A. K. NAYAK, J. ( 1 ) THE only point of law that arises in this second appeal is whether this Court while hearing a regular appeal against a final decree is powerless to rectify a mistake made earlier in its order in disposing of a revision application against an interlocutory order arising out of the same proceeding. ( 2 ) TO have a proper appraisal of law, it would be necessary to bear in mind the facts of this case. The plaintiff-respondent brought the suit for eviction of the defendant-appellant from the suit premises on the ground of default in payment of rent from November, 1968 to March, 1970, The defendant-appellant denied the same alleging payment, and since her appearance in the suit started depositing rent in the trial court from the month of April, 1970 as per terms of section 17 (1) of the West Bengal Premises Tenancy Act (hereinafter referred to as the Act ). The defendant-tenant further filed a petition under sections 17 (2) and 17 (2a) of the said Act before that court for determination of the amount of arrear rent praying for instalments to pay the same. The learned Munsif (trial Court) by order dated 25. 5. 1972, found that the defendant was in arrear from November, 1968 to March, 1970 and found that a sum of Rs. 255/- was due at the admitted rate of rent of Rs. 15/- per month and granted 17 monthly instalments to the defendant-appellant to pay the said amount. ( 3 ) THE plaintiff-respondent thereafter filed an application on 24. 9. 1973, under section 17 (3) of the said Act, for striking out the defence of the defendant against delivery of possession alleging that the defendant-tenant had deposited rent for the months of September, October, 1970 and April 1972 out of time and thereby had committed default in payment of rent. ( 4 ) THE trial court rejected such application under section 17 (3) of the Act on 20. 11. 1974 holding that the defendant-tenant had complied with the courts order dated 25. 5. 1972 and had deposited all arrears of rent and also the current rent in court. This court, on being moved by the plaintiff-respondent by a revision application, allowed, by its order dated 29. 7. 76, the prayer of the plaintiff-respondent and directed the trial court to proceed according to law. 5. 1972 and had deposited all arrears of rent and also the current rent in court. This court, on being moved by the plaintiff-respondent by a revision application, allowed, by its order dated 29. 7. 76, the prayer of the plaintiff-respondent and directed the trial court to proceed according to law. The trial court accordingly held that the defendant was a defaulter and his defence against delivery of possession was struck out and decreed the plaintiff's suit. ( 5 ) AGAINST that the defendant-appellant preferred an appeal before the court of District Judge, Alipore. ( 6 ) THE learned Additional District Judge who heard this appeal held that the defendant-appellant had fully complied with the courts order dated 25. 5. 72 but actually due to inadvertence the trial court had failed to discharge its statutory duty in the matter of calculation of arrears of rent and interest to be paid by instalments by a tenant in terms of section 17 (2a) (b) of the said Act read with the proviso thereunder. In other words, the first appellate court observed that in passing the order dated 25. 5. 72, disposing of the defendant's petition under section 17 (2a) of the said Act, the trial court should have taken into consideration the invalidity of the deposits for the months of October, 1970 and April, 1972, (which were undisputedly deposited slightly out of time) , as the proviso to clause (b) of sub-section (2a) of the Act lays down that the order will include all amounts calculated at the rate of rent for the period of default including the period subsequent thereto up to the end of the month previous to that in which the order under this sub-section is to be made with interest on any such amount calculated at the rate specified in sub-section (1) from the date when the amount was payable up to the date of such order. He further observed, since the court failed to include the rents of the said two months in its order and thereby not correctly deciding the defendant's application under section 17 (2a), the striking out of the defence against delivery of possession under section 17 (3) was improper. He further observed, since the court failed to include the rents of the said two months in its order and thereby not correctly deciding the defendant's application under section 17 (2a), the striking out of the defence against delivery of possession under section 17 (3) was improper. But as because, the plaintiff-landlord's application under section 17 (3) of the said Act has been allowed by this Court in the aforesaid revision, the first appellate court expressed its inability to interfere with such palpable mistake committed by the trial court, though the trial court initially dismissed such application under section 17 (3) of the said Act. The first appellate court further expressed its inability to interfere even under section 105 C. P. C. with such apparent mistake appearing in the order dated 25. 5. 