The Court's discretion to allow amendment is guided by the necessity to determine the real questions in controversy and should not prejudice the other party's rights.

1. This revision is directed against the order dated 28.03.2007 passed in I.A.No.52 of 2007 in O.S.No.289 of 2005 on the file of the Principal District Munsif Court, Tiruvannamalai, allowing the petition filed under Order 6, Rule 17 CPC. The petitioner is the first defendant in the suit. The respondents 1 to 5 are the plaintiffs and the 6th respondent is the second defendant in the suit.

2. The plaintiffs have filed the suit for permanent injunction restraining the defendants, their men, agents, servants and others etc. from interfering with the plaintiffs peaceful possession and enjoyment of the suit property in any manner by putting up any construction over the same.

3. Resisting the suit, the first defendant has filed the written statement.

4. Pending suit, the plaintiffs have filed I.A.No.52 of 2007 to amend the plaint prayer alleging that they have obtained interim injunction in I.A.No.685 of 2005 and the same was made absolute by the Court on 02.02.2006. Despite the injunction order, the defendants have encroached upon the suit property and put up construction. According to the petitioners, the construction made by the defendants, have been evident from the report of the Advocate Commissioner filed in I.A.No.1131 of 2005. Therefore, it is necessary to amend the prayer for mandatory injunction for removal of the construction put up by the defendants. Hence, the plaintiffs have filed the petition seeking to amend plaint by incorporating the prayer for mandatory injunction.

5. Resisting the petition, the first defendant filed the counter stating that the description of the suit property is wrong and the entire construction made by the petitioner herein is in S.No.328/1, which can be classified as road poramboke over which neither the plaintiffs nor their predecessors in interest had any right. Even in the cross-examination of DW1 and her witness, no suggestion has been made to the effect that the petitioner encroached upon any of the portion of the suit property. The construction made by the first defendant is long back and even prior to the filing of the suit. The prayer for mandatory injunction is misconceived and the relief for mandatory injunction valued is also mischievous and unsustainable.

6. Upon consideration of the rival submissions, the trial Court allowed the petition. Aggrieved by the same, the first defendant preferred this revision.

7. I heard Mr.R.Rajan, learned counsel for the petitioner and Mr.K.Govi Ganesan, learned counsel for the respondents 1 to 5. Perused the materials available on record.

8. The learned counsel for the petitioner/first defendant submitted that the plaintiffs have filed the petition to amend the plaint only after the commencement of trial, which cannot be entertained. He submitted that the plaintiffs have sought to amend the prayer part alone and the same is insufficient to determine the real controversy between the parties. The learned counsel submitted that the trial Court ought to have seen that the report of the Advocate Commissioner did not clearly reveal the fact of raising of the building in the suit schedule property. It is submitted that the petition to amend the plaint has been filed during the time of arguments with an intention to drag on the proceedings and the trial Court ought to have dismissed the petition.

9. The learned counsel for the respondents 1 to 5/plaintiffs submitted that despite injunction order, the defendants have raised 7 feet building in the suit property and the same has been noted by the Advocate Commissioner. Therefore, the plaintiffs have filed the petition to amend the plaint prayer for mandatory injunction and the trial Court rightly allowed the petition.

10. The point that arises for consideration is whether the trial Court was right in allowing the amendment petition?

11. According to the plaintiffs, after obtaining the interim injunction in the suit, the defendants encroached upon the suit property and put up 7 feet building. In his report, the