PANWAR, J. ( 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. 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 has relied on a decision of this Court in Roshan Bai Daughter of shri Ram Chandra vs. Madan Lai S/o Shri Bhuraia, 2007 (2) Western Lai Cases (Raj.) 187 = RLW 2007 (3) Raj. 2364 wherein this Court held that the finding of issue No. 1 therein is absolutely illegal and perverse and the same is based on misreading and non-reading of the evidence and the same cannot be allowed to stand. 2364 wherein this Court held that the finding of issue No. 1 therein is absolutely illegal and perverse and the same is based on misreading and non-reading of the evidence and the same cannot be allowed to stand. ( 6 ) LEARNED counsel for the appellant further submits that the landlord is best judge of his need and it does not lie in the mouth of the tenant to say the landlord to search for another shop to establish a business for himself or for his any dependent or for any family member. Learned counsel has relied on certain decisions in Ragavendra Kumar vs. Firm Prem Machinary and Co. , AIR 2000 SC 534 = RLW 2000 (3) SC 449; in Gopal Das vs. Kasturi Devi Begani, 2002 (2) RCJ 49; in Govind Prasad vs. Bangali, RLW 1996 (3) (Raj.) 362; in virendra Kumar Khanna vs. ' Sri Manish Chhatwal, 2009 (1) RCR 327; in siddalingamma and Anr. vs. Mamtha Shenoy, (2001) 8 SCC 561 ; in R. C. Tamrakar and Anr. vs. Nidi Lekha, (3001) 8 Stc 431; in Smt. Ramkbai since deceased by lrs and Ors. vs. Hajarimal Dhokalchand Chandak and Ors. , AIR 1999 SC 3089 and in Meenal Kknath Kshirsagar vs. M/s. Traders and Agencies, 1997 (1) All India rent Control Journal 395. ( 7 ) PER contra, learned counsel appearing for the respondent-defendant contended that there is variance between the pleadings and proof with regard to the reasonable and bonafide necessity of the appellant-plaintiff. He has relied on decisions of Hon'ble Supreme Court in Indrasen Jain vs. Rameshwardas, AIR 2005 SC 578 ; in Sri Balaji Krishna Hardware Stores vs. Srinivasaiah, AIR 1998 SC 994 ; in Cernpaiah vs. Lingaiah and Ors. , (2001) 8 SCC 718 ; in Heera Lai vs. Manidr Shri Thakurji Sangria and Anr. , 2005 (1) RCJ 451 = rlw 2005 (2) Raj. 1114; in Bhagirath vs. Ram Prasad and Anr. , RLR 1987 (1) 88; in Messrs. Trojan and Co. vs. RM. N. N. Nagappa Chettiar, AIR 1953 SC 235 ; in M/s. Shiv Bhagwan Viday Shankar vs. Thakaramal and Anr. , 1981 WLC (UC) Raj. 121; in Abdul Sarnad Makhadum Baksh Sheikh and etc. vs. Sau. 1114; in Bhagirath vs. Ram Prasad and Anr. , RLR 1987 (1) 88; in Messrs. Trojan and Co. vs. RM. N. N. Nagappa Chettiar, AIR 1953 SC 235 ; in M/s. Shiv Bhagwan Viday Shankar vs. Thakaramal and Anr. , 1981 WLC (UC) Raj. 121; in Abdul Sarnad Makhadum Baksh Sheikh and etc. vs. Sau. Sudha Anant parakhe, AIR 1982 Bombay 585; in S. J. Ebenezer vs. Velayudhan and Ors, AIR 1998 SC 746 ; in Deena Nath vs. Pooran Lai, RCR 2001 (2) SC 130; in Sadiq Ali vs. Sagarmal, AIR 1994 Raj. 203 ; in Chhogalal vs. Bhanwarlal, 1991 (1) Rent Control report 325 = 1989 (2) RLW 225. ( 8 ) LEARNED counsel for the respondent further submits that respondent-defendant came with a case that shop "birla Bartan Bhandar" is lying Vacant and therefore, it was the best evidence available with the appellant-plaintiff to have come with a case to say that shop is not vacant and it is already in the tenancy of "birla Bartan Bhandar", the proprietor of which at the relevant time was Bachhraj, but the evidence of rent receipt in favour of "birla Bartan bhandar" has not been filed before the trial Court and therefore, the adverse inference ought to have been drawn against the appellant-plaintiff for not producing the best evidence available with hini. Learned counsel has relied on a decision of Hon'ble Supreme Court in Gopal Krishnaji Ketkar vs. Mohamed Haji Latif and Ors. , 1968 SC 1413. ( 9 ) I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties. ( 10 ) IN Govind Prasad vs. Bangali (supra), eviction suit came to be filed on the ground of reasonable and bonafide necessity by the plaintiff stating therein that he has no other accommodation. The plaintiff was in rented premises. The tenant did not make any efforts to seek any other accommodation. This court held that the plaintiffs requirement is reasonable and bonafide. The plaintiff was in rented premises. The tenant did not make any efforts to seek any other accommodation. This court held that the plaintiffs requirement is reasonable and bonafide. ( 11 ) IN Virendra Kumar Khanna vs. Sri Manish Chhatwal (supra), the allahabad High Court held that in a suit by a landlord on the ground of the suit premises being required for reasonable and bonafide necessity, the landlord is not obliged to indicate the nature of business and even if nature of business is disclosed in the suit, nobody can bind the landlord to start the same business after the shop was vacated. ( 12 ) IN Ragavendra Kumar vs. Firm Prem Machinary and Co. (supra), the hon'ble Supreme Court observed as under:- "the learned single Judge of the High Court while formulating first substantial question of law proceeded on the basis that the plaintiff-landlord admitted that there were number of plots, shops and houses in his possession. We have been taken through the judgments of the court below and we do not find any such admission. It is true that the plaintiff-landlord in his evidence stated that there were number of other shops and houses belonging to him but he made a categorical statement that his said houses and shops were not vacant and that suit premises is suitable for his business purpose. It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. (See Prativa Devi (Smt.) vs. T. V. Krishnan, (1996) 5 SCC 353 ). In the case in hand the plaintiff-landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot bee faulted. " ( 13 ) IN Gopal Das vs. Kasturi Devi Begani (supra), the Chhattisgarh High court held that landlord is the best judge of his requirement for residential