JUDGMENT :

BIREN VAISHNAV, J.

1. These applications have been filed by two parties, namely, Koteshwar Mahadev Hindu Sarvajanik Trust (Plaintiff of Special Civil Suit No. 260 of 1994 before the Court of the Learned Civil Judge (SD) Ahmedabad (Rural), which subsequently came to be transferred to the Court of the learned Senior Civil Judge, Gandhinagar and renumbered as Special Civil Suit No. 302 of 1995, hereinafter referred to as plaintiff of Special Civil Suit No. 302 of 1995/Koteshwar Trust) and Manoramya Resorts and Hotels Pvt. Ltd. (Plaintiff of Special Civil Suit No. 263 of 1994 before the learned Civil Judge (SD), Ahmedabad (Rural), which subsequently came to be transferred to the Court of the learned Senior Civil Judge, Gandhinagar and renumbered as Special Civil Suit No. 303 of 1995, hereinafter referred to as the plaintiff of Special Civil Suit No. 303 of 1995/Manoramya Resorts).

1.1 Since in both the Applications the prayers are identical, the prayer made in Civil Application 1 of 2019 in Special Civil Application No. 3409 of 2007 is quoted and reads as under:

“5. In view of the aforesaid, the Applicant herein humbly prays as under:-

(i) This Hon’ble Court may be pleased to allow the present Application.

(ii) This Hon’ble Court may be pleased to permit the Applicant to file an appropriate application/pursis before the Learned Trial Court and unconditionally withdraw the said Special Civil Suit No. 303/1995.

(iii) For such other and further reliefs as this Hon’ble Court may, n the facts of the present, deem fit.”

1.2 Shortly stated, both the Applicants i.e. plaintiffs of Special Civil Suit No. 302 and 303 of 1995 have approached this court for permission to withdraw the said suits pending before the Courts below. The context of facts in which these applications are made and the stiff opposition by the respondents to these applications need a brief mentioning so as to decide the outcome of these applications.

FACTS IN BRIEF:

2. The dispute pertains to lands in question being lands Survey No. 13 Admeasuring 0-13 Acres-gunthas; Survey No. 151, ad-measuring 129-38 Acres-Gunthas and Survey No. 152, admeasuring 0-14 acres-gunthas and Unnumbered Land 52-18 Acres-Gunthas at Village Koteshwar; District-Gandhinagar. These lands were subject of an Agreement to Sell dated 20.07.1989 executed by the Koteshwar Trust plaintiff of Special Civil Suit No. 302 of 1995 with Manoramya-plaintiff of Special Civil Suit No. 303 of 1995.

2.1 The Trust, on 3.11.1994 by a Civil Suit renumbered as Special Civil Suit No. 302 of 1995 against Manoramya, Bholabhai Patel and Sanjay Lalbhai sought cancellation of the Agreement to Sell dated 20.07.1989. The prayers in the suit were:

“30. The plaintiffs pray for the following reliefs:

(i) That it be declared that the agreement to sell dated 28.07.1989 has been validity terminated and the amount of Rs. 7,50,000 paid by the second defendant to the plaintiffs have been legally forfeited.

(ii) It be declared that the alleged illegal power of attorney dated 29.7.1989 was without consideration and was obtained by the first and the second defendants by misrepresentation and that the revocation of the same by the plaintiffs is legal and proper.”

2.2 Manoramya, the defendant of Special Civil Suit No. 302 of 1995 instituted a cross suit being Special Civil Suit No. 303 of 1995 on 24.11.1994 against Koteshwar Trust seeking specific performance of the Agreement to Sell dated 20.7.1989. The prayers in the Special Civil Suit No. 303 of 1995 read as under:

“20. The plaintiffs therefore pray that:

(A) That the defendants and their successors in office from time to time may be ordered and directed to specifically perform their part of the obligation under the said banakhat dated 20.07.1989 and after clearing the title over the suit property and making the same clear and marketable and free from reasonable doubt, convey the property by a registered sale deed and obtain the balance of consideration from the plaintiff.

IN THE ALTERNATIVE

(B) I