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Rajasthan High Court · body

2003 DIGILAW 1190 (RAJ)

Krishan Kumar "Sorabh Bharti" v. Paras Ram

2003-08-26

PRAKASH TATIA

body2003
JUDGMENT 1. - Following substantial questions of law were framed by this Court 1 while admitting this Second Appeal on 18.12.1990 : (1) Whether the order of the trial Court dated 4.7.1986 striking out the defence of the defendant-appellant and judgment of the appellate Court dated 6.2.1987 could be challenged in the first appeal against the judgment decreeing the suit and now in the second appeal? (2) Whether the trial Court was justified in striking out the defence and the appellate Court to confirm it? (3) Whether the amount of rent of the months of June and July, 1982 was withdrawn by the plaintiff-respondent? If so, whether it amounted waiver of the default? 2. Brief facts of the case are that the plaintiff-respondent filed a suit for eviction against the defendant-appellant-tenant on the grounds of default in payment of rent and the personal bona fide necessity of the plaintiff. The trial Court determined the rent under section 13(3) of the Rajasthan Premises (Control of 15 Rent & Eviction) Act, 1950 by order dated 8.5.1981 and directed appellant-defendant to deposit the determined rent amount of Rs. 1,695.40 and pay monthly rent in future at the rate of Rs. 165/- per month, month by month, to the plaintiff or deposit the rent in Court. 3. When plaintiff found that defendant committed default in payment of 20 of the months, June and July, 1982, by not depositing the rent within the period, within which the defendant was required to deposit the rent as per the mandatory provision of Section 13(4) of the Act of 1950, the plaintiff-respondent submitted an application on 8.4.1985 under section 13(5) of the Act of 1950 seeking striking out of the defence of the defendant-appellant against eviction. The defendant in reply to application Ws. 13(5) submitted, that with the intervention of the plaintiff's advocate, dispute was settled between the plaintiff and the defendant and the plaintiff assured the defendant that he will withdraw the suit and the plaintiff accepted the rent of February, March, April and May months of 1982 by cheque from the defendant. The defendant believed on the assurance of the plaintiff that the plaintiff will in future also accept the rent from the defendant but the plaintiff did not accept the rent of the months of June and July, 1982 from the defendant. The defendant believed on the assurance of the plaintiff that the plaintiff will in future also accept the rent from the defendant but the plaintiff did not accept the rent of the months of June and July, 1982 from the defendant. According to the defendant because of the sharp practise of the plaintiff, defendant could not deposit the rent of the months June and July but same has been deposited by the defendant in Court on 35 8.9.1982. The defendant, in the reply, prayed that delay in depositing rent for the months of June and July, 1982 may be condoned. 4. The trial Court, after hearing arguments of the parties, by order dated 4.7.1986, held that the delay in payment of rent cannot be condoned and ordered striking out the defence of the defendant against eviction. The appellant-defendant preferred appeal against this order dated 4.7.1986 but the appeal of the appellant was also dismissed by the appellate Court by order dated 6.2.1987. Therefore, the order of the striking out the defendant's defence became final. 5. The Trial Court ultimately, after recording evidence of the parties, decreed the suit of the plaintiff on 15.12.1987 on both the grounds, namely, default in payment of rent as well as on the ground of personal necessity of the plaintiff. The appellant-defendant preferred regular first appeal against the above judgment and decree of the trial Court dated 15.12.1987. The appellate Court reversed the finding of the trial Court on the issue No. 3(a) & 3(b) which are with respect to personal necessity of the plaintiff and comparative hardship of the plaintiff and defendant in case of passing of decree but upheld the decree of eviction against the appellant-defendant on the ground of default in payment of rent only. 6. The appellant in these circumstances preferred this second appeal to against the judgment and decree of the trial Court dated 15.12.1987 which was confirmed by the appellate Court by judgment and decree dated 3.12.1990 only on the ground of default in payment of rent. The respondent-plaintiff filed the cross-objection under Order 41, Rule 22 CPC against the findings recorded by the first appellate Court on issue No. 3(a) & (b) which 15 are relating to the personal necessity of the plaintiff. 7. The respondent-plaintiff filed the cross-objection under Order 41, Rule 22 CPC against the findings recorded by the first appellate Court on issue No. 3(a) & (b) which 15 are relating to the personal necessity of the plaintiff. 