JUDGMENT
Bhimrao N. Naik, J.
1. This petition is filed by a vegetable vendor is in occuption of a wooden stall of her husband, Vithoba Shinde, who was admitedly the tenant of this stall.
2. The few facts which are relevant for the purpose of this petition are, the respondents filed R.A.E. Suit No. 6120 of 1969 in the Court of Small Causes at Bombay for possession of the suit premises on the ground of nonpayment of rent. Before filing the suit, on 2.1.1969 a notice of demand was issued calling upon the tenant to send the rent and the arrears which were due and payable from 1-6-1964 to 31-12-1968, amounting to Rs. 1228.10 Ps. This notice was sent by registered post which was returned with remark as unclaimed, and secondly it was also sent under certificate of posting. The rent demanded was at the rate of Rs. 22.46. ps. per month. It appears that prior to filing of the suit Advocate Shahane set notice on 7th October, 1965 and demanded monthly rent at the rate of Rs. 7.64 Ps.
3. This suit was contested by the present petitioner. Her contention was that since she had not received the notice, no decree can be passed against her. Neither the registered notice was received by her nor the notice which was sent under certificate of posting was received by her, and this she denied by filing her written statement and also when she led evidence on oath she denied receipt of the notice.
4. The learned Trial Judge held that inter alia notice was duly served and, since no steps were taken by the tenant in making the payment of rent as demanded or no application for fixation of standard rent was filed, and in view of this the decree for possession was passed on 17th February, 1977.
5. Being aggrieved and dissatisfied by the aforesaid order, the petitioner filed Appeal No. 308 of 1977. The Appellate Court also confirmed the finding recorded by the Trial Court.
6. Being aggrieved and dissatisfied the aforesaid judgment and decree, the petitioner has filed the present writ petition. Shri Jadhav, learned Counsel appearing for the petitioner pointed out to me that the respondents failed to establish the due service of notice of payment under Section 12(2) of the Rent Act and the entire burden lay upon the respondents-plaintiffs. He pointed out that when a notice is sent under certificate of posting, it is the only evidence of sending a notice but if it is denied by the petitioner that she has not received such a notice, then it is for the respondents-landlords to prove it by cogent evidence that such a notice was received by her. Thus he points out that the finding recorded by the two Courts below is incorrect. He also points out that the Court ought not to have accepted the evidence of posting of the notice on the suit premises. Secondly, he also points out that the earlier notice was sent by a Lawyer demanding rent at the rate of Rs. 7.64 and in the present notice of demand which was issued on 2.1.1969, the rent claimed is above Rs. 22/-, and the claim made is excessive. Therefore, the notice of demand is bad and hende the decree for possesion passed should be quashed and set aside. It was also pointed out that it was not permissible for the Appeal Court to have brushed aside the earlier notice merely by observing that the previous lawyer must have mentioned the amount of Rs. 7.64 only by mistake.
7. After hearing Shri Jadhav, I am inclined to accept the contention of the petitioner. As pointed out above, the petitioner happens to a petty vegetable vendor, in occupation of a stall, the only source of her livelihood after the death of her husband and the decree for possession is sought only on the ground of non-payment of rent, I am not convinced on the basis of the evidence which has come on record that the notice of demand is duly served on the petitioner. The Court cannot ignore the fact that the petitioner is a petty vegetable vendor. If she were to come across the notice duly pasted or if she were to receive the notice, she would have definitely taken necessary steps. But it does appear that notice is not properly served for the burden is properly discharged by the respondents and in view of the decision reported in 65 Bombay Law Reporter, Page 434, the burden of proof which was placed on the petitioner was discharged since she categorically denied receipt of the notice and under these circumstances it was obligatory upon the respondents landlords to have established the fact of proper service of the notice. Since this has not been done, I am required to interfere in this petition in exercise of my powers under Article 227 of the Constitution of India and set aside the judgment and decrees passed by both the Courts. Hence the petition is allowed in terms of prayer Clauses (a) and (b). Rule made absolute. However, in the facts and circumstances of the case, there will be no order as to costs.