R.S. Chauhan, J. - (1.) THE petitioners are aggrieved by the order dated 18.4.2012 passed by the Addl. Civil Judge (JD) & Judicial Magistrate, First Class, No. 2, Sikar, whereby the learned Magistrate has allowed an application under Order 6 Rule 17 CPC filed by the respondent -plaintiff.
(2.) THE brief facts of the case are that the respondent -plaintiff, Mr. Narsi Prasad Sharma, filed a suit for mandatory and permanent injunction along with temporary injunction application against the petitioner -defendants -Sambal Shikshan Sansthan, Shivsinghpura, Sikar. The Commissioner inspected the site and submitted his report on 18.2.2011. Meanwhile, the respondent -plaintiff moved an application under Order 6 Rule 17 CPC. By order dated 18.4.2012 allowed the said amendment application. Hence, this petition before this Court. The learned counsel for the petitioners has contended that according to the Commissioner's report itself, it was clear that the construction raised by the defendant was already there when the Commissioner inspected the site. Therefore, according to the petitioner, the construction has/raised much before the plaint was even filed. Hence, there was no reason to permit the amendment in the plaint.
(3.) ON the other hand, the learned counsel for the respondents has contended that even if the amendment were allowed, it would not change the nature of the suit. Moreover, as observed by the learned Magistrate, it is for the respondent -plaintiff to prove as to when the construction actually took place. Therefore, by permitting the amendment in the plaint that, too, at the initial stage of trial, no illegality has been committed by the learned Magistrate.;