JUDGMENT Ramchandra Singh Jhala, J. - The instant second appeal has been filed by the appellant against the judgment and decree dated 27.01.1997 passed by learned Additional District and Sessions Judge, Churu in Civil Appeal No.25/1996 whereby he allowed the appeal and reversed the judgment and decree dated 21.01.1995 passed by learned Civil Judge (Senior Division), Churu in Civil Suit No.35/81 (17/1993) decreeing the suit of the appellant-plaintiff for Rs. 46,992/- with interest. 2. Brief facts of the case are that the plaintiff-appellant is a registered partnership firm, in which, Dungarmal and Jhoomarmal are the partners. The defendant-Nirmal Kumar was a dealer of old and antic goods curious. On 19.08.1978, the defendant took a loan of Rs. 30,500/- from the plaintiff firm at the rate of Rs. 1.25% per month and executed a promissory note and also issued a receipt in this respect. Since the defendant did not pay the said loan amount, the plaintiff-appellant sent a registered notice on 10.6.1980 to the defendant, but in vain, therefore, a suit was filed by the plaintiff for recovery of Rs. 46,992/- with interest from the defendant late Shri Nirmal Kumar in the Court of District Judge, Churu which was later on transferred to Civil Judge (Senior Division), Churu because after 1992 the Civil Judge (Junior Division) got the jurisdiction to hear the suit upto the valuation of Rs. 50,000/-. 3. The defendant late Nirmal Kumar filed written statement and controverted all the facts mentioned in the suit and submitted that he did not take any loan from the plaintiff-firm and no pronote was executed and said that the suit has wrongly been filed against him. The defendant Shri Nirmal Kumar further stated in his written statement that his father had mortgaged some ornaments with Shri Ram Kumar Bangar and took some loan from him and after death of defendant''s father, he did not had sufficient money to pay the loan amount of Shri Ram Kumar Bangar, therefore, the plaintiff took the delivery of the ornaments and paid Rs. 51,000/- to Shri Ram Kumar Bangar. The said ornaments are lying with the plaintiff. Thereafter defendant Shri Nirmal Kumar requested the plaintiff to purchase the said ornaments and they would sell the same. 51,000/- to Shri Ram Kumar Bangar. The said ornaments are lying with the plaintiff. Thereafter defendant Shri Nirmal Kumar requested the plaintiff to purchase the said ornaments and they would sell the same. The plaintiff accepted the same and purchased the said ornaments, but they could not sell the said ornaments in time, therefore, some loss occurred and the plaintiff told the defendant that on his advise he purchased the said ornaments and when they were unable to sale the same in time, the plaintiff got loss, therefore, he asked the defendant to give pronote of the ornaments in four parts and defendant signed four blank forms. In the reply it is also stated by the defendant that in selling the ornaments, the defendant helped the plaintiff and the plaintiff received more money then due. The defendant has also stated that the plaintiff is doing the business of money lending and he did not have licence for the same, therefore, the suit filed by the plaintiff is not maintainable. 4. In the rejoinder filed by the plaintiff, all the contents of the written statement were controverted and it was stated the plaintiff did not pay Rs. 51,000/- or any other amount to Shri Ram Kumar Bangar nor he has received any ornament from Shri Ram Kumar Bangar. It was stated by the plaintiff that all the facts mentioned in the written statement are false. The learned trial court framed following issues on the basis of the pleadings of the parties:- 6. The learned trial court decided all the issues in favour of appellant-plaintiff and decreed the suit vide judgment dated 21.1.1995 7. Feeling aggrieved with the judgment and decree dated 21.1.1995 passed by the learned trial court, the defendant Nirmal Kumar filed an appeal before the Additional District Judge, Churu. The learned Additional District Judge, Churu has also decided the issues No.1 to 3 and 5 to 9 in favour of plaintiff and held that the defendant has taken a loan and executed a pronote and received a loan and he is liable to pay the amount with interest, but decided the issue No.4 against the plaintiff and held that the plaintiff has not complied with Sections 22 and 23 of Rajasthan Money Lenders Act and the appeal filed by the defendant was allowed and dismissed the suit of the plaintiff vide judgment and decree dated 27.1.1997. 8. 8. The plaintiff-appellant being aggrieved with the judgment and decree dated 27.1.1997 passed by the Additional District Judge, Churu has filed the instant second appeal before this Court. 9. This Court on 17.10.1997 while issuing show cause notice to the respondents framed the following substantial question of law:- "Whether a loan advanced to a trader is covered by the provision of Section 1(9) Clause (i) of the Rajasthan Money Lenders Act, 1963 or not?" 10. During the pendency of this appeal, the appellant has moved an application under Order 41, Rule 27 C.P.C. for production of additional evidence i.e. Money Lending Licence dated 23.06.1972. In the application the appellant has submitted that the defendant admitted in their application dated 16.1.1981 that the plaintiff has a valid money lending licence. The defendant was a trader to whom the money was given for his trade, therefore, as per definition of "loan" given in the Rajasthan Money Lenders Act, an advance money given to a trader does not come within the definition of "loan". Therefore, the appellant-defendant did not produce the said licence before the trial court, although at that time, he was holding the same. 11. Prior to proceed to decide this appeal, it is appropriate to decide the application filed under Order 41, Rule 27 C.P.C. by the appellant. The provisions of Order 41, Rule 27 C.P.C. reads as under:- "27. