T.C.
JUDGMENT
GENERAL ASSEMBLY OF LAW
E. 2011/14-289
K. 2011/335
T. 18.5.2011
– COMPENSATION DUE TO UNFAIR EXECUTION PROCEEDINGS AND FILING OF AN UNFAIR LAWSUIT (THE MATERIAL AND LEGAL FACT THAT THE SIGNATURE UNDER THE EVICTION COMMITMENT DETERMINED AND FINALISED IN THE EVICTION CASE DOES NOT BELONG TO THE PLAINTIFF CONSTITUTES A FINAL JUDGEMENT FOR THE CASE AT HAND)
– PECUNIARY AND NON-PECUNIARY DAMAGES (DUE TO UNFAIR EXECUTION PROCEEDINGS AND FILING OF AN UNFAIR LAWSUIT – THE MATERIAL AND LEGAL FACT THAT THE SIGNATURE UNDER THE EVICTION COMMITMENT DETERMINED AND FINALISED IN THE EVICTION CASE DOES NOT BELONG TO THE PLAINTIFF CONSTITUTES A FINAL JUDGEMENT FOR THE CASE AT HAND)
– THE SIGNATURE UNDER THE FINALISED EVICTION UNDERTAKING (THE MATERIAL AND LEGAL FACT THAT IT DOES NOT BELONG TO THE PLAINTIFF CONSTITUTES A FINAL JUDGEMENT FOR THE CASE AT HAND)
– FINAL JUDGEMENT (COMPENSATION DUE TO UNFAIR EXECUTION PROCEEDINGS AND FILING OF AN UNFAIR LAWSUIT – THE MATERIAL AND LEGAL FACT THAT THE SIGNATURE UNDER THE EVICTION COMMITMENT DETERMINED AND FINALISED IN THE EVICTION CASE DOES NOT BELONG TO THE PLAINTIFF CONSTITUTES THE MATERIAL AND LEGAL FACT IN TERMS OF THE CASE AT HAND) 818/M.41,49,61 1086/M.237,275
SUMMARY : The lawsuit is related to the claim for compensation of pecuniary and non-pecuniary damages incurred due to unfair execution proceedings and unfair litigation.
The material and legal fact that the signature under the evacuation commitment, which was determined and finalised in the evacuation case in the civil court of peace with the same parties, does not belong to the plaintiff, constitutes a final judgement for the case at hand.
It is indisputable that there is no need to discuss the fact that the signature belongs to the plaintiff in the present case and that there is no need to obtain an expert report on this issue again. Obtaining the report does not remove the results of the final judgement. It is contrary to the procedure and the law for the court to ignore this issue, to obtain an expert report in the case at hand and to reject the compensation case at hand by accepting that the signature in the eviction undertaking is the product of the plaintiff’s hand according to this report, which expresses a contrary opinion.
LAWSUIT : At the end of the trial held due to the “compensation” lawsuit between the parties; Upon the request of the plaintiff’s attorney to examine the decision dated 24.12.2008 and numbered 2007/492 E-2008/479 K, which was given by Ankara 10th Civil Court of First Instance on the rejection of the lawsuit,
Upon the decision of the 4th Civil Chamber of the Court of Cassation dated 18.3.2010 and numbered 2009/6564 E-2010/3097 K, upon the request of the plaintiff’s attorney for correction of the decision, with the decision of the 4th Civil Chamber of the Court of Cassation dated 8.7.2010 and numbered 2010/6760 E-8326 K;
( … The lawsuit is related to the claim for compensation of pecuniary and non-pecuniary damages incurred due to unfair execution proceedings and unfair litigation. The request was rejected by the local court. Upon the appeal of the plaintiff, the decision was approved by our Chamber. The plaintiff requested the correction of the decision.
The plaintiff, who is the tenant of the defendant, stated that the signature under the eviction commitment submitted as a basis for the enforcement proceedings initiated by the defendant and the eviction case filed in the civil court of peace does not belong to him; upon his objection to the execution proceeding filed by the defendant in the civil court of peace upon his objection to the execution proceeding filed in this regard, it was understood that the signature did not belong to him as a result of the signature examination made in the cancellation of the objection and eviction case filed by the defendant in the civil court of peace, and that the eviction request was rejected, and that he suffered moral damages due to the execution proceeding and eviction case filed by the defendant using a forged document, and material damages due to the fact that he lost his work and strength and made some expenses due to the execution proceeding and eviction case.
The defendant, on the other hand, argued that the elements of pecuniary and non-pecuniary damages did not occur in the case and that the signature under the eviction undertaking belonged to the plaintiff and defended that the claim should be rejected.
The local court decided to reject the claim on the grounds that the expert report in the case at hand stated that the signature belonged to the plaintiff.