72 made by the trial court for which the defendant-tenant had to suffer in view of its reasoning that the order passed by the High Court in revision though relating to interlocutory proceeding is a finally on the matter and cannot be reopened in a regular appeal under section 105 C. P. C. against the final decree in that proceeding. In other words, it was held by the first appellate court that as because, the defendant-tenant had not preferred any appeal before the higher court i. e. , the Supreme Court against the order passed in revision by this Court, the same is final and is binding upon the subordinate courts. Upon this finding the first appellate court dismissed the appeal of the defendant-tenant against which the defendant-tenant has preferred this second appeal. Upon this finding the first appellate court dismissed the appeal of the defendant-tenant against which the defendant-tenant has preferred this second appeal. ( 7 ) THE judgment and decree of the first appellate court based on the aforesaid finding have been assailed by the defendant-appellant urging that the order passed by this Court in revision relating to an interlocutory proceeding cannot and should not be taken to be a finality in the matter and if there is any error, defect or irregularity in such order, effecting the decision of the case, the same may be set forth as the ground of appeal under section 105 C. P. C. It has been contended by the learned Advocate for the defendant-appellant, by way of elaboration that an order or finding passed in a proceeding under section 17 (3) of the West Bengal Premises Tenancy is nothing but an interlocutory order and any order of this Court in revision relating to that does not change its character unless of course such order or finding is also made in connection with a specific issue being raised and decided fully and effectively in that matter. It has also been contended that when a blatant and genuine mistake has been committed by the court in calculating the amount of arrears while disposing of the petition of the defendant-appellant by the trial court by its order dated 25. 5. 1972, the defendant-appellant should not be penalised for no fault on his part as a defaulter as it has been found in that interlocutory proceeding under section 17 (3) striking out his defence. ( 8 ) AS against this, it has been urged on behalf of the plaintiff-respondent that the order passed by the High Court in revision though relating to an interlocutory order was final as regards this Court is concerned and the correctness of the same cannot be challenged again in appeal before this court and that the same could only be challenged before the Supreme Court. In short, this argument was put forward before the first appellate court and the same was accepted by that court. In short, this argument was put forward before the first appellate court and the same was accepted by that court. ( 9 ) RELIANCE has been placed in this connection on behalf of the plaintiff-respondent upon the decision reported in AIR 1964 Madhya Pradesh, page 288 which itself is based on the Supreme Court decision reported in 1960 Supreme Court, page 941, disenting from the decision reported in AIR 1940 Madras, page 756. ( 10 ) THE fact of the case relied upon by the learned counsel for the plaintiff-respondent appear to be distinct and different in character from the facts of the instant case altogether. There, in the case reported in AIR 1964 Madhya Pradesh, page 288, the plaintiff wanted a decree in a suit for eviction on the defendant's own admission and filed an application as such under Order 12, Rule 6 C. P. C. The trial court rejected the same. The High Court allowed it in revision and directed the lower court to pass a decree in favour of the plaintiff on the basis of that application. Defendant's petition for special leave to appeal to Supreme Court was rejected. Accordingly a decree was passed by the lower Court as directed by the High Court. On appeal to the High Court it was observed that the order passed by the High Court in revision previously in accepting the admission of the defendant in a petition filed by the plaintiff under Order 12, Rule 6 C. P. C. could not be challenged again in appeal before the High Court. So in that case, High Court relied upon its order passed in revision in an application under Order 12, Rule 6 C. P. C. holding that the plaintiff would get a decree on the basis of the admission of the defendant-appellant. So in that case, High Court relied upon its order passed in revision in an application under Order 12, Rule 6 C. P. C. holding that the plaintiff would get a decree on the basis of the admission of the defendant-appellant. ( 11 ) THE Supreme Court in its decision reported in AIR 1960 SC page 941-42 held that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay and appeal was not taken could be challenged in an appeal from the final decree or order under section 105 C. P. C. Relying on this decision it has been urged on behalf of the plaintiff-respondent that the order passed by this Court in revision allowing the prayer of the plaintiff-landlord under section 17 (3), is in the nature of an appeal and can be treated to be a finality in the matter and as such though no regular appeal lay, it was in fact challenged in revision. The order passed therein by this Court can and should be taken as being exercised as a part of a general appellate jurisdiction of the High Court as a superior Court. Reference has also been made in this connection upon the decision reported in AIR 1970 SC page 1 (Shankar Ram Chandra Abhyankar v. Krishnaji Dattatraya Bapat ). The decision in the aforesaid case however was passed in a different context altogether. There, it was held by the Bombay High Court that the order passed in exercise of its revision jurisdiction against an order of the appellate Court under Bombay Rents Hotel and Lodging House Rates Control Act, 1947, was in fact invoked and exercised as part of the general appellate jurisdiction of the High Court as a superior court and in that view of the matter, the order of the appellate court against which the revisional jurisdiction was invoked could not be challenged or attacked again by another set of proceeding in the High Court under section 226 or 227 of the Constitution. In short, it was sought to be emphasised in that decision that if there are two modes of invoking the jurisdiction of the High Court and one of such modes has been chosen and exhausted, it would not be proper and sound exercise of discretion to grant relief to other set of proceeding in respect of the same order of the subordinate court. The aforesaid view was taken by the highest court to prevent abuse of the process of the court and also for the purpose of according finality to the decision of the High Court. ( 12 ) IT appears therefore that the perspective and the circumstances in which the said decisions were made are different from the facts and circumstances of the instant case. It appears from a perusal of the order passed by the trial court on 25. 