Court No. - 30
Case :- FIRST APPEAL FROM ORDER No. - 3220 of 2019 Appellant :- Vishvanath Sav Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Bhaju Ram Pprasad Sharma,Arvind Kumar Srivastava Counsel for Respondent :- C.S.C.
Hon'ble Arvind Kumar Mishra-I,J.
Heard.
This first appeal from order has been preferred against the judgment and order of the adjudicating authority and the District Judge concerned dated 30.8.2018 and 21.10.2019, whereby, the lower appellate court and the adjudicating authority have dismissed the claim of the appellant.
In nutshell, it can be observed that it is a case under The Foods Safety and Standards Act, 2006, whereby sample of some ice-cream was taken and was sent to the food analyst at Lucknow and food analyst's report was obtained. The sample was found to be containing fat less than the minimum standard fixed/prescribed. Consequently, the adjudicating authority under circumstances imposed fine Rs. 2,50,000/- vide its order dated 30.8.2018.
Challenging the aforesaid order of the adjudicating authority, an appeal was preferred before the District Judge, Gorakhpur, which was numbered as Misc. Appeal No. 68 of 2018. However, it so happened that the verification clause of the memo of appeal was not signed by the appellant, due to which the lower appellate court found the appeal not one to have been presented by the appellant himself, as such, it therefore dismissed the appeal as not maintainable.
The core contention raised by the learned counsel for the appellant, Sri B.R. Sharma is to the effect that once the appeal was admitted, it was incumbent on the court below to have cleared the defect created by the appellant by asking him to do the needful and in case, the needful would have been done, the appeal could not have been dismissed as not maintainable.
The above submission is rejected, for the reason that substantial justice can be done to a person, who is vigilant but not to a person who is adopting lethargic attitude. The appellant is not an illiterate person but he is running some shop and is manufacturer of ice-cream.
Under these circumstances, the verification clause, which is sine qua non and pith and substance of every petition particularly, in such cases like the appeal under consideration, if it remains not signed by the appellant but the entire appeal is signed by some counsel, then the act of the counsel cannot be treated to be the act of the litigant- the appellant. Under these circumstances when inaction is apparent, then none but the appellant would have to be answerable to the same.
The courts are supposed to do substantial justice. Can it be said at this stage that the lower appellate court acted erroneously. Under circumstances, the answer is in the negative. Still, the remedy is available to the appellant to move proper appeal as per the proforma requirement because upto this stage, the appeal so presented would be deemed to have been presented by some counsel only and not by the appellant. That being the case, the appellant is required to move before the lower appellate court by filing his appeal afresh. In view of above analysis, it can be observed that the order of the lower appellate court dated 21.10.2019 is virtually no order in the eye of law on the merit of the case as it neither touches the factual nor the legal aspects of the appeal, therefore remedy of appeal at lower level is still available to the appellant and he can move proper appeal before the court below and in case any proper appeal is presented, the same shall be dealt with by the lower appellate court in accordance with law. Even point of delay may be considered keeping in mind the circumstances of this particular case, which resulted in rejection of appeal as the one not in fact moved by the appellant himself.
Nothing has been adjudicated upon on the merit of this case, no observation need be made by this Court on the merit and the factual aspect of the case, as the issue is still open for proper adjudication.
With the aforesaid observation, this appeal stands disposed of.
Order Date :- 28.11.2019 S Rawat