( 1 ) RULE. Mr. S. M. Shah and Mr. A. J. Patel waive service of rule on behalf of respondent Nos. 1 and 2 (1) and 2 (2) respectively.

( 2 ) THIS application is filed by original defendant No. 1 in Special Civil Suit no. 174 of 1995 against the order dated 6-11-1996 passed below Ex. 9 by the learned civil Judge (S. D.), Bhavnagar, by which instead of staying subsequently instituted suit, ordered amalgamation with the previously instituted suit for disposal by common trial. In short, application under S. 10 of the Civil Procedure Code (hereinafter referred to as "the Code" for conveience and brevity) for staying subsequently instituted suit was rejected by the Court.

( 3 ) MR. Desai for the petitioner has argued very forcefully that provisions of s. 10 of the Code are mandatory and if a case is squarely made out to be covered under S. 10 of the Code then recourse cannot be taken to inherent powers under s. 151 of the Code and pass some other order. As against that Mr. Shah for respondent No. 1 - original plaintiff and Mr. Patel for respondent Nos. 2 (1) and (2)/original defedant Nos. 2 (1) and (2) have argued that essentially the parties in both the suits are not same. Both the suits are based on different cause of action owing to some subsequent event and that no error has been committed by Court below in directing consolidation of the suits as would take care of question of res judicata and apprehension of inconsistent finding in relation to same subject-matter by two different Courts of concurrent jurisdiction. To fortify their contentions learned advocates have also placed reliance upon various judgments of the Supreme Court and High Courts which will be dealt with at the appropriate stage.

( 4 ) ON plain reading of S. 10 of the Code, it appears that before S. 10 of the Code can be applied to a particular case, following conditions must be satisfied : (i) The subject-matter of both the matters in issue should be substantially same. (ii) Both the suits must be between same parties or litigating for same purpose or under same title. (iii) Previously instituted should be pending in the same Court or any other Court in India having concurrent jurisdiction to grant relief claimed in subsequent suit. Now the question is whether the case in hand satisfies the tests referred to above. To consider this, a brief reference will have to be made to both the suits.

( 5 ) THE petitioner has produced certified copies of both the plaints. Annexure a is a copy of the previously instituted Regular Civil Suit No. 607 of 1991 whereas Annexure B is a copy of the subsequently instituted Special Civil Suit No. 174 of 1995 and Annexure C is a comparative table/chart showing relevant particulars of both the suits.

( 6 ) ADMITTEDLY, both the suits are filed by respondent No. 1, the original plaintiff. Previous suit, i. e. , Regular Civil Suit No. 607 of 1991 was instituted on 28-10-1991 whereas subsequent suit, i. e. , Special Civil Suit No. 174 of 1995 is instituted in July 1995. The earlier suit was initially instituted in the Court of learned civil Judge (J. D.) but now has been transferred to the Court of learned Civil Judge (S. D.), whereas the subsequent suit is instituted in the Court of the learned Civil judge (S. D.), Bhavnagar and that the previously instituted suit has yet not been finally disposed of. Thus, admittedly, previously instituted suit is pending in the same Court and/or Court having concurrent jurisdiction, that is, Court of learned Civil Judge (S. D. ). The subject-matter of both the suits is immovable properties of deceased krishnalal Keshavlal Trivedi, who died intestate. Respondent No. 1/original plaintiff, as one of the sons of deceased Krishnalal, filed suit for declaration of undivided share and partition of property by metes and bounds. The plaintiff claimed division and partition of the property amongst four sons out of whom one Vishnuprasad is no longer alive, therefore, his share is assigned to his branc