1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Civil Application No. 498 of 2009 IN Second Appeal St. No.1429 of 2009 [Zafar Ali son of Late Akbar Ali & ors. Vs. Smt. Shamim Akhatar w/o Akbar Saheb] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. A.M. Ansari, Adv., and Mr. H.D. Dangre, Adv., for appellants. ----- CORAM : A.H. JOSHI,J. DATE : 13th July, 2009. 1. This is an application for condonation of delay of 304 days in filing Second Appeal. 2. In the application for condonation of delay, notice thereof is issued at first hearing routinely. This is not done unmindfully, but is done mostly due to a feeling of compassion towards the litigant. Compassion is inevitably an essential ingredient of process of Administration of Justice. 2 3. It, however, lateron reveals in many cases that appeal itself is found to have no merit, and the respondent is vexed, though it was avoidable. 4. In order to avoid such a situation, it is felt that whenever, prima facie, merits of the appeal are not very strong, the respondent should not be unnecessarily vexed by issuing a notice in the application for condonation, filed in such appeal, i.e., appeal of doubtful merit. It would rather be preferable to hear the appeal to ascertain its merits. 5. Therefore, the learned Adv., for the appellants was called to argue and demonstrate the merit of appeal. 6. Learned Advocates for appellants urged that:- [a] It is a practice in vogue that ordinarily whenever the application for condonation of delay is listed for first hearing, notices or Rule are/is issued. [b] After respondents appear, the application for condonation has to be decided. [c] He, therefore, prayed for issue 3 of notice on application for condonation of delay, and defer the hearing on merits. 7. When informed that the merit of appeal will have to be demonstrated, learned Advocates have argued on merits. 8. Heard learned Adv. Mr. A.M. Ansari and Adv. and Mr. H. D. Dangre for the appellants. Perused the judgments impugned. F a c t s 9. The plaintiffs had sued for:- [a] Declaration that the sale-deed executed in favour of defendant on 14 th December, 1983 by Chhote Miya and Issaq Miya is null and void. [b] Injunction against defendant for protecting their possession. 10. Plaintiffs claimed source of ownership to be an oral gift, accompanied by delivery of possession in 1954. 11. The defendant claims to be owner of suit property on the basis of sale-deed and that she had demanded rent from the plaintiffs. 4 This demand of rent was treated by the plaintiffs as cause of action and, therefore, plaintiffs had filed suit, subject-matter. 12. In the suit, the learned Trial Judge framed issues based on plaintiffs claim and answered those in negative  rather in favour of the defendant, and ultimately the suit was dismissed. 13. On Issue No.1 as to oral gift, Trial Court found that the oral gift was not proved. Discussion in this regard is found in para 9 of the Judgment. This finding is affirmed by the First Appellate Court. 14. The judgment of the Appellate Court affirming the finding of the Trial Court is challenged by formulating various grounds. All the grounds launch a serious attack on the findings. A dispute as regards appreciation of evidence has been raised, yet, the fact-finding is not shown to be perverse and/or vitiated due to any illegality which can be challenged only on Substantial Questions of Law. 15. It is well known doctrine that a debate as to appreciation of evidence is not open in Second Appeal. 16. In the aforesaid premises, in an appeal, where only argument is as regards 5 appreciation of evidence, and which does not involve Substantial Questions of Law, it has no merit. In this situation, the respondent cannot be vexed by issuing a notice on the application for condonation of delay, as a routine matter. 17. The prayer for condonation of delay may be considered on facts of the case liberally, depending on case as may be made out, however, it does not mean that the merit of the main appeal/case cannot be looked into, whenever application for condonation of delay comes. As its corollary, in a merit-less case, the respondent should not be vexed through application for condonation of delay only. 18. Moreover, the practice in vogue is not of taking recourse to a doctrine which is the foundation of Rule 10 of Order 41 of Civil Procedure Code, for security or deposit towards costs. This Court is of the view that in border line case of merit of appeal, this provision may have to be resorted to, whenever application for condonation of delay is filed in such appeals. Costs of litigation, which are growing dearer, cannot be connived at. Same degree of compassion, as is needed towards any applicant, too is needed towards the sufferance of the respondent. 19. Keeping this point of view in mind, present application for condonation of delay 6 which is seen arising in a case, which does not involve any Substantial Questions of Law, does not deserve any indulgence even by way of issue of notice. 20. Therefore, present Civil Application does not deserve any indulgence, and is rejected. 21. In the circumstances, appeal does not survive, and is hereby rejected. Judge |Hedau| 7