JUDGMENT
S.K. Mahajan, J.
(1) Whether Civil Court has the jurisdiction to award interim compensation under its inherent powers under Section 151 of the Code of Civil Procedure in a suit which has been filed by the plaintiff for award of compensation for injury/ death caused due to an act of alleged negligence on the part of the defendants, is the question which arises for consideration in the present application.
(2) On April 11, 1989 at about 5.30 a.m. Mr.Ram Nivas Sharma, a newspaper vendor/ agent was going on his two wheeler scooter bearing No.DDH 6849 from Birla Mill towards Mandelia Park, when in his effort to save a woman allegedly crossing the road, he ran into the railing which was allegedly protruding into the road and hence met with an accident and lost his life. The police recorded Fir No.73 under Section 304(A) of Indian Penal Code. The allegations made in the plaint are that Municipal Corporation of Delhi, the defendant, is responsible for the provision, maintenance and upkeep of general public utilities/facilities and in particular of roads, streets, railing, etc. It is alleged that a part of the railing on the left side on the road from Birla Mill towards Mandelia Park had been broken and was dislodged from its proper place a was jutting on to the road posing a constant threat and danger to the lives of the people. Complaints were allegedly made to the defendants by the residents of the locality about the said railing protruding on the road. However, defendants did not pay any heed to the said complaints and made no efforts to repair the railings. It is, therefore, alleged that the deceased met with an accident which was caused due to the negligence of both the defendants and the same has wrought untold misery and hardship on the plaintiffs for which the defendants are alleged to be accountable/responsible and liable to pay damages to the plaintiffs. The deceased is staled to be earning an income of Rs.4,000.00 or more per month and was of 35 years of age at the time of his death. Present suit has been filed by the plaintiffs being the parents, wife and children of the deceased for award of compensation of Rs.15,00,000.00 .
(3) Written statement has been filed by the defendants, denying their negligence in the maintenance of the railings. It has been denied that a part of the railing on the left side of the road from Birla Mill towards Mandelia Park had been broken or was lying dislodged from its proper place or was jutting and allegedly posing threat and danger to the lives of the people. It has also been denied in the written statement that any complaint had been made by any resident of the locality about the said railing. Facture of any accident having taken place on account of alleged negligence on the part of the defendants has also been denied. Defendants have completely denied their accountability or liability for the said accident. Defendants have also denied their liability to make payment of any compensation for the death of Shri Ram Nivas Sharma, husband of plaintiff No. 1.
(4) Alongwith the plaint an application under Section 151 of Code of Civil Procedure was filed for the grant of interim maintenance of Rs.1,00,000.00 to the plaintiffs on the allegations that the deceased had two minor school going daughters and a sum of about Rs.800.00 p.m. is spent on their education and the deceased had also aged parents. It is stated that after the death of Shri Ram Nivas Sharma, the plaintiffs have no source of income to survive and it was, therefore, necessary that interim compensation be awarded to the plaintiffs for sustenance. Though no reply has been filed to the application, however, Mr.Bhucher, learned counsel for the defendants, has made a statement that written statement may be read as reply to this application as well and the application has been argued without their being any reply to the same.
(5) The first objection taken by the defendants is that the application under Section 151 of Code of Civil Procedure is not maintainable for the grant of interim maintenance. The contention is that inherent powers of the Court cannot be invoked with respect to matters which affect substantive rights of the parties. The contention is that the powers under Section 151 of Code of Civil Procedure are procedural and they cannot be extended to encroach upon the substantive rights of the defendants. Ms.Gita Luthra, appearing for the plaintiffs, contends that in appropriate cases, the Court, in order to mitigate the hardship to the claimants, can award interim compensation. Reliance has been placed upon judgments reported as Jyoti Prakash Banerjee Vs. Chameli Banerjee and Another, ; Smt. Sunanda Vs. Dr.Manohar, 1988 (2) Current Civil Cases 535; Hurditch Vs. Sheffield Health Authority, 1989 (2) All England Reports 869; Parson Vs. Hogg, 1985 (2) All England Reports 897 and Union Carbide Corporation Vs. Union of India, .
