( 1 ) HAVING heard learned counsel for the parties, I am of opinion that the impugned order dated April 17, 1986 deserves to be set aside. By this order, the trial Judge has directed stay of the subsequent suit of the applicant (O. S. No. 119 of 1985) till the disposal of suit No. 68 of 1977 filed by the first two opposite parties Ahmad Miya and Idu Miya He has also rejected the prayer made by the present applicant for consolidation of the two suit sunder Rule 1 of O. IV-A, C. P. C.

( 2 ) AN ex parte decree had been passed against the present applicant in suit No. 68 of 1977. The relief claimed in that suit is that the two plaintiffs, who are admittedly elder brothers of applicant Mohd Yusuf, were the exclusive owners of the property in suit. That decree was later set aside by the trial Court. The order was affirmed by this Court and, thereafter, by the Supreme Court in Nov. , 1985. Ultimately, the suit was directed to be tried on merits The relief sought in suit No. 68 of 1977 is one of declaration.

( 3 ) IN suit No. 119 of 1985 the claim of applicant Mohd. Yusuf is that he has 1/3rd share in the same property which is involved in suit No. 68 of 1977. On the basis of that claim, applicant Mohd Yusuf has sought a decree for accounting. He has also claimed a decree restraining the defendants in his suit, namely, the plaintiffs of suit No. 68 of 1977, from letting out certain property and appropriating the rent thereof exclusively. An application for appointment of a Receiver has also been made by Mohd. Yusuf in his suit No. 119 of 1985.

( 4 ) THE trial Judge has taken the view that from the plaint of the two suits it was clear that the property involved in both the suits was the same and that the appropriate course would be to proceed with the trial of earlier suit No. 68 of 1977 in which the rights of the parties may be determined and the trial of suit No. 119 of 1985 should remain stayed till then.

( 5 ) IT is common ground that written statements have not been filed by the defendants in any of the two suits. The trial Judge has proceeded to take the view that the controversy in issue between the parties in both the suits is substantially the same on the basis of the plaint allegations in the two suits. He has, without giving any reasons, in effect, taken the view that it would be inexpedient to consolidate the suits.

( 6 ) NORMALLY the question whether the matter in issue in a previously instituted suit between the same parties is also directly and substantially in issue in a subsequent suit, is to be determined after the parties have disclosed their defence in the two suits. In exceptional circumstances it might be open to the Court, where both the suits are pending, to take into account the allegations made in the plaint of the two suits. What is, however, usually insisted upon is that the question whether the issues in the two suits are substantially the same, should be determined after disclosure of defence of the defendants in the two suits. Learned counsel for the contesting opposite parties (who are plaintiffs in Suit No. 68 of 1977) has not been able to bring to my notice any decision of this Court in which the Court may have approved the determination of the question in absence of written statements of the defendants in the two suits. He has drawn my attention to a decision of the Delhi Court in C. L. Tandon v. Prem Pal Singh Rawat, AIR 1978 Del 221 and to some observations in the decision of the Calcutta High Court in Shorab Merwanji Modi v. Mansata Film Distributors, AIR 1957 Cal 727 to the effect that it might be possible that by looking at the plaint allegations of the two suits the Court comes to the conclusion that the matter in issue between the parties in the two suits is substantially the same. These two judgements have not laid down any principle of law which may support the practice approved by these Courts. In fact, in Delhi decision the learned Judge has himself observed that (in parag