JUDGMENT - M.P. KENIA, J.:---This is a writ petition under Article 227 of the Constitution of India seeking to quash and set aside the judgment and decree passed on the 21st of October, 1985 by the Appellate Bench of the Court of Small Cause at Bombay in Appeal No. 30 of 1079. The brief facts leading up to the present petition may be stated as under :--- 2. One Shamrao Mahajan was the owner of the property known as 'Sita Niwas' at Vallabhbhai Patel Road, Vile Parle (West), Bombay 400 056. He was on friendly terms with one Raisi Mistry and Sometime in the year 1941, the said Shamrao created a tenancy in respect of a two-room premises on the northern side, on the ground floor in the aforesaid building Sita Niwas, the exact date not being known to any of the parties. The exact purpose for which the suit premises was let out has not clearly been established but it appears that the same was let out for the purpose of office-cum-godown as will appear herein below. The said Shamrao Mahajan passed away on the 23rd August, 1961 and the said Raisi Mistry to whom the suit premises had been let out also passed away in the year 1963. It seems that in the month of August 1963, the respondent being one of the sons of the late Raisi Mistry, had made a payment of Rs. 400/- by cheque towards the rent in respect of the suit premises which had been accepted. 3. By a notice dated 29th September, 1970, addressed by the learned Advocate for the petitioners being the heirs and legal representatives of the late Shri Shamrao Mahajan to the respondent and “other heirs and legal representatives of the late Shri Raisi Mistry”, it was, inter alia, contended that the rent in respect of the suit premises had fallen in arrears and that the premises in question had not been used for the past over 17 years. By the said notice, the tenancy in respect of the suit premises was terminated. By the said notice, the tenancy in respect of the suit premises was terminated. This was followed by the filing of R.A.E. and R Suit No. 6449 of 1970 in the Court of Small Cause at Bombay by Shri B.S. Mahajan , Smt. Malini alias Malti V. Vazumdar, heirs and legal representatives of Shri Shamrao Balaji Mahajan against the respondent herein seeking a decree in eviction against him in respect of the suit premises on the grounds of arrears of rent and non-user of the suit premises for the purpose for which it had been let out. This suit appears to have been filed on 19th December, 1970. The Respondent being the sole defendant in the suit, filed his written statement wherein he raised a variety of pleas denying that the original plaintiffs were entitled to any reliefs and pointing out inter alia that the alleged notice dated 29th September, 1970 had never been received by the Respondent and/or by the other heirs and legal representatives of the Late Shri Raisi Mistry and pointing out further that the Respondent was residing in a building adjoining the suit premises and was using the suit premises to the knowledge of the original plaintiffs who had however deliberately chosen not to serve the alleged notice upon the defendant personally. It may be mentioned that on an application made by the respondent, an order was passed on 8th April, 1972 by the trial Court by which the respondent was permitted to deposit in Court the arrears of rent and it appears that thereafter the respondent has been depositing in Court the amount of monthly rent from time to time. The trial Court by a judgement and decree dated 20th October, 1978, decreed the suit directing the respondent to deliver vacant possession of the suit premises on or before 1st of January, 1979 and to pay to the plaintiffs Rs. 612/- and granting other reliefs. The trial Court by a judgement and decree dated 20th October, 1978, decreed the suit directing the respondent to deliver vacant possession of the suit premises on or before 1st of January, 1979 and to pay to the plaintiffs Rs. 612/- and granting other reliefs. It may be mentioned that the trial Court had framed issues covering the questions whether the notice dated 29th September, 1970 was legal, valid and had been property served (which issue is answered in the negative), whether the suit was bad for non-joinder of necessary parties of all the heirs and legal representatives of the deceased Shamrao Balaji Mahajan as also the deceased Raisi Ministry (which was answered in the negative), whether the suit premises had not been used at all or had been kept vacant and whether the respondent was a wilful defaulter and whether the petitioners were entitled to get possession (all of which the trial Court answered in the affirmative). 4. The Appeal Court by its judgement dated 21st of October, 1985 partly allowed Appeal No. 30 of 1979 to the extent that the decree for possession passed by the trial Court was set aside whereas the decree for arrears of rent was permitted to stand and the suit for possession was ordered to stand dismissed with no order as to costs. The appeal Court took the view that the suit was bad for non-joinder of the heirs and legal representatives of the deceased Raisi Mistry as party defendants, that the original plaintiffs had failed to prove that they had served the notice of demand upon the defendant and that as such, there was no question of the defendant paying the said arrears within one month after the receipt of the said notice or of the original plaintiffs being entitled to a decree for possession on the ground of arrears of rent though in fact, rent was in arrears (and the decree in respect of such arrears of rent was allowed or stand) and finally, that the original plaintiffs had failed to prove the suit premises had not been used without reasonable cause for the purpose for which it was let out for a continuous period of six months immediately preceding the suit. It is this judgment of the appeal Court of the Court of Small Causes that is under challenge in the present writ petition under Article 227 of the Constitution of India. 