A. K. SEN, B. C. CHAKRABARTI ( 1 ) THIS is a revisional application at the instance of the respondent husband of Matrimonial Suit No. 36 of 1977 of the 8th Court of Learned Addl. District Judge at Alipore and is directed against an order dated November 20, 1979 whereby an application for amendment of the petition for divorce under Sections 24 and 25 of the Special Marriage Act was allowed subject to payments of costs. ( 2 ) THE suit was filed in June 1977 by the father of the petitioner's wife who was then alleged to be a minor. Subsequently however, on attaining majority the petitioner wife is continuing the suit on her own. ( 3 ) THE case as originally made out and in so far as they are relevant for the present purpose may be stated thus: -formerly the petitioner wife was a resident of New Alipore and while still a school going girl she picked up acquaintance with the respondent. Being immature in age and mind the petitioner became enamoured of the respondent who was reported to be an Engineering Graduate and a keen sportsman. The respondent used to write letters in endearing terms persuading the petitioner to meet him at different places. In course of such association the respondent came to know of the petitioner's wealth and affluence. The petitioner appeared at the Higher Secondary Examination in 1975 and came out successful. Thereafter the respondent started nagging the petitioner with proposal for marriage, took her to his residence and introduced her to his parents who also tried to persuade her in that behalf. The petitioner however expressed her unwillingness to marry the respondent without the consent of her parents. Sometimes after the petitioner with her parents moved to their present residence at Queen's Park. One day in January, 1977 the respondent took the petitioner to a house and made her a pose for photographs with the respondent. The petitioner out of fright and fear almost lost her senses. Since then the respondent started to blackmail the petitioner and threatened that unless she agreed to the proposal for marriage the photographs would be published in journals and exhibited in blue films. The petitioner literally broke down out of shame, fear and disgrace. The petitioner out of fright and fear almost lost her senses. Since then the respondent started to blackmail the petitioner and threatened that unless she agreed to the proposal for marriage the photographs would be published in journals and exhibited in blue films. The petitioner literally broke down out of shame, fear and disgrace. On March, 1977 the respondent sent a man to the petitioner's college asking her to meet the respondent at once on a plea that something terrible had happened. The petitioner met him and being accompanied by some unknown persons went to the office of a Marriage Registrar where she was forced to sign some papers, the contents of which were not made known to her. Due to the threats held out at the time she had no alternative but to sing the papers. It is also her case that the purported marriage with the respondent on March 7, 1977 was void abinitio since on that date she was aged only 17 years 6 months and 4 days. It is further her case that the age given in the Form for Registration of Marriage is false, that the representation made by the respondent about his qualifications and age are untrue and that such false statements were made only to establish his worth as an agreeable bridegroom. It is further stated that immediately after the registration the petitioner was taken to the residence of the respondent and all the ornaments that she had with her were taken away with the object of exacting ransom from the petitioner's father who happens to be very affluent person. On such allegations she prayed for the reliefs under Section 24 and 25 of the Special Marriage Act. ( 4 ) THE respondent duly entered appearance and filed his written statement in September, 1977 denying the material allegations of fraud, force or coercion. ( 5 ) THE petition for amendment on which the impugned order was passed, was filed on May 10, 1979. In the said petition it is stated that subsequent to the filing of the suit the petitioner was forcibly taken away from her father's custody by the respondent and was kept at various places till July 10, 1977. Pursuant to an order of this court arising from a criminal proceeding the petitioner was kept in the custody at first of one Mr. Pursuant to an order of this court arising from a criminal proceeding the petitioner was kept in the custody at first of one Mr. Ram Ranjan Chatterjee, since deceased and thereafter in the custody of Mr. S. C. Mitter till September 6, 1977 when she attained majority. Between September 6, 1977 the petitioner stayed with her uncle at New Alipore except for a few days when she had gone to visit her father's sister at Rampurhat with the said uncle and the respondent. During this period sometimes between the middle of November and December 6, 1977 the respondent had several violent epileptic fits, and the petitioner came to learn that the respondent had been an old congenital epileptic patient. The respondent was unsuccessfully treated for the disease and he