JUDGMENT : Mr. Deepak Maheshwari, J. Heard learned counsel for both the sides on the application filed under Section 100 (5) read with Section 151 CPC as also the application filed under Order 6, Rule 16 read with Section 151 CPC moved on behalf of the appellant on 13.7.2016. 2. The said application filed under Section 100 (5) of CPC was contested by the respondent No.1 by filing a reply on 16.8.2016 wherein the objections were raised inter alia, that the proposed substantial question of law are highly misconceived, misleading and suggested just to unnecessarily drag this matter for long. 3. Objecting to various parts of the reply to this application, appellants moved another application under Order 6, Rule 16 CPC for striking out the allegedly scandalous, unnecessary and frivolous parts of the reply. 4. In the background of the above mentioned facts, arguments of learned counsels for both the sides were heard, relevant provisions of Order 6, Rule 16 CPC and Section 100 CPC were gone through and the judgment referred by both the sides were also considered. 5. As per the judgment rendered in case of J.B. Patnaik v. Bennett Coleman & Co. Ltd. & Ors., reported in AIR 1990 Orissa 107, which is cited by learned counsel for appellants, provisions of Order 6, Rule 16 CPC are also found to be applicable to the petitions/affidavit analogous to the pleadings enumerated in Order 6, Rule 16 CPC. Thus, this application requires due consideration. But while taking into consideration the portions of the reply which are alleged to be unnecessary, scandalous, frivolous and vexatious, it comes out that such alleged statements are just likely to be mentioned in the reply by the opposing side so as to justify his stand. Mentioning of the fact that “due to wrong arguments advanced by the counsel for the appellant” as also the objection that “appellant's counsel is not willing to hearing of this second appeal and for one or the other reasons, he want to drive this appeal to long distance, by misleading the Hon'ble High court.”, cannot be termed as scandalous, frivolous and vexatious. Similarly, the allegations like “the application filed by the appellant – filed under misguided notion of law” and also the portion “this appeal was admitted while framing wrong substantial question of law” are usually found to have been mentioned so as to contest the applications moved by the other side. Nothing appears objectionable in such portions of the reply so as to strike out these parts from the reply filed to the application under Section 100 (5) CPC. 6. Learned counsel for the respondent has referred the judgment rendered in case of Sathi Vijay Kumar v. Tota Singh & Ors., reported in 2006 (13) SCC p.353 wherein it has been observed by Hon'ble Supreme Court that power of striking out pleadings should be sparingly exercised, with extreme caution and circumspection. Taking the above said principle into consideration and the relevant facts of the matter in hand, the application filed by the appellant under Order 6, Rule 16 CPC is not found fit to be accepted. 7. In view of above, the application filed under Order 6, Rule 16 CPC is found devoid of merit and is hereby rejected. 8. So far as the application filed under Section 100 (5) CPC is concerned, it was moved on 13.7.2016, suggesting the following substantial questions of law to be framed additionally in this appeal :- “[A] Whether learned lower courts are right in dismissing the plaintiff suit and erred in law not decreeing the plaintiff suit despite that on behalf of defendant, there are inconsistency in the pleading and the statement of defendants and though the fact which are admitted by the defendant in his statement, and since both the courts have omitted to consider this substantial error, therefore, in this circumstances, the judgment of learned court below are suffering from perversity ? [B] Whether finding of issue no.3 of the learned court below are against the provisions of CPC. Since as per the law, only fact are required to be pleaded and evidence are not required to be pleaded, however, observation made at para 16 of the judgment of the learned lower appellate court is totally against the aforesaid settled law and thus, whether finding on the issue No.3 can be sustainable in law ? Since as per the law, only fact are required to be pleaded and evidence are not required to be pleaded, however, observation made at para 16 of the judgment of the learned lower appellate court is totally against the aforesaid settled law and thus, whether finding on the issue No.3 can be sustainable in law ? [C] Whether the finding on the issue No.4 particularly on the second part of letting out the suit premises to Mangal Singh S/o Satidan Singh, Birmani Kanot can be sustainable because in para o.23 of the lower court's judgment had relied the statement of DW-7 Smt. Maloo. However, the learned lower court failed to consider the whole statement of Smt. Maloo which totally negative the story put forward by the defendant and thus in this circumstances, whether the finding of issuing no.4 can be sustainable? [D] Whether the finding of the learned lower court on issue No.5 can be sustainable by observing that no document was produced by the plaintiff respondents instead the fact that the plaintiff appellant filed an application to seek permission to produce a secondary evidence and that application has been allowed by the learned lower court on 21.01.1995, therefore, the