VIRENDRA KUMAR MISHRA Vs. STATE OF M.P.

JUDGEMENT

(1.) This appeal filed under Order 43 Rule 1 CPC takes exception to the order dated 22.07.2003, whereby the application preferred by the appellant under Order 33 Rule 1 CPC was disallowed by the Court below.

(2.) The appellant/plaintiff filed a suit for declaration and damages which was registered as MJC No.55/1993. Alongwith said suit, plaintiff filed an application under Order 33 Rule 1 CPC (Annexure-P/2). In this application, the appellant contended that on 27.09.1992, his godown wherein some material was kept, was destroyed by the respondents. On the said date, when aforesaid alleged incident of destroying the godown had taken place, the appellant was in jail. His entire business was destroyed. The appellant, later on started practice as an advocate. As an advocate, his income was inadequate, because of which he filed aforesaid application under Order 33 Rule 1 CPC.

(3.) Mr. Usmani, learned counsel for the appellant contended that financial capacity of appellant has to be seen on the date of institution of suit. The appellant's case was that his whole godown and property was destoryed on 27.09.1992. Thus, any income or cost of material prior to this date of incident i.e., 27.09.1992 has lost its significance. The Court below has considered the erstwhile income of the appellant which is irrelevant. Mr. Usmani further submits that no report from the Tehsildar was obtained about the financial capacity of the appellant.