# Bashir and Ors v. State of U.P. and Ors - **Citation:** (2014) 1 ILRA 385 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2014-02-11 - **Bench:** Ran Vijai Singh - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bashir-and-ors-v-state-of-u-p-and-ors-42843 - **Pages:** 2 ## Headnote Cr.P.C. Section-482-Summoning orderoffence under Section 420 IPC-complainant works under contract-amount of Rs. 1,19,828/-found due-non pa ## Text 1 All] Bashir and Ors. Vs. State of U.P. and Ors. 385 view of the fact that the claimant-respondent, had not discharged duties, we confine the arrears of salary to 25% along with perks and other benefits. The claimant-respondent shall be deemed to be in service for all practical purposes including pensionary benefits by the petitioner-State. The impugned order dated 21.09.1995 passed by the U.P. Public Services Tribunal is modified accordingly. Let a decision be taken by the State-petitioner with regard to payment of arrears of salary as well as pentionary benefits in terms of the present modified judgment with due communication to the claimant-respondent, expeditiously say within a period of three months from the date of receipt of certified copy of this judgment. The standing counsel shall communicate the order forthwith. Writ petition is disposed of accordingly. -------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 11.02.2014 BEFORE THE HON'BLE RAN VIJAI SINGH, J. Civil Misc. Writ Petition No. 8283 of 2014. Bashir and Ors...... Petitioners Versus State of U.P. and Ors...... Respondents Counsel for the Petitioners: Sri P.S. Chauhan Counsel for the Respondents: C.S.C., Sri D.D. Chauhan, Sri Rajesh Yadav Constitution of India, Art.-226-order against dead person-held-nullity-order against dead person passed November 2010 who already died in January 2010-held-not sustainablequashed. Held: Para-4 While assailing the impugned order, learned counsel for the petitioners contends that the order impugned has been passed against a dead person. In the submission of learned counsel for the petitioners, the petitioners' father, against whom proceeding was initiated, has already expired in January, 2010 and the order has been passed in November, 2010. It is settled that the order against the dead person is nullity and void abinitio. The view taken by me finds support from the following authorities on the point. Case Law discussed: AIR 1957 Page 521; A.I.R 2001 Supreme Court 2003; 2009(75) ALR 515; 2013(4) AWC 3770. (Delivered by Hon'ble Ran Vijai Singh, J.) 1. Heard Sri P.S.Chauhan, learned counsel for the petitioners, learned Standing Counsel and Sri Rajesh Yadav, learned counsel for the Gaon Sabha. 2. Learned counsel for the respondents state that under the facts and circumstances of this case, he does not propose to file counter affidavit and the writ petition may be decided on its own merit in accordance with law. 3. This writ petition has been filed for issuing a writ of certiorari quashing the order dated 27.11.2010 passed by the Sub-Divisional Officer, Rampur Maniharan District Saharanpur in Case No. 08/2010 (State Vs. Ajmer and others) in a proceeding under Section 176A of U.P. Zamindari Abolition and Land Reforms Act, 1950 by which the name of the petitioners' father has been expunged from the revenue record. Although, there is laches of more than three years but under the facts and circumstances of the case, that is liable to be ignored and the writ petition is being taken up for final disposal. 386 INDIAN LAW REPORTS ALLAHABAD SERIES 4. While assailing the impugned order, learned counsel for the petitioners contends that the order impugned has been passed against a dead person. In the submission of learned counsel for the petitioners, the petitioners' father, against whom proceeding was initiated, has already expired in January, 2010 and the order has been passed in November, 2010. It is settled that the order against the dead person is nullity and void abinitio. The view taken by me finds support from the following authorities on the point. 5. The Apex Court in the case of Leelawati Bai Vs. State of Bombay, A.I.R. 1957, Pae 521 has held that the order passed against the dead person is a complete nullity. 6. In A.I.R. 2001, Supreme Court, 2003, Amba Bai and others Vs. Gopal and others, the Apex Court has held as under: "As the judgment in the Second Appeal was passed without the knowledge that the appellant had died, the same being a judgment passed against the dead person is a nullity." 7. In T.Gnanavel and T.S.Kanagaraj and another reported in 2009(75) ALR 515, the Apex Court has taken the same view by observing as under:- "19. For the reasons aforesaid, we are of the opinion that the High Court had rightly intercepted the provision of Order XXII, Rule 4(4) of the C.P.C. and accordingly held that the decree passed by the Trial Court on20th of December, 2002, in O.S. No.3946 of 1999 was a nullity in the eye of law as the defendant had died during the pendency of the suit for specific performance of the contract for sale and no exemption was sought at the instance of the plaintiff/appellant to bring on record the heirs and legal representatives of the defendant before the judgment was pronounced." 8. This Court also in the case of Subhash Chandra and another Vs. Dy. Director of Consolidation, Jaunpur and others 2013 (4) AWC 3770, has held that order passed against the dead person is a nullity. 9. Taking note of the fact that the petitioners' father, against whom the proceeding was initiated, has already died, when the impugned order was passed. The impugned order dated 27.11.2010 is hereby quashed. The writ petition succeeds and is allowed. However this order will not preclude the respondents to pass fresh order in accordance with law. -------- ORIGINAL JURISDICTION CRIMINAL SIDE DATED:ALLAHABAD 26.02.2014 BEFORE THE HON'BLE MANOJ MISRA, J. Criminal Misc. Application No. 13149 of 2013 (U/s 482 Cr.P.C.) Govind Chandra Gupta.... .Applicants Versus State of U.P. & Anr..... Opp. Parties Counsel for the Petitioner: Sri Vijay Shankar Mishra Counsel for the Respondents: A.G.A., Sri Radhey Shyam, Sri Rajesh Kumar Cr.P.C. Section-482-Summoning orderoffence under Section 420 IPC-complainant works under contract-amount of Rs. 1,19,828/-found due-non payment thereofon demand-the accused persons ousted the complainant from the office-held-dishonest intention on part of accused not existed-in absence of essential element of offence under section 420 IPC-summoning order amount to abuse process of Courtproceeding of complainant case including summoning order quashed.