The court emphasized the necessity of considering merits in delay applications, especially where no vested rights exist for the opposing party.

JUDGMENT

This appeal arises out of the judgment and decree in A.S.No.100 of 2010 on the files of the District Court, Kollam.

2. In the nature of the order this Court proposes that a detailed narration of the facts in the appeal may not be required. O.S.No.236 of 2007 on the files of the Additional Munsiff Court, Kollam is a suit for prohibitory injunction and fixation of boundary. After a full fledged trial, the suit was partially decreed by the Trial Court. Aggrieved, the plaintiff preferred A.S.No.100 of 2010 before the District Court, Kollam with an application to condone the delay of 132 days in filing the appeal. By order dated 12.10.2010, the first appellate court dismissed the application for condonation of delay and consequently, dismissed the appeal as well. Hence, the appellant/plaintiff has preferred the present appeal. On

14.12.2015, the appeal was admitted to file and this court issued notice on the following substantial questions of law :-

i) Whether the court below erred into a finding that the title holder of the property not entitled for getting a decree for fixation of boundary of the property ?

ii) Whether the trial court below is erred into a finding that title over the property will not give consequential relief of injunction and fixation of boundary ?

iii) Court below failed to condone a delay of short term because of a mistake mentioning the dates in the affidavit ?

3. In the light of the fact that there is no decision on merits by the first appellate court, this Court does not propose to hear this appeal on merits. Therefore, the substantial question of law is reframed as follows:-

iii) Did the Court below fail to condone a delay of short term because of a mistake mentioning the dates in the affidavit ?

4. Heard Sri.Vinoy Varghese Kallumoottil, the learned counsel for the appellant and Smt.Mini Gangadharan, the learned counsel appearing for the 1^st respondent.

5. On considering the submissions raised across the bar, this Court is of the view that the principles laid down by this Court in George Antony and another vs. Albert Antony and another in R.S.A. No.233 of 2025 rendered by this Court squarely applies to the present case. It is pertinent to mention that the appellant was not satisfied with the judgment of the Trial Court partially decreeing the suit and hence, an appeal was preferred. Pertinently, the defendants were not aggrieved by in any manner about the decree, which was passed by the Trial Court. Therefore, inasmuch as no vested right had accrued on the part of the defendants and that the appellant was still litigating as regards his plaint for injunction and fixation of boundary, the first appellate court ought to have taken a pragmatic view and ought to have condoned the delay in filing the appeal and heard the case on merits. In such circumstances, the judgment and decree in A.S.No.100 of 2010 is liable to be set aside.

Resultantly, the substantial question of law as reframed by this Court is answered in favour of the appellant and it is held that the dismissal of the delay condonation application by the first appellate court was not proper. Accordingly, the order dated 12.10.2010 in dismissing I.A.No.1419 of 2010 in A.S.No.100 of 2010 shall stand set aside. Consequently, I.A.No.1419 of 2010 in A.S.No.100 of 2010 shall stand allowed. The condonation of delay of 132 days in filing the appeal is condoned. The District Court, Kollam is directed to restore back A.S.No.100 of 2010 on file and proceed, in accordance with law, after hearing the parties, as expeditiously as possible, at any rate, before the closure of the courts for summer vacation. Parties shall appear before the District Court, Kollam on