व्यवहारमयूख (नीलकण्ठ भट्ट - पश्चिमी भारत की हिन्दू न्याय-संहिता एवं व्यवहार कोष)

S. I ; 2 ... ] RES JUDICATA 15
V. P. 11. 1–2. 1. ]
'If (a person), (although, later) defeated in a judicial proceeding, again
has a (plaint) written out, it should be addressed 'You were formerly de-
feated': this is called the plea of former judgment.
These being the characteristics of (a proper) reply, it follows as a matter of
course that the replies that are destitute of these (characteristics) are faulty
replies; and they are expressly stated in another smṛti : ²
A reply that is ambiguous, that is not to the point (in dispute), that
is very concise or very prolix,³ that meets only a part of (the allegations
in) the plaint, cannot be a (proper) reply.
A reply that sets up another title of law (i.e. that sets a cause of act-
ion different from the one stated in the plaint), that does not meet all the
particulars in the plaint, that is of mysterious (or veiled) import, that is in-
consistent, that is intelligible (only) after explanation, and that is opposed
to reason (or that is void of substance), does not serve the purpose (sought
by a reply).⁴
*Kātyāyana also (says):
The reply, which is one of confession (or admission) as to a portion of
the plaint (i.e. as to one count therein), which is a reply of a special
plea as to another portion (of the plaint) and which is a reply of denial as
to a different portion (of the plaint) is not a proper reply on account of
the blending (of several pleas in one).⁵
The same author states the reason why it (such a reply) is not a proper reply:
In the same litigation the burden of proof (kriyā) cannot rest on
both litigants, nor can both succeed in their object, nor can two methods of
proof be resorted to at one (and the same) time.⁶
The meaning of this passage is as follows:—
In a blending (joinder) of the replies of denial and special plea, it
follows that the burden of proof lies on both the litigating parties (plaintiff
and defendant), as Nārada declares.
In (the reply of) denial, the proof rests upon the plaintiff, in (the
reply of) special plea on the defendant.
1 This is ascribed to Nārada by Aparārka, to Bṛhaspati by Par. M. and to Kātyā-
yana and Bṛhaspati by Vīr.
2 The two verses are ascribed to Kātyāyana in Aparārka, Vy. Māt. and Sm. C.
3 These words may also mean 'that admits either much less or much more than
what is alleged in the plaint.'
4 For detailed explanation of these verses vide notes to V. M. pp. 28-29, and Kātyā-
yana vv. 173–175.
5 Mandlik omits the translation of 'Saṅkarāt'.
6 'Kriyā' means 'means of proof' and also 'burden of proof'. For illustrations
and detailed explanation of this and the preceding verse, vide notes to V. M. pp. 29–31 and
Kāt. vv. 189–190.

• P. 16 (text)