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11.This Court, by order dated 14.06.2013, has granted interim injunction in both the applications as prayed for.

12.On appearance, the defendant has filed applications in A.No.2639 of 2013 seeking to reject the plaint and A.No.2464 of 2013 seeking to vacate the interim injunction granted by this Court on 14.06.2013.

13.In the affidavit filed in support of the application in A.No.2464 of 2013 to vacate the interim injunction, it has been stated by the defendant as follows:- The defendant had purchased the suit schedule mentioned property by a deed of sale, dated 11.12.2003, from Lakshmi Appa Rao and two others, who are the legal heirs of the promoter of the property namely M.R.C.Appa Rao. The said sale deed was registered as Doc.No.2863 of 2003 in the office of the Sub-Registrar, T.Nagar. The plan appended to the sale deed would indicate the area conveyed in his favour and would also indicate the common area, parking place etc. The entire property situate at Old No.5, Burkit Road, T.Nagar, belonged to one Mr.Appa Rao, who developed the property and retained the flat at No.G-1, Vijay Apartments for himself. He had let it out on rent to M/s.Nestle Company for using it as a godown ie., for non-residential purposes. Originally M/s.Nestle was a tenant under the defendant's vendors and subsequently, after they vacated, the defendant had let it out to M/s.Horizon Training Development Consultancy and after they vacated the premises, the defendant let it out to one B.K.Sathya for running Sole Pure Vegetarian Restaurant. The defendant has let out the premises for the purpose of starting a High Class Vegetarian Restaurant and also enclosed the details of the persons, who were employed in the restaurant and the procedure and precautions that would be adopted by the tenant, so as to not cause any hindrance to the other residents. As a matter of fact, the plaintiffs, who had filed the details furnished by the defendants with regard to the lessees who had taken the subject Flat on lease as suit document, deliberately, wilfully and wantonly did not make the lessees, who had taken the premises, as a party to the proceedings and the plaintiffs has obtained an order of injunction, which would adversely affect their rights and the running of the restaurant. A perusal of the plaint averments and the perusal of the averments contained in the affidavit in the application for injunction would reveal that absolutely there is no whisper as to how the plaintiffs would be prejudiced or as to how an irreparable loss would be caused, if an order of injunction is not granted in their favour. The suit as framed by the plaintiffs is liable to be dismissed in as much as the leave as contemplated under Order I Rule 8 of CPC has not been obtained prior to the institution of the suit i.e, when two or more persons have common interest in the subject matter, the permission of the Court is mandatory and all the flat owners ought to have obtained the permission of the Court to combine the cause of action, with the leave of the Court as required under Clause 14 of the Letters Patent and as required under Order II Rule 3 of CPC and failure to do so is fatal to the very institution of the suit. The plaintiffs ought to have made the lessees as the parties to the suit, who have invested several lakhs of rupees in their business. The plaintiffs have not made out any case much less a strong prima facie for grant of an interim injunction in their favour. The lessees have been doing lawful business after obtaining the statutory permission and as such, cannot be prevented from running the vegetarian restaurant and as such, there cannot be an injunction against the true and lawful owner and more so, when the lessees have been doing a lawful act by obtaining statutory permission to run the eating house. The defendant's premises is located in the ground floor of the apartment and it has direct access to the road and it does not hinder the other co-owners' movements and as such, the defendant is not abusing the common area intended for the use of the other co-owners of the premises. As a matter of fact, when the property was sold to the defendant, the area conveyed in his favour is the plinth area of 2186 sq.ft and the common area of 250 sq.ft garage area of 230 sq.ft with exclusive right to use and enjoy the passage measuring 200 sq.ft at the eastern side through the iron gate entrance. Without verifying the recitals contained in the document or plan appended to the sale deed, the plaintiffs have filed the present frivolous suit. The property is located in a mixed up residential area and as such, the master plan and the assessment of the tax issued by the Corporation of Chennai would add strength to the pleas of the defendant. The 2nd plaintiff is owning a shop in the ground floor and he has been using it as a commercial premises and has let it out to third party and as such, he cannot have one yardstick for himself and one for the defendant and as such, the conduct of the plaintiffs would disentitle them from claiming the discretionary relief of injunction. Therefore, unless the order of interim injunction granted by this Court is vacated, the defendant and his tenant viz. B.K.Sathya, who has commenced the restaurant business under the name and style of Sole Pure Vegetarian Restaurant, would suffer grave prejudice, irreparable loss, which cannot be adequately compensated in terms of money. Thus, the defendant prayed for vacating the interim order.

30.Hence, the application in A.No.2639 of 2013 filed by the defendant for rejection of the plaint is liable to be dismissed and accordingly, the same is dismissed.

Interim Injunction applications:-

31.Since this Court has come to the conclusion that the plaint is maintainable, it is necessary to deal with the interim injunction granted by this Court in O.A.No.424 & 425 of 2013.

32.O.A.No.424 of 2013 has been filed seeking Interim Injunction restraining the defendant from interfering with the plaintiffs' use and enjoyment of the common areas of the building including the land on all the four sides of the building viz., Vijay Apartments, Old No.5, New No.9, Burkit Road, T.Nagar, Chennai-600 017.

37.Hence, in the light of above, the interim injunction granted by this Court in O.A.No.424 of 2013 by order dated 14.06.2013 is made absolute.

38.O.A.No.425 of 2013 has been filed seeking interim injunction restraining the defendant or any one acting or claiming under or through him from running a restaurant in the defendant's dwelling unit, viz., Flat No.G-1, Ground Floor, Vijay Apartments, Old No.5, New No.9, Burkit Road, T.Nagar, Chennai-600 017.

39.It is the submission of the learned counsel for the plaintiffs that the subject apartment is a pure residential building and the plan was sanctioned and plan was sanctioned only for construction of residential Flats in the year 1981 by the Corporation of Chennai. Subsequently, an agreement was also entered into between the purchasers of the Flats and the promoter of the property viz., MRC Appa Rao, only for construction of a residential apartment. Therefore, right from the beginning, it is only a residential apartment. Now, the defendant is trying to convert the Flat No.G-1 in the ground-floor as a restaurant, by violating the plan sanctioned by the Corporation.

47.Therefore, I find a strong prima facie case in favour of the plaintiffs for granting interim injunction. Hence, the interim injunction granted by this Court O.A.No.425 of 2012 restraining the defendant/his men from running a restaurant in the subject building, has to be allowed to continue, pending disposal of the suit. Accordingly, the interim injunction granted in O.A.No.425 of 2012 is made absolute.

Application No.2590 of 2013:-

48.So far as the application to implead the proposed defendants 2 & 3 is concerned, I am of the opinion that since they are the lessees of the defendant, the application is liable to be allowed. Accordingly, Application No.2590 of 2013 is allowed.