(6) In both Jyoti Prakash Banerjee Vs. Chameli Banerjee and Another (Supra) and Smt. Sunanda Vs. Alanohar_(Supra), the question was whether the wife was entitled to interim maintenance in a suit filed in the Civil Court. While the first suit related to grant of maintenance under the Hindu Adoption and Maintenance Act 1956, Sunanda Vs.Manohar_(Supra) was a declaratory suit filed by the respondent seeking a declaration that the appellant was not his legally wedded wife. In both these cases, the Court while interpreting the powers of the Court under Section 151 of Code of Civil Procedure, held that “though there was no provision in the statute or in the civil procedure code for making an application in a suit for maintenance pendente lite. However, as the matter related to matrimonial disputes, the wife was necessarily entitled to maintenance either under the provisions of the Hindu Adoption and Maintenance Act or under the provisions of Hindu Marriage Act and it was in these circumstances that the Court held that “in appropriate cases it had the power to award interim compensation”. In my opinion, none of the two cases will be applicable to the facts and circumstances of the present case. In the present case, not only that the factum of accident has been denied but the defendants have also denied their liability to pay, as according to them there was no negligence on their part.
(7) The cases Hurditch Vs: Sheffield Health Authority (Supra) and Parson Vs. Hogg (Supra) are also not applicable to the facts of the present case in as much as both the said case related to the award of final damages which had resulted .on account of an action brought by the said parties during the course of their employment with the employer. The question of the grant of interim maintenance was not the question involved in any of the two cases.
(8) In Union Carbide Corporation Vs. Union of India_(Supra) the Supreme Court has at length discussed the powers of the Courts to award interim compensation in a matter arising out of torts. On the question as to whether the Court had jurisdiction to award payment in its inherent powers, the Supreme Court held as tunder : – “Now in the opinion of this Court, it is quite apparent that no order .of interim payment of the nature with which we are concerned in the present case could be passed by the trial Court in exercise of its power under Section 94 of the Code of Civil Procedure. Clauses (a) to (d) of Section 94 relate to making of specific interlocutory orders like directing the defendant to finenish security, granting of temporary injunction and appointing a receiver of property. Making of an order of interim payment is not. included in any of the said clauses. Clause (c) of the said Section is the residuary clause and relates to making of ‘such other interlocutory orders as may appear to the Court to be just and convenient’. However, the governing clause of secion 94 provides that the Court has power to make interlocutory orders under clauses (a) to (e) only ‘if it is so prescribed’ in the rules. The rules framed under the Code of Civil Procedure do not provide for making of any such order of interim payment either on the ground of it being ‘just or convenient’ to do so or otherwise. Accordingly, it is clear that no such order could be passed by the Court under clause (e) also.
(9) It is for the aforesaid reason that Section 94 of the Code of Civil Procedure being on the face of it inapplicable, the ground with which we are concerned is con-fined to the question whether the Court had any jurisdiction to pass an order of interim payment in exercise of its inherent powers under section 151 of the Code. The said Section reads as follows : “Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Courts to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court”. The words of the Section appears to be rather wide. But then, as we shall presently see, the decisions of the Supreme Court, by construction, have limited the scope of the said Section.
(10) Before referring to the decisions of the Supreme Court on the point, it may be useful to bear in mind the true nature of the impugned order of interim payment passed by the trial Court so that the question to which we seek an answer in the said decisions may be clear in our mind. In the said connection, it is apparent that we have to accept the contention of the defendant Ucc that the impugned order which was an order of interim payment, passed by the trial Court in a pending suit for damages based on tort, before trial on issue relating to the defendant’s liability to pay such damages, was not a matter of mere procedure but one involving the substantive rights of the defendant. Thus, the question to which we have to find an answer in the decisions of the Supreme Court is whether in exercise of its inherent powers under Section 151 of the Code of Civil Procedure, the Court could grant an interlocutory relief which had the effect of affecting the substantive rights of the defendant and if so whether there were any limits to the exercise of such powers.”……
“THUS,in view of the above said two decisions of the Supreme Court in Padam Sen and Manoharlal it is to be taken as settled law that howsoever wide the ambit of inherent powers of the Court under Section 151 may be, the said powers relate to the procedure to be followed by the Court in deciding the cause before it and they are not powers over the substantive rights which any litigant possesses. Specific powers have to be conferred on the Court for passing such orders which would affect such rights of a party. In fact, in a recent decision of the Supreme Court, Commissioner of Income Tax, Delhi Vs. Bansidhar and Sons, , it has been affirmed by Sabyasachi Mukharji,J. speaking for the Division Bench, that the above said is the ratio of the Supreme Court’s earlier decisions in Padam Sen and Manohar Lal, (See paras 34-35)”.
“TO sum up, if as per their direct intendment the inherent powers under Section 151 of the Code cannot be exercised with respect to matters affecting substantive rights which a party possessed, such a result cannot be permitted to be achieved indirectly under the garb of Court taking recourse to any so-called ‘innovation’. A judicial innovation is not an unbridled horse to be allowed to roam about freely in any direction it likes at its pleasure.”
