ACHUTHA MENON Vs. MUHAMMED

JUDGEMENT

(1.) Petitioner is the plaintiff in O.S. No. 364/85 before the Munsiff's Court, Perumbavoor. The suit was filed by the petitioner for fixing the boundary between plaint A schedule and B schedule properties and for injunction restraining the defendant form trespassing into the Plaint A schedule property. Wife of the plaintiff obtained the plaint schedule properties measuring 15.350 cents under Ext. A2 partition deed dated. 16.3.1966. Plaintiff acting as his wife's power holder sold to the defendant 6 cents of land, which is described in B schedule of the plaint, by Ext. A1 sale deed. According to the revision petitioner, for the balance 9.350 cents which is described in plaint B schedule an agreement of sale was executed between the plaintiff and the defendant. The defendant tried to trespass into the A schedule property. Hence, the suit was filed, according to the petitioner. A written statement also was filed. Thereafter, after evidence and hearing both parties, the Trial Court passed a decree for putting up boundaries, but disallowed the prayer for prohibitory injunction. Both parties filed appeal. In the appeal, the appellant was allowed to amend the plaint There was a cross appeal also. The appellate court held that the amendment application is to be transmitted to the lower court along with the records with a direction to the lower court to permit the plaintiff to carry out the amendment as allowed by that court. The Trial Court was also directed to allow amendment application if any filed by the plaintiff to amend the plaint for the identification of A schedule as done by the Commissioner in Ext. C2(a) plan. Subject to the above direction, judgment and decree of the Trial Court were set aside and the appeal and the cross appeal were allowed to that extent After remand, the amendment was carried out. The defendant filed additional written statement Thereafter, defendant filed what he has chosen to call a better statement, along with I.A. No. 1992/94 under O.6 R.5 of the C.P.C. for receiving the same.

(2.) It is contended that better statement cannot be filed by the defendant under O.6 R.5 C.P.C. at his own discretion. Arguments were raised with regard to scope of O.6 R.5 CPC. It was argued that better statement can be filed by the defendant only if plaintiff requests stating that the written statement needs clarification. Under O.6 R.5, it is not stated that better statement can be filed by the defendant, at the instance of the plaintiff only. No decision was also cited before me to support the above contention. A reading of O.6 R.5 shows that better statement or more particulars can be allowed to be filed by a court at its discretion on three occasions. (1) As a general practice, better statement is filed one party at the instance of the other party. If plaintiff wants more particulars in the written statement he can file an application compelling the defendant to file better statement or further or better particulars of any matter stated in the pleading. Similarly defendant also can file an application under 0.5 R.6 requesting the plaintiff to file better particulars or further or better statement if plaint averments are not clear and court at its discretion can allow such applications upon such terms as the court may deem fit and just. (2) Court is empowered to direct a party to the suit to file a further and better statement or to give further or better particulars of any matter stated in the pleading as may be just at its own discretion without a special request by the opposite party (plaintiff or defendant as the case may be). (3) Even without a request from the opposite side, a party, who feels that better statement should be filed for clarification containing more particulars, can file an application under O.19 R.5 and such application can be allowed by the Court at its discretion after hearing the parties. But he cannot be allowed under the pretext of filing better statement bring in new particulars or new case or defence or new cause of action. In other words, on the pretext of filing a better statement under O.6 R.5, he cannot be allowed to over step the procedure for amending the pleadings under O.6 R.17.

(3.) Another contention raised is that the case was remanded with specific direction to amend the plaint. Trial Court cannot go beyond the order of remand. Since Appellate Court while remanding the case did not mention anything regarding better statement, court should not have allowed the defendant to file a better statement. It is true that Trial Court cannot go beyond the directions contained in the order of remand. In this case, judgment and decree were set aside and Appellate Court also allowed the plaintiff to amend the plaint. It cannot be contended that apart from amending the plaint Trial Court cannot do anything. Filing of additional written statement or better statement and the power of the Trial Court are not restricted in the appeal remand order. It is an open remand with a direction to allow the amendment of the plaint Therefore, it is clear that remand order in this case puts no restriction to the Trial Court in allowing prayer for filing a better statement