commissioner (B & P), Calcutta Corporation. The said demolition case had remained pending for a long time. During the pendency of this appeal on 12th February, 1980, P. K. Banerjee and B. C. Ray, JJ., passed an order for disposing of the aforesaid case under section 414 of the Calcutta Municipal Act relating to the plan dated 1st December, 1965. Accordingly, on 27th February, 1980 the Deputy Commissioner (M), Calcutta Corporation, disposed of the said case under section 414 of the Calcutta Municipal Act. The appellant has filed a copy of the said order dated 27th February, 1980. Mr. Sen, learned Advocate for the plaintiff-respondent, has submitted that he has no objection to the said order being taken into consideration by us. The Deputy Commissioner (M), Calcutta Corporation, in his said order has purported to record that the plaintiff's lawyer had allegedly admitted before him that the building was done by deviation from the plan dated 1st December, 1965. The Deputy Commissioner found that the heights of each floor and the total height of the building had extended the building both horizontally and vertically. The Deputy Commissioner disposed of the case by permitting the owner to submit within three months a fresh plan sanctioned by the Commissioner, Corporation of Calcutta, on 1st December, 1965 and which had expired on 1st December, 1975. 5. The Deputy Commissioner disposed of the case by permitting the owner to submit within three months a fresh plan sanctioned by the Commissioner, Corporation of Calcutta, on 1st December, 1965 and which had expired on 1st December, 1975. 5. While the above demolition case for the alleged deviation from the plan dated 1st December, 1965 was pending, the plaintiff had submitted to the Commissioner, Calcutta Corporation, a plan which is the subject-matter of the present case. According to the plaintiff the said plan was identical with the previous plan which had expired on 1975. It is unnecessary for us to make any pronouncement as to whether the previous plan which had expired and the new plan submitted on 13th February, 1976, were same because on 13th February, 1976 the plaintiff-respondent made a fresh application under Rule 47, Schedule XVI of the Calcutta Municipal Act, 1951. Prima facie, the said application for permission to execute construction works ought to be disposed of in accordance with the provisions of Schedule XVI as the same stood at the date of the said application and also at the date of passing of an order refusing or granting sanction. Prima facie, one cannot urge that although he made the application for sanction on 13th February, 1976, Rules of Schedule XVI of the Calcutta Municipal Act as they stood on 1st December, 1965 and not as on the date of the application should be applied. 6. According to the Commissioner, Corporation of Calcutta, inspite of a requisition the plaintiff did not furnish all the particulars required under Rule 51, Schedule XVI of the Calcutta Municipal Act, 1951. It is on record that on 26th February, 1976 the City Architect, Corporation of Calcutta had issued a notice requiring the plaintiff to furnish the informations mentioned in the said notice and also pointing out that the said plan allegedly infringed several building rules mentioned therein. The plaintiff has claimed that by its letter dated 24th March, 1976 it had supplied all the informations asked for in the above requisition. The defendant, however, in its affidavit filed in the Court below did not admit that the plaintiff had sent any reply on 24th March, 1976. The defendant had claimed in the Court below that after the requisition form was issued on 22nd April, 1976, one Chandrasekhar Sharma had received back one copy of the plan submitted by the plaintiff. The defendant, however, in its affidavit filed in the Court below did not admit that the plaintiff had sent any reply on 24th March, 1976. The defendant had claimed in the Court below that after the requisition form was issued on 22nd April, 1976, one Chandrasekhar Sharma had received back one copy of the plan submitted by the plaintiff. The said plan was never re-submitted. The plaintiff has denied the said allegation and had claimed that it had never at any point of time any employee or representative by the name of Chandrasekhar Sharma. At this interlocutory stage when the parties have not yet adduced evidence in full, it would not be proper to decide which version of the case was true and as to whether the said Chandrasekhar Sharma had really taken back a copy of the plan and whether he had any authority to take back on behalf of the plaintiff the said plan. At the same time without considering this disputed questions of fact at this stage, it cannot be determined whether or not Rule 56, Schedule XVI would be attracted to the facts of the present case. 7. The trial court has, however, proceeded on the basis that the plaintiff did send a reply on 24th March, 1976 and the plan was not received back on its behalf. The sub-rule (3) of Rule 51, Schedule XVI provides that if any information or documents furnished under sub-rule (2) are in the opinion of the Commissioner incomplete or defective, he may, within 15 working days after the receipt of the same require further information or documents to be furnished. Even assuming, that the Commissioner had received the plaintiff's letter dated 24th March, 1976, at this interlocutory stage it cannot be held that prima facie the plaintiff had thereby furnished all the information asked for and there was no defect in the plan submitted on 13th February, 1976 and the same ought to have been sanctioned. 