JUDGMENT : T.P. GARG, J. 1. This writ petition under Article 226 of the Constitution of India by Ram Swarup, tenant. is directed against the judgment dated 16.2.1983 (Annexure IX to this petition) rendered by 1st Additional District Judge, Banda, Respondent No. 1 in Civil Revision No. 12 of 1980 Keshav Dayal Saxena v. Ram Swarup and Anr whereby the suit of the Plaintiff-landlord, Respondent No. 2, for ejectment and recovery of rent, etc., was decreed with costs. 2. The facts in brief, shorn of details and necessary for the disposal of this case, lie in a narrow compass. On 19.3.1975, the Plaintiff Respondent No. 2 filed a suit for ejectment of the tenant Petitioner from the shop in dispute on the ground that the tenancy had been determined by a notice dated 18.1.1975 served on him on 20.1.75; that the shop in dispute was not governed by the provisions of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 'Act') as it was reconstructed in the year 1966 and assessed by the Municipal Board with effect from 1.4.1970 and that the tenant had sub-let a portion of the shop in dispute to one Salim. 3. The tenant (Petitioner) contested the suit and filed a written statement where it was denied that any portion of the shop had been sub-let as alleged. It was urged that the shop in dispute was an old construction and it was governed by the provisions of Act No. 13 of 1972 in the alternative. It was pleaded that in any event ten years' period having been completed on 31.3.1980, he was entitled to the benefit of Section 39 of the Act. The notice dated 18.1.1975 was alleged to be bad in law. 4. The suit of the Plaintiff was decreed on 21.5.1978 but the judgment and decree were set aside in Revision No. 14 of 1978 by the District Judge, Banda vide order dated 21.4.1979, and the case was remanded to the trial court. A finding was recorded in the said revision to the effect that opposite party No. 2 was not a subtenant of opposite party No. 1. Thus, the question of subletting alleged by the Plaintiff was negatived. It was not further agitated and, therefore, attained finality. 5. A finding was recorded in the said revision to the effect that opposite party No. 2 was not a subtenant of opposite party No. 1. Thus, the question of subletting alleged by the Plaintiff was negatived. It was not further agitated and, therefore, attained finality. 5. After remand, the suit of the Plaintiff was dismissed on the ground that the building in dispute falls within the ambit of Uttar Pradesh Act No. 13 of 1972; that the suit was, therefore, barred under the provisions of Section 20 of the Act; and that the rent for building in dispute had been deposited by the tenant opposite party No. 1. The suit was dismissed on 23.10.1980 (Annexure-8 to this petition). Feeling aggrieved, the Plaintiff filed a revision before the District Judge, Banda. 6. The revision was heard by 1st Additional District Judge, Banda, who, vide his judgment dated 16.2.1983 (Annexure-9 to this petition), allowed the same, set aside the judgment and decree of the court below and passed a decree for ejectment and recovery of rent @ Rs. 30 per month up to 19.2.1975 and damages for use and occupation at the same rate, thereafter. 7. Feeling aggrieved by the judgment and decree of the 1st Additional District Judge, Respondent No. 1, the tenant-Petitioner has filed the present writ petition. 8. Counter-affidavit has been exchanged and the learned Counsel for the parties have been heard. 9. Referring to para 3 of the plaint (Annexure-1 to this petition), it was argued on behalf of the Petitioner that the shop in dispute was constructed in the year 1966 as per the landlord himself although as per paras 3 and 8 of the written statement (Annexure-2 to this writ petition), it was not constructed in that year. As per the averments in the written statement, the Petitioner was a tenant in the shop in dispute for about twelve years and it was constructed prior to the said period and as such, the case is governed by the provisions of Uttar Pradesh Act No. XIII of 1972. Referring to para 8 of the written statement (Annexure-2 to this writ petition), it was further argued that the Plaintiff had served a notice upon the opposite party No. 1 (Petitioner of this case) dated 4.10.1972 seeking enhancement of the rent under the provisions of Section 5 of the Act whereby the tenant enhanced the rent from Rs. Referring to para 8 of the written statement (Annexure-2 to this writ petition), it was further argued that the Plaintiff had served a notice upon the opposite party No. 1 (Petitioner of this case) dated 4.10.1972 seeking enhancement of the rent under the provisions of Section 5 of the Act whereby the tenant enhanced the