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Second Appeal No. 315‑bf 1971, decided on 8th April, 1985.

‑‑S.4‑‑Money‑Lending Ordinance (III of 1960), S.10‑‑Recovery of loan‑‑Suit for‑‑Maintainability‑‑Loan on basis of Promissory Note Finding of First Appellate Court that recovery suit was not maintainable as appellant was a money‑lender without holding licence for that Mere lending of money to few persons, held, would not establish that appellant was doing business of money‑lending, especially when there was no sufficient evidence for regarding such finding.

‑‑‑S.4‑‑Promissory Note‑‑Execution‑‑Proof‑‑Appellant alleged that respondent had taken loan from him and had executed Promissory Note for repayment of same‑‑Respondent on other hand admitted that he had given signed paper to appellant but alleged that subsequently appellant manoeuvred it to be Promissory Note‑‑First Appellate Court found that document put up as Promissory Note was not signed by respondent‑ Approach of First Appellate Court, held, was wrong as respondent himself had not denied signature on document‑‑Execution of Promissory Note by respondent was proved in circumstances.

Maroof Ali Khan for Appellant.

Nemo for Respondent.

Date of hearing: 1st April, 1985.

This Second Appeal under section 100, Cr.P.C. is directed against the judgment and decree, dated 25th June, 1971, passed by the learned District Judge, Sukkur in Civil Appeal No.85 of 1970, whereby he set aside the judgment and decree dated 27‑1‑70 passed by the learned Civil Judge, Ghotki in Civil Suit No.60 of 1967.

2. The Civil Suit No.60 of 1967 was filed by the appellant Gurdasmal for the recovery of Rs.3,100 from the respondent Allah Dino given to him as a loan on 15‑6‑1967 against a promissory note: The respondent resisted the suit denying that he had taken any loan from the appellant and executed a promissory note. He advanced the plea that one of his relations by name Rasool Bux had taken a loan of Rs.2,800 repayable with interest of Rs.300 from the appellant and he had given guarantee therefore and the appellant had obtained his signature on a blank paper representing that only guarantee would be written thereon and it was by a mischief that promissory note was prepared. He also raised a plea that .the appellant was a money‑lender and the suit was hit by the provisions of the Money‑Lenders Ordinance. The learned trial Judge struck following six issues for determination, on 15‑1‑1968:‑

"(1) Whether the defendant received a sum of Rs.3,100 from the plaintiff for his contract work and executed such promissory note on 15‑6‑1966 O.O.P.

(2) That the defendant simply stood guarantor to the plaintiff for Rs.3,100 and whether he has since paid the amount to the plaintiff : O.O. D .

(3) Whether plaintiff has any cause of action to bring the suit against the defendant

(4) Whether the suit is barred by the provisions of the Money‑Lenders

(5) To what relief, if any, the plaintiff is entitled

(6) What should the decree be "

Subsequently, the learned trial Judge recast the issues and framed only to issues for determination as under:‑--

"(1) Whether the defendant has repaid the amount of Rs.3,100 on 24‑8‑66 O . O . D .

(2) What should the order be "

He decreed that suit on 3‑7‑1968. The judgment and decree passed by him was set aside by an Additional District Judge; Sukkur on 3‑5‑1969 and the case was remanded for recording findings on all the issues, which were settled earlier. By judgment, dated 27‑4‑1970, the learned Trial Judge decreed the suit for the recovery of the sum of Rs.3,100. The respondent went in appeal in District Court and the judgment and decree passed was set aside by the learned District Judge, Sukkur by the impugned judgment.

3. The learned Counsel for the appellant has assailed the impugned Judgment on the ground, that the learned District Judge adopted erroneous view in holding that the appellant was a money‑lender and, since he was not holding licence for money‑lending, his suit could not be maintained as provided under section 10 of the Money‑Lending Ordinance. He has further urged that the learned District Judge had taken wrong view of the evidence adduced by the appellant. The appeal has been heard ex parte of the respondent as notice of the hearing sent to him from time to time was returned unserved with the endorsement that he was not available at the given address. The respondent had not intimated to Court any other address and in the circumstances there was no alternative but to have heard the appeal in his absence.

4. The learned District Judge seems to h1gve concentrated his decision on the issue of bar of the suit under the Money‑Lenders Ordinance and he pressed in and the provision of section 10 thereof, which provides that no Court shall' allow any claim in respect of a loan advanced by a, money‑lender unless the money‑lender holds an effective A licence. He held that the appellant was a money‑lender and he did not hold a licence for doing that business and hence his suit was barred. He held so on the basis of the statement of the appellant in cross -examination that he had advanced loan to other 2‑3 persons. But mere lending of money to few persons did not establish that the appellant was doing business of money‑lending and there was no sufficient evidence before the learned District Judge for recording such finding.

5. The learned District Judge also hold that the promissory note was a forged document and no loan had been advanced to the respondent and a false claim was set up by the :respondent. He upheld the plea of the respondent that he had given guarantee for repayment of loan of Rs.2,800 taken by his relation Rasool Bux and he had repaid that amount and obtained such receipt from the appellant, which is put it in evidence as Exh.46‑A.

6. The learned District Judge seems to have misconstrued the pleadings of the parties. The appellant had stated in paragraph No.3 of the plaint that the respondent had taken from him a sum of Rs.3,100 on 15‑6‑1966 and executed such promissory note. The respondent's case in written statement was that his relation owned a sum of Rs. 3,100 to the appellant and he had furnished guarantee for the repayment thereof and the appellant had taken his signature on a blank paper, which was subsequently manoeuvred to be a promissory note. He further stated that he had paid the sum of Rs.3,100 to the appellant and obtained from him such receipt dated 24‑8‑1966. It was, of course, admitted by the appellant during the course of cross‑examination that the receipt put in evidence was passed on by him, but he alleged that the entries made therein were forged in material particulars. It is evident that the respondent admittedly stood committed to the appellant for repayment of Rs. 3,100. He also admitted that he had given a signed paper to the appellant. But the learned District Judge formed the opinion that the document put up as promissory note was not sign by the respondent. This was altogether a wrong approach by the learned District Judge as the respondent had not denied the signature on this document. The learned District Judge seems to have been swayed away by the receipt put in evidence as Exh.46‑A. It appears from the receipt that it suffers from the interpolations as alleged by the appellant and the observations of the learned District Judge that there were no, interpolations are not correct. This receipt did not relate to the sum, being subject‑matter of the suit between the parties. I, therefore, follows that the appellant's case that the respondent had taken loan from him of a sum of Rs.3,100 and he had executed promissory note for payment thereof and he had failed to discharge the liability was proved and the suit was decreed, against him by the learned Civil Judge by proper appreciation of evidence.

7. The appeal was allowed and. the judgment and decree passed by the learned District Judge was set aside by a short order, dated 1‑4‑1985 and these are the reasons therefor.

H.B.T. Appeal allowed.

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