JUDGMENT : S.C. Mohapatra, J. - Defendants are the Appellants in this second appeal against a reversing judgment. 2. The following question of law has been formulated as required u/s 100, CPC "Whether the finding of the lower appellate Court on the question of Plaintiff's adoption is based on no evidence? 3. Admittedly, the Plaintiff and Defendant No. 1 belong to one Hindu Joint Family governed by Mitakshara school of law. Banchhanidhi and Gadadhar are two brothers. Plaintiff is the son of Gadadhar. Banchhanidhi had two wives. Defendant No, 1 is the second wife. Defendant No. 2 is the daughter of Banchhanidhi through his first wife. Defendant No. 3 is the husband of Defendant No. 2. 4. After the suit of Defendant Nos. 1 and 2 for recovery of possession was decreed against Gadadhar, the Plaintiff filed the present suit out of which the second appeal arises for declaration that he is the adopted son of Banchhanidhi and consequential reliefs based on such declaration. 5. The trial Court disbelieved the case of the Plaintiff that he is the adopted son of Banchhanidhi which was reversed in appeal. There is no documentary evidence to prove the adoption. The ell tire case depends upon the oral evidence. Normally a finding based on appreciation of oral evidence is a finding of fact which cannot be interfered with in second appeal. Where, however, there is no material in support of the finding, the same is contrary to law. Where some circumstances which would completely take away the effect of other evidence, have not been taken into consideration, the finding would be contrary to law. When the error of law affects the merits of the case, the same would be a substantial question of law. Question of law of academic interest or which would not affect the result of the case will not be substantial question of law. 6. The result of the suit would depend on the finding on adoption of the Plaintiff. For a valid adoption proof of giving and taking is essential. Banchhanidhi who is alleged to have taken in adoption is dead. Gadadhar who gave the Plaintiff in adoption is alive. He has not been examined in this case. No explanation has been rendered in evidence for non-examination of Gadadharas a witness. In course of argument, Mr. For a valid adoption proof of giving and taking is essential. Banchhanidhi who is alleged to have taken in adoption is dead. Gadadhar who gave the Plaintiff in adoption is alive. He has not been examined in this case. No explanation has been rendered in evidence for non-examination of Gadadharas a witness. In course of argument, Mr. C. R. Nanda, the learned Counsel for the Appellants, submitted that the appellate Court has not given any consideration to the absence of non-explanation as to why the natural father has not been examined and the effect of non-examination or any explanation thereof. Regarding the value of examination of the natural father as a witness, Mr. Nanda relied on a Division Bench decision of this Court reported in Jadumani Patra v. Padan Patra and Ors. 34 (1968) C.L.T. 778, where it has been held: ...... As pointed out earlier some of the close relations of the Plaintiff who could have given valuable evidence on this point have not been examined and it appears to us that such non-examination is not purely accidental. In these circumstances, we find that the Plaintiff has not succeeded in providing that he is adopted son of Rupa and that the learned Subordinate Judge was right in his finding that the adoption has not been established.... Mr. M. Patra, the learned Counsel for the Plaintiff-Respondent No. 1, tried to distinguish this case on facts, which does not impress me. Non-production of valuable evidence available would be an adverse circumstance which .the appellate Court has failed to consider for the purpose of finding a fact. 7. If the question would have been the effect of such non-examination. I would have considered the same in the second appeal. As I find this suit is from Nayagarh, a merged territory. Even in respect of pleadings in a suit from Cuttack, their Lordships of the Supreme Court in the case reported in Mohinder Singh Jaggi Vs. Data Ram Jagannath held that strict rules of intepretation of pleadings in the lower Court should not be applied in India. When in an established Court like Cuttack the pleadings have been held not to have been artistically drafted, one can well imagine that in merged territory like Nayagarh where the Bar is not equally developed, the Plaintiff was not advised properly for examination of the natural father. When in an established Court like Cuttack the pleadings have been held not to have been artistically drafted, one can well imagine that in merged territory like Nayagarh where the Bar is not equally developed, the Plaintiff was not advised properly for examination of the natural father. Interestingly this point was also not raised either in the suit or in the first appeal. For the first time in this second appeal Mr. Nanda has raised this point. Therefore, before drawing any adverse inference opportunity should be given to the Plaintiff to examine the natural father of give explanation under what circumstances the natural father cannot be examined in this case. 8. Defendants never stood on the way of the Plaintiff for adducing the evidence of his natural father. But for this suit, Defendant No. 1 would have got Gadadhar, the natural father of the Plaintiff, evicted on the strength of the decree which had been passed, In the circumstances, the prolonged litigation would prejudice the Defendants. This can, however, be mitigated in case the Plaintiff pays a cost of Rs. 500/ (five hundred) to them within one month from today. In case the trial Court is satisfied that the cost has been paid within the time stipulated it shall permit the Plaintiff to adduce further evidence. It needs no clarification that the Defendants shall get adequate opportunity to rebut the evidence. 9. Respondent No. 2 remained ex parte throughout in spite of valid service of notice. The Plaintiff and Defendant Nos. 1 to 3 are directed to appear before the trial Court on 13-3-1987 on which date on being satisfied that the cost as directed has been paid or deposited within the time stipulated, the trial Court shall fix a date far hearing on which day the parties shall adduce their evidence on the basis of which the trial Court shall decide the suit on merits. In case the cost is not paid or deposited as stipulated, the suit shall stand dismissed without further reference to the Bench. 10. Subject to the aforesaid conditions, this second appeal is allowed and the judgments of both the Courts are set aside. Parties are directed to bear their own costs up to this stage. Final Result : Allowed