5. Mr. A.K. Abhyankar appearing on behalf of the respondent, has invited my attention to two recent decisions of the Supreme Court indicating the limits within which the jurisdiction of the High Court under Article 227 of the Constitution of India may be exercised and it will be convenient at this stage to refer to the said two decisions. The first of these is the decision of the Supreme Court in the case of (Chandavarkar Sita Ratna Rao v. Ashalata S. Guram)1, A.I.R. 1987 S.C. Pg. 117, reported in Justice Sabyasachi Mukharji speaking for the Court has in paragraph 16 of the judgment noticed two questions which required consideration, namely, how far and to what extent in exercise of its jurisdiction under Article 226 or 227 of the Constitution, and in this respect regarding power to deal with factual findings, the jurisdiction of the High Court is a in both under Articles 226 and 227 of the Constitution, can the High Court interfere with the findings of fact and has gone on to point out that “it is well-settled that the High Court can set aside or ignore the findings of fact of an appropriate Court if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the courts below have come or in other words a finding s which was perverse in law.” The learned Judge records the view expressed by the Supreme Court in an earlier case laying down that “unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention it was not for the High Court under Articles 226 and 227 of the Constitution to interfere". In paragraph 21, the learned Judge has stated the “the High Court also should not interfere with a findings were perverse and not based on any material evidence or it resulted in manifest injustice. Except to the limited extent indicated above, the High Court has no jurisdiction”. In paragraph 21, the learned Judge has stated the “the High Court also should not interfere with a findings were perverse and not based on any material evidence or it resulted in manifest injustice. Except to the limited extent indicated above, the High Court has no jurisdiction”. In the same paragraph, the Court has gone on to notice that the question on which the High Court has sought to interfere depended upon appreciation of evidence and indeed the very fact that the learned trial Judge had come to one conclusion and the Appellate Bench to another was an indicating of the position that the two views were possible and in preferring one view to another of factual appreciation of evidence, the High Court had transgressed its limits of jurisdiction under Article 227 of the Constitution. The other decision of the Supreme Court referred to by Mr. Abhyankar is the judgement in the case of (Venkatlal G. Pittie another v. M/s. Bright Bros. (Pvt) Ltd.)2, reported in A.I.R. 1987 S.C. pg. 1939. It reaffirms its earlier view that “where there may conceivably be two opinions it cannot be said to be an error apparent on the face of the record”. It went on to say that “there might have even error in the judgement of the appellate Bench of the Court of Small Causes but it is not an error palpable and apparent, right or wrong they had come to that conclusion. That was possible or plausible conclusion”. 6. Having noticed the parameters laid down by the Supreme Court with regard to the jurisdiction of the High Court under Article 227 of the Constitution of India, it is now convenient to turn to the three points decided by the appellate Bench of the Court of Small Causes in Appeal No. 30 of 1979. These may briefly be enumerated as follows :--- (a) The Appeal Bench stated that the original plaintiffs had failed to prove that they had served the notice of demand (as required by section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947) and as such, there was no question of their being entitled to a decree for possession on the ground of the original defendant having been in arrears of rent. It may be mentioned that the appeal Court did come to the conclusion that there was arrears of rent and the original defendant was bound and liable to pay the same to the plaintiffs but it took the view that the ground of arrears of rent as a ground in eviction was not available to the original plaintiffs as they had failed to comply with the requirements of the law with regard to the service of notice of demand as required under section 12(2) of the Rent Act. (b) The Appeal Bench held that the original plaintiffs had failed to prove that the suit premises had not been used without reasonable cause for the purpose for which they were let out for a continuous period of six months immediately preceding the suit (in terms of section 13(1)(k) of the Rent Act.). (c) The Appeal Bench has also held that the suit was bad for non-joinder of all the heirs and legal representatives of the deceased Raisi Mistry, the original tenant, as party defendants (this last mentioned point has been mentioned last as in the light of the discussions on the first two points and the findings thereon, the last one becomes almost academic). 