T.R. JUDICIARY 20th Law Office Base: 2019/ 4647 Decision: 2020 / 225 Decision Date: 20.01.2020
JUDICIARY DECISION
COURT: Magistrate’s Court
At the end of the hearing of the case between the parties, the decision of the Supreme Court was requested by the plaintiff’s attorney, and after the decision to accept the appeal petition, which was understood to be in time, the file was examined and the necessary was considered:
DECISION
In the petition, the insured / non-litigation … Furniture Tekstil İnş. Type. Trade Ltd. Şti, the real estate “… Furniture”, which is used as a warehouse, was insured by the client with a package insurance policy between 09/01/2014-09/01/2015, and on 01/10/2014 … Exterior Blocks of the building in B block.
According to the Antalya Metropolitan Municipality firefighter fire report, the fire broke out from the electrical panel on the ground floor of the building.
It was stated in the fire report that the electrical panel in the floor corridor was on fire, there was intense smoke in the building, the residents of the building were trapped on the balconies, and the water coming out of the water installation pipes that burned during the fire, the clients on the side, the company insured … Ltd. Sti. the insured, considering that it will be evaluated within the scope of the coverage
Due to the fact that the client company paid 19,475.00 TL to the workplace at the rate of 100% essential fault of the defendant parties, the damage to the building was caused by fire and the fire broke out.
Since the flat owner is responsible for the damages of the defendant parties due to the fault of the defendants, 19.475.00 TL of recourse compensation will be collected from the defendant parties together with the bank rediscount interest accrued as of 20/01/2015, the payment date of the client company.
The owners were asked to collect jointly and severally in proportion to their shares in the immovable.
With the decision of the court dated 02/10/2015 and numbered 2015/597 E. – 2015/703 K., it was determined that the Alanya Civil Court of First Instance was responsible for the court’s lack of jurisdiction and to look into the file, and the plaintiff’s attorney filed an objection against the decision of non-jurisdiction and the file was sent to the Supreme Court. With the decision of the 17th Civil Chamber of the Court of Cassation dated 01/10/2015 and numbered 2015/10951 E. – 2015/10082 K., it was decided to overturn it.
As a result of the trial held by the court in compliance with the annulment, the case was dismissed due to the absence of hostility, and the judgment was appealed by the plaintiff’s attorney.
According to the 1st paragraph of the temporary article 3 of the HMK numbered 6100; of the regional courts of appeal, the Courts of First Instance of Judicial Jurisdiction and the District Courts of Justice dated 26/9/2004 and numbered 5235.
Pursuant to the provisional article 2 of the Law on Establishment, Duties and Authorities, the provisions of the Law No. 1086 regarding appeal shall continue to be applied until the date of commencement of duty to be announced in the Official Gazette. According to the second paragraph; district courthouse
The provisions of Articles 427 to 454 of the Law No. 1086, before the amendment made with the Law No. 5236 of 26/9/2004, shall continue to be applied until the decisions made before the commencement of office of the courts of law are finalized. Files regarding these decisions cannot be sent to the regional courts of appeal. According to paragraph 3; In cases where regional courts of appeal are assigned in this Law, the provisions of the Law No. 1086, which are not contrary to this Law, shall be applied until the commissioning date of these courts. Pursuant to paragraph (2) of the same article; The provisions of Articles 427 to 454 of the Law No. 1086, before the amendment made with the Law No. 5236 of 26.09.2004, will continue to be applied for the decisions against which an appeal has been filed before the date of commencement of duty of the regional courts of appeal, and the provisions of Article 437 of the HUMK No. 1086 will continue to be applied. The appeal period against civil court decisions is 8 days.
From the examination of the case file; It has been understood that in the short decision and the reasoned decision that the first instance court terminated the proceedings, the time for application to the legal remedy and the authority were specified as the legal remedy of appeal within 2 weeks, and the attorney of the defendant submitted the petition for the remedy according to this specified period.
In the second paragraph of Article 40 of the Constitution, it is stated that the state is obliged to specify which legal remedies and authorities the relevant persons will apply, and their duration. Article 297 of the Code of Civil Procedure No. 6100 “ç.” In accordance with the subparagraph, it is an obligation to show legal remedies and their duration in the provision. The legislator adopts scattered legislation by ensuring that the parties have correct information regarding the legal remedies and the authorities to apply against the transactions established by the state organs and the application period.
It aims to enable individuals who do not know which way to resort to or hesitate to use their right to seek their rights effectively and healthily.
In many of its decisions, the Constitutional Court has also considered that it is reasonable for the applicants to act by relying on the time specified in the reasoned decision, and considering the court’s obligation to show the legal remedy and its duration correctly to the parties, the legislative provisions of the evaluations decided to reject the petition by accepting that the appeal period is the time specified in the law, despite the fact that the court decision has been specified differently. It cannot be accepted that it is within the limits of foreseeability, that the interpretation made is obtained with an excessively formal approach that makes it impossible for the applicants to exercise their right of appeal, and that in this respect, the decision harms the applicants’ right to access the court. has decided that. (The decision of the Constitutional Court with application number 2014/819 and dated 09.06.2016 (published in the Official Gazette numbered 29757 and dated 29.06.2016).
