# Harish Chandra Verma v. State Of U.P. & Ors. 436 INDIAN LAW REPORTS ALLAHABAD SERIES - **Citation:** (2016) 3 ILRA 435 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-03-18 - **Bench:** V.K. Shukla, Devendra Kumar Upadhyaya - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harish-chandra-verma-v-state-of-u-p-ors-436-indian-law-reports-allahabad-series-43468 - **Pages:** 4 ## Headnote Paragraph 1: This Special Appeal challenges a Single Judge's order (dated 13.10.2014) which refused to recall a previous dismissal order from 2005. The Single Judge had noted that claims regarding retiral benefits constituted a separate cause of action for which the appellant should seek fresh remedies. Paragraph 2: The appellant argues that Respondent No. 5 (Ramesh Chandra Verma) was merely a "proforma party" or an exemplar (a junior who received benefits the appellant sought). Since no direct relief was claimed against him, the appellant contends that failure to serve him notice should only result in dismissal against him, not the entire writ petition. Paragraph 3: The Court reproduces Chapter XII Rule 4 of the High Court Rules, which outlines the consequences of failing to pay process fees or supply notices. It specifies that a case shall be dismissed "as against the persons who have not been served on account of the default." Paragraph 4: The Court interprets the rule, noting that the provision is specific: if steps are not taken against a particular party, the proceedings are dismissed only against that individual. The rest of the writ petition against other respondents must survive and continue. Paragraph 5: The Court finds that since Respondent No. 5 was a proforma party and is now deceased, the lack of service against him cannot justify dismissing the case against the State and other authorities. The claim against the other parties must be examined on its merits. Paragraph 6: The Court quashes the Single Judge's order and remits the matter back for a decision on the merits. It directs that a note be made indicating Respondent No. 5 is deceased and no relief is claimed against him. Paragraph 7: The Special Appeal is officially allowed. Special Appeal Allowed. ## Text 3 All. Harish Chandra Verma Vs State Of U.P. & Ors. 435 26. For this purpose one has to bear in mind the distinction between all such actions, which are liable to be performed by a person in his individual capacity as distinct from those, which are liable to be performed in exercise of a Statutory duty or function or such actions, which are liable to be regulated by a Statute itself. 27. An agent is always allowed and permitted to make and set forth the pleadings on behalf of his Principal in India. Therefore, deposing on behalf of the Principal in a Court being part of exercise of tendering evidence is not a forbidden exercise to be indulged in by an agent.Such persons are entitled to be cross-examined as the act and art of cross-examination being essentially to ascertain the veracity of the statements/submissions made by a witness and in that process, extract the whole of the truth. Section 18 of the Evidence Act, clearly permits and allows evidence to be collected even from an agent. 28. The power of attorney holder is not entitled to plead on behalf of the Principal, but he can only lead evidence or settle the pleading in the form of a plaint or written statement or petition. 29. In view of the above, it is evident that a general power of attorney holder can depose and also lead evidence on behalf of his principal. 30. Learned counsel for the applicant would submit that the applicant as well as the respondent undertakes to bear the expenses for the videoconferencing through Skype. In such circumstances, if safeguards are, to be followed in examining the evidence from USA, no prejudice will be caused to by the opposite party. 31. For the reasons and law stated herein above, the impugned order dated 17 December 2015 passed by Principal Judge, Family Court, Muzaffarnagar is set aside.The petition is allowed. 32. It is provided that the Court shall proceed on the consent of the applicant through the electronic device, of which, the expenses shall be borne by the applicant for that purposes, accordingly, possible date may fixed. 33. No cost. ---------- APPELLATE JURISDICTION CIVIL SIDE DATED: LUCKNOW 18.03.2016 BEFORE THE HON'BLE V.K. SHUKLA, J. THE HON'BLE DEVENDRA KUMAR UPADHYAYA, J. Special Appeal No.- 27 of 2015 Harish Chandra Verma ...Appellant Versus State Of U.P. & Ors. ...Respondents 436 INDIAN LAW REPORTS ALLAHABAD SERIES Counsel for the Appellant: Shri Rakesh Kumar Srivastava, Smt. Seema Srivastava Counsel for the Respondents: C.S.C., Shri Atish Agarwal, Shri Rakesh Kumar Held - Paragraph 1: This Special Appeal challenges a Single Judge's order (dated 13.10.2014) which refused to recall a previous dismissal order from 2005. The Single Judge had noted that claims regarding retiral benefits constituted a separate cause of action for which the appellant should seek fresh remedies. Paragraph 2: The appellant argues that Respondent No. 5 (Ramesh Chandra Verma) was merely a "proforma party" or an exemplar (a junior who received benefits the appellant sought). Since no direct relief was claimed against him, the appellant contends that failure to serve him notice should only result in dismissal against him, not the entire writ petition. Paragraph 3: The Court reproduces Chapter XII Rule 4 of the High Court Rules, which outlines the consequences of failing to pay process fees or supply notices. It specifies that a case shall be dismissed "as against the persons who have not been served on account of the default." Paragraph 4: The Court interprets the rule, noting that the provision is specific: if steps are not taken against a particular party, the proceedings are dismissed only against that individual. The rest of the writ petition against other respondents must survive and continue. Paragraph 5: The Court finds that since Respondent No. 5 was a proforma party and is now deceased, the lack of service against him cannot justify dismissing the case against the State and other authorities. The claim against the other parties must be examined on its merits. Paragraph 6: The Court quashes the Single Judge's order and remits the matter back for a decision on the merits. It directs that a note be made indicating Respondent No. 5 is deceased and no relief is claimed against him. Paragraph 7: The Special Appeal is officially allowed. Special Appeal Allowed. (Delivered by Hon'ble V. K. Shukla, J. & Hon'ble Devendra Kumar Upadhyaya, J.) 1. 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 Vs. The State of U.P. through Principal Secretary, Department of Cooperative, Lucknow wherein an application moved for recall of the order dated 11.03.2005 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. 3 All. Harish Chandra Verma Vs State Of U.P. & Ors. 437 2. On the matter being taken up today, it has been submitted on behalf of the petitionerappellant 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 petitionerappellant 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 petitionerappellant 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. 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. 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 438 INDIAN LAW REPORTS ALLAHABAD SERIES 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. ---------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 24.02.2016 BEFORE THE HON'BLE KRISHNA MURARI, J. THE HON'BLE RAGHVENDRA KUMAR, J. Civil Misc. Writ Petition No./(Writ C )- 61940 of 2015 Babi Kasaudhan ...Petitioner Versus State of U.P. & Ors. ...Respondents