The occupation of a portion of the building by a third party, without the consent of the landlord, constitutes a substantial portion of the building and attracts the provisions of Section 10(2)(ii)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.

GOKULAKRISHNAN, J. :- The revision petitioners herein filed H.R.C. No. 1433 of 1968, before the Rent Controller, Madras, for eviction of the respondent, under Section 10(2)(ii)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, Act 18 of 1960. They inter alia alleged that they are the owners of premises No. 4-A Pattulos Road, Mount Road, Madras 2 a non-residential building, that they leased out a portion of the said premises to M/s. Premier Auto Electric P. Ltd. (respondent) by a registered instrument bearing the date 28-10-1961, for the purpose of running their administrative office, that the portion leased out consisted of an area of 2225 sq. ft. in the ground floor and an area of 759 sq. ft. in the first floor, that clause 9 of the lease deed specifically provides that the lessee should use the demised premises only for the purpose of having the administrative office of their business and for no other purpose and that contrary to the covenant the respondent, viz., M/s. Premier Auto Electric Pvt. Ltd. gave the use of a portion of the leased premises to M/s. Premier Automobiles Ltd., Bombay and their local resident representative runs his office in the leased premises. The landlords further averred in the eviction petition that in April 1966, they filed C.S. No. 77 of 1966 on the file of the High Court of Judicature at Madras, against M/s. Premier Auto Electric Pvt. Ltd. Bombay, alleging violation of the covenant and praying for damages and an injunction restraining the defendants from further violating the covenant. A few months after the filing of the said, M/s. Premier Automobiles Ltd., Bombay vacated the premises, and the prayer in the suit for injunction became infructuous at the time of the trial. The suit was transferred to the file of the City Civil Court, Madras, for administrative reasons and numbered as O.S. No. 5484 of 1967. There, both the defendants admitted the violation of the covenant though they sought to justify it on various grounds. In the judgement that was delivered in that suit on 6-3-1968, it was found that the defendants had violated the covenant contained in clause 9 of the lease deed, in that M/s. Premier Auto Electric Pvt. Ltd., had given the use of a portion of the premises to a third party. Subsequent to that the landlords, i.e. the revision petitioners herein issued a notice under S.106 of the Transfer of Property Act, calling upon the tenant to vacate and deliver vacant possession of the demised premises. The tenant has replied by notice dated 18-3-1968 stating that the lease was not liable to be terminated and that the tenant was not liable to vacate the premises. Hence, the landlords on the ground that the tenant had used the building for a purpose other than that for which it was leased, filed a petition H.R.C. 1433 of 1968, under Section 10(2)(ii)(b) of the Act, praying for the eviction of the tenant from the leased premises and also for costs.

2. The respondent, M/s. Premier Auto Electric Pvt. Ltd., inter alia, contended that the landlords knew that M/s Premier Auto Electricals Ltd., and M/s. Premier Automobiles Ltd., Bombay were one unit, that to the knowledge of the landlords a portion of the premises was occupied by M/s. Premier Automabiles Ltd., Bombay, and that is why no proceedings had been launched by the landlords from 1980 to 1964, in spite of the fact that M/s. Premier Automobiles Ltd., was occupying a portion of the demised premises for a long period. The respondent further contended in the eviction petition that the notice for eviction was defective and that the tenant never admitted during the trial of the suit O.S. No. 5484 of 1967, aforesaid, that the tenant has committed violation of the terms and conditions of the lease. The tenant further contended that the present proceedings taken by the landlords was barred by res judicata by virtue of S.19 of the Act and that at the time of filing the present eviction petition Messrs. Premier Automobiles Ltd., Bomba