ORDER :

Petitioner being the plaintiff in a partition suit in O.S.No.206/2009 is invoking the writ jurisdiction of this Court for assailing the order dated 30.01.2019 a copy whereof is at Annexure-K whereby the learned Sr. Civil Judge, Doddaballapura having rejected his application in IA No.30 filed under Order VI Rule 17 of CPC, 1908 has denied leave to amend the plaint, as sought for.

2. After service of notice, respondents having entered appearance through their counsel resist the writ petition making submission in justification of the impugned order and the grounds on which it has been structured.

3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter because:

(a) admittedly, the suit is for a decree of partition & separate possession; subject application seeking leave to amend the plaint was moved much before the trial had commenced; it is the consistent view of the Apex Court and this Court that the pre-trial amendments need to be treated with leniency and more so when suit is for partition or declaration of title; this aspect having not been duly considered by the learned judge of the Court below in the right perspective, there is an error apparent on the face of the record.

(b) There is a grave error of law in the impugned order inasmuch as, the learned trial judge has without anytrial has formed an opinion that the testament pressed into service by the petitioner through the amendment application, is a concocted one; ordinarily validity of title documents is not examined while treating the prayer for amendment of pleadings; whether the testament is valid & effective is a question that needs to be gone into only after the trial and in the hearing of the suit; no circumstances are forthcoming for justifying such a finding/opinion.

(c) The vehement contention of the learned counsel for the respondents that the amendment would change the very nature of the suit is bit difficult to countenance; true it is that any amendment would result in some change to the structure & nature of the suit; question is not whether a change is brought about but whether such change is so enormous as to put the other side to a great prejudice which cannot be assuaged by awarding costs; it is tritely said that there is no prejudice to a litigant that cannot be remedied by awarding costs; even this aspect also has been lost sight of by the learned judge of the Court below.

(d) The vehement contention of the respondents that the amendment if allowed, would result into the introduction of a new cause of action in variance with the one on which suit is founded, again is bit difficult to countenance; even if the same is assumed to be true, the fact that a new cause of action is being roped in, on the basis of an amendment is not a sufficient ground for denying leave to amend, as the law after the march now stands; even otherwise, justice of the case requires that the amendment as sought for needs to be favoured subject to payment of costs and stipulation of a condition against the dragging of suit proceedings.

(e) The contention of the first respondent that she has already been transposed as the second plaintiff in the suit and that now allowing the amendment in question would put her to a lot of prejudice can be taken care off by relegating her to the original status as fourth defendant in the suit and thereby whatever little prejudice which otherwise she would have been put to will not happen.

(f) The last contention of the first respondent that already she has deposed before the Court below as PW1 and got marked certain documents and therefore the amendment now sought for cannot be allowed is too feeble a ground for denying relief to the petitioner inasmuch as, in a partition suit where one is this side of the cause title or that side, pales into insignificance; it hardly needs to be mentioned that whatever evidence oral or documentary, that is already lead befor