JUDGMENT : - D.K. Seth, J. The defendant No. 3 in a suit presented under Order XXXVII of the Code of Civil Procedure has challenged the impugned order dated 28th May, 1999 passed by the learned Addition al Civil Judge (Senior Division) Vth Court, Agra passed in Original Suit No. 793 of 1998. Mr. Prabodh Gaur, learned Counsel for the revisionist contends that the defendant No. 3 has raised an objection under Order VII, Rule 11, read with Section 151 of the Code of Civil Procedure and contended that the plaint should have been rejected since the plaint did not disclose any cause of action as against defendant No. 3. His next contention is that the suit cannot be maintained within the scope and ambit of Order XXXVII since it is not a suit up Bill of Exchange, hundies or Promissory Note. He also contends that the plaint does not disclose any written contract as between the plaintiff and the defendant No. 2 nor does it disclose that the amount is due on an enactment or is based on any guarantee so far as the defendant No. 3 is concerned. He has referred to the plaint and had pointed out that there is nothing which disclose any cause of action as against the defendant No. 3, within the four corners of the pleadings made out in the plaint. According to him, there was no contract between the plaintiff and the defendant Nos. 1 and 3 and he had relied upon various provisions of Contract Act as well as commentaries by Anson, and that by Cheshire and Fifoot to which reference shall be made at appropriate stage, if necessary. He has also addressed the Court on merit of the case as has been pleaded in the plaint and has also referred to the defence which he had elaborated in order to impress the Court that even on merits, the suit cannot survive. On these grounds he contends that the impugned order can not be sustained and the plaint ought to have been rejected under Order VII, Rule 11 of the Code or should have been returned under Order VII, Rule 10 since it was not maintainable under Order XXXVII of the Code. 2. MR. Murlidhar, learned Counsel for the plaintiffs assisted by Dr. 2. MR. Murlidhar, learned Counsel for the plaintiffs assisted by Dr. Dilip Gupta on the other hand contends that after the impugned order was passed, the defendant had filed its defence and sought for leave to defend the suit upon condonation of delay. In the said defence the grounds which are now being set-up in support of the application under Order VII, Rule 11, read with Section 151 of the Code since been decided by the impugned order, have also been incorporated as defence to the suit itself. Therefore, ac cording to him, the question remains still open to be agitated by the defendant if leave is so granted. He had also taken a preliminary objection to the extent that if the plaint could have been rejected under Order VII, Rule 11 or could have been returned under Order VII, Rule 10 by the Court without any intervention by the defendant, then it would not have been a defence within the meaning of sub-rule (5) of Rule 3 of Order XXXVII of the Code, which is bound to present within 10 days from the date of service. But as soon the said objection is raised by the defendant, it would become a defence within sub-rule (5) of Rule 3 of Order XXXVII of the Code. If it is so, then it would attract the mischief of sub-rule (5) unless a leave is obtained from the Court. In the present case, no leave was obtained and as such, the entire submission of Mr. Prabodh Gaur lacks foundation. He also contends that the plaint discloses sufficient cause of action on which the plaint could not have been rejected as is apparent from the pleadings made out in the plaint. The question that whether the letter of Credit is a form of guarantee or a contract is a question on merit which can be set-up by way of defence and cannot be gone into for the purpose of rejecting the plaint under Order VII, Rule 11 of the Code, which requires adjudication. Ac cording to him, while rejecting the plaint under Order VII, Rule 11 of the Code, the Court is supposed to look into the pleadings made out in the plaint and it is not supposed to look into the defence. At the same time, it cannot go into the questions which are disputed or requires adjudication or raises trivial issue. Ac cording to him, while rejecting the plaint under Order VII, Rule 11 of the Code, the Court is supposed to look into the pleadings made out in the plaint and it is not supposed to look into the defence. At the same time, it cannot go into the questions which are disputed or requires adjudication or raises trivial issue. On these grounds, according to him, the order impugned cannot be assailed and this revision cannot be maintained. 3. I have heard both the learned Counsel at length. 