JUDGMENT : Atul Kumar Jain, J. By order dated 26.8.2002 Civil Judge (S.D.), Sambhar Lake passed an order under Section 13(5) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short the Act of 1950) in Civil Eviction Case No. 87/95 titled as Malkhu Devi v. Ramgopal to the effect that delay in payment of rent for the period of April-May 1991and May-June 1991 as well as delay in deposit of rent of the period of 22.5.1993 to 5.9.1994 by the tenant deserves to be condoned and was accordingly condoned by that court. 2. The said order dated 26.8.2002 was challenged by the land-lord in the court of Additional District Judge, Sambhar Lake in Civil Misc. Appeal No.15/2002 which was decided by that court on 8.9.2006 and the order dated 26.8.2002 was upheld by that court also. The appellate court followed Full Bench decision of Rajasthan High Court in Sita Ram v. Nasiruddin - (1998) 1 WLC Raj. 825. Against the appellate Court's order dated 8.9.2006 land-lords plaintiffs Dharamchand & Ors. have filed this revision petition in which it has been submitted that the courts below have wrongly relied upon an over-ruled ruling of Full Bench of Rajasthan High Court because the said judgment of the Full Bench of Rajasthan High Court had already been set aside by the Hon'ble Apex Court in Nasiruddin & Ors. v. Sita Ram Agarwal - (2003) 2 SCC 577 i.e. before the judgment by the first appellate court. 3. I have gone through the Hon'ble Apex Court's judgment referred above. The Hon'ble Apex Court has held that the Full Bench of Rajasthan High Court had erred in allowing tenants' revision petition on the finding that application for condonation of delay under Section 5 of the Limitation Act was maintainable. Apex Court has also held that the deposit of rent by the tenant within 15 days is not an application within the meaning of Section 5 of Limitation Act, 1963. Since the deposit does not require any application, therefore, the provisions of Section 5 of Limitation Act cannot be applied where the default takes place in complying with an order under sub-section (4) of Section 13 of the Act of 1950. It was further held that the court can condone the default only when the statute confers such a power on the court and not otherwise. It was further held that the court can condone the default only when the statute confers such a power on the court and not otherwise. Following other rulings have also been referred by the appellants in this regard; (1) Ravindra Singh v. Addl. Distt. Judge No.2, Alwar & Ors. - (2013) 1 DNJ (Raj.) 353. In this case, it was held that while withdrawing rent deposited after due date by the tenant, if the land-lord reserves right to pursue application under Section 13(5) of the Act of 1950 then no ground of waiver can be alleged against the land lord. (2) Jai Singh v. Leela Saraf - (2013) 1 RLW 757 (Raj.). In this case, ruling of the Apex Court in Nasiruddin (supra) was followed by the Rajasthan High Court. (3) Satya Kumari Kamthan v. Noor Ahmad & Ors. - (2013) 9 SCC 177 . In this case, it was held that the order striking off the defence of the tenant passed by the trial court and confirmed by the District Judge should have been upheld by the High Court also. (4) Union of India & Ors. v. M.C. Sharma - (2012) 5 SCC 633 . In this case it was held that if the High Court decides a matter relying upon an over-ruled judgment of the Supreme Court then such a bad order deserves to be set aside by the Apex Court. 4. On the other hand, respondents have relied upon the following Single Bench ruling of Rajasthan High Court Dhan Raj v. Brijesh Kumar - (2003) 1 RLR 747. In this case it was held by this Court that if the delay is unintentional and not wilful and the delayed payment made by tenant had already been withdrawn by the land lord then principle of waiver will apply against the land lord and defence against eviction cannot be struck off by the court in such situation. 5. I have heard arguments of both the parties and also perused the law cited by them. 6. It has been submitted by the appellant that the rent for the period from 15.4.1991 to 14.5.1991 was deposited with a delay of two months & four days and rent for the period from 15.5.1991 to 12.6.1991 was deposited with a delay of 1 month and 6 days, rent due on 19.6.1993 was deposited on 12.8.1993 with delay of 53 days. Rent due on 19.7.1993 was deposited on 12.8.1993 with delay of 23 days and rent due on 18.8.1993 was deposited on 1.9.1993 with delay of 12 days. Rent for the period of 16 months for the period from 22.5.1993 to 5.9.1994 was not deposited by the tenant. As per Section 13(4) of the Act of 1950, a tenant is required to deposit the amount of rent determined by the court under sub-section (3) within 15 days from the date of determination or within such further time not exceeding three months, as may be extended by the court. 7. It has been submitted on behalf of the landlords that the rent for the period from 15.4.1991 to 14.5.1991 was deposited with delay of 64 days by the tenant. There was a delay of 36 days in depositing the rent due on 5.5.1991, which was deposited on 12.6.1991. Similarly, there was delay of 53 days in depositing the rent which was due on 22.5.1993 and which was deposited on 19.6.1993. Similarly, rent due on 26.6.1993 was deposited by the tenant on 20.7.1993 with a delay of 23 days. 8. Tenants have argued that the application for striking off the defence was filed by the appellants on 19.11.1993 and thus a delay of 2 years and 7 months occurred on the part of the appellants also to enforce their right and so it should be presumed, that appellants had waived their right. Second application of appellants was filed in the court below on 29.5.1999 against the alleged default of 53 days on part of tenants. It has been submitted by the tenants that delay of 64 days and delay of 36 days respectively will be deemed to be condoned because the land lord has already taken the rent of that period through their Advocate and other amounts were also received by the land lord showing their waiver. It has been submitted by the tenants that no cause of action survives in favour of the land lord after waiver of the rent. Respondents have strongly relied upon the ruling of Single Bench of Rajasthan High Court in the case of Dhan Raj (supra), wherein it was held that waiver is an act to release or not to assert a legal right. Respondents have strongly relied upon the ruling of Single Bench of Rajasthan High Court in the case of Dhan Raj (supra), wherein it was held that waiver is an act to release or not to assert a legal right. While estoppel is distinguishable from waiver to the extent that estoppel does not apply against a statute while in case of waiver unless it involves public at large or the statutory requirement is in public interest, a private person can waive it. In the case in hand, appellants have never waived their right, time and again they have been moving applications for striking off the defence against eviction of the tenants and so particularly when they have received the rent deposited with delay by the other party under protest, will mean that they have never waived their right to striking off the defence of the tenants. 9. In the circumstances of the case, this Court is of the view that the appellants had never waived their right of eviction against the tenants and so applying the Apex Court Ruling of Nasiruddin's case (supra), the orders of the courts below deserve to be set aside and are hereby set aside and because of the delay caused by the tenants in depositing of rent of the period mentioned hereinbefore the delay was not condonable on the part of the courts and hence the delay caused by the tenants in deposit of rent in statutory period can not and should not have been condoned by the courts below and accordingly this revision petition deserves to be allowed and the defence of the tenants against eviction in the case is hereby struck off. 10. Consequently, the revision petition of landlords is hereby allowed. Stay application, if any, also stands disposed off accordingly. The trial court to decide the suit for eviction in accordance with this order. Copy of this order be sent to both the courts below immediately by speed post. Revision allowed.