Pankaj Mithal, J.;— Heard Sri Pradeep Kumar, learned counsel for the defendant revisionist and Sri Ashish Agrawal, leaned counsel for the plaintiff respondent. 2. The revision has been preferred by the tenant under Section 25 of the Provincial Small Causes Court Act, 1887 against the judgment, order and decree of the court below dated 30.4.2011 passed in S.C.C. Suit No. 8 of 2007 (Arvind Kumar Shorawal Vs. Ram Vilas Gupta), whereby the suit of the plaintiff respondent for arrears of rent and eviction has been decreed. 3. Sri Pradeep Kumar, has raised the following four points. (i) The notice was not duly served and therefore, the suit on its basis is not maintainable; (ii) That the tenanted portion is an old construction on which U.P. Act No.13 of 1972 is applicable; (iii) The defendant revisionist is entitle to the benefit of Section 20(4) of U.P. Act No. 13 of 1972 which has wrongly been denied; and (iv) The damages awarded @ Rs.100/- per month is excessive and without any basis. 4. The court below has dealt with the service of notice while considering issue No.4. The notice determining the tenancy of the defendant revisionist was issued on 13.11.07 and it is said to have been served by refusal upon the defendant revisionist on 19.11.07. It was sent at the correct address by registered post. 5. The submission is that the postman never came to serve the said notice upon the defendant revisionist and that he had never refused to receive it. It is also submitted that as the plaintiff respondent and the defendant revisionist reside in the same building and as the postman is common, and the plaintiff respondent might have colluded to get the fake endorsement of refusal. 6. The carbon copy of the notice was produced in evidence and it was duly proved by the counsel, who had issued the said notice on behalf of the plaintiff respondent. The postal receipt of sending the said notice by registered post was also produced and proved so was the endorsement of refusal on the envelop which was returned unserved. The notice contained the correct address of the defendant revisionist at which he normaly use to get his post and there is no material or evidence to show that the postman had any animity with him. 7. The notice contained the correct address of the defendant revisionist at which he normaly use to get his post and there is no material or evidence to show that the postman had any animity with him. 7. In view of the aforesaid facts and circumstances, a valid presumption regarding service of notice by refusal arises under Section 27 of the General Clauses Act read with Section 114 of the Indian Evidence Act. 8. The defendant revisionist is alleging that the said notice was never tendered to him and that he had not refused to receive it. Therefore, burden to prove, the aforesaid is upon him. Notwithstanding that the presumption which arises under Section 27 of the General Clauses Act, is rebutable but it has to be dislodged by the party who rebuts the presumption. Thus, in such a situation, it was not necessary for the plaintiff respondent to have produced the postman to prove the endorsement of refusal to be shown or incorrect rather placing the burden upon the defendant revisionist to do so. 9. Recently in Civil Revision No. 322 of 2012 decided on July, 24 2012, I have dealt with the above aspect and has held that the presumption under Section 27 of the Act is rebutable presumption and it is upon the party rebutting the same to prove the non-service of the notice or its refusal. 10. In view of the aforesaid, the contention that the notice was not proved to be served is without any substance and is rejected. 11. The applicability of the Act No. 13 of 1972 upon the tenanted portion depends upon the date of construction of the said portion. 12. The said aspect has been dealt with by the court below while deciding issue Nos. 6 and 7 together. 13. It is admitted to the parties that there is no assessment of the tenanted portion with the municipal authorities except for the assessment of the building as a whole. In the absence of such assessment, in view of Section 2 of U.P. No.13 of 1972 the date otherwise reported to any local authority of the construction of the said portion would be taken to be the date of construction. 14. Plaintiff respondent got a map of the property sanctioned in the year 1991 and it is thereafter that it was let out to the defendant revisionist. 14. Plaintiff respondent got a map of the property sanctioned in the year 1991 and it is thereafter that it was let out to the defendant revisionist. The sanctioned map was produced in evidence and was proved. 15. Thus, the court below held that the construction of the building would be deemed to be any time after the date of sanction of the map i.e. 9.9.1991. 16. The submission that part of the construction are old especially that of a garage which is part of the tenanted accommodation. 17. The assessment of the building as a whole on record for the year 1988-89 do not mention specifically about the existence of a garage or its assessment. In this view of the matter, there is no assessment on record relating to the garage. The court below on the basis of the evidence of the parties specially the statement of the defended revisionist himself records that it is admitted to him that most of the tenanted portion in his occupancy was newly constructed and only the garage may have been constructed prior to 1991 but in the absence of any evidence on record to establish its actual date of construction or the date when its construction was reported to any local authority it will also be treated to have been constructed after the sanction of the map. 18. In view of above and the deeming provision of Section (2) of U.P. Act No.13 of 1972 by legal fiction, the garage portion would also be treated to be the new construction. 19. Accordingly, I am of the view that the court below has not committed any error in returning a finding that the tenanted portion was a newly constructed and that since it was constructed after the cut of date of the year 1985 the provisions of U.P. Act No.13 of 1972 would not be applicable. 20. Once it held that U.P. Act No. 13 is not applicable, the question regarding grant of benefit under Section 20(4) of the said Act looses all significance and becomes meaningless. Its benefit is not available where the Act itself is not applicable. 21. Lastly, as far as the damages part is concerned, the court below has awarded damages @ Rs.100/- per day from the date of filing of the suit till the eviction of the defendant revisionist. Its benefit is not available where the Act itself is not applicable. 21. Lastly, as far as the damages part is concerned, the court below has awarded damages @ Rs.100/- per day from the date of filing of the suit till the eviction of the defendant revisionist. The admitted rent of the tenanted portion is Rs.1500/- per month plus water/house tax. There is no whisper in the order of the court below as to how the amount of Rs.100/- per day as damages has been calculated. 22. It appears that the damages at the above rate has been granted only for the reason that it was so claimed in the plaint. 23. It is settled law that damages has to be calculated and worked out on the basis of the rent of similar building situate in the vicinity and the rent prevailing in area. 24. The court below has not indulged in such an exercise therefore, the award of damages at a rate higher than the admitted rate of rent cannot be sustained. 25. In view of aforesaid facts and circumstances, the award of damages @ Rs.100/- per day is unsustainable and is liable to be reduced to Rs.50/- per day. 26. In the end Sri Pradeep Kumar, prayed that some time to vacate the premises be granted on account of personal difficulty faced by the defendant revisionist due to death of his wife from Cancer. 27. In view of above, taking compassionate view of the matter, the defendant revisionist is permitted to vacate the premises in dispute within a period of 6 months from today. 28. The revision lacks merit and is dismissed with liberty to the defendant revisionist to retain the premises in dispute of a period of six months from today provided he give an undertaking on affidavit to the court below within a month that he would vacate it and handover its peaceful possession within the time allowed aforesaid and at the same time deposits the entire arrears of rent and damages so far accrued within the same period of one month. 29. The damages for the month of August, 2012 on ward would be deposited by him by 10th of every succeeding month. 30. 29. The damages for the month of August, 2012 on ward would be deposited by him by 10th of every succeeding month. 30. The amount which has already been deposited by the defendant revisionist for the purposes of claiming benefit under Section 20(4) of the Act or subsequently in term of the interim order of this court would be given adjustment. _____________