M. P. Mehrotra, J. - (1.) This petition under Article 226 of the Con stitution of India arises out of the suit for eviction of tenant by the landlord. The facts, in brief, are these. The respondent No, 3 is the landlord and the petitioner No. 2 Virendra Dutt Sharma is the sole proprietor of the petitioner no. 1. A suit was filed for the eviction of the petitioners by the aforesaid land-lord. The suit was based on the relationship of landlord and the tenant between the parties. Certain other reliefs by way of arrears of rent, damages for use and occupation etc. were also claimed. The trial Court decreed the suit for the recovery of the arrears of rent but dismissed the same so far as the relief of eviction was claimed. Feeling aggrieved, the landlord went up in revision and the 1st Additional District and Sessions Judge, Bareilly, acting as the revisional Court, allowed the said revision filed by the landlord. The relief of eviction was also granted to the landlord. Feeling aggrieved, the petitioners have now come up in the instant petition and in support thereof, I have heard Sri Navin Sinha, learned counsel for the petitioner. In opposition, the learned counsel for the land-lord has made his submissions. Sri Sinha raised two contentions before me. Firstly, it was contended that the suit was not maintainable under Section 20 (1) of the U. P. Act I of 1972 on the ground that the accommodation in question had been cons tructed in 1961 and the period of 10 year's holiday under Section 2 (2) of the Act stood completed in 1971. The suit itself was filed in 1972. It may be stated that it is not a case coming under Clause (a) of sub-section (2) of Section 20 of the Act. On the other hand the learned counsel for the landlord contended that the finding recorded by the Courts below is a pure finding of fact and no interference can be made in this petition in the said finding. The date of completion of construction of the acconmodation in question had been found to be 1st October, 1964 by the two Courts below. Sri Sinha placed reliance on reported decisions to contend that the Courts below were wrong in holding that 1st October, 1964 was the date of the completion of the accommodation in question. The said pronouncements are as follows:- Ram Swamp Rai v. Smt. Lilawati. ( 1980 Allahabad Rent Cases 466 (S. C.)) O. P. Chopra v. Smt. Surjit Kaur (1979 A. L J. 109) Hirday Ram v. Harbhajan Singh Kochar (1977 A. L. R. 467 ). In all these three cases, Explanation I to Section 2 (2) of the Act fell for interpretation. In the first pronouncement, the Supreme Court held that normally the finding about the date of construction would be a finding of fact. However, it was emphasised that in view of Section 2 (2) of the Act, the controversy had to be decided In the light of the ingredients laid down in the said provision. It was further laid down that the burden to prove exemption from the Act will be upon the landlord and not upon the tenant. Thereafter, the facts of the said case were discussed. It was found that it was not possible from the plan submitted to the local authorities whether the accommodation in dispute in the said case was a new construction or not. It was then emphasised that the building had been sold by the previous owner and the successor- landlord had no personal knowledge as to the date when the disputed accommodation had been constructed. In fact, the pre vious owner appeared in the witness box and supported the case of the tenant. The Supreme Court emphasised this aspect of the matter in a sentence which is as follows J- "if we go by Brij Mohan's evidence, the owner of the building at the relevant time, we cannot necessarily hold that the existing building has been substantially demolished and reconstructed. Indeed, his evidence is to the effect that the construction such as was made was beyond the 10 years period. " Thereafter, it was further emphasised. " "unfortunately, it is not possible for the purchaser-respondent or the tenant-appellant to give direct testimony about the time of the construction or the nature of the construction viv-a vis Explanation (b) or (c ). " In my view, the ratio laid down by the Supreme Court should be con sidered in the aforesaid back- ground. In the instant case it has to be seen that a clear admission was forth coming from the side of the petitioner as the tenant, which clearly showed that the accommodation in question which is a shop, did not exist on 8th August, 1964. On the said date, an advance of Rs. 1000/- was given by the tenant to the landlord for the construction of the shop in dispute. The relevant receipt was on the record and marked as. Paper No. 33/3-C. Then the admitted position is that the shop in question was occupied on 1st October, 1964 by the petitioner tenant. In this view of the matter, it is obvious that the Courts below were entitled to render a finding that the shop in question came into existence after 8th August, 1964. It is really not necessary to decide as to whether 1st October, 1964 was correctly treated to be the date of the completion of the shop. The petitioner can succeed only if it could be established that the shop in dispute was in existence prior to 8th August, 1964. If the construction itself was started after 8th August, 1964 then undoubtedly in 1972 when the suit was filed, the shop could not be said to be 10 years old. It has never been contended that the said admission of the tenant was in any way based on misconception and mis application. In any case, it has not been found to be so. So far as the other two cases are concerned, again I hold that they were distinguished. In both these cases it has been laid down that in view of the Explanation I to Section 2 (2) of the Act, the date of completion of the building cannot be determined on the basis of some other kind of evidence. The criteria for such determination are laid down in the said Explanation itself. In Hirday Ram v. Harbhajan Singh Kochar. (supra) it was emphasised that the said Explanation is in the nature of a deeming provision. It was obser ved:- "it should be borne in mind that we are dealing with a deeming provision and on the well established principles; a deeming provision is bound -to be given full scope and effect to effectuate the intention of the Legislature in enacting such a provision. It seems that the Legislature felt that a controversy about the date of completion was bound to give rise to much conflicting oral evidence and, therefore, it should interpose to put the matter on a firm footing by laying down objective criteria for determining the date of construction. This was done by engrafting an Explanation to sub-section (2) of Section 2 of the U. P. Act XIII of 1972. It is significant that in