History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.162

v4.c63.162

In modern India no suit or appeal can be filed unless the plaintiff or appellant pays substantial court-fees (Rs. 7½ per cent upto Rs. 1000 and 5 per cent for higher claims up to 5000 and so on at reduced rates as the claim rises). It is interesting to see how the litigants in ancient India fared in this respect. It appears that in disputes of a criminal nature no court fees had to be paid in ancient India. The person found guilty had to pay to the king the fine declared in the Smṛtis for offences or awarded by the Court. As regards civil disputes also nothing had to be paid at the inception of the suit. Certain rules are prescribed by Kaut. (III. 1), Yāj., Viṣṇudharmasūtra, Nār. and others about payments to the king after the suit is decided, which payments may be regarded as in the nature of court fees. Yāj. II. 42 and Viṣṇudharmasūtra VI. 20-21 state that in the case of suits for the recovery of debts the debtor who admitted that he was a debtor (but did not pay the creditor) should be made to pay to the king 10 per cent on the amount decreed and the successful creditor should pay five per cent out of the amount decreed (as *bhṛti*, compensation or court fee)⁴⁰⁵. When the debtor denies the fact of debt altogether and the creditor succeeds in establishing it, the debtor had to pay the amount decreed to the creditor and an equal amount to the king as fine; but if the plaintiff turns out to be a false claimant (i. e. the relationship and the amount of the debt are not proved) he had to pay to the king as fine twice as much as the amount claimed by him (Yāj. II. 11). Nār. also (IV. 132) says⁴⁰⁶ that a debtor, who is able to repay a debt but does not do so through wickedness or malice, should be made to pay the debt after recovering five per cent from the debtor. The Sm. C. II. p. 121 says that this applies to a case where the debtor admits his liability to the plaintiff. Manu VIII. 139 gives milder rules: 'if a debtor admits before the Court that he is a debtor, then he has to pay a fine equal to five per cent on the amount decreed, but if he denied the fact of debt altogether, then he has to pay as fine ten per cent'. Manu VIII. 59 which prescribes a fine twice of that amount which the debtor falsely denies or which the creditor falsely claims contains a somewhat different rule (which Medhātithi says applies where parties are guilty of downright fraud, while VIII. 139 applies where there is negligence or loss of memory &c.). In suits other than for debts such fines are also prescribed e. g. in Yāj. II. 26 for one who misappropriates a pledge, II. 33, II. 188 (for breach of the rules of guilds and other groups), Yāj. II. 171 (where a person claiming to be the owner of lost goods and failing to prove his ownership of them was fined *pañca-bandha* i. e. a fifth part of the price of the goods). Kauṭ. prescribes⁴⁰⁷ that when a party is guilty of contradictory pleadings, or does not cite witnesses though saying he has witnesses and is defeated for these and similar reasons he has to pay a fine of 20 per cent of the claim and 10 per cent only if he relied on his own deposition (and called no witnesses) and further the defeated party has to pay the costs viz. the wages of the bailiff and of the subsistence allowance of witnesses. Therefore it may be said that in ancient times Indian litigants had an easy time, while in modern times litigation is often ruinous, what with the heavy court fees to be paid in several courts, the fees of legal practitioners and the expenses of witnesses and the delay of years⁴⁰⁸. The remark of Dr. Hart (in 'Way to justice' p. 17) is as applicable to modern India as to England 'the plain truth is that the justice of the courts is unattainable by some citizens through want of the necessary financial resources; while in the case of many others it is not worth having at the cost which it involves'.