A.P. DESHPANDE, J.

This appeal is directed against an ad interim order passed by the learned Single Judge dated 25th June, 2008, restraining the appellants from carrying on the construction in according with the modified sanctioned plan dated 10th April, 2007 (Exhibit-L to the plaint) till disposal of the Notice of Motion. The appellants are also restrained by an order of injunction from removing existing underground water tank and pump room.

2. The facts leading to the controversy in this appeal are briefly stated herein below :

The original defendant No.1 was owner in possession of a large plot of land which comprised of some vacant area, together with various dilapidated old structures occupied by the tenants. As there were many structures on the premises, defendant No.1 decided to develop the entire plot in phased manner anticipating that in due course of time the tenants would vacate the premises. Defendant No.1 with the said object in mind, got the original plans sanctioned from the Municipal Corporation of Mumbai in the year 1987. The original plans proposed construction of two buildings i.e. Building “A” and Building “B”. Building “A” was in the form of letter “C”, having 3 wings, the lower wing, middle wing and upper wing. Defendant No.1 did construct only the lower wing/arm of building “A”; whereas, the other two parts of building “A” and the entire building “B” were not constructed. This, according to defendant No. 1 was for the reason that the tenants did not vacate the adjoining area and, hence, it was not possible for defendant No.1 to carry out the construction in accordance with the then sanctioned plans.

3. As stated hereinabove, the lower arm of building “A” is already constructed and the same is consisting of ground plus 7 upper floors. The said constructed building is occupied by the flat purchasers who are the members of the Plaintiff Co-operative Housing Society. The suit has been filed by the co-operative housing society, voicing the grievance of the Society and its Members who are in occupation of their respective flats in the constructed portion of building “A”. The plaintiff has placed on record a specimen of an agreement of sale entered into by defendant No.1 in favour of one of its Members by name Smt. Vijayaben Sobhagchand Shah & anr. dated 15.9.1988. It is not much in dispute that other agreements entered into by defendant No.1 with other flat owners, during that period, are akin to the agreement of which a copy has been filed along with the plaint. Subsequent thereto, the defendant No.1 entered into an agreement with defendant No.2 in respect of the development of the property, which agreement, ultimately, culminated in execution of a conveyance in favour of defendant No.2 on 21.6.06.

4. At a later point of time, defendants No.1 and 2 together, further conveyed the property to defendant No.3. Defendant No.3, in turn, submitted amended/modified plans to the Municipal Corporation and the Municipal Corporation has sanctioned the modified plans as it found the same to be in conformity with the Development Control Rules/Building Buy-laws. The modified sanctioned plans obtained by defendant No.3 from the Corporation forms the subject-matter of dispute in this suit instituted by the plaintiff. The modified plans have been sanctioned by the Corporation on 10.4.07. One of the prayers made by the plaintiff is that the said modified plans are contrary to law and not enforceable. In short, the case of the plaintiff is that in the first place the modified plans reduced the area of recreation ground meant for the use of the flat owners. Secondly, by the modified plans which are sanctioned, the area of FSI largely increases and the same could not have been permitted by the Corporation, as what was represented to the flat purchasers was lesser FSI. Lastly, it was contended that without the consent of the flat purchasers, no modification of the building plan can be sanctioned which permits construction of