IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.10.2011 CORAM THE HON'BLE MR. JUSTICE VINOD K.SHARMA O.A.Nos.1042 and 1043 of 2010 and A.Nos.5497 and 5498 of 2010 in C.S.No.823 of 2010 ORDER This order shall dispose off the following four applications: i) O.A.No.1042 of 2010: This application has been moved with a prayer for interim injunction restraining the respondents, their men, agents, servants, legal heirs or whoever claims any right or authority under them from alienating / encumbering, mortgaging / demolishing / repairing / renovating / altering leasing or in any way dealing with the suit property either directly or indirectly and either partly or fully, pending the disposal of the suit. ii) O.A.No.1043 of 2010: This application has been moved with a prayer for interim injunction restraining the respondents, their men, agents, servants, legal heirs and any one claiming any right under them from causing any hindrance or disturbance or from interfering their authority as the lawful owners of the suit property and to have free access to the suit property by applicants and their authorized representatives, pending the disposal of the suit. iii) A.No.5497 of 2010: This application has been moved with a prayer for grant of an order of attachment before judgment attaching the moveables lying at the suit premises in Y.202, Anna Nagar including the vehicles belonging to respondents to the value of the suit claim of Rs.25,00,000/- (Rupees Twenty Five Lakhs only), pending the disposal of the suit. iv) A.No.5498 of 2010: This application has been moved with a prayer for interim direction directing the respondents to deposit to the credit of the suit future damages for their continued wrongful use and occupation of the suit property at the rate of Rs.5,00,000/- (Rupees Five Lakhs only) from September 2010 till the respondents continue to be in occupation of the suit property, pending the disposal of the suit. 2. It is a well settled law, that the relief not founded on pleadings cannot be granted. A decision of a case, cannot be based on ground outside the pleadings of the parties. The pleadings and issues are the basis to ascertain the real dispute between the parties so as to narrow the area of conflict, and to see where two sides differ. Reference in this regard can be made to a judgment of the Hon'ble Supreme Court, in the case of National Textile Corp. Ltd vs. Naresh Kumar Badrikumar Jagad, 2011 (2) RCR (Rent) 293. 3. It is also well settled that by way of interim relief, the order cannot be passed, which cannot be finally passed in the final decree. The prayer in these applications are the one, which do not arise from the final relief claimed in the suit, except that under Order 38 Rule 5, on satisfying the conditions laid down, the amount in suit, can be secured. 4. The plaintiffs / applicants filed a suit for declaration that the defendants, their men, relatives and their associates are in illegal occupation of the suit property as described in the schedule since 10.10.2006. The applicants / plaintiffs, however, have not sought the relief of possession, but only damages of Rs.25,00,000/- (Rupees Twenty Five Lakhs only) for wrongful use and occupation with interest at the rate of 18% p.a., from the date of plaint till payment. 5. The prayer is also for directing the defendants to continue to pay damages at the rate of Rs.5,00,000/- (Rupees Five Lakhs only) p.m from September, 2010 onwards towards future damages. 6. The prayer for grant of future damages at the rate of Rs.5,00,000/- (Rupees Five Lakhs only) is not maintainable. Some of the States like Punjab, Haryana and Chandigarh, Uttar Pradesh and High Court of Bombay, have added rule 5 to Order XV of Code of Civil Procedure for striking out the defense for failure to deposit the admitted rent. However, in absence of any such relationship, no relief by interim measures can be claimed. The Hon'ble Supreme Court, while interpreting rule 5 of Order XV where it exists, has laid down that it cannot be exercised mechanically (AIR 1981 SC 1657). The Court in a case for possession can also assess mense profits for use and occupation if so claimed while passing the final decree for possession, but no order of monthly damages can be passed. 7. The applicants / plaintiffs also pray for permanent injunction, restraining the defendants, and persons drawing authority under them from alienating, encumbering, mortgaging, altering, demolishing, repairing, renovating the suit property, but have not sought declaration of ownership, but only that the respondents are in illegal possession. The prayer made by the applicants / plaintiffs for permanent injunction from causing hindrance or disturbance or from interfering with the rights of the plaintiffs in exercising authority of the lawful owners of the suit property, is again misconceived in absence of suit for possession, after having admitted the possession of the respondents / defendants over the suit property. The relief claimed cannot be granted in a suit for damages for wrongful use and occupation. 