N.D. Ojha, J.

1. This civil revision Under Section 25 of the Provincial Small Cause Court Act has been filed against the judgment and decree dated 7th December, 1985, passed by the 7th Additional District Judge, Ghaziabad, whereby the Respondents suit for ejectment of the applicant from a house and for recovery of arrears of rent and mesne profits was decreed.

2. The facts in a nutshell, necessary for the decision of this civil revision, are that the Respondent filed the aforesaid suit against the applicant on the allegation that the applicant who was the tenant of the house in question on behalf of the Respondent was in arrears of rent for more than 4 months and had not paid the arrears mspite of a notice of demand having been served on him. Consequently he was a defaulter in payment of rent and was liable to be evicted on that ground. It was also asserted in the suit that the tenancy of the applicant had been terminated by serving upon him a notice in this behalf as contemplated by Section 106 of the Transfer of Property Act. The suit was contested by the applicant on the grounds that he was not a defaulter in payment of rent, that the notice Under Section 106 of the Transfer of Property Act was invalid and that the sum of Rs. 220/- payable by with per month included the electricity consumption charges, house lax and water tax also. All these please have been negatived by the court below. It was also asserted by the applicant that since he has made the necessary deposit contemplated by Section 20(4) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the) he was entitled to the benefit of that section which relieved him against his liability for eviction from the house in question on the ground that he was a defaulter in payment of rent. This plea also has been repelled by the court below on the finding that the wife of the applicant had constructed a house at Shastri Nagar in Ghaziabad and consequently in view of the proviso to Section 20(4) of thehe was not entitled to the benefit of the said Section 20(4). The said proviso reads as thereunder:

Provided that nothing in this Sub-section shall apply in relation to a tenant who or any member of whose family has build oi has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area. " The terra " family " has been defined in Clause (g) of Section 3 of theand in relation to a landlord or a tenant of the building means, inter alia, his or her spouse.

3. Along with this revision an application purporting to be under Order 41 Rule 27 and Section 151 Code of Civil Procedure was also filed by the applicant seeking permission to file certain documents to indicate that Shastri Nagar, where the wife of the applicant had constructed a house, was beyond the limits of Municipal Board, Ghaziabad. An application for stay was also filed along with the revision. The Respondent put in appearance and filed counter affidavit both to the affidavit filed in support of the application for stay as also to the affidavit filed in support of the application for admitting additional evidence. Rejoinder affidavits have also been filed on behalf of the applicant.

4. Since the Respondent has put in appearance, this revision has been heard and is being decided finally at the admission stage itself.

5. In the counter affidavit which was filed on behalf of the Respondent reliance was placed on a notification No. 7352/29-E-55-73 dated Lucknow, April 30, 1973, published in the U.P. Gazette Extraordinary dated 1st May, 1973, which reads as hereunder:

No. 7352/29-E-55-73 Dated Lucknow, April 30, 1973 Whereas, the State Government is satisfied that it is necessary in the interest of general public residing in the areas situated within 3 Kilometers of every Nagar Mahapalika, Nagar Palika and notified area to apply the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (Act No. 13 of 1972) to the said area:

Now, therefore, in exercise of the powers under the first proviso to Sub-section (3) of Section 1 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act. 1972 (U.P. Act. No. 13 of l972), the Governor is pleased to declare that the whole Act shall apply to the said areas situated within 3 Kilometers of every Nagar Mahapalika, Nagar Palika and notified area.

In paragraph 8 of the counter affidavit of Tilak Ra! Sethi, husband of the Respondent it was specifically said that Shastri Nagar, namely the place v. here the wife of the applicant has constructed a house, is hardly within two furlongs from the boundary of the Ghaziabad Municipality. Not only in the main affidavit, even in the re-joiner-affidavit no specific assertion was made by the applicant that Shastri Nagar, where the applicants wife had constructed a house, was beyond three Kilometers of the Municipal limits of Nagar Palika Ghaziabad. On 18th February, 1986 counsel for the parties prayed for and were granted time to file an affidavit indicating the exact distance of the house constructed by the applicants wife in Shastri Nagar from the limits of the Nagar Palika. Ghaziabad nearest to the house aforesaid. Both the parties have filed affidavit today. The application for acceptance of additional evidence is therefore allowed and the documents filed along with the said application as also along with the counter affidavit and the affidavits filed today are accepted.

