' SYED ASGHAR HAIDER, The petitioner filed a suit for declaration seeking annulment of order dated 28-2-1988 passed by respondent No,2 sanctioning 0.20 cusec extra supply of canal water to respondent No,1 for his Fish Farm. The background of the controversy is that similar order was passed in 1986 enhancing the respondent approved water supply, he did not comply with the conditions attached to this order and consequently this order was re-called. Subsequently an order was passed on 28-2-1988 again enhancing the supply to the respondent's by 0.20 cusecs.
The petitioners challenged this order through a civil suit which was decreed' on 31-1-2001.
2. Aggrieved thereof, the respondent filed an appeal, this appeal was allowed and the suit was dismissed. The petitioners are aggrieved of this judgment and decree and have filed the present petition.
3. The learned counsel before adverting to the merits of the petition has strenuously argued that the appeal was not maintainable as there were two plaintiffs viz Abdul Hameed and Fazal Elahi and while filing appeal, Abdul Hameed was not arrayed as party. Thus appeal was not maintainable and without jurisdiction, therefore, the judgment of the lower appellate Court was without jurisdiction and nullity in the eye of law. He has relied on (2003 YLR page 1224) titled "Lahore Cantt.
Cooperative Housing Society Ltd. Through Secretary v. Additional District Judge, Lahore and three others", (PLD 1987 Lahore 387) titled "Muhammad Suleman v. Abdul Rashid and 13 others", (PLD 1991 SCMR 65) titled "Hassan Din v. Hafiz Abdul Salam, and others" and (CLC 1986 page 1786) titled "Hakim Ali Bhatti v. Abdul Hakim".
' He nas also adverted to the fact that the basic order was illegal because the petitioners were condemned unheard and were not notified of enhancement of the respondent's water.
4. The learned counsel for the respondents has contended that the proceedings were conducted under section 20 of the Canal and Drainage Act, 1873 which is special law and according to section 20 of the same Act, respondent No,3 was fully empowered to enhance additional water and was not required to issue notice in this context, according to him notice is only necessary when water is initially sanctioned but when additional water is sanctioned there is no need to issuance of notice.
He also submits that the petitioners grievance stands redressed as the water has been reduced from 0.20 to 0.04 cusecs. Thus there is no sustainable grievance any more.
5. I have heard the learned counsel for the parties and perused the record.
6. It stands established from record that Abdul Hameed was not arrayed as a party in the appeal although he was a party to the suit, his representation was essential and non-arraying him as a party was fatal to the proceedings before the lower appellate Court, no effort was made to amend the appeal at any stage. This is a material irregularity and illegality. The following precedents cited by the learned counsel for the petitioners are fully applicable to the facts and circumstances of the present petition.
' (2003 YLR page 1224) titled "Lahore Cantt. Cooperative Housing Society Ltd. Through Secretary v.
Additional District Judge, Lahore and three others", (PLD 1987 Lahore 387) titled "Muhammad Suleman v. Abdul Rashid and 13 others".
' The appeal was not in consonance with Order XLI of C.P.C. And the precedents cited supra, therefore, the proceedings before the lower appellate Court were without jurisdiction.
' Resultantly, this petition succeeds the impugned judgment is set aside and the judgment of the trial Court is restored. No order as to costs.