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if- (a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission." 12. (2) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission." 12. In the application filed by the appellant-applicant under Order 41, Rule 27 C.P.C. in which the appellant narrated that "defendant has admitted in his application dated 16.1.1981 that the plaintiff has a valid money lending licence, therefore, the matter was not in controversy and the appellant did not produce money lending licence", but on perusal of record, it is clear that defendant filed application on 16.1.1982 in which he narrated that the plaintiff has a valid money lending licence, but thereafter the defendant submitted his written statement in trial court on 29.1.1982 wherein the defendant clearly stated in column No.23 as under:- 13. On the basis of this pleading, the learned trial court framed the issue No.4 as under:- 14. In these circumstances, the contention of learned counsel for the appellant that the defendant has admitted in his application dated 16.1.1981 that the plaintiff has a valid money lending licence, therefore, the matter was not in controversy, is not tenable, because the fact which was narrated by the defendant in the application dated 16.1.1981 has again been denied by the defendant in the written statement which was filed on 29.1.1982, then there was controversy about money lending licence between the parties. 15. The appellant did not mention this fact that he was unable to produce the licence in the Court. He has also failed to prove that the said document was at the trial and during the pendency of first appeal it was not in his knowledge neither appellant mentioned this fact that both the courts below have refused to admit the said document. 16. There was controversy on this point that the plaintiff has money lending licence or not. In spite of this controversy between the parties, the appellant failed to produce the money lending licence in the trial court as well as in the first appellate court so at this stage, the application under Order 41, Rule 27 C.P.C. is not acceptable and liable to be rejected and the same is hereby rejected. 17. Heard learned counsel for the parties on merits of appeal and perused the material available on record. 18. 17. Heard learned counsel for the parties on merits of appeal and perused the material available on record. 18. Learned counsel for the appellant contended that the finding on issue No.4 of the learned first appellate court is against the facts on record and contrary to the provisions of law. It is further contended that defendant late Shri Nirmal Kumar filed application on 16.01.1981 before the trial court with a prayer that a preliminary issue regarding compliance of Sections 22 and 23 of the Money Lending Act may be framed and decided. In the said application, the defendant himself has admitted in para No.1 of the application that the plaintiff has a money lending licence, so there remains no dispute between the parties and there was no requirement of filing money lending licence before the trial court. 19. Learned counsel for the appellant has also submitted that the appellant has a valid money lending licence and same has been filed along with the application under Order 41, Rule 27 C.P.C. Learned counsel for the appellant-plaintiff has also submitted that since it is observed by both the courts below that defendant Nirmal Kumar had taken a loan from the plaintiff and he is liable to pay the same with interest at the rate of Rs. 1.25% per month as claimed in the suit and it was admitted by the defendant Nirmal Kumar that plaintiff has a valid money lending licence, hence, the learned first appellate court is not justified in dismissing the suit only on the ground of not filing the money lending licence and for want of compliance of Sections 22 and 23 of Money Lending Act. It is further contended by learned counsel for the appellant that both the parties are businessmen and, therefore, the money lending licence is not required. It is further contended by learned counsel for the appellant that both the parties are businessmen and, therefore, the money lending licence is not required. It is contended that if loan is given to a trader or by the money lender, the same does not come within the definition of "loan" as defined in the Rajasthan Money Lenders Act, 1963 and there is a finding of both the courts below that defendant-Nirmal Kumar was a trader and loan was given to him for business purpose, hence, it is submitted that provisions of Rajasthan Money Lenders Act are not applicable in the present case and learned first appellate court has erred in dismissing the suit for want of money lending licence in compliance of Sections 22 and 23 of the Money Lenders Act. It is further contended that the learned first appellate court should grant some time to the plaintiff to produce money lending licence, if it is required in the opinion of the first appellate court. 20. On the contrary, learned counsel for the respondent defendants Mr. Rajat Dave for Mrs. Pratishtha Dave has contended that issue No.4 has rightly been decided by the appellate court in favour of the respondent-defendant. The issue No.4 is in two parts; (i) whether the plaintiff is a money lender and (ii) if yes, then whether he is having money lending licence and whether he has complied with the provisions of Sections 22 and 23 of the Money Lenders Act and if not, then what is its effect. The burden of proving part (i) of issue No.4 is on defendant and this burden is discharged by the evidence of plaintiff PW-1 Jhumermal himself, who stated that he is doing business of money lending, thereafter the burden is over the plaintiff to prove whether he was having money lending licence and whether Sections 22 and 23 of Money Lenders Act were complied with. It is contended that the plaintiff has failed to prove this part of issue and there is no pleading by the plaintiff saying that he is having valid money lending licence. 