4. ORDER XXXVII of the Code is a summary procedure, which lays down the procedure in which a suit under ORDER XXXVII is to be proceeded with. In Rule 1, it prescribes as follows:- "1. Courts and classes of suits to which the ORDER is to apply- (1) This ORDER shall apply to the following Courts, namely :- (a) High Courts, City Civil Courts and Courts of Small Causes; and (b) other Courts: Provided that in respect of the Courts referred to. in clause (b), the High Court may, by notification in the official Gazette restrict the operation of this ORDER only to such categories of suits as it deems proper, and may also, from time to time, as the circumstances of the case may require, by subsequent notification in the official Gazette, further restrict, enlarge or vary, the categories of suits to be brought under the operation of this ORDER as it deems proper. (2) Subject to the provisions of sub-rule (1), the ORDER applies to the following classes of suits, namely:- (a) suits upon bills of exchange, hundies and promissory notes; (b) suits in which the plaintiff seeks only to recover a debt of liquidated demand in money payable by the defendant, with or without interest, arising, (i) on a written contract; or (ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or (iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only. " The submission that was made by Mr. Gaur was confined to sub- rule (2) of Rule 1 of Order XXXVII of the Code. Admittedly, the plaint does not disclose a cause of action with regard to sub- rule (2) (a). " The submission that was made by Mr. Gaur was confined to sub- rule (2) of Rule 1 of Order XXXVII of the Code. Admittedly, the plaint does not disclose a cause of action with regard to sub- rule (2) (a). But it refers to a cause of action relating to Letters of Credit, which is a kind of guarantee, which on the face of it, cannot be said that it does not come within the meaning of clause (iii) of clause (b). Opening of Letters of Credit may be con tract within the meaning of clause (i), but those are matters, which on the face of the pleadings, cannot be said to be wholly absent. On the other hand, the pleadings as is disclosed refers to the existence of letters of credit and some kind of contract which requires adjudication. It may be a good defence to be pleaded by the defendant that the suit is not maintainable but then that is an issue to be framed on the basis of the pleadings to be gone into and this is definitely a defence. Apparently, it does not appear that the plaint does not disclose a cause of action altogether attracting the application of Order VII, Rule 11 of the Code. 5. BUT then, even if it is assumed for argument's sake, that no cause of action was disclosed as against defendant No. 3, then the plaint cannot be rejected under Order VII, Rule 11 of the Code, though it could not be maintained against defendant No. 3. Order VII, Rule 11 does not con template that the plaint could be split up and be rejected as against one of the defendant while be maintained against the rest. If the plaint cannot be rejected against all, then the plaint cannot be rejected against only one. In such as event, it would be an issue which is to be gone into as a defence by the defendant No. 3, that the suit is not maintainable as against him, in absence of privity of contract. BUT these are matters which can be gone into only when it is raised as a defence by the defendant. Order VII, Rule 11 of the Code reads as follows:- "11. BUT these are matters which can be gone into only when it is raised as a defence by the defendant. Order VII, Rule 11 of the Code reads as follows:- "11. Rejection of plaint.-The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; (b) where the relief claimed is under valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper in sufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, faiistodoso; (d) where the suit appears from the statement in the plaint to be barred by any law: Provided that the time fixed by the Court for the correction of the valuation of supplying of the requisite stamp papers shall not be ex tended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the Courts and that refusal to extend such time would cause grave injustice to the plaintiff. " 6. THE plaint is rejected when the plaint does not disclose a cause of action. Mr. Gaur, had confined his argument with regard to Order VII, Rule 11, clause (a) only. THE cause of action is to be decided on the basis of the plaint. Inasmuch as Rule 11 specifically provides that the plaint shall be rejected when the plaint does not disclose a cause of action. Therefore, the entire thrust is on the plaint. No amount of defence can be pleaded to attract clause (a) of Rule 11 of Order VII of the Code. THE Court is neither supposed to look into the written statement nor any of the materials that might be put forth by the defendant as a defence. It is only a question to be gone into on the basis of the pleadings made out in the plaint without entering into the merits of the case. The plaint in paragraphs 50, 51 and 52 refers to the cause of action in the following manner:- "50. It is only a question to be gone into on the basis of the pleadings made out in the plaint without entering into the merits of the case. The plaint in paragraphs 50, 51 and 52 refers to the cause of action in the following manner:- "50. That the cause of action for filing the present suit by the plaintiffs firstly arose in favour of plaintiff when the defendants delta gave an order to plaintiff No. 1 for supply of 1,01,431 pairs of shoes and opened a documentary irrevocable letter of credit with Hypo Bank and DG Bank for an amount of DM 1834045. 65 against the supply of the said shoes. The cause of action further arose in favour of the plaintiffs when the above referred letter of credit was transferred by Delta and established on DG Bank, Hong Kong making Regent Shoes as the transferor and the cause of action further arose when the DG Bank on instructions from the transferor opened three letters of credit under the original letter of credit issued by Delta No. 6811197/gh6in favour of plaintiffs No. 1 to 3. Also when the defendant No. 1 and 6 wrongly reversed the entries. 