5. 72, that the trial court committed a gross error in not taking into account the entire amount of arrear that was to be calculated by the court and due from the defendant-tenant. So also the rate of interest that was to accrue was not taken into consideration in the said order. Striking out the defence against delivery of possession under section 17 (3) can only be made when there is a breach of the order or direction given in the order passed by the court under section 17 (2a) of the Act. As order dated 25. 5. 72 under section 17 (2a) stands, there is no such direction far less any breach or violation of such order made by the defendant-tenant. Even if the deposits made by the defendant-tenant for the said two months i. e. , October, 1970 and April, 1972 were made slightly out of time the said delay could have been taken into consideration at the time of sing the order on 25. 5. 1972, pursuant to the application made by the defendant-tenant. Obviously, this mistake made by the trial court escaped the attention of this Court while dealing and disposing of the revision petition. This being a statutory and mandatory provision cannot be ignored to the peril of the defendant-tenant who is entitled to this relief under the protective clauses in this beneficial legislation. Obviously, this mistake made by the trial court escaped the attention of this Court while dealing and disposing of the revision petition. This being a statutory and mandatory provision cannot be ignored to the peril of the defendant-tenant who is entitled to this relief under the protective clauses in this beneficial legislation. ( 13 ) IT is a settled principle of law as decided by consistent Bench decisions of this Court that the order passed under section 17 including section 17 (3) of the Act are final only for the purpose of such application and not for the purpose of this 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. As observed by Mr. P. N. Mukherjee, J. in the Bench decision, in Aloka Ghosh v. Inspector General, 66 CWN page 302" It may be that the court, at the stage of section 17 (3) 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 section 17 (3) and decide the two together fully, so that the decision on that issue will be final for purposes of the suit also. " Similar view has also been expressed and affirmed by another Bench decision of this Court in Ashalata Mitra v: A. D. Viz. 59 Calwn 692 at 694. Undisputedly, the issue regarding default was not specifically raised or decided while disposing of the petition under section 17 (3) or in the revision petition or order following therefrom. As such it remains an interlocutory order not fully and effectively determining the issue of default on which the judgement of eviction is based. Moreover, there being a gross error on the part of the court in calculating the amount of arrear, it cannot be said legitimately that the tenant-defendant had actually defaulted in payment of rent or violated the order of the court warranting a decree of eviction. Moreover, there being a gross error on the part of the court in calculating the amount of arrear, it cannot be said legitimately that the tenant-defendant had actually defaulted in payment of rent or violated the order of the court warranting a decree of eviction. It is therefore a fit case, looked at from that angle where the gross error or irregularity in order affecting the decision of the case may be set forth as a ground of appeal and should be looked into under section 105 C. P. C. True, the defendant-tenant has not moved the Supreme Court against the order passed in revision earlier. But this court is not altogether powerless to correct any error appearing therein. Tendency of the court must be, as observed by the Supreme Court in Pratap Singh v. Srikrishna Gupta (AIR 1956 SC page 140 at 141), to deprecate technicalities as it is the substance that counts which must take precedence over mere form and it would be putting high premium on technical formality over mere form and it is the substance that counts which must take precedence over mere form and it would be putting high premium on technical formality to follow a particular form which is not consistent with the spirit of legislation. As observed and held by the Supreme Court in its decision reported in AIR 1989 SC page 291 (Manomohar Kaur v. Surya Kanta Bhagwani) where there is a genuine mistake in failure to deposit rent of two months under mistaken belief that rent for those months had been deposited and the rent having been paid subsequently the defence could not be struck off. There is very good reason therefore on the part of the defendant-appellant to explain the alleged default out of delay in depositing the rent for two months. ( 14 ) IN view of the above finding therefore, the trial court having committed a gross error in its order under section 17 (2a) of the Act passed on 25. 5. 72 affecting the decision of this case, that is the judgement and decree of this case, the same cannot be sustained and they are set aside as such. ( 14 ) IN view of the above finding therefore, the trial court having committed a gross error in its order under section 17 (2a) of the Act passed on 25. 5. 72 affecting the decision of this case, that is the judgement and decree of this case, the same cannot be sustained and they are set aside as such. The case is sent back to the trial court to pass a proper order in accordance with law under section 17 (2a) of the West Bengal Premises Tenancy Act on the basis of the petition filed by the tenant-application. ( 15 ) THE result is the appeal is allowed. The judgement and decree of the court below are set aside. In view of the checkered career of this case, the trial court is directed to expedite and conclude the trial as early as possible. Drawing up formal decree is dispensed with. No order is made as to costs. Appeal allowed.