Judgment

GOSWAMI, J. - This is a petition for transfer of a suit, which is pending on the original side of the Calcutta High Court, under S. 25 as amended by the Code of Civil Procedure (Amendment) Act, 1976 (No. 104 of 1976).

2. It appears the parties have been under severe strain for some time and there were litigations between them in Delhi Courts.

3. The petitioners, who are all residents of Delhi and carry on business in Delhi, are the tenants of the respondents son in Delhi. The sole reason for tense friction between the parties has arisen out of the petitioners civil proceedings for perpetual injunction against the landlords interfering with their quiet and peaceful possession of the tenanted premises. A suit, being Suit No. 262 of 1974, was filed by the petitioners in the Court of the Sub-Judge, Delhi, with the above mentioned prayer and it is said that the same was dismissed for default.

4. After dismissal of the suit the respondent made an application in the Delhi court under Sec. 95 read with S. 151 of the Code of Civil Procedure (C. P. C.) claiming Rs. 3000/- as compensation from the petitioners for malicious and vexatious prosecution of the civil suit. In answer to that claim the petitioners filed their written statement. It is stated that the written statement filed in that proceeding contained several serious defamatory allegations against the respondent whereby he was lowered in public esteem and reputation. It is, on that account, that the respondent instituted Suit No. 690 of 1975 on the original side of the Calcutta High Court claiming Rs. 200000/-, (Rupees two lakhs) as damages from the petitioners.

5. We are informed by Mr. Mishra the learned counsel for the respondent, that the respondent was not required to pay any court-fee when filing the suit for damages for libel on the original side of the Calcutta High Court.

6. The petitioners having received the plaint in that suit from the Sheriff of Calcutta filed this petition for transfer under the amended S. 25, C. P. C. That section reads as follows:

25 (1) "On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the SC may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State."

7. This is a new power, in the widest terms, conferred on this Court. In the old S. 25, C. P. C. the language was different and the power was of a restricted character and was conferred on the State Government. What is expedient for the ends of justice under S. 25, C. P. C. will have to be judged upon the totality of facts and circumstances in a given case.

8. Mr. Andley, on behalf of the petitioners, submits that this is a clear case of harassment of the petitioners in order to drag them to the Calcutta High Court where the respondent had not to pay any court-fee in instituting such a suit. He also submits that since the defendants reside and carry on business in Delhi it will be a great handicap to defend such a suit in Calcutta. He has also pointed out that there is no prima facie justification to institute this suit in Calcutta. Even on the pleadings, according to him there is a clear lack of territorial jurisdiction. He has pointed out that the cause of action averred in the plaint shows that the publication of the libel was in Delhi, which was in terms stated in para 8 of the plaint, as being outside the jurisdiction of the Calcutta High Court. He submits that it will be near impossible for his clients to defend such a suit in Calcutta.

9. Mr. Mishra at the very outset submits that this Court has no jurisdiction to entertain this application under S. 25, C. P. C. since the proceedings are pending on the original side of the Calcutta High Court which gave leave to the respondent to institute the suit. Clause 12 of