6. As regards the findings recorded by the court below that the applicant was a defaulter in payment of rent, that the notice Under Section 106 of the Transfer of Property Acr was valid and that the sum of Rs. 220/- per month did not include electricity consumption charges, house tax and water tax, suffice it to point out that nothing has been brought to my notice by counsel for the applicants to justify taking a contrary view in the present civil revision.

7. As regards the finding of the court below that the applicant was not entitled to the benefit of Section 20(4) of thebecause of the proviso thereto inasmuch as the wife of the applicant had constructed a house at Shastri Nagar it was urged by counsel for the applicant that since there was no plea in this behalf raised by the Respondent in the plaint the trial court committed an error in denying the benefit of Section 20(4) to the applicant on the basis of the proviso thereto. A similar submission had been made before the trial court also and was repelled on the ground that since it was the applicant who was claiming the benefit of Section 20(4) of the Act, it was for him to establish that the proviso thereto was not applicable. In my opinion no exception can be taken to the finding of the court below in this behalf. When the suit was instituted by the Respondent she could not envisage that the applicant will claim the benefit of Section 20(4) of the the and incorporate the necessary plea in this behalf in the plaint. Since, the applicant was claiming the benefit to Section 20(4) it was for him to establish that he was entitled to the said benefit and he could be entitled to the said benefit only if he had not only complied with the requirements of Section 20(4) but also succeeded in establishing that bis case was not covered by the proviso thereto. Moreover, an issue was framed by court below specifically on this point as to whether the applicant was entitled to the benefit of Section 20(4) and in pursuance of that issue both the parties produced evidence. The court below on the basis of the evidence produced before it by the parties held that the applicant was not entitled to the benefit of Section 20(4) of theinasmuch as his wife had constructed a house at Shastri Nagar.

8. The plea that the was not applicable to the house of the applicants wife constructed in Shastri Nagar inasmuch as it was beyond the limits of the Municipal Board, Ghaziabad, does not appear to have been taken before the Court below but was taken in the present civil revision and in support of that plea the additional documents referred to above were filed. Since the additional evidence produced by the parties has been accepted it may be considered at this place.