fraudulently suppressed this fact from the petitioner. Thereafter it is stated that she had come to discover that the respondent had made a number of fraudulent misrepresentation for inducing her to give her consent to the marriage. The instance of fraudulent misrepresentation which she claims to have subsequently discovered have been set out in the petition in details and may be brief enumerated as hereunder. The respondent was aged much more than what he had indicated in the declaration form filed in connection with the purported marriage, that the respondent was not a graduate Engineer but was merely a polytechnic product working as an overseer, that he was receiving a salary much les than Rs. 1,500/- as falsely reported, that he falsely gave out that he was under order of transfer to distant place for a term of three years, that he introduced a fake astrologer who falsely prophesied that the intended marriage would be successful if held early and that a negotiated marriage was likely to be a failure, and so on. The petitioner asked for incorporation of these facts in minute detail and also prayed for deletion of the allegations of taking intimate photographs, black mailings her on the basis thereof, taking away her ornaments introducing her to parents of the respondents and persuasions by them as contained in the original plaint. ( 6 ) THE learned Additional District Judge while disposing of the application held that though the allegation that the respondent was a chronic patient of epilepsy, was a new ground yet the amendment if allowed would not change the nature and character of the suit. ( 6 ) THE learned Additional District Judge while disposing of the application held that though the allegation that the respondent was a chronic patient of epilepsy, was a new ground yet the amendment if allowed would not change the nature and character of the suit. The further instance of misrepresentation were according to the learned Additional District Judge merely details of substantive allegation of fraud and coercion. Therefore, he was of the opinion that the amendment would not amount to introduction of a new case as complained by the respondent but that the suit would remain the same as before with only some more additional facts in support of the original allegations. As regards the deletion of the original allegation of blackmail, forcible removal of jewelry etc. the learned Additional District Judge accepted the petitioner's submissions that those statements as originally made were due to a ? communication gap? between the father and the daughter at the relevant time. On such view of the matter the application for amendment was allowed with opportunity to the respondent to file additional written statement. Hence the revisional application. ( 7 ) MR. Bose appearing in support of the revisional application made a grievance that learned Additional District Judge by allowing the amendment has practically allowed a new plaint to be brought on the record in replacement of the original one. It is true that the amendment asked for is rather voluminous and the amended plaint not only introduces new instances of fraud and a new case of the respondent being a chronic patient of epilepsy but also seeks to delete most of the original allegations on which the case was initially founded. Mr. Bose complained that having realized from the letters written by the petitioner herself to the respondent that the case as originally made out was bound to fail she has come up with an entirely new case. This was felt necessary after the respondent produced in Court some of the letters written by the petitioner herself to the respondent. Some of such letters bearing different date in July, 1977, that is to say, after the filing of the suit, have been made annexures to the revisional application. This was felt necessary after the respondent produced in Court some of the letters written by the petitioner herself to the respondent. Some of such letters bearing different date in July, 1977, that is to say, after the filing of the suit, have been made annexures to the revisional application. It is, therefore, submitted that the application is not at all a bona fide one and it being practically in replacement of the original case, the amendment asked for ought not to have been allowed. ( 8 ) MR. Roy however argued that even in the original plaint the substantive allegation was a nullity on the ground that the petitioner had not attained the age of consent and that the marriage was otherwise liable to be annulled in view of fraud and coercion exercised upon her in obtaining her consent. Mr. Ray argued that in the original plaint though fraud was made a basis for the reliefs claimed yet the details of the fraud could not supplied because of the ?communication gap? between the father and the daughter at the relevant time. He argued that she having discovered these instances of fraud only in about March, 1979 the application for amendment could not be thrown out as a belated one made with a malafide object. If a case for annulment is made out on the ground of fraud, it is required that such a case has to be filed within one year from the date of