7. Though three substantial questions of law were framed by this Court while admitting this second appeal, but after hearing arguments of both the parties at length, I found that it will be just and proper to decide substantial questions of law No. 2 & 3 first which go to the root of the matter and if decided in favour of the plaintiff-respondent and against the defendant-appellant, there will be no need to decide the substantial question of law No. 1. 8. According to the learned counsel for the appellant it is clear from the facts of the case that the plaintiff submitted application for striking out the defence of the defendant on 8.4.1985 on the basis of the defaults which were committed about three years ago that too, after withdrawing the rent of the default period, therefore, according to the learned counsel for the appellant, even if any default was committed by the defendant in payment of rent then the plaintiff has waived the default of the defendant by his conduct. Learned counsel for the appellant relies upon the judgments of this Court delivered in the cases Bundu v. Smt. Hasmat, 1972 WLN Part 1 page 19 , Kewal v. Shesh Mal, 1981 WLN Page 45 , Jagannath v. Janiram, 1981 WLN page 379 unreported judgment in the case of Kesholal v. Chandra Bai, S.B. Civil Second Appeal No. 101/86 decided on 29.9.1988 , Hukam Chand v. Madan Lal, AIR 1986 Raj. page 69 , and the recent judgment of this Court delivered in case of Dhan Raj v. Brijesh Kumar, reported in 2002(2) CDR 1927 (Raj.) . In addition to above, the learned counsel for the appellant relied upon the Division Bench judgment of this Court delivered in the case of Shree Ram v. Hua Bai & Ors. reported in ILR (34) 1984 page 51 . According to learned counsel for the appellant, in all above cases, the withdrawal of rent by the landlord even during pendency of the suit for recovery of possession of the premises was accepted as "waiver" of right of the landlord to raise issue of striking out the defence of the tenant against eviction. According to learned counsel for the appellant, in all above cases, the withdrawal of rent by the landlord even during pendency of the suit for recovery of possession of the premises was accepted as "waiver" of right of the landlord to raise issue of striking out the defence of the tenant against eviction. According to the learned counsel for the appellant the facts of this case clearly prove that the plaintiff had voluntarily withdrawn the rent of the default period of the June and July, 1982 and after almost about three years, submitted the application for striking out of the defence of the defendant. This fact itself is sufficient to hold that the plaintiff-respondent waived his right to get the defence of the defendant struck off. 9. Learned counsel for the respondent-landlord vehemently submitted that it is clear from the sub-section (3) of Section 13 of the Act of 1950 that duty is cast upon the Court to determine the arrears of rent and the defendant tenant is under legal obligation to deposit or pay the determined rent as well as future rent within the time provided in sub-section (3) & (4) of Section 13 of the Act of 1950. if he wants to avoid risk of striking out of his defence against eviction from the suit premises under sub-section (5) of Section 13 of the Act of 1950. It is also submitted that the duty to strike out the defence of the defendant-tenant in case of non-compliance of the provisions of sub-section (3) & (4) is also statutory duty of the Court and it is not dependent upon the moving of application by the landlord. When the defendant is under statutory obligation to deposit the rent within time and when he fails in depositing the rent, consequence of losing his right to contest the suit must follow. Subsequent deposit of the rent of the default period in Court or payment to the landlord or withdrawal of the rent by the landlord which was late deposited in the Court by tenant, cannot save the defaulting tenant from order of striking of his defence under section 13(5) of the Act of 1950. Subsequent deposit of the rent of the default period in Court or payment to the landlord or withdrawal of the rent by the landlord which was late deposited in the Court by tenant, cannot save the defaulting tenant from order of striking of his defence under section 13(5) of the Act of 1950. It is also submitted that there cannot be any reason for depriving the landlord from rent of the premises during pendency of the suit for eviction against the tenant for seeking an order under section 13(5) of the Act of 1950. It is also submitted that continuation of the suit for eviction on the ground of default by the landlord plaintiff itself is a sufficient indication from the landlord about his intention of not condoning default of the tenant and more than sufficient indication that the landlord is still seeking the relief of eviction on the ground of default against the tenant. 