(2). In the present revision in hand two short question are involved, firstly, as to whether defence against eviction of the defendant-revisionist has been rightly struck off the impugned order passed by the learned courts below and secondly as to whether in the instant case principle of waiver is applicable?

(3). Although the instant revision is listed before the Court for admission but with the consent of the learned counsel for the parties the instant revision is being finally decided on merits.

(4). The brief facts which are necessary to be noticed for disposal of the instant revision are that the non-petitioner filed a suit for arrears of rent and ejectment against the revisionist on the ground of bonafide necessity and denial of title as well as default in payment of rent.

(5). The learned trial court provisionally determined the rent on 20.11.1982. The revisionist deposited the provisionally determined rent and also monthly rent. ,

(6). The non-petitioner filed an application u/s. 13(5) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (in short the Act No.17 of 1950) alleging that in the year 1984 only Rs. 690/- have been deposited. According to the non- petitioner remaining amount has neither been paid nor deposited. Therefore, according to him defence of revisionist tenant against eviction be struck off.

(7). Against the said application moved u/S. 13(5) of Act No. 17 of 1950 a detailed reply was filed by revisionist and it was stated therein that the application u/S. 13(5) of the aforesaid Act is barred by principle of waiver by conduct hence it is not maintainable. It was made clear in the objection that irrespective of the fact that non-petitioner moved an application u/s. 13(5) of Act No. 17 of 1950 on 2.3.1994 yet he has withdrawn the rent on 16.9.94 as well as on 3.10.1994. Thus according to the revisionist after withdrawal of the amount his defence cannot be struck off as contemplated u/S. 13 (5) of the aforesaid Act.

(8). The learned trial court heard the arguments of learned counsel for the parties and after hearing it has passed an order striking off the defence of the revisionist on 19.10.94.

(9). Aggrieved against the order dated 19.10.94 the revisionist filed an appeal before the learned District Judge, Jodhpur, who transferred it for disposal in accordance with law to the court of learned Additional District Judge No.2, Jodhpur who has dismissed the appeal on 6.3.1995.

(10). Aggrieved against the order passed by both the learned courts below the revisionist has filed the instant revision before this Court.

(11). I have heard the learned counsel for the revisionist Shri G.R. Singhvi and Shri MS Vyas appearing on behalf of the non- petitioner at length and with the assistance of the learned counsel for the parties I have gone through the orders impugned passed by learned courts below.

(12). The learned counsel for the revisionist strenuously urged before me that the learned courts below have committed jurisdictional error in distinguishing the decision rendered by this Court in the case Hukam Chand vs. Madanlal reported in (1). According to learned counsel Shri Singhvi there is hardly any distinction in the present case as well as the ratio decidendi laid down by the learned Single Judge of this Court in the case of Hukam Chand (supra). According to him if the orders impugned passed by both the Courts below are allowed to stand it would occasion a failure of justice and irreparable injury to the revisionist.

(13). The learned counsel for the non-petitioner Shri Vyas has refuted the aforesaid argument advanced on behalf of the revisionist. He submitted before me that the orders passed by both the learned courts below are em