SH. AZMAT SAEED, J.--- This writ petition is directed against the order dated 12.9.2003, passed by respondent No. 2, whereby an appeal filed by respondent No. 1 against the order of ejectment passed by respondent No. 3 in favour of the petitioner was set aside and the case was remanded.
2. Brief facts leading. To the filing of this writ petition are that the present petitioner, landlord, filed an ejectment petition against respondent No. 1 in respect of the premises in dispute seeking ejectment an the ground of default in payment of rent and bona fide personal need. The said petition was filed by the petitioner in his name but through one Muhammad Asghar as Special Attorney. Respondent No. 1 entered appearance and filed her written reply admitting the relationship of landlord and tenant, however, in addition to controverting the grounds pleaded in the ejectment petition it was also contended that the rate of rent was not Rs. 25,000/- as alleged but was actually Rs. 12,500/- per month and the balance of Rs. 12,500/- was paid on account of leasing charges for fittings and fixtures. It was also contended that the special power-of-attorney on the basis whereof the ejectment petition had been filed was a forged document. The plea was also taken that advance rent for the period from September, 1999 to June, 2002 had been paid.
3. . The Rent Controller after considering the pleadings of the parties passed the order under Section 13(6) of The Urban Rent Restriction Ordinance, 1959, whereby the tentative rent was fixed at Rs. 12,500/- per month. The respondent was required to deposit arrears of rent at the rate of Rs.
12,500/- per month for 34 months from September, 1999 till date i.e. July, 2002 amounting to Rs.
4,24,000/-. The respondent was however, allowed to deduct the amount already paid by her to the petitioner on the production of valid receipts. It was further directed that the future tentative rent would be deposited in Court before the 15th of each successive month. Neither of the parties was permitted to withdraw the rent till the final adjudication of the matter. Thereafter the case was adjourned to 6.7.2002, however, no receipts of deposit of rent, past, or present, were produced. The case was again adjourned to 12.7.2002 for production of the receipts but the same were not produced by the respondent, whereupon, the ejectment order was passed by the Rent Controller.
4. Respondent No. 1 challenged the ejectment order dated 12.7.2002 in appeal, which was heard by respondent No. 2. In the grounds of appeal inter alia it was stated that the petitioner had left for Karachi after passing of the order under Section 13(6) ibid where she fell ill. The payment of advance rent upto June, 2002 was reiterated and finally an agreement purportedly executed by the petitioner evidencing the payment of rupees nine lacs (Rs. 900,000/-) was appended with the appeal. The petitioner was proceeded ex parte and after hearing respondent No. 1, the order dated 12.7.2002 was set aside and the case was remanded vide impugned order.
5. Learned counsel for the parties have been heard and the record appended with this petition has also been perused.
6. The primary basis for passing of the impugned order is that the Rent Controller should examine the impact of the alleged agreement dated 25.10.1999 and to examine the effectiveness of the special power-of-attorney before passing a fresh order under Section 13(6) of the Urban Rent Restriction Ordinance, 1959.
7. The case of respondent No. 1 set up in the reply to the petition under Section 13 ibid as well as in the grounds of the appeal and as reflected in the impugned order is that she had paid rent upto June, 2002. In support whereof the respondent has relied upon agreement dated 23.10.1999, the said agreement was not produced before the Rent Controller despite several opportunities given to the respondent. The Appellate Court by way of the impugned order itself has stated that the said agreement does not inspire confidence. Learned counsel for the respondent has stated that the impugned order under Section 13(6) ibid permitted her not to deposit arrears of rent in respect whereof she had valid receipt hence the Rent Controller must examine this matter by looking at the agreement in question. The counsel for the petitioner has vehemently argued that the agreement is forged and fabricated and was not produced before the Rent Controller.
8. Be that as it may the original order under Section 13(6) ibid consists of two parts, one with reference to deposit the arrears of the rent and the second part was with reference to future rent which was to be deposited before the 15th of each successive month after July, 2002. It is not the case of respondent No. 1 that such future rent has been deposited in compliance of the order under Section 13(6) ibid of the Ordinance. It is also not the case of respondent No. 1 as has been disclosed in the appeal before the Appellate Court that such rent was in fact deposited. No explanation for non-compliance of the order to the extent of future rent has been urged at the bar.
9. In this view of the matter it is a clear case of obvious violation..Of the order under Section 13(6) as far as deposit of future rent is concerned. It is settled law in the event of such violation the defence of the tenant is to be struck off and an ejectment order must follow. I am fortified in my view by the cases reported as PLD 2005 Supreme Court 34 (Mst. Fatima Gul Vs. Malik Saeed Akhtar) and 1981 SCM R 276 (Muhammad Umar Vs. Mst. Aiysha Aziz).
10. Learned counsel for the respondent No. 1 has drawn the attention of this Court to the special power-ofattorney on the basis whereof the ejectment petition was filed by the petitioner and urged that this matter needs to be adjudicated upon before any order adverse to respondent can be passed as has been directed by the first Appellate Court by way of the impugned order. I am afraid this too is a defence, which the respondent cannot be permitted to take if she has violated the order under Section 13(6) when his defence is to be struck off. A copy of the special power- ofattorney is on the file. I have examined the same, which clearly pertains to the property in question. It authorizes the attorney to initiate the legal proceedings and engage a counsel. Ex-facie it confers authority on the attorney to initiate legal proceedings on behalf of the petitioner who incidentally has personally filed the present petition and has ratified the filing of the ejectment petition by his attorney.
11. Learned counsel for the respondent has objected to the maintainability of this Constitutional petition by submitting that the writ petition is not maintainable against an order of remand. He has relied upon the judgment of this Court reported as 2003 PLC 378 (Muslim Commercial Bank Ltd. Vs. Mahmood Alam Niazi). There is no cavil with the 'Contentions that, the Court in its Constitutional jurisdiction ordinarily does not interfere in order of remand, however, as has been laid in the judgment relied upon by the learned counsel for the petitioner that a writ will be issued against the remand order to avoid perpetuation of an illegality. In the instant case, the impugned order is patently illegal it would. Be unjust and unfair to condemn the petitioner to further I-unnecessary litigation by refusing to interfere in the matter.
12. In this view of the matter no useful purpose will be served, by sustaining the impugned order, as the legal situation is clearand obvious that order under Section 13(6) has not been complied with.
13. In the circumstances, the impugned order is set aside. Order -of the Rent Controller is restored with the modification that respondent No. 1 is allowed time to vacate the premises upto the 30th of March, 2005.
14. The writ petition is accepted in the above terms .With no order as to costs.
Writ .