IMPORTANT POINT
The main legal point established is that under Section 116 of the Transfer of Property Act, 1882, the extension of a lease does not require a fresh document and the same lease continues in force during the additional period by the performance of the stipulated act.

JUDGMENT :

Krishna Rao, J.

1. The plaintiff has filed the present application being G.A. No. 3 of 2017 (Old G.A. No. 2004 of 2017) for acceptance of the report of the Special Referee and to pass final decree.

2. Initially the plaintiff had filed the suit against the defendant for recovery of vacant, peaceful and khas possession of the suit premises and for recovery of arrears of rent from 1st March, 2012 to 31st May, 2012 for Rs. 39,448/-and mesne profit from 31st May, 2012 till the delivery of vacant possession of the suit property.

3. The plaintiff had also filed an application under Chapter XIII-A of the Original Side Rules of this Court for summary judgment for eviction of the defendant for want of plausible defence. The application filed by the plaintiff for summary judgment was disposed of by this Court by an order dated 11th April, 2016 by granting decree in favour of the plaintiff for eviction of the defendant as well as for payment of arrears of rent of Rs. 39,448/-from 1st March, 2012 to 31st May, 2012 at the rate of Rs. 12,562/-per month. As regard to the mesne profits, a Special Referee was appointed for enquiry to determine the monthly market rent.

4. On 28th April, 2017, the Special Referee has submitted report by determining the monthly market rate of rent of the suit property from June, 2012 onwards upto March, 2017 within an interval of every two years at the end of the relevant financial year which is as follows :

“24. By reason of the aforesaid findings, I determine the monthly market rate of rent of the suit property from June, 2012 onwards up to March, 2017, with an interval of every two years at the end of the relevant financial year as follows :

Monthly rate of rent from June, 2009 up to March, 2011 .. Rs. 62,252/-

Monthly rate of rent from April, 2011 up to March, 2013 .. Rs. 77,323/-

Monthly rate of rent from April, 2013 up to March, 2015 .. Rs. 92,493/-

Monthly rate of rent from April, 2015 up to March, 2017 .. Rs. 1,06,481/-.”

5. The plaintiff has accepted the report and praying for final decree in terms of the report submitted by the Special Referee. The defendant has not filed any exception to the report but has filed affidavit in opposition to the instant application. Subsequent of filing the affidavit-in-opposition, the defendant has filed supplementary affidavit by incorporating certain facts which were not brought on record in the affidavit in opposition.

6. Mr. Joy Saha, Learned Senior Advocate, representing the defendant submitted that the original Lease Deed contained a Clause for renewal and the parties did renew the lease in accordance with such clause or whether the lessee would be entitled for successive renewal has not been considered by the Special Referee. He submits that the Lease Deed is not necessarily required to be executed a fresh in order to give effect to an extension of the original Lease Deed. He submits that the original Lease Deed continues in force during the extended lease term, since an extension of lease is only prolongation of the original Lease.

7. Mr. Saha submitted that the lessee’s conduct of retaining possession of the leased premises by paying the monthly rent in time even after expiry of original lease term would ordinarily indicate his desire to remain as a lessee. He submits that such holding over would be amount to a fresh tenancy even on the same terms and conditions of their earlier lease.

8. Mr. Saha submitted that the Special Referee while coming to his findings failed to interpret Section 116 of the Transfer of Property Act, 1882 with regard to its applicability and the effect of “Holding Over” and the assent of the landlord. He submits that in the Lease Agreement dated 15th September, 2004, renewal option was provided with an option to renew of the lease for a further period of five years on the same terms and conditions with 20% enhanced rent and the plaintiff has accepted the enhanced rent month by month for a period of three years without executing any i