Findings arrived at in determining application under Section 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.

1. 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 section 17 (2) and (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 ten 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 land lords accordingly applied under 'section 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 No. 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 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 section 17 (2) and (2 A) 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 10th 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 section 13 (1) (i) of the West Bengal Premises Tenancy Act and is liable to ejectment. . . ".

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 walk-over, so to say, in the contest and a decree for ejectment does not thereafter become a matter of easy insousiance 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 C. W. N. 202 at 206), the striking 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.

3. AS already noted, while deciding the application filed by the tenant under section 17 (2) and (2a) for the determination of rent and permission to deposit the arrears by instalments, the trial court clearly cams 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 a 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.

4. THE question, however, does not appear to us to be res in