JUDGMENT 1. - The defendant-petitioner (tenant) has filed this revision under Section 115 C.P.C. against the judgment (order) of the Additional District Judge No. 1, Jodhpur dated July 20, 1978 by which he confirmed the order of the Additional Munsiff Magistrate No. 1, Jodhpur dated January 3, 1978. 2. The material facts are these : the plaintiff-non-petitioner (landlord) instituted a suit for eviction and arrears of rent against the defendant on December 1, 1972. The ejectment was sought on the grounds of default and reasonable and bonafide necessity. The defendant resisted the suit on various grounds. In the first written statement, which was filed on October 13, 1973 it was stated that the defendant has not committed any default in payment of rent and that the plaintiff did not require the shop in suit reasonably and bonafide for herself and her husband. It was also pleaded that the standard rent of the shop in suit could only be 15/- per month and as the plaintiff had been realising the rent from the defendant @ Rs. 75/- per month, the defendant is entitled to get the excess rent paid by him, adjusted towards the rent of the subsequent month. 3. The first date of the hearing, fixed in the suit, was February 28, 1973. On that day, the petitioner submitted an application under Section 13(5) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act'). It was prayed in that application that the rent of the shop may be determined @ Rs. 15/- per month. In that application, it was also mentioned that the rent is not due from August 1, 1971 but is due from January 1, 1972. The plaintiff opposed the application and filed her reply on April 7, 1973. It may be mentioned here that the plaintiff has claimed rent from August 1, 1971 to August 31, 1972 @ Rs. 75/- per month amounting to Rs. 975/-, and damages for use and occupation from September 1, 1972 to November 30, 1972 @ Rs. 75/- which comes to Rs. 225/-. Interest on the amount which has fallen in arrears, was claimed @ 6% p.a. amounting to Rs. 45/-. 4. It is not disputed that the defendant instituted a suit for fixation of standard rent on August 7, 1972. The suit was registered as Civil Original Suit No. 405 of 1972. 75/- which comes to Rs. 225/-. Interest on the amount which has fallen in arrears, was claimed @ 6% p.a. amounting to Rs. 45/-. 4. It is not disputed that the defendant instituted a suit for fixation of standard rent on August 7, 1972. The suit was registered as Civil Original Suit No. 405 of 1972. The defendant submitted his written statement on October 13, 1973. In the written statement it was stated that according to the defendant, the plaintiff has realised Rs. 6110/- on account of rent, though, legally she should have realised 1470/- only, and, therefore it was stated that the plaintiff has realised Rs. 4640/- in excess of the rent which she should have realised and this amount he is entitled to get adjusted towards the arrears of rent. It was prayed in the written statement that the standard rent @ Rs. 15/- p.m. may be fixed. On March 18, 1974, issues were framed by the trial Court. Issue No. 5, when translated into English reads as under:- "Whether the standard rent of the property in suit is not more than Rs. 15/- (per month is implied)". On July 30, 1975, after framing of this issues, the Civil Original Suit No. 405 of 1972, which was instituted by the defendant for the fixation of standard rent, was withdrawn. After the withdrawal of that suit, on behalf of the defendant on February 26, 1976, the learned counsel for the defendant stated before the Court that he does not want to press his application and, therefore, he stated that rent may not be determined. There is an endorsement in the order-sheet in the following words : determination Rent press The Rajasthan Premises (Control of Rent and Eviction (Amendment) Ordinance (No. XXVI of 1975) came into force from September 29, 1975, which was subsequently replaced by the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Act (No. XIV of 1976). The defendant did not avail of the provisions of Section 13-A of the Act. On January 14, 1977, an application under Section 13(6) (old) Section 13(5) (new) of the Act was moved on behalf of the plaintiff for striking out the defence of the defendant against eviction. The defendant resisted that application. The defendant did not avail of the provisions of Section 13-A of the Act. On January 14, 1977, an application under Section 13(6) (old) Section 13(5) (new) of the Act was moved on behalf of the plaintiff for striking out the defence of the defendant against eviction. The defendant resisted that application. It was stated in the reply that there was dispute about the rent due and the rate of rent and that plaintiff had already realised rent in excess of the rent payable @ Rs. 15/- p.m. It was, therefore, prayed that the application of the plaintiff for striking out the defence, may be dismissed. This reply was filed on March 2, 1977. The learned Munsiff by his order dated January 3, 1978, acting under Section 13(5) (new) of the Act, ordered that defence against eviction be struck out. The defendant-tenant went in appeal under Section 22 of the Act. The learned Additional District Judge No. 2, Jodhpur dismissed the appeal and held that order of defence against eviction is maintained under Section 13(6) (old) of the Act. Feeling aggrieved by the aforesaid order, the defendant-tenant has preferred this revision as aforesaid. 