8. The applicants / plaintiffs also pray for mandatory injunction, directing the respondents / defendants to file affidavit, undertaking not to create any lien, charge or mortgage. Once the cause of the plaintiffs / applicants is that the defendants have no right or title in the property, where does the question arise to seek such injection. 9. Prima facie reading of the pleadings in the plaint shows, that the plaintiffs only seek damages for use and occupation, by claiming themselves to be owners of the property, which fact is disputed by the respondents. 10. In support of these applications, the affidavit filed by the applicants, reads as under: "I submit that I am the 2nd applicant herein and second plaintiff in the suit and therefore I am well acquainted with the facts of the case. I am filing this affidavit on my behalf and other applicants too. 2. I submit that the applicants herein have filed the present suit praying for a decree and judgment (a) for a declaration, declaring that the defendants and their men are in illegal occupation of the suit property as described in the plaint schedule right from 10.10.2006; (b) for recovery of Rs.25,00,000/- being the damages for wrongful use and occupation of the suit property at the rate of Rs.5,00,000/- p.m from April 2010 till August 2010 and continue to pay at Rs.5,00,000/- p.m. from September 2010 till the respondents vacate the suit property; (c) for a permanent injunction restraining the respondents their men, agents, legal heirs and whoever claims any right under them from alienating / encumbering / leasing / mortgaging / demolishing / repairing / renovating / altering the suit property either directly or indirectly and either partially or fully and from dealing with the suit property in any manner; (d) for a permanent injunction restraining the respondents, their men, agents and legal heirs and anyone claiming any right under them, from causing any hindrance or interference, in exercising the right of the applicants as the lawful owners of the suit property; and (e) for a mandatory injunction directing the respondents / defendants to file an affidavit of undertaking to the effect that the respondents / defenddants and anyone claiming any right under them have not created any lien, charge or mortgage in respect of the suit property by virtue of any fictitious document of title in favour of any third party / parties. 3. The applicants submit that they are the lawful owners of the premises bearing Door No.Y-202, Anna Nagar, Madras-600 040, as fully described in the plaint schedule, by virtue of the Sale Certificate No.65 of 2006 dated 10.10.2006 in T.A.No.39 of 2001 issued by the Debt Recovery Tribunal-2, Chennai. The suit property is land and premises bearing Door No.Y-202, Anna Nagar, Madras  600 040, measuring an extent of 2 grounds and 640 sq.ft., with a massive superstructure in R.S.No.101/part, Mullam Village, (built up area in all 2870 sq.ft). The said sale certificate issued by the Debt Recovery Tribunal-2, Chennai dated 10.10.2006, in favour of the plaintiffs has become final. 4. The applicants / plaintiffs further submit that the defendants 1 to 3 happen to be their relatives, their possession and enjoyment were not disturbed immediately after purchase by the plaintiffs and in fact, the respondents / defendants have been permitted to occupy the suit property out of mercy for a short period. Taking advantage of the merciful acts of the applicants / plaintiffs in permitting the respondents / defendants and their children to be in occupation of the suit property for a short while, they started to claim ownership to the suit property and misuse their permissive occupation of the suit property and went to the extent of denying access and entry to the suit property by the owners of the property, namely, the applicants / plaintiffs. 5. The applicants / plaintiffs further submit that suppressing the right, title and interest of the plaintiffs to the suit property, and making a false claim to the suit property, the second respondent / defendant has filed O.S.No.603 of 2009 on the file of the VIII Assistant City Civil, Madras, against the plaintiffs 2 and 3, for a permanent injunction restraining the plaintiffs 2 and 3 and their men from interfering with the peaceful possession and enjoyment of the suit property; and for a permanent injunction restraining the plaintiffs 2 and 3 herein and their men from in any way alienating the suit property. Pending suit, the respondents 2 and 3 / defendants 2 and 3 have moved two interim applications viz in I.A.Nos.1366 & 1367 / 2009 (1) for an order of interim injunction restraining the applicants 2 and 3 / plaintiffs 2 and 3 herein and their men, from in any way interfering with the peaceful possession and enjoyment of the suit property; and (2) for an order of interim injunction restraining the applicants 2 and 3 / plaintiffs 2 and 3 herein and their men, from in any way interfering with the alienation of the suit property by the second respondent / second defendant. The trial court, by an order dated 23.01.2009 was pleased to grant an ex-parte order of interim injunction in I.A.Nos.1366 and 1367 of 2009 in O.S.No.603 of 2009. 