IN THE HIGH COURT OF BOMBAY AT GOA
APPEAL FROM ORDER NO.31 OF 2024
(Coram: VALMIKI MENEZES, J.)
(Decided on 04.09.2026)
Diana Buildwell Private Limited … Appellant
Versus
M/s Sterling Holidays Resorts (India) Limited … Respondent
A) Code of Civil Procedure- Order 43- Appellate Court power of interference – besides considering basic elements for prima facie case to exist, the conduct of the parties should be also looked.
Held
If the Trial Court, whilst considering whether the Plaintiff had made out a prima facie case, has failed to consider the Plaintiff’s conduct, which if considered would have disentitled the Plaintiff to a discretionary relief of temporary injunction, such an order, can be interfered with in an Appeal under Order 43, as it suffers from the perversity of “non consideration”. (Para 10)
B) Order 7, Rule 11 and Order 39 – Difference in jurisdiction – Oder 7 Rule 11 requires consideration of only the plaint and documents referred to or relief upon therein while Order 39 requires a full consideration of pleadings in the plaint, written statement, affidavits and all other materials, which had to be considered before granting a discretionary relief. (Para 21)
For Judgment Click 👇
Diana Buildwell Private Limited Vs. Sterling Holidays Resorts India Ltd.