JUDGMENT :

1. The present petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of challenging the legality and validity of an order dated 1.1.2019 passed below Exh.1 in Special Civil Suit No.240 of 2016 by the learned Principal Senior Civil Judge, Ahmedabad (Rural).

2. The background of the facts of present case is that the petitioner – original plaintiff had instituted a Special Civil suit No.240/2016 against the present respondent – defendant for seeking a decree of specific performance as well as declaration and seeking cancellation of sale deed and consequently for permanent injunction. The original defendant after receiving the summons from the trial Court had illegally transferred the suit property to defendant no.4 one Hitesh Indubhai Bharwad and though defendants were served with the summons, nobody had filed their respective Written Statement opposing the suit. On account of such, the trial Court passed an order to decide the ex-parte against respondent no.4 (New purchaser) and at the stage of hearing of interim injunction, surprisingly, in suomotu exercise of jurisdiction though not available, the learned trial Judge came to the conclusion that dispute arising in the suit proceedings is a commercial dispute and as such, has passed an order on 1.1.2019 ordering the suit to be transferred to the Commercial Court and it is this order which is made the subject matter of present petition under Articles 226 and 227 of the Constitution of India.

3. The Court on 23.1.2019 was pleased to issue notice for final disposal, returnable on 30.1.2019 and with this background, the present petition has come up for consideration before this Court.

4. Mr.Mehul S. Shah, learned Senior Advocate appearing with Mr. Jigar P. Raval, learned advocate for the petitioner has vehemently contended that the impugned order passed by the learned Judge is without jurisdiction. Hence, on this count alone, the impugned order is required to be set aside. It has been further contended that the suit proceedings basically is filed for the purpose of multiple reliefs i.e. for specific performance, for seeking declaration as well as for setting aside the sale transaction and for seeking permanent injunction and it has been pointed out by referring to cause of action as well as prayer clause, a contention is raised that this dispute entangled in the proceedings cannot be said to be a commercial dispute within the meaning of Section 2(C) of Commercial Courts Act and as such since the dispute arising is not falling within the purview of definition of Commercial dispute, the learned Judge could not have exercised the jurisdiction. It has been further contended that even otherwise the learned Judge who passed an order had assumed the jurisdiction which otherwise is not available by any Statute since the power of transfer are not assigned to the learned trial Judge who passed the impugned order as such, the order in question is absolutely without jurisdiction. Hence, the same is not fulfilling the test of legality. It has been further contended that here is a case in which even either party has not made any application for seeking transfer to Commercial Court. On the contrary, the defendant has chosen not to file any Written Statement and as such instead of hearing injunction application an order of transfer is passed which is not at all legal or valid in any form. Hence, the impugned order being not sustainable in the eye of law, deserves to be set aside.

5. To substantiate his submission, learned counsel has relied upon two decisions of Division Bench of this Court which are reported in 2017 (O) AIJEL – HC – 237874 and 2017 AIJEL-HC-237873 and by referring these two decisions, a contention is raised that this impugned order is quite in conflict with settled proposition of law propounded by Division Bench in aforesaid decisions. Hence, in no case the impugned order is sustainable in the eye of law.

6. To meet with the submission made