JUDGMENT
T.H.B. Chalapathi, J.
1. This second appeal is directed against the decree and judgment of the learned Additional District Judge, Ambala in Civil Appeal No. 20 of 1997 dated 27.4.1998 confirming the decree and judgment passed by the learned Civil Judge (Junior Division), Panchkula in Civil Suit No. 221 of 1995 dated 30.10.1996.
2. The defendant is the appellant.
3. The plaintiff-respondent used the defendant-appellant for recovery of possession of the suit shop and for the recovery of arrears of rent. According to the plaintiff-respondent, he leased out the suit shop to the defendant-appellant for a period of 11 months @ Rs. 425/- per month. After the expiry of the lease, the defendant continued to be in possession unauthorisedly since he has not vacated the shop nor did he opt to continue the lease. Since the shop was constructed in the year 1986, it is exempted under the provisions of Haryana Urban (Control of Rent) and Eviction Act 1973. The plaintiff issued a notice under Section 106 of Transfer of Property Act after the expiry of the lease. Since the defendant did not vacate the demised premises, the plaintiff filed the suit for eviction.
4. According to the defendant, in January, 1995 he went to the plaintiff for execution of the fresh Lease Deed, but the plaintiff stated that there was no need to execute any fresh Lease Deed and, therefore, he continued to be a tenant. Though the defendant tendered the whole rent at the old rate, the plaintiff did not accept the same. According to him, he can be ejected only by giving a three months notice as provided in the rent note and, therefore, he is not liable to be evicted.
5. On the basis of the pleadings, the trial Court framed appropriate issues and on a consideration of the evidence on record, decreed the suit. The appeal filed by the tenant was also unsuccessful. Hence this second appeal by the tenant.
6. The only point urged by the learned Counsel for the appellant is that the tenant is entitled to be served with a three months notice for vacating the premises as provided in the rent note. On the other hand, it is contended by the learned counsel for the plaintiff-respondent that no notice is required to be given to the plaintiff since the tenancy has been terminated by efflux of time. Therefore, the condition contained in the Rent Note is not applicable after the period of tenancy was over and though a notice under Section 106 of Transfer of Property Act was not necessary, the plaintiff had given a notice of 15 days to the defendant for vacating the suit shop. Therefore, the only question to be decided in the appeal is whether the defendant-tenant is entitled to three months notice as provided in the Rent Note,
7. Admittedly, the shop was let out to the defendant-tenant on 7.1.1994 on a monthly rent of Rs. 425/- for a period of 11 months only. Clause 2 of the Rent Note reads as follows:-
“That the Rent Note shall be valid for a period of 11 months, Thereafter a fresh Rent Note shall be executed. After a period of three years, the rent shall be increased at the rate of 10%.”
Clause 8 of the Rent Note stipulates as follows:-
“That the above said shop can be vacated/got vacated by giving three months’ notice in case of violation of any of the above mentioned terms and conditions or for personal use of the land-lord.”
8. Admittedly, when the shop was let out for a period of 11 months, Clause 8 which requires three months’ notice to be given, is applicable during the currency of tenancy. Clause 2 which has been extracted above stipulates that the period of tenancy shall be 11 months. A reading of Clause 2 of the Rent Note shows that an option has been given to either party to extend the period of lease by executing a Fresh Rent Note. Admittedly, no fresh Rent Note was executed. Both the Courts below on the basis of the evidence on record came to the conclusion that the defendant has not opted to extend the period of lease. It is undisputed fact that no fresh Rent Note has been executed. The term in clause-2 of the Rent Note that after a period of three years, the rent shall be increased @ 10% will be applicable only if a fresh Rent Note is executed at the option of either party. Since no fresh Rent Note was executed, the term in clause-2 cannot be said to have come into force. Therefore when a fixed period has been mentioned in the Rent Note and after expiry of the same, the tenant will not be a tenant holding over, but he will be a tenant at sufferance. If the term expires by efflux of time, then Section 111(a) of the Transfer of Property Act applies. It has been held by the Apex Court in Shanti Devi v. Amal Kumar Banerjee, A.I.R. 1981 S.C. 1550 that when a lease is for a definite term and it expires by efflux of time by reason of Section 111(a), the service of notice under Section 106 of the Transfer of Property Act is not necessary. It is further held that undoubtedly Section 111(a) of Transfer of Property Act which deals with determination of a lease by efflux of time has to be read with Section 116 of the said Act. Under Section 116 of the Transfer of Property Act, if the lessee remains in possession of the demised premises after the determination of the lease and the lessor accepts the rent, then lease is to be deemed to be renewed. Thus a tenant becomes the tenant of holding over. But in order to apply Section 116 of the Transfer of Property Act, it is necessary to show that the tenant continued in possession either with the consent of the land-lord or the land-lord accepted the rent after the expiry of the term fixed in the rent note. Though the tenant pleaded that he tendered the rent to the plaintiff, who refused to accept it, there is no acceptable evidence to show that he actually tendered the rent and the same was refused by the land-lord. Therefore, both the Courts below held that three month notice as stipulated in the Rent Note is not required. It has been held in U.C.O. Bank v. Amar Nath Jindal, (1998-2)119 P.L.R. (Delhi) 14 that when the agreement provided for renewal and the tenant failed to exercise option for renewal, it is to be taken that the tenancy has been terminated by efflux of time. Therefore no notice under Section 106 of the Transfer of Property Act is necessary to be given.
9. In view of the foregoing discussion, I do not find any grounds warranting interference with the decrees and judgments of the Courts below.
10. The appeal, therefore, fails and is, accordingly, dismissed. However, two months’ time is given to the appellant to vacate the premises from today.