( 1 ) BY this application the original defendant challenges the order passed by the learned Judge in the City Civil Court (Seventh Court) Ahmedabad whereby he instead of staying the subsequently instituted suit under sec. 10 of the Code of Civil Procedure directed that the subsequently instituted suit should be tried and decided along with the previously instituied suit. The facts giving rise to the present Revision Application in a nutshell are as under:

( 2 ) THE plaintiff Rustom Jehangir Vakil Mills Company Limited placed an order with the defendant for the manufacture of three roll calendar machines to be erected and installed at the defendants cost at its factory on or before 31/03/1974. The Sales Manager of the defendant firm accepted the order at Ahmedabad and received a cheque for advance payment from the plaintiff Company. Under the contract the price was fixed at Rs. 3 10 0 less 5 per cent discount. The advance payment was made to the extent of 30 per cent of the price that is Rs. 88 350 The order was confirmed in writing on 13/11/1973. Thereafter in the month of January 1974 the plaintiff Company inquired about the progress in the manufacture of the machnes. The machines were not manufactured according to the time schedule and could not be delivered to the plaintiff Company upto 31/03/1974 and hence the defendant firm sought extension of time. The plaintiff Company agreed to the extension of time without prejudice to its right to claim additional discount for the defendants failure to deliver the machines on or before the deadline. It appears that thereafter the defendant firm by its letter dated 15/09/1974 informed the plaintiff Company that the machines were ready for inspection and dispatch and asked for payment of Rs. 3 21000 less the advance payment of Rs. 88 350 within eight days from the receipt of the invoice. The plaintiffs were also informed that if they failed to make payment and take delivery of the machines within eight days from the date of invoice the machines shall be diverted to some other party and the plaintiffs will have to wait for another six months for the machines and would also be required to pay according to the prevailing rates. Immediately on receipt of this letter the Sales Manager and Accountant of the defendant firm was contacted and was informed that it did not behove the defendant firm to act in this high handed manner more so after the plaintiff Company had agreed to the extension of time. The negotiations were not fruitful and therefore the plaintiff Company apprehending that the defendant firm may divert the machines as threatened by its letter filed suit No. 2558 of 1974 to restrain the defendant firm its partners and employees from diverting the three roll calendar machines manufactured for the plaintiff Company to any third party. In this suit the defendant firm entered an appearance and filed a contesting written statement at Exhibit 13. It appears that during the pendency of this suit as the machines were not delivered to the plaintiff Company another Suit No. 3429 of 1976 was filed on the basis of the very same contract to recover an amount of Rs. 4 0 0 by way of damages with 17 per cent per annum interest and costs from the defendant firm. The defendant firm has contested this suit by its written statement Exhibit 14. While these two suits were pending in the City Civil Court at Ahmedabad it appears that in the subsequently instituted suit a Chamber Summons was taken out by the plaintiff Company Exhibit 15 for an order or direction that both the suits be consolidated and evidence be recorded in either of the two suits. Initially the learned Judge in the City Civil Court passed an order of amalgamation of the two suits in the absence of the learned advocate for the defendant firm. However subsequently the learned advocate for the defendant firm appeared and gave an application Exhibit 35 to set aside the exparte order and to dispose of the Chamber Summons on m