In the cancellation of the objection and eviction case filed by the defendant in the civil court of peace, the defendant’s eviction request was rejected on the grounds that it was determined by the expert report that the signature under the document containing the eviction commitment did not belong to the plaintiff C. Ö. and the decision became final without appeal.
Since the material and legal fact that the signature under the eviction commitment, which was determined and finalised in the eviction case in the civil court of peace, the subject and parties of which are the same, does not belong to the plaintiff, constitutes a final judgement for the case at hand; there is no longer any need to discuss the fact whether the signature belongs to the plaintiff in the case at hand and to obtain an expert report.
It is in accordance with the ordinary course of life that the plaintiff is morally affected and financially affected and spends time, labour and money due to the enforcement proceedings and the eviction lawsuit filed on the basis of the eviction commitment, which is determined by the judicial decision that the plaintiff did not sign. In this case, the defendant should be held responsible for the financial and moral compensation to be determined.
Since the rejection of the plaintiff’s claim for pecuniary and non-pecuniary damages by the local court, without considering the facts explained above, is not in accordance with the procedure and the law, the decision should be reversed, but since it has been approved, the plaintiff’s request for correction of the decision should be accepted, the approval decision of our Chamber should be reversed and the decision should be reversed for the reason explained above…),
The case was reversed and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
After it was examined by the H.G.K. and it was understood that the decision to resist was appealed in due time and after the papers in the file were read, the necessity was discussed:
DECISION : The lawsuit is related to the claim for compensation of pecuniary and non-pecuniary damages incurred due to unfair execution proceedings and unfair litigation.
The plaintiff stated that the signature under the eviction commitment submitted as a basis for the enforcement proceedings initiated by the defendant and the eviction lawsuit filed in the civil court of peace did not belong to him, and that the request for eviction was rejected as a result of the signature examination in the cancellation of the objection and eviction lawsuit filed by the defendant upon his objection to the enforcement proceedings filed in this regard, The defendant claimed that the plaintiff suffered moral damages due to the execution proceedings and eviction lawsuit filed by the defendant using forged documents, and financial damages due to the loss of work and strength and making some expenses, and requested a decision to collect the damages with interest, reserving its rights regarding the excess.
The defendant defended that the elements of pecuniary and non-pecuniary damages did not occur in the incident, the signature under the eviction commitment belonged to the plaintiff and the lawsuit was rejected.
The court decided to dismiss the case on the grounds that it was determined that the signature belonged to the plaintiff in the expert report received in the case at hand.
The decision was appealed by the plaintiff.
Upon the appeal of the plaintiff, the Special Chamber upheld the decision of the court; and upon the plaintiff’s request for correction of the decision, this time; the material and legal fact that the signature under the eviction commitment, which was determined and finalised in the eviction case in the civil court of peace, the subject and parties of which are the same, does not belong to the plaintiff, constitutes a final judgement for the case at hand, there is no need to discuss the fact whether the signature belongs to the plaintiff in the case at hand and to obtain an expert report, and the defendant should be held responsible for the material and moral damages to be determined and the decision of the local court was reversed.
The local court resisted its previous decision and the judgement was appealed by the plaintiff’s attorney.
The dispute centres on whether the signature under the eviction commitment dated 31.5.2006, which is subject to the case in the Civil Court of Peace, belongs to the plaintiff or not; whether the material and legal fact in that case constitutes a final judgement in terms of the case at hand or not; and whether the expert report received by the local court can be valued or not.
In the case file of Ankara 1st Civil Court of Peace dated 2.10.2007 and numbered 2007/658 E. 1966 K.: In the cancellation of the objection and evacuation case filed by the defendant company against the plaintiff C. Ö., it is evident that the signature on the evacuation commitment letter dated 31.5.2006, which was subject to enforcement proceedings, was determined by the expert report that it did not belong to C. Ö., and the rejection decision of the court for this reason became final without appeal.
The material and legal fact that the signature under the eviction undertaking, which was determined and finalised in the eviction case in the civil court of peace with the same parties, does not belong to the plaintiff, constitutes a final judgement for the case at hand.
For this reason, it is undisputed that there is no longer any need to discuss the fact whether the signature belongs to the plaintiff in the present case and to obtain an expert report on this issue again. Obtaining the report does not remove the results of the final judgement.
As such, it is contrary to the procedure and the law for the Court to ignore this issue, to obtain an expert report in the case at hand and to reject the compensation case at hand by accepting that the signature in the eviction undertaking dated 31.5.2006 is the work of the plaintiff according to this report, which expresses a contrary opinion.
Therefore; the decision of resistance should be reversed.
CONCLUSION : It was unanimously decided on 18.05.2011 with the acceptance of the appellate objections of the plaintiff’s attorney that the decision of resistance shall be reversed for the reasons stated above and in the Special Chamber’s reversal decision.
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