MANGU SINGH Vs. MEHRA RAM

JUDGEMENT

(1.) This special appeal is directed against the judgment of the learned single Judge dated 1-3-95 dismissing the Civil First Appeal arising from the judgment and decree dated 20-12-94 passed by the Additional District Judge, Barmer in Civil Regular Suit No. 8/91.

(2.) Briefly stated the facts of the case are that the plaintiff-appellant filed a money suit for recovery of Rs. 70,000.00 with interest thereon stating inter alia that on 1-6-89 he advanced a loan of Rs. 70,000.00 with interest at the rate of Rs. 1.00 per cent per month. The defendant executed a promissory note and receipt in favour of the plaintiff. It was also averred that the defendant Mehra Ram took the loan in order to facilitate one of his relative Chunnilal to purchase an automobile. In spite of repeated demands, the amount was not returned. Thus, according to the plaintiff, he was entitled to a decree for principal amount of Rs. 70,000.00 and Rs. 14,000.00 towards interest in total Rs. 84,000.00. The defendant filed a written statement denying the plaintiff's allegations. Thus, the defence was of total denial. He also took a plea that suit was not maintainable as the plaintiff was not holding a money- lending licence as required by Sections 22 and 23 of the Rajasthan Money Lenders Act, 1963 (hereinafter referred to as the Act of 1963). On the material controversy the trial Court framed 9 issues. The English translation of the issues is given as follows :-

(3.) The plaintiff in support of his case examined himself as P.W.1, P.W. 2 Madan Kumar, P.W. 3 Hanumandas, P.W. 4 Daulat Singh and P.W. 5 Mehra Ram and produced Promissory Note Ex. P.1, dated 1-6-89, Receipt Ex. P. 2, dated 1-6-89 and the registered notice Ex. P3, dated 28-1-91. The defendant Mehra Ram examined himself as D.W. 1, Ram Singh D. W. 2, Chunnilal D.W. 3 and Kushtha Ram D.W. 4 The trial Court decided all the issues in favour of the plaintiff except Issue Nos. 2, 3 and 9. While deciding the Issue No. 1, the trial Court held that the plaintiff succeeded in establishing that a sum of Rs. 70,000.00 was advanced by the plaintif to the defendant and in token of that a promissory note and a receipt Ex. P1 and Ex. P2 were executed. As regards Issue No. 4, the trial Court found that the defendant failed to establish that he was an agriculturist and as such the suit was not maintainable against him. The issue with regard to proper stamping of the Pronote i.e. Issue No. 5 was also decided in favour of the plaintiff. However, in view of the finding on Issue Nos. 2 and 3 the trial Court dismissed the suit by judgment and decree dated 20-12-94. The plaintiff preferred First Appeal. The learned single Judge was of the view that the fact that plaintiff lent Rs. 70,000.00 to the respondent defendant and to the resporndent he had also lent Rs. 27,000.00 to one Bishna Ram on pronote was sufficient to hold the plaintiff, a money lender. The learned counsel placed reliance on a decision of this Court in Gaurishanker v. Magharam reported in 1974 W.L.N. 93 in support of the contention that the mere fact that the money was advanced on interest on more than one occasion would not necessarily import that the plaintiff was engaged in business of advancing loan was rejected on the ground of non-application of the judgment to the facts of the case. The learned single Judge also rejected the contention that ordinarily a civil first appeal should be admitted and decided on merit issuewise. This contention was rejected by the learned single judge on the ground that unless there is an arguable case, it is not obligatory upon the Court to admit the first appeal.