51. The cause of action arose on various dated when documents were presented by the negotiating banks i. e. Defendant Nos. 1 and 6 on behalf of the plaintiff to the DG Bank and Hypo Bank and arose again in or about first week of August, 1995 when the documents were returned unpaid by the DG Bank and Hypo Bank and the cause of action also arose in the month of September, 1995 when the defendants Nos. 1 and 6 wrongly reversed the entries in their books and debited the plaintiffs account by the amount of bills which were negotiated under the L/c's together with interest upto date of reversal. The cause of action is continuous and continuous to subsist. 52. That the entire cause of action accrued at Agra as the plaintiff companies received the orders from the export of shoes at Agra, the defendant Nos. 1 and 6 have their respective offices at Agra, the bills were presented to the defendant Nos. 1 and 6 under the L/cs at Agra and amount is payable at Agra under the L/c hence this Hon'ble Court has jurisdiction to try the suit. " 7. 1 and 6 have their respective offices at Agra, the bills were presented to the defendant Nos. 1 and 6 under the L/cs at Agra and amount is payable at Agra under the L/c hence this Hon'ble Court has jurisdiction to try the suit. " 7. HAVING regard to the pleadings made out in the earlier paragraphs, read with this paragraph shows that the cause of action is disclosed. Whether this cause of action would be finally proved or not is question of defence, which can only be gone into when the defendant defends the suit. 8. RULE 2 of Order XXXVII of the Code provides the manner in which the summary suit under Order XXXVII is instituted. Mr. Gaur has not contended that there has been any infraction of any of the provision with regard to RULE 2 of Order XXXVII. But then these are questions which can be gone into if it is so raised in defence by the defendants. Rule 3 prescribes the procedure for appearance of the defendant. Admittedly, the defendant has entered appearance after having received the summons. But Mr. Gaur has contended that the documents on which a suit is based was not filed along with the plaint as required under Order VII, Rule 14 of the Code. But these are grounds on which a defence can be pleaded. Whether it will affect the institution of the suit or not is a question which should not be gone into at this stage. It would not be necessary to pre-empt the defence that might be taken by the defendant in the suit itself. Therefore, I refrain from going into that question. But at least whether the suit could be maintained or not, need not be gone into since it can be gone into by way of defence at appropriate stage. But the fact remains that on account of non-filing of document within the scope and ambit of Rule 14 of Order VII, will not entail rejection of the plaint under Order VII, Rule 11. Inasmuch as Order VII, Rule 11 of the Code is confined to the contingencies contained in Rule 11 itself and it cannot be out-stretched or extended beyond the contingencies provided there in. The contingencies as prescribed in Order VII, Rule 11 does not provide the contingency which is prescribed under Order VII, Rule 14 of the Code. 9. Inasmuch as Order VII, Rule 11 of the Code is confined to the contingencies contained in Rule 11 itself and it cannot be out-stretched or extended beyond the contingencies provided there in. The contingencies as prescribed in Order VII, Rule 11 does not provide the contingency which is prescribed under Order VII, Rule 14 of the Code. 9. SUB-rule (5) of Rule 3 of Order XXXVII prescribes that the defendant at any time within 10 days from the service of summons for judgment may seek leave. In the present case initially an application under Order VII, Rule 11, read with Section 151 of the Code was filed by the defendant. But, however, subsequently leave has been applied for under sub-rule (5) of Rule 3 with an application for condonation of delay. Since such application is pending, it would not be wise to go into those question at this stage. 10. BUT the fact remains that the defendant No. 3 had sought to defend or take his defence even before he had applied for leave to defend after services of summons for judgment. By reason of sub-rule (5), the defendant cannot denied the suit without obtaining leave to defend since leave is granted either unconditionally or upon such terms, which may deem just to the Court. It is also not specified as to whether the stage of sub- rule (5) of Rule 3 is over or not. BUT then these questions have not been raised or disputed. Mr. Gaur, had not contended that the said application under Order VII, Rule 11 of the Code, read with Section 151 of the Code was filed at the stage of sub-rule (5). In reply to the submission made by Mr. Murlidhar, Mr. Gaur has also contended that the stage of sub-rule (5) has not yet arrived. BUT then the defence is available to the defendant only when summons for judgment is served on him under sub-rule (4) and then he can come and apply for leave under sub-rule (5). The stage of sub-rule (3) is a stage where the