Pranam (contd from part 1) 12 In the *Vyavahārādhyāya* regarding *bhāṣā* <https://www.wisdomlib.org/definition/bhasha#dharmashastra>, the first stage of judicial proceeding, the rule is set out that the allegations made by *arthī* should be written down in presence of *pratyarthī* when he appears before the court and is to be furnished with the year, month, fortnight, day, names of the parties, castes of the parties concerned, etc. *Arthī* is one who seeks the help of the court, or who has a cause of action, and *pratyarthī* is the opposite one against whom assistance is sought in the court of justice It means the plaintiff and defendant of present day judicial system. They are also known by the name *vādī* <https://www.wisdomlib.org/definition/vadi#hinduism> and *prativādī* respectively whereas sometimes *vādī* denotes a ‘litigant’, who may be either plaintiff or defendant. Another word used to indicate an *arthī* is *abhiyotṛ* and that of the *pratyarthī* is *abhiyukta* <https://www.wisdomlib.org/definition/abhiyukta#hinduism>. The information presented to the king or any officer in charge of administration of justice is called *bhāṣā*, meaning the plaint. *Bhāṣā*, *pratijñā*, *pakṣa* <https://www.wisdomlib.org/definition/paksha#hinduism> are the synonyms used to denote a plaint.
13 Thus, Yājñavalkya’s rule of procedure wants the plaint to be equipped with details so that the allegations of plaintiff can be made specific and definite, placing time, place, object and the manner in which cause of action has arose. It ensures the presence of both the parties together at an early stage of judicial proceeding. The other necessary details regarding the thing and subject matter of dispute, such as measure and quantity, place, exact time of the day, etc., are also to be included. Aparārka restricts use of all the details in general for all suits but those important from the point of view of a particular lawsuit should be written down in the plaint. A plaint is liable to be rejected the subject-matter of which is impossible (*aprasiddha* <https://www.wisdomlib.org/definition/aprasiddha#hinduism>), does not disclose any injury (*nirābādha*), without making any meaning (*nirartha*), without any cause of action (*niṣprayojana*), cannot be proved (*asādhya*), self-contradictory (*viruddha* <https://www.wisdomlib.org/definition/viruddha#hinduism>) The faults of plaint are mentioned and explained in the *Nāradasmṛti*. It appears that the subtle details on drafting of a plaint gradually evolved after the composition of the *Yājñavalkyasmṛti*. 14 Yājñavalkya prescribes rule for the second stage of the judicial proceeding as the reply of the defendant. Once the plaint is settled finally, and the contents of the plaint is made known to the defendant, it becomes the duty of the defendant to present or file his written statement, which should include proper answers to all allegations brought against him. The *Mitākṣarā* quotes a text that a reply is held to be proper when it touches all the points raised in the plaint, which is reasonable, not ambiguous, devoid of self-contradiction, can be understood without further explanation It explains, with illustration, four types of answers that a defendant can take resort to citing texts ascribed to Nārada, Bṛhaspati and Kātyāyaṇa. These are-(i) *saṃpratipatti* <https://www.wisdomlib.org/definition/sampratipatti#hinduism> or *satya* <https://www.wisdomlib.org/definition/satya#dharmashastra>, i.e. by pleading the truth, which may be called confession or admission. (ii) *mithyā* i.e. denial of the complaint made against him. It is when charged with the debt of one hundred rupees, he replies as ‘I don’t owe the amount’. (iii) *pratyavaskandana*, i.e. raising special plea. It is when in reply of the debt of one hundred rupees, the defendant accepts that he took it but at the same time states that later he has returned or that it has been donated to him. (iv) *pūrvanyāya*, meaning plea of a former judgment. 15 At the third stage, after recording defendants’ reply, trial begins with exhibition of the proofs. Therefore an important question arises regarding the party on whom the burden to proof his case first lies. It is interesting that Yājñavalkya, at an earlier time of Hindu judicial system, has dealt with such a complicated question. The order in adducing evidence is declared by the author that the plaintiff should immediately provide in writing the evidences in favour of his petition, by means of which he proposes to establish the facts alleged by him. Usually the right belongs to the plaintiff or the complainant that he should come first to prove his case. It seems this rule is, in general, applicable in case of a reply of denial, but in other forms of reply, the right may shift even to the defendant also. While interpreting this provision, the *Mitākṣarā* takes the word *arthī* mentioned in rule of *Yājñavalkyasmṛti* in the sense of one who has gained a point. Therefore, when the reply pleads a previous judgment, the defendant has to give his means of proof to establish the fact of a previous judgment. In case of denial, the original complainant is to depose the means of proof. In a reply of defendant, disclosing a special plea, he himself has to prove it. So the duty lies on him to write down evidences. If the reply is in the nature of admission, then there is no requirement of proving any matter, and hence, after the second stage only, the case comes to an end. 16 At the fourth stage of judicial proceeding, the success or defeat of the party is to be decided. Yājñavalkya, for that purpose, declares that if the evidence produced by the party in favour of his petition holds good then he obtains success or otherwise the result goes against him, i.e. he is defeated. 