A. N. Grover ( 1 ) THE only question in this appeal is whether the suit out of which it has arisen was barred by a previously instituted suit which had been dismissed. The trial Court held in favour of the defendant firm whereas the lower appellate Court has held in favour of the plaintiff and has passed a preliminary decree for rendition of accounts. In the previous suit which was filed in March 1908 the plaintiff had claimed rendition of accounts on the allegation that there was a relationship of principal and agent between the parties. He had pleaded that he was a dealer in foodgrains whereas the defendant-firm carried on its business as agent. The central Government was selling its reserve stock of rice by inviting lenders in the year 1955. As the plaintiff did not have enougn funds he appointed the defendant-firm as pucca arhtia on the following terms (vide Exhibit Dl ). " (A) The defendant-firm was to invest money required for the purchase of rice from the Government and the same was also to purchase rice in its own name. On the money so invested the defendant firm was to charge interest at the rate of 6% per annum. The amount of money the plaintiff was to keep with the defendant- firm tor covering the profits and losses in respect of the rice deal was also to earn interest at the above rate. (b) On the rice purchased and sold outside Delhi the defendant-firm was to charge Arhat at the rate of Re. l. 00 %- But if some rice was to be brout to Delhi from outside and sold there the lefendant-firm was to recover Arhat from the purchasers of the same and the plaintiff was not to pay any Arhat in respect of the same. (c) The defendant-firm was to keep all accounts and the same were to be settled at the close of all the transactions. At the close of the business the defendant-firm was to pay the profits earned by the plaintiff after deducting interest and Arhat therefrom. The margin money kept by the plaintiff with the defendant-firm was also to be returned by the latter. At the close of the business the defendant-firm was to pay the profits earned by the plaintiff after deducting interest and Arhat therefrom. The margin money kept by the plaintiff with the defendant-firm was also to be returned by the latter. "the defendant-firm had contested the plaintiff s claim inter alia on the ground that it had never acted as his commission agent and it was asaerted that on 3rd November 1955 the plaintiff and the defendant-firm had entered into an agreement orally for the purchase of rice from the Government and its sale with the intention or sharing profits of the business. According to that agreement, the plaintiff was to invest a very small capital whereas almost all the investment was to be made by the defendant-firm which was to charge interest. The shares of the parties in the profits and loss of the business were to be-Plaintiff 1/3, defendant- firm 2/1. Both the parties were to keep accounts and after the sale of the rice purchased from the Government the partnership was to come to an end and accounts were to be settled between the parties. The main issue which was framed in that suit was whether the defendant-firm had acted as commission agent on behalf of the plaintiff and if so, on what terms. by a judgment dated 9th September 1960,shri S. S, Kalha, Subordinate Judge 1st Glass, Delhi, held that the plaintiff filed to prove that the defendant firm had purchased any rice from the Government and sold the same as his agent on the terms alleged by him. The suit was thus dismissed. The plaintiff then filed a second suit in March 1961 in wich the relief claimed was again for rendition of accounts but the right and the claim asserted by the plaintiff was based on an agreement of partnership alleged to have been entered into on 3rd November l955. The terms of this partnership were stated in this plaint to be :- " (A) The plaintiff would invest Rs. 5000. 00 and the rest of the money requird for the purchase of rice from the Government would be invested by defendant No. 2. The interest to be charged on such investment by the parties was at 6% per annum. (b) The share of the parties in profits and loss was half and half. 5000. 00 and the rest of the money requird for the purchase of rice from the Government would be invested by defendant No. 2. The interest to be charged on such investment by the parties was at 6% per annum. (b) The share of the parties in profits and loss was half and half. (e) I he accounts and the cash were to be kept by the defendant. (d) To get the necessary information, to place tenders and to attend to the work in Government offices in this connection and practically the whole of the work required to be done outside Delhi and some of the work at Delhi was to be done by the plain . iff. (c) The purchases and sales were to be made in the name of defendant No. 1. ( 2 ) THE defendants naturally set up the plea of the bar of res judicata which was given effect to by the first Court but which was negatived by the lower appellate Court, as stated before. The defendants have come up in appeal to this Court. ( 3 ) MR. Chet Ram Mittal for the appellants has urged that the present suit was barred by virtue of Explanation 4 appearing in section II of the Code of Civil Procedure. He has relied on a Full Bench decision in Mst Sardaian v. Shiv Lal which was approved by their Lordships in Sunderabai v. Devaji Shanker Deshpande. The observations on which the trial Court based its judgment and by which Mr. Mittal has largely supported liis argument are that when the same right is claimed in both the first and the second suit but the right is based on one ground in the first suit and on a different ground in the second suit, the second suit is barred by the doctrine of resjudicata as the plaintiff in both the cases is litiga ing under the same title and further that if the same right is claimed in both the suits and the