H.L. Agarwal, J.

1. The appellant instituted the present suit for a declaration that the order of Defendant No. 1 dated the 20th May. 1965, directing him to revert back from his present post of Assistant Permanent Way Inspector to his original post, namely. Permanent Way Mistry, on expunging his name from the final panel, was illegal and without jurisdiction.

2. The plaintiff admittedly was appointed a Gangman in the Eastern Railway in October, 1956. and in due course was promoted to the aforesaid post. He had instituted a suit for the same relief earlier also, being Title Suit No. 411 of 1965, in the same court. It is not necessary to state the reasons and grounds upon which the impugned order was challeng- ed by the plaintiff for the point that has been raised for my consideration at this stage. In that suit one of the points raised by the defendants was the maintainability of the suit for non-compliance of the provisions of Section 80 of Civil P. C. The trial Court, however, proceeded to decide the suit in spite of this objection and the clear provisions of Section 80 of the Code, that no suit shall be instituted against the Government or a public officer in respect of any act purporting to have been done by him in his official capacity until the service of the notice in question, and, held that the order passed by the defendant deleting the name of the plaintiff from the draft panel of Assistant Permanent Way Inspectors was illegal and without jurisdiction, and, accordingly, the said order was held to be void and inoperative. It, however, dismissed the said suit for non-compliance of the mandatory provisions of Section 80 of Civil P. C. and held the plaintiff to be not entitled to any relief. An appeal also appears to have been taken by the plaintiff against the said judgment, but that was allowed to be dismissed for non-prosecution. The plaintiff thereafter served a notice under Section 80 of the Code of Civil Procedure on the authorities concerned and instituted the present suit for the same relief. One of the questions that was raised on behelf of the defendants was as to whether the present suit was barred by the principles of res judicata, within the meaning of Section 11 of the Code, which plea has found favour with both the courts below. It may be stated that the trial Court again proceeded to consider the illegality of the order dated the 20th May, 1965, in the suit and came to the same conclusion that this order was ultra vires and invalid.

3. Mr. S. C. Ghosh, appearing in support of this appeal, however, contended that the decision of the courts below on the question of res judieata is entirely erroneous and misconceived.

4. Having heard learned Counsel for, the parties, I feel satisfied to take the view that both the courts below have committed an apparent error of Law in dismissing the suit of the plaintiff on the ground that it was not maintainable under the provisions of Section 11 of Civil P. C., being barred by the principle of res iudicata. Order VII, Rule 11, of the Code empowers a court to reject a plaint, inter alia, on the ground where the suit appears from the statements made in the plaint to be barred by any law. The provision of Section 80 debars the plaintiff to institute a suit against the Government or a public officer in respect of any act purporting to have been done by such public officer in his official capacity until he complies with such obligation, which fact is required to be stated in the plaint itself in terms of Section 80. According to this provision, therefore, the plaint of the plaintiff in his earlier suit should have been rejected, without consideration of any other question. The reiection of the plaint under Rule 11 of Order VII of the Code entitles the plaintiff to institute a fresh suit in respect of the same cause of action. under Rule 13 of the said Order. A question arises, as to where the court, having failed to pass an order of rejection under the provisions of Order VII, Rule 11 of: the Code, proceeds to determine the issues on merits and ultimately dismisses the suit on the ground of non-compliance of the provisions of Section 80 of the Code, whether a second suit will be hit by the principles of res judicata and be not maintainable. It is on this question that the courts below have taken the view against the plaintiff, as already said above.

5. In a somewhat similar situation, the learned Judges of the Supreme Court in the case of Gangappa Gurupadappa Gugwad v. Bachawwa. (: AIR 1971 SC 442 [LQ/SC/1970/440] } have observed that if the plaintiffs cause of action is against a Government and the plaint does not show that the notice under Section 80 of the Code was served in terms of the said section, it would be the duty of the court to reject the plaint, recording an order to that effect and the court in such a case should not embark upon the trial of all the issues involved in the suit. This decision has already been referred to by the court of appeal below and applied against the plaintiff. I do not find, there is any authority in this decision in support of the view taken by the court below. What, however, has been held in this decision for the application of the principles of res judicata is in a situation, where the plaint on the face it does not show any relief envisaged by Section 80 of the Code being claimed. In that situation it would be the duty of the court to go in to all the issues which may arise on the pleadings, including the question as to whether the notice under Section 80 of the Code was necessary. In such a trial the issues raised and decided would operate as res judicata in a subsequent suit where identical questions arise for determination between the same parties. The situation in the case in hand was entirely different. The suit itself was not maintainable in view of the mandatory provisions of Section 80 of the Code. Simply because a court proceeds to determine some of the issues and tries a suit, in breach of this mandatory requirement, that should not operate against the plaintiff to his prejudice as res judicata taking away his right to institute any fresh suit. In my opinion, the Court in that case had no jurisdiction to proceed with the trial of the suit on merits and was bound to reject the plaint. If once this view is taken then there was no issue at all directly or indirectly in that suit for determination between the parties. The principles of res judicata, therefore, can have no application in such a situation.

6. Reliance was placed by Mr. Ghosh on a Bench decision of this Court in the case of Raghumal v. Banmali Sahu, (: AIR 1974 Pat 221 [LQ/PatHC/1973/174] ) in support of this proposition. This case, however, cannot be relied upon in support of the contention and for the view that I have already taken earlier. This was a case arising out of a suit for eviction under the Bihar Buildings (Lease, Rent and Eviction) Control Act. The plaintiffs suit failed on a technical ground, namely, the non-service of notice Under Section 106 of the Transfer of Property Act, as well as on merits. He thereafter instituted a second suit, after service of notice under Section 106 of the T. P. Act. A question arose as to whether the second suit was barred by the principle of res judicata. It has been clearly held in this decision that where a suit involving a technical point as well as an issue on merits is disposed of on decision on both the issues, then the subsequent suit would be barred by res judicata, no matter, whether the previous suit would have failed on the technical ground alone. The ratio of this decision, therefore, goes against Mr. Ghosh himself. But, I venture to distinguish the same and take a view that the said principle will have no application to the present suit, inasmuch as the earlier suit of the plaintiff in this case was not at all competent for non-compliance of the provisions of Section 80 of the Code. In that view of the matter, the court trying the earlier suit had no jurisdiction to proceed to determine any other issue. It is well settled that in order to attract the doctrine of res judicata the court determining any issue in an earlier suit, must be competent to decide the said issue, otherwise, any decision of a court having no jurisdiction to decide the issue will not fulfil the basic condition for operating as res judicata in any subsequent suit between the parties.

7. Learned counsel for the Respondents failed to point out any other provision of law in the Code of Civil Procedure under which the present suit would be barred or the plaintiff would be precluded from instituting a second suit after the dismissal of the earlier suit.

8. For all the above reasons, I am inclined to take the view that the application of the principle of Section 11 of Civil P. C. has not been correctly made to the facts of this case by the court below and, accordingly, this appeal must succeed. The plaintiffs suit is accordingly decreed, but in view of the nature of the point involved. I leave the parties to bear their own costs in this court.