KHATRI BUILDERS Vs. MOHMED FARID KHAN

JUDGEMENT

(1.) THIS appeal seeks to challenge the order dated 19th March 1979 passed by the City Civil Court in Notice of Motion No. 4996 of 1978 taken out by the plaintiffs in their suit No. 6861 of 1978. The suit has been filed on the 26th December 1978 by 17 plaintiffs, who are the Flat Owners in a building called Aashiana situate at 22. Club Road (Maratha Mandir Road), Bombay 400 008. The said 17 plaintiffs are respondents Nos. 1 to 17 in this appeal. The appellant in this appeal viz. M/s. Khatri Builders is defendant No. 1 in the said suit. Defendants Nos. 2, 3 and 4 are the other Fat owners, who are respondents Nos. 18. 19 and 20 in this appeal. The suit has been filed for the relief of injunction restraining the first defendant promoter from constructing any additional structure or construction on the terrace of the building Aashiana.

(2.) IT appears that in 1976 the plaintiffs entered into the usual agreement for purchase of flats in the building to be constructed by the appellant who is the promoter within the meaning of the provisions of section 2 (c) of the Maharashtra Ownership Fats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (for short, the Ownership flats Ltd ). The building was to consist of ground floor stilts and five floors with four flats each, resulting in a total of 20 flats. In accordance with the Agreements entered into in 1976 the construction of the building with ground plus 5 floors was completed around May 1978. There is no dispute that the possession of the Fats was handed over to the plaintiffs and the other flat owners around June, 1978. In the meanwhile, the appellant promoter acquired an additional piece of adjoining land, referred to in the plaint as house gully which was about 5 feet wide and as result of the acquisition of the said house gully, the appellant became entitled to an additional F. S. I. of 500 sq. ft. The appellant, therefore, proposed to put up a terrace flat of about 500 sq. ft. and submitted plans for construction of the said terrace flat. The Planning Authority approved the said plans on September 20, 1978. The appellant, therefore, made preparations for constructing the terrace flat, as a result of which the present suit was filed on the 26th December 1978.

(3.) BY the Notice of Motion the plaintiffs prayed for ad-interim reliefs restraining the appellant from constructing any additional structure or putting construction of any nature whatsoever on the terrace of the said building Aashiana. The learned trial Judge, who heard the motion took the view that-