rent from Rs. 30 per month to Rs. 35 per month and as such, the Plaintiff having already waived his right, was now estopped from pleading otherwise. Reliance has been placed on the authority cited as Shri Lachoo Mal Vs. Shri Radhey Shyam, AIR 1971 SC 2213 . I have given my carefull consideration to the submissions made by the learned Counsel and gone through the facts of the case reported in the authority relied upon by him. in Lachoo Mai's case (supra), the Appellant was a tenant. The landlord wanted to demolish the house and construct a new building. The landlord and tenant entered into an agreement to the effect that the tenant would vacate the shop on the condition that after completion of the construction of the house, the tenant would resume the possession of the shop. The agreement further provided that the landlord would not be entitled to derive benefit from the Rent Control and Eviction Act. Section 1A of this Act provided that the buildings constructed after 1.1.1951 were exempted from the operation of the Act. The section said that nothing of the Act shall apply to any building or part of the building which was under erection or was constructed on or after 1.1.1951. The tenant resumed the possession of the shop after its construction. The tenant offered rent to the landlord. The landlord did not accept the same. The tenant, thereafter, deposited the rent. The landlord gave a notice to determine the tenancy. The trial court dismissed the suit holding that the tenant was entitled to the protection conferred by Section 3 of the Act. The District Judge took a contrary view and decreed the suit of the landlord. The High Court held that the landlord was entitled to rely on Section 1A of the Act which took away from the operation of the Act building constructed on or after 1.1.51. The District Judge took a contrary view and decreed the suit of the landlord. The High Court held that the landlord was entitled to rely on Section 1A of the Act which took away from the operation of the Act building constructed on or after 1.1.51. The question before the Hon'ble Supreme Court was whether it was open to the landlord to give up the benefit of provisions or waive the same by means of an agreement of the nature which was entered into between the Appellant and landlord. It was held by the Hon'ble Supreme Court in that case that every one has a right to waive and to agree to waive the advantage of a law or rule. Further that in case a particular owner did not wish to avail the benefit of Section 1A of the Act, there was no bar created by the Act in the way of his waiving or giving up or abandoning the advantage of the benefit contemplated by the Section. On that reasoning, the Hon'ble Supreme Court set aside the judgment of the High Court and restored the decree of the trial court dismissing the suit in that case. But then, Lachoo Mai's case (supra) has no application to the instant case which raises the question as to whether the Plaintiff has waived the Jurisdiction of the court to entertain the suit for eviction of the Defendant (Petitioner of this case). 10. In the authority cited as P. Dasa Muni Reddy Vs. P. Appa Rao, AIR 1974 SC 2089 , it has been held that abandonment of right is much more than mere waiver, acquiescence or laches. Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which, except for such waiver, the party would have enjoyed. Waiver can also be a voluntary surrender of a right. The doctrine of waiver has been applied in cases where landlords claimed forfeiture of lease or tenancy because of some condition in the contract of tenancy. The doctrine which the courts of law will recognise is a rule of Judicial policy that a person will not be allowed to take inconsistent position to gain advantage through the aid of courts. Waiver sometimes partakes of the nature of an election. Waiver is consensual in nature. It implies a meeting of the minds. It is a matter of mutual intention. Waiver sometimes partakes of the nature of an election. Waiver is consensual in nature. It implies a meeting of the minds. It is a matter of mutual intention. The doctrine does not depend on misrepresentation. Waiver actually requires two parties, one party waiving and another receiving the benefit of waiver. There can be waiver so intended by one party and so understood by the other. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It cannot be held that there has been a waiver of valuable rights where the circumstances show that what was done was involuntary. There can be no waiver of a non-existent right. Similarly, one cannot waive that which is not one's as a right at the time of waiver. Some mistake or misapprehension as to some facts which constitute the underlying assumption without which parties would not have made the contract may be sufficient to Justify the court in saying that there was no consent. Their Lordships further laid down that if the building did not fall within ambit of the Act, the mere fact that the landlord filed a petition would not disentitle him to any relief on the ground of res judicata or estoppel or waiver. 11. In this view of the matter, as one cannot confer Jurisdiction by consent, similarly one cannot by agreement waive exclusive jurisdiction of the court. Thus, the civil court and not the Rent Control Court possesses the jurisdiction over the building in question. 12. Moreover, it is to be determined independently as to when the building in question was constructed and its first assessment completed. It is undisputed that the first assessment of the building in question was completed on 1.4.1970. Not only it has been so pleaded by the Plaintiff but it has also been proved on the record that first assessment was completed on 1.4.1970. The Petitioner/tenant has not led any evidence in rebuttal. It was half-heartedly argued on behalf of the Petitioner that he did not get ample opportunity to lead evidence in rebuttal. But then, this argument has no merit at all. The plaint was filed on 19.3.1975. The written statement was filed on 24.3.1976. The Petitioner/tenant has not led any evidence in rebuttal. It was half-heartedly argued on behalf of the Petitioner that he did not get ample opportunity to lead evidence in rebuttal. But then, this argument has no merit at all. The plaint was filed on 19.3.1975. The written statement was filed on 24.3.1976. The replication was filed by the Plaintiff on 24.3.77, wherein it was specifically pleaded that the assessment was completed on 1.4.1970. Thereafter, the Defendant/Petitioner sought an amendment in the written statement vide application dated 31.3.1980 and the amendment was incorporated on 26.4.1980 in this manner, there did exist a plea which was duly replied by the Defendant and parties were clearly aware of the plea about the date of the assessment. The Petitioner cannot, therefore, be now allowed to take the plea that he was not given ample opportunity to lead evidence in rebuttal. The Plaintiff/landlord produced on record an application given by him seeking permission to construct the shop in dispute. He also placed on record a site-plan approved by the Municipal Board. The extract of the Assessment Register was also placed on record. No evidence was produced by the tenant to rebut the aforesaid evidence of the Plaintiff/landlord, which clearly proves the date of assessment to be 1.4.1970. It was argued on behalf of the Petitioner that the court should take into consideration the facts as they exist on the date of decree and not on the date of institution of the action. Further, that 10 years' period since the completion of the construction having expired, the suit is liable to be dismissed on the ground of its being barred by Section 20 of the Act. in my opinion, the said plea is not tenable in view of the decision of a Division Bench of this Court in the case of Ram Prakash v. IIIrd Addl. District Judge, Agra and Ors. 1994 All LJ 860. It is thus immaterial that the suit or revision remains pending for a period of ten years. It would not make the provisions of the Act applicable to a building. 13. Another point urged before me is about the applicability of the Section 39 of the Act. But, then this point stands answered by the Hon'ble Supreme Court in the case reported as Bishan Chand Vs. It would not make the provisions of the Act applicable to a building. 13. Another point urged before me is about the applicability of the Section 39 of the Act. But, then this point stands answered by the Hon'ble Supreme Court in the case reported as Bishan Chand Vs. Vth Additional District Judge, Bulandshahr (Uttar Pradesh) and Another, AIR 1982 SC 1230 , wherein it has been held that in order to attract Section 39 of the Act, the suit must be pending on the date of commencement of the Act which is 15th of July, 1972. But in the instant case, the suit was filed on 19.3.75. Thus, the suit having been filed long after commencement of the Act, the provisions of Section 39 of the Act would not be attracted. 14. In view of the above discussions, there being no merit in this petition, the same is dismissed and the judgment and order dated 16.2.1983 passed by the Respondent No. 1 (Annexure-9 to the writ petition) is maintained. The Petitioner-tenant is given three months' time to vacate the shop in dispute and deliver the vacant possession to the landlord/Respondent No. 2. The parties will bear their own costs in this Court.