( 1 ) THIS civil second appeal under Section 100 of the code of Civil Procedure (for short "the C. P. C. " hereinafter) is directed against the judgment and decree dated 27. 11. 2008 passed by Additional District Judge no. 3, Jodhpur (for short "the first appellate court" hereinafter) in Civil Appeal decree No. 26/2007 whereby the appeal filed by the appellant-plaintiff against the judgment and decree dated 16. 4. 2007 passed by Civil Judge (Junior division), Jodhpur City (for short "the trial Court" hereinafter) in Civil Original suit No. 102/2000, was dismissed.

( 2 ) BRIEFLY stated facts to the extent they are relevant and necessary for the decision of this appeal are that the appellant-plaintiff filed a civil suit before the trial Court for eviction of the rented premises and recovery of arrears of rent for use and occupation on the ground that the appellants son Salim Khan wants to start his own business in the shop which is subject matter of the suit and therefore, the plaintiff-appellant requires the premises in question for his reasonable and bonafide use in order to start the business of food grains, edible condiments etc. in the premises in question for which the suit shop is suitable. The respondent-defendant filed the written statement denying the need of the appellant-plaintiff and contested the suit. The trial Court framed as many as 9 issues including the issue of comparative hardship on the ground of bonafide and reasonable necessity of the suit premises as also on the ground that the respondent-defendant neither tendered nor continuously paid the monthly rent of suit shop for the period more than six months and therefore, defaulted in the payment of rent as also on the ground of material alteration etc.

( 3 ) WHILE adrnitting-the present appeal, this Court found that the following substantial questions of law arise in this appeal:

1. Whether the findings recorded by the learned courts below on issues Nos. 1 and 2 are unsustainable in the eye of law on account of mis-reading, non-reading and reading the evidence in between the lines by the Courts below? 2. Whether the findings recorded on issues Nos. 1 and 2 by the learned courts below holding the necessity of the plaintiff-appellant to be a mere desire are contrary to the material available on record?

I have heard learned counsel for the parties. Carefully gone through the judgment and decree impugned passed by the trial Court as well as first appellate court as also the record of the trial Court.

( 4 ) IT is contended by learned counsel for the appellant that both the courts below more particularly the first appellate Court fell in error in holding the averment made in written statement as admitted in absence of rejoinder to such averment. The plaintiff-appellant specifically came with a case that the plaintiff requires the suit shop reasonably and bonafidely for running business by his son Salim Khan. The written statement to the plaint came to be filed by the respondent-defendant wherein it has been stated that "birla Bartan bhandar" shop is lying vacant and the plaintiff-appellant did not controvert this fact by way of filing rejoinder and therefore, both the courts below held that the "birla Bartan Bhandar" shop is lying vacant and therefore, the reasonable and bonafide necessity of the suit shop claimed by the plaintiff-appellant is not real need and on this count, decided the issue of reasonable and bonafide necessity against the appellant-plaintiff. Learned counsel cor the appellant has relied on a decision of this Court in Ishwar Lai and Anr. vs. Ashok and Anr. , RLW 1998 (2) Raj. 731 wherein this Court while considering the provision of Order 8 Rule 9 CPC held that if no rejoinder is filed by the plaintiff it does not amount to be an admission of the plea in the written statement.

( 5 ) LEARNED counsel for the appellant further submits that both the Courts below fell in error in misreading the evidence produced by the parties on record. He ha