' This is a civil revision petition filed by the petitioner against the judgment dated 23-12-1982 passed by the VIIIth Additional District Judge, Karachi, whereby dismissing the appeal and affirming the judgment and decree of the Civil Judge, Karachi.
' The facts leading to the filing of the above revision are that the first respondent filed suit for declaration, cancellation and injunction against the petitioner and the second respondent. The case of the first respondent as set out in the plaint was that the first respondent had acquired the ownership and possession of house bearing No,K-19A-6-S-18/1, to 4 Bakra Piri, Lyari Quarters, Karachi, in the year 1964 from one Adam Khan son of Qasim Khan and since then she is the owner of these plots with construction thereon. It is alleged that respondent No,1 had let out the house in dispute to the petitioner as tenant and the petitioner applied for and obtained lease of the house in dispute in her favour from the second respondent by filing false affidavit and by misrepresentation.
The petitioner contested the suit and denied the various allegations made against her. The second respondent also filed written statement and raised preliminary objection that the suit was not maintainable and barred by provisions of section 88 of the Sindh Local Government Ordinance, 1972. The second respondent contested that the petitioner had applied for regularization and grant of lease and produce all necessary documents in support of her claim. The lease was executed after complying with all the legal formalities. On the pleadings of the parties the trial Court framed appropriate issues. The parties led evidence in support of their respective versions.
' The trial Court on appreciation of the evidence on the record came to the conclusion that the first respondent was accepted as the owner of the plots in dispute. In support of this finding the trial Court took into consideration the judgment in suit filed by one Ghulam Hussain against the first respondent. He also took into consideration the judgment in Suit No,61/63 filed by Mst. Khatija mother of said Ghulam Hussain against the first respondent. This judgment was affirmed in Second Appeal. On Issue No,3 he found that the petitioner has only produced lease deed and failed to prove all papers and documents in support of his version. In that view of the matter he came to the conclusion that the petitioner had obtained the lease from second respondent by misrepresentation; the same is illegal and has no force. He came to the conclusion that the suit was maintainable. In that view of the matter the suit was decreed.
' Against the judgment and decree the petitioner went in appeal before the District Judge, Karachi, which was ultimately heard by the VIIIth Additional District Judge, Karachi.
' The Additional District Judge on reappreciation of the evidence on the record affirmed the finding of the trial Court.
' The petitioner being aggrieved has filed the present revision petition.
' I have heard Mr. K.B. Bhutto, the learned counsel for the petitioner in support of the above revision petition and Mr. Abdul Rashid Mirza, learned counsel for the first respondent. I have gone through the impugned judgment and have perused the records and proceedings of the case.
' It has come on the record that the second respondent executed lease Exh.6. In favour of the petitioner in respect of Plot No,902 Noorani Colony, Lyari Quarters, Karachi. The first respondent averred in para.1 of the plaint that she acquired the ownership/right of possession of house Plot No,K-19-A-14 to 120 (K-19A-63-118/1 to 4) Bakara Piri, Lyari Quarters, Karachi, in the year 1964, from one Adam Khan son of Kassam Khan and since then she is the owner of the said plot with construction thereon. The plots were temporary and she had been paying taxes regularly to KMC."
In support of her version she produced judgment in Suit No,392/1958 filed by Ghulam Hussain against her. The said suit was dismissed. Ghulam Hussain preferred an appeal which was also dismissed on 21-7-1966. The appeal and second appeal were dismissed. The trial Court decreed the suit. The appeal was also dismissed as stated in the earlier part of this judgment.
' A perusal of lease deed (Exh.6) would show that lease is in respect of dismissed on 12-12-1989 by the learned Additional District Judge, Bannu at Lakki Marwat.
4. The vendee petitioner feeling still dissatisfied has sought through this Constitutional petition the annulment of the aforementioned orders dated 31-10-1989 and 12-12-1989 passed by respondents Nos.1 and 2.
5. S. Zaffar Abbas Zaidi, learned counsel for the petitioner contends that the term "Bank Guarantee" implies an undertaking by the Bank to meet the liability of the specified amount incurred by the person in whose favour it has been entered into irrespective of his being a valuable customer or of his having a sound financial position. He also submitted that a Bank Guarantee in banking terminology is a Guarantee pure and simple altogether different from a certificate showing the sound financial position of a customer.
6. Mr. Muhammad Iqbal Kundi, learned counsel for the pre-emptor respondent, on the other hand, maintained that as no specimen has been prescribed for Bank Guarantee in the Act, therefore, guarantee so furnished fully meets the requirment evisaged by section 24 of the Act.
