IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2180 OF 2009 Sri S.A.Munshi ...Petitioner V/s. Shree Tirthanker Co. ...Respondent ...... Mr.S.V.Oak for Petitioner. None for Respondent. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. MARCH 4, 2009. MARCH 4, 2009. MARCH 4, 2009. P.C. 1. Heard Counsel for the Petitioner. 2. In view of the concurrent finding of fact reached by the two Courts below, no interference in exercise of writ jurisdiction is warranted. 3. The argument of the Petitioner that the factum of service of notice has not been proved by the Plaintiff, clearly overlooks the opinion recorded by the two Courts below that the : 2 : Petitioner/tenant did not deny the factum of service as is stated in the Plaint, which amounted to admission of that fact. It was next contended that the Petitioner had sent the money order which was refused. However, what is overlooked is the fact that money order was sent not within one month from the date of service of the suit notice but much later. The fact that it was refused by the landlord will be of no avail. 4. It was then contended that the Court did not fix any specific date for depositing the arrears in Court. The argument clearly overlooks the opinion recorded by the Court below in this behalf. More so, it is well established position that the first date of hearing of the Suit in any case will have to be treated as the date of framing of issues. The Petitioner was obliged to deposit entire arrears along with interest at the rate of 9% thereon before the first date of hearing of the Suit. There is nothing on record that this obligation was discharged by the Petitioner. Hence, no interference is warranted in exercise of writ jurisdiction. Dismissed. : 3 : 5. At this stage, Counsel for the Petitioner submits that Petitioner be given two months protection so as to enable the Petitioner to file the declaratory Suit. The question of allowing the Petitioner to file declaratory suit does not arise. At best, the Petitioner may be free to question the correctness of this decision by way of appeal before the Apex Court, for which, the execution of decree is kept in abeyance for a period of four weeks from today. It is once again made clear that this indulgence is not to enable the Petitioner to file the declaratory suit as is suggested across the bar. A.M.KHANWILKAR, J.