PATHERYA J. - (1.) IN a suit for eviction this application has been filed under Chapter XIIIA of the Original Side Rules of this High Court for final judgment and decree for recovery of vacant and peaceful possession and for determination of mesne profit.
(2.) THE case of the plaintiff petitioner is that in October, 1999 a lease was executed between the parties for a period of 5 years. The said lease could be renewed by enhancement of rent, execution of lease deed and notice by the defendant intimating its intent to renew. The said agreement came up for renewal in 2004 and although an enhanced rent was paid, no lease agreement was executed nor notice of renewal given by the defendant. On expiry of the first renewal in 2009 for the second renewal period neither payment was made of the enhanced rent nor notice of renewal given or agreement executed. Therefore on expiry of the second lease period the defendant has continued in the said premises as a monthly tenant and therefore the plaintiff became entitled to issue notice under Section 106 of the Transfer of Property Act. A reply has been given to the said notice admitting therein non increase of 20% rent due to inadvertence and an unintentional mistake. An attempt was made to make payment of the arrears with a request to accept the rent at the enhanced rate which was refused by the plaintiff's representative. As renewal required execution of fresh lease agreement and no lease agreement executed the defendant is hit by Section 111(h) of the Transfer of Property Act. For refusal on the part of the defendant to vacate the said premises, a suit was filed and therein an application under Chapter XIIIA filed. It has been admitted by the defendant in the opposition filed that the second renewal will expire in April, 2014, therefore the defendant has no right to continue beyond the said period and the defendant is bound by the said admission made in its affidavit filed in the proceedings.
(3.) COUNSEL for the defendant submits that the lease agreement was executed in 1999 for a period of 5 years which expired in 2004. There was no execution of a fresh lease agreement nor notice of renewal given but as the plaintiff continued to accept rent at the enhanced rate there can be no doubt that the lease stood renewed from 2004. There was no reason for the plaintiff to maintain silence for the last 8 years. It is Section 111(g) of the 1882 Act which will govern the parties on expiry of the lease deed by efflux of time. The arrear rent has been paid along with municipal rates and taxes therefore the defendant be allowed to hold the property as if the default had not occurred as provided by Section 114 of the 1882 Act and the property be treated as leased on a year to year or month to month basis in view of Section 116 of the 1882 Act. The defendant has continued with the consent of the plaintiff and is to remain in possession on month to month basis.;