1990 PLP 785 (CLC)

2. However, the case of the respondent No.3, as put up by Mr. I.H. Zaidi, is that factually respondent No.3 had not received any notice for the payment of the alleged due amount or the notices of the cancellation. However, it has been submitted by Mr. G.H. Malik learned counsel for the petitioner, that respondent No.3 has admitted the faetum of receipt of the cancellation notice. Be that as it may, it appears that the plot was re‑allotted to respondent No.2 after the cancellation. Thereafter, on 17‑2‑1977, the Society executed a sub‑lease in favour of respondent No.2. After that the petitioner purchased the plot through a registered sale‑deed dated ''9‑5‑1978 for a sum of Rs 20,

000. It is also the case of the petitioner that he had got the building plan approved on 13‑8‑1978 and obtained no‑objection certificate from the Society on 27‑5‑1978. It has also been alleged by the petitioner that on 23‑6‑1978, respondent No.3 took forcible possession of the plot. After that respondent No.3 filed Suit No.1807/1978 in the Court of XVlth Civil Judge, Karachi, and obtained an ad interim injunction, which was vacated on 30‑7‑1978. Thereafter, the plaint was rejected on 1‑11‑1978. Thereupon, the respondent No.3, filed an application under section 54 of the Co operative Societies Act, 1925 (hereinafter referred to as the Act) for claiming the title to the plot. The Registrar appointed his nominee, who after recording the evidence and hearing the parties, has given his award on 4‑8‑1979, in which it was held by him that the Society failed to prove that the notice was actually served on respondent No.3, but at the same time he concluded that the petitioner had B purchased the plot in good faith. In the operative part of the award, he ordered that the Society should allot alternate plot to respondent No.3 and the petitioner was allowed to retain the plot. Being aggrieved by the above award, respondent No.3 filed an appeal under section 56 of the Act, which was allowed by respondent No.l by the impugned order dated 26‑8‑1990. The petitioner being aggrieved by the above order. has filed the present petition.

3. In support of the above petition, Mr. G.H. Malik, learned counsel for the petitioner, has contended as follows:‑ (i) That respondent No.l has not reversed the finding of the Registrar's nominee on the question that the petitioner was purchaser of the plot in good faith for consideration and, therefore, the award could not have been set aside. (ii) That respondent No.3 has not pleaded in his application under section 54 or in evidence that he had not received the notice calling upon him to pay the balance of the dues and, therefore, the findings recorded on the above point by the Registrar's nominee and respondent No.2, is contrary to the pleadings and the evidence on record.

4. On the other hand, Mr. I.H. Zaidi, learned counsel for the respondent No.3, has urged as under:‑ (i) That the petition is not competent as under section 64‑A, the petitioner could file a revision which remedy the petitioner failed to avail. (ii) That there is no finding in favour of the petitioner recorded by the Registrar's nominee that the petitioner was purchaser of the plot in good faith without notice. (iii) That there is a concurrent finding of the two forums on the question that it was not approved by the Society that respondent No.3 was served with the notice calling upon him to pay the balance of the alleged dues, and (iv) That the equity was in favour of respondent No.3, as after raising construction he has been residing therein.

5. It may be appropriate to take up the first contention raised by Mr. Zaidi that the above petition is not competent as alternate remedy in the form of a revision under section S4‑A of the Act was available to the petitioner. It will suffice to observe that in a number of cases, the superior Courts have taken the e view that a revision cannot he treated as adequate alternate remedy in order to entail the dismissal of a Constitution petition on the ground that the, petitioner failed to avail of the alternate adequate remedy.

6. In our view, the respondent No.] could not have set aside the Registrar's nominee award without recording the finding that the petitioner was not a purchaser in good faith which was a finding recorded by the Rcgvomr's nominee. It has been vehemently contended by Mr. Zaidi that there is a distinction between a purchaser in good faith and a bona fide purchaser without notice in terms of Section 40 of the Transfer of Property Act. In our view, the Registrar'.‑ nominee has used the word good faith in the same sense in which bona fide purchaser is used in Section 40 of the Act. In the absence of any such finding the respondent No.l could not have set aside the Registrar's nominee's award. The further question which needed consideration was, whether the Society had taken over the possession of the plot from respondent No.3 after the cancellation of the allotment and whether factually the possession was handed over by the Society to respondent No.2, who in turn had handed over the same to the petitioner. Further the point which needed consideration, whether he was residing therein and finally the question which needed consideration, whether respondent No.3 should have been provided alternate plot or the petitioner, by the Society in terms of the award by the Registrar's nominee.

7. We would, therefore, allow the above petition and declare the impugned order as being without lawful authority and would remand the case to respondent g No.l with the direction to re‑hear the parties and to decide the case after taking into consideration the above aspects highlighted hereinabove. The parties may also be provided an opportunity to lead further evidence.

8. The petition stands disposed of. However, there will be no order as to costs. M.Y.H./M‑873/K Order accordingly.