The court emphasized the importance of allowing the defendant to raise a plea that goes to the root of the matter for a proper determination of the dispute, particularly with reference to the provisions contained in the Rajasthan Money Lenders Act.

1. - The application filed by the defendant for amending his written statement so as to take a plea that the plaintiff was a money-lender and that he could not carry on the business of money lending without a licence was dismissed by the trial court by its Order dated 22-3-85 on three grounds. The first ground given by the trial court was that the, defendant had denied taking of any loan what so ever. It may be pointed out that even if the defendant denied taking of loan as alleged by the plaintiff yet he can take a plea that the plaintiff could not do the business of money lending without a licence and that the suit was not maintainable in the absence of the production of licence by the plaintiff.

2. Another ground given by the trial court was that the case of the plaintiff in the plaint is that the money was advanced to the defendant for the purpose of his trade and that the advancement of loan to a trader did. not fall within the definition of 'loan' as contained in Section 2(9) of the Rajasthan Money Lenders Act, 1963 However, Clause (j) of Section; 2(9) of the Act provides that loan means an advance at interest, but does not include a loan to a trader except for the purposes of Section 21 and 29. Thus, for the purpose of Section 29 relating to limitation on rate of interest the advancement to a trader may amount to a loan. More over, this is not the stage of deciding the question as to whether the plea sought to be raised by the defendant is well founded or not, but the court is only required to see as to whether the amendment sought to be made is absolutely frivolous or raises a plausible plea, which can the raised by a party to the suit.

3. The third ground which led the rejection of the amendment by the trial court was that the defendant did not disclose in his application as to who were the persons to whom the plaintiff had given money on loan or the amount which the plaintiff had given on loan to such persons. Learned counsel for the petitioner submitted that the defendant has stated in his application that the plaintiff has stated in his cross examination that he was doing the business of advancing money on interest, Such an advancement may amount to a loan and merely because the defendant has not disclosed the names of the persons or amount of advance to others, the plea cannot be disallowed from being raised.

4. Learned Counsel for the respondent submitted that the plea was sought at a late stage, as the plaintiff's evidence is over and now the defendant's evidence is to be examined, and that the defendant was well aware of the facts and he should have taken the plea earlier. It may be observed in this connection that the plaintiff's statements referred to above led the defendant to take the plea and the plaintiff can be amply compensated by costs for the delay made by the defendant in raising the plea. It may be noted that the plea sought to be raised goes to the root of the matter and the trial court was not justified in disallowing the raising of the plea by amendment in the written statement even at the stage when the plaintiffs evidence has been examined. As a matter of fact the plea sought to be raised by the defendant should have been allowed for a proper and effectual determination of the dispute between the parties, particularly with reference to the provisions contained in the Rajasthan Money Lenders Act, relating to advancement of loan at interest.

5. The revision petition is allowed. The order passed by the trial Court dated 22-3-1985 is- set aside. The amendment sought to be made by the defendant in the written statement is allowed, subject to payment of costs amounting to Rs. 200/-. In may be observed that payment of costs shall be considered as condition precedent for allowing the amendment and in case the defendant makes payment of the amount of Rs. 200/- in respect of the costs to the plaintiff within a period of one month, the trial Court should allow the defendant to file amended written s