History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.328

v4.c63.328

There were rules about the late production of evidence. It has been already shown how if a litigant adduces weak evidence, though strong evidence is available, he would not be allowed to rely on the latter after judgment is pronounced. It is said by Nār. I. 62 that when a law-suit has proceeded far enough (lit. has been cleansed or thrashed out), evidence such as a document or witnesses, would then become useless, if that evidence had not been announced before⁵²⁹. After a reply is filed by the defendant, the plaintiff has to give a list of his evidence i. e. documents or witnesses (Yāj. II. 7). The meaning briefly is as follows : If he does not do so, proceeds with the trial and does not call all necessary witnesses or produce all documents and the case is almost finished, but judgment is not pronounced, even then he would not be allowed to produce fresh evidence at that late stage. For if fresh evidence not previously disclosed were allowed to be given at that late stage, it would cause surprise to the defendant, who would then demand time for adducing evidence in rebuttal and then the plaintiff may again cite further evidence and this process is in danger of being carried on *ad infinitum*. If however witnesses were already cited but all were not examined (e. g. if ten witnesses were mentioned and only three examined) and the plaintiff found that the evidence of the few witnesses examined for him is contradictory or hostile, then he may be allowed to produce even at a late stage the remaining witnesses (who may be seven i. e. double the number of those already examined or who may be more respectable or purer in character). This proposition is contained in Yāj. II. 80 on which the Mitākṣarā remarks that even if witnesses are not mentioned in a list, but before judgment is pronounced other more reliable or respectable witnesses or double in number (and of the same status as) of those examined are available, they should be examined by the court even at a late stage. The rule is that as long as witnesses are available resort to ordeals should not be had. Yāj. II. 80 also has given rise to various interpretations. Vide Mit. and Aparārka on Yāj. II. 80, Sm. C. II. p. 94, V. P. p. 130-134. The Mit. thinks that the verse applies where the plaintiff or the party on whom lies the burden of proving a positive proposition finds that the witnesses produced by him are hostile or contradictory and that in such a case he may be allowed to cite other more respectable or more numerous witnesses to prove his proposition and to show that the first set of witnesses is false, while Aparārka holds that the verse says that when the party who has to prove his case cites witnesses which the opponent feels are false, the opponent may produce more respectable or more numerous witnesses to depose to the contrary and he would thus prove the first set to be false. Aparārka relies on Kāt. (408) for this proposition⁵³⁰. It may be said that Aparārka's interpretation appears more natural. V. P. (p. 134) accepts Kātyāyana, but says that the interpretation of the Mit. (of Yāj. II. 80) is correct. Whatever view is accepted it leads to this that one set of witnesses not only may prove the truth of a party's case but also establish that another set of that party's witnesses are guilty of perjury.