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 challenged 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 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 judgement, but that was allowed to be dismissed for non-prosecution. The plaintiff thereafter teed 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 behalf of the defendants was as to whether the present suit was barred by the principles of rea judicata, within the meaning of Sec.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 29th 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 judicata 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 Sec.11 of Civil P. C., being barred by the principle of res judicata. 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 rejection of the plaint under Rule 11 of O. 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