Honble YADAV, J. — The instant revision has been filed against the order dated 63.1995 passed by learned Additional District Judge No.2, Jodhpur in C.A.O. No. 183/94 whereby the order dated 19.10.1994 passed by Additional Civil Judge (Junior Division) No.5, Jodhpur has been upheld. (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of the fact that non-petitioner moved an application u/s. 13(5) of Act No. 17 of 1950 on 2.3.1994 yet he has withdrawn the rent on 16.9.94 as well as on 3.10.1994.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). 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 eminently just and proper and does not require interference of this court under Sec. 115 CPC. According to Shri Vyas both the courts below have not committed jurisdictional error in distinguishing the facts of the case of Hukam Chand (supra) with the facts and circumstances of the present case. (14). I have given my thoughtful consideration to the rival contentions raised at the bar. According to Shri Vyas both the courts below have not committed jurisdictional error in distinguishing the facts of the case of Hukam Chand (supra) with the facts and circumstances of the present case. (14). I have given my thoughtful consideration to the rival contentions raised at the bar. A pointed question was asked to the learned counsel for the non-petitioner as to whether for getting a relief of striking off defence under Sec. 13(5) of Act No. 17 of 1950 an accrual of cause of action is a condition precedent and secondly as to whether such cause of action accrued in favour of a landlord is required to subsist on the date of passing of the order? It was further asked by this Court to Shri Vyas as to whether in the present case the cause of action accrued in favour of non-petitioner due to default of payment of provisionally determined rent month by month for striking off defence of revisionist as contemplated u/S. 13(5) of Act No. 17 of 1950 did exist on the date of passing of the order? (15). In a feeble voice the learned counsel for the non-petitioner Shri Vyas submitted that since an application u/S. 13(5) of the aforesaid Act was already moved on 2.3.94 by non-petitioner, therefore, withdrawal of amount by him on subsequent date i.e. 16.9.94 and 3.10.94 by means of which he has withdrawn not only the rent which was deposited within time, therefore, even if the cause of action did not exist on the date of the order both the courts below have not committed any jurisdictional error in striking off the defence of the revisionist tenant. (16). In support of his aforesaid argument the learned counsel for the non-petitioner has placed reliance on a revision rendered by the apex court in the case of P. Dasa Muni Reddy vs. P. Appa Rao reported in (2). (17). In my considered opinion for striking off a defence u/s. 13(5) of Act No. 17 of 1950 the cause of action for striking off defence which accrued in favour of landlord must exist on the date of the order. (17). In my considered opinion for striking off a defence u/s. 13(5) of Act No. 17 of 1950 the cause of action for striking off defence which accrued in favour of landlord must exist on the date of the order. Since in the instant case although a cause of action accrued for striking off a defence of the revisionist but since on the date of passing of the order the cause of action which has accrued in favour of the landlord has ceased to exist, therefore, both the courts below had committed manifest jurisdictional error in striking off the defence of the I revisionist. (18). It is true that for attracting the principle of waiver there are two essential elements which should be satisfied. Firstly, waiver should be voluntary ¦ and intentional, and secondly there should be two parties one waiving and the other getting benefit from such waiver. Here in the instant case this Court is called upon to verify as to whether withdrawal of the amount after moving application u/S. 13(5) of Act No. 17 of 1950 on 2.3.1994 by the non-petitioner was voluntary and intentional. (19). In my considered opinion the withdrawal of the amount by the landlord after moving application u/S. 13(5) of Act No. 17 of 1950 was voluntary and intentional. Irrespective of the fact that he has moved an application u/S. 13(5) on 2.3.1994 yet he voluntarily and intentionally withdrew the amount of monthly rent of default on subsequent dates i.e. 6.9.94 and 3.10.94. (20). Nothing has been brought to my notice that the aforesaid subsequent withdrawal by the non-petitioner was under influence of some mischief attributable to revisionist tenant or under his coercion. In absence of any such condition it must be held that withdrawal of the account by the landlord non-petitioner on 6.9.94 and 3.10.94 was