10. Learned counsel for the respondent further submitted that the plea of waiver has been raised for the first time by the appellant-defendant in this second appeal which cannot be entertained because the waiver is a pure question of fact for which there must be factual foundation and without which the plea based on waiver cannot be raised. Even in appeal against order of striking out defence of the defendant-tenant, "waiver" was not the ground by the appellant in the appeal, therefore, neither the trial Court nor the appellate Court, while deciding application under section 13(5), were required to even e)amine the question of alleged plea of waiver which is now raised by the appellant. In fact, the appellant is estopped from raising plea of waiver against the respondent. The order of striking out defence because final with the dismissal of the first appeal filed by the defendant-appellant. According to the learned counsel for the respondent waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights. According to the learned counsel for the respondent waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights. Learned counsel for the respondents relies upon the judgment of the Supreme Court delivered in the case of Associated Hotels of India Limited v. S.B. Sardar Singh reported in AIR 1968 SC 933 and the judgment of the Supreme Court delivered in the case of Mangal Sen v. Kanchhid Mal reported in AIR 1981 SC 1726 . Learned counsel for the respondent further relied upon the judgment of the Supreme Court delivered in the case of M/s. Motilal Padampath Sugar Mills Co. Ltd. v. State of U.P. reported in AIR 1979 SC 621 . Learned counsel for the respondent further relied upon the judgments of this Court in the case of Hakam Singh v. Shenker reported in 1979 RLW 533 and in the case of Jamna Prasad v. Dhabali Makhanlal reported in RLW 1996(2) Raj. 680 wherein withdrawal of rent of the default periods were not treated as waiver of the right of the landlord of getting the order of striking out defence of the defendant-tenant. 11. Here it will be relevant to mention that there was controversy whether the word "shall" used in Section 13(4) of the Act of 1950 is mandatory or directory and whether Section 5 of the Limitation Act is applicable in the matter of default of depositing rent by tenant under section 13(4) of the Act of 1950 and the delay can be condoned by the Court by applying Section 5 of the Limitation Act but now the controversy is not res integra because of the authoritative pronouncement of the Hon'ble Supreme Court in the recent decision in case of 2003(1) WLC (SC) Civil 293 Nasurridin & Ors. v. Sita Ram Agarwal reported in 2003(1) DNJ (SC) 180 wherein the Apex Court held that word "shall" used in sub-section (4) of Section 13 made the provision mandatory and the power of Court has been limited to the extent that it can extend time for depositing the rent not exceeding three months in the matter of deposit of arrears of rent and so far as deposit of monthly rent is concerned, that can be extended up to 15 days only. It has been held that the Court can condone the default only when the statute confers such a power on the Court and not otherwise and, therefore, the delay in depositing the rent cannot be condoned by giving benefit under section 5 of the Indian Limitation Act. 12. It is also submitted by the learned counsel for the respondent that Section 19-D of the Act of 1950 also provides that acceptance of rent of default period will amount to waiver of default by the landlord only in case when no proceedings for recovery of possession is pending in the Court. Harmonious construction of Section 13(3), (4) & (5), if r/w Section 19-D of the Act of 1950 can only be, the tenant to pay the rent to the landlord and landlord should not be deprived of the rent on any count during pendency of the suit for eviction against the tenant. Therefore, it clearly suggests that in case any proceedings for recovery of possession against the tenant are pending then acceptance of rent by the landlord during pendency of proceedings for recovery of possession cannot amount to waiver of the default. If Section 19-D is interpreted otherwise, then it will result into holding that in either case where proceeding for recovery for possession of the premises is pending or not, acceptance of rent will operate as waiver of such default then there was no necessity for even enacting the Section 19-D as enacted. It is also submitted that in pursuance of the order of the Court, rent is deposited in Court by the tenant and before depositing the rent in Court by the tenant neither any notice is required to be given to the landlord nor landlord is required to be heard, therefore, landlord cannot know whether the defendant has deposited the rent in time or not? The landlord can get the knowledge of the dates of deposit of rent after much efforts and some times even it is difficult to get the exact dates on which the rent was deposited for particular month. Therefore, in the circumstances in which the rent is withdrawn by the plaintiff cannot amount to conscious relinquishment of his right, of getting the order of striking out defence of the defendant-tenant. 