IMPORTANT POINT
The trial Court's rejection of the plaint was erroneous as it misapplied procedural rules and denied the appellant a fair opportunity to present their case.

JUDGMENT :

Kaushik Goswami, J.

Heard Mr. S. Dutta, learned Sr. counsel assisted by Mr. V. Devnath, learned counsel for the appellant. Also heard Mr. P.B. Paul, learned counsel for the respondent Nos. 1 to 12.

2. This is an appeal filed under Rule 29 of the Rules for Administration of Justice and Police in Nagaland 1937 (as amended) read with section 96 of the Code of Civil Procedure against the judgment and order dated 29.4.2011 passed by the learned Civil Judge, Senior Division, No.1 Dimapur Nagaland passed in CMC 25/2010 arising out of Title Suit No.1/2010 allowing the Misc. Case by rejecting the Title Suit 1/2010.

3. The facts of the case is that the appellant had filed Title Suit 1/2010 in the Court of the Civil Judge, Senior Division, No.1 Dimapur Nagaland praying for amongst others declaration and confirmation of occupational rights, title and interest over the suit land to declare the grant/permit No.LR/PER/DB/573-76(A) dated 20.02.63 passed by the competent authority as lawful, effective, operative and in force.

4. Pursuant to the filing of the said Title Suit, upon notice being issued, the respondents/defendants preferred an application being CMC 07/2010 (re-numbered as CMC 25/2010) before the trial Court under Order 7 Rule 11 (d) read with section 151 of the CPC, 1908 for rejection of the plaint filed by the appellant/plaintiff in Title Suit 1/2010. The trial Court by judgment and order dated 29.4.2011 after hearing the parties was pleased to allow the said application by rejecting the plaint. In view of the order passed in CMC 25/2010, the trial Court was further pleased to direct by order dated 29.4.2011 in Title Suit 1/2010 that the same has become infructuous and accordingly dismissed the same. Aggrieved by the aforesaid order of the trial Court allowing the application of the respondent/defendant filed under Order 7 Rule 11 and dismissal of the suit, the present first appeal has been preferred.

5. Mr. S. Dutta, learned Sr. counsel for the appellant submits that the judgment and order of the trial Court in allowing the Application for rejection of the plaint is perverse and is liable to be interfered by the appellate Court. He further submits that though the application filed by the defendant/respondent was under Order 7 Rule 11(d), the trial Court considered it as an application under Rule 11(a) and dealt the matter which is totally perverse and amounts to violation of natural justice as the appellant did not get the opportunity to contend that the plaint discloses cause of action.

6. Mr. P.B. Paul, learned counsel for the respondent/defendant fairly submits that though the ground taken in the Misc. Case i.e CMC 07/2010 (re-numbered as CMC 25/2010), is as regard the plaint being barred under law, the trial Court instead of considering the same has considered the matter under Rule 11(a) which is non disclosure of cause of action.

7. Heard the learned counsel for the parties and also perused the materials on record.

8. The point of determination that arises in the present appeal is whether the trial Court was justified converting the application filed by the respondent/defendant under Order 7 Rule 11(d) to that of Order 7 Rule 11(a) and deciding thereof, without giving any opportunity to the plaintiff to show cause that that the plaint discloses cause of action and whether the trial Court was justified to reject the plaint on the ground of res-judicata while exercising powers under Order 7 Rule 11 of CPC.

9. Before adverting to the point of determination, pertinent to mention that the appellant before filing Title Suit 1/2010, had filed another suit in the year 2009 which was registered and numbered as C.S.1/2009. In that suit, the defendant/respondent had filed an application under Order 7 Rule 11(a) for rejection of the plaint which the trial Court after hearing the parties, by judgment and order dated 22.11.2009 was pleased to reject the plaint in C.S.1/2009. Pursuant to the order of rejection, it appears that a review p