1. DORAB PATEL, J: The dispute in these two petitions relates to a shop in Jhelum which was evacuee property. When Settlement operations began, it was transferred to one Mohammad Rafique and his mother Mst. Taleh Bibi. Rafique bad a 7/8th share in the shop which he had mortgaged to the respondent on 24-9-1960 by a registered Mortgage Deed and one of the conditions in the mortgage was a right conferred upon the respondent about the precise nature of which there was a controversy between the learned counsel. Maulvi Sirajul Haq submitted that this right only entitled the respondent to buy Mohammad Rafique's equity of redemption whilst according to Mr. Irshad Qureshi, the right conferred upon the respondent an option to buy Mohammad Rafique's share of the shop. As the parties have settled their dispute, it is not necessary for us to give a finding on the precise nature of this right and we will refer to it as the said right. Now, despite the said right Mohammad Rafique sold his equity of redemption on 15-11-72 to the petitioners who also purchased Taleh Bibi's 1/8th share in the shop. It would appear that Mohammad Rafique made other attempts also to sell the shop, and this led to litigation with the respondent' but for the purpose of this petition, it is sufficient to refer to the two suits which have led to these two petitions.
2. "The plaintiff has valued the suit at Rs. 12,000 while the suit is to be decreed on payment of Rs.
3. 28,000 which shall be the correct valuation of the suit. The valuation is accordingly fixed at R.s. 28,000 on which court-fee of Rs. 2,100 is payable. The plaintiff has paid on the plaint court-fee of Rs.
4. 682.50. The deficiency of court-fee in the sum of Rs. 1.,417.50 be made: good within a month failing which the suit shall stand dismissed under section 10 of the Court Fees Act."
5. The learned Civil Judge accordingly decreed the respondent's suit for specific performance of the 7/8tb share of the shop with costs. As a corollary of his findings in this suit he dismissed the suit filed by the petitioners with-the further observation that the respondent had proved that he had given the petitioners notice of his rights under the Mortgage Deed.
6. The petitioners challenged these judgments of the learned Civil Judge in appeals in the District Court, Jhelum which came up for hearing before a learned Additional District Judge. The learned Additional District Judge dis--sented from the view taken by the trial Court, dismissed the 'respondent's suit for specific performance and decreed the suit of the petitioners for the purchase of Mohammad Rafique's equity of redemption. Therefore, the respondent filed second appeals in the Lahore High Court against these two judgments of the learned Additional District Judge and it would be conveni6nt to point out that Regular Second Appeal No. 285 of 1978 was filed against the first Appellate Court's judgment "dismissing the respondent's suit for specific performance whilst Regular Second Appeal No. 286 of 1978 was filed against the first, appellate Court's judgment decreeing the suit of the petitioners.
7. It would appear that the respondent pressed his Appeal No. 285 of 1978 inter alia on the ground that the appeal of the petitioners against the trial Court's decree of specific performance in his favour was not competent because the subject matter of the appeal exceeded the pecuniary jurisdiction of the District Court namely Rs. 25,000. 'Therefore the respondent inter alia was that the appeal against the decree of specific performance in his favour could only have been filed in the Lahore High Court. The learned Judge of the Lahore High Court accepted this contention and observed; "In my view the learned District Judge had no jurisdiction to hear and decide the appeal. The only remedy open to him was to return the memorandum of appeal to the appellants for presentation to the High Court. I, therefore, set aside his judgment and decree and direct the return of the memorandum of appeal filed before the learned District Judge to the respondents in this appeal.
8. The respondents shall pay the costs of this appeal to the appellant."
9. Next as to R. S. A. No. 286 of 1978, the learned Judge referred to his order in R. S. A. No. 285 of 1978 and pointed out that in view of his decision in that appeal "the judgment and decree impugned in this appeal shall also have to be set aside since this is based on the findings in the connected Civil Appeal referred to above". The learned Judge then noted the prayer of the petitioners that this second appeal should be heard by the High Court as the two appeals were interconnected: But the learned Judge rejected this prayer, set aside the judgment of the first Appellate Court and remanded this appeal to the District Court "for fresh decision on merits".
