A.M Bhattacharjee, J.:—The appellant tenant was sued for ejectment by the respondents landlords under the provisions of the West Bengal Premises Tenancy Act, 1956 on the ground of default in payment of rent, for constructing permanent structure on the suit premises without the consent of the landlords and for causing nuisance and annoyance, but the suit has been decreed only on the ground of default. The tenant in his written statement disputed the rate of rent and also denied having committed any default in payment of rent. But he, however, applied under s. 17(2) & (2A) of the West Bengal Premises Tenancy Act for the determination of the rate of rent and for permission to deposit the arrears of rent by instalments. The learned trial Judge by his Order no. 22 dated 18.6.1973 determined the amount of arrears and permitted the tenant to deposit the same in ??? monthly instalments. The tenant paid some of the instalments in accordance with the order, but failed to pay the remaining instalments in time as required by that order. The landlords accordingly applied under s. 17(3) of the Act for striking out the defence of the tenant against delivery of possession and the learned Judge allowed the application and struck out the defence by his order 42 dated 22.2.1975

2. As already indicated, at the trial the learned Judge decided the other grounds against the landlords and in favour of the tenant, but he decided the Issue relating to default against the tenant solely on the ground that it was already found by him in his aforesaid Order no. 22 passed in disposing of the application under s. 17(2) & (2A) that the tenant committed default in payment of rent. In the impugned judgment, the learned Judge has observed thus:

“Order no. 42 dated 22.2.75 shows that the defendant committed delay in depositing the 5th, 6th, 7th, 8th, 9th and 1Oth instalments in accordance with the Court's Order no. 22 dated 18.6.1973 wherein it was found that the defendant committed default in payment of rent from November, 1970 to May, 1973. It is therefore held that the defendant made default in payment of rent for 2 months within a period of 12 months under s. 13(1)(i) of the West Bengal Premises Tenancy Act and is liable to ejectment…………”

3. It is now well settled that even if the defence of the tenant defendant against delivery of possession has been struck out, the plaintiff-landlord does not get a walkover, so to say, in the contest and a decree for ejectment does not thereafter become a matter of easy insouciance but still remains a matter of anxious advertence by the Court to the question as to whether any ground of ejectment is made out by the plaintiff on the evidence on record. The tenant, notwithstanding that his defence has been struck out, is nevertheless entitled to urge at the final hearing of the suit that on the basis of the evidence adduced by the plaintiff landlord, no decree for eviction can be passed in the suit. As held by a learned single Judge of this Court in Maharam v. Dinanath (77 CWN 202 at 206) the sinking out of the defence against delivery of possession would not necessarily imply that the relevant ground of ejectment has been made out, but the Court must still thereafter be satisfied that on evidence before it a ground for ejectment has been established.

4. As already noted, while deciding the application filed by the tenant under s. 17(2) & (2A) for the determination of rent and permission to deposit the arrears by instalments, the trial court clearly came to a finding on evidence that the tenant committed default in the payment of rent for about 31 months. But could that finding made while deciding that application take the place of final decision in the suit itself? That is the main question which Mr. Banerjee, the learned Counsel appearing for the appellant-tenant has very seriously posed before us for our consideration.

5. The question, however, does not appear to us to be res integra and the position as settled by binding decisions appears to be that finding arrived at by the Court only for determing application under the provisions of s. 17(2) of the West Bengal Premises Tenancy Act would be a finding for the purpose of that application only and such finding, by itself, would not form the basis of the final decision in the suit relating to default. The observations of Das Gupta, J. (as his Lordship then was) in the Division Bench decision of this Court in Ashalata Mitra v. A.D viz. (59 C.W.N 692 at 694) and those of P.N Mookerjee, J. in a later Division Bench decision in Aloka Ghosh v. Inspector General (66 C.W.N 302 at 303) appear to be clear authorities for this proposition. In Ashalata Mitra (supra), while considering the corresponding provisions of s. 14(4) of the preceding West Bengal Premises Rent Control Act of 1950, it was clearly ruled that decision arrived at under an application thereunder was a decision only “for the purpose of the application” but “that decision never takes the place of the final decision of the suit”. After pointing out that on such an application under s. 14(4) of the preceding Act of 1950 the question as to whether the tenant made defaults in the payment of rent was required to be decided, the Division Bench proceeded to observe as hereunder:

“The fact that the question whether the defendant-tenant was in arrears has to be decided for the proper decision of the suit itself, is no reason for not deciding such a matter for the purpose of the application also. It often happens that in dealing with applications for temporary injunctions pending disposal of suits, the Court has to come to a decision, for the purpose of deciding such an application whether a prima facie case exists or not. That decision never takes the place of the final decision of the suit. The fact that decision has to be made of the matter finally in the suit, can not be a reason for refusing to consider the matter at an earlier stage, if and when this is necessary for the proper decision of an application”.

