An order passed under Section 17(2) of the West Bengal Premises Tenancy Act, 1956, is not appealable as a judgment within the meaning of Clause 15 of the Letters Patent unless it finally decides the merits of any question involved in the suit.

( 1 ) THIS appeal arises out of an order dated August 7, 1969. passed by K. L. Roy. J. in an application made by the defendant under Section 17 (2) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the said Act ).

( 2 ) THE application was made by the defendant in the suit for ejectment filed by the plaintiff being suit No. 2964 of 1968 inter alia on grounds of default for, amongst others, determination of the amount of the rent that was payable by the defendant in respect of the premises in suit and for direction to deposit the said amount upon such determination within such time as the Court would think fit.

( 3 ) IN the said application the applicant also prayed for leave to deposit the rent for the months of July and December, 1968. together with the statutory interest and the rent for the month of January, 1969. with the Registrar. Original Side of this Court. The defendant also prayed for leave to deposit rent (for months subsequent to January, 1969, in the office of the Rent Controller, Calcutta, during the pendency of the suit.

( 4 ) UNDER the rules of the Original Side of this Court no leave of the Court was necessary for the purpose of deposit of the rent in terms of the aforesaid prayer for the months of July and December, 1968. and January, 1969. or subsequent rents with the Rent Controller.

( 5 ) UNDER the relevant rules all that the defendant was required to do was to make an application for determination of the rent for the disputed period and deposit the admitted arrears either in Court or with the Rent Controller within the time mentioned in Section 17 (1) of the said Act.

( 6 ) BE that as it may in the application made by the defendant an order was made by A. N. Sen J. on 4th February, 1969, giving leave to the defendant to deposit the rent for July and December, 1968. along with statutory interest end that for the month of January, 1969, with the Registrar. O. S. of this Court The defendant was given leave to deposit the rents for the months subsequent to January, 1969, with the Rent Controller. Directions for filing of the affidavits by the parties were given on the application toy A. N. Sen. J. on that day.

( 7 ) THE application was ultimately Beard by K. L. Roy, J. on August 7, 1969, when His Lordship was pleased to make en order directing the defendant to deposit in Court within six weeks from the date of the said order arrears of rent for the period from April 1965 to November, 1968. with the exception of the rent for July, 1968. together with interest thereon as provided for in Section 17 (2) of the said Act. The defendant by the said order was given liberty to withdraw the amount deposited by him with the Bent Controller for the aforesaid period. The said order also directed that in de-fault of the defendant depositing the said amount within the time mentioned above the defendant's application would stand dismissed, with costs. The entirety of the said order was made expressly "without prejudice" to the rights and contentions of the parties.

( 8 ) FOR the purpose of this application Sub-sections (1) and (2) of Section 17 of the said Act are material. The said subsections are set out hereunder :"section 17. When a tenant can get the benefit of protection against eviction-- (1) On a suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 13. the tenant shall, subiect to the provisions of Sub-section (2 ). within one month of the service of the writ of summons on him or where he appears in the suit or Proceeding without the writ of summons being served on him within one month of his appearance, deposit in Court or with the Controller or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment is made together with interest o