Civil Chamber 2009/5037 E., 2010/8390 K
“Jurisprudence Text”
COURT: Bursa 2nd Civil Court of First Instance
DATE: December 25, 2008
NUMBER: Case number: 2007/250 Decision number: 2008/571
Although the plaintiff appealed the judgment issued by the local court at the end of the trial between the parties, requesting a hearing, the court decided to reject the request and conduct a review of the documents, as it was not a matter requiring a hearing as specified in Article 438/1 of the Code of Civil Procedure. The documents were examined and the necessary discussion and consideration was given.
The person whose photograph is attached to the plaintiff’s “Life Certificate” dated May 14, 2008, issued by the Turkish Embassy in Riyadh, is our citizen, S..İşçil. He is alive, resides in Riyadh at the address shown on this document, and has been known to Embassy personnel for a long time. The plaintiff’s witness, A..H.. T.., stated that he has known the plaintiff since 1990, that he works in Saudi Arabia, and that he oversees his affairs in Turkey as his representative. This witness’s statement is corroborated by the power of attorney issued by the Riyadh Embassy dated May 2, 2007, to the plaintiff. The identification information on the plaintiff’s identity card, obtained from the Riyadh Embassy on May 2, 2007, for “renewal,” is identical to the identification information on the civil registration extract dated October 5, 2005, in the absence file. With the evidence gathered, it has been proven beyond doubt that the person against whom the judgment of absence was issued on November 14, 2006, is the plaintiff. In this case, the court should have decided to overturn the judgment, but the denial of the request was deemed inappropriate.
RESULT: The appealed judgment is REVERSED for the reasons stated above, the advance appeal fee is refunded to the depositor, and the court has decided by unanimous vote in reversal and by majority vote in the reason, with a possibility of rectification within 15 days of notification of this judgment. April 27, 2010 (Tuesday)
DISSENTING VOTE
The evidence gathered is not sufficient to prove beyond doubt that the person against whom the judgment of absence was issued is the plaintiff. Therefore, the court considers it beneficial for the plaintiff to appeal. However, considering the reasons stated in the response to this matter, while a decision should be made based on the outcome, with a reasonable time allowed for the plaintiff’s presence, I disagree with the majority decision, considering that it is inappropriate to issue a written dismissal without considering this matter.
DISSENTING VOTE
In order to determine that the plaintiff, S.. İ.., who claimed not to be absent and requested the annulment of the decision of absence, was alive and his identity could be established beyond doubt, the local court deemed it necessary for the defendant to be heard in person. The plaintiff, having failed to attend the hearing within the allotted time and thus failing to comply with the request, dismissed the case. The plaintiff argued that he was and is living in the Kingdom of Saudi Arabia, and that due to this foreign country’s law restriction, he was unable to come to Turkey at the requested time, and therefore failed to comply with the request. Therefore, the plaintiff and his attorney should have been asked to provide a reasonable timeframe within which they could have lifted the obstacle and ensured the plaintiff’s personal attendance in Turkey. Instead, an evaluation should have been made based on the outcome, and a decision should have been made based on the outcome. It was not correct to render a decision based on incomplete review. I believe the decision should be overturned on this different ground. I do not agree with the esteemed majority’s justification for overturning.
REMOVAL OF THE DECISION OF ABSENCE, TO WHOM SHALL THE HOSTILITY BE DIRECTED?
TRNC
COURT OF APPEALS, 2ND CIVIL CHAMBER
Docket No: 2011/363
Decision No: 2012/6883
Decision Date: 22.03.2012
Related Articles: MK.32
Related Concepts: TO WHOM SHALL THE HOSTILITY BE DIRECTED IN CASES REMOVAL OF THE DECISION OF ABSENCE
TRNC JUDICIAL COURT 2ND CIVIL DIVISION DOCUMENT NO: DECISION NO: 2011/363 2012/6883 JUDICIAL COURT DECLARATION
REVIEWED DECISION: COURT: Küçükçekmece 3rd Civil Court of First Instance DATE: 05.10.2010 NUMBER: Docket No: 2008/343 Decision No: 2010/586
PLAINTIFTER: ……..
DEFENDANTS: 1-…… 2-………
CASE TYPE: Revocation of Decree of Absence
APPELLANT: The judgment, dated and numbered above, issued by the local court at the end of the trial between the Defendants and the parties, has been appealed. The documents have been read, considered, and considered as necessary: The case concerns a request for the “revocation of a judgment of absence.” The judgment of absence granted allows those whose rights are subject to death, other than marriage, to exercise these rights, as if the deceased had been proven dead. Therefore, in a lawsuit to revoke the judgment of absence, the hostility should be directed not only at those who have received the judgment of absence, but also at all those whose rights are subject to death.
The establishment of a party is a matter of public order and is overseen ex officio by the judge. According to the civil registry in the file, the person against whom the judgment of absence is sought has an illegitimate child, B…, born on October 29, 1993, and that the lineage between this child and the deceased was established through “recognition” prior to the judgment of absence. Therefore, while hostility should have been directed at this person as a “defendant,” and if he presented it, evidence should have been collected, and a verdict should have been reached based on the results of all the evidence, it was not appropriate to render a verdict based on the incomplete adversary and incomplete examination.
RESULT: The appealed verdict is REVERSED for the reason stated above, that there is no room for further review of other aspects due to the reason for reversal, that the advance appeal fee be refunded to the depositor, and that a remedy for correction of the verdict is available within 15 days of notification of this decision. March 22, 2012