A counterclaim is defined as a lawsuit filed by the defendant of a lawsuit that has been filed and is being heard against the plaintiff in the same court. According to the definition, the existence of a case that has been opened and is being heard first of all is essential for a counterclaim. The other condition is that there must be a clearing or Decoup Decoupling relationship between the claim put forward in the main case and the subject of the counterclaim, or there must be a connection between these cases. When making an assessment about the connection between the cases, HMK m. Dec.it is necessary to look at 166/4. According to the regulation of the law, if the cases arise from the same or similar reasons, or if the judgment to be given about one of them is of a nature to affect the other, the connection is considered to exist. The legislator has assumed that there is also a connection in the exchange or offset relationship. A barter is a request for the Decoupling of a legal dispute between them by informing that the defendant who filed the counterclaim is a creditor from the plaintiff of the original case. Decoupment, on the other hand, includes the request of the defendant who filed the counterclaim from the plaintiff of the main case to review and reduce the debt and debt relationship between them. However, there is one thing that needs to be taken into consideration here. It should be found that the defendant who filed the counterclaim will receive more than the plaintiff who filed the main lawsuit. If the amount of the receivable is less, in the main case, if the defendant puts forward the defense that he should do in the counterclaim, in my opinion, it will be appreciated by the judge that there is no legal benefit.
If there is no exchange or offset or other connection between the main case and the counterclaim, the judge will decide to Decouple the counterclaim from the main case at the request of the plaintiff or upon examination by himself, and if necessary, to send the file to the court in charge. HMK m.in the last paragraph of paragraph 132, “A lawsuit cannot be filed against a counterclaim.” There is an arrangement in the form of. Due to this regulation, there is no possibility to file a lawsuit against the counterclaim. The basic logic of the legislator introducing this paragraph is that the situation in question has no legal benefit.
THE MANNER AND DURATION OF OPENING OF THE COUNTERCLAIM
The legislator HMK m. in 133, he made arrangements about the manner and duration of opening the counterclaim. According to the regulation of the law, the counterclaim is filed with a response petition or by submitting a separate petition within the response period to the merits. Accordingly, the response time to the merits, in the written trial procedure and in the simple trial procedure, is usually two weeks from the date of notification of the petition to the defendant. In cases where the response period is extended by the court, it is also possible to file a counterclaim within an additional period. Oct. If the deadlines specified in the first paragraph of the law are missed, the fate of what will happen is regulated in the second paragraph of the same article. According to the regulation, if a counterclaim is filed after its expiration date, the court decides to separate the cases. The Court of Cassation related to this 3. There is a decision of the Legal Department (3. HD., E . 2016/1440 K. 2016/5213 T. 5.4.2016). The mentioned decision;
“The counterclaim shall be filed in the court where the main case is being heard with the response petition filed in the main case or by filing a separate petition within the response period to the merits.(HMK m.133/1) The counterclaim, although it is filed in the same court for the main case, is a separate (separate) case. Therefore, counterclaims are subject to fees just like separate (independent) lawsuits. (The Law of Fees m.6/1) It shall not be deemed that a counterclaim has been filed without the deposit of the fee and the provisions of the counterclaim shall not be applied.
If the counterclaim is filed after the deadline for responding to the merits has passed, the court decides to separate the cases on request or spontaneously.
In the concrete case, it is understood that the response and counterclaim petition was filed by the defendant counterclaim party to the parties on 22.09.2015 after the deadline of 13.10.2015, the rejection of the request for child support increase in relation to the main case; in the counterclaim, the cancellation of subsidiary child support, if not, the cancellation of discount and poverty child support was requested, as a result of the court trial, the partial acceptance of the main case was decided, and the counterclaim was rejected by wager, since it was not filed in time. However, HMK’s 133/2. according to the regulation contained in the article, in this case, while it should be decided to separate the counterclaim from the original case and register it on a new basis, it was not found correct to reject the counterclaim by betting because it was not filed during the period.”
TUITION IN THE COUNTERCLAIM
Another thing that should be known about the counterclaim is that the lawsuit is subject to fees. According to article 6 of the Law on Fees, counterclaims are subject to fees just like individual lawsuits. The defendant is obliged to deposit his fee when he applies to open a counterclaim. What happens if the fee is not deposited is regulated in the Fees Law. Article 32 of the Law on Fees states that if the fee is not deposited, subsequent transactions cannot be made. The counterclaim is referred to by the number of the relevant case file in the court where the main case is being heard, and the main number is not given for the counterclaim either. The court examines the main case and the counterclaim together, and also conducts the preliminary examination and investigation phases together. In this respect, the procedural actions taken by the parties and the court shall be carried out for both cases. The court, which makes a judgment by examining the main case and the counterclaim together, makes a single judgment about both cases. The court gives its judgment on the main case and the counterclaim separately. The Court of Cassation on this issue is 6. There is a decision of the Legal Department (6. HD., E . 2014/12504 K. 2015/1282 T. 12.02.2015). The mentioned decision;
“After the lawsuit was filed on 29/05/2014, the defendants filed a counterclaim together with an answer petition. HMK.of 132.since the counterclaim filed according to the article is a separate separate case, the court is obliged to attach the counterclaim to a positive and negative decision, and the decisions made about the main case and the counterclaim should be shown separately in the provision paragraph. Without taking into account this issue, it is contrary to the procedure and the law that the decision made on each case is made in writing without showing the verdict.
The judgment must therefore be overturned.”