JUDGMENT - KARNIK D.G., J.:---By this writ petition the petitioner challenges the judgment had order of the Appellant Bench of the Small Causes Court, Bombay allowing the appeal and setting aside the decree for possession passed against the respondent by trial Court.

2. The facts giving rise to the writ petition are short and are stated below:-

The suit property which consists of a flat on the ground floor in the building known as Neela House situated in a posh locality in Bombay at Carmichael Road, (Peddar Road) belongs to the petitioner company. The respondent is a tenant occupying the suit flat since long on the monthly rent of Rs. 456.36. The respondent was in arrears of rent from 1st October, 1967 to 31st May, 1968. By a notice dated 18th June, 1968, the petitioner demanded the rent which was paid by the respondent. As the respondent again fell in arrears of rent from 1st July, 1968 till 31st May, 1969 by another notice dated 11th February, 1969 the petitioner demanded the arrears of rent which the respondent failed and neglected to pay. The petitioner therefore filed a suit against the respondent for possession on the ground of default in payment of rent within one month of the notice of demand. The respondent resisted the suit contending that the notice dated 11th February, 1969 was never received by him and as such the respondent could not be evicted under section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short Bombay Rent Act). The Small Causes Court, Mumbai by its judgment and order dated 19th February, 1985 held that the petitioner had proved the issuance of the notice dated 11th February, 1969 and also proved that the notice was received by the respondent and as the rent was not paid within one month from the receipt of the notice, the respondent was a defaulter. Consequently, the trial Court passed a decree for possession. On appeal, the Appellate Bench of the Small Causes, Mumbai held that the notice dated 11-2-1969 was not received by the respondent or his representative and therefore the respondent was not liable to be evicted on the ground of non payment of the rent. The Appellate Bench allowed the appeal and dismissed the petitioners suit for possession. That judgment is impugned in this writ petition.

3. Learned Counsel for the respondent submits whether the notice dated 11th February, 1969 was received by the respondent or not is purely a question of fact. The finding recorded by the Appellate Court that the notice was not received by the respondent is a pure finding of fact and therefore cannot be interfered with in exercise of a writ jurisdiction under Article 227 of the Constitution of India, see (Babhutmal Raichand Oswal v. Laxmibai R. Tarte)1, reported in A.I.R. 1975 S.C. 1297. Per contra, the learned Counsel for the petitioner contends that the finding as to whether the notice was served or not though normally would be a question of fact, in the peculiar facts and circumstances of this case was a mixed question of law and facts. He submits that there was no dispute that the notice dated 11th February, 1969 was despatched by registered post A.D. The original registration receipt showing the despatch of there receipt on 11th February, 1969 was produced before the trial Court and both the courts below have held that the notice had been despatched. The only issue was whether the notice was received by the respondent. The notice was properly addressed and despatched under section 114 of the Evidence Act read with section 27 of the General Clauses Act there was a presumption of service. Though the trial Court had properly appreciated the scope of the presumption, the Appellate Court erred in not applying the presumption of service. The question as to whether the notice was served was required to be determined in accordance with law and by applying the provisions of section 114 of the Evidence Act read with section 27 of the General Clauses Act and hence the question w

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