P L D 1962 Supreme Court 69 (PLP)

HAMOODUR RAHMAN, J.‑

This !s a certificated appeal from the High Court of East Pakistan. It arises out of an order of a Division Bench of the said Court summarily dismissing a second appeal under Order XLI, rule 11 of the Code of Civil Procedure, without giving any reason. The second appeal was against a judgment of reversal whereby the decree passed by the trial Court for a sum of Rs. 2,057‑2‑0 claimed by way of refund of excise duty was set aside and the suit dismissed. The said refund was claimed to be allowable as a rebate under rule 12 of the Central Excise Rules, 1944, as the betelnuts on which the said duty was paid had been exported to a foreign country without being off loaded anywhere in Pakistan. It Is not necessary for us to go into the facts of this case, for, upon a perusal of the judgment of the first Appellate Court we are satisfied that several substantial questions of law arose which merited consideration by the High Court in second appeal. Indeed, in the order of another Division Bench of the same High Court certifying the case to be fit for appeal to this Court the questions of law that arose for consideration have been set out as follows :‑ (1) Whether a depositor has any legal right to a refund of the excise duty deposited by him, (2) Whether such right is assignable, (3) Whether the authority was justified in not granting sanction for refund of the deposited amount, and (4) Whether the Subordinate Judge had correctly interpreted rules 12 and 189 of the Central Excise Rules. We are in full agreement with the views of the Division Bench which granted the certificate that the second appeal raised several important questions of law which were not difficult to discern even upon a bare perusal of the judgment of the lower Appellate Court. On this ground alone we are of the opinion that this appeal must succeed. Justice clearly demanded that this appeal should not have been summarily dismissed. We, accordingly, accept this appeal, set aside the order of the High Court passed on the 16th of April 1959, and remand the second appeal for hearing by the High Court in accordance with law after admitting the same. The costs of the appeal in this Court will be costs in the second appeal. Before parting with this case, however, we must observe that we find ourselves unable to approve of the practice followed by the High Court of East Pakistan of not assigning even brief reasons for the summary dismissal of second appeals under Order XLI, rule 11 of the Code of Civil Procedure. Under corresponding provisions of the Civil Procedure Code of 1882 L even the Calcutta High Court had accepted the view that a. summary dismissal of an appeal under section 551 thereof did not relieve the Court from the necessity of writing a judgment vide Rami Deka v. Brojo Nath (I L R 25 Cal. 97). Has the Code of 1908 then introduced any changes which would justify the departure from that rule ? We can find no change in the substantive provisions, apart from a new arrangement or classification of the said provisions under certain headings which cannot, in our view It have the effect of giving a different meaning to those provisions. In the wider interests of the administration of justice we feel that this practice should be discarded, for, justice should not only be done but also appear to be done. A. H. Appeal accepted.