6. These observations apparently go the full length to rule that decision as to whether a ground of ejectment was established was to be made finally at the trial, notwithstanding its earlier determination for the purpose of an application under s. 14(4), even though the provisions thereof required such determination and, therefore, according to that ratio, the findings arrived at by the learned Judge as to the default made by the tenent-appellant while deciding the application under s. 17(2) & (2A), if made for the purpose of that application only, could not, by itself, take the place or form the basis of the finding relating to default finally in the suit.

7. The later Division Bench decision in Aloka Ghose v. Inspector General (supra, 66 CWN 302), was, however, decided under the provisions of s. 17 of the present Act of 1956 and in that case, P.N Mookerjee, J. speaking for the Division Bench, observed as hereunder:—

“Applications under s. 17 of the above Act are meant to be disposed of at a preliminary stage of the suit…Even if it involves consideration of a very material defence to the suit, that is not necessarily a ground for deferring the hearing of the application until the hearing of the suit. It may be that the Court, at the stage of s. 17(3) application, will decide the above question, which forms a material issue in the suit itself, only prima facie and for the purposes of the said proceedings, leaving it open for a final decision at the time of hearing of the suit. It may also be that the Court may take up the issue upon that question along with the application under s. 17(3) and decide the two together fully, so that the decision on that issue will be final for purposes of the suit also.”

8. These observations are, therefore, again a clear authority for the proposition that ordinarily findings arrived at only to decide an application even in respect of any main Issue in the suit are “prima facie” findings “for the purposes of the said proceeding” and the main Issue, even if otherwise determined in the said proceeding, would still thereafter remain “open for a final decision at the time of hearing of the suit”. But it must, however, be noted that, as pointed out therein, if the Court also takes up the relevant Issue for determination along with the bearing of the application under s. 17, and decides fully both the Issue and the application together, then the decision on that Issue would be would be final for the purpose of the suit also. The position, therefore, is that in view of the ratio in the Division Bench decisions in Ashalata Mitra (suara) and in Aloka Ghose (supra) we would have to hold that the determination in respect of default and arrears of rent under an application under s. 17(2) would ordinarily be final for the purpose of that application only, and not for the purpose of the main trial, unless the Issue relating to default in the suit and the application under s. 17 are heard and decided together.

9. In the later single-Judge decision in Maharam v. Dinanath (supra 77 CWN 202 at 206) also, it has been held that “findings on an application under s. 17(3) are tentative findings for the purpose of that section only, like the tentative findings arrived by Court in passing interlocutory orders under Order 38, 39 or 40 of the Code of Civil Procedure and such findings can not be euated with the final findings in a suit”. But this must be read subject to what has been pointed out by the Division Bench in Aloka Ghose (supra), namely, that if the Court also takes up and decides any of the material issue in the suit along with the hearing of the application, the findings arrived at would be final for the purpose of the suit also.

10. It, however, appears that a somewhat contrary note was struck by Bijayesh Mukherji, J., sitting singly in an earlier decision in J.K Sons…Plaintiff; v. Metal Press Works Ltd.…Defendant. (70 CWN 324) holding that determination of the rate of rent under an application under s. 17(2) of the West Bengal Premises Tenancy Act of 1956 was final, and nothing but final, for the purpose of trial as well. The learned Judge was fully alive to and duly considered at length the Division Bench decision of Das Gupta, J., in Ashalata Mitra (supra, 59 CWN 692), but thought that the provisions of s. 14(4) of the preceding Act of 1950 under which Ashalata Mitra (supra) was decided aid the provisions of s. 17(1) & (2) of the West Bengal Premises Tenancy Act, ??? were not the same, and he was, therefore, not to be governed by the observations in Ashalata Mitra (supra), quoted hereinbefore. We do not say that the provisions of s. 14(4) of the 1950 Act and those of s. 17(2)of the present Act are in pari materia in all respects. But what must be noted is that s. 17(2) of the present Act, like its predecessor s. 14(4) of the 1950 Act, provides for determination and deposit of arrears and current rents by the tenant and that being so, if the Division Bench in Ashalata Mitra (supra) ruled that the findings under s. 14(4) of the 1950 Act as to arrears and defaults in payment of rent would not take the place of the final decision in the suit, we do not see how we can choose not to be bound by the said decision in matters under s. 17(1) & (2) of the present Act also.

11. But, as already noted, the Division Bench decision in Aloka Ghose (supra) is one under s. 17 of the present Act, ruling, as it does, that if findings are required to be arrived at in the hearing of an application under s. 17 in respect of a material question like the ground of ejectment, “the Court” will decide the above question, which forms a material issue in the suit itself, only prima facie and for purposes of the above proceeding, leaving it open for a final at the time of the hearing of the suit”. It appears that the attention of Bijayesh Mukherji, J., in J.K Sons (supra) was not drawn to the Division Bench decision in Aloha Ghose (supra), according to which the position in law under s. 17 of the present Act in respect of the question before us would appear to be the same as it was under s. 14(4) of the preceding Act of 1950, as explained in Ashalata Mitra (supra).