7. It is common for a statute to contain a provision that certain words and phrases shall, when used in the statute, bear particular meaning. The terms 'Bank Guarantee' has not, however, been defined in the Act itself. Under the settled principles of interpretation of statutes the same words or phrases, when used in another Act dealing with the same subject-matter, often bear the same meaning failing which we shall have to fall back on its dictionary meaning. Applying the first principle we find that the terms "Contract of Guarantee", "surety", "principal debtor" and "creditor" have been defined in section 126 of the Contract Act, 1872 (Act No,IX of 1872) which reads as under:-- ' `contract of guarantee' is a contract to perform the promise, or discharge the liability, of a third person in case of his default. The person who gives the guarantee is called "surety", the person in respect of whose default the guarantee is given is called the "principal debtor", and the person to whom the guarantee is given is called the creditor "
' It would, therefore, be noticed that the contract of guarantee envisaged that the guarantor (in the instant case the Banker) agrees with the creditor (here the Court) to discharge the liability of a third person (the pre-emptor) in case of his default. It was held in Thakurrey v. Kishendas (76 IC 282) that the contract of guarantee as defined in section 126 ibid is confined to cases of suretyship strictly so-called. The conditions required for a contract of suretyship as laid own in Mahabir v.
Chaudre 1965 IC 370 are (i) there must be a creditor, (ii) a principal debtor, (iii) a guarantor or surety who makes himself liable for the liability of the principal debtor. Strictly speaking a contract of guarantee may be tacit or implied and may be inferred from the course of conduct of the parties concerned.
8. S.K. Dutt, in the "Law of Conveyancing in British India" (1948 Edition University Law House, Allahabad), while defining guarantee has also invoked the provisions of section 126 of the Contract Act, 1872. According to P.C. Mogha in the "Conveyancer' "a contract of guarantee is a contract to perform a promise or discharge the liability of a third person in case of the latter's default (section 126 of Contract Act)."
' In Bullen and Leake's "Precedents of Pleadings" by George Kirkhouse Jenkins-London (1950 Edition), a guarantee has been defined as "a collateral promise to answer for the debt, default, or miscarriage of another who is or is about to become liable for the same debt to person guaranteed." It has also been observed in this treatise that it is of the essence of a guarantee that there should be someone liable as principal and that such a contract is required to be in writing.
9. In the context of section 24 of the Act, also the Bank Guarantee must be in writing for, from the word 'furnish' employed in the section the requirement of writing can be clearly spelt out.
10. On the other hand, the 'guarantee' in "A Concise Law Dictionary" (Sweet & Maxwell, London, 1964 Edition) has been described as "a collateral promise to answer for the debt, default or miscarriage of another, as distinguished from an original and direct contract for the promisor's own act."
11.. From what has been observed above, we are clear in our mind that absence of a specified format in the Act notwithstanding a Bank guarantee must conform to an undertaking by a Banker whereby it undertakes to be answerable to the promisee for the debt, default or miscarriage of another person whose primary liability to the promisee must exist or be contemplated. In the context of Bank guarantee within the contemplation of section 24 of the Act, therefore, the Bank must undertake in writing to be answerable to the Court for the amount so guaranteed in case of default of miscarriage of the pre-emtor to deposit the same. A contract of guarantee may be made either in the form of an ordinary deed, in the form of a bond, or in the form of a deed poll, or by a letter addressed to the person or firm to whom guarantee is given. According to P.C. Mogha in the `Conveyances', the form of letter is in vogue in the case of Banks. The stamp duty is leviable as on an agreement.
12. It has already been observed earlier that the form of letter is in vogue in the case of Bank Guarantee. The following precedent or any other form which conforms to the requirement of section 126 of the Contract Act may be furnished to the Court as Bank Guarantee:-- Plot No,902 Noorani Colony. It is not clear as to whether this plot is the same which is owned and possessed by the first respondent.
Both the Civil Judge and Additional District Judge have not applied their minds to the facts of the instant case. Besides this the appellate Court's judgment is not in accordance with the mandatory provisions of Order 41, rule 31 of the Code of Civil Procedure. The judgment of the first appellate Court has to set out points for determination, record the reasons for the said determination. It cannot run away from its onerous duties of recording the finding of fact and discussing the evidence. Under these circumstances, I have no other alternative but to remand the matter with a direction to hear the appeal on merits and to decide the same according to law by reverting his attention not only on the points of controvery introduced but by scrutinizing the evidence led thereon.
' In the result the revision petition is allowed. The impugned judgment is set aside. The matter is remanded to the District Court Karachi (South) for rehearing the appeal on merits according to law in the light of the observations made above.