1. This revision petitions is directed against the decision of the Appellate Authority, Faridkot, which authority had set aside the order of the Rent Controller, directing the respondents, i. e. the tenant and the sub-tenant to put Ram Chander petitioner-landlord in possession of the disputed shop situated at Kotkapura. The Appellate Authority, thus, dismissed the application of the landlord filed under Section 13 of the East Punjab Urban Rent Restriction Act 1949, for the eviction of the petitioner.
2. The eviction of the tenant was sought on two grounds, namely, non-payment of arrears of rent and sub-letting of the premises by Mangal Singh tenant to Balbir Singh, without the written consent of the landlord. The ground of default was set at naught by the tender of the arrears etc. on the first date of hearing and the parties contested the case on the ground of sub-letting alone. According to the landlord, he had rented out the premises by means of a Rent Note dated July 13, 1959(Exhibit A2) to Mangal Singh respondent on a monthly rent of Rs. 15/-. It may be mentioned at this stage that the execution of the Rent Note by Mangal Singh respondent in favour of the landlord is admitted by the former. However, the case set out during the present litigation is that as the landlord was not willing to let out the shop to Balbir Singh, the Rent Note was executed by Mangla Singh, with a view of facilitate the eviction of Balbir Singh as and when required by the landlord. It is further contended on behalf of the respondents that Mangal Singh the tenant shown in the Rent note was working first as a teacher in a school and later on became a Graduthi and he never worked at the shop in question. The allegation further is that it was only Balbir Singh who was running the shop for purposes of cycle repairs all through. So far as the rent is concerned, the contention on behalf of the respondents is that though Balbir Singh was actually paying the rent. The same was shown to have been paid all through by Mangal Singh lessee. These allegations were indeed controverted by the by the landlord. The parties produced their evidence in support of their respective contentions and as already stated the ejectment petition was decided in favour of the landlord by the Rent Controller and against him by the appellate Authority. The latter authority held that the Rent Note (Exhibit A2) was a sham transaction.
3. Mr. Sarin, learned counsel for the petitioner has very rightly argued that the appellate Authority has fallen in a patent error in ignoring the documentary evidenced of lease, i. e., Rent Note (Exhibit A2) and given preference to oral evidence of witnesses to hold that the shop was actually let to Balbir Singh and not to Mangal Singh. In this context, the provision of Section 92 of the Evidence Act have been ignored by the Appellate Authority, according to which when the terms of a contract or other disposition of property had been reduced into writing, oral evidence to vary such terms is barred. Of course, if the case had been brought under any of the provisos to Section 92, the bar in this respect could be waived. This, however, is not the case on behalf of the tenants. On the other hand, they have persisted in their stand that the Rent Noe was a sham transaction. Be that as it may, even though the sub-tenant, i. e., Balbir Singh chose to occupy the shop in dispute on the basis of Rent Note executed by Mangal Singh as a tenant, he is presumed to be alive to the risk of his eviction on the ground of sub-tenancy and he cannot turn round and take the plea that the Rent Note was a sham transaction. The ground of subletting, therefore, stands amply proved and the Rent controller was quite justified in ordering the eviction of the tenant on hat score.
4. The Revision Petition is accepted and the decision of the Appellate Authority is set aside, while that of the Rent Controller is restored, but with no order as to costs.
5. The tenant is, however, allowed to vacate the premises within one month from today.
6. Petition allowed.