MARIAM Vs. MICHAEL

JUDGEMENT

(1.) The defendants who are the widow and children of the deceased Christian seek revision of an order passed by the court below granting permission to the plaintiffs to sue in forma pauperis. Plaintiff 1 is the illegitimate child of the deceased husband of defendant 1 and plaintiff 2 is the maternal uncle of the first and functions as his next friend in the suit. In the objection filed by the petitioners here in the court below it was contended that the plaint does not disclose a cause of action and that the application for permission to sue in forma pauperis is liable to be rejected on that ground under the provisions of O.33 R.5 Civil PC. Objection was taken to the alleged factum of the plaintiff's pauperism. The learned Judge found in favour of pauperism. In respect of want of cause of action, the learned Judge says in para 5 thus:

(2.) In para 8 of his order, the learned Judge, while referring to the contentions of the parties says: "For Christians that common law is common law". It is not possible to understand these various passages in the order of the learned Judge. When the question is raised by the defendants that the plaint does not disclose a cause of action, as they are entitled to do under the Code of Civil Procedure, it is incumbent upon the court to record a finding one way or other. The order sought to be revised is defective in that it does not contain such a finding. It is, therefore, reversed and the case sent back to the court below to dispose of the matter according to law and having regard to the aforesaid remarks. There will be no order for costs in this revision.