The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Feb-2024 19:54:28 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). NO.2433 OF 2024 Bipra Charan Patra …. Petitioner Mr. Shakti Datta Tripathy, Advocate -versus- State of Odisha and others …. Opp. Parties Mr. Amiya Kumar Mishra, Additional Government Advocate Order No. 02. 1. 2. CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 15.02.2024 This matter is taken up through hybrid mode. Mr. Tripathy, learned counsel for the Petitioner submits that he has filed an Additional Affidavit stating that Revision Case No.73 of 2023 filed before the Registrar, Cooperative Societies, Odisha has already been withdrawn on 7th February, 2024. Copy of the said order is also annexed as Annexure-17 to the affidavit. 3. Order dated 16th December, 2023 (Annexure-15) passed by learned Additional Registrar, Cooperative Societies (Scheme & Legal), Bhubaneswar -Opposite Party No.3 in Dispute Case No.172 of 2004 is under challenge in this writ petition, whereby substitution of deceased-Defendant No.2, has been allowed. 4. Mr. Tripathy, learned counsel for the Petitioner submits that Defendant No.2, who was the proprietor of Defendant No.1, died on 6th December, 2011 leaving behind his LRs. But no step for substitution was taken within the statutory period. Hence, she being the Loanee, the Dispute Case abated after expiry of statutory period. However, a memo was filed on 26th May, 2023 for substitution of Defendant Nos.1 and 2. An objection to the same Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Feb-2024 19:54:28 // 2 // was also filed on 3rd November, 2023 stating that the Branch Manager of the Plaintiff-Bank is not authorized to file an application for substitution. It is only the Chief Executive of the Bank who can maintain such an application. It is further stated in the objection that in view of the provisions under Order XXII Rule 4 and 9 read with Articles 120 and 121 of the Limitation Act, 1963, the memo for substitution of Defendant No.2 is not maintainable. Pursuant to the objection filed, the Plaintiff filed a petition for restoration of the application for substitution without filing an applications for setting aside abatement and condonation of delay. The said application was completely misconceived. Although the objection to the same was raised by the present Petitioner, who is Defendant No.3 (Guarantor) the Additional Registrar, Cooperative Societies (Scheme & Legal), Bhubaneswar-Opposite Party No.3 passed a cryptic order on 16th December, 2023 allowing the substitution. Hence, this writ petition has been filed. 5. It is submitted by learned counsel for the Petitioner that the order under Annexure-15 is cryptic and non-speaking. Objection raised by the Petitioner was not taken into consideration while passing the impugned order under Annexure-15. Further, delay in filing the petition for substitution has been shown to be 51 days which is imaginary and without any basis. All these aspects were not taken into consideration by Opposite Party No.3 while adjudicating the matter. Hence, he prays for setting aside the impugned order under Annexure-15. 6. Mr. Mishra, learned Additional Government Advocate submits that substitution of a party is a matter between the Plaintiff and the LRs of the person sought to be substituted. The Petitioner, Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Feb-2024 19:54:28 // 3 // being the Guarantor, has nothing to say in the matter. Further, in order to keep the lis alive, substitution of Defendant No.2 is necessary. Hyper technicalities in the matter of substitution should not be resorted to see that the matter reaches at a logical end. Thus, Additional Registrar, Cooperative Societies (Scheme & Legal), Bhubaneswar-Opposite Party No.3 has committed no error in passing the impugned order under Annexure-15. 7. Considering the submission made by learned counsel for the parties, this Court is of the opinion that in order to keep the lis alive, substitution of a deceased-party is necessary. In the instant case, Defendant No.2, being the Loanee, is required to be substituted to keep the lis alive. The dispute case is of the year 2004. Thus, it appears that without entering into the technicalities, the Additional Registrar, Cooperative Societies (Scheme & Legal), Bhubaneswar-Opposite Party No.3has passed the order allowing substitution. 8. While entertaining an application for substitution, the Court/Tribunal has to take into consideration the rules governing the substitution of a party. When specific objection was raised, the same should have been taken into consideration by Additional Registrar, Cooperative Societies (Scheme & Legal), Bhubaneswar- Opposite Party No.3 while entertaining the prayer for substitution. It appears that instead of filing an application for setting aside abatement of the Dispute Case against Defendant No.2 the petition for restoration of petition for substitution has been filed, which might have occurred because the Plaintiff is not acquainted with the procedure of law. Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Feb-2024 19:54:28 // 4 // 9. Be that as it may, when an objection raised by the Petitioner to substitution of deceased-Defendant No.2 was not taken into consideration, the impugned order is not sustainable. 10. Accordingly, the order dated 16th December, 2023 is set aside and the matter is remitted to the Additional Registrar, Cooperative Societies (Scheme & Legal), Bhubaneswar-Opposite Party No.3 which will do well to consider the petition for substitution of deceased-Defendant No.2 giving opportunity of hearing to the parties concerned and taking note of the objection raised by the Defendant No.3-Petitioner. 11. The writ petition is accordingly disposed of. 12. Since the writ petition is disposed of without issuing notice to the Opposite Party No.4, it is at liberty to seek for variation of this order if it feels aggrieved. Urgent certified copy of this order be granted on proper application. Rojalin (K.R. Mohapatra) Judge Page 4 of 4