History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.183
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.183
- Language
- English
v4.c63.183.1
The answer of the defendant must possess the following characteristics viz. it must completely meet all the points of the plaint, it must not deviate from the truth, must not employ vague words, must not be self-contradictory, it should not be such as to require further explanation (because of containing words in a foreign tongue or unknown or rarely used words or elliptical or badly arranged sentences).⁴²⁰ A reply is of four kinds, (1) *mithyā* (of denial), *sampratipatti* or *satya* (confession or admission), *kāraṇa* or *pratyavaskandana* (of special plea or demurrer), *prāṅnyāya* or *pūrvanyāya* (of former judgment or *res judicata*). A reply of denial may take four forms (Nār. II. 5) viz. (1) this (what is affirmed in the plaint) is false, I do not know anything about it, I was not present (when the transaction alleged in the plaint is said to have taken place), I was then not born.⁴²¹ The first is a direct denial, the others are implied or indirect. Very strict rules of pleading were evolved by the time of Kāt., who provides (144) that if a statement asserted by the plaintiff in the hearing of the defendant is not traversed by the latter or if the latter remains silent when he should have given a reply, it (should be held by the court that it) is admitted (by the defendant).⁴²² When the defendant declares the truth of the claim made in the plaint that is a reply of admission.
v4.c63.183.2
Where the defendant accepting as correct the matters (or facts) set out by the plaintiff raises a plea, that is a reply of special plea.⁴²³ The same is designed by some as *ādhārya* or *ādharya* (rendering futile) of the plaint. For example, where plaintiff avers that defendant took one hundred rupees and defendant accepts that fact but adds either that he later on returned them or that they were really donated to him, that is a reply of special plea. Where a person though defeated in a (former) proceeding again causes a plaint to be written and is addressed (answered) with the words 'you were formerly defeated', that is a reply of former judgment. That there was a former judgment between the same parties may be proved by citing the judges or arbitrators or by citing other witnesses or by producing the writing itself i. e. the copy of the judgment (Kāt. 172).⁴²⁴ In a reply of admission there are only two stages of *vyavahāra* viz. the plaint and the reply; there is no need of proof (so there is no *kriyāpāda*) and the plaintiff succeeds as a matter of course (and so there is no necessity of a regular judgment, *nirṇaya*). Kāt. (173–190) states at great length the faults of a reply and also what are not proper replies. The Mit. (on Yāj. II. 7), Aparārka pp. 613–614, Sm. C. II. pp. 43–46 and other digests quote long passages from Kāt., Bṛ., Hārīta, Vyāsa and others on faults of *uttara* and illustrate them at length. These have to be omitted for want of space.
v4.c63.183.3
One of the faults is '*saṅkara*' (mixture or confusion or misjoinder of pleas in defence). For example, if the plaint alleges 'the defendant took gold, a hundred rupees, certain valuable clothes and a quantity of corn and has not returned any of them,' and the defendant's reply is 'I took the gold, I never took any rupees, the plaintiff donated the clothes to me, as to the corn plaintiff had already filed a suit against me and failed'. Here the reply contains all four varieties, viz. the first is a reply of admission, the 2nd is one of denial, the third is a special plea and the 4th is a plea of former judgment. This is a *saṅkara*. But it is not meant that this reply would not be allowed. All that is meant is that, as the burden of proof varies, the adducing of evidence will not be allowed simultaneously, but one after another. Vide Mit. on Yāj. II. 7, Par. M. III. pp. 77-80. These questions are concerned with cases in which several issues arise, the burden of proving some of which lies on the plaintiff and the burden of proving others lies on the defendant. If a defendant does not come forward to give a reply, the king or judge should make him give one by *sāma* (conciliatory words), *bheda* (threats) and other ways and if he does not give a reply for seven days after that, he may be declared to have been defeated and a decree may be passed against⁴²⁵ him. Kauṭ. (III. 1), Yāj. II. 9, Nār. I. 55, Kāt.
v4.c63.183.4
(163) state that a defendant cannot⁴²⁶ raise a counter-claim (*pratyabhiyoga*) as long as he has not met the attack of the plaintiff, nor should another plaintiff attack a person who is a defendant in a suit already filed, except in the case of abuse and assault, *sāhasa* (death or grievous hurt by a weapon &c.), theft or in a very urgent matter, or in disputes among members of caravans or guilds or in charges of adultery, Yāj. II. 29, Nār. IV. 93, Śukra IV. 5. 120 say that when a litigant dies while a suit is pending, his son (or other representative) who takes his estate should carry on the litigation or be liable for the claim and the son cannot add his own enjoyment (to make up three generations &c. as required for possession ripening into ownership ).⁴²⁷