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 fa