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2016 DIGILAW 1014 (ALL)

HARISH CHANDRA VERMA v. STATE OF U. P.

2016-03-18

DEVENDRA KUMAR UPADHYAYA, V.K.SHUKLA

body2016
JUDGMENT By the Court.—Present Special Appeal is directed against judgment and order dated 13.10.2014, passed by learned Single Judge in Service Single No. 7360 of 2004, Harish Chandra Verma v. The State of U.P. through Principal Secretary, Department of Cooperative, Lucknow, wherein an application moved for recall of the order dated 11.3.2005 has been dismissed and mention has been made that as regards the retiral benefits, the same is separate cause of action, for which it is always open to the petitioner-appellant to take such remedy as is available to him under law. 2. On the matter being taken up today, it has been submitted on behalf of the petitioner-appellant that as far as Ramesh Chandra Verma is concerned, he has been imleaded and arrayed as opposite party No. 5 in the writ petition for the simple reason that the petitioner-appellant was claiming that though Ramesh Chandra Verma was junior to him, all such benefits have been extended to him and accordingly similar benefits may be given to him. Petitioner-appellant submits that as against Ramesh Chandra Verma no relief whatsoever was being claimed and his name has been cited in the array of respondents only by way of an exemplar and in view of this even if no steps have been undertaken by the petitioner-appellant for effecting service as against him and the writ petition in question has been dismissed by invoking the provision of Chapter XII Rule 4 of the High Court Rules then the writ petition in question should be accepted to have been dismissed as against the aforementioned opposite party and against the said opposite party no relief could have been accorded but as against other opposite parties the claim of the petitioner ought to have been examined on merits instead of treating the writ petition as having been dismissed against the other opposite parties as well. 3. In order to appreciate the argument that has been so advanced, we proceed to examine, at this juncture, the provisions of Chapter XII Rule 4 of High Court Rules. The relevant extract of the same is as follows : “Chapter XII Rule 4. 3. In order to appreciate the argument that has been so advanced, we proceed to examine, at this juncture, the provisions of Chapter XII Rule 4 of High Court Rules. The relevant extract of the same is as follows : “Chapter XII Rule 4. Effect of non-payment of process-fee or cost or supply of notices within time.—If the requisite process-fee or cost of issuing notice is not paid or the requisite notices are not supplied within the time prescribed in Rule 3 the case shall be listed for dismissal and shall be dismissed as against the persons who have not been served on account of the default unless on the case being called, an application signed by the party or his Advocate or brief-holder together with the requisite process fee, cost or notices, as the case may be, is presented to the Court or an application similarly signed discharging from the case the persons not served on account of the said default or withdrawing it as against them and the Court deems fit to grant it. Provided that in such cases in which the Court has granted interim stay or injunction and the applicant fails to take necessary steps for service of notice, the office shall list the stay or injunction matter along the default report before the Court immediately on expiry of ten days from the last date by which such steps ought to have been taken by the party concerned. Provided further that the power to condone the delay in supplying the requisite process fee or the notices etc. or to grant extension of time be delegated by the Chief Justice to the Registrar General/Registrar/Joint Registrar. Where, in the opinion of the Registrar General/Registrar/Joint Registrar, no case has been made out for condoning the delay, he shall direct the case to be listed for orders before the Court.” 4. or to grant extension of time be delegated by the Chief Justice to the Registrar General/Registrar/Joint Registrar. Where, in the opinion of the Registrar General/Registrar/Joint Registrar, no case has been made out for condoning the delay, he shall direct the case to be listed for orders before the Court.” 4. A bare perusal of the provisions as contained under Chapter XII Rule 4 of the High Court Rules would go to show that if the requisite process-fee or cost of issuing notice is not paid or the requisite notices are not supplied within the time prescribed in Rule 3 the case has to be listed for dismissal and the case has to be dismissed as against the persons who have not been served on account of default unless on the case being called out, an application signed by the party or his Advocate or brief-holder together with the requisite process fee, cost or notices, as the case may be, is presented to the Court or an application similarly signed discharging from the case the persons not served on account of the said default or withdrawing it as against them and the Court deems fit to grant it. 5. The provision in question is clear that in case requisite steps are not at all taken as against the party for whom notices have been issued then, the crux of the matter is that as against the said party no orders could be passed and as against the aforesaid party, the proceedings ought to have been accepted as dismissed. Thus, the provision in question on its face is clear that it is applicable only in case of those individuals to whom notices have been issued and as far as entire writ petition is concerned i.e. rest of the writ petition as against other opposite parties, the petition will survive and proceedings will have to be continued. 6. Once such a scheme is provided under Chapter XII Rule 4 of the High Court Rules then in view of the this we are of the considered opinion that once the petitioner-appellant was not at all claiming any relief against Ramesh Chandra Verma and he was merely a proforma opposite party then in case steps were not taken, the writ petition was to be accepted to be dismissed only as against him. Even otherwise before us petitioner is submitting that the petitioner has died and as there is no direct lis between the petitioner-appellant and the aforementioned opposite party. Consequently, in our considered opinion, on account of non-taking of steps for effecting service upon the aforementioned opposite party no relief could have been granted against him. It is informed that he is no more, then even otherwise as far as the prayer that has been made by the petitioner before this Court against the other opposite parties, the same has to be necessarily considered by the learned Single Judge on merits. 7. In view of this, the order dated 13.10.2014, passed by the learned Single Judge is hereby quashed and set aside. The matter is remitted back to the learned Single Judge for deciding on merits in accordance with law and in front of the name of proforma opposite party, a note be made that he is no more and no relief is claimed as against him. 8. In the result, the present Special Appeal stands allowed.