1. MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from order dated 8-11-1976 of the Lahore High Court whereby a Regular Second Appeal was dismissed in limine.
2. The petitioners had filed a suit seeking declaration with regard to the ownership of the land in dispute. The respondents raised a preliminary objection that the suit was hit by res judicata, because an inter partes decree in respect of the same subject-matter had earlier been passed in favour of defendants: The learned trial Judge upheld the plea of res judicata and rejected the plaint under Order VII, rule 11, C. P. C. The first and second appeals filed by the petitioner having been dismissed, they have now sought leave to appeal.
3. Learned counsel for the petitioners admits that if the earlier decree had remained in tact, it would have operated as res judicata, but has, at the same time, argued that during the pendency of the petitioners' suit they filed an application for the amendment of the plaint so as to assert the plea that the earlier decree was obtained through fraud and misrepresentation. This application, according to him, was illegally dismissed. If the same would have been allowed and additional issue had been framed on the plea raised by the petitioners with regard to the earlier decree, the results might have been different. Learned counsel further argued that the plea taken in the amend--ment application was not new-the assertion with regard to fraud had already been made in the plaint, but no issue was framed on this question.
4. The learned Courts below have attended to the plea regarding the amendment of the plaint. The earlier decree was passed in 1957. The petitioners' suit was filed in 1970. It was dismissed in October, 1974, but admittedly the application for amendment was made after the close of the evidence in April, 1974. The application for amendment was undoubtedly belated. If the learned trial Court would have allowed it and would have framed additional issue, it would have reopened the entire action afresh on a plea which did not form part of the issues already framed. The petitioner had not made any move earlier so as to seek adjudication on this plea. It appears that throughout the trial of the suit the petitioners were not sanguine about the merit of their plea, therefore, it was not pressed. In these circum--stances, it cannot be said that the exercise of discretion by the learned trial Court in dismissing the amendment application was illegal or even improper. As the earlier decree remained in tact, the plea of res judicata raised from the respondents' side has rightly been upheld.
5. This petition has no force and the same is accordingly dismissed.