the Explanation the actual date of construction has not been laid down to be the date on which the building is to be deemed to be completed. In other words, irrespective of the actual date of such construction that date shall be deemed to be the date of completion which satisfies the criteria laid down in the aforesaid Explanation. . . . . . . . . . . . . . . . . . . . . . In this state of affairs when law has interposed to lay down a fiction, it is not open to fall back on the reality or the (actual aspect of the matter. If the reality of the matter or the factual aspect of the matter were to be considered, then that course will be in the teeth of the deeming provision. " It should be seen that the law as laid down in the aforesaid pronouncement does not in any manner militate against the finding recorded by the Courts below. The Revisional Court observed:- "that apart, there is no evidence that the date of completion of the building was notified to the local authorities or about the date from which the tax was assessed therefrom. Hence in the absence of evidence on these two points, the date on which the tenancy started would be deemed to be the date of completion of the building. 1, therefore, confirm the finding of the learned Judge Small Causes Court that the building was completed on 1. 10. 1964. " Sri Sinha, however, contended that there were house-tax and water-tax receipts of a date prior to 1st October, 1964 and the same went to establish that the assessment of the shop in dispute had been made prior to 1st October, 1964. It should b; seen that it was a case where a building was already in existence and one can reasonably presume that the same stood assessed to house-tax and water-tax under the provisions of the U. P. Municipalities Act. The shop in question was in the nature of an addition to the building. As already stated above, the tenant himself advanced a sum of Rs. 1000/-on 8th August, 1964 towards the costs of the construction of the shop and the relevant receipt has been referred to in the judgment of the trial Court. When such an addition has been made to an existing building, then it is open to the Municipal Board to make a periodical assessment of the same under Section 147 (1) (d) of the U. P. Municipalities Act. it this is done, then the assessment of the building is bound to get enhanced and such enhancement comes into force either from 1st October, or on 1st April, depending upon the date when the assessment list is completed. But in any case, u does some- times happen in actual practice that the Municipal Board does not make a periodical assessment during the currency of a quinquennial assessment and the necessary revision, as a consequence of the addition in the building, is done in the next following quinquennial assessment. The quinquennial assessment, as is well known, is made under Section 141 to 143 of the U. P. Municipalities Act. In the facts of the instant case, it is not clear whether any periodical assessment under Section 147 was made in regard to the shop in dispute. However, one thing is absolutely clear and it is, that the shop in dispute was not in existence on 8th August, 1964, therefore, in terms of Explanation I, the date of the completion of its construction could only be a date after 8th August, 1964. Whether such date was to be ascertained with regard to the date of the revised assessment or with regard to the date when the campletion was reported to the Muncipal Board or the -date when the shop came to be, occupied will not need to be ascertained because all such dates, based on the three different criteria mentioned in clause (a) of Explanation, were bound to be after 8th August. 1964. Accordingly, it has seemed to be that all the cases on which Sri Sinha has placed reliance are not of help to him in the facts of the instant case. Accordingly, I reject the first contention. So far as the second contention is concerned, Sri Sinha placed reliance on the facts stated in paras Nos. 3, 15 and 16 of the petition. T have taken Into consideration the said facts but admittedly the deposit of rent till 1st November 1974 (which is the relevant date in as much as the period of one month mentioned in Section 39 stood completed counting the same from 1st October, 1974 when the period of 10 years expired and the Act became applicable to the shop in dispute) fell short of the deposits required to be made under Section 39. Sri Sinha contended that in taking into account the deposits made by the petitioner, it should be held that the deposit was made by the petitioner @ Rs. 50/- per month but in computing the arrears of rent, the rate should be held to be Rs. 40/- per month, In my, view, this contention is not correct. It is the petitioner's own case that by the terms of contract, he had agreed to pay Rs. 40/- towards rent and Rs. 10/- towards municipal taxes. Thus in total a sum of Rs. 50/- per month was payable by him. Now one can conceive of either of the two eventualities either the tax amount was to be treated as part of the rent or it was not to be treated as a part of the rent. If it was apart of the rent than the arrears of rent had to be calculated at Rs. 50/-On this calculation the petition was undoubtedly in default in complying with the provision of Section 39. However if the other eventuality is taken into consideration then it has to he held that the petitioner was depositing in the Court the rent at the rate of Rs. 40/-and Rs. 10/-was being deposited by him towards the municipal taxes which he had agreed to pay. It is not open to the petitioner to contend that the entire deposit at the rate of Rs. 50/- should be taken have been made towards the arrears of rent which according to him should be calculated only at the rate of Rs, 40/ -. This stand is obviously inconsistent and contradictory. It is a well known provision of the Contract Act that it is often to a debtor, while making the payment to direct to the creditor as to the manner in which the payment should be appronriated by the latter. In the instant case, there can be no doubt whatsoevar that in making the deposit at the rate of Rs. 50/- per month the petitioner was either to deposit rent at the rate of Rs. 50/- or else he was to deposit Rs. 40/- as rent and Rs. 10/-as municipal taxes. It was not permissible to the petitioner to turn round and say that the entire deposit at the rate of Rs. 50/- should be treated to have been made towards the arrears of rent to be calculated at the rate of Rs. 40/- per month. Obviously the tenant was not making excess depositor Rs. 10/-as rent. In this view of the matter, the second contention also fails and is rejected. This petition accordingly, fails and is dismissed but there will be no order as to costs. .;