or business purpose. It shall be presumed, unless contrary it is proved that requirement of landlord with reference to Clause (a) or Clause (b) of Section 23-A of the M. P. Accommodation Control Act, is bonafide. ( 14 ) IN Shiv Sarup Gupta vs. Mahesh Chand Gupta, (1999) 6 SCC 222 , the hon'ble Supreme Court while considering the term "bonafide" held that the term bonafide or genuinely refers to a state of mind. ( 14 ) IN Shiv Sarup Gupta vs. Mahesh Chand Gupta, (1999) 6 SCC 222 , the hon'ble Supreme Court while considering the term "bonafide" held that the term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much more higher than in mere desire. The phrase "required bonafide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere and honest desire in contradistinction with a mere pretence or pretext to evict a tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. ( 15 ) IN Prativa Devi vs. T. V. Krishnan, (1996) 5 SCC 353 , the Hon'ble supreme Court held that it is a settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. Similarly in John Mathai Abraham vs. M/s. British Physical Lab, India Ltd, 2001 AIR SCW 4661, the Hon'ble Supreme court held that merely because the appellant is living in a room of the huge building which does not exclusively belong to him, it cannot be said that his requirement to occupy the premises for his residence and professional requirement is not reasonable and bonafide. ( 16 ) IN Siddalingamma and Anr. vs. Mamtha Shenoy (supra) the Hon'ble supreme Court while considering the reasonable and bonafide requirement of landlord held that the question to be asked by a judge of facts, by placing himself in the place of the landlord, is, whether in he given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere honest. If the answer be in the positive the need is bonafide. The concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. If the answer be in the positive the need is bonafide. The concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself and dwell in lesser premises so as to protect the tenant's continued occupation in tenancy premises. ( 17 ) IN R. C. Tamrakar and Anr. vs. Nidi Lekha (supra), the Hon'ble Supreme court held that it is for the landlord to decide how and in what manner he should live and that he is the best judge of his residential requirement, in deciding the question of the bonafide requirement, it is unnecessary to make an endeavour as to how else the landlord could have adjusted himself. ( 18 ) IN Smt. Ramkubai since deceased by LRs. and Ors. vs. Hajarimal dhokalchand Chandak and Ors. (supra), the Hon'ble Supreme Court observed as under:- "the only other aspect which is required to be noticed is requirement of sub-section (2) of Section 13 of the Act. It enjoins the Court not to pass decree for eviction under clause (g) of sub-section (1) if, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, it is satisfied that greater hardship would be caused by passing the decree than by refusing to pass it and if the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court has to pass the decree in respect of such part only. " ( 19 ) IN that case, for whom the reasonable and bonafide necessity was shown, namely, Bhikchand was unemployed on the date of filing of the suit and the Hon'ble Supreme Court observed that he could not be expected to idle away the time by remaining unemployed till the case is finally decided. " ( 19 ) IN that case, for whom the reasonable and bonafide necessity was shown, namely, Bhikchand was unemployed on the date of filing of the suit and the Hon'ble Supreme Court observed that he could not be expected to idle away the time by remaining unemployed till the case is finally decided. It has already taken about 25 years and therefore, the Hon'ble Supreme Court did not think that taking up contractor work, in the meanwhile, will militate against his carrying on the business of Kirana which is his family business, which was carried on by his father and is being carried on by his brother independently. The facts that the landlady during her lifetime was a partner in the firm carrying on Kirana business and her elder son is carrying on Kirana business do not disentitle Bhikchand to establish his own business. On these premises, the 1 lon'ble Supreme Court was not impressed by the other reason-ing and conclusion of the appellate Court which were confirmed by the High court and held that none of the reasons leads to the inference that Bhikchand cannot be denied to the landlady to recover the suit premises for personal requirement of Bhikchand to establish Kirana business independently. ( 20 ) IN Meenal Kknath Kshirsagar vs. M/s. Traders and Agencies (supra), the hon'ble Supreme Court held that it is for the landlord to decide how and in what manner he should live and that he is the best judge of his residential requirement. If the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient it is not for the courts to dictate him to continue to occupy such premises. ( 21 ) IN Sri Balaji Krishna Hardware Stores vs. Srinivasaiah (supra), the hon'ble Supreme Court observed as under:- "the question is, assuming the landlord's requirement was bona fide, whether the landlord was justified in not giving the above shop to his son Madangopal and giving it to his daughter-in-law and other sons. It is not stated that the daughters-in-law are having business and require a shop or that their need was greater than that of Madangopal. It is not stated that the daughters-in-law are having business and require a shop or that their need was greater than that of Madangopal. It has not been explained as to why the shop immediately behind the appellant's shop which could be reached from the front side through the passage between the appellant's shop on the right and Srinivas glass Agencies on the left, was not suitable. In the absence of any explanation as to why this shop behind the appellant's shop was not found suitable, we are