5. Mr. L.R. Mehta, learned counsel for the defendant has challenged the order of the learned Additional District Judge No. 1, dated 20, 1978 on the following grounds:- (1) that defence against the eviction could not be ordered to be struck out without determining the standard rent of the shop in suit; (2) that by means of the application under Section 13(5) (old), the defendant had raised a dispute as to the amount of rent payable by him, and as the Court did not determine the amount as required by Section 13(5) (old) of the Act defence could not be struck out; (3) that the plaintiff in the circumstances of this case, would be deemed to have waived the benefit conferred upon him by provisions of Section 13(6) (old)/Section 13(5) (new) of the Act inasmuch as the application for striking out the defence was filed as late as on January 14, 1977, even through, to his knowledge the defendant has stated in the Court on February 26, 1976 that he does not want to press his application for the determination of the rent; and. (4) that after the coming into force of Section 13(3) (new), the learned Additional Munsiff should have provisionally determined the amount required by it, and thereafter, should have made a direction under Section 13(4) (new) of the Act. If the defendant has committed any default in complying with the direction made under Section 13(4) (new), the Court could order the defence against eviction to be struck out. In other words Section 13(3) (new), 13(4) (new) and 13(5) (new) are retrospective in operation and they are applicable to the pending suits. As the lower appellate Court failed to apply the aforesaid provisions by not determining the arrears of rent and interest thereon payable by the tenant, no order striking out the defence under Section 13(5) (new) could be passed. Mr. H.C. Jain, supported the order under revision and urged that the dispute contemplated by Section 13(4) (old) should be bonafide one. In the reply, which was submitted to the application on April 7, 1973 under Section 13(4) the plaintiff has clearly stated that the application is mala fide. According to the learned counsel, there could not be bonafide dispute with respect to the rent payable for the period prior to the institution of the suit. In this connection, he drew my attention to the provisions contained in Section 6(5) (new) of the Act. He submitted that the application was withdrawn by the learned counsel for the defendant, and it meant that the defendant did not get the amount determined. He further contended that in the circumstances of the case, the question of waiving the benefit conferred on the plaintiff by the provisions of Section 13(5) (old) does not arise. The plaintiff has acquired the right in the failure of the defendant to deposit the rent as required by Section 13(4) (old), 4 and that right could not be taken away after coming into force of Sections 13(3) (new), 13(4) (new) and 13(5), new of the Act. According to the learned counsel, these provisions are prospective and do not apply to the pending suits.In these circumstances, the first question which arises determination is whether the lower appellate Court has exercised its jurisdiction illegally when it confirmed the order of the trial Court striking out defence against eviction. The suit was based on default in payment of rent under Section 13(1)(a) of the Act. The suit was based on default in payment of rent under Section 13(1)(a) of the Act. The defendant submitted as application under Section 13(5) (old) of the Act on February 27, 1973. In that application, he denied that rent from August 1, 1971 is due but asserted that it was due from January 1, 1972. The suit was instituted on December 1, 1972. In that application the defendant prayed that rent of the shop may be determined @ Rs. 15/- p.m. As stated above, this application was contested by the plaintiff by filing a reply dated April 7, 1973. In the order-sheet of April 26, 1976, amongst others, it is mentioned that the counsel for the plaintiff requested the Court that the defendant's application for the determination of the rent should be heard and thereupon, the learned counsel for the defendant stated before the Court that he does not want to press that application. He further stated that rent need not to be determined. rent determine Learned counsel, in his own handwriting, wrote in the margin of the order sheet " determination of rent press . It is clear that whatever dispute the defendant