JUDGMENT Shamsuddin Anmed, J. This appeal is directed against the judgement and decree passed by the learned Judge, City Civil Court Bench (VIII) at Calcutta in ejectment suit no. 43 of 197.9. 2. The plaintiff appellant's case in the Trial Court was that the defendant was the tenant under the plaintiff at a monthly rent, of Rs. 65/- payable according to English calendar month. The said tenancy was determined by notice of ejectment dated 21.11.78. The ground for eviction was that the defendant defaulted in payment of rent since July 1978. Plaintiff filed a previous suit being ejectment suit no. 956 of 1989 against the defendant for ejectment on the ground of default. The suit was disposed of by granting relief to the defendant under s. 17(4) of the West Bengal Premises Tenancy Act 1956. According to plaintiff the defendant is no longer entitled to benefit of protection under s. 17(4) of the Act as the defendant has made default for more than 6 months within a period of 12 months after having obtained relief under s. 17(4) of the Act. Defence case was that no notice was served on him. It was further stated that relit from July 1978 to September 1978 was paid to the plaintiff but no receipt was granted. Thereafter the defendant sent rent for October 1978 by money order. As the plaintiff refused to accept the same, the defendant is depositing the rent with the Rent Controller. Accordingly, he is not a defaulter. 3. The learned Trial Judge held that the notice determining tenancy was duly served on the defendant and it was valid, proper and sufficient. The learned Trial Judge while dealing with question if the defendant is defaulter and is liable to be evicted on the ground, the learned Judge held that since it was specifically held in the proceeding under s. 17(2) of the WBPT Act by order no 10 dated 31.5.79 that the deposits of rent, with the Rent Controller from October 1978 to April 1979 were of valid deposits and there was arrear of rent for the period from July 1978 to September 1978. The defendant is not liable to be evicted. The defendant is not liable to be evicted. The learned Judge relying on a decision reported in 70 Calcutta Weekly Notes page 34, held that such order could operate as a final finding for the purpose of the Trial of the suit as well and the parties would be precluded from raising any issue on that. Accordingly, the learned Judge held that he was a defaulter for 3 months only. Accordingly, he granted relief under s. 17(4) and decreed the suit in part for costs only Prayer for recovery of Khas possession was dismissed. 4. Mr. Dasgupta, the learned Advocate appearing for the plaintiff- appellant has contended that the learned Trial Judge has made an error in law in holding that an order passed in the proceedings in the same suit, under s. 17 of the West Bengal Premises Tenancy Act to be a final determination as to whether the defendant was in default in payment of rent for the purposes of determination of the ground of eviction contemplated by s. 13 of the said Act. Mr. Dasgupta contends that finding on an application under s. 17 or any other sub-section of the said section is only a prima facie finding and can't be treated as a finding for the purposes of determination of the ground of eviction. He further submits that the learned Judge is wrong in relying on a decision reported in Calcutta Weekly Notes page 324, J.K Sons v. Metal Press Works. The learned Judge sitting singly came to this decision that determination of the rate of rent under an application under s. 17(2) West Bengal Premises Tenancy Act was final and nothing but final for the purpose of Trial as well. In a Division Bench decision reported in 64 Calcutta Weekly Notes 302, it was decided that an application under s. 17 of the Act is 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 and that would not be a ground for deferring the hearing of the application until the hearing of the suit. These finding are only prima facie and for the purposes of the said proceedings leaving it open for a final decision at the time of the bearing of the suit. These finding are only prima facie and for the purposes of the said proceedings leaving it open for a final decision at the time of the bearing 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 it together fully so that the decision on that issue would be final for the purposes of the suit also. In another decision reported in 1978(1) Calcutta High Court Notes page 362. Nandagopal Das v. Rabindra Nath Dutta, another Division Bench of this Court fully relied on the decision reported in 66 CWN and held that the order passed on an application will not be final and binding on the parties even for a final determination of the issues between the parties unless of course the matter is decided after giving both the parties sufficient opportunity to thrash out the issue and after recording evidence on the point or the point is decided as a preliminary issue. Accordingly, we hold that the learned Judge has made an error in law. In refusing to enter into the merit of the plaintiff's case that the defendant was no longer entitled to relief under s 17(4) of the Act. It would appear that the order no. 10 dated 31.5.79. disposed of the application under s. 17(2) of the West Bengal Premises Tenancy Act. It does not appear that any witness was examined by the parties. The learned Judge on the basis of the assertions made by the parties came to the finding and directed that the defendant was in arrears of rent for the period July 1978 to September 1978 and directed him to pay the amount along with the statutory interest thereon by installment. Issues were framed only by order no. 20 dated 22.6.79. Therefore, it is clear that the application under s. 17(2) was not decided after giving both the parties opportunity to adduce evidence neither it was disposed of as an issue between the parties. Accordingly, it can not be held that it was a final determination of the dispute as to whether the defendant was a defaulter in payment of rent for a period of 4 months within a period of 12 months. It will further appear that at a final hearing the learned Trial Judge allowed the parties to adduce evidence. Accordingly, it can not be held that it was a final determination of the dispute as to whether the defendant was a defaulter in payment of rent for a period of 4 months within a period of 12 months. It will further appear that at a final hearing the learned Trial Judge allowed the parties to adduce evidence. It appears at the final hearing the plaintiff has examined as many as 4 witnesses and the defendant has also examined himself and another witness. Of the witnesses examined by the plaintiff, one of the witness is an hand writing expert. With regard to the deposit of rent with the Rent Controller the plaintiff contended that the money order was allegedly tendered on 8.11.78. The word October appearing thereon was a subsequent interpolation in a different ink after erasing the word September. PW. S.P. Sarkar, examiner of questioned documents opined that the existing word October was entirely a different form of writing from the other letter appearing in the remaining part of the money order coupon. He also opined that there were traces of eraser and the previous writing can be read as September under existing word October. The learned Judge did not consider this evidence at all on the ground that the finding made while disposing of an application under s 17(2) was final and binding between the parties. It is not intelligible to us. If that was the position why the learned Trial Judge allowed the parties to adduce evidence on that point. 5. It appears that finding on an application under s. 17 of the Act is only a prima facie finding made by the Court to determine the question whether the plaintiff (sic) is entitled to relief under s. 17(4) of the Act. 5. It appears that finding on an application under s. 17 of the Act is only a prima facie finding made by the Court to determine the question whether the plaintiff (sic) is entitled to relief under s. 17(4) of the Act. In a case where the ground of eviction is under Clause(i) of s. 13(1) of the West Bengal Premises Tenancy Act namely that the tenant has made default in payment of rents for 2 months within a period of 12 months, the finding on an application under s. 17 will not be a final determination of the question that might be raised to establish the ground on s. 13(1)(e) unless it is established that the finding was arrived at after giving both the parties an opportunity to adduce evidence and hearing them at length or the question was decided as a finding on a preliminary issue framed by the Court. 6. We, accordingly, hold that the learned Judge dismissed the suit on a wrong interpretation of the law and accordingly the appeal is allowed. The judgement and decree passed by the learned Judge is set aside and the suit is remanded back to the Trial Court for disposal of the same in the light of our observation made above. The learned Trial Judge is directed to dispose of the suit within a period of 3 months from the date of receipt of the records. Let the Lower Court records be sent down immediately. Siba Prasad Rajkhowa, J. : I agree. Appeal allowed. Suit remanded to the trial Judge for decision.