Broomfield, J - (1.)The only question which arises in this appeal is whether a plaintiff, who has given a notice, under Section 80 of the Civil Procedure Code, with a view to a suit against the Secretary of State for India and has instituted a suit before the expiry of the two months prescribed in the section and has been permitted to withdraw that suit with liberty to institute a fresh one, is entitled to institute that fresh suit without a fresh notice.
(2.)For the purposes of this appeal the facts may be stated very briefly. The plaintiff-appellant served a notice on the Secretary of State on September 21, 1927, and less than two months from that date he filed a suit for a declaration of his rights in respect of certain property and for various injunctions. That was suit No. 1121 of 1927. Coming to understand that this suit was bound to fail as being premature, the plaintiff obtained the leave of the Court to withdraw it under Order XXIII, Rule 1, of the Code, with liberty to file a fresh suit. He did this on December 17, 1927, and on that same date he filed the fresh suit from which this appeal arises, No. 1773 of 1927.
(3.)Various objections were taken in the defendant's written statement, one of them being that the suit was bad for want of proper statutory notice under Section 80 of the Civil Procedure Code. The trial Judge heard that as a preliminary issue, decided against the plaintiff, and rejected the plaint under Order VII, Rule 11(d). Against that order the plaintiff appeals, and in our opinion the appeal must succeed.