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

16 VYAVAHĀRAMAYŪKHA [ S. T. I 80-82
[ M p 19 ll 2-8]
rt. To have burden of proof on both the parties (to a litigation) in the same
suit is contradictory (or inconsistent). So also in a combination of (the
replies of) special plea and former judgment the defendant alone has to
discharge a double burden of proof since Vyāsa says —
'In putting forward a reply of former judgment and of special plea it is
the defendant who should exhibit the proof
And here on account of a text of Vyāsa himself in a plea of former judgment
by the decree and by the (testimony of) prāḍvivāka and the like (defen-
dant has to establish his case) in the plea of former judgment the case
is to be established by (production of) the decree or by (the testimony of)
those who took part in the former judgment while in a reply of special plea,
(the case is to be established) by means of witnesses, documents and the
like. And so in this (combination of two replies) there is conflict. The
same is to be understood in the combination of three or four replies. These
(combinations of several replies in the same suit) constitute improper replies
only when they are (pursued) simultaneously but when (pursued) one
after another they are proper replies. The order (in which they are to be
pursued) rests on the will of the plaintiff the defendant and the sabhyas
And Hārīta also says ¹
If in the same litigation there be (a combination of) both viz a
reply of denial and of special plea or there be (a reply of) admission along
with any one of the other (three kinds of reply) then in such a case, what
reply should be taken up (first for investigation)? (The answer is) in such
a case that reply which is concerned with more valuable or important
matters (alleged in the plaint) or whereby the result due to the adducing
of proof will follow (quickly or easily) should be regarded as the reply
and it becomes free from the fault of confusion (of replies) but otherwise ²
(the reply would be liable to the fault of confusion)
'The words it becomes liable to the fault of confusion are to be understood
(in the above passage). The meaning of this (passage) is when there is
a claim for gold and clothes in the case (of a reply) that gold was not received
and that clothes were received but returned the judicial proceeding should
first be carried on in regard to gold and then with regard to clothes ³. The
same (rule) should be applied in regard to the combination of the reply of
denial and of former judgment and of the reply of special plea and former
judgment. In the same claim (for gold and clothes) if it be replied that
1 The following verses lay down the order in which in certain cases, independently
of the will of the parties several issues raised by the defendant are to be taken up for in-
vestigation. These verses are attributed to Vyāsa by Aparārka and V. Mit. both of which
add a half-verse. In the case of the combination of the replies of denial and special plea, the
the latter should be taken up first.
2 This means if the rule contained in the preceding were not followed.
3 As gold is the more valuable out of the two.
P. 17 (text)