13. The argument advanced by the learned counsel for the respondent is two-fold. One is that the landlord cannot be deprived of rent because of the pendency of the litigation for eviction of the tenant from the property in dispute. Second is that if tenant wants to contest the suit for eviction on the ground of default then first he is to make payment of not only all the arrears of rent but he is further required to make payment of the rent during pendency of the suit that too, month by month. So far as this contention of the learned counsel for the respondent is concerned there is no dispute. It is also not in dispute that in case the default if committed by the tenant in payment of rent after determination of the rent by the Court then tenant's defence against eviction can be struck out by the order of the Court. Now after the decision of the Hon'ble Apex Court in the case of Nasurridin & Ors. v. Site Ram Agarwal (supra), the Court can extend period for deposit of determined rent up to the period of three months only and for deposit of rent month by month during pendency of the suit up to 15 days only. Here in this case, admittedly, the rent of the months of May and June, 1982 was deposited in the month of September 1982 which is beyond 15 days up to which the Court could have extended the time for deposit of the rent. In the circumstance, it is clear that the defendant-appellant was guilty of committing default in payment of rent for the months of May & June, 1982. In the circumstance, it is clear that the defendant-appellant was guilty of committing default in payment of rent for the months of May & June, 1982. It appears, in he facts and circumstances of this case that learned counsel for the appellant confined his argument only to the extent that though there is late payment of the rent by the defendant-appellant and thereby he has committed default and Court is competent to pass the order of striking out defence of the tenant appellant under section 13(5) of the Act of 1950 but according to the counsel for the appellant, the landlord can waive the default of the tenant. According to learned counsel for the appellant the waiver may be expressed or implied. More emphasis in the facts of this case is on implied waiver of the default of the tenant by the landlord. The basis is that the landlord had withdrawn the rent from the Court, of the default period, without any protest and submitted application for striking out defence after three years thereof. According to appellant these facts are sufficient to hold that the landlord has waived his right, which accrued to him due to the default committed by the tenant. According to counsel for the appellant, this Court in various judgments referred above, by the learned counsel for the appellant, held that acceptance of rent of default period by the landlord even during pendency of the suit for eviction against the tenant amounts to waiver of right of the landlord of getting order from the Court of striking out defence of the tenant. In the light of the submissions, only point for determination is, whether the tenant has committed default or not but point for consideration is whether the landlord waived the default of the tenant? 14. In view of the above facts and the legal grounds raised by both the learned counsels, first of all it is required to be examined, whether the plea of waiver can be set up as defence against the order of striking out defence against eviction of the tenant which may be passed in case of default committed in payment of rent by the tenant which he is required to deposit as per the statutory provisions of law as given in sub-section (4) & (5) of Section 13 of the Act of 1950. Large number of reasons have been given by the learned counsel for the respondent that there cannot be any justification to deprive the landlord from the rent of the premises for taking benefit of his statutory right. Even this is not only a question of taking away of the right of the landlord of the benefit which accrues to him due to the natural consequences of non-compliance of statutory obligation by the defendant- tenant but this plea will debar the Court from passing the order under section 13(5) of the Act of 1950. It is also submitted that requirement of law and intention behind the provisions of sub-secs. (3), (4) & (5) of Section 13 of the Act of 1950 clearly indicates that every care has been taken by the legislation that landlord 45 should not be deprived of the rent during pendency of the suit. For this