' The appellant moved an application on 2-1-2002 under section 7 of the Cantonments Rent Restriction Act, 1963 before the Controller of Rents for determination of fair rent. The respondents filed an ejectment application on 5-1-2002 against the appellant under section 17 of the Cantonments Rent Restriction Act, 1963. The Controller of Rents passed an order on 21-5-2002 under section 17(e) of the Cantonments Rent Restriction Act, 1963 for deposit of the rent due amounting to Rs.1,84,40,302. The appellant failed to comply with the same, his defence was struck off on 18-1-2003 and the appellant was directed to hand over the vacant possession of the property in dispute to the respondents. On 1-8-2003 the respondents filed an application for rejection of application under section 7 for fixation of the fair rent on the ground that the appellant has not complied with the rent deposit order dated 21-5-2002. The appellant had been declared a wilful defaulter vide order dated 18-1-2003. The learned Additional Rent Controller accepted the application and dismissed the application of the appellant for fixation of the fair rent vide order dated 31-7-2003.
2. Learned counsel for the appellant contended that the learned Additional Rent Controller was bound to hold an inquiry and after taking into consideration the factors enumerated in section 7(2) of the Cantonments Rent Restriction Act, 1963 the application of the appellant could only be disposed of. No such exercise was taken by the learned Additional Rent Controller. Reliance was placed on Messrs Ali Brothers and others v. Mrs. Naushaba Jabeen - and others 2001 M LD 648 and Muhammad Rafiq Mir v. Malik Muhammad Nawaz and others 1991 CLC 859.
' Conversely the learned counsel for the respondent submitted that if a tenant is declared a defaulter under section -17(9) of the Cantonments Rent Restriction Act, 1963 the application for fixation of fair rent is not maintainable. Reliance was placed on Muhammad Akram v. Dr. Ghafur Muhammad (Represented by heirs) 1974 SCM R 40. Learned counsel also referred to the order passed by my learned brother Mian Hamid Farooq, J., on F.A.
0. No.16 of 2003 showing that the parties had agreed on the payment of certain rent.
3. I have gone through the impugned order and the relevant provisions of law and considered the arguments of the teamed counsel for the parties. The relevant portion of the order of the learned Additional Rent Controller reads as under:-- "After going through the record available on file and hearing the counsel for the parties, this Court has reached to the conclusion that an ejectment petition regarding the property in dispute was pending before this Court and on 18-1-2003 an ejectment order was passed against the petitioner/tenant on the basis of default, because the tenant had not complied with the rent deposit order dated 21-5-2002 passed by this Court.
' As discussed above the application of the respondent Capt. Muhammad Saeed for rejecting of the application under section 7 of Cantonment Rent Restriction Act, 1963 is hereby accepted and the application under section 7 of Cantonment Rent Restriction Act, 1963 for fixation of fair rent is hereby dismissed because the petitioner/tenant has been declared a wilful defaulter by an order passed by this Court on 10-1-2003 by not depositing the arrears of rent/monthly rent. Other Miscellaneous applications are disposed of accordingly."
'The order shows that the petition of the appellant under section 7 of the Cantonment Rent Restriction Act, 1963 for determination of fair rent was dismissed solely on the ground that the ejectment application of the respondent had been accented against the appellant. The learned Additional Rent Controller completely misdirected herself. Subsection (8) of section 17 of the Cantonments Rent Restriction Act, 1963 reads as under:-- "(8) On the first hearing of proceeding under this section or as soon thereafter as may be but before the issues are framed, the Controller shall direct the tenant to deposit in his office before a specified date all the rent due from him, and also so deposit regularly till the final decision of the case, before the 5th day of each month, the monthly rent amount subsequently becomes due, and if there be any dispute as to the amount of rent due, the Controller shall determine such amount approximately."
' The bare reading of the subsection shows that the Controller shall direct the tenant to deposit in his office before the specified date all the rent due from the tenant and if there be any dispute as to the amount of rent due, the Controller shall determine such amount approximately. The determination of rent under the said subsection is only approximate and tentative in nature. For the non-compliance of the order passed under section 17(8) the defence of the tenant can be struck off under subsection 17(9). By no stretch of imagination the rent determined under subsection (8) can be considered as final rent. In my view the learned Additional Rent Controller was bound to decide the application under section 7 for fixation of the fair rent after considering the factors, as given in subsection (2) of section 7 of the Cantonments Rent Restriction Act, 1963. No exercise was taken by the learned Additional Rent Controller. As far as the contention of the learned counsel for the respondent that the parties had agreed on a certain amount of rent, the plea may be raised before the learned Additional Rent Controller. The authority Muhammad Akram v. Dr. Ghafur Muhammad (Represented by heirs) (supra) relied upon by the learned counsel for the respondent is distinguishable. In the said authority the august Supreme Court has observed as under:-- "The application made by the tenant for the fixation of fair rent as against the specific provisions embodied in section 30 itself was therefore, not maintainable, and the petitioner was under an obligation to pay rent at the rate of the latest municipal assessment. It is not disputed that the petitioner completely failed to attorn to the transferee even after he had served the prescribed notice on the petitioner."
' It was observed that the tenant was under obligation to pay the rent at the rate of latest municipal, assessm ent and the tenant failed to attom to the transferee even after receiving the statutory notice. In the instant case one of the grounds for determination of fair rent is that the rent is not being charged as per the rental value of the demised premises as entered in the latest assessm ent list of the Cantonment Board.
4. The upshot of the above discussion is that this appeal is allowed and the impugned order dated 31-7-2003 is set aside. Resultantly the application of the appellant under section 7 of the Cantonments Rent Restrictions Act, 1963 shall be deemed to be pending and the same shall be decided by the Controller in accordance with law and in the light of the observations made above.