such knowledge. It was contended that though these instances or rather details of fraud were sought to be incorporated by an amendment petition filed in May 1979 this could not be said to be belated in view of the petitioner's positive case that she came to know of it only in March, 1979. As regards the allegation of the respondent being a patient of epilepsy she however has stated in the amendment petition that she came to know of it sometime in November/december, 1977. But Mr. Roy argued that the delay in making this additional ground for annulling the marriage is inconsequential, because the statute does not prescribe any particular period within which annulment has to be asked for on such a ground. But Mr. Roy argued that the delay in making this additional ground for annulling the marriage is inconsequential, because the statute does not prescribe any particular period within which annulment has to be asked for on such a ground. ( 9 ) IT is true that the Special Marriage Act does not in terms say that a suit for annulment on such a ground has to be instituted within a specified period from the date of knowledge of the existence of such ground, yet it seems to us that she having come to know of this ground as far back as in November/december, 1977 could not justifiably hold it back for nearly one and half years. There is at any rate no plausible explanation for the delay. The alleged ?communication gap? between the father and the daughter could not legitimately account for the failure to make out this case much earlier because on the petitioner's own showing she had attained majority in September, 1977 and she had been permitted to continue the suit in her personal capacity. ( 10 ) THIS apart, the ?theory of communication gap? appears to us to be rather intriguing. The plea suggests as if the daughter for whatever reasons it may be, did not apprise her guardian father of the real state of things. Assuming that it is so we do not see how the allegation that the respondent had forcibly taken away the ornaments of the petitioner, that she had been made to pose for intimate photographs and that the respondent blackmailed her by threatening to publish such photographs could be made. These allegations being of a positive character could not certainly be the result of a communication gap. If they are now disowned as untrue and sought to be deleted from the plaint one cannot help commenting that the case as originally made was the work of an imaginative mind and was not due to lack of information resulting from communication gap. ( 11 ) MR. Roy, however, argued that the allegation of fraud is already there in the original plaint but only the details of the fraudulent conduct were lacking due to lack of information. It is undoubtedly true that in the original plaint the expression fraud has been used. Certain conduct has been attributed to the respondent which in the opinion of the petitioner wife accounted to fraud. It is undoubtedly true that in the original plaint the expression fraud has been used. Certain conduct has been attributed to the respondent which in the opinion of the petitioner wife accounted to fraud. Having carefully read the plaint as a whole we are unable to find any real allegation of fraud in the plaint as it stood prior to amendment. The allegations were really of intimidation and coercion. The allegation of fraud as now introduced by the amendment are new allegations. Mr. Roy while defending the prayer for amendment contended that the power of the Court to grant the leave for amendment is a discretionary power which it is not feasible nor advisable to encase within the strait jacket of an inflexible formula. He contended that having regard to the circumstances of the case and having regard to the fact that the details of the acts of fraud come to the knowledge of the wife only in March, 1979 the court ought to allow the amendment. He further argued that the amendment does not introduce a new case but merely elucidates the case already made by furnishing some more particulars. In support of his contention he relied on the decision in the case of (1) Sm. Abnash Kaur v. Dr. Avinash Nair, AIR 1975 Delhi 46. The question involved in that case was whether the Rent Controller had the power and jurisdiction to allow the amendment to add a new ground of eviction which has arisen subsequent to the filing of the suit for eviction. In the instant case, it is not the wife's case that the grounds now put forth have arisen subsequent to the filing of the original petition. The grounds existed but were not pleaded. Another case reported in (2) AIR 1977 Calcutta 464 was also cited by Mr. Roy. This is also is a case where the amendment was sought for introducing an additional ground for eviction of the tenant defendant. It was held in that case that the proposed amendment would not change the nature character of the suit, namely, a suit for eviction of a tenant. The case of (3) Leach v. Jardine Skinner, AIR 1957 S. C. 357 was also cited by Mr. Roy. It was held in that case that the proposed amendment would not change the nature character of the suit, namely, a suit for eviction of a tenant. The case of (3) Leach v. Jardine Skinner, AIR 1957 S. C. 357 was also cited by Mr. Roy. The principle laid down in that case is that the Courts would as a rule decline to allow amendment if a fresh suit on the amended claim would be barred by limitation on the date of the application but that this is a factor to be taken into account in the exercise of the discretion as to whether amendment should or should not be ordered. It is true that Order 6, rule 17 of the Code really vests in the Court a discretionary power which envisages a rule of conduct as contrasted with a rigid Rule of law. The principles governing amendment of pleadings are now well settled. Order 6, rule 17 does not confer an unlimited jurisdiction in the Court to grant amendments irrespective of its nature and irrespective of the delay in asking for the same. ( 12 ) IT is now well settled that amendment should be refused where it would introduce a totally different, new and inconsistent case or its effect would be to substitute one distinct cause of action for another or change the character of the suit. It is also well settled that amendment should be refused where the application is not made in good faith and there has been unconscionable delay or gross latches. While a rigid practice of refusing leave is far from desirable, yet to entertain a case of which the pleadings contained no indication is also not proper. In the case of (4) A. K. Gupta v. Damodar Valley Corporation, AIR 1967 SC 96 it has been observed that in the matter of allowing amendment of pleadings the general rule is that a party is not allowed by amendment to set up a new case or a new cause of action. The expression, cause of action in this context does not mean every fact which is material to be proved to entitle the plaintiff to succeed. The expression only means a new set of ideas. The expression, cause of action in this context does not mean every fact which is material to be proved to entitle the plaintiff to succeed. The expression only means a new set of ideas. In the case before us the allegation that the respondent has been suffering from epilepsy for a long time is certainly a new case of which there is no indication in the original pleadings. So far as this plea is concerned the wife's allegation is that she came to know of it sometime in November/december, 1977. The question of limitation apart, there is no explanation for the delay in making out the case. As regards the other allegations it is stated that the wife came to learn in or about March, 1979 that the respondent had made a string of fraudulent misrepresentation as enumerated in the petition for amendment for inducing her to give her consent to the marriage. In paragraph 4 of the amendment petition it is alleged that the wife was forcibly taken away from her father's custody on June 20, 1977 and was kept at various places to avoid discovery by her parent still she was produced in court in July, 1977. In paragraph 6 it is stated that she would have left for her father's residence even earlier since she had come to discover after she had been forcibly taken away by the respondent about the fraudulent representations made by the respondent. Therefore it is clear upon a reading of the entire petition that even according to her she came to know of the fraudulent representation after she was forcibly taken away by the respondent and that was in June/july, 1977. If that was the position the allegation in paragraph 8 that she came to know of the fraudulent misrepresentation only in March, 1979 does not appear to have been made in good faith. This apart, since the amendment seeks to withdraw the allegation of coercion which, besides the plea that the wife was below the age of consent, was the only foundation of the original plaint and since the amendment introduces a case altogether new and founded on a new set of facts known to the wife from long before on her own showing, we feel that the amendment sought for is not bonafide. We are unable to agree that the amendment asked for would merely amount to incorporation of some additional facts in support of the original case of fraud. The entire fabric and complexion of the original case is now sought to be altered and this should not be allowed to be done by way of amendment. ( 13 ) THOUGH the order impugned was within the learned Judge's description, the learned Judge failed to appreciate the well established limits within which such discretion could be exercised, so that when he proposed to allow the application, more mechanically than on application of his judicial mind having regard to such settled principles, he was not acting within his jurisdiction. Such an order when results in serious miscarriage of justice so far as the respondent in the proceeding is concerned, is liable to be set aside in revision. The revisional application is, therefore allowed. The impugned order is accordingly set aside. There will be no order for costs. Sen, J. : i agree. Memo. No. 5362 D dated 6th June, 1980. Copy forwarded to L/8th Addl. District Judge, Alipore 24-Parganas for information and guidance in continuation of the Court's previous Memo. No. 14980 dated 20. 2. 1980. Application allowed.