Prakash Tatia, J.-Heard learned Counsel for the parties.

2. The petitioner is aggrieved against the order of the first appellate Court dated 5th Oct., 1995 by which the petitioner’s application filed under Section 5 of the Limitation Act has been dismissed by the first appellate Court and consequently, the first appellate Court dismissed the appeal of the petitioner.

3. According to learned Counsel for the petitioner, the petitioner submitted an application under Section 5 of the Limitation Act disclosing the sufficient reason for not preferring the appeal within the period of limitation. It is submitted that even if the facts as mentioned in the order of the first appellate Court are accepted then admittedly, the petitioner’s advocate did not appear in the trial Court after the transfer of the civil original suit and his brief holder appeared before the trial Court. Neither his advocate nor junior advocate informed the petitioner about the transfer of the case and because of that reason only, the petitioner could not appear before the Court where the suit was transferred. It is also submitted that even assuming for the sake of argument, there was some negligence on the part of the petitioner in not preferring the appeal in time, the Court should have looked into the facts to judge the conduct of the petitioner to find out whether the petitioner could have left the case in between when his immovable property was at stake. Even if the Court would have looked into the entire proceedings taken in the trial Court, the first appellate Court could have reached to the conclusion that the petitioner would not have left the case uncontested because of the reason that the question of the title of the property was involved and plaintiff himself admitted in his plaint that he is not in possession of the property and he admitted that he mortgaged the property on earlier occasion and he admitted that he himself did not re-deem the property and he further admitted that the property was subjected to sell long before the filling of the present suit by the plaintiff . The first appellate Court could have looked into the fact that after the pleading all these facts, the plaintiff originally prayed for relief of prohibitory injunction and in view of the settled position of law, the suit itself was not maintainable for relief of injunction as the plaintiff was not in possession of the property as per his own admission. Even if , the order of amendment of the plaint, which though has attained the finality, the admissions made in the plaint has not been withdrawn by the plaintiff . Not only this, the plaintiff prayed only relief of possessing keeping the original pleadings about all the previous transactions as it is. All these facts clearly reveal that the petitioner would not have left the case during trial stage only and would not have taken the risk.

4. According to learned Counsel for the petitioner, even if there is a case of negligence of the petitioner even then it will result into grave injustice in case the delay in filling the appeal will not be condoned and there should not be any punishment to the extent of deprivation of entire property because of the delay of only three months’.

5. I considered the submissions of learned Counsel for the parties and perused the original record, which was summoned by the Court.

6. It is true that the merits of the case cannot be judged and decided while considering application under Section 5 of the Limitation Act and without condoning the delay, but at the same time, the interest of justice requires certain steps in peculiar facts and circumstances of each case and taking into account all the facts, this Court feels that if the Court would have condoned the delay, no prejudice would have been caused to even plaintiff as he would have succeeded in his case if he has merit in his case, but after a lawful contest and not by default. This is not the principle to be applied in all the cases, but is