AVNIJA AHLUWALIA(MINOR) Vs. BIKRAMJIT AHLUWALIA & ORS.

JUDGEMENT

(1.) IA No. 13260/2012 (under Order 7, Rule 11 CPC)

(2.) At the outset, I must note that for deciding this application this Court has consciously ignored the averments made in this application under Order 7, Rule 11 of the Code of Civil Procedure, 1908 (CPC) which are on merits and which dispute and deny the existence of the HUF. This is because when an application under Order 7, Rule 11 CPC is considered, the contents of the plaint are deemed to be correct. Also, in the application under Order 7, Rule 11 CPC, it is noticed that defences on merits have been taken up, and which defences can only be the subject matter of the contents of the written statement, and which cannot be the basis of an application under Order 7, Rule 11 CPC.

(3.) Let us therefore, examine the pleading/plaint as to whether the plaint discloses a cause of action as distinguished from proving a cause of action and which will arise only at the stage of trial. When an application under Order 7, Rule 11 Civil P.C. uses the expression 'discloses a cause of action', the expression pertains to the existence only of sufficient pleading with respect to the existence of HUF and its properties. Once such pleading exists, what are the properties of HUF etc will be issues of merits to be decided after trial in the suit and not by means of an application under Order 7, Rule 11 CPC.