two claims are not destructive of each other it is incumbent on the plaintiff in the first suit to base his attack on all the grounds available to him at that time. The test in cases of this type is whether the claims are so dissimilar that their being joined in one suit would lead to confusion. The test in cases of this type is whether the claims are so dissimilar that their being joined in one suit would lead to confusion. In that case one Qaim Din died leaving him surviving three sons, Qutab Din, Fazal Din and Ranjha and two daughters, Mst. Sardaran and Mst. Allah Wasai. Qaim Din before his death executed awill bequeathing his entire property to his youngest son Qutam Din. It was stated in this will that the expenses of the betrothals and the marriages of the two drughtersof the testator would be met from his estate. One Shiv Lal secured a decree against Ranjha for a sum of Rs. 700. 00. In execution of that decree a house belonging to the deceased Qaim Din was attached. M t. Sardaran instituted a suit against the decree-holder and others to the effect that the house in dispute was under a charge of Rs. 500. 00 for her betrothal and marriage expenses and it could be sold only subject to that charge. This suit was dismissed on the ground that the will was not executed by Qaim Din while in sound disposing mind. Subsequently Mst. Sardaran and Mst Allah Wasai, the two daughters of Qaim Din, instituted a suit for a declaration that one- third share of the house belonged to them as the heirs of ("aim Din and was not liable to attachment in execution of the decree of Shiv Lal against Ranjha. The question of res judicuta arose and it was REFERRED TO a larger Bench. In this judgment there are other observations on which the learned counsel for the respondent has also relied. It has been pointed out by him that the decision of the Full Bench went in favour of Mst. Sardaran as it was held that her suit was not barred by the doctrine of res judicata. The reasoning of Abdul Rashid J. who delivered the judgment of the Full Bench was that Mst. Sardaran could in the former suit allege her title as an heir in the alternative but she was not bound to do so. In fact, had she done so, it would have created a great deal of confusion as her pleas on the two grounds of claim would have been destructive of each other. to support the maintenance claim, Mst. Sardaran could in the former suit allege her title as an heir in the alternative but she was not bound to do so. In fact, had she done so, it would have created a great deal of confusion as her pleas on the two grounds of claim would have been destructive of each other. to support the maintenance claim, Mst. Sardaran had to prove the due execution of the will by her father Qaim Din and its validity, while to prove the alternative claim as an heir she had to allege and prove that the will in favour of Qutab Din was not duty executed and, even if it was duly executed, it was void being repugnant to the provisions of Mahomedan law. Such inconsistent claims could not have been tried in one suit. If both of these claims were incorporated in the same plaint, the Court would have been entitled to 18. strike out inconsistent pleadings on the ground that they would embarrass the trial of the suit. The test indicated by Abdul Rashid J. in a case of this type was whether the two claims were so dissimilar that their being joined in one suit would lead to confusion. Explanation 4 to section , of the Code of Civil Procedure would be no bar in such circumstances. In Mt. Sardaran v. Shiv Lal their Lordships approved of the observations in this decision and with great respect I would follow them. ( 4 ) THE submission of Mr. Mittal that both the suits were for rendition of accounts and the right on which the relief was sought was the same cannot be accepted. The mere fact that the same relief is claimed in boti the suits would not necessarily lead to the conclusion that the right on which the claim is founded is also similar or same. In such matters it will depend on the facts of each case what was the foundation of the suit in the first instance and on the subsequent occasion. In the present case the previous suit was admittedly based on an alleged agreement said to have been emered into in the year 1955 of which the terms have been given at page 2 of the judgment, it was the defendant firm which pleaded partnership resulting, from an agreement dated 3rd November 1955. In the present case the previous suit was admittedly based on an alleged agreement said to have been emered into in the year 1955 of which the terms have been given at page 2 of the judgment, it was the defendant firm which pleaded partnership resulting, from an agreement dated 3rd November 1955. The second suit was then filed on the allegation that partnership had come into existence by virtue of that agreement, the terms of partnership being those which have been set out at pages 3-4 above. The relationship alleged between the parties in the two suits was quite distinct and different and it is difficult to accede to the contention of Mr. Mittal that the right on which the two suits were founded was the same. The lower appellate Court is in no way in error in saying that if the two relationships had been combined in one suit in the alternative confusion would have been caused as an "attempt to show existence of agency would have pulled the case in different directions to that regarding attempt to show existence of partnership". A number of cases have been relied upon by the learned counsel for the parties but they are not at all apposite and the decision has to be based on the general principles enunciated by the Lahore Bull B ench which, with respect, are unexceptioable and must be followed. ( 5 ) IN the result, this appeal fails and it is dismissed, but in view of the entire circumstances I leave the parties to bear their own costs.