had raised, by means of the application under Section 13(6) (old), was not pressed by him before the trial Court. In these circumstances, the trial Court was not in a position to pass any order on the defendant's application under Section 13(5) (old) of the Act. It is true that the trial Court framed issue Nos. 1 and 5 arising out of the pleadings of the parties. Issue No. 1 relates to the default and issue No. 5 in regard to the fixation of the standard rent of the shop. I do not agree with the learned counsel for the defendant that defence against eviction could not be struck out without determining the standard rent that is without deciding issue no. 5 or without making any order under Section 13(5) (old). Section 13(5)(old) reads as under:- "(5) If in any suit referred to in sub-section (4) there is any dispute as to the amount of rent payable by the tenant, the Court shall determine, having regard to the provisions of this Act, the amount to be deposited or paid to the landlord by the tenant within fifteen days from the date of such order, in accordance with the provisions of Section (14)". The suit for ejectment was based on the ground set forth in clause (a) of sub-section (1) (old). According to Section 13(5) (old), if there is any dispute as to the amount of rent payable by the tenant any suit referred to in sub-section (4) of Section 13 of the Court having regard to the provisions of Section 13(5) (old) of the Act, is to determine the amount that is to be deposited or paid to the landlord by the tenant. The Court could grant 15 days time from the date the order for deposit or payment. Determination of the amount under Section 13(5) (old) was required to be made in accordance with the provisions of Section 13(4) (old). Section 13(6) (old) provides for consequences of failure to pay or deposit the amount of rent referred to in sub-section (4) of sub-section (5) of Section 13 (old). If a tenant fails to pay or deposit on the date fixed in the order or within the time specified therein, the Court has been empowered to order the defence against eviction to be struck out and to proceed with the hearing of the suit. Section 13(6) (old) was mandatory and the Court had no discretion but to strike out the defence and proceed with the hearing of the suit. As the learned counsel for the defendant stated before the Court that rent need not be determined, the dispute raised by the defendant under Section 13(5) (old) came to an end and the Court was not required to pass any order determining the amount to be deposited or paid to the landlord. 6. Mrs. Shevantibai Dattatrays Mane and others v. Vasant Gopal Deshmukh and others, 1972 Rent Control Reporter 898 and Chhogalal Jankilal v. Idol of Bhagwan Shri Satyanarayan, 1976 Rent Control Reporter 316, on which reliance was placed by the learned counsel for the petitioner, are clearly distinguishable and they are not applicable to the facts and circumstances of the case before me. In Mrs. In Mrs. Shevantibai's case (supra), it was held that the tenant can raise a dispute as to the standard rent even after the suit is filed against him for his eviction on the ground of non-payment of rent for more than six months by his written statement and that will be a dispute for the purpose of Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1957, and that for some reason or the other in such suit has not fixed the standard rent or permitted increases as mentioned in Section 12(3)(b) of the Act, or has not given any directions about the deposits of the rent on the basis of interim standard rent fixed by it under Section 11(4) of the Act, then the tenant cannot be penalised in any manner. It was further held that the tenant's plea about standard rent or permitted increases raised in the suit will be finally heard and decided by the Court, and if at the end of hearing of the suit the Court comes to the conclusion that on the basis of the standard rent and permitted increase fixed by it, the tenant is liable to pay certain amount as due, then the Court should specify the amount and direct the tenant to pay the same within a prescribed time. It was also observed that if the tenant fails to pay the amount then the Court will proceed to pass a decree for his eviction. in Chhogalal Jankilal's case (supra), the prosecution of law laid down as that the operation of sub-section (1) of Section 13 of the Madhya Pradesh Accommodation Control Act, 1961 is arrested when a dispute under sub-section (2) of Section 13 of the Act is raised by the defendant tenant in his written statement and it is not necessary that he should make an application investing attention of the Court to the specific dispute and asking the Court to fix provisional rent. 7. In the case before me, under Section 13(5) (old) the tenant raised the dispute by means of an application and thereafter, on his behalf learned counsel stated that determination of rent need not to be made. 7. In the case before me, under