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Peter Taylor and Associates Vs. Bell Estates (Pty) Ltd. and Another

Court : South Africa Supreme Court of Appeal

..... concurring): [1] the narrow issue in this appeal is whether service of a notice of joinder, in terms of rule 10(3) of the uniform rules of court, on the appellant (taylor) interrupted prescription as envisaged by s 15(1) of the prescription act 68 of 1969 (the act).the court below (kwazulu natal high court, per madondo j) found that it did and that the claim of the first respondent (bell estates) against the appellant ..... the plaintiffs in respect of the indemnity were taken expeditiously - within 18 months of the storm damage.5 [14] in naidoo, meskin j accepted howie js conclusion in allianz that for the purposes of interrupting prescription it is sufficient if the process to be served is one whereby the proceedings begun thereunder are instituted as a step in the enforcement of a claim for payment of the debt.6the two plaintiffs in ..... the connection between the action in which the declarators were sought and the second claim for payment of the debt was sufficiently close to interrupt prescription, was that the judgment in the action for the declarators would finally dispose of some elements of the claim, the remaining elements to be ..... would thus be a fruitless exercise as the claim against him had prescribed.2 [5] section 15(1) and (6) of the act provide: judicial interruption of prescription (1) the running of prescription shall, subject to the provisions of subsection (2), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt. .....

Arendsnes Sweefspoor Cc Vs. Dalia Marcelle Botha

Court : South Africa Supreme Court of Appeal

..... (2) unless the debtor acknowledges liability, the interruption of prescription in terms of subsection (1) shall lapse, and the running of prescription shall not be deemed to have been interrupted, if the creditor does not successfully prosecute his claim under the process in question to final judgment or if he does so prosecute his claim but abandons the judgment or the judgment is ..... if it was not, it did not interrupt the running of prescription and the appeal must succeed. ..... and that the law must be consequent by declaring that the running of prescription could not have been interrupted. ..... if it is, the appellants special plea of prescription is without merit and was correctly dismissed by the court a quo. ..... the defendant, inter alia, raised a special plea to the effect that the plaintiffs claim has prescribed in terms of the provisions of s 12 of the prescription act 68 of 1969 (the act). ..... it reads: (1) the running of prescription shall, subject to the provisions of subsection (2), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt. ..... [2] the question raised in this appeal is whether the service of the summons on the defendant on 14 december 2006 was good and served to interrupt the running of prescription against the plaintiff. ..... [27] in considering this argument, it must be remembered that even where peremptory formalities are prescribed by statute, not every deviation from the literal prescription results in nullity. .....

Jose Da Costa and anr. Vs. Bascora Sadashiva Sinai Narcornim and anr.

Court : Supreme Court of India

Reported in : AIR1976SC1825; (1976)3SCC766; [1976]3SCR1067

..... code is as follows:when, however, the possession of immovable property or rights to immovable property referred to in the foregoing article has lasted for a period of 30 years, prescription will operate; and no mala fide or absence of title can be averred, except the provisions of article 510. 26. ..... thus:one who possesses a thing in another's name cannot acquire it by prescription except if the title of possesion has been inverted, either due to an act of a third party, or by objection raised by the possessor to the right of the other in whose name he was possessing it and not refuted by the latter; but in such event the prescription shall run from the date of inversion of the title. ..... article 528 reads thus 'in the absence of registration of possession or title of acquisition, prescription with respect to immovable property or rights to immovable will operate by virtue of possession for ..... of the land in suit for a long number of years and having constructed their house on a portion of the land only in the year 1920, sought to establish the title to the property 'by virtue of the prescription that operated in their favour' (see paragraph 3 of the plaint).34. mr. ..... judicial commissioner and this court by its order dated august 1, 1975, which has since been reported in : air1975sc1843 , remanded the appeal to the judicial commissioner for a finding on the plea of prescription raised by the defendants by observing as follows:the plea of prescription goes to the root of the matter. .....

ibrahimkutty Koyakutty Vs. Abdul Rahumankunju Ibrahimkutty and ors.

