R.S. Chauhan, J. - (1.) THE petitioner has challenged the order dated 02.04.2010, passed by the learned Additional District Judge (Fast Track) No. 7, Jaipur City, Jaipur, whereby the learned Judge has dismissed the petitioner's application under Section 39 Rule 4 CPC.
(2.) IN brief, the facts of the case are that the petitioner had one plot, Plot No. 36 -37 situated at Royal Nagar, Thathar Road, Amer, district Jaipur. On 21.05.2007, an agreement to sell of the said plot was executed between the petitioner and the respondent No. 1, Abdul Salam Gauri on a consideration of Rs. 5,29,375/ -. Due to default of payment, on 24.07.2007 the petitioner sent a legal notice to the respondent No. 1. Even after the service of the legal notice, the respondent No. 1 did not fulfill the conditions of the contract. Therefore, the petitioner sold the said plot to one Wahid Khan through agreement to sale dated 03.10.2007. Thereafter, on 24.07.2008 the respondent No. 1 filed a suit against the petitioner for specific performance and permanent injunction on the basis of the agreement to sale dated 21.05.2007 before the learned District Judge, Jaipur City, Jaipur. The said suit was subsequently transferred to the learned additional District Judge (Fast Track) No. 7, Jaipur City, Jaipur. The learned Court below vide order dated 01.09.2008 granted ex -parte interim injunction in favour of the respondent No. 1. Thereafter, vide order dated 08.07.2009, while treating the service to be completed, the learned court below confirmed the ex -parte interim injunction dated 01.09.2008. After having knowledge about filing of the suit, the petitioner appeared before the court below and submitted his reply which was taken on record and the ex -parte proceedings against the petitioner was set aside. On 29.07.2009, the petitioner filed an application under Order 39 Rule 4 CPC for setting aside the ex -parte interim order dated 08.07.2009. However, vide order dated 02.04.2010, the learned court below dismissed the said application. Hence, this petition before this Court. Mr. Pankaj Gupta, the learned Counsel for the petitioner, has contended that the order dated 01.09.2008, restraining the petitioner from alienating the property, was passed ex -parte. The said order was subsequently confirmed on 08.07.2009. According to the learned counsel, it was observed in the order dated 08.07.2009 that the registered notice has been refused and, therefore, treating the service to be completed, the order dated 01.09.2008 was confirmed. But the fact remains that subsequently, the ex -parte proceedings have been set aside while accepting the application of the petitioner that no such registered notice was ever received by him. Furthermore, according to the learned counsel, the order dated 02.04.2010 is meaningless as even prior to the filing of the suit for specific performance, the petitioner has already sold the property to Mr. Wahid Khan. Therefore, the order restraining him from transferring the property cannot be implemented. Hence, his prayer that the order dated 02.04.2010 should be quashed and set aside.
(3.) HEARD the learned Counsel for the petitioner and perused the impugned order.;