Non-joinder of necessary parties in an election petition is a fatal defect that cannot be cured by amendment after the statutory time limit under the Uttar Pradesh Municipal Corporations Act, 1959 has expired.

JUDGMENT :

Rohit Ranjan Agarwal, J.

1. The short controversy before the Court is - “As to whether by amendment application moved under Order VI Rule 17 CPC , amendment can be made in an election petition filed by an unsuccessful candidate impleading the other contesting candidates who were not initially joined in the election petition?”

2. Facts in brief, leading to the present case, are that an election for Corporator for Ward No. 87, Gyankhand Indirapuram, Ghaziabad was held on 11.05.2023. Counting was held on 13.05.2023 and result was declared and petitioner was declared to be successful getting 1291 votes, while the election petitioner, respondent no. 4 secured only 1181 votes.

3. An Election Petition No. 06 of 2023 was filed by respondent no. 4 in which only returned candidate/petitioner along with District Election Officer, Ghaziabad; State Election Commissioner, Lucknow and Returning Officer, Ward No. 87, Ghaziabad were made parties. For the election of Ward No. 87, seven candidates had contested the election, but petitioner had not impleaded the other five unsuccessful candidates as party in the election petition.

4. Petitioner contested the election petition and filed his written statement. An amendment application was moved by election petitioner/respondent no. 4 on 12.09.2024 which was allowed by an ex- parte order on 17.09.2024 permitting the election petitioner to implead the other five unsuccessful candidates as respondents in the election petition. Petitioner/returned candidate filed a recall application which has been rejected by order dated 29.01.2025 which is under challenge in the present writ petition along with order dated 17.09.2024 allowing the amendment application.

5. Counsel for petitioner submitted that election petition filed by respondent no. 4 is defective and Section 62(4) of The Uttar Pradesh Municipal Corporations Act, 1959 (hereinafter called as “the Act of 1959”) prescribes the period for filing an election petition. Further, Section 63(3) provides that where the petitioner claims a declaration under Section 64, all the contesting candidates, other than the petitioner, shall be joined as respondents. According to him, the petition moved was defective and non-joinder of necessary party will lead to inevitable conclusion that petition has to be dismissed being beyond time under Section 66.

6. Reliance has been placed upon the decision rendered by co-ordinate Bench of this Court in case of Smt. Jyoti vs. Kusma Devi , 2019 (2) AllLJ 262; Ramanand Gaur vs. Ram Sanehi and others , 2012 (4) ADJ 212 and decision of Supreme Court rendered in Patangrao Kadam vs. Prithviraj Sayajirao Yadav Deshmukh and others , (2001) 3 SCC 594 .

7. Counsel appearing for respondent no. 4 submitted that defect is a curable defect and the case laws cited by petitioner are not applicable in the instant case as it is under the Act of 1959 while the decision so placed is in regard to Representation of People Act, 1951. According to him, Section 66 envisages that an election petition may be dismissed if not presented within the time allowed by this Act or the provisions of Section 79 relating to deposit of security or the necessary court-fee has not been complied with.

8. In the instant case, the election petition was filed within the prescribed period and only the other contesting candidates were not joined as respondents in the election petition which will not go to the root of the matter and election petition cannot be thrown out. The amendment sought does not change the character of the case and only the other contesting r