voluntary and intentional. (21). In fact voluntary intention of the non-petitioner landlord is to be gathered from attending circumstances of the facts and circumstances of the present case. The facts and circumstances of the present case threws a flood of light that the subsequent withdrawal of amount of monthly rent of default by landlord non- petitioner was voluntary and intentional and an argument contrary to it is not acceptable. (22). From the above discussion it is evident that first ingredient of waiver is satisfied in the present case. The facts and circumstances of the present case threws a flood of light that the subsequent withdrawal of amount of monthly rent of default by landlord non- petitioner was voluntary and intentional and an argument contrary to it is not acceptable. (22). From the above discussion it is evident that first ingredient of waiver is satisfied in the present case. As regards second ingredient answer is not far to seek in as much as in the present case the landlord non-petitioner is one party who waived his claim for striking off defence of the tenant revisionist and it is tenant who would be entitled to get the benefit of waiver. My aforesaid view is buttressed with the decision rendered by the apex court in the case of P. Dasa Muni Reddy (supra). (23). Since the landlord non-petitioner voluntarily and intentionally withdrew the amount of monthly rent of default u/s. 13(5) striking off of defence hence both the courts below have committed jurisdictional error in holding that the cause of action for striking off defence which accrued in favour of the landlord non-petitioner continue to exist on the date of the order. (24). It is true that when the tenant-revisionist failed to deposit after provisional determination of rent u/S. 13(3) of the Act No. 17 of 1950 as contemplated u/S. 13(4) of the said Act a cause of action accrued in favour of the landlord non-petitioner to move an application u/S. 13(5) of the aforesaid Act. The landlord non-petitioner has every right to move an application u/S. 13(5) of Act No. 17 of 1950 on 2.3.94 as on that day there was a cause of action in his favour to get the defence of revisionist in an eviction suit to be struck off but since he has voluntarily and intentionally withdrawn the monthly rent of default on 16.9.94 and on 3.10.94, therefore, the cause of action which has accrued in his favour earlier ceased to exist after 3.10.94. Since on the date of order passed by learned trial court on 19.10.94 the cause of action for striking off defence of the tenant revisionist was not in existence hence the learned trial court has no jurisdiction to strike off the defence of the tenant-revisionist. The learned lower appellate court has failed to exercise its jurisdiction in upholding the illegal order passed by the learned trial court. (25). The learned lower appellate court has failed to exercise its jurisdiction in upholding the illegal order passed by the learned trial court. (25). A glance of the decision rendered by the learned Single Judge in the case of Hukam Chand (supra) leads towards an irresistible conclusion that in a suit for eviction the landlord can waive the benefit or advantage of getting the tenants defence strike off u/S. 13 (5) on account of default in payment of month by month rent by the defendant tenant on the due date during the pendency of the suit. The aforesaid law has firmly established the principle of waiver in case of landlord and tenant from the year 1972 which is apparent from the decision rendered in the case of Bundu vs. Hasmant reported in (3), and continued upto AIR 1986 Raj. 69 . Both the learned courts below have distinguished the fact of the case of Bundu (supra) on illusory basis which is not acceptable. (26). In view of the aforesaid facts and circumstances of the present case the application moved by the landlord tenant u/S. 13(5) of Act No. 17 of 1950 is barred by principle of waiver as well as on the ground that cause of action which accrued in favour of the plaintiff-landlord non-petitioner for striking off defence did not subsist on the date of the aforesaid orders passed by the learned trial court as well as learned appellate court, therefore, the orders passed by both the courts below are without jurisdiction and hereby set aside. (27). I am further of the opinion that if the orders impugned are allowed to stand it would occasion a failure of justice and irreparable injury to the revisionist. (28). As a result of the aforementioned discussion, the orders passed by both the courts below dated 6.3.1995 and 19.10.1994 are hereby set aside and the instant revision is allowed. (29). In the peculiar facts and circumstances of this case both the parties are directed to bear their own costs.