constrained to hold that the conclusion of courts below that it was not suitable for the landlord's son business was not tenable. Learned counsel for the respondent-landlord said that the shop was not abutting the road but was behind the front shop occupied by the appellant and could be reached only through the passage between the 2 shops on the front side. We are unable to see why the said shop could be said to unsuitable for business in glass and plywood. In our view, the Courts below ought, on these facts to have come to the conclusion that the action of the landlord in not using the said shop behind the appellant's shop which so fell vacant for his son's business and in allowing his daughters-in-law and other sons to use the same, was not bona fide. " ( 22 ) IN Indrassen Jain vs. Rameshwardas (supra), the landlord therein retired as Principal from private school. He purchased already rented property five years after his retirement and issued a notice of eviction to the tenant after more than one year of the said purchase, the Hon'ble Supreme Court observed that entire sequence of events is not showing any bonafides on the part of the landlord. There is nothing to show how suddenly need for doing business in suit premises arose to the landlord and on these premises, it was held that the claim of the landlord for suit premises is not bonafide but it was malafide and therefore, the landlord is not entitled to claim eviction under section 23-A (b) of Madhya Pradesh Accommodation Control Act. ( 23 ) IN Kempaiah vs. Lingaiah and Ors. ( 23 ) IN Kempaiah vs. Lingaiah and Ors. (supra), the Hon'ble Supreme Court held that it may have been a wish or desire of the appellant landlord to occupy the leased premises but he failed to prove the reasonable bona fide requirement as contemplated under Section 21 (a) (h) of the Karnataka Rent control Act, 1961. The word "require" used in clause (h) of sub-section (1) of section 21 of the Karnataka Rent Control Act implies something more than a mere wish or impulse or desire on the part of the landlord. Although the element of need is present in both the cases, the real distinction between "desire" and "require" lies in the insistence of the need. There is an element of "must have" in the case of "require" which is not present in the case of mere "desire". The ground mentioned in clause (h) of sub-section (1) of Section 21 of the Act emphasises on the genuineness of the requirement of the landlord. The term "reasonable and bona fide requirement" are complementary and supplementary to each other in the context. ( 24 ) IN Heera Lai vs. Mandir Shri Thakurji Sangria and Anr. (supra) in a suit for eviction on the ground of bonafide requirement for education institution, this Court observed that pleadings are vague evidence scanty. Test has not been properly applied by Courts below while decreeing the suit and it was held that the decree is not sustainable. In that case, the requirement of landlord reasonable and bonafide was not established and therefore, the question of comparative hardship and partial eviction does not arise. ( 25 ) IN Bhagirath vs. Ram Prasad and Anr. (supra), this Court held that merely because defendant has not been able to prove by evidence that plaintiff had filed suit for oblique motive like increase of rent, it cannot be said that bonafide need of plaintiff has been proved. Mere desire of landlord is not sufficient. ( 26 ) IN M/s. Shiv Bhagwan Viday Shankar vs. Thakaramal and Anr. (supra), this Court held that merely because defendant has not been able to prove by evidence that plaintiff had filed suit for oblique motive like increase of rent, it cannot be said that bonafide need of plaintiff has been proved. Mere desire of landlord is not sufficient. ( 26 ) IN M/s. Shiv Bhagwan Viday Shankar vs. Thakaramal and Anr. (supra), this Court held that it has not been proved that the plaintiffs were carrying on any business at the time of the institution of the suit which they intended to shift to the shop in dispute and on these premises, the court was unable to hold that the plaintiff has proved any reasonable and bonafide necessity for the suit shop for shfihng his business which he allegedly carried on some rented shop at the time of institution of the suit. The case that the plaintiffs required the shop in dispute for starting a new business was not upheld as it was contrary to the case. ~et up in the plaint. ( 27 ) IN Abdul Samad Makhadum Baksh Sheikh and etc. vs. Sau. Sudha anant Parakhe (supra), the Bombay High Court held that in a suit for eviction on the ground of bonafide personal requirement when the evidence at variance with allegations in plaint, the decree of eviction on such basis cannot be made out. ( 28 ) IN S. J. Rbenezer vs. Velayudhan and Ors. (supra), the Hon'ble Supreme court held that while considering the question of bonafides, what is necessary to bear in mind is that mere desire on the part of the landlord is not enough. The desire must be tested objectively and not subjectively. The burden also lies upon the landlord to establish that he genuinely requires the accommodation for the purpose of starting or continuing his own business. ( 29 ) IN Deena Nath vs. Pooran Lai (supra), the Hon'ble Supreme Court observed as under:- "the Legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bona fide which is intended to avoid the mere whim or desire. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bona fide which is intended to avoid the mere whim or desire. The 'bona fide requirement' must be in praesenti and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation. Similar statutory provisions is made in sub-section (e) of Section 12 (1)of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the Court is duty-bound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable non-residential accommodation in his occupation in the city/town is available. The judgment/order of the court/auihority for eviction of a* tenant which does not show that the court/authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in upsetting such judgment/order in appeal/second appeal/revision. Bona fide requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the Court has to bear in mind the statutory mandate incorporated in Section 12 (l) (f ). If it is found that the court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bona fide requirement would cease to be a mere finding of fact, for such erroneous finding illegally arrived at would vitiate the entire judgment. In such case the High Court cannot be faulted for interfering with the finding in exercise of its second appellate jurisdiction under Section 100 of the Code of Civil Procedure. " ( 30 ) ON the point of variance between the pleadings and proof, the hon'ble Supreme Court in Messrs. Trojan and Com. In such case the High Court cannot be faulted for interfering with the finding in exercise of its second appellate jurisdiction under Section 100 of the Code of Civil Procedure. " ( 30 ) ON the point of variance between the pleadings and proof, the hon'ble Supreme Court in Messrs. Trojan and Com. vs. R. M. N. N. Nagappa chettiar (supra) held that the decision of a case cannot be based on the grounds outside the pleadings of the parties and it is the case pleaded that has to be founded. ( 31 ) IN Sadiq Ali vs. Sagarmal (supra) where the tenancy was created for commercial purpose, it was held that decree of eviction cannot be granted on the mere fact that tenant acquired another shop. ( 32 ) IN Chhogalal vs. Bhanwarlal (supra), in a suit for ejectment on the ground of reasonable and bonafide necessity, the landlord wanted the possession of shop falling vacant during pendency of first appeal, the landlord not occupying the shop but re-let the same to another tenant. This Court held that it was unwise to fetter the choice of the landlord in matter of choosing particular building as long his need is not designed or motivated or prompted by an oblique purpose. ( 33 ) IN the instant case, the substantial question of law formulated in the appeal centres around the finding of the court below on the issue Nos. 1 and 2. Issue Nos. 1 and 2 reads as under:-1. Whether the suit shop is required by the landlord-appellant -plaintiff for the business of his son Salim Khan reasonably and bonafidely? 2. Whether in the event of decree of eviction being not passed, the plaintiff would suffer comparatively more hardship than of the defendant? ( 34 ) THE plaintiff in para 3 of his plaint has categorically pleaded that plaintiffs son Salim Khan wanted to start his own business and therefore, the plaintiff requires the suit shop reasonably and bonafidely for his son Salim khan to have his own business in the suit shop. It has further been pleaded that in the suit shop, his son Salim would start the business of foodgrains, edible condiments etc and for that the suit shop is very suitable. Apart from this, there had been pleadings with regard to the other issues but since the substantial question of law centers around the issue Nos. It has further been pleaded that in the suit shop, his son Salim would start the business of foodgrains, edible condiments etc and for that the suit shop is very suitable. Apart from this, there had been pleadings with regard to the other issues but since the substantial question of law centers around the issue Nos. 1 and 2, therefore, the pleadings and other issues are not taken note of. Further, the plaintiff pleaded in para 5 of the suit that despite his own shop, his son Salim Khan is trading uncomfortably in the market by wandering. He further pleaded that in the event of the decree of eviction is passed, the respondent-defendant-tenant would not suffer any hardship since the respondent-defendant is having his own premises in the same locality and if the decree is denied, the plaintiff would suffer comparatively more hardship. So far as the partial eviction is concerned, it has been pleaded that by partial eviction of suit shop, the reasonable and bonafide requirement of the plaintiff-landlord would not be fulfilled. The respondent-defendant also came with a case in the written statement that partial eviction of the suit is not possible. ( 35 ) IN the written statement filed by the respondent-defendant, the respondent-defendant denied the reasonable and bonafide need of the suit shop for the plaintiffr son Salim Khan on the ground that the plaintiffs son salim Khan has been serving in Overnight Express Courier for last 6-7 years, and the suit has been filed in order to increase the rent of Rs. 500/- per month, which the defendant-respondent did not agree. It has further been pleaded that in the same building shop No. 1, which was rented to the proprietor of "birla Bartan Bhandar," has been vacated three years ago and possession has been handed over to the plaintiff and that shop is still lying vacant. The plaintiff-Kalu Khan filed the affidavit on which he was cross-examined by the respondent-defendant. He stated that his son Salim Khan aged 28 years wanted to start his own business and therefore, for starting business of his son salim Khan, the suit premises are required reasonably and bonafidely. The plaintiff further stated that he requested the respondent-defendant in the month of February, 2002 to vacate the shop so that his son Salim Khan can start his own business of foodgrains, edible condiments etc. The plaintiff further stated that he requested the respondent-defendant in the month of February, 2002 to vacate the shop so that his son Salim Khan can start his own business of foodgrains, edible condiments etc. However, despite assurance, the tenant did not vacate the suit shop. He further stated that the respondent-defendant is having his own house at the main road of the market, inside Siwanchi Gate having got constructed number of shops thereon and out of those shops, one of the shop is lying vacant in the possession of the