6. The applicants / plaintiffs further submits that on coming to know of the ex-parte order of interim injunction obtained by the 2nd respondent / 2nd defendant in respect of the suit property as against the plaintiffs 2 and 3 herein, they (applicants 2 and 3) filed a counter in I.A.Nos.1366 and 1367 of 2009 in O.S.603/09 seeking to vacate the interim order of injunction granted ex-parte. 7. The applicants further submit that in the meanwhile, they (applicants herein) have filed O.S.No.1962/09 on the file of the VIII Assistant City Civil Court, Madras praying for a decree and judgment for a permanent injunction restraining the respondents 2 and 3 herein and their men from in any way alienating / encumbering / leasing / mortgaging / demolishing / repairing renovating / altering the suit property and the superstructure standing on the suit site, either directly or indirectly and either partially or fully. Pending suit, the applicants herein have filed I.A.Nos.3589 of 2009 in O.S.No.1962 of 2009 for an order of interim injunction. 8. The applicants further submit that all the interim applications in O.S.No.603 of 2009 and O.S.No.1962/09 were heard together and parties submitted their respective arguments. The main argument of the applicants herein was that the respondents 2 and 3 were / are not the owners of the suit property and it was only the applicants who are the lawful owners of the suit property, having purchased from the Debt Recovery Tribunal-2, Chennai under Sale Certificate No.65 of 2006 dated 10.10.2006 in T.A.No.39 of 2001 issued by the Debt Recovery Tribunal-2, Chennai and if the respondents 2 and 3 had any grievance over the right, title and interest of the applicants, they (respondents 2 and 3) should approach the Debt Recovery Tribunal or Debt Recovery Appellate Tribunal and not by way of such a civil suit, as the jurisdiction of the Civil Court is ousted in such matter under the provisions of the Securitisation and Enforcement of Security Interest Act. 9. The applicants further submit that the learned trial judge, after hearing the parties, allowed I.A.Nos.1366 and 1367 of 2009 in O.S.No.603/09 filed by respondents 2 and 3 herein and dismissed I.A.Nos.3589 of 2009 in O.S.No.1962/09 filed by the plaintiffs, by a common order dated 30.06.2009. 10. The plaintiffs further submit that aggrieved thereby, the applicants herein filed C.M.A.No.76 of 2009 as against the dismissal of I.A.No.3589 of 2009 in O.S.No.1962 of 2009 and the Learned Appellate Court was plesaed to grant an order of interim stay in CMP No.961/2009 in CMA 76 of 2009, staying the operation of the order dated 30.06.2009 passed in I.A.No.3589/09 in O.S.No.1962/09 so as to enable the applicants herein to have free access / inspection to their own suit property, and to deal with their own property according to their own desire. Further the learned Appellate Court also was pleased to grant an order of interim injunction in CMP No.960/09 in CMA No.76 of 2009, restraining the respondents 2 and 3 and their men from alienating / encumbering / leasing / mortgaging / demolishing / altering / repairing or in any way dealing with the suit property pending disposal of the appeal. Now the C.M.A.No.76 of 2009 is pending for final disposal. 11. The applicants further submit that in the meanwhile, the applicants 2 and 3 herein filed C.R.P.Nos.2541 and 2542 of 2009 as against the order in I.A.No.1366 & 1367 of 2009 in O.S.No.603 of 2009 under Art.227 of the Constitution of India solely on the ground that the Civil Court has no jurisdiction to entertain such a suit in O.S.No.603 of 2009 canvass the correctness of the sale Certificate issued by the Debt Recovery Tribunal, Chennai, in respect of the suit property. Both the said C.R.Ps came to be dismissed by the Hon'ble High Court, Madras by an order dt. 28.4.2010, holding that the plaintiffs could avail the appellate remedy under order 43, R.1 CPC, by challenging the order of the trial court dt. 30.06.2009 made in I.A.Nos.1366 & 1367 of 2009 in O.S.603 of 2009 and the plaintiffs can take possession of the suit property under due process of law. In the said Civil Revision Petitions, the respondents filed a Memo on 26.08.2009 undertaking not to alienate / demolish the suit schedule property. A similar undertaking has also been filed by the defendants 2 and 3 before the Civil Court in CMA No.76 of 2009. 