H. K. RATHOD, J.

1. HEARD learned Advocate Mr. N. C. Thakkar for petitioner-original defendant No. 2 and learned Advocate Mr. Suresh M. Shah for respondents.

2. PRESENT Civil Revision Application is filed by tenant. The H.R.P. suit filed by plaintiff for eviction on the ground of sub-letting and tenant is in arrears of rent. The suit has been decreed in favour of landlord. Thereafter, appeal preferred by tenant which also dismissed. The contention raised by petitioner is that he is a tenant and not sub-tenant. The suit was decreed in favour of landlord on 30-4-1986 and appeal preferred by tenant has been dismissed on 31-7-1999.

Learned Advocate Mr. N. C. Thakkar has raised contention before this Court that in fact, suit was filed by landlord on two grounds; one is sub-letting and second is that tenant is in arrears of rent. He also submitted that in fact, there was no sub-letting and petitioner is not sub-tenant but, petitioner is tenant. The respondent No. 8 (Orig. defendant No. 1) - Hasanali Badruddin was original tenant. The mother of defendant No. 2 was working with defendant No. 1, who stood as guarantor of petitioner for payment of rent. The sale-deed executed between Pyarali Jesa and previous owner wherein it was not mentioned about sitting tenant. The Municipal record shows that petitioner is tenant. The father of petitioner was working in police department, who died in year 1972. Even in death certificate of father of petitioner produced on record before trial Court where residential address has been given of suit premises. The respondent No. 8 (defendant No. 1) was not examined before trial Court. He also submitted that according to Sec. 13(1)(e) of Bombay Rent Act, if sub-tenancy is to be proved, then exclusive possession of sub-tenant and transfer of suit premises after receiving valuable consideration is must have to be proved by plaintiff which has not been proved by plaintiff before trial Court, even not pleaded by plaintiff. The rent note of 1961 has been wrongly considered at Exh. 52 which was not found on the stamp, even though it believed say of plaintiff, then suit is filed after a period of 8 years from the knowledge of plaintiff. Therefore, conduct of plaintiff not to immediately file suit for possession from petitioner and meanwhile, accepting rent from petitioner which amounts to accepting petitioner as a tenant by plaintiff and no notice has been served to petitioner before filing suit by plaintiff against present petitioner.

3. LEARNED Advocate Mr. N. C. Thakkar has relied upon decision of this Court in the case of Bhagwati Spg. and Wvg. Works v. Ahmedabad New Cotton Mills Co. Ltd., reported in 1979 GLR 932. Relevant Head Note of aforesaid decision is quoted as under :

"Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (57 of 1947) - Sec. 13(1)(e) - Evidence Act (1 of 1872) - Sec. 59 - Question of sub-tenancy - Valuable consideration has to be proved - Such facts about valuable consideration can be proved expressly or can be inferred from other facts - Extremely difficult for landlord to show that there was valuable consideration in case of sub-letting - Therefore, valuable consideration can be inferred from other circumstances - Tenant sub-leasing to a stranger - Valuable consideration can be inferred in such circumstances."

4.1. LEARNED Advocate Mr. Thakkar also relied upon a decision of this Court in the case of Dahiben Lakhabhai v. Administrative Officer, reported in 1980 GLR 90. Relevant Head Note of aforesaid decision is quoted as under : "Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (57 of 1947) - Sec. 13(1)(e) - In order to prove act of unlawful sub-letting it must be proved that transfer was for valuable consideration - Transfer of premises by Panchayat to Municipality not accompanied by valuable consideration - Sec. 13(1)(e) therefore not applicable."

4.2. LEARNED Advocate Mr. Thakkar also relied upon a decision of this Court in the case of M/s. Rameshchan