8. The plaintiff has relied upon the Rule 56, Schedule XVI of the Act (as the said provision stood at the relevant time) in support of its right to execute the works mentioned in its application and depicted in the sketch-plan submitted on 13th February, 1976. 8. The plaintiff has relied upon the Rule 56, Schedule XVI of the Act (as the said provision stood at the relevant time) in support of its right to execute the works mentioned in its application and depicted in the sketch-plan submitted on 13th February, 1976. According to said Rule, if within the period prescribed by Rule 55, the Commissioner has neither granted nor refused to grant permission to execute any work, such permission shall be deemed to have been granted. But, at the same time the applicant under Rule 56, cannot proceed to execute the works which would contravene any of the provisions of the Calcutta Municipal Act or any of the rules or bye-laws made thereunder. Although in case of delay exceeding the presented period in granting or refusing permission, by operation of law, the plan shall be deemed to have been sanctioned, but the same would be subject to compliance with the other provisions of the Act and the rules or bye-laws made thereunder. The Rule 56, in other words, relaxes the requirement of obtaining prior permission to execute the works mentioned in an application which is not disposed of within the period prescribed by Rule 55. But such an applicant is not entitled to infringe the provisions of the Calcutta Municipal Act including those contained in Schedule XVI. A plan which is deemed to be sanctioned under Rule 56, Schedule XVI, does not authorize violation of the Building Rules. Harries, C. J. in (1) The Commissioners of the Municipality of Howrah v. Rajendra Nath Das, 52 CWN 321, with reference to Rule 57 of Schedule XVII of the Calcutta Municipal Act, 1923 which is pari materia with Rule 56, Schedule XVI of the Calcutta Municipal Act, 1951, laid down that where within the time limited by Rule 57 of Schedule XVII of the Calcutta Municipal Act, 1923, the Corporation neither grants nor refuses the permission to execute any work, the effect of Rule 58 is not that the plan submitted for the work is approved by the Corporation, but only that the applicant is permitted to execute the work, subject to the express provision that in doing so he does not contravene any provision of the Act, rules or bye-laws made under the Act. We respectfully agree with the above statement of law. 9. We respectfully agree with the above statement of law. 9. The learned Judge of the Court below has noted in his order complained of that the defendant had urged that the plan submitted by the plaintiff was contrary to the some of the Rules of Schedule XVI of the Calcutta Municipal Act, 1951, and therefore, the implied permission under Rule 56 of the said Schedule would not save the plaintiff. But without considering whether or not prima facie the works proposed to be done by the plaintiff would contravene any of the provisions of Schedule XVI, learned Judge of the Court below has restrained the defendant from interfering with the construction works done by the plaintiff in the suit premises. In view of the clear language of Rule 56, Schedule XVI of the Calcutta Municipal Act, 1951, under cover of an injunction order, a party cannot proceed to execute the work which might contravene any of the provisions of the Calcutta Municipal Act or any rules or bye-laws made thereunder. In the instant case, even before the Commissioner, Corporation of Calcutta, had either granted or refused permission under Rule 55, Schedule XVI of the Act, the plaintiff had filed the suit. Therefore, instead of the Court itself deciding whether or not the works proposed to be executed by the plaintiff would contravene any of the rules contained in Schedule XVI of the Act, the Court might have directed the Commissioner to dispose of in accordance with law the plaintiff's application for permission under Rule 47, Schedule XVI of the Calcutta Municipal Act, 1951. 10. The plaintiff had also disputed in the Court below the claim of the defendant that a Building Inspector of the Corporation of Calcutta had inspected the premises on the 12th and the 14th of June, 1979 and that according to his report the plaintiff had started the construction works at the 5th floor level and had failed to produce any valid sanctioned plan. The defendant had also alleged that on the 12th June, 1979 a notice under section 416 of the Calcutta Municipal Act was served upon the plaintiff. The plaintiff had denied the aforesaid allegation. The defendant had also alleged that on the 12th June, 1979 a notice under section 416 of the Calcutta Municipal Act was served upon the plaintiff. The plaintiff had denied the aforesaid allegation. The Court below did not decide whether or not a fresh notice under section 416 of the Act had been served on 12th June, 1979 and whether the proposed constructions would be legal and not uncontravened of the Corporation Building Rules. At the same time, the Court below has allowed the plaintiff to proceed with the construction works. 11. We have already mentioned about the order dated the 27th February, 1980 passed by the Deputy Commissioner (B) in the demolition case under section 414 of the Calcutta Municipal Act which was started on the allegation that the plaintiff had done certain works at 19, Synagogue Street without sanction and in deviation from the B. S. Plan No. 131 dated the 1st December, 1965. We make it clear that the order passed in this appeal would be without prejudice to the rights and contentions of the parties in respect of the aforesaid order of the Deputy Commissioner (B), Corporation of Calcutta dated the 27th February, 1980. 