The power of consolidation of suits and proceedings thereunder, regardless of the time of institution of the suit, can be exercised by the court in the interest of justice to avoid conflicting judicial decisions.

KALYAN JYOTI SENGUPTA, J.

( 1 ) THE Court : This is an application for stay of trial of the suit No. 349 of 1999 and also for hearing of all other proceedings pending thereunder and operation of the interim order dated 25th June, 1999 passed in an application being Tender No. 1230 of 1999. The stay has been prayed for on the ground that the instant suit is a later one in order of time than the applicant's suit being suit No. 286 of 1999.

( 2 ) MR. P. C. Sen, learned senior Advocate, appearing with Mr. A. K. Panja, Miss Tapati Ghosh, Mr. A. P. Ghosh and Mr. S. N. Mukherjee, Advocates, submits that admittedly his client's suit was instituted earlier and the matter in issue therein is also directly and substantially in issue in the later suit. It is submitted that though there are other defendants in later suit ,viz. , defendant Nos. 2,3 and 4 and they are not parties to the earlier suit but no relief has been claimed against them, so in essence the later suit has been filed against the plaintiff in suit No. 286 of 1999. In substance the contesting parties in both the suits are same.

( 3 ) MR. Sen with effective assistance of Mr. S. N. Mukherjee argues that the pivotal issue in both the suits is whether the letter of transfer of advance licence amounting to 6,05,000 US dollar is valid or not. He argues that the plaintiff herein in order to have decree in a later suit is to establish the aforesaid issue in his favour. Similarly, his client's suit being earlier one the plaintiff therein is to establish that the aforesaid letter of transfer is forged one. Mr. Sen contends therefore having regard to the averment made in both the plaints and the reliefs claimed thereunder bone of contention certainly centres round the aforesaid common and identical issue. He also argues that in the event the aforesaid issue is decided in the earlier suit such decision will non-suit the later suit. Therefore, the statutory rigour which is a mandatory one, under section 10 of the Code of Civil Procedure is to be applied. He submits not only the suit but also the pending interlocutory application in connection therewith and operation of the interim order passed therein shall be stayed and this has precisely been decided by a Bench decision of this court in an appeal being No. 28 of 1995 (Hanuman Trading Corporation-vs-Galaxy Manufacturing Trading Co. and Ors.) while affirming the judgment of the learned single Judge on this point.

( 4 ) MR. Jayanta Mitra, learned senior Advocate led by Mr. P. K. Mullick, learned senior Advocate and assisted by Mr. Samit Talukdar, Advocate , submits fairly that his client's suit is later one. He argues that not all the issues are common in both the suits. Moreover, the later suit is not necessarily to be stayed in certain circumstances and for the interest of justice the Court shall pass an order of consolidation of both the suits in case where there is identity of issues involving both the suits. He submits that the Division Bench judgment as referred to by Mr. Sen is no longer a good law in view of the later decision of the Supreme Court reported in 1998 SC 1952 in its paragraph 8. He argues that the theory of consolidation of both the suits in certain situation has been reaffirmed and reiterated while examining the scope and purview of section 10 of the Civil Procedure Code by the apex court in the said decision. He also argues that the Division Bench judgment as referred to in any event, is factually distinguishable as the suits mentioned therein were instituted in two different Courts situate at two different places,i. e. , one in Calcutta and another in Thane. So there was bright possibility of having conflicting of judicial decision therein. In this case both the suits are pending before the same Court. He also argues that in the event the hearing of the interlocutory application, as well as, the operation of the interim order passed therein is stayed then substantial injustice will be rendered as plaintiff in the

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