defendant only gives notice to the plaintiffs' pleader about his entering in appearance, after which summons for judgment is served under sub- rule (4) and within 10 days of such service leave to defend is to be applied for. 15 As discussed above, it appears from the statements made by Mr. 15 As discussed above, it appears from the statements made by Mr. Gaur that the grounds on which he submits that the plaint should be rejected, in effect are grounds of maintainability of the suit as against the defendant No. 3. He had relied on Anson's Law of Contract, (Chapter X, 23rd Edition Page 377) dealing with the Privity of Contract and had referred to the context that "two persons cannot, by any contract into which they may enter, there by impose liabilities upon a third party. " He also refers to page 387 of the same treaties and points out to the context". Notwithstanding the fact that the third party cannot himself enforce the contract, the promisee under the contract may be able to obtain an order for specific performance against the premisor to compel him to carry out his promise in favour of the third party." He also relies at page 384 on the same treaties. Relying on these treaties, he contends that no cause of action is being made out as against the defendant No. 3 by reason of the pleadings made out in the plaint. BUT these are really defence which can be defended by the defendant by production of materials. On the face of the pleadings made out in the plaint, these questions do not surface to an extent so apparent that one could clearly come to a conclusion that plaint does not disclose a cause of action. 16. He had also referred to page 383 of the Law of Contract, Sixth Edition by Cheshire and Fifoot. The passage relied upon by him reads thus:- "the course of international trade in the twentieth century has offered a new challenge to the traditional mechanism of the law. The ex porter had found himself confronted with peculiar difficulties. He may be dealing with a buyer whose credit is doubtful, or at least un known; he may be faced with possibility of sharp fluctuations in the rate of exchange between the formation of the contract and the date of payment, and even if free from these peculiar anxieties, neither he nor the buyer may wish to see their capital frozen Curing the time which must necessarily elapse before the goods, despatched from the place of manufacture, can be sold by buyer in his own market. To meet these difficulties it has become usual to finance international trade by what are called Bankers' Commercial Credits. From the lawyer's point of view, and reduced to its simplest terms, the device involves three separate transactions. (1) A clause is inserted in the initial con tract of sale, whereby the seller requires payment in a particular manner. The buyer is to ask his bank to open a credit in the seller's favour, which shall remain irrevocable for a given time. (2) The buyer makes an agreement with his bank, whereby the bank undertakes to open such a credit in return for the buyer's promise to reimburse the bank, to pay a small commission, and to give the bank a lien over the shipping documents. (3) The buyer's bank notifies the seller that it has opened an irrevocable credit in his favour, to be drawn on as soon as the seller presents the shipping documents. It is upon the third of these transactions that, at least in academic circles, doubts have arisen. What is the legal position of the seller, should the bank refuse to honour its promise? He could sue the buyer on the original contract of sale, though this would be to abandon the credit scheme. BUT, if he sued the bank, he might be met by the objection that he is not a party to the contract by which the banker has agreed to pay the value of the goods. The buyer, indeed, has given consideration in his own agreement with the bank, but to this contract the seller is not a party. The seller, in other words, might simply be described as a stranger, attempting to avail himself of jus quoesitum tertio. No bank, it is believed, has yet taken the objection, preferring its honourable to its legal obligations. BUT, as the Law Revision Committee pointed out, the liquidator of a bank might well be obliged to raise technical defences, and it is in any case undesirable that established business practice should lack clear legal sanction". Referring to this passage, Mr. Gaur contended that the plaint lacks cause of action so far as the defendant No. 3 is concerned in absence of the material in gredients, which could have satisfied the observation made in the said treaties. 17. Having considered the submission made by Mr. Referring to this passage, Mr. Gaur contended that the plaint lacks cause of action so far as the defendant No. 3 is concerned in absence of the material in gredients, which could have satisfied the observation made in the said treaties. 17. Having considered the submission made by Mr. Gaur in comparison with the passage referred to above, this also appears to be a defence on behalf of the defendant and the pleadings on the face of it cannot be said to be hit by the said treaties to an extent so apparent that the Court can easily come to a conclusion that there is no cause of action disclosed in the plaint. On the other hand, this definitely refers to the defence which can be taken by the defendant subject to sub-rule (5) of Rule 3 of Order XXXVII of the Code. Unless he is granted leave, he is not sup posed to raise the defence at this stage. 