respondent-defendant, which is more suitable for the respondent-defendant to shift his business to his own shop and in the event the suit shop is vacated, the respondent-defendant would not suffer any hardship or inconvenience as he would have been in position to shift his shop in the premises lying vacant in his possession. It has further been stated that in the event of partial evciction decree of suit shop, the need of plaintiff-appellant would not be fulfilled. In the cross-examination, he also stated that in shop No. 1 of his property, Bachhraj Birla is the tenant,, in shop No. 2 which is the suit shop, the respondent-defendant is the tenant and shop No. 3 is in tenancy of Mohan Lai and shop No. 4 is in tenancy of Tejraj Ji, who said to have expired. In further cross-examination, he stated that in one of his shop, the "birla Bartan bhandar" Bachhraj is the proprietor and is tenant. On being suggested that in the shop, the proprietor of "birla Bartan Bhandar" was tenant, he stated that not only the "birla Bartan Bhandar" was tenant but it is still tenant. He specifically denied suggestion that before 6-7 years, the shop of "birla Bartan bhandar" was vacated, however, stated that he is no aware as to whether the business is being carried out in the "birla Bartan Bhandar" shop by tenant or not. He specifically denied that before filing of the suit, the "birla Bartan bhandar" shop was lying closed. He admitted that his son Salim Khan is working part-time in Overnight Express Courier and for the remaining time, he is trading in supply of foodgrains by taking order from the market. The plaintiff further stated that he is living separate and therefore, he does not know since when his son is serving part-time in Courier Service. He admitted that his son Salim Khan is working part-time in Overnight Express Courier and for the remaining time, he is trading in supply of foodgrains by taking order from the market. The plaintiff further stated that he is living separate and therefore, he does not know since when his son is serving part-time in Courier Service. He specifically stated that at the time of giving notice for eviction of the suit premises, the suit shop was required by his son Salim Khan to start his own business and Salim Khan is member of his family. He further stated that his son Salim Khan had not done the business of selling the foodgrains, however, admitted that the suit shop is required for his son Salim Khan for enhancing his business. On the suggestion being made by the respondent-tenant that why the plaintiff-appellant did not file a suit for eviction against the tenant of "birla Bartan Bhandar", the plaintiff stated that he took the loan from the tenant of "birla Bartan Bhandar" and until and unless he repays the loan amount to the tenant of "birla Bartan Bhandar", he cannot file suit for eviction against him. He further stated that whenever he needs amount, he used to take loan from the tenant of "birla Bartan Bhandar". He further stated that the respondent-defendant had four shops inside the siwanchi Gate and all the four shops have been with the respondent-defendant from the time of his father and are on rent. However, he further stated that in the residence of the respondent-defendant, there is a room on the ground floor which can be used as shop by the respondent-defendant. The son of appellant-plaintiff, namely, Salim Khan filed an affidavit and was also subjected to the cross-examination by the respondent- defendant. He stated that shop No. 2 situated inside Siwanchi Gate has been rented out to the defendant-Prakash Chandra. He wanted to start his own business of foodgrains, edible condiments and other provision articles and presently, he does not have any shop with him. On the contrary, he takes retail orders by wandering in the market for supply of foodgrains, edible condiments etc. for last six years and therefore, the suit shop is needed for enhancing his business and in absence of the said shop, he is unable to enhance his business. On the contrary, he takes retail orders by wandering in the market for supply of foodgrains, edible condiments etc. for last six years and therefore, the suit shop is needed for enhancing his business and in absence of the said shop, he is unable to enhance his business. He also stated that area where the suit shop is situated, is a very good Mandi of foodgrains and edible condiments. He further stated that the suit shop is required reasonable and bonafidely for starting his own business. The son of the appellant-plaintiff further stated that the respondent-defendant have a suitable shop in the very areas and therefore, in case the suit shop is not vacated, his future will be ruined. On being cross-examined, he stated that he is living separately from his father, however, his brother Imran is living with his father. He also stated that in his father's property, there are four shops. He denied the shop "birla Bartan Bhandar" having remain closed and stated that the said shop is not closed but its tenant do not open it regularly. However, he does not know since how long, there had been business in "birla Bartan bhandar". He stated that the tenant opens the shop but could not say in how many days in a month, the shop remained closed. He further stated that when the suit was filed, he was serving in Overnight Express Courier but now trading in supply of edible condimants items. He admitted that in the suit, he has stated that he has been trading by wandering in the market. However, he denied that his father wanted to enhance the rent of the suit shop. He pleaded ignorance that after filing of this suit for eviction, his father has filed any against the respondent-defendant for revision of rent. He admitted that he has not been in business of selling the foodgrains. He also stated that he has no knowledge that his father had transaction with "birla Bartan Bhandar" tenant. He further stated that the defendant is residing inside Siwanchi Gate