In the concrete case; In the short decision and the reasoned decision by the court of first instance, the duration of legal remedy has been announced as 2 weeks from the notification date of the decision. The reasoned decision was notified to the plaintiff’s attorney on 14/02/2019, and the plaintiff’s attorney applied for legal action against the decision on 28.02.2019 by paying the fees and expenses within the 2-week period specified in the short decision and the reasoned decision. For the stated reason, considering the right to a fair trial and the right to access to justice, it was decided to examine the grounds of appeal of the plaintiff by entering into the merits of the matter, with the acceptance of the timely appeal.
Case
It is related to the request for recourse compensation arising from the workplace insurance.
In order to resolve the dispute, first of all, the obligatory litigation (follow-up) friendship must be disclosed.
Compulsory litigation partnership of more than one person
In cases where it is necessary to file a lawsuit against more than one person or to file a lawsuit against more than one person, it is the case friendship. Companionship arising from material law reasons can be named as colleague in terms of material, and fellowship arising out of procedural law can be named as compulsory fellowship in formal terms. The law, which operates exclusively for the defendants, aims to reveal the truth with all its dimensions and to decide the dispute between the parties in a healthier and more accurate way.
The type of court fellowship that emerges in cases clearly foreseen is called compulsory court fellowship (Tanriver, S. Civil Procedure Law, C 1, Ankara 2016, p. 542). It is necessary to determine whether the lawsuits (proceedings) arising from a disputed legal relationship that leads to litigation in terms of form should be filed against more than one person, according to whether there is a legal provision on this issue. In cases where it is necessary to file a lawsuit against more than one person in accordance with the provisions of the special law, the lawsuit should be filed against all of the defendants. When there are deficiencies in the co-defendants, the present defendant cannot conduct the case alone and no judgment can be rendered about the present defendant until the defect on the defendant side is eliminated. This deficiency is the lack of litigation authority and the case should be rejected procedural (Pekcenıtez, H. /Özekes, M./Akkan, M. Korkmaz, H.T.: Civil Procedure Law C 1, Istanbul 2017, p. 706-707).
However, after examining the information and documents in the file; the main property in question
It is understood that the floor is servitude.
number 634
In article 19 of the Condominium Law, every
It is stipulated that the floor owner is responsible for the damage caused to the main real estate and other independent sections by his fault.
According to article 20/1-b of the Condominium Ownership Law, “The insurance premiums of the main real estate and the maintenance, protection and repair expenses of all common places and other expenses such as the manager’s pension, the operating expenses of the common facilities and the advance to be collected for the expenses are in proportion to their own land share.
obliged to participate.” Although the plaintiff’s attorney requested the collection of the sum paid to the insured in the lawsuit petition, jointly and severally, from the defendants in proportion to their shares in the immovable, the liability of the defendants to be incurred if the plaintiff proves his claim is at the rate of the land share, and in this respect, there is no compulsory litigation friendship between the defendants. Compulsory litigation, deceased
In the case of the heirs of the flat owner …, if they are not included in the case, the case should be rejected out of hostility only for this defendant, and for the other defendants, it should be decided according to the result by going to the merits of the case, but it is not considered correct to dismiss the case entirely due to the absence of hostility.
Moreover, after the lawsuit was filed, the defendant who died during the trial … the lawsuit was dismissed due to the absence of hostility, by giving a definite opportunity to the plaintiff to include his heirs in the lawsuit.
Even if a decision has been made, it cannot be said that the time given is in accordance with the procedure. In order to conclude the cases in a short time and for the justice to be manifested as soon as possible, some judicial actions that need to be done by the parties or the courts are bound to deadlines. As it is known, some of these periods are determined by the law itself, while some are left to the judge to determine according to the nature of the work and the situation of the parties. Legal deadlines are definite, with the exceptions clearly stated. For this reason, as stated in Article 90 of the Code of Civil Procedure No. 6100, the periods determined by the law cannot be reduced or increased by the judge. On the other hand, the periods determined by the judge according to Article 94 of the same Law are not definite as a rule. The judge may reduce or increase the appointed time before it expires, or may choose to grant a new time period upon the party’s request, after the time has passed. In this case, the second deadline given is final. However, the judge may also decide that the time period determined by him is final. In the event that the definite time is determined, there is no doubt that a procedural right will arise for the benefit of the other party. It should be noted right away that it is not possible to carry out a transaction that is not fulfilled within the definite time period, whether it is determined by the law or the judge, after this period has elapsed. Thus missing the exact time; it brings heavy consequences such as not being able to rely on evidence or right, sometimes even causing the loss of the case. In this respect, based on the idea that there is an injustice in the delayed justice, the definite time rule, which is set to prevent the cases from prolonging unnecessarily or being asked to be extended, should be used in accordance with the purpose of the law and should not be considered as a tool for the rejection of the case. First of all, the interim decision regarding the exact time should be written clearly and completely to prevent any misunderstanding, and the work to be done should be specified one by one. In addition, the time given should be sufficient, the ordered works should be necessary and feasible, and the consequences of not complying with the prevailing time should be clearly explained and warned the parties. In the concrete case, in the hearing dated 11/04/2018, the plaintiff party was given a definite time to include the heirs of the defendant … in the case or to make a statement about it.