(11) In spite of Supreme Court having summed up that inherent powers under Section 151 of Code of Civil Procedure cannot be exercised with respect to matters affecting substantive rights which the party possess, the Court had further considered as to whether in the facts and circumstances of the UCC’s case before it, interim payment could be awarded to the victims or not. While dealing with this question, the Supreme Court observed that : – “AN enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to any one on account of hazardous or inherently dangerous nature of the activity which it has undertaken”.
(12) It was on the basis of these reasons that the Court had in M.C.Mehta’s case, held that the liability of such an industry was absolute without any exception. It was held that “the enterprise is strictly and absolutely liable to compensation to all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortuous principles of street liability under the rule in Reliance Vs. Hetcher 1861-1873 (1) All England Reports 156 (H.L.)”.
(13) In England, Administration of Justice Act 1969 was incorporated on the basis of the recommendations of the Winn committee on Personal Injuries Litigation to enable the Court to pass orders or interim payments of damages in certain circumstances. A complete set of rules were framed under the Administration of Justice Act 1969 with regard to interim payment of damages in certain circumstances and the said complete set’ of rules were brought into force under the rules of the Supreme Court vide R.S.C. amendment No.2, 1980. This was done by enlarging the scope of Para Ii of Order 29 by addition of Rules 9 to 18 to it. The Supreme Court was of the opinion as to why the said set of rules of the English Law be not made applicable at least in the Bhopal Gas Leak Disaster with suitable modifications. It was held by the Supreme Court that:- “IT does not require much of an argument to accept that the intervening period between commencement of an action and its ultimate trial in a suit for damages especially when based on a tort caused a greater hardship and prejudice to persons claiming such damages in a developing country like India than in a developed country like England. As such, there existed no valid ground why the above said set of statutory rules of the English law brought into force in that country much before the Bhopal gas leak disaster could not be adapted with suitable modifications as a part of Indian common law and applied to the Bhopal suit. Needless to say, in the peculiar facts and circumstances of the Bhopal suit the procedural requirement in the English set of rules regarding the plaintiff-Union of India being required to make an application supported by an affidavit could be dispensed with. There is no reason why subject to the fulfillment of other requirements of the said rules an order of interim payment of damages could not be passed by the Court in favour of the plaintiff Union of India for the benefit of gas victims”.
(14) The interim payment of compensation to the Bhopal Gas victims was, therefore, made by suitably adopting the rules framed under the Administration of Justice Act in England and also keeping in view the fact that the liability of the offending company was absolute and there was no exception to the payment of compensation by it to the gas victims. It was also granted on account of the fact that the procedure applicable to ordinary suit for damages on tort stood modified to a considerable extent in the Bhopal Gas Leak Disaster by the provisions of the Bhopal Gas Leak Disaster Act and the scheme framed thereunder. It was held that as the Bhopal Gas Leak Disaster (pressing of claims) Act and the scheme framed thereunder were brought into force for the specific purpose of laying down a special procedure to be followed in a suit of that type, the said procedure was bound to have an effect of modifying such provisions of the Code of Civil Procedure as were inconsistent with it or its clear intendment. In my opinion, the ratio of the judgment in Union Carbide Corporation’s case cannot be made applicable to the present case so as to grant interim compensation to the plaintiffs.
(15) As held by the Supreme Court, the inherent powers of the Court under Section 151 of Code of Civil Procedure relate to the procedure to be followed by the Court in deciding the case before it. These powers cannot be used over the substantive rights which a litigant possess and such a result cannot be permitted to be achieved indirectly under the garb of the Court taking recourse to any so called “innovation”. In my opinion, as the very factum of the accident has been denied and the defendants have also denied its negligence in the maintenance of the railings and this question is still to be decided as to whether the accident had been caused because of protruding rating on the road, there is no case for the grant of any interim compensation to the plaintiffs.
(16) It is admitted case of the parties that plaintiff No. 1 has been granted employment by Municipal Corporation of Delhi on compassionate grounds and she is presently getting a salary of more than Rs.1,500.00 p.m. It is also on record that plaintiff No.5, the father of the deceased, is the owner of a properly bearing Municipal No.18/46E Kale Khan, Delhi which is of the value of more than about Rs.2,00,000.00 and the plaintiffs are in possession of items like television, refrigerator, etc. of the value of more than Rs.3,00,000.00 .
(17) Keeping all this in view, I feel that there is no case made out for the grant of any interim compensation to the plaintiffs.
(18) The application is, accodingly, dismissed leaving the parties to bear their own costs.