SBCWP No.196/2009 Smt.Saroj Saini Vs. Sri Kishan & Anr. 1 S.B. Civil Writ Petition No.196/2009 Smt. Saroj Saini Vs. Sri Kishan & Anr. DATE OF ORDER : - 14.1.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.Sajjan Singh,for the petitioner. <><><> Heard learned counsel for the petitioner. Learned counsel for the petitioner submitted that by claver drafting the plaintiff, in fact who is in fact not in possession of the property has sought relief of prohibitory injunction that too, when the defendant already obtained the injunction against the plaintiff by decree dated 25.2.2006 though its appeal is pending, yet valued the suit as Rs.400/- and paid the court fees Rs.30/-. The trial court did not appreciate the facts of the case and rejected the petitioners application filed under Order 7 Rule 11 CPC. It appears from the application of the petitioner filed under order 7 Rule 11 CPC (Annex.3) that by this application, he raised only objection that the suit has not been properly valued. In the application, the petitioner SBCWP No.196/2009 Smt.Saroj Saini Vs. Sri Kishan & Anr. 2 merely stated that the plaintiff is indirectly seeking possession of the property from the defendant. The trial court rejected the petitioner's application by saying that the defendant can raise objection in the written statement and after framing the issue, the question can be decided. According to learned counsel for the petitioner in the plaint itself the plaintiff specifically admitted that the defendant is in possession of the property. It is submitted that when once the possession of the defendant is admitted in any capacity, may it be, he/she be licensee, lessee or even trespasser, the suit for grant of relief of injunction is not maintainable because of the reason that the prohibitory injunction will be unexecutable and will be no relief. It is also submitted that when defendant is in possession of the property at the time of filing of the suit and consequential relief is not claimed then the suit is barred under Specific Relief Act. Since the petitioner has not raised these grounds in the application and there is objection of the pecuniary jurisdiction only of the court below then the grounds raised SBCWP No.196/2009 Smt.Saroj Saini Vs. Sri Kishan & Anr. 3 by the petitioner cannot be decided here without there being factual foundation and legal objection in the trial court. In view of the above reason, I do not find any reason to interfere in the order passed by the trial court rejecting the petitioner's application in the peculiar facts of the case. However, it is necessary to observe that when suit is barred by law or cannot proceed for trial then that can be rejected at earliest stage so that the court's time may not be unnecessarily wasted and litigants may not be harassed by frivolous litigation. In view of the above reason for other objections, the petitioner may file separate application may be under Order 7 Rule 11 CPC about the maintainability of the suit, which can be examined by the trial court in accordance with law within the scope under Order 7 Rule 11 CPC. The writ petition of the petitioner is, therefore, dismissed with above observation. (PRAKASH TATIA), J. c.p.goyal/-