12. Mr. Ghosh, learned Advocate for the appellant, has submitted that while the demolition case under section 414 of the Calcutta Municipal Act relating to the alleged deviation from the plan dated 1st December, 1965 was pending, there were legal difficulties in the way of sanctioning the plan submitted by the plaintiff on the 13th February, 1976. Deputy Commissioner (B) by his order dated 27th February, 1980 has given an opportunity to file a fresh plan to regularize the alleged illegal constructions. When the legality of at least some of the existing structures was disputed by the Corporation, there were legal difficulties in considering the subsequent plan filed on the 13th February, 1976. 13. Accordingly, Mr. Ghosh without prejudice to his other rights and contentions submitted that the plaintiff was at liberty to file a fresh plan not only for regularisation of the works already done in deviation of the previous plan but also for making the new constructions. If such a consolidated plan be submitted, the defendant is prepared to dispose of the same in accordance with law within the shortest possible time. In case, any adverse order is passed, the same would be appealable under the law. 14. If such a consolidated plan be submitted, the defendant is prepared to dispose of the same in accordance with law within the shortest possible time. In case, any adverse order is passed, the same would be appealable under the law. 14. When we enquired from Mr. Sen as to whether or not the plaintiff-respondent was prepared to accept the above submission, Mr. Sen did not give any categorical answer. Mr. Sen, on the other hand, submitted that even if the order of temporary injunction passed by the Court below is not upheld, the plaintiff ought to be permitted to immediately construct the basement floor in the excavated portion of the above premises. According to Mr. Sen, the said excavations constituted serious danger both for the plaintiff and the owners of the neighbouring premises. Secondly, the construction of such a basement floor below the street level would not require any Corporation sanction and the proposed construction of the basement floor would not infringe any of the Rules contained in Schedule XVI of the Calcutta Municipal Act. 15. Mr. Ghosh, learned Advocate for the appellant, pointed out that according to the above order of the Deputy Commissioner (B) dated 27th February, 1980, a portion of the basement already constructed was in deviation of the sanctioned plan dated 1st December, 1965. The roof of the proposed basement is also likely to be higher than the ground level. Further, the foundation of the basement would also be the foundation for the proposed ten-storied building. Further, prima facie, the basement of a ten-storied building would also be a building as defined in section 5(6) of the Calcutta Municipal Act. Prima facie, therefore, construction of the proposed basement ought to be made in accordance with the Rules contained in Schedule XVI of the Calcutta Municipal Act. It does not also appear that the plaintiff had even pleaded in the Court below that it did not require any sanction for constructing the basement and the Court below did not at all deal with the said point. It is not within the scope of this appeal to consider how the alleged danger would be caused by the excavation made at 19, Synagogue Street and at least on the said ground, the plaintiff cannot be allowed to erect a building in violation of the rules contained in Schedule XVI of the Calcutta Municipal Act. It is not within the scope of this appeal to consider how the alleged danger would be caused by the excavation made at 19, Synagogue Street and at least on the said ground, the plaintiff cannot be allowed to erect a building in violation of the rules contained in Schedule XVI of the Calcutta Municipal Act. The defendant-appellant may be, however, directed to expeditiously dispose of the plaintiff's application for the permission to make the constructions upon the suit land. At this stage, it is not for this Court to decide whether the proposed constructions at 19, Synagogue Street would be lawful. Therefore, although we propose to allow this appeal, we propose to direct the defendant-appellant to act in accordance with law. We conclude that the order of temporary injunction passed by the Court below cannot be sustained. 16. We, therefore, allow this appeal, set aside the order appealed against and dismiss the plaintiff's application under Order 39, Rules 1 and 2 of the Code. We, further, direct the defendant-appellant to decide within two months whether the plaintiff's application for sanction submitted on 13th February, 1976 should be allowed or refused. We understand that the said application dated 13th February, 1976 is not traceable in the Corporation records. Therefore, in order to facilitate early disposal within three weeks from this day, the plaintiff would be at liberty to file the duplicate copies of the said application and the plan in the office of the defendant-appellant and the defendant-appellant will pass an order either refusing or granting permission within two months from this day. We also observe that the plaintiff-respondent is at liberty to proceed in accordance with law in respect of the aforesaid order dated the 27th February, 1980 passed by the Deputy Commissioner, Corporation of Calcutta. There will be no order as to costs. Let a copy of this order be communicated to the Court below. Decree need not be drawn up. Sharma, J.: I agree.