The court emphasized the importance of zoning designations, necessary approvals, and imposed restrictions to address potential nuisance in a mixed residential and commercial area.

B. AKBAR BASHA KHADIRI, J.

This Original Side Appeal has arisen in this way:-

The respondent herein is the owner of the site, who promoted the apartment complex, known as Mowbrays Flats, which consists of twelve flats excluding the ground floor. The respondent herein retained a portion of the ground floor, which he initially let out to a Motorcycle Showroom-cum-Service Centre. Later, the Showroom was vacated and the respondent herein is contemplating to run a restaurant in a portion of the ground floor, for which purpose, he has entered into an agreement with the second defendant in the suit, by name, Samir Singla. Therefore, the appellant herein in his capacity as the President of Mowbrays Flats Association filed the suit in C.S. No. 842 of 1999 to restrain the defendants therein from running the restaurant, since the restaurant would generate nuisance and cause much inconvenience to the inmates of the houses. According to the appellant herein, all type of persons would come to the restaurant, may cause noise and disturbance and they may occupy the common place. It is also contended by the appellant herein as the plaintiff, that the chimney to be constructed may cause air pollution and the drunkenness of the customers may cause inconvenience to the residents.

Along with the suit, the plaintiff/appellant herein filed an application in O.A. No. 698 of 1999 for grant of ad-interim injunction to restrain the respondent herein from running the restaurant. The respondents/defendants opposed that application contending that one another restaurant under the name and style of 'Catamaran' is being run on the northern side of the ground floor, that the restaurant to be run is going to be a sophisticated restaurant with ultra modern facilities, which could not cause any noise pollution or air pollution, and that the chimney to be constructed will be of a higher grade than what is suggested by the Pollution Control Board. They have also stated that no drinks will be supplied to the customers and the customers will not be allowed to drink in the restaurant. They have also undertaken that the customers will not be permitted to use the common place and if need, be, necessary arrangements and rectifications would be made to see to the comfortable living of the inmates of the flats. The respondents/defendants have stated that they have borrowed huge amount and invested in the restaurant and the entire investment would go as waste, if they are not allowed to run the restaurant.

The learned single Judge who enquired into the matter held that the area has been admittedly declared as a mixed residential area by the statutory authority, that the defendants/respondents have obtained necessary approval from the Corporation of Chennai and other authorities, that it was also agreed by the memorandum of association of the plaintiff/appellant association that the ground floor was agreed to be allowed for renting for business, commercial and industrial purposes, that no liquor will be served in the restaurant, and that the common area would not be put to use by the customers. The learned single Judge also held that the plaintiff/appellant had not made out a prima facie case and the balance of convenience is only in favour of the respondents/defendants, and consequently has disallowed the application, but imposed certain restrictions on the respondents/defendants. Aggrieved by the orders passed by the learned single Judge, the applicant, who is the plaintiff in the suit, has come forward with the instant Original Side Appeal.

2. Heard both the sides. It is not in dispute that the proposed restaurant is to be run in the ground floor of the complex. It is also admitted that already another restaurant is being run in the other portion of the ground floor. It is admitted that the first and second respondents in the application have entered into an agreement for running of a restaurant. According to the appellant, the leave and agreement to run a restaur