: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.926 OF 2009 IN SUIT NO.242 OF 2009 John Anthony Remedios & Ors. .. Plaintiffs V/s. Mahendra Arora & Anr. .. Defendants ..... Mr. H.S.S. Murthy for the plaintiffs Mr. Arif Bookwala i/by M/s. Chitnis Vaithy & Co. for defendant No.1 Mr. Chirag Balsara i/by Y.R. Shah for defendant No.2 ..... CORAM : S.C. DHARMADHIKARI, J. DATE : 18th AUGUST, 2009. P.C. : 1. After the matter was argued for some time and the attention of the learned Counsel appearing for the parties was invited to the ad-interim order dated 4th May, 2009 in the instant case, grievance made by Mr. Balsara appearing for defendant No.2 is that this order restrains the 2nd defendant from putting up any construction on plot No.7 to 9 on C.T.S. No.302 A/3 Mith Chowky, Marve Road, Link Road, Junction, Malad(W), Mumbai. The ad-interim order cannot continue further much less during the pendency of the suit. : 2 : 2. The argument of Shri. Balsara is that the plaintiffs if at all and that too without prejudice to the rights and contentions of the defendants, are entitled to residential flats in a building which was proposed to be constructed on this property. However, by stopping the construction on the subject property, the plaintiffs are not at all benefited or are at any advantage. Such a blanket order would not serve any purpose and ultimately the plaintiffs would not be getting any residential accommodation. Inviting my attention to para 13 and 14 of the affidavit in reply dated 15th June, 2009 which is filed by the 2nd defendant, Shri. Balsara submits that the construction be permitted on the said plot / site subject to compliance of the statements made and 2nd defendant would make all endeavor to get the plans modified and only after the modification is approved and sanctioned, he would put up the construction and provide for the residential accommodation therein. 2. Mr. Murthy appearing for the plaintiffs does not dispute that the ad-interim order restrains construction on the plot and, therefore, neither residential nor commercial building can come up at site. In these circumstances, he does not seriously dispute that modification to the plan providing for construction of residential flats would not prejudice the plaintiffs at this stage. On the other hand, it would ensure that the flats are made ready for : 3 : occupation. In such circumstances, he leaves it to the Court to make proper modification in the ad-interim order so as to ensure that the plaintiffs are not deprived of the residential accommodation / flats. 3. In the above circumstances and after perusing the affidavits on record, I am satisfied that at this prima- facie stage interest of justice would be sub-served if this motion is disposed off in terms of the ad-interim order dated 4th May, 2009 but with the modification that the 2nd defendant can put up construction on the subject plot / property after the plans are Amended to provide for residential cum commercial occupation / accommodation. In other words, while ensuring that the 2nd defendant constructs the residential flats meant for the plaintiffs by modifying the plans, the ad-interim restraint order against construction is vacated. However, it is clarified that until and unless the plans are modified and such modification is duly approved, the 2 nd defendant should not commence any construction at site. After such modification or amendment to the plan is approved, thereafter, the construction can proceed on the subject plot in accordance with law and on compliance with the terms and conditions of the approved plans / modifications. Needless to say that if the flats are constructed during the pendency of the suit, the plaintiffs entitlement being of three flats, the defendant No.2 shall not dispose off or transfer the flats : 4 : which are meant to be sold to the plaintiffs. The order and direction is without prejudice to the rights and contentions of parties and none of them waive any pleas including that the suit is not maintainable as there is no agreement for Sale of immovable property. Motion is disposed off in the above terms. No Costs. (S.C. DHARMADHIKARI, J.)