7. On the question of service of notice under section 12(2), it is the case of the petitioners that the original plaintiffs had served the notice dated 29th September, 1970 upon the defendant by sending the same at the address of the suit premises by Registered Post Acknowledgement Due, also sending a copy thereof under certificate of posting and by affixing a third copy thereof on a conspicuous portion of the suit premises and that so far as the notice sent by the Registered Post A.D. was concerned, the same had come back with the postal remarks “addressee out of India”, “left”, “not found” and “left at Vile Parle (East)”. With regard to the copy of the notice sent under certificate of posting, the original plaintiffs claim that it had not come back and must be presumed to have been received by the addressee thereof. With regard to the copy of the notice sent under certificate of posting, the original plaintiffs claim that it had not come back and must be presumed to have been received by the addressee thereof. As mentioned earlier, the respondent in his written statement had stated that the defendant or the heirs and legal representatives of the late Raisi Mistry had not received any notice dated 29th September, 1970 nor had a copy thereof been received under certificate of posting or pasted on any portion of the suit premises. The respondent had pointed out that he was residing in a building adjoining the suit premises and that the original plaintiffs who knew the same deliberately chose not to serve the alleged notice upon the defendant personally with ulterior motives. The respondent in his written statement also referred to certain repair works carried out by the late Raisi Mistry to the property of the deceased Shamrao Mahajan with whom he had been on friendly terms and also referred to certain ornaments having been made by Raisi Mistry for Shamrao and the amount in respect of the repairs remaining due and payable. All these indicate, according to the respondent, that although the original plaintiffs knew that Raisi Mistry and after his death his sons (including the respondent) and others were residing in an adjoining building, they avoided serving any notice under section 12(2) at that address with mala fide intentions. It is convenient at this stage to refer to the relevant provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. In this behalf, section 12 of the said Act provides that “a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act”. Sub-section (2) thereof is as follows :--- “No suit for recovery of possession shall be instituted by a landlord against tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882”. This, in turn, takes me to the relevant portion for section 106 of the Transfer of Property Act. The second part of the said section, relevant for the present purpose is as follows :--- “Every notice under this section must be in writing, signed by or on behalf of the person giving it, and (either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such [Party), or to one of his family or servants, at his residence or (if such tender or delivery is not practicable) affixed to a conscious part of the property ". The whole purpose of the section 12(2) appears to be that a demand should be made from the tenant of the arrears of rent by a notice in writing which should be served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882 and sub-section (2) bars any suit for the recovery of possession unless such a notice in writing of the demand of the standard rent has been served in the manner provided in section 106 of the Transfer of Property Act. The whole purpose of making a provision for such notice is frustrated if notice or intimation does not reach the tenant and he is not fixed with knowledge thereof. Section 106 of the Transfer of Property Act indicates four modes of service--- (i) by post to the party, (ii) by tender or delivery personally to the party, (iii) by tender or delivery to one of his family or servants at his residence, and (iv) if such tender or delivery is not practicable, by fixing to a conspicuous part of the property. 8. So far as serving by registered post is concerned, admittedly, the packet has come back with the various postal remarks enumerated hereinabove. Mr. 8. So far as serving by registered post is concerned, admittedly, the packet has come back with the various postal remarks enumerated hereinabove. Mr. Damle then referred to the fact of the notice having been sent by ordinary post and having not been received back, placing reliance of the presumption that it must have been received by the addressee thereof; but Mr. Damle fairly conceded that this presumption was not an irrebutable presumption. Mr. Abhyankar in this context, invited my attention to the decision reported in (Meghji, Kanji Patel v. Kundanmal Chamanlal Mehtani)3, A.I.R. 1968 Bom. pg. 387 which underlines that the presumption in question was not irrebutable, clarifies that it is undoubtedly for the defendant to satisfy the Court that the letter was not tendered to him and goes on to say the on a statement on oath by the addressee that such letter was not tendered it him, the same stands rebutted. On the question of the manner of rebuttal, the said judgments states “But the defendant can only do so by making a statement on oath. This must usually remain uncontroverted, unless the postman, who tendered the letter to him, is summoned and makes a statement that he tendered the letter cover containing the summons to the defendant and after cross-examination, his evidence is believed. If the plaintiff does not summon the postman, the statement on oath of the defendant remains uncontroverted and, in such a case there is sufficient ground for setting aside the ex parte decree.” A reference is in the said judgement to the decision of the Chief Justice Chagla reported (Appabai Motibhai v. Laxmichand Zaverchand and Co.)4, A.I.R. 1954 Bom. 159 reaffirming the same principle. The respondent both in his written statement and in his evidence has in terms denied having received such notice through post or otherwise and the said denial remains uncontroverted. Mr. Damle's argument in this behalf, therefore, fails. This takes me to the other three modes of service--- (a) by tender