An appellate court must decide an application for condonation of delay before proceeding with an appeal on merits.

1. The substantial questions of law formulated and to be answered in this defendant' s second appeal are as under:
"1. Whether the impugned judgment and decree confirming the decree passed by the trial Court is based on misreading of evidence and passed by overlooking the material evidence available on record and as such perverse?
2. Whether in the absence of any positive evidence adduced by the plaintiff to establish that the sale deed dated 29-9-1978 is null and void, the Courts below were justified to declare the sale deed as void by shifting the onus of proof upon the defendant?
3. Whether the lower appellate Court was justified in rejecting the application for condonation of delay in preferring the first appeal solely on the ground that the same has been filed with inordinate delay, without considering the explanation offered by the defendant for the same?"

2. The imperative facts required to be noticed for adjudication of this appeal are as under : [For the sake of convenience, the parties will be referred in the instant judgment as were referred in the suit.]
2.1 Respondent No. 1 / plaintiff filed a suit for declaration of title, confirmation of possession and to declare that the registered sale deed dated 29-9-1978 as null and void and not binding upon the plaintiff. Defendant filed his written statement and claimed that he has purchased the suit property from one Surbati by registered sale deed dated 29-9-1978.
2.2 The trial Court framed as many as nine issues on the basis of pleadings of the parties and by its judgment and decree dated 16-10-1997, decreed the suit in favour of the plaintiff.

3. On appeal being preferred by defendant No. 1 before the first appellate Court along with application for condonation of delay in filing the appeal as the appeal was barred by two years and two months, the first appellate Court did not consider the application for condonation of delay finally and held that the suit is barred by limitation and decided the appeal on merits, leading to filing of this Second Appeal under S.100 of the Code of Civil Procedure by the defendant No. 1, which has been admitted for hearing on the substantial questions of law formulated as mentioned in opening paragraph of this judgment.

4. Mr. Prafull N. Bharat, learned counsel appearing for the appellant / defendant would submit that the first appellate Court has committed palpable error of jurisdiction in dismissing the appeal on merits, without considering the application for condonation of delay finally. He would further submit that finding recorded by First Appellate Court dismissing the appeal without considering the sufficiency of the cause for delay in filing the appeal, is equally bad in law and consequently the impugned judgment and decree is liable to be set aside.

5. Per contra, Shri R. N. Jha, learned counsel appearing for the respondent No. 1 / plaintiff would submit that the judgment and decree passed by the trial Court is strictly in accordance with law and no substantial question of law is involved in this appeal with utmost circumspection.

6. I have heard learned counsel appearing for the parties, considered the rival submissions made therein and perused the records of both the courts below including judgment and decree impugned.
Answer to 3rd substantial question of law

7. The trial Court delivered its judgment and decree on 16-10-1997 and the first appeal was filed on 29-2-2000 before the first Appellate Court along with application for condonat