18. The question that has been raised in this case is in effect a defence. Defence is available to a defendant in a suit under Order XXXVII, only when leave is obtained. In Pench Pelley v. Indian Cables ( AIR 1975 Cal. 284 ), it was held that that defendant is not entitled to defend the suit unless leave is obtained on application made within ten days from the service of writ of summons. In Hariyan Breweries v. Aluminium (AIR 1980 Delhi 311), it was held that appearance of the defendant avoids ex- pane decree. BUT at the same time if he assails the jurisdiction of the Court by any application, it satisfies the requirement of sub-rule (3) of Rule 3 only. Drawing inference from the said ratio, it can be said that it does not attain the stage of Rule 5. In AC. Traders v. Nawal Kishore (1988) 1 CW Civ Cases 292 (Raj), it was held that leave to defend is to be granted after summons for judgment is served. Without written statement being filed, it is premature to grant leave to defend. In Ram Lubhaya v. Shiv Prasad (AIR 1984 Punj. 31), it was held that leave to defend cannot be implied from the filing of writ ten statement unless leave to defend is sought for. Without written statement being filed, it is premature to grant leave to defend. In Ram Lubhaya v. Shiv Prasad (AIR 1984 Punj. 31), it was held that leave to defend cannot be implied from the filing of writ ten statement unless leave to defend is sought for. In Anil Gupta v. S. R. Dhuper, (AIR 1977 Delhi 154), it was held that the rules are so rigorous that unless the Court's leave is obtained the defendant is not entitled to defend the suit. The Court has discretion to grant him leave unconditionally or conditionally. However, such discretion is to be exercised on sound judicial principle. It is only when the defendant satisfies the Court that he has raised a triable issue, leave is granted, as was held in Raghveera Som v. Padmavathi (AIR 1978 Cal 81). The triable issue may relate to jurisdiction also is the ratio laid down in Shivalik Poultry Firm v. Indian Bank (1986) 1 Cur Civ Cases 353 (Punj). 19. In Raj Duggal v. Ramesh Kumar Bansal ( AIR 1990 SC 2218 ), it was held that the test is to see whether the defence raises a real issue and not a sham one, or that there is a fair dispute to be tried on the alleged facts are of such nature to entitle the defendant to interrogate the plaintiff or to cross- examine his witnesses. Relying on the decision in the case of Meehalac Engineers v. Basic Equipment, ( AIR 1977 SC 577 ), the Calcutta High Court in Cycle Corporation v. Biswanath Dhandania ( AIR 1990 Cal. 405 ) had held that the test to grant leave to defend is to see whether defendant raises a real issue and not a sham one. 20. The above proposition presupposes that unless leave to defend is granted the defendant is not entitled to raise any defence. The grounds taken herein may be good ground for obtaining leave. BUT the same cannot form a defence in order to enable the defendant to defend without the leave being granted by the Court, to defend. No defence can at all be raised unless leave to defend is contained. 21. Failure to obtain leave to defend, will leave the defendant defenceless and plaintiff entitled to a decree. In Sant Chit Fund. v. G. D. Textiles (AIR 1974 NOC 277 (Delhi)), it was so held. No defence can at all be raised unless leave to defend is contained. 21. Failure to obtain leave to defend, will leave the defendant defenceless and plaintiff entitled to a decree. In Sant Chit Fund. v. G. D. Textiles (AIR 1974 NOC 277 (Delhi)), it was so held. In Akil Chil v. Ram Dull Sharma (1988) 2 Cur Civ Cases 302) it was held that omission to pray for leave to defend as provided in clause (a) of sub-rule (5) of Order XXXVII, Rule 3 is that it entitles the plaintiff to a judgment forthwith. Therefore, there is no scope for raising any kind of defence unless the leave is obtained. Thus the question raised can not be looked into at this stage for any purpose other than on a ground for obtaining leave if sought for. 22. Therefore, I am not inclined to interfere with the order impugned in view of the observations made hereinbefore since it is not a case hit by the mischief of Order VII, Rule 11 of the Code. 23. BUT since the defence was not open to the defendant without the leave under sub-rule (5), the findings and this order shall not preclude the defendants to take the defence after he is granted leave pursuant to leave already applied for in order to contest the suit on any ground whatsoever. 24. It is made clear that any observation made either in the impugned order or in this judgment, will not be taken note of, and the question for granting leave or deciding the defence, if any, in grant or refusal of such leave shall be decided by the learned trial Court on merit according to its own wisdom and discretion without being influence by any observation either in the impugned order or in this order. It will be open to the learned trial Court to decide the question of grant of leave ac cording to its own wisdom and discretion on merits and in accordance with law. 25. In the result, this revision under Section 115 of the Code fails and is accordingly dismissed. No cost. Revision dismissed.