12. The applicants further submit that the only stand taken by respondents throughout is that the applicants have played a fraud in obtaining the Sale Certificate from the Debt Recovery Tribunal-2, Chennai, dt.10.10.2006 under Sale Certificate No.65 to 2006 in T.A.No.39 of 2001. It is needless to state that the correctness of the said sale Certificate can be canvassed only before the Debt Recovery Tribunal or before the Debt Recovery Appellate Tribunal and it is not open to the respondents to canvass the correctness of the same in a Civil Suit. Admittedly the respondents have not obtained any order from the competent authority forum to set aside the Sale Certificate issued by the Debt Recovery Tribunal-2, Chennai in favour of applicants herein. Therefore, it is clear that the Sale Certificate issued by the Debt Recovery Tribunal in favour of the applicants has become final in respect of the suit property. 13. The applicants further submit that the respondents and their men, legal heirs are and have been in illegal possession and enjoyment of the suit property on and from 10.10.2006, the date on which the Sale Certificate came to be issued in favour of the applicants, conferring right, title and interest of the applicants over the suit property. By setting up false title over the suit property, the respondents have been in possession and enjoyment of the suit property right from 10.10.2006. There is no dispute that the respondents are in illegal occupation of the suit property. The plaintiffs require the suit property for their own use and occupation. Further the respondents cannot be allowed to enjoy the suit property, belonging to the applicants at free of cost. That apart, the respondents, while they are in illegal occupation of the suit property, and denying the lawful title of the applicants to the suit property, have been indulging all kinds of illegal activities, mischief and nuisance and fraud, affecting the reputation of the applications. In such circumstances, the present suit has been filed for the reliefs as stated supra. 14. The applicants further submit that admittedly the respondents have been in wrongful use and occupation of the suit property on and from 10.10.2006. Though the applicants are entitled to claim damages from respondents, for their wrongful use and occupation at the rate of rupees five lakhs per month from 10.10.2006, they (applicants) restrict their claim as against the respondents at the rate of Rupees five lakhs per month from April 2010 upto August 2010 to the tune of Rs.25,00,000/- and continue to pay future damages at the same rate of Rs.5,00,000/- p.m. from September, 2010 till the defendants continue to be in possession of the suit property. The respondents have no manner of right to be in occupation of the suit property. Just because the respondents have set up a false plea as against the lawful owners, namely, the applicants, that will not make the respondents to continue to be in illegal occupation of the suit property against the interests of the applicants / plaintiffs. 15. The applicants further submit that the applicants are the lawful owners of the suit property. Further there is no dispute that the respondents are in illegal occupation of the suit property from 10.10.2006. If the respondents are not directed to pay the suit claim and further directed to pay future damages at the rate of Rs.5,00,000/- p.m. from September, 2010 and if the respondents are allowed to be in unlawful possession of the suit property as against the interests of the applicants, who are the lawful owner of the suit property, without paying any damages for their wrongful use and occupation, there is every possibility of the respondent putting the suit property for their illegal trade and business and for their fraudulent purposes at the cost and risk of the applicants herein. 16. The applicants further submit that the respondents who have been in illegal occupation of the suit property right from 10.10.2006 are likely to move away from the jurisdiction of this Hon'ble Court by allowing some third parties to be in illegal occupation to carry on their illegal trade and business. In such circumstances, it is very difficult for the applicants to recover the suit amount from the respondents, even if they succeed in the suit. Hence the applicants have filed interim applications, viz (i) for an order of interim injunction restraining the respondents and their men not to alienate the suit property and not to deal with the suit property; (ii) for an order of interim injunction restraining the respondents