P L D 1952 Baghdad﷓ud﷓Jadid 46 (PLP)

ABDUL RASHID, J.‑This is a revision application against the order of Sub‑Judge Allahabad, rejecting the application of Alam Khatoon plaintiff‑petitioner for leave to amend her plaint. Alam Khatoon filed a suit on 14th January 1951 for dissolution of her marriage, against her husband Nabi Bakhsh, on the ground of his cruel treatment towards her. Subse quently on the framing of the issues she made an application on 21st August 1951 for leave to amend her, plaint to the effect that her Nikah ceremony had been performed under coercion and against her will and that the marriage had not been (validly) consummated. In her plaint, however, she had made no such allegation of compulsion, which altogether changed the subject matter of the suit and therefore the leave to amend was refused by the trial Court. In the course of his arguments in this Court Messrs. Mustafa Khan and Fida Hussain counsel for the petitioner have laid stress on the point that matter proposed in the application for amendment is nothing but a mere elucidation of the facts laid down in the plaint and hence leave ought to be granted. In support of their contention they rely on Nambhuri Subbayya and others v. Chaganti Chandrayya and others A I R 1941 Mad. 811 ; Nanu Mal v. Ram Prasad 1926 All. 672 ; Bhawani Prasad Singh v. Mahabal Singh 1928 Oudh 305 and Lampat Shukal v. Sub Karan Tewari 1942 Oudh

161. These rulings, however, do not apply to the facts of the present case. On the other hand it was laid down in Namhuri Subbayya and another v. Chaganti Chandrayya and others A I R 1941 Mad. 811 that although power to grant leave for amendment ought to be liberally exercised, yet amendment introducing new and inconsistent case should not be allowed. Similarly it was laid down in all other cases cited above that amendment should be allowed only to cure a defect in the plaint or to elucidate some matter but with due regard to two conditions, (1) of riot working injustice to the other party and (2) of being necessary for the purpose of determining the real question in controversy between the parties. Now in the present case it is quite obvious that the proposed amendment introduces not only an inconsistent case, but changes the whole cause of action. In the plaint she makes no mention of the Nikah, ceremony having been performed against her will, but simply says that after the consummation of the marriage the respondent has been ill‑treating her, although she has all along been ready to live amicably with him in his house as his wife. This clearly shows that the amend ment prayed for represents quite a different cause of action from that given in the plaint. In these circumstances I uphold the order of the trial Court refusing leave to amend the plaint and dismiss the application for revision. Both parties present Announced. A.H. Application dismissed.