having their own property where 3-4 shops are situated and one of the shop is lying vacant. He denied that in all the four shops of the respondent-defendant, there are tenants, namely, Ramakishan Ji, Mahendra Kumar, Babuji Bhutra and surajman. He further stated that the defendant is residing inside Siwanchi Gate having their own property where 3-4 shops are situated and one of the shop is lying vacant. He denied that in all the four shops of the respondent-defendant, there are tenants, namely, Ramakishan Ji, Mahendra Kumar, Babuji Bhutra and surajman. However, he stated that one of the shop is lying vacant for the last six years which does not have even shutter, on the contrary, it has a wooden door and through which the defendant climbs the stairs going to his house. He stated that house situated in the market is being used as a shop on rent. He further stated that from the Courier Service and flour condiment's business, he is able to earn Rs. 4000-5000 per month. ( 36 ) AS against the evidence of plaintiff appellant, the respondent-defendant denied the case of appellant-plaintiff and stated in his statement that out of the four shops of the plaintiff, he plaintiff-appellant got one shop vacated from the "birla Bartan Bhandar", which was given on rent seven years ago and got the possession thereof. That shop is lying vacant and closed as yet. In cross-examination, he stated that on the basis of the talk in market he is saying that the shop which was given on rent to "birla Bartan Bhandar" is lying vacant for 10-11 years. He further states that the proprietor of "birla Bartan bhandar", namely, Bachhraj Ji has expired living behind him his three sons. What has been agreed upon between the plaintiff-appellant and tenant-Bachhraj Ji's son, he does not know. The shop "birla Bartan Bhandar" is closed because of disconnectivity of the water and electricity supply on that basis, he stated that the said shop is vacant. However, he further stated that the shop is closed and therefore he says that the shop has been vacated. ( 37 ) THE other evidence produced by the respondent-defendant is of razab Ali and Orn Prakash. The witness Om Prakash stated that he is not in a visiting terms of the defendant since from childhood. He further stated that in earlier suit, he deposed in favour of the respondent-defendant Prakash Chand and in a suit filed by him, the respondent-defendant Prakash Chand stood as witness in his favour. The witness Om Prakash stated that he is not in a visiting terms of the defendant since from childhood. He further stated that in earlier suit, he deposed in favour of the respondent-defendant Prakash Chand and in a suit filed by him, the respondent-defendant Prakash Chand stood as witness in his favour. On careful perusal of the whole of the statement, it appears that he neither supports to the plaintiff nor the defendant and at most of the time, pleaded ignorance. Even he could not say that the respondent-defendant has four or five shops. Thus, from the statement of this witness Om prakash, it appears that he has been witness in favour of the respondent-defendant and Ohm Prakash is witness in his favour in the suit filed by the appellant-plaintiff. Similarly the witness Abdul Shakur also did not state anything with regard to the necessity of the either parties. The respondent-defendant served a notice dated 26. 6. 2000 and in reply thereto, the appellant-plaintiff through his counsel replied the notice, vide Exhibit-9 dated 14. 7. 2000. It has been averred that appellant-plaintiff does not require that suit premises reasonably and bonafidely for his son. There is no mention about "birla Bartan bhandar" shop being lying vacant. ( 38 ) FROM the evidence discussed hereinabove, the first appellant Court in para 9 of the judgment impugned has emphasized that in his written statement filed by the respondent-defendant, the respondent-defendant stated that the appellant-plaintiffs son Salim Khan is serving in Overnight Express courier and the shop "birla Bartan Bhandar" has been vacated and vacant possession has been handed over to the plaintiff-appellant. This fact stated in the written statement has not been controvered by way of filing the rejoinder and therefore, on this basis, held that plaintiff-appellant is having a vacant possession of shop "birla Bartan Bhandar". On the close scrutiny of the statement of the plaintiff-appellant and his son Salim Khan and even the statement of the respondent-defendant, in my view, it has not been established that "birla Bartan Bhandar" shop has been vacated by its tenant-Bachhraj or after his death by his three sons; and vacant possession has been handed over to the appellant-plaintiff. On the contrary, the respondent-defendant himself came with a case while cross-examinating the plaintiff-Kalu khan that why the plaintiff-Kalu Khan did not file a suit of ejectment against the tenant "birla Bartan Bhandar". On the contrary, the respondent-defendant himself came with a case while cross-examinating the plaintiff-Kalu khan that why the plaintiff-Kalu Khan did not file a suit of ejectment against the tenant "birla Bartan Bhandar". This clearly goes to show that the shop "birla Bartan Bhandar" has never been vacated by its tenant or handed over the possession thereof to the plaintiff-appellant. Had the shop "birla Bartan bhandar" vacated or possession thereof had been handed over to the appellant-plaintiff, there was no necessity for the respondent-defendant to come with a case that why the plaintiff-appellant did not file a suit for eviction of the shop against "birla Bartan Bhandar. " Though the plaintiff-appellant has categorically stated that he has taken loan from the proprietor and tenant of the shop "birla Bartan Bhandar" and until and unless he repays the loan amount to the proprietor tenant of "birla Bartan Bhandar" shop, he would not file a suit for ejectment or eviction of the said shop against its proprietor tenant. Even from the statement