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

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