Section 13(5) (old) the tenant raised the dispute by means of an application and thereafter, on his behalf learned counsel stated that determination of rent need not to be made. The defendant did not move the Court under Section 13(a) (old) of the Act so as to enable it to calculate the total amount of arrears of rent due together with the interest at the rate of 6% per annum thereupon. The application was submitted under Section 13(5) on February 28, 1973, which he did not press and stated that he does not want any determination of the rent. Consequences for failure to deposit or pay any amount referred to in sub-section (4) (old) and sub-section (5) (old) of Section 13 were provided in sub-section (6) (old) of Section 13, that is that the Court has been empowered to strike out the defence against eviction. 8. The plaintiff withdrew Civil Original Suit No. 405 of 1972, which was instituted by him for fixation of standard rent on July 30, 1975 and thereupon, filed the amended written statement dated December 15, 1975 in the trial Court on December 20, 1975. By that time, Ordinance No. XXVI, which was replaced by the Rajasthan Premises (Control of Rent and Eviction (Amendment) Act No. XIV of 1976) had already come into force. Section 13-A thereof provided further opportunity to the tenant to pay or deposit the arrears of rent and interest in a pending suit or proceeding. He failed to avail of further opportunity provided under Section 13-A of the Act. 9. A perusal of the order of the appellate Court shows that the point of waiving the benefit conferred upon the plaintiff by the provisions of Section 13(6) (old) was not raised before it. No such ground was taken in the appeal, which was filed by the defendant under Section 22 of the Act. 10. The word 'waiver' means forbear to insist on or use, impliedly relinquish or fore go any right, claim plea etc. or to given up any claim. In other words a waiver implies the voluntary relinquishment of a known right or promise, express or implied, in fact to excuse performance. Waiver is essentially a question of fact. 10. The word 'waiver' means forbear to insist on or use, impliedly relinquish or fore go any right, claim plea etc. or to given up any claim. In other words a waiver implies the voluntary relinquishment of a known right or promise, express or implied, in fact to excuse performance. Waiver is essentially a question of fact. Whether the plaintiff has waived the benefit, which was available to him under Section 13(5) (old), is a question which can only be decided on the direct as well as circumstantial evidence, which the parties may bring on record. On this ground also the contention of the learned counsel for the petitioner that the plaintiff should be deemed to have waived the benefit is, therefore, rejected. 11. It is not necessary for me to examine the contention of the learned counsel for the petitioner that Section 13(3) (new), 13 (4) (new) Section 15(5) (new) are retrospective and against these provisions are applicable to the suit, which is pending against the defendant. I may state that Kasliwal, J., in M/s Carona Sahu Co. Ltd. v. Vinod Kumar Goyal, 1979(1) Rent Control Reporter 44 : AIR 1979 Rajasthan 1, has taken the view that the provisions of sub-sections (3), (4) and (5) of Section 13 of the Act as amended by Ordinance No. XXVI of 1975 which was replaced by Amending Act No. XIV of 1976 only apply to a suit filed on or after coming into force of the Amending Ordinance. 12. As I have come to the conclusion that under Section 13(5) (old)/13(6) (new), the defence of the petitioner was rightly struck out as whatever dispute he raised in the application under Section 13(5) (old), came to an end when his counsel stated before the Court on February 26, 1976 that rent need be determined. 13. Learned counsel for the parties drew my attention to K.S. Shafeeq v. Mohammadi Begum, AIR 1964 Andhra Pradesh 398, Lalchand v. Ganpatlal, 1961 FLW 458 and Bhanwarilal v. Bal Kishan, 1972 RLW 535, in support of their arguments on the question whether the aforesaid sub-sections of Section 13 are prospective or retrospective. It is not necessary to examine them in view of the aforesaid conclusion to which I have arrived at. 14. No other point survives for any consideration in this revision. 15. It is not necessary to examine them in view of the aforesaid conclusion to which I have arrived at. 14. No other point survives for any consideration in this revision. 15. The lower appellate Court, therefore, rightly confirmed the order of the trial Court striking out the defence against eviction, and in doing so, it has committed any breach of the provisions of the Act. As the lower appellate Court has not exercised its jurisdiction illegally or with material irregularity, the order passed by it calls for no interference by this Court. 16. The result is that this revision application has no force and it is accordingly dismissed with costs.Revision dismissed. *******