or delivery personally to the respondent, (b) to one of his family or servants (at his residence) and if such tender or delivery is not practicable, (c) by affixing to a conspicuous part of the said property. Admittedly, (a) and (b) above has not been even attempted and (c) can arise only “if such tender or delivery is not practicable “. In this behalf, Mr. Admittedly, (a) and (b) above has not been even attempted and (c) can arise only “if such tender or delivery is not practicable “. In this behalf, Mr. Damle has placed reliance on a decision reported in (A.I.R. 1968 Calcutta at pg. .49)5. In paragraph 17 of the judgment the learned judge has pointed out as follows :--- "In my view principal modes of service of notice motioned in section 106, T.P. Act are two, either by sending by post or by tender or delivery to the party. Other two modes are alternatives to 2nd mode of tender or delivery , first of those alternatives i.e. 3rd mode, being vicarious tender or delivery but that must be at the residence of the party and second alternative, i.e. 4th , mode, being in substitution of 2nd and 3rd modes when none of these two modes are practicable. Understood that way, 2nd mode is independent alternative to first, while 3rd and 4th modes are alternatives to second, the 4th mode being available only when neither 2nd nor 3rd mode is practicable. It follows that when 1st mode is satisfied either by proof and /or presumption, none of the other modes are necessary or relevant; when 2nd mode is satisfied by proof of tender or delivery either by evidence or by presumption regarding delivery or tender by postman, neither 3rd nor 4th mode is necessary or relevant. If 2nd or 3rd mode appears to have been practicable but has not been availed, giver of the notice cannot avail of the 4th mode. Even when 4th mode can be availed, affixing must be nowhere else than at the property in the suit. Affixing even at the residence of the party is not sufficient, unless that residence is the property in suit”. This in fact reaffirms the position summarised hereinabove and basically it is difficult to get away from the following facts :- (a) Admittedly, Shamrao and late Raisi Mistry were on basically it terms; (b) as pointed out in the written statement itself, the respondent and his family reside in a building adjoining to the suit building; (c) transactions between the two families with regard to ornaments and repairs to the suit building have taken place; (d) it is the case of the original plaintiffs that the suit premises was not being used at all. In the light of the aforesaid facts, if the spirit underlying the provisions for notice under section 12(2) of the Rent Act was to be observed, it was only fair that a reasonable effort should have been made to ensure that the notice under section 12(2) is reached or is communicated to the defendant and that no such attempt having been made, it is difficult to attack the finding given against the original plaintiffs by the Appeal Bench. In fact, the Appeal Court has in paragraphs 8 and 11 of its judgement, noticed that fact of the defendant's residence being in the adjoining building to the suit premises, has noticed the fact that the plaintiffs themselves have their premises a bare 15 feet away from the suit premises, the fact that the defendant's mother who died in the year 1958 was visiting plaintiff's family on festival days and the defendant's father used to purchase ornaments from the plaintiff's father who was a jeweller and pointed out that the failure on the part of the original plaintiffs to serve the notice under section 12(2) at the residential address of the defendant which is next door particularly after receiving back the notice sent by Registered Post A.D. is far from satisfactory and justifies a finding that the original plaintiffs have failed to prove that they served the notice of demand upon the defendant as required by section 12(2). This finding cannot be said to be perverse or even non-acceptable and I accept the same as correct. 9. This finding cannot be said to be perverse or even non-acceptable and I accept the same as correct. 9. On the question of non-user of the suit premises, it is pertinent to point out that section 13(1)(k) of the Bombay Rents, Hotel and Lodging House Rates Control Act uses the following words :--- “that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately proceeding the date of the suit.” The Appeal Bench of the Court of Small Causes has in its judgment noticed that there was no documentary evidence of the contract of letting out and the purpose for which they were let out, that the original plaintiff No.1 who deposed in the suit personally did not know about the purpose of letting out if the suit premises, that admittedly, the premises were let out to the deceased Raisi Mistry, who was a building contractor, at the monthly rent of Rs. 17/- and it appears that the premises were let out for office-cum-godown purpose. Apart from the purpose for which the suit premises were let out not having established by the plaintiffs with regard to the non-user (which has to be for a continuous period of six months preceding filing of the suit), there has not been any material on record indicating the same except the argument that the absence of electricity and the connecting of mori to the drainage in the suit premises (it appears that the building was fitted with electric connections in or about the year 1955) are the only factors raised in the argument with regard to non-user. On the other hand, the Appeal Bench has pointed out that the absence of a mori in a place used for storage and it appears that the place is used for storage and for preservation and records etc. is not necessarily indicative of non-user. In