History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.192

v4.c63.192

There were many grounds on account of which a litigant became what is called *hīna* (a losing party) and some times either had his plaint dismissed or his defence struck out and a decree passed against him or he was simply fined. For example, Nār. II. 33 speaks of five kinds⁴²⁸ of *hīna* viz. one who changes his statements ( or pleading ), who does not prosecute his pleading by adducing evidence ( i. e. avoids investigation ), who does not appear when summoned, who gives no reply, who disappears or runs away when summoned. Nār. I. 56–61, II. 24 explain some of these and other *hīna* parties. Kāt. 202 ( q. by Sm. C. II. p. 47 ) prescribes that the above five should respectively be fined 5, 10 12, 16 and 20 paṇas. Nār. II. 25 states that in all civil disputes such as those about women, land or debts the litigant does not lose his cause even if he commits a mistake in his statements, but he is liable to fine. This conveys that in disputes arising out of wrath ( manyukṛta i. e. in criminal matters ) a person loses his cause if he is guilty of the above acts and he is prohibited from pursuing the matter again. Kauṭ. III. 1, Manu VIII. 53–57 contain in almost the same words, certain similar rules, Kauṭ. calling the several actions causes of *parokta* ( defeat ). Vide Yāj. II. 16, Śukra IV. 5. 136, Kāt. 191–210 for further details on dismissal for default and cognate matters. In these cases of *hīnavādins*, though a fine was imposed, a retrial could be ordered. When defendant filed his reply and parties joined issue in court, Bṛ. and Kāt. say that they should not then be allowed to compromise the dispute privately without the permission of the court; if they did so they were both to pay double of the fine imposed on a defeated party, as they deprived the king of his dues (court fees). But a compromise with the court's permission was allowed when the parties were in doubt as to what the witnesses might say or the *sabhyas* might decide (in such cases it would be wisdom for the parties to compromise) and particularly when the evidence on both sides was evenly balanced or where there was a conflict between the different smṛtis and usages.