Order VI Rule 17 CPC | Statutory Non-Compliance Cannot Be Cured by Procedural Amendment: Allahabad High Court Invalidates Post-Limitation Impleadment in Election Petition

 “When the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amendment cannot be invoked at all” – Allahabad High Court Reiterates in Municipal Election Dispute

In a decisive judgment Allahabad High Court in ruled that the failure to implead all contesting candidates in an election petition within the statutory period is a fatal and incurable defect. The Court firmly held that such a mandatory statutory requirement cannot be bypassed or rectified through amendment applications under Order VI Rule 17 of the Code of Civil Procedure.  

Justice Rohit Ranjan Agarwal observed, “The defect of non-joinder of all contesting candidates in an election petition is not a curable defect.” Setting aside two impugned orders passed by the lower court—one allowing an amendment to implead omitted candidates and the other rejecting a recall application—the High Court allowed the writ petition and answered the legal issue in favour of the returned candidate, Anuj Tyagi.

The controversy arose following the Municipal Election held on 11 May 2023 for Ward No. 87 (Gyankhand, Indirapuram, Ghaziabad). The petitioner, Anuj Tyagi, was declared elected, having secured 1291 votes, while respondent no. 4 (the election petitioner) received 1181 votes. On 31 May 2023, the defeated candidate filed an Election Petition (No. 06 of 2023) challenging the result but failed to implead the remaining five unsuccessful candidates, in clear contravention of Section 63(3) of the U.P. Municipal Corporations Act, 1959.  

More than a year later, on 12 September 2024, the election petitioner moved an application under Order VI Rule 17 CPC, seeking to implead the omitted parties. This was allowed ex parte by the court on 17 September 2024. Anuj Tyagi’s recall application was rejected on 29 January 2025, leading to the writ petition before the High Court.  

The Court closely examined Sections 62(4), 63(3), 64 and 66 of the Act of 1959, concluding that the statutory requirement to implead all contesting candidates is mandatory and must be complied with within the prescribed limitation period.  

Justice Agarwal underlined the interdependence between the statutory provisions:  

“Joinder of all contesting candidates is must for the maintainability of the petition questioning election of any Corporator under Section 62 read with Section 63. Result of non-joinder of all necessary parties would lead to an inevitable conclusion that election petition as mandated under sub-section (4) of Section 62 was not presented within 30 days from the date of declaration of result, which would lead to a situation where the petition may be dismissed under Section 66.”  

In dismissing the argument that such non-joinder could be cured through amendment, the Court relied heavily on Patangrao Kadam v. Prithviraj Sayajirao Yadav Deshmukh, (2001) 3 SCC 594, in which the Supreme Court had expressly cautioned:

“No doubt the power of amendment is preserved to the Court and Order 1 Rule 10 enables the Court to strike out parties but the Court cannot use Order 6 Rule 17 or Order 1 Rule 10 to avoid the consequences of nonjoinder for which a special provision is to be found in the Act.”

The High Court emphasized that the principles laid down under the Representation of People Act equally applied to local body elections, particularly when the statutory scheme imposed similar requirements. Drawing from the coordinate bench’s ruling in Smt. Jyoti v. Kusma Devi, 2019 (2) All LJ 262, the Court affirmed:

“General powers available under Order 6 Rule 17 CPC cannot be invoked to remove a defect that may warrant rejection of the petition under Section 22 of the Act, 1916, unless removal of such defect is sought within such period of time as may be permissible under the Act.”  

Refuting the respondent’s submission that the defect was merely procedural, the Court clarified: “The moment the time prescribed under Section 62(4) expires, no alteration can be made. The defect in the election petition cannot be cured through an amendment application moved by election petitioner.”

 The Court found that the amendment application, filed more than a year after the statutory limitation, was wholly impermissible. Justice Agarwal ruled:  

“The court below had wrongly allowed the amendment application and rejected the recall application filed by returned candidate which is against the provisions of Section 63(3) read with Section 62(4) of the Act of 1959.”

 The High Court accordingly quashed both the orders dated 17.09.2024 and 29.01.2025, allowed the writ petition, and answered the central question in favour of the petitioner. The decision decisively affirms the non-curability of statutory defects in election petitions and clarifies the limited application of the Civil Procedure Code in election disputes governed by special statutes.

 Date of Decision: 15 April 2025