reason only it is provided in the Act of 1950 that before proceeding against the tenant directing him to deposit not only arrears of rent as determined by the Court but also shall pay or deposit rent in future till pendency of the suit me with by month within the period given under the statutory provisions of Sub-section (5) of Section 13 of the Act of 1950 makes the tenant liable to lose all its defences against the default. therefore, due respect is required to be oven to the statutory provisions as well as to intention for enacting the above provisions of law which secures the payment of the rent by the tenant during pendency of the suit. Therefore, mere withdrawal of rent by the tenant (sic.) cannot amount, a waiver of his right which is flowing from the statutory provisions of law. It is also submitted that in none of the judgments which were relied upon by the learned counsel for the appellant, these aspects were considered. In addition to above, prosecuting of the suit for eviction on the ground of default in payment of rent and its continuation before and after the default committed by the defendant itself is sufficient protest of the plaintiff landlord against any plea of waiver of his right for getting the order of striking out defence of the tenant, was also not considered in any of the judgments. 15. 15. Though very many grounds have been raised by the learned counsel for the respondent in support of the plea that there cannot be a waiver of any right of the plaintiff upon withdrawing the rent during pendency of the suit but in view of the various judgments of this Court referred above and particularly Division Bench judgment of this Court. Single Bench of this Court cannot entertain all these pleas because of the reason that the Division Bench of this Court in the case of Shree Ram v. Hua Bai & Ors. (supra) even after considering Section 19-D of the Act of 1950, held that benefit accruing to the landlord for non-compliance with Section 13(4) cannot be waived is not correct law and the Division Bench overruled the judgments of Single Benches of this Court and held that landlord can waive advantage of law which is solely for his benefit as it does not infringe any public policy. Therefore, only on this ground alone the contention of the learned counsel for the respondent that the landlord cannot waive the right under section 13(4) of the Act of 1950 is rejected. 16. Now the question arises whether mere acceptance of rent by the landlord of the default period during the pendency of the suit in all cases amounts to waiver of the right of the landlord? According to the learned counsel for the appellant, in above referred cases, this Court held, acceptance of the rent or withdrawal of the rent of default period by the landlord waived the default committed by the defendant-tenant. It is also submitted that even if "waiver" is question of fact then inference from the fact available on record is pure question of law and in this case the intention of the landlord is clear because of the reason that for the default period of June and July, 1982, the landlord-respondent had withdrawn the rent from the Court immediately thereafter and did not choose to file any application under section 13(5) of the Act of 1950 for about almost three years. 17. 17. It will be relevant to mention here that in all above cases relied upon by the learned counsel for the appellant, the Court held that since the plaintiff-landlord has withdrawn the rent of default period, therefore, he waived his right for getting order under sub-section (5) of Section 13 but it appears from the facts of the above judgments that in those cases, it was not contested that even if legal right can be waived, the waiver depends upon facts of each 45 case and landlord in those cases did not raise any defence that if legal right can be waived, in their cases, question of waiver was not raised by the tenant or on facts, the landlord has not waived the default of the tenant, therefore, the court straightway held that since the landlord accepted the rent of the default period, therefore, he has waived his right to get the order of striking of the defence of the tenant. The question involved in this case, whether the acceptance of rent by the landlord in all cases amounts to waiver or not, was not involved in the above cases, therefore, the judgments relied upon by the learned counsel for the petitioner cannot be held holding proposition that withdrawal of the rent by the landlord during pendency of the eviction proceedings instituted by the landlord against the tenant itself is to be treated as landlord's waiver of the default of the tenant. 