observation of the learned court below is against the material on record, particularly against the order dated 21.01.1995 when the lower court has allowed the application of plaintiff appellant under Section 65 of the Evidence Act. [E] Whether the finding of the learned lower court on issue No.6 can be sustainable as the same was suffering from the misreading of Ex-6. [F] Whether the conclusion of the learned lower appellant court in respect of possession and ownership of defendant by observing as same is being supported by the permission granted by the Municipality in the year 1982 of the construction. Whether the aforesaid conclusion or observation can be sustained admittedly the defendant neither filed a counter claim nor cross objection and in absence of the same, the aforesaid observation and conclusion made by the learned lower court can be sustained in the eye of law? 9. Learned counsel for the appellant has referred the following judgments in support of this application :- (1) Om Prakash v. Manoharlal, reported in 2002 (3) DNJ (Raj.) p.1022 (2) Phool Pata & Anr. v. Vishwanath Singh & Ors., reported in 2005 AIR SCW 3575 (3) Major Singh v. Rattan Singh (Dead) by LRs. 9. Learned counsel for the appellant has referred the following judgments in support of this application :- (1) Om Prakash v. Manoharlal, reported in 2002 (3) DNJ (Raj.) p.1022 (2) Phool Pata & Anr. v. Vishwanath Singh & Ors., reported in 2005 AIR SCW 3575 (3) Major Singh v. Rattan Singh (Dead) by LRs. & Ors., reported in AIR 1997 SC 1906 (4) Neelkantan & Ors. v. Mallika Begum, reported in AIR 2002 SCW p.490. 10. On perusal of above cited judgments, it comes out that nothing takes away or abridges the power of the High Court to hear the second appeal on any other substantial question, not formulated earlier if it is satisfied that the case involves such questions and the parties are put to notice in respect of these questions. But such questions can be framed only when the perversity of the judgment impugned is clearly made out, which also materially prejudices the case of the parties. 11. Learned counsel for the respondents has also referred following judgments to counter the application filed under Section 100 (5) CPC :- (1) Bhuri Bai & Ors. v. Ramnarayan & Ors., reported in (2009) 4 SCC p.56 (2) Balu Ram v. Nagarpalika Mandal, Rajsamand, decided on 16.9.2008 (SB Civil Second Appeal No.411/2007) (3) Boodireddy Chandraiah & Ors. v. Arigela Laxmi & Anr., reported in 2008 DNJ (SC) p.1009. 12. The principles laid down in these judgments suggest that the substantial questions of law to be framed in the second appeal must have material bearing in the case or such issues which go to the root of the matter. 13. But, the questions which has been proposed by the appellant by way of filing this application under Section 100 (5) CPC are not found fit to fulfil these parameters as these questions are mainly related to the evidence aspect of the matter and are not really substantial questions of law. More so, the application has been moved on 13.07.2016 by the appellant after a long gap of five years whereas the substantial question of law was framed by this Court on 13.4.2011. Even then, this application was likely to be considered and allowed if the proposed questions were really the substantial questions of law and going to the root of the matter. But this does not appear to be the case as is apparently clear by simply going through the proposed questions. Even then, this application was likely to be considered and allowed if the proposed questions were really the substantial questions of law and going to the root of the matter. But this does not appear to be the case as is apparently clear by simply going through the proposed questions. Hence, the application filed under Section 100 (5) CPC is liable to be rejected. 14. The chronology of the matter in hand is that the suit filed by the appellant/plaintiff i.e. LRs of late Rugla for declaration and permanent injunction was dismissed by the trial Court vide its judgment dated 23.3.2005. The appeal preferred against the said judgment was also rejected by learned first appellate Court vide its judgment dated 28.3.2007. Thereafter, the second appeal was preferred by the LRs of Rugla in the year 2007. Substantial question of law was framed in this civil second appeal vide order dated 13.4.2011. Thereafter, these two applications were moved by the appellants on 13.7.2016. It is obvious that filing of these applications has further delayed the matter. Earlier, this Court allowed the application for early hearing filed on behalf of the respondents and the matter was ordered to be listed on 5.7.2016. Thereafter, on the prayer made by learned counsel for the appellant, the matter was adjourned to 21.7.2016. Again, adjournment was sought on behalf of the appellant and the matter was deferred to 4.8.2016. In the meanwhile, application under Section 100 (5) CPC was filed by the appellant on 13.7.2016. Thereafter, the application under Order 6, Rule 16 CPC was moved on 22.8.2016. These applications came to be rejected by the order passed today. Thus, it is obvious that valuable time and energy of all the concerned was consumed in disposal of these applications, found devoid of any merit. Taking this fact into consideration, these applications are rejected on the cost of Rs.5000/-, to be paid to the respondents within a period of one month. 15. List the matter after four weeks.