the claimant party submitted a petition to the court to obtain a certificate of inheritance on 24/04/2018, and was authorized by the court with an interim decision to obtain a certificate of inheritance. Thus, it cannot be accepted that the plaintiff has the purpose of prolonging the case, and at least the outcome of the transaction should be expected, while giving a written decision with the opposite thought necessitated breaking it.
CONCLUSION: For the reasons explained above; With the acceptance of the plaintiff’s attorney’s objections, it was decided by a majority of votes on 20/01/2020 that the judgment be overturned and the appeal fee be returned upon request.
OBJECTIVE VOTE
Although the decisions of the civil court of peace can be appealed within 8 days, since the appeal period was specified as “two weeks” in the short decision by the local court, it should be evaluated in terms of the provisions of the current legislation and legal stability whether the appeal petition submitted by the defendant’s attorney 14 days after the notification of the decision will be accepted within the time limit.
In the judicial activity that starts with the filing of a lawsuit, there are certain actions to be taken by the court and the parties in order to reach the decision, and each action must be done within a certain time frame. These time intervals, which gain a normative value with the procedural provisions, are called duration. Thus, the execution of the procedural procedures is not left to the will and initiative of the parties or the court in a timely manner.
By bringing a dispute to the court, it is transferred to the public sphere and to a platform that is of interest to the society. For this reason, it is beneficial for the society at least as much as the parties to end a lawsuit within a reasonable time.
In that case, the aims to be achieved in civil procedural law with the adoption of time-related norms are; providing justice as soon as possible, preventing arbitrariness, preventing the court from being busy with the same job for a long time, in other words, preventing it from being able to spare enough time for other cases and works; It can be summarized as ensuring the conclusion of the case in a reasonable time in accordance with the supranational and national imperative norms, the execution of the proceedings in a certain order and with a predictable timeliness, in other words, ensuring the fairness of the proceedings.
A significant part of the periods are the ones set for the parties. The parties can or must perform certain transactions within these periods. Transactions that cannot be performed within this period cannot be repeated and will result in negative consequences for the party who missed the deadline. The periods set for the parties are divided into two as the periods specified in the law and the periods specified by the judge. The periods specified in the law are the periods stipulated by the law. Like response time, appeal time. These deadlines are final and whether a transaction is made within the legal time limit.
It is observed by the court ex officio. As a rule, the periods determined by the judge are not precise. (Kuru, Baki, Prof. Dr.; Arslan, Ramazan, Prof. Dr.; Yılmaz, Ejder, Prof. Dr.; Civil Procedure Law Textbook, 22nd Edition Rewritten According to HMK No. 6100, Ankara 2011, p. .749).
The judge determines the time he has appointed, Article 90/2 of the Code of Civil Procedure (HMK) no. 6100. According to the article, after listening to both parties, based on justified reasons, it can reduce or increase. The judge may also decide that the appointed time is final (HMK m.94/2, HUMK m.163).
As stated above, although there are cases where the duration can be determined by the judge, the Judge does not have the power of disposition over the periods determined in the law. In other words, a period prescribed by law cannot be extended or shortened by the judge. The deadlines for appeal are also definite periods regulated by law and must be observed ex officio.
Provisional Article 3 of the HMK No. 6100 (1). clause provision; “Regional Courts of Appeal, Judicial Courts of First Instance and Regional Courts of Justice dated 26/9/2004 and numbered 5235.
In accordance with the provisional article 2 of the Law on Establishment, Duties and Authorities, the provisions of the Law No. 1086 regarding appeal shall continue to be applied until the date of taking office to be announced in the Official Gazette. is in the form.
Article 16 of the Law No. 5236, which reorganized Article 437 of the HUMK numbered 1086. The previous state was “The period of appeal against the decisions of the magistrates’ court is eight days. This period starts to run with the notification of the verdict to each of the parties…” is in the form.
For all these reasons, except for the exceptional cases specified in the law, the judge cannot increase or decrease the periods in the law. According to the provisions of the law still in force, although the appeal period against the decisions of the civil court of peace is 8 days, as a result of the judgment, the judge of the court erroneously states that the decision can be appealed within 2 weeks.
we cannot attend.