Court : Kerala

Reported in : AIR1993Ker91

..... is not one of the ordinary rights of ownership, it is necessary that either party claiming or relying on an easement shouldplead the nature of his title thereto so as clearly to show the origin of the right, whether it arises by statutory prescription, or express or implied grant, or the old common law method of a lost grant'.mulla - code of civil procedure (14th edn. ..... the servient owner or a stranger, a party cannot safely allege his right to an easement generally, but should state specifically the manner in which he claims title to the easement, whether by grant (actual or lost), prescription at common law, or under the prescription act, and in many cases it is advisable to plead, alternatively, a title by all three methods. ..... page 986, states the law thus :'easement -- a party claiming or relying on an easement should plead the nature of the title thereto, so as to clearly show the origin of the right, whether it arises by statutory prescription or express or implied grant, or the old common law method of a lost grant. ..... whether the mere existence of pathway is sufficient to acquire an easement by prescription under section 15 of the easements act when proving the other the ingredients mentioned in ..... but, with regard to the right of easement by prescription, both the courts below have concurrently found in favour of the plaintiffs, based on ..... , the learned district judge held that the plaintiffs have a customary easement and also an easement by prescription which can be inferred. .....

imperial Bank Limited Vs. Hendrick Jacobus Rust Barnard N.O. and Other ...

Court : South Africa Supreme Court of Appeal

..... an opposed application for an amendment to a summons the fundamental question a court should consider is whether or not the service of the summons in the previous action on the respondent interrupted the running of prescription of the applicants rights against the respondent.8and in considering whether or not prescription was interrupted by service of the previous summons the right sought to be enforced by means of the amendment must be the same or substantially the same right as originally sought to be enforced, (f)or the substance ..... for costs or by some other suitable order such as a postponement.5an amendment would cause prejudice if, for example, its effect would be to deprive the other party to the action of the opportunity to raise an otherwise good plea of prescription.6thus, a late amendment which has the effect of introducing a new cause of action or new parties would inevitably cause prejudice to the other party in the action, as it would defeat an otherwise good defence ..... this court held that the summons did not constitute a process whereby the creditor claimed payment of the debt and that the running of prescription in respect of the debt was accordingly not interrupted by service of the summons on the defendant.11 [12] in the present matter the particulars of claim disclose that the right sought to be enforced against the appellant arose from an agreement of .....

Charles Robert Macleod Vs. Babalwa Kweyiya

Court : South Africa Supreme Court of Appeal

..... . in gericke v sack 1978 (1) sa 821 (a) 827d-e the court stated: it will at times be difficult for a debtor who pleads prescription to establish the date on which the creditor first learned his identity or, for that matter, when he learned the date on which the delict ..... . a creditor cannot simply sit back and by supine inaction arbitrarily and at will postpone the commencement of prescription.4 what is required is merely the knowledge of the minimum facts that are necessary to institute action and not all the evidence that would ensure the ability of the creditor to prove its ..... in his plea the appellant denied knowledge of those facts and also filed a special plea of prescription contending that between 1997 (at the time the claim was settled with the raf), 1998 (at the time the final account was rendered to the respondents mother), by at least april 2002 (when ..... has repeatedly stated that a defendant bears the full evidentiary burden to prove a plea of prescription, including the date on which a plaintiff obtained actual or constructive knowledge of the ..... . it is the negligent, and not an innocent inaction that s 12(3) of the prescription act seeks to prevent and courts must consider what is reasonable with reference to the particular circumstances in which the plaintiff found ..... in her particulars of claim she anticipated a possible plea of prescription by stating that she only became aware of the terms of the settlement agreement when she received the e-mail from ms stroud on .....

Burroughs Wellcome (i) Ltd. Vs. American Home Products and anr.

Court : Mumbai

Reported in : 2002(25)PTC747(Bom)

..... dropovit case as decided by the supreme court; (e) the fact that merely because two rival drugs are sold which require doctor's prescription but this fact alone is not sufficient to prevent confusion if it is likely to occur ; (f) english cases proceedings on the english way of pronouncing as english word by englishmen is not always the same and may not be ..... (c) the second respondent in holding that the goods which be available only on the doctors prescription and dispensed by the chemist/pharmacists ought not to have placed great emphasis on that aspect in view of the conditions in india and considering the ratio of the judgment of the apex court in cadila ..... 1 that from the judgement itis not possible to spell out that doctor's prescription aspect must not be considered atall or that it is not one of the surrounding circumstances which should be ..... in india scheduled drugs which are to be sold under doctor's prescription are even sold without production of doctor's prescription and as such reduces the weightage that can be given to this aspect of the matter while considering ..... in case where the fact of the medicines being sold on doctor's prescription has been taken into consideration for deciding there was no likelihood of confusion being created, the marks were not ..... pharma limited (supra) in the matter of doctor's prescription this court observed as under :'in my view, in the present circumstances, doctor's prescription factor has lost its importance since the reality of the .....