of the respondent-defendant, it is clear that the respondent-defendant stated that there is a talk in market that the "birla bartan Bhandar" shop has been closed and lying vacant. Thus, the basis on which the respondent-defendant came with a case that the shop "birla Bartan bhandar" is lying vacant and possession thereof has been handed over to the plaintiff-appellant is only a talk in market. The talk in market cannot be said to be a direct evidence to establish the fact that "birla Bartan Bhandar" shop has been vacated by its tenant and the possession thereof has been handed over to the plaintiff-appellant. Thus, in my view, both the courts below fell in error in not correctly reading and appreciating the evidence of the appellant-plaintiff, his son Salim Khan as also the respondent-defendant Prakash chandra in arriving at a conclusion that the plaintiff-appellant does not require the shop in question reasonably and bonafidely. Even from the evidence, as noticed above, with regard to the plaintiff-appellant's son Salim Khan working part time with Overnight Express Courier or part-time wandering in the market and taking retail orders for supply of foodgrains is concerned, would not disentitle the plaintiff-appellant to settle his son in a proper business by establishing a business in the market where the suit shop is situated for trading foodgrains edible condiments etc. The statement of plaintiffs son salim Khan that he needs the suit shop for enhancing his business and the pleadings in the plaint that the plaintiff-appellant needs the suit shop for his son Salim Khan to establish a business in market for selling foodgrains and edible condiments etc cannot be said to be variance between the pleadings and the proof. So far as it 'relates to the requirement of the suit shop reasonably and bonafidely for the son of appellant-plaintiff, namely, Salim khan, for enhancing his business which according to the witness Salim Khan is that he has been wandering in the market for taking orders and supply the edible condiments etc. would mean to establish his own business in the suit shop for trading of foodgrains and edible condiments etc. and therefore, the substance of the statement of the witnesses, noticed above, is that the plaintiff-appellant requires the suit shop reasonable and bonafide for establishing the business of his son Salim Khan and therefore, such requirement or need cannot be said to be fanciful or mere desire while adjudging the requirement of the landlord bonafide. The bonafide requirement must be an outcome of the sincere and honest desire in contradistinction with a mere pretext for evicting tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. On the given facts of this case, in my view, the plaintiff-appellant succeeded in proving, by material and reliable evidence on record, that his need to occupy the premises in question for establishing a business for his son Salim Khan for selling and trading foodgrains, edible condiments etc. is most natural, real, sincere and honest to the extent that his son has been wandering in market for taking orders and selling edible condiments etc. and part-time working with Overnight Express Courier in order to augment his monthly income. The appellant-plaintiffs son requires the suit shop to establish a stable business in a shop situated in main market and therefore, in my view, the landlord is the best judge to decide as to how he would use the suit shop after the eviction of the tenant. The appellant-plaintiffs son requires the suit shop to establish a stable business in a shop situated in main market and therefore, in my view, the landlord is the best judge to decide as to how he would use the suit shop after the eviction of the tenant. As to whether the plaintiff-appellant's son Salim Khan had a past experience in trading of foodgrains is not requirement in view of the catena decisions of the Hon'ble Supreme Court referred hereinabove. It does not lie in the mouth of the respondent-tenant to say that the appellant-plaintiffs son salim Khan does not have any experience in trading foodgrains and is part-time employed with Overnight Express Courier. The tenant cannot dictate over the landlord or his family members as to how and in what manner they should earn their livelihood or run the business or the trade. In my view, the choice would definitely of landlord in adjudging his requirement of the suit premises though must be reasonable and bonafide. ( 39 ) FROM the facts and circumstances of the case and evidence discussed hereinabove, in my view, the contention of learned counsel for the respondent that the landlord had alternative accommodation with him i. e. "birla Bartan Bhandar" shop or that his son Salim Khan is serving in Overnight express Courier, have not been established by the evidence. On the contrary, it has been established that neither the shop rented to "birla Bartan Bhandar" has been vacated nor the vacant possession has been handed over to the plaintiff-appellant. This is more clear from the stand taken by the respondent-defendant asking plaintiff-appellant that why he did not file a suit for eviction against the tenant "birla Bartan Bhandar. " This stand of the respondent-defendant clearly goes to indicate that the shop rented to "birla Bartan bhandar" is yet in possession of its tenant, may be often remained close but for that it is for the tenant as to whether he opens the shop daily or with certain intervals. At any rate, the vacant possession of the "birla Bartan bhandar" shop has not fallen in the hands of the plaintiff-appellant and thus, the plaintiff-appellant do not have any accommodation with him where he could establish his son Salim Khan by opening shop of foodgrain and edible condiment etc. At any rate, the vacant possession of the "birla Bartan bhandar" shop has not fallen in the hands of the plaintiff-appellant and thus, the plaintiff-appellant do not have any accommodation with him where he could