10. The petitioner is aggrieved by these two judgments and has filed these petitions for leave. C. P. S. L.
11. A. 119-R of 1978 has been filed against the judgment of the Lahore High Court in R. S. A. 285 of 1978, and we will examine this petition first.
12. Maulvi Sirajul Haq submitted that the learned Judge had erred in law in holding that the appeal filed by the petitioners in the District Court was not competent, because the trial Court had erred in valuing the respond--ent's suit at Rs. 28,000. According to learned counsel, the finding of the trial Court that the proper valuation of the cause of action in the suit was Rs. 28,000 was by itself erroneous and if the matter had rested here, no doubt the petition would have merited admission.
13. But pleas involving mixed questions of law and fact cannot be allowed to be raised for the first, time in this Court and Mr. Irshad Qureshi submitted that although according to the petitioners, their appeal had been properly presented in the District Court because the subject-matter of the appeal was less. Than Rs. 25,000 they had not pleaded in their Memorandum of Appeal that the trial Court had incorrectly valued the suit at Rs. 28,000. The petitioners have not filed this Memorandum of Appeal, but learned counsel admitted that Mr. Irshad Qureshi was correct. But this failure to challenge in their Memorandum of e Appeal the valuation of the cause of action in that appeal is fatal to Maulvi Sirajul Haq's submission and confronted with this difficulty, he did not press his submission. Instead he prayed that the Memorandum of Appeal should be returned to him directly by the High Court. We agree with the learned counsel that no purpose would be served by insisting on the techni--calities about the precise manner in which a plaint or Memorandum of Appeal can be returned for representation in the proper Court. But as Mr. Irshad Qureshi stated that the Memorandum of Appeal filed by the petitioners in the judgment under appeal might have been returned to the District Court, we would only observe that the petitioners would be entitled to collect their Memorandum of Appeal in the appeal (originally filed in the District Court as Civil Appeal No. .153 of 1977) from the High Court or the District Court, Jhelum, as the case be, and then present it in the Lahore High Court with an application under section 14 of the Limitation Act.
14. We now turn to the C. P. S. L. A. No. 118-R of 1978. This petition has been filed against the judgment of the learned Judge remanding the appeal to the District Court, and as we pointed out, the petitioners had submitted before the learned Judge in the High Court that the appeal should not be remanded, and that both the appeals should be heard in the same Court. This submission was correct, because both the appeals arise out of the same transactions and turn on the same questions of law and fact, and if they are heard by different Courts, the results might be very embarrassing and anomalous. We are, therefore, surprised that the prayer of the petitioners was so summarily rejected and Mr. Irshad Qureshi not only supported Maulvi Sirajul Haq's submission in this respect, but he showed us a copy of the application filed by him in the Lahore High Court under section 24 of the Civil Procedure Code for the retransfer to the High Court of the appeal remanded for hearing to the District Court, Jhelum. We appreciate learned counsels fairness in pointing out this circumstance to us and in trying to place before the High Court the correct position, but the difficulty in the way of the application filed by Mr. Irshad Qureshi would be the order in the judgment under appeal, and unless relief is given to him by this Court, Mr. Irshad Qureshi's application would only be dismissed by the High Court. In these extraordinary circumstances, both the learned counsel submitted that we should set aside the order of the learned Judge in R. S. A.
15. 286 of 1978- remanding the hearing of the appeal of the petitioners to the District Court. On the footing that the other appeal represented by the petitioners will be admitted, it is obvious that the submission of the learned counsel is eminently reasonable and is the only solution of the dilemma before them. Accordingly, at the request of the learned counsel, we have converted these petitions into appeals and allowed them in the manner stated herein. The petitioners will represent in the High Court their appeal against the trial Court's judgments decreeing the respondent's suit and if that appeal is admitted, the appeal of the petitioners which was remanded for hearing to the District Court will also be heard by the High Court with the other appeal of the petitioners. The appeals are allowed to this extent only without any order as to costs.