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Judgment
Subramania Iyer, J.—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 tiled 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 Order 33 , Rule 5, Code of Civil Procedure. 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:
This question can be considered in greater detail in the suit by raising an issue. Prima facie it appears to me that there is a cause of action.
and in the previous paragraph he says thus:
Further, to suppose that an illegitimate father has no liability to maintain the offspring is to ignore all moral principles. The Christian teaching and morale unambiguously cast a liability on a putative father, to maintain his illegitimate children.
The obligation that is sought to be enforced in this case is a legal obligation. The Plaintiffs do not appear to say that what was a moral obligation of the deceased father developed into a legal obligation in the hands of his legal representatives as happens in certain cases under the Hindu Law.
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 those 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.