18. Hon'ble Supreme Court in M/s. Motilal Padampath Sugar Mills's case (supra) held that waiver is a question of fact and it must be properly pleaded and proved. No plea of waiver can be allowed to be raised unless it is pleaded and factual foundation for it is laid in the pleadings and the Division Bench of this Court in Shree Ram's case (supra) also held that question of waiver is required to be determined according to facts and circumstances of the case. The Division Bench in above case where the rent was accepted by the landlord himself and where the landlord himself gave receipt of rent of default period, still instead of straightway holding waiver of landlord's right, remanded the matter to the lower Court to decide the question whether the landlord waived his right which accrued to him because of non-compliance of the provisions of Section 13(4) of the Act of 1950. In view of the Division Bench decision, it is clear that mere acceptance of rent during the pendency of the suit by the landlord of the default period itself cannot be treated as automatic waiver of right of the plaintiff-landlord. 19. It is relevant to mention one more judgment of this Court delivered in the case of Chetan Das v. Annusuiya reported in 1995 DNJ (Raj.) 686 , wherein this Court, even in a case where plaintiff had withdrawn the rent of default period after submitting application for striking off defence of the tenant in the Court, still this Court held that the plaintiff has waived his right of seeking order of striking off the defence of the tenant from Court. In the above, judgment the learned Single Judge of this Court recorded finding of fact in para No. 19 which is as under : "In my considered opinion, the withdrawal of amount by the landlord after moving application under section 13(5) of the Act of 1950 was voluntary and intentional. Irrespective of the fact that he has moved an 30 application under section 13(5) on 2.4.1994 yet he voluntarily and intentionally withdrew the amount of monthly rent of default on subsequent dates, i.e. 6.9.1994 and 3.10.1994." 20. In the above judgment, learned Single Judge considered the judgment of the Hon'ble Supreme Court delivered in the case of P. Dasa Muni Reddy v. P. Appa Rao reported in 1974 UJ (SC) 640 . Hon'ble Apex Court in above judgment held as under : "Waiver is an intentional relinquishment of a known right of 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 breach of some conditions 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 some times partakes of the nature of an election. Waiver is consensual in nature. It implies a meeting of the minds. It is 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. Waiver some times partakes of the nature of an election. Waiver is consensual in nature. It implies a meeting of the minds. It is 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 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." (Emphasis supplied) 21. In view of not only the above judgment delivered in P. Dass Muni Reddy (supra), in view of the various judgments referred above, it is clear that waiver can be only when it is intentional, after understanding by the parties of, that by acting in particular manner or by receiving the "benefit" he may lose his existing right. The receipt of rent in ordinary course when suit for eviction is not pending may be a intentional act of the landlord that instead of taking benefit of getting decree for eviction because of the default committed by the tenant he is electing to waive his right for getting the order or decree from pile Court and is accepting the benefit of payment of rent by the landlord as at that time the landlord has two options, one, to seek decree from Court by filing suit for eviction or second, to condone the default of the tenant by accepting rent of default period and by accepting rent he may put an end to the very cause of action itself. The Section 19-D of the Act of 1950 is specific provision making it clear. The Section 19-D of the Act of 1950 is specific provision making it clear. But where the landlord has already exercised his option of not condoning the default of the tenant by filing suit for eviction on the ground of default and continuing to prosecute the suit for eviction on the ground of default then his intention of not condoning the default committed by the tenant, in payment of rent, is apparently and expressly clear and this is an express intention of the landlord that he has elected to get the decree or order on the basis of the default committed by the tenant. It is true that even after such election the landlord may condone the default of the tenant, which is his prerogative but the condonation of delay must be either express and if implied, must be clear and with clear intention to waive his right and mere acceptance of rent itself cannot be termed as taking "benefit" that too at the cost of loosing his right of getting declaration from Court, tenant as defaulter and valuable benefit of striking of defence of the tenant and consequential decree for eviction against the tenant. It cannot be presumed that the landlord will just be getting his legitimately due amount "only early" will relinquish all his above benefits. 