9. As seen above the has been made applicable even to the areas not within the limits of the Municipal Board but within three Kilometers of the limits of the Municipal Board. The applicant indeed did not bring to the notice of this Court the notification dated 30lh April, 1973 referred to above filed along with the counter affidavit and placed reliance only on the circumstance that Shastri Nagar was not within the Municipal limits of Ghaziabad. No specific averment was made in the affidavit filed along with the application for acceptance of the additional evidence that the house of his wife was situate beyond three kilometers of the limits of Municipal Board Ghaziabad. In the counter affidavit it was specifically asserted as pointed out above that Shastri Nagar was admittedly within two furlongs from the boundary of Ghaziabad Municipal Board. Notwithstanding such specific assertion in the counter affidavit the applicant did not state in his rejoinder affidavit that the house of his wife was situate beyond three kilometers of the limits of Municipal Board, Ghaziabad. This is an important circumstance to indicate that the case of the Respondent that the said house was within three kilometers of the limits of Municipal Board Ghaziabad is correct. Along with the affidavit which has been filed by Tilak Raj Sethi, husband of the Respondent, today copy of an application made by the Respondent to the Nagar Abhiyanta, Nagar Palika, Ghaziabad, has been attached as annexure I. A request was made by the Respondent to the Nagar Abhiyanta to give her a certificate after making measurement about the distance of house No. SI 23, Shastri Nagar, Ghaziabad, namely the house of the applicants wife, from the municipal limits of Ghaziabad. Annexure II is copy of a letter addressed to the Respondent by the Nagar Abhiyanta. The said letter is accompanied with a plan also. The letter and the plan indicate that there are two approach roads to the municipal limits of Ghaziabad from the house of the applicants wife one towards north and the other towards south. The aforesaid distance from the approach road towards north is 210 meters, whereas the aforesaid distance from the approach road towards south is 163 meters, both of which are much less than three kilometers. The applicant along with his affidavit filed today has attached an application in original which purports to have been given any the wife of the applicant to the Tahsildar, Ghaziabad, stating that she was constructing a house at Shastri Nagar being house No. Is 23, Shastri Nagar, and that she wanted to take loan for its completion and that she may be apprised of the distance of her house from the limits of Municipal Board, Ghaziabad, after getting measurement done. There is an endorsement purporting to be by the Tahsildar to Supervisor Kanoongo. Below that is a report presumably by the Supervisor Kanoongo although it is not so specifically stated therein. The report addressed to the Tahsildar is to the effect that inquiry was made in regard to the application made by the wife of the applicant and it was found that the house of the applicant was at a distance of 3.2 kilometers from the limits of the Municipal Board. This report does not indicate that any measurement was done by the person who gave the report. It only says that an inquiry was made. In this view of the matter and in view of the circumstance that the applicant himself did not have the courage to swear an affidavit stating that the distance of his wifes house was more than three kilometers from the limits of Municipal Board, Ghaziabad, and the circumstance that the Respondents husband has specially stated in the counter-affidavit that this distance was less than two furlongs and in view of the report if the Nagar Abhiyanta of Municipal Board, Ghaziabad, filed today along with an affidavit already referred to above, no reliance can be placed on the report filed along with the affidavit of the applicant today. It is, therefore, apparent that the distance of the house of the applicants wife is much less than three kilometers from the limits of the Municipal Board, Ghaziabad. Consequently in view of the notification dated 30th April, 1973, referred to above the provisions of the shall apply to the area wherein the house of the applicants wife has been constructed.

10. Counsel for the applicant then urged that even if, because of the aforesaid notification, the provisions of the may be applicable to the area where the house of the applicants wife has been constructed that area cannot be said to be in the same municipality, namely Ghaziabad municipality where the house in respect of which the suit for ejectment has been instituted is situate. According to counsel for the applicant that area would become a part of the same municipality only if the limits of the Municipal Board were extended up to that area by a notification contemplated b Section 3 of the U.P. Municipalities Act. I find it difficult to agree with this submission. The aforesaid notification dated 30th April, 1973, was issued, as is apparent from a perusal thereof, in exercise of the powers conferred on the State Government under the first proviso to Sub-section (3) of Section 1 of the. This Sub-section provides for the areas to which the shall apply. This Sub-section (3) of Section 1 of thetogether with its first proviso reads as hereunder:

(3) It shall apply to

(a) every city as defined in the U.P. Nagar Mahapalika Adhiniyam, 1959 (U.P. Act II of 1959) ;

(b) Every municipality as defined in the United Provinces Municipalities Act, 1916 (U.P, Act II of 1916) ;

(c) every notified area consituted under the United provinces Muniiciplaties Act 1916 (U.P. Act I of 194);

(d) every notified area constituted under the United Provinces Municipalities Act, 1916 (U.P. Act II of 1916), and every town areas constituted under the United Provinces Town Areas Act, 1914 (U.P. Act I of 1914).

