The issue of relationship of landlord and tenant is an issue of fact that cannot be disposed of otherwise than with other issues in the suit, and a decision under section 17 (2) or section 17 (3) of the West Bengal Premises Tenancy Act is only tentative in nature and is not a final decision in the suit.

( 1 ) IN a suit for ejectment the tenants-petitioners filed an application (Annexure A to the affidavit-in-opposition) for hearing all the issues touching the dispute as to the existence of relationship of landlord and tenant along with their application under sections 17 (2), 17 (2a) (b) of the West Bengal Premises Tenancy Act hereinafter called the Act.

( 2 ) BY virtue of a petition under section 151 C. P. C. the tenants amended their application under sections 17 (2), 17 (2a) (b) of the Act to challenge the relationship. They have annexed copy of the said application as Annexure 'b' to their revisional application.

( 3 ) THE fifth Bench of the City Civil Court by order No. 70 dated 8. 12. 80 passed in Ejectment Suit No. 770 of 1983 has rejected the application. The said order is under impeachment in this revisional application.

( 4 ) MR. Bhattacharyya appearing for the petitioners-tenants contends that in order to dispose of an application under section 17 (2) of the Act. the Court must decide the dispute as to the existence of relationship of landlord and tenant. Reliance is placed upon an observation of the Division Bench in Biswanath Roy vs. Annapurna Roy (65 Cal C. W;n, 149 ). P. N. Mookerjee, J speaking for the Bench held that an appropriate order under section 17 (2) of the Act cannot be passed without determination of the dispute as to the existence of relationship of landlord and tenant. In this case plea was taken by the defendant that not he but his grandsons and the tenants in respect of the disputed premises. Court took up the issue as to defect of parties along with the application under section 17 (3) of the Act.

( 5 ) HIS Lordship speaking for another Division Bench decision in Alaska Ghosh. vs. Inspector General (66 C. W. N. 302) held that the Court may take up a material issue along with the application under section 17 (3) of the Act and decide the two together fully so that decision on that issue will be final for the purposes of that suit also. This finding has been quoted with approved in Nanda Gopal Das vs. Rabindra Nath De (1987 (1) C. H. N. 362 ).

( 6 ) HIS Lordship M, M. Dutt speaking for the Division Bench in Union of India vs. N. K. Chowdhury (1978 CHN 371) also opined that the court has to decide an issue as to relationship of landlord and tenant before it passes another under section 17 (2) or section 17 (3) of the Act. In a latter decision His Lordship presiding over a Division Bench in Parul Banerjee Vs. Anand Kumar Agarwalla (1979 (2) C. L. J. 997) reiterated the same view. It was opined that the issue as to relationship might be decided as on issue in the suit along with an application of the tenant under section 17 (2) of the Act.

( 7 ) THEIR Lordships Anil Kumar Sen and Bhabesh Chandra Chakravarti held in Biswa Bhusan Bose vs. Kusum Agarwalla (1961 (1) CLJ 1) that an order adjudicating a dispute under section 17 (2) or section 17 (3) of the Act is not always tentative in nature. It may involve adjudication of an issue overlapping one of the issues involved in the suit itself when the statute contemplates that such a dispute has to be finally adjudicated and when the statute further provides consequences that are to follow such adjudication.

( 8 ) HIS Lordship A. M. Bhattacharya while presiding over the Division Bench in Nanda Gopal Das vs. Rabindra Nath De (1987) (1) C. H. N. 362 approved of the procedure of disposal of the issue and the application under section 17 (2) of the Act together.

( 9 ) MR. Roychowdhury contends that Order 14 Rule 2 of the Code of Civil Procedure operates as a bar to a decision of an issue in the suit together with the application under section 17 (2) of the Act. He refers to a relevant observation of the Law Commission of India in the Fifty Fourth Reports. The Commission observes in Chapter 14 of the report. It is considered that this delay would be eliminated, by providing that a Court must give judgment on all issues, excepting, of cou