21. It is contended that the plaintiff has failed to prove this part of issue and there is no pleading by the plaintiff saying that he is having valid money lending licence. 21. It is also contended by learned counsel for the respondent-defendants that in para 23 of the written statement, specific averments were made that the plaintiff does not have money lending licence and in rejoinder, no denial of this fact was made nor any averment was made to the effect that plaintiff is having money lending licence, therefore, even at this stage, if any money lending licence is produced by the application under Order 41, Rule 27 C.P.C., the same cannot be considered as no basis has been laid down in the plaint and rejoinder by the plaintiff. It is also contended that any evidence without pleading is not liable to be considered by this Court. 22. Learned counsel for the respondent has further submitted that appellant-plaintiff has failed to prove that they having any money lending licence and, therefore, at this stage, the plaintiff cannot be permitted to fill up lacuna in its case by moving application under Order 41, Rule 27 C.P.C. It is further submitted that at this stage, additional evidence, even if is taken on record, the same cannot be considered on account of lack of pleadings by the plaintiff. 23. In support of his arguments, learned counsel for the respondent-defendants has relied on the judgment rendered in the case of Harinarain Tiwari vs. Damodar Busar reported in 1981(1) RLW 615 wherein this Court has held that the burden of proving valid money lender licence lies on the plaintiff. 24. Therefore, learned counsel for the respondent defendants has prayed that at this stage, the plaintiffs are not entitled for any relief as this Court cannot interfere in factual findings arrived at by the first appellate court, hence, the second appeal may be dismissed. 25. So far as the contention of learned counsel for the appellant is concerned that the defendant is a trader and said transaction is with regard to his business, so there is no necessity to see whether the plaintiff has any valid money lending licence or not, is not sustainable because from perusal of pleadings, the plaintiff did not narrate a single word about this fact. The plaintiff narrated in his suit that the defendant is a business man and he is trader, but in the plaint, he did not narrate a single word that the loan was given in relation to business transaction. On perusal of Exhibit 1 promissory note, it is also not disclosed that the loan was related to business transaction. On perusal of plaint and promissory note Exhibit 1, it is clear that the defendant had taken loan of Rs. 30,500/-from the plaintiff firm at the rate of Rs. 1.25% per month and executed a promissory note Exhibit 1 in favour of the plaintiff. 27. On the basis of statement of appellant-plaintiff (PW-1) and respondent-defendants (DW-1), it is clear that the appellant plaintiff is money lender and he has no valid money lending licence and he has not complied with the provisions of Section 23 and 23 of Money Lenders Act. 28. For the sake of arguments, if the plaintiff succeeded to prove that he has a money lending licence, then the burden is upon him to prove that he has complied with the provisions of Sections 22 and 23 of the Money Lending Act. 29. It is clear proposition of law that where defendant proves successful that the plaintiff is a money lender, the burden lies on the plaintiff to show that he has complied with the provisions of Sections 22 and 23 of Money Lenders Act. 30. In view of the above discussions on the evidence of plaintiff and defendant, it is clear that the defendant has successfully proved that plaintiff is money lender, but he has no valid money lending licence and he did not comply with the provisions of Sections 22 and 23 of the Money Lenders Act. 31. For the sake of arguments, if it is assumed that according to application under Order 41, Rule 27 C.P.C., the plaintiff has valid money lending licence, but there is no iota of evidence on behalf of the defendant that he has complied with the provisions of Sections 22 and 23 of the Act. 32. When plaintiff says that he has money lending licence then burden lies upon the plaintiff to prove that he has complied with the provisions of Sections 22 and 23 of the Act. 33. 32. When plaintiff says that he has money lending licence then burden lies upon the plaintiff to prove that he has complied with the provisions of Sections 22 and 23 of the Act. 33. In the trial court, the plaintiff failed to prove that he had any valid money lending licence and he had complied with the provisions of Sections 22 and 23 of the Money Lending Act. 34. The learned first appellate court at the time of deciding issue No.4 specifically narrated as below:- 35. Having perused the judgments and evidence available on record, this Court is satisfied that the learned first appellate court has not misread any evidence nor the findings of facts of the appellate court can be said to be perverse. The first appellate court has rightly found that the appellant has no valid money lending licence and he has not complied with Sections 22 and 23 of Money Lenders Act, 1963. 36. In view of the above discussions, no interference is called for by this Court in the findings recorded by learned first appellate court. No substantial question of law involves in this second appeal. The first appellate court was justified in allowing the appeal of the respondent-defendant. The above substantial question of law framed by this Court deserves to be answered against the appellant-plaintiff and same is accordingly answered against the appellant-plaintiff. 37. Under these circumstances, I do not find any ground warranting interference in the impugned judgment and decree passed by learned first appellate court, so this second appeal is liable to be dismissed and same is hereby dismissed. 38. No order as to costs.