fact, the Appeal Bench has gone on to notice the photographs of the suit premises and the fact that the suit premises appears to be quite clean and not such as has not been used for a large number of years. is not necessarily indicative of non-user. In fact, the Appeal Bench has gone on to notice the photographs of the suit premises and the fact that the suit premises appears to be quite clean and not such as has not been used for a large number of years. Various factors and evidence indicate that tint he evidence on behalf of the plaintiffs, it was not possible for them to deny that the suit premises were indeed used for preserving of record and, in any case, it could not be said that the suit premises had not been used for the purpose for which it was let for a continuous period of six months immediately preceding the filing for the suit. 10. I see no reason to interfere with the aforesaid finding, of the Appeal Bench of the Court of Small Causes. It fact, it is difficult to see how the Appeal Bench could have seen its way to permit a decree in eviction against the respondent to stand. It appears that the original tenant, the late Raisi Mistry, whose contractual tenancy incidentally had never been terminated, died leaving him as heirs and legal representatives two sons and a daughter, one of the two sons being the respondent herein. The other son by name Tulsi was alive at the time of filing of the suit and for 2 or 3 years thereafter passed away in the year 1973. That there can be little doubt that if the estate of the late tenant has to be sued, all the persons who are heirs and legal representatives of the late tenant who are likely to be affected by the passing of a decree, must be made parties. Mr. Damle has invited my attention to a few judgements with regard to bringing heirs and legal representatives on record in support of his argument that it is adequate if only one of the heirs is brought on record and the rest are not so brought. Mr. Mr. Damle has invited my attention to a few judgements with regard to bringing heirs and legal representatives on record in support of his argument that it is adequate if only one of the heirs is brought on record and the rest are not so brought. Mr. Damle referred to a decision reported in (Daya Ram v. Shyam Sundari)6, A.I.R. 1965 S.C. 1049 where it was inter alia stated that “where a plaintiff or an appellants after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant of respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, the impleaded legal representatives sufficiently represent the estate of the deceased and a decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record. In a case where the person brought on record is a legal representative it would be consonant with justice and principle that in the absence of fraud or collusion the bringing on record of such a legal representative is sufficient to prevent the suit or the appeal from abating”. This entire passage in para 11 of the judgement starts with the words “where a plaintiff or an appellants after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are”. In this case, although as indicated above, the parties are known to each other and have residences very close by each other, no attempt appears to have been made to find out the heirs and legal representative by even checking at the residence of the deceased original tenant if they were not already known to the original plaintiffs. In the afore-quoted judgment in paragraph 12, the Supreme Court has also stated “The decisions to which we have referred as well as certain others have laid down, and we consider this is also correct, that though the appeal has not abated, when once it is brought to the notice of the Court hearing the appeal that some of the legal representatives of the deceased respondent have not been brought on record, and the appellants is thus made aware of this default on his part, it would be his duty to bring these others on record, so that the appeal could be properly constituted. In other words, if the appellant should succeed in the appeal it would be necessary for him to bring on record these other representatives whom he has omitted to implead originally. The result of this would be that the appeal would have to be adjourned for the purpose of making the record complete by impleading these two legal representatives whom the appellants had omitted to bring on record in the first instance”. In the instant case, it is relevant to notice that the trial Court itself in paragraph 3 of its judgement inter alia stated while dealing with the defendant that 'He also contended that all legal heirs and legal representatives are not brought on record either of Shamrao Balaji Mahajan or of Shri Raisi Mistry and thus the suit in the present form is bad for non-joinder of necessary party. In fact, the Issue No. 2 framed by the trial Court also deals with non-joinder of necessary parties being all the heirs and legal representatives of Raisi Mistry and Paras 5 and 6 of the judgement also refer to this case. It appears that pending the suit, Tulsi passed away but his sister was also not impleaded. Mr. Damle also made a reference to the decision reported in A.I.R. 1966 S.C. pg. 792. I do not see how this case assists the petitioners. 11. In the light of the above, it does appear that the suit suffers from the defect of non-joinder. In the light of the fact, however, that I see no reason to interfere with the judgment under challenge in the present petition, the question of joinder of parties loses its significance. 12. In the circumstances, the petition fails and the same is dismissed. Rule discharged. in the circumstances of the case, there will be no order as to costs of the petition. Petition dismissed. -----