17 Yājñavalkya after stating the general rules of the four stages of judicial procedure deals with the particular rules relating to judicial proceeding. Yājñavalkya does not usually allow counter claim by the defendant before making himself free from the charges made by the plaintiff. This means the defendant being an accused of an offence cannot lodge a complaint counter charging or claiming against a plaintiff until and unless the charges brought against the former are disproved or he acquits himself of the original complaint. A new complaint should not be filed against the same defendant until the case instituted by the first plaintiff is over. The last of the rule may refer to not only the change of pleading by plaintiff but also change of pleading by defendant. <https://www.wisdomlib.org/hinduism/essay/yajnavalkya-smriti-vyavaharadhyaya-study/d/doc628180.html#note-e-170453>One exception to the above-mentioned rule is provided that in kalahas <https://www.wisdomlib.org/definition/kalaha#dharmashastra> (violence of speech and act, i.e. defamation and assault) and sāhasas <https://www.wisdomlib.org/definition/sahasa#dharmashastra> (destruction of life or grievous hurt by means of weapons, poison, etc.), a counter charge will be permissible. In these suits, a counter charge bears significance in order to hold a person legally responsible for an offence alleged against him. As such, it helps in determining the punishment to be inflicted. This rule of procedure is found in the *Arthaśāstra* <https://www.wisdomlib.org/definition/arthashastra#dharmashastra> where except in *kalaha* <https://www.wisdomlib.org/definition/kalaha#dharmashastra>, *sāhasa* <https://www.wisdomlib.org/definition/sahasa#dharmashastra>, in cases amongst members of guilds and corporate bodies, the defendant is not allowed to bring counter case. Hence, Nārada does not seem to allow counter charge in any of the cases whereas Yājñavalkya allows counter charge in certain cases like *sāhasa, kalaha*, etc. 18 An important rule of procedure, set forth by Yājñavalkya, resembles the present day procedure of courts, taking of bails <https://www.wisdomlib.org/definition/bail#history>, i.e. seeking security for costs and attendance of the parties. Both plaintiff and defendant are required to furnish security to ensure satisfaction of the final decision. The security should be capable of carrying out the result of the judgment of the lawsuit. The principal object behind this rule was the proper execution of the final orders made by the court of justice. Thus, a competent surety is taken from the defendant to comply with the decision, if passed against him, and from the plaintiff for payment of any fine, fee or cost of proceeding imposed by law, if found to have brought false charge. Yājñavalkya prescribes a very strict rule of procedure towards unsuccessful plaintiffs and defendants after a contest. If after denial of the claim by the defendant, the plaintiff establishes the case by evidences, then the defendant must pay the suit amount to him and then equal amount to the king as a penalty. On the contrary, if the claimant is proved to be false, he must pay to the king as fine twice the amount as claimed by him. Through this rule, the author discourages institution of a case with false claim by a plaintiff and false denial by defendant, rather expects a plaint to be based on truthful claims and admission of real liability on the part of the defendant. 19 Yājñavalkya refers to the rule regulating a lawsuit when attended by wager (*sapaṇa*) which also indicates prevalence of lawsuit without wager. When a lawsuit is accompanied by a wager then the defeated party should have to pay the usual fine prescribed for a defeated party along with the amount of wager or stake to the king and the amount in dispute to the successful party. Therefore, the amount of wager is needed to be paid after the judgment has been pronounced. A lawsuit is known to be with wager when either both of the parties or anyone of the parties to the suit promises to pay a certain sum of money in case he is defeated in addition to the original claim or amount in dispute. 20 According to him, [in disputes about the following, the defence is to be made immediately]:—*sāhasa* (killing by poison or weapon),2 *steya* <https://www.wisdomlib.org/definition/steya#dharmashastra> (theft),3 *pāruṣya* <https://www.wisdomlib.org/definition/parushya#dharmashastra> (abusive language, assault), 4 *gobhiśāpātyaya* (heinous offences, to be imprecated for destruction of life and wealth, like killing a milk-giving cow, etc.) and 5 *strī* <https://www.wisdomlib.org/definition/stri#dharmashastra> (relating to women, e.g. malign treatment to a respectable lady or the deprivation of right of a female servant),In other cases, granting of time depends upon the will of the court. It is natural that in the lawsuits of grave or serious injury, if answer is not given at an early time, then there may occur loss of evidence, such as death of a key witness or inability of witnesses to testify accurately after long delay. The other cases, where Yājñavalkya leaves the decision of allowing time at the discretion of the court, seem to be of civil nature, e.g. debt, etc. Nārada lays down the rule of allotting exact number of days. Manu <https://www.wisdomlib.org/definition/manu#hinduism> addresses a rigid rule in comparison to that of Yājñavalkya. Manu says that if a defendant does not put his answer within three fortnights then he loses the case. Kauṭilya <https://www.wisdomlib.org/definition/kautilya#hinduism> allows a time period of three or seven days for filing defence but after that being late, defendant has to pay fine. The time however can be extended maximum up to three fortnights, which is the longest time limit to present the answer 21 Yājñavalkya in his rules of procedure lays down the rules describing minute details on the demeanour of the accused and witnesses through which the credibility or veracity of persons as such can be judged. The person being complainant or witness, if shows change from the natural or ordinary state by means of speech, activities of mind and bodily actions, is declared as *duṣṭa* <https://www.wisdomlib.org/definition/dushta#hinduism>, meaning wicked or tainted. These characteristics on change of conducts should not be induced by fear, etc., but due to natural consequence. The author’s intention does not seem to declare these characteristics of demeanour as conclusive proof of guilt, if it would have been so, then the judges would not have enjoyed any discretion The commentary of Aparārka makes this point quite clear that such features should not be treated as proof of guilt either of plaintiff or of witnesses. It helps to decide where the burden of proof lies, that means the party exhibiting these symptoms is to be examined carefully and to be asked to prove his innocence. KR IRS 31/01/22 -- You received this message because you are subscribed to the Google Groups "Thatha_Patty" group. To unsubscribe from this group and stop receiving emails from it, send an email to [email protected]. To view this discussion on the web visit https://groups.google.com/d/msgid/thatha_patty/CAL5XZopx3q03H8%3DNfZD-4EO2TBuw7H4fnda4Esnk%3DG-DHL0fkA%40mail.gmail.com.
