JUDGMENT 1. - By this order, I propose to dispose of the application filed by the appellant under Order 6 Rule 17 C.P.C. on 4-7-96 seeking amendment in the written statement. 2. The respondent-plaintiff filed a suit for recovery of Rs. 97,507/- from the appellant-defendant on the basis of three promotes and receipts allegedly executed by the appellant-defendant in favour of the plaintiff-respondent after taking loans. The appellant-defendant issued three cheques but on presentation they were dis-honoured. The appellant-defendant resisted the suit but the learned District Judge decreed the same by his judgment dated 23-3-96. Aggrieved by the above judgment and decree, the appellant-defendant has filed this appeal. 3. By moving this amendment application, the appellant-defendant seeks leave of the Court to amend the written statement and take the plea that the plaintiff-respondent was a money-lender at the relevant time and even if the loans were advanced to the appellant-defendant, the same cannot be recovered because the respondent-plaintiff had not obtained license for money lending under the Rajasthan Money Lenders Act, 1963. The suit filed by the plaintiff was, therefore, not maintainable. In para 12 of the application, the appellant has incorporated the proposed amendment which he wants to incorporate in his written statement. 4. I have heard learned counsel for the appellant and respondent regarding the amendment application filed by the appellant. 5. Learned counsel for the appellant has very powerfully urged that from the facts and circumstances of the case, it is abundantly clear that the respondent-plaintiff was a money lender. He allegedly advanced three loans to the defendant-appellant. He also advanced loans and money to other persons. He is, therefore, a money lender as defined in Section 2(10) of the Act. It is purely a question of law and no evidence would be required if the amendment is allowed to the appellant. It goes to the root of the case and will be decisive as regards the maintainability of the suit. This point can be argued in the appeal before this Court. No prejudice would be caused to the respondent and it will also not change the nature of the suit or cause of action. Learned counsel has cited Gokulram v. Hariram, 1994 (2) RLW-472 ; Smt. Rabhia v. Ismail, 1996 DNG (Raj) 110 and Ishwardas v. State of M. P., AIR 1979 SC 551 . 6. No prejudice would be caused to the respondent and it will also not change the nature of the suit or cause of action. Learned counsel has cited Gokulram v. Hariram, 1994 (2) RLW-472 ; Smt. Rabhia v. Ismail, 1996 DNG (Raj) 110 and Ishwardas v. State of M. P., AIR 1979 SC 551 . 6. Learned counsel for the respondent has challenged the above amendment on the ground that the defendant could have sought this amendment at the trial stage. The appellant has not given any explanation why this amendment was not sought there. According to him whether the respondent-plaintiff is a money lender or not is a question of fact and if the amendment is allowed, it will result in a substantial retrial of the suit and would necessitate remanding of the case. For these reasons, the amendment should not be allowed. 7. I have considered the rival contentions. In Gokulram v. Hariram and Smt. Rabhiya v. Ismail laid down general principles which must guide the Court in granting leave to amendment. 8. In Ishwardas v. State of M. P , the Supreme Court laid down following principles for consideration of the Court dealing with an application tor amendment:- "There is no impediment or bar against an appellate Court permitting amendment of pleadings so as to enable a party to raise a new plea. All that is necessary is that the Appellate Court should observe the well known principles subject to which amendments of pleadings are usually granted. Naturally, one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the appellate stage, the reason why it was not sought in the trial Court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an Appellate Court permitting an amendment at the appellate stage merely because the necessary material is not already before the Court." 9. In the instant case, the appellant has not complied with the first requirement as pointed out in Ishwardas's case, namely, explanation for delay in seeking the proposed amendment. But, there is no prohibition against an Appellate Court permitting an amendment at the appellate stage merely because the necessary material is not already before the Court." 9. In the instant case, the appellant has not complied with the first requirement as pointed out in Ishwardas's case, namely, explanation for delay in seeking the proposed amendment. The facts were known to the appellant even at the trial stage and there was no impediment or bar in seeking the present amendment at this stage. If the defendant omit to amend his written statement at that stage, he was under an obligation to explain the delay for moving this application at the trial stage. The second condition is regarding the availability of material on the basis of which the present amendment can be allowed. In this context, it may be stated that the contention of the learned counsel for the appellant is not correct that whether the plaintiff-respondent is a money lender or not is purely a question of law. The definition of money lending has been given in Section 2(10) of the Act which reads as follows:- (i) an individual or (ii) an individual Hindu family, or (iii) a company (not being a banking company as defined in Section 5 of the Banking Regulation Act, 1949), body of Institution other than such of them as may, by notification in the Official Gazette, be exempted from the provisions of this Act by the State Government on being satisfied that it is necessary or expedient, so to do in public interest, or (iv) an un-incorporated body of individuals, who or which- (a) carries on the business of money-lending in the State; (b) has his or its principal place of such business in the State." 10. The mere fact was that the money was advanced and addressed be more than one occasion would not necessarily impart that the person was enacted in the business of advancing loans nor does a man become money lender merely because he may on one or several isolated occasions lent money to a person. In the instant case, the only facts available are that on three occasions the plaintiff-respondent advanced loan to the appellant defendant but the important question is whether by advancing loan on three occasions can the) plaintiff be called a money lender. In the instant case, the only facts available are that on three occasions the plaintiff-respondent advanced loan to the appellant defendant but the important question is whether by advancing loan on three occasions can the) plaintiff be called a money lender. In my opinion this is a mixed question of fact and law and if the amendment is allowed it will necessarily mean remanding the matter to the trial Court and a fresh trial will be held in which the parties will be required to lead evidence. It is now settled principle of law and was also laid down in Ishwardas's case that unless there is some explanation as to why the plea proposed to be taken in appeal by way of amendment of written statement was not taken earlier during the pendency of the suit in the trial Court, the amendment should not be allowed. 11. For the above reasons, I am not inclined to accord permission to the appellant to amend the written statement. The application is, therefore, devoid of any substance and is hereby dismissed.Application dismissed. *******