JUDGMENT :

1. Heard Sri Samarth Saxena, learned counsel for the appellants and Sri N.K. Seth, learned Senior Advocate along with Sri Ashish Chaturvedi for respondent no. 8.

2. The instant second appeal has been preferred by the plaintiffs/appellants against a concurrent judgment and decree passed by the two courts whereby the application under Order 7 Rule 11 C.P.C. has been allowed rejecting the plaint of the appellants.

3. The learned counsel for the appellants has urged that the two courts while rejecting the plaint in suit upon applying the provisions of Order Rule 11 C.P.C. has not considered the true import of Order 35 Rule 5 C.P.C. and has incorrectly applied the aforesaid provision in non-suiting the plaintiff which is a gross error of jurisdiction committed by the two courts, resulting in sheer miscarriage of justice.

4. The learned counsel for the appellants has submitted that an application under Order 7 Rule 11 is to be considered only on the basis of the averments contained in the plaint in suit. At the stage of such consideration, the Court cannot look into the written statement or the defence as raised by the defendants.

5. The learned counsel for the appellants has furth