In a case that is being heard in Civil Courts, the parties to the case may make some savings on the subject of the case. The provisions to be applied differ according to the nature of the party making the savings.
In case of transfer of the subject matter of the lawsuit by the defendant, the plaintiff party has been granted two electoral rights. The first right of choice is the right to continue the case against the person who has inherited the subject matter of the case by giving up the case with the transferring party if the plaintiff wishes. In this case, the case is considered as a continuation of the old case, and the new defendant is bound by the procedural procedures carried out. With the opening of the lawsuit, the statute of limitations or reduced periods of rights remain valid from the date of opening the first lawsuit. The second optional right that the plaintiff can use is the right to turn his case into a compensation case against the transferring party if he wishes. If the plaintiff turns his case into a compensation case against the first defendant, this case is again considered as a continuation of the first case filed.
The legislator has made arrangements about the outcome of the trial expenses if the plaintiff party exercises the right of first choice. If the plaintiff wins the case, the persons who transferred and took over the subject matter of the case will be severally responsible for the costs of the trial. If the subject of the lawsuit is transferred by the defendant, if the plaintiff does not exercise any of his electoral rights, it is assumed that the plaintiff has not followed the case. HMK m.according to 150, it is decided to remove the file from the process.
If the subject matter of the lawsuit is transferred by the plaintiff after the opening of the case, the person who took over takes the place of the plaintiff in the case being heard and the case continues where it left off. The important point here is that the new plaintiff cannot request a repeat of the previous procedural procedures. The new plaintiff continues the first case filed in the same way. 14 Of the Court of Cassation on the transfer of the subject matter of the case. There is a decision of the Legal Department(14. HD., E . 2016/9327 K. 2017/156 T. 11.1.2017). The mentioned decision;
“The judgment was appealed by the defendant’s attorney against the plaintiff.
After a lawsuit has been filed, it is also possible to transfer the rights or property that are the subject of the lawsuit to third parties in accordance with the savings authority that is possessed. In this case, since the authority to pursue the case, which is a condition of litigation, has disappeared, it is unthinkable for the case to continue as it was opened.
125/2 of the CCP No. 6100. according to the article, “After the opening of the case, if the subject of the case is transferred by the plaintiff, the person who took over takes the place of the plaintiff in the case being heard and the case continues where it left off.”
The assignment of the subject matter of the case to a third party will be taken into account by the court ex officio. However, the judge did not dismiss the case due to the disappearance of the lawsuit requirement and 125 of the CCP, which is an exception to the prohibition of changing the case or defense. in accordance with the article, he will give priority to the other party to exercise his right of election.
In the concrete case; in the examination of the land registry record in the file, some of the owners of the independent sections of the immovable property No. 9 parcel subject to the lawsuit have changed. In this case, the court in accordance with the principles described above and in accordance with Article 125/2 of the CCP numbered 6100. in accordance with the article, it must be decided for the plaintiff to continue the case where he left off by having the new owners duly included in the case in their presence. It is not correct for the case to be heard and concluded in the presence of the person who transferred the immovable property. By the court, HMK 125. in accordance with the provision of the article, the decision had to be overturned in order to be processed.”
19 Of the Court of Cassation on the transfer of the subject matter of the case. There is a decision of the Legal Department (19. HD., E . 2015/3020 K. 2015/6481 T. 30.04.2015). The mentioned decision;
“Since the plaintiff’s attorney will receive TL 36,174.06 from the balance of the invoice amount of TL 40,674.06 by the defendant company against his client, place a bet, Ankara 27.Paying paid attention to the fact that the Enforcement Directorate initiated enforcement proceedings with the tracking file numbered 2013/1482, the payment order was notified to the client on 18.02.2013 and the tracking was finalized, the client’s signature and stamp were not found on the invoice shown, the goods subject to the invoice were not delivered to the client’s firm, there was not even a contract between the parties for the payment of the price in exchange for the purchase of goods and services. Dec., the client requested and sued to determine that the company is not in debt and to decide on compensation for malicious pursuit at the rate of 20%.
The defendant’s attorney requested that the case be dismissed.
The court stated that the burden of proof in the case is on the defendant seller, the defendant seller is obliged to prove the existence of the sales contract and the delivery of the goods under the tracking basis invoice to the plaintiff, the defendant party has not submitted any evidence, but an expert examination has been conducted on the commercial books of the party in accordance with Article 222/1 of the CCP, taking into account that the case is a commercial case, the report states that the tracking basis invoice is not registered in the plaintiff’s books, but is registered in the defendant’s wage book, the basis of the follow-up is that the delivery area part of the invoice with the delivery note is empty, therefore, the existence of the contract and the delivery of the goods with the invoice cannot be proved, and again the defendant’s malfeasance in the follow-up cannot be proved by the plaintiff, the acceptance of the case, the plaintiff’s to the defendant Ankara 27. The determination that the Enforcement Directorate is not indebted from the follow-up file numbered 2013/1482 was appealed by the party attorneys within the period of the judgment regarding the rejection of the plaintiff’s claim for compensation for bad faith.
Ankara 27, which is included in the case file. From the examination of the Enforcement Directorate’s follow-up file numbered 2013/1482, it is understood that the subject of the follow-up has been assigned while the trial is ongoing.
HMK. m. 125/f.I, “If, after the opening of the case, the defendant party transfers the subject matter of the case to a third party, the plaintiff may exercise one of the following powers:
a) If he wishes, he gives up his case with the transferring party and continues the case against the person who has inherited the subject matter of the case. In this case, if the plaintiff wins the case, he becomes severally responsible for the costs of the trial that transferred and took over the subject of the case.
b) If he wishes, he converts his case into a compensation case against the transferring party.” he superintends its arrangement.
Although the court should ask the plaintiff in which direction he will exercise his right to choose in accordance with the aforementioned provision, and a decision should be made by continuing the trial according to the result, it is contrary to procedure and the law to make a decision without taking into account this aspect.”