- (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 then six months and therefore, defaulted in the payment of rent as also on the ground of material alteration etc.
(3.) While admitting 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 Court 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?;