22. Even when the Rent Control Act itself puts obligation upon the tenant to pay the rent to the landlord or deposit the rent in the Court so that landlord may withdraw the rent and when, without any overt act, in normal course, landlord accepts or withdraws the rent from the Court, it itself, without there being any evidence to show that the withdrawal was with intention to waive his legal right, it cannot be presumed by this unintentional act or act under an impression that since the Court has passed the order directing tenant to pay the rent to the landlord himself and he is accepting the rent in compliance of the order of the Court, by itself cannot be treated an expression of intention of the landlord that he has waived his legal right. Holding otherwise will be contrary to the law laid down by the Hon'ble Apex Court Judgments referred above, that the waiver must be intentional and conscious act of the parties and not an in-voluntary act. Holding otherwise will be contrary to the law laid down by the Hon'ble Apex Court Judgments referred above, that the waiver must be intentional and conscious act of the parties and not an in-voluntary act. Since in the 1 judgment of Chetan Das v. Annusuiya, 1995 DNJ (Raj.) 686 , the Court recorded the finding that act of the landlord was intentional, the judgment cannot be applied to the facts of this case where there is a clear contest on tie point of intention of the landlord to waive his right by withdrawing the rent. 23. Waiver of right of landlord respondent is a pure question of fact. In the facts of this case, the appellants cannot be permitted to even raise ground of waiver of the landlord's right of getting order of striking out defence which has already been passed by the trial Court and challenge to the order striking off defence of the tenant by trial Court dated 4.7.1986 has been upheld by the first appellate Court by order dated 6.12.1987 and the appellants cannot be permitted to seek remand of the case for determination of the question of withdrawal of the rent from the Court by the landlord constitutes waiver when such was not the request of the appellant when the trial Court as well as the appellate Court were seized with the matter of striking out defence of the appellant-tenant. 24. Apart from above legal hurdle there is no factual foundation laid down by the appellant-defendant tenant for the plea of waiver against the right of the plaintiff-respondent for getting benefit form the provision of Section 13(5) of the Act of 1950. In this case the facts available on record are that the defendant in reply to application Ws. 13(5) of the Act of 1950 took a specific plea that because of intervention of the advocate of the plaintiff, the dispute between the plaintiff and the defendant was settled and, therefore, the defendant-appellant did not deposit the rent under assumption that the 25 plaintiff will withdraw the suit and will also accept the rent in cash directly from the appellant-defendant-tenant. The defendant has taken a defence that plaintiff misled defendant and because of this reason the defendant could not deposit the rent in time. The defendant has taken a defence that plaintiff misled defendant and because of this reason the defendant could not deposit the rent in time. This is not a plea of abandonment of right of the plaintiff because even if this contention of the defendant is accepted then this 30 discloses the intention of the plaintiff to see that defendant commits default so that plaintiff may take benefit of the default and this conduct of the plaintiff indicates plaintiff's zeal and over enthusiasm for getting the benefit of default of the tenant rather than indicating any intention of relinquishing benefit of the default or any indication that landlord wants to waive his right which accrued to him under the provisions of Section 13(4) of the Act of 1950. The act of the landlord, of sharp practise, to mislead tenant resulting into nor-payment of the rent may be wrong and may make the landlord liable for serious consequences but still it cannot amount to waiver of the landlord's right of getting order of striking out defence of the tenant. 