Jivanlal S/O Kannaiyalal Paliwal Vs. Krishnarao D. Sathone

Court : Mumbai

Reported in : AIR2004Bom89

..... the parties had come to the conclusion that the defendant has obstructed the way by digging ditch on the way, but the plaintiff has failed to establish that he has acquired easement by prescription and, as such, is not entitled to the relief of declaration and injunction and consistent with these findings he dismissed the suit. ..... in the present case, the plaintiff has proved that he has acquired the right of easement by prescription under section 15 of the act and that the acquisition was being used as of a right within two years of the institution ..... mode, the period of 20 years or over must end within 2 years next before the suit's institution wherein claim to the easement is contested; it necessarily implies that the right of easement by prescription cannot become absolute unless contended and established in a suit. ..... the right of way claimed by the plaintiff cannot be said to have ripened into acquisition by way of prescription and hence the suit is liable to be dismissed with costs.4. ..... thus, in a suit for injunction; based on a prescriptive easement, the plaintiff must also seek a declaration that he has so acquired the prescriptive right of easement and this is what exactly has been done by the plaintiff while instituting the suit for ..... the evidence on record in proper perspective and has recorded the finding that the user of the disputed way was only permissive and that the plaintiff did not acquire an easement by prescription within the meaning of section 15 of the easement act. .....

Puttegowda @ Ajjegowda Vs. Ramegowda

Court : Karnataka

Reported in : ILR1996KAR465; 1996(5)KarLJ306

..... duty of the trial court as well as the appellate court to examine the plaintiff, where, necessary allegations have been made without indicating the necessary ingredients on the basis of which the right of easement by necessity or easement by prescription is claimed and the allegations are not clear or lack in particulars and to have recorded the statement by way of explanation and clarification under order x of the code of civil procedure or if plaintiff would have desired to amend ..... learned counsel for both the parties pointed to me out that the trial court had decreed the suit not on the basis of right of easement by prescription nor have recorded any finding that the plaintiff had acquired rights by way of easement of prescription by 20 years use, as there is no finding being recorded by the trial court or by the appellate court. ..... defendant - appellant.that as regards the merits of the case, learned counsel for the respondent plaintiff submitted that his client primarily claimed the right of pathway as easement of necessity as well as on the basis of easement by prescription and the courts found that the plaintiff is entitled to the right of way or pathway. ..... , sections 34, 37, 38, 40 and 41 had not been brought to the notice of the learned single judge, nor their effect been considered by the learned single judge, while observing that it is necessary in a suit for injunction based on prescriptive right that plaintiff should seek his declaration that he has acquired the rights.12. .....

Telecom Employees Co-operative Housing Society Ltd. Vs. Scheduled Cast ...

Court : Karnataka

Reported in : ILR1990KAR3320

..... thus, we conclude that when power is made available conditional upon prescription, the phrase 'subject to' in the context meaning only conditional upon, the exercise of power in the absence of such prescription is illegal.in this connection we may also note section 37 which says that subject to such limitations and conditions as it may impose and to the provisions of the act the government may transfer to and vest ..... but we will consider from a larger point of view whether, when there is no prescription the bda can transfer the properties as it likes, in which event, whether the individual action of transfer could be examined on merits or it could be determined whether it is ..... where the rules in a particular case require the prescription of form, failing such prescription it could not be said that the demand for tax ..... will be, if these are taken to be the prescriptions they alone shall prevail with regard to any transfer. ..... erode : air1968mad274 where again 'subject, to prescription of rules' came up for consideration, in the absence of such prescription it was held the power was unavailable. ..... which under the madras entertainments tax act, 1939, the question arose whether undersection 78 the power given in terms of that section could be exercised only within the time prescribed and if no such prescription was made whether the power could be exercisable? ..... fortiori it cannot be contended that in the absence of prescription of such restrictions or conditions the power is unavailable. .....