and their men not to cause any hindrance or disturbance or from interfering with the rights of the applicants from exercising their authority as the lawful owners of the suit property and to have free access to the suit property by applicants and their authorized representatives (iii) for an order of Attachment Before Judgment, attaching all the moveables lying / standing at the suit premises in y-202, Anna Nagar, Chennai-600 040, including the vehicles belonging to the respondents upto the value of the suit claim; 17. The applicants further submit that in the light of the above facts and circumstances they have established the PRIMA FACIE case in their favour for getting orders of interim injunctions as prayed for as well as for order for ATTACHMENT BEFORE JUDGMENTE, as the balance of convenience is in favour of the applicants. Further if the interim orders as prayed for are not granted the applicants would be put to great irreparable loss and damages. Further the respondents have no manner or right in the suit property. Therefore, as per the guidelines prescribed by the Hon'ble Supreme Court of India in granting orders of interim injunction and other interim orders, the applicants have fully satisfied with four conditions, viz, (1) Prima facie case; (2) balance of convenience; (3) irreparable injury; and (4) share and interests of the plaintiffs in the suit property. 18. In the light of the above the applicants pray that this Hon'ble Court may be pleased to grant an order of INTERIM INJUNCTION, restraining the respondents, their men, agents, servants, their relatives, legal heirs and whoever claims any authority under them from alienating / encumbering / mortgaging / leasing / demolishing / repairing / renovating or in any way from dealing with the suit property either directly or indirectly and either partly or fully, pending disposal of the suit and thus render justice. 19. The applicants further pray that this Hon'ble Court may be pleased to grant an order of ATTACHMENT BEFORE JUDGMENT, attaching the moveables lying / standing at the suit premises in y-202, Anna Nagar, Chennai  600 040, including the vehicles belonging to respondents, to the value of the suit claim, pending disposal of the suit and thus render justice. 20. The applicants further pray that this Hon'ble Court may be pleased to grant an order of INTERIM INJUNCTION restraining the respondents, their men, agents, legal heirs and anyone claiming any right under them from causing any hindrance or disturbance or from interfering with the rights of the applicants, exercising their authority as the lawful owners of the suit property by applicants and their authorized representatives, and from having free access to the unit property pending disposal of the suit and thus render justice. 21. The applicants further pray that this Hon'ble Court may be pleased to grant an order of INTERIM DIRECTION directing the respondent to deposit to the credit of suit future damages for their continued wrongful use and occupation of the suit property, at the rate of Rs.5,00,000/- (Rupees Five lakhs) p.m. from September, 2010 till the respondents continue to be in occupation of the suit property, pending disposal of the suit and thus render justice." 11. The reading of the affidavit shows that the applicants / plaintiffs, besides filing the present suit, also filed O.S.No.1962 of 2009, in the Court of VIII Assistant City Civil Court, Madras, for permanent injunction. The application stands already decided. The applicants / plaintiffs have filed appeal against the order passed by the learned Trial Court. The prayer in these applications has also been made in appeal, filed by the applicants / plaintiffs. 12. The pleadings further show that the plaintiffs claim damages for wrongful use and occupation, which is yet to be determined. 13. The only ground raised in these applications for attachment is that the respondents are likely to move away the jurisdiction of this Court, by allowing third party to be in illegal occupation. The averment is totally vague and does not satisfy the requirement of Order 38 Rule 5 of the Code of Civil Procedure, for attachment of the property. 14. The respondents, on the other hand, claim ownership of the property and that the defendants are in established possession. 15. There is no averment that any attempts are taken to dispose off the property, which could entitle this Court to pass order of attachment, or security under Order 38 Rule 5 of the Code of Civil Procedure. 16. This Court can only pass order of attachment, if the condition stipulated under Order 35 Rule 5 is satisfied, in absence of which, any order passed would be void order. 17. In view of the position explained above, the applicants are not entitled to seek order of injunction against alienating,