Provided that the State Government, if it is satisfied that it is necessary or expedient so to do in the interest of the general public, residing in any other local area, may by notification in the Gazette declare that this Act or part shall apply to such area:

The words used in the proviso to Section 20(4) of theare "same city, municipality, notified area or town area ". Apparently they refer to the local authorities mentioned in Clauses (a),(b), (c) and (d) respectively of Sub-section (3) of Section 1 of the. By virtue of the first proviso a notification can be issued by the State Government declaring that the or any part thereof shall apply to that area also which is specified in the notification and upon the issue of such notification the or the part, as the case may be, shall apply to such area. The object of the proviso apparently is to achieve the same purpose in regard to the applicability of the provisions of the which is contemplated by Clauses (a), (b), (c) and (d) of Sub-section (3) of Section 1 of the. In other words by legal fiction for the purposes of the applicability of the provisions of the or part thereof as the case may be the area in respect of which the notification contemplated by the aforesaid proviso has been issued will constitute a part of the city, municipality, notified area of a town area as the case may be. In this view of the matter the area specified in the notification dated 30th April, 1973, even though may not be a part of the Municipal Board, Ghaziabad, for the purpose of U.P. Municipalities Act it would by legal fiction be a part of that municipality for purposes of applying the provisions contained in the. In this connection reference may be made to the following observations of Lord Asquith on page 132 of the report in the case of East End Dwellings Co. Ltd. v. Finsbury Borough Council, 1952 App.Cas 109:

If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as ideal the consequences and incidents which if the putative state of affair has in fact existed, must inevitably have flowed from or accompanied it The statute says that you must imagine a certain state of affairs ; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corrolaries of that state of affairs.

11. Section 12(3) of theand Explanation (i) to Section 21(1) of thealso contain provisions analogous to the proviso to Section 20(4). In Puran Deo Bhandari v. The Prescribed Authority, 1978 ARC 360 a question arose with regard to the interpretation of Explanation (i) to Section 21(1) of the. There also the house with reference to which it was pleaded that said explanation applied was strictly not within the municipal limits of the city of Gorakhpur. However, it adjoined the boundaries of the Municipal Board. On the basis of the notification dated 1st May, 1973, by virtue of which the provisions of the applied to areas situate within three kilometers of the municipal limits of Goiakhpur it was held that the provisions contained in Explanation (i) to Section 21(1) of thewere attracted.

12. Counsel for the applicant placed reliance on Sri Ram Ditta Mai v. Rent Control and Eviction Officer, Muzaffarnagar : 1978 AWC 348 [LQ/AllHC/1978/287] , That was a case Under Section 12(3) of the. The said case, however, in my opinion is clearly distinguishable. In that case it was pointed out that it was no doubt true that under the provisions of Section 1 of thethe State Government was authorised to extend the provisions of the to any other local area by notification in the Gazette but unless such a notification is issued the would not apply to any area lying outside the municipal limits. If at all, this decision also indicates that if a notification contemplated by Section 1 of thehad been issued by the State Government with regard to the area in question the would have been held applicable to the said area.

13. Lastly it was urged by counsel for the applicant that the house of the applicants wife has not yet been completely constructed and as such the proviso to Section 20(4) of theshould not have been applied. The court below does not seem to have accepted this case of the applicant when it applied the proviso to Section 20(4) and in my opinion on the material on record it is not possible to take a contrary view. Copies of the deposition of Tilak Raj Sethi, husband of the Plaintiff-Respondent, and of the applicant have been attached as Annexures 3 and 4 to the affidavit filed by the applicant in support of the stay application. The husband of the Respondent has specifically stated in his deposition that the applicants wife has constructed house No. SI 23 at Shashtri Nagar and that the construction of the said house is complete and the same is in occupation of the applicant. A perusal of the deposition of the applicant, particularly the last portion of his cross-examination, indicates that the house is almost complete. He has also admitted that the Shashtri Nagar house stood constructed in 1984 and was in his possession and was lying vacant since then. Obviously in this state of affairs the applicant can occupy the said house for residential purposes. Even if some minor furnishings etc. are yet to be done it cannot be said that the court below committed any illegality in applying the provisions contained in the proviso to Section 20(4) of the.

14. In the result I find no merit in this civil revision. It is accordingly dismissed and the interim order of stay is vacated. In the circumstances of the Case, however, there shall be no order as to costs.