establish his son Salim Khan by opening shop of foodgrain and edible condiment etc. ( 40 ) THE contention of learned counsel for the respondent that the decision of a case cannot be based on the grounds outside of the pleadings of the parties and the case pleaded, that has to be founded, in my view, in the instant case, there is no variance between the pleadings and proof so far as the landlord requiring the suit shop reasonable and bonafide for establishing a business of his son Salim Khan is concerned. On the contrary, the pleadings and the evidence produced by the plaintiff-appellant in this respect is consistent and therefore, the decisions relied on by learned counsel for the respondent on this point turn on their own facts and are of no help to the respondent. ( 41 ) SO far as drawing an adverse inference against the appellant-plaintiff that the best evidence of the rent receipt in favour of tenant "birla Bartan bhandar" has not been filed before the trial Court, in my view, there was no such issue to establish that "birla Bartan Bhandar" is still in tenancy of bachhraj or after his death in his sons. There was no dispute between the appellant-landlord and the tenant of "birla Bartan Bhandar" shop and under these circumstances, it cannot be said that the appellant has withheld any material evidence requiring the court to draw an adverse inference against him. The decision relied on by learned counsel for the respondent in this regard also turns on its own facts and is not applicable to the facts and circumstances of this case. The decision relied on by learned counsel for the respondent in this regard also turns on its own facts and is not applicable to the facts and circumstances of this case. ( 42 ) WHILE considering the question of comparative hardship, from the evidence available on record, more particularly, the statements of appellant-Kalu Khan and his son Salim Khan, which remain uncontroverted to the extent that the defendant-respondent had four shops which said to have been given on rent to certain tenants but having a room in his own house which is situated in the same locality in the main market covered by a wooden door abutting the main road, the defendant-respondent can shift his business to his own room which is lying vacant by converting into a shop. Even otherwise, while adjudging the comparative hardship from the evidence, as noticed above, in my view, in the event of decree of eviction is passed, the respondent-defendant would not be put to any inconvenience or hardship as compare to the plaintiff-appellant and on the denial of decree of eviction, the plaintiff-appellant would suffer serious set back of not able to establish his son salim Khan in business and therefore, the appellant-plaintiff would suffer more inconvenience and comparative greater hardship than that of the respondent-defendant if the tenant is not ejected from the suit shop. In the circumstances, therefore, in my view, both the courts below fell in error in misreading and ignoring the material evidence as discussed above while deciding issue Nos. 1 and 2 in favour of the respondent-defendant and against the appellant-plaintiff. From the evidence noticed above, in my considered view, the appellant-plaintiff has been able to prove issue Nos. 1 and 2 in his favour and entitle for the decree, of eviction. ( 43 ) IN view of the aforesaid discussions, the Civil Second Appeal is allowed. The findings of. both the courts below on issue Nos. 1 and 2 are hereby set aside and decided in favour of the appellant-plaintiff. The judgments and decree passed by the trial Court and affirmed by the first appellate court dated 16. 4. 2007 and 27. 11. 2008 respectively are hereby set aside and the suit of the appellant-plaintiff against the respondent-defendant for eviction is decreed. There shall be no order as to costs. The judgments and decree passed by the trial Court and affirmed by the first appellate court dated 16. 4. 2007 and 27. 11. 2008 respectively are hereby set aside and the suit of the appellant-plaintiff against the respondent-defendant for eviction is decreed. There shall be no order as to costs. ( 44 ) AT this stage, learned counsel for the respondent-tenant submits that the suit premises is indisputably commercial premises and therefore, the respondent may be granted reasonable time of one year for vacating the shop in question. The request appears to be genuine and therefore, deserves to be accepted. ( 45 ) HAVING considered the facts and circumstances of the case in my view, ends of justice would be met in granting the period to the respondent to vacate the suit shop on or before 31. 1. 2011 on the following conditions:- (1) The respondent shall personally submit an undertaking supported by affidavit before the trial Court within thirty days from today to the effect that on or before 31st January, 2011, the respondent shall hand over peaceful and vacant possession of the premises in question to the appellant-landlord. The respondent shall also undertake not to cause any damage to the premises in question; not to make any alteration; not to assign, sublet or in any manner part with possession to any other person; not to put the premises to any use other than the present use; and not to cause any nuisance. (2) The respondent shall deposit within three weeks the arrears, if any, of the rent/mesne profits and shall further pay to the appellant-landlord the amount for use and occupation of the premises in question month by month or deposit this amount in the bank account of the landlord (particulars whereof may be furnished to the respondent within two weeks from today by the appellant-landlord)month by month on or before 15th day of the next month. ( 46 ) IT is made clear that upon the respondent's failure to comply with any of the conditions aforesaid or violating any term of the undertaking, the appellant landlord shall be entitled to execute the judgment and decree in accordance with law.