12. That apart, the question before Mukherji, J., in J.K Sons (supra) was whether the determination of the rate of rent under s. 17(2) of the Act could again be reopened at the trial by striking an Issue to that effect afresh, and the learned Judge answered the question in the negative. The learned Judge thought that since s. 17(2) on its express terms requites determination of the rate of rent to be made firstly by a preliminary order made under clause (a) to be confirmed thereafter by a final order made under clause (b), such determination made by the final order must be final for all purpose. But even though not so expressly labelled, the determination of disputes under s. 14(4) of the 1950 Act was also obviously final, but as held in Ashalata Mitra (supra), it was final only for the purpose of the application. We do not find any material difference in the relevant context to indicate that while a determination of rate of rent under s. 14(4) of the 1950 Act was final for the purpose of the relevant application only, a similar determination under a 17(2) of the 1956 Act is final also for the purpose of trial. At any rate, in view of the observations made in the later Division Bench decision of this Court in Aloka Ghose (supra), which is a decision under s. 17 of the present Act of 1956, the matter must be taken to have been clinched. We are, therefore, the of opinion that in view of the ratio in the Division Bench decisions in Ashalata Mitra (supra) and in Aloka Ghose (supra), we would have to hold that the determination of arrears and default under an application under s. 17(2) would be final for the purpose of that application only, unless the Issue of default in the suit and the application under s. 17 were heard and decided together.

13. The upshot of all these lends fullest assurance to the view that the fining of default arrived at by the learned Judge in deciding the application under s. 17(2) & (2A) could not, by itself, be equated with and take the place of the final finding in the suit and it would be trite to state that a suit for ejectment cannot be decreed on the ground of default without a final finding to that effect in the suit itself. But, as pointed out in Aloka Ghose (supra), if however, the question as to the arrears of rent under the application under s. 17(2) & (2A) was decided along with the Issue framed in the suit as to default, then the finding arrived at would be obviously a final finding relating to default in the suit itself.

14. As a matter of form, the learned Judge may appear to have decided only the application under s. 17(2) & (2A). But in substance, the learned Judge appears to have finally decided the Issue relating to default also while deciding the application after giving the parties full opportunity to agitate the matter and to lead evidence and determined the Issue fully and finally on the evidence adduced. Even though no Issue was struck in formal frame, the relevant issue was nevertheless considered and determined in all its substance and the parties participated therein and contested the proceeding as they would have done under a formal issue in the final lis. Tendency of the Courts must be, as observed by the Supreme Court in Pratap Singh v. Shri Krishna Gupta (AIR 1956 SC 140 at 141), to deprecate technicalities as it is the substance that Courts which must take precedence over mere form and it would be putting high premium on technical formality to overturn a decision solely on the ground that an issue was not formally framed or labelled as such, even though the same has really been fully and effectively determined with the parties participating therein with full knowledge and no failure of justice appears to have been caused on that score. This is what was decided by the Privy Council as early as in 1870 in Mussumat Mitna v. Syud Fuzl (13 M1A 573 at 584) where the Judicial Committee declined to interfere with the impugned decision “being of opinion that there has not in this case been a failure of Justice in co-sequence of the omission to settle the issues”. We need not multiply decisions as Mussumat Mitna (supra), though a decision under the Code of Civil Procedure of 1859, still holds the filed under the present Code of 1908, as in the present Code also there is nothing to indicate that the failure to cast an Issue in a formal frame is in any way fatal unless the same affects the merits of the case and occasions a failure of justice. In the case at hand, we have not been able to see, nor Mr. Banerjee has been able to show, as to how any miscarriage of justice can be said to have taken place because of the issue relating to default having been determined along with the application under s. 17(2) and (2A) without any formally articulated expression to that effect.

15. This is also the view of Bijayesh Mukherji, J., in J.K Sons (supra, at 328, 329), with which we agree. But, as already indicated, we are of the view that in view of the Division Bench decisions in Ashalata Mitra (supra) and in Aloka Ghose (supra), we must hold that findings arrived at in determining application under s. 17(2) of the West Bengal Premises Tenancy Act are final only for the purpose of such application and not for the purpose of the suit, unless any material issue is also taken up for determination along with such application and that issue is also fully and effectively determined along with such application and we respectfully dissent from all observations to the contrary in J.K Sons (supra).

16. The appeal must, therefore, fail and we accordingly dismiss the same with costs and affirm the judgment and decree of the court below. We, however, allow the tenant-appellant time upto 30th June 1987 to vacate the suit premises, failing which the respondents landlords would be entitled to recover possession in execution of the decree under appeal.

Ajit Kumar Nayak, J.:—I agree.

Appeal dismissed.