25. In this case, the plea taken by the defendant about the sharp practise of the landlord also appears to be wrong in view of the admitted document (Ex.9) which is a letter written by the tenant-defendant to the plaintiff-landlord dated 26.7.1982. This letter is written on inland letter and was sent from Jaipur by the defendant-tenant to the plaintiff-landlord at plaintiff's address at Udaipur, wherein the defendant mentioned that he will give, rent after coming (from Jaipur). This letter clearly shows that the defendant himself was knowing it well that he has to make the payment of the rent and he admitted that he will make the payment of the rent after coming from Jaipur. If dispute between the plaintiff and the defendant was settled before June, 1982 when why the defendant himself did not inform the Court either immediately or even after some time. If in fact matter was settled, then when plaintiff did not accept the rent the defendant instead of depositing rent after such long delay, could have moved application to inform the Court about compromise. The letter dated 27.6.1982 (Ex.9) has been suppressed by the defendant in his reply to the application under section 13(5) of the Act of 1950. It is further relevant to mention here that the trial Court determined the rent by order dated 14.5.1981. The letter dated 27.6.1982 (Ex.9) has been suppressed by the defendant in his reply to the application under section 13(5) of the Act of 1950. It is further relevant to mention here that the trial Court determined the rent by order dated 14.5.1981. This order appears to have been challenged by tiling appeal by the defendant and, therefore, the file of the trial Court was summoned by the appellate Court. It appears that appeal against the determination of rent remained pending till it was dismissed in default by the order of the appellate Court dated 22.7.1982. As per the order-sheet dated 27.8.1982, till then file from the appellate Court did not reach to the trial Court, therefore, next date before the trial Court was given is 15.12.1982. Therefore, it appears that appellant himself did not deposit the rent of the months of June and July, 1982 in time because of his own negligence and in the reply to the application under section 13(5) of the Act of 1950 took a plea of settlement between the plaintiff and the defendant with the intervention of the plaintiff's advocate. The plea of settlement taken in the reply is absolutely vague. The appellant did not mention at what point of time the matter was settled between the plaintiff and the defendant, what were the terms and Conditions of the settlement and why it was not complied with? If we look at the facts mentioned in the reply of the defendant-appellant then it appears that the defendant's case is that the settlement must have been arrived at between the plaintiff and the defendant, either in the month of February to April, 1982 because after this settlement only, according to the defendant, rent of the month of March to May, 1982 was accepted by the landlord from the tenant defendant by cheque. What happened from May, 1982 till 8.9.1982 has not been mentioned in the application. It is also not mentioned that why the defendant himself did not submit any application before the trial Court informing the Court about the settlement between the plaintiff and the defendant and permitted suit to continue not only till September, 1982 and deposited the rent of the month of June and July, 1982 without submitting any application for condonation of delay which has been filed only in reply to the application under section 13(5) of the Act of 1950. It appears from the totality of the facts that defendant himself, knowing well that he has committed default in payment of rent, took a chance that it may not come in the knowledge of the plaintiff, deposited the rent of default period, and now afterwards became more wise and taken the plea that the plaintiff had waived his right of seeking order from Court of striking of defendant's defence. The plea is only an after thought and there is no substance in saying that the plaintiff has waived his right. 26. The next question that remains for consideration is whether the trial Court was justified in striking out the defence and the appellate Court was justified in confirming it. As discussed above, the plea of the defendant that he did not deposit the rent because of the settlement between the plaintiff and the defendant has been found not true and in view of the judgment of the Hon'ble Supreme Court delivered in the case of Nasurridin & Ors. v. Sita Ram Agarwal reported in 2003(1) DNJ (SC) 180 when the provisions of Section 13(4) have been held to be mandatory then the Courts below have not committed any illegality in passing the consequential order of striking out the defence of the defendant-appellant-tenant. 27. In view of the above findings, it is held that the trial Court was justified in striking out the defence and the appellate Court was right in confirming the order of the trial Court striking out defence of the appellant-defendant-tenant and it is held that the withdrawal of rent by plaintiff-respondent in the facts of this case does riot amount to waiver of the default in payment of rent committed by the appellant-defendant-tenant. Questions Nos. 2 and 3 framed by this Court on 18.12.1990 are decided 5 accordingly and in view of the decision on issues No 2 & 3, the issue No. 1 does not survive.Consequently, the appeal of the appellant is dismissed. No order as to costs.Appeal Dismissed. *******