REPUBLIC OF TÜRKİYE COURT OF CASSATION 2nd Civil Chamber
Basis No: 2013/16048
Decision No: 2013/29319
Date: 11.12.2013
DIVORCE CASE – FAILURE TO SUBMIT RESPONSES AND EVIDENCE WITHIN THE STATUTORY PERIOD – NECESSITY TO HEAR WITNESSES NOTIFIED BEFORE THE PRELIMINARY EXAMINATION HEARING – IMPROPER JUDGMENT DUE TO INCOMPLETE INVESTIGATION – REVERSAL OF JUDGMENT
SUMMARY: Since a defendant who fails to submit a response and evidence within the statutory period is deemed to have denied the facts relied upon by the plaintiff in the lawsuit petition, the witnesses notified by said defendant before the preliminary examination hearing must be heard. Establishing a judgment with an incomplete investigation is contrary to procedure and the law and requires a reversal. (Code of Civil Procedure [CCP] No. 6100, Art. 140, 187)
J U D G M E N T
The lawsuit was filed on 27.07.2012. The local court decided to conduct the preliminary examination through a hearing and sent a warning to the defendant to notify their evidence. The plaintiff submitted the list of evidence before the preliminary examination hearing, whereas the defendant submitted their response and list of evidence after the response period had expired. The preliminary examination hearing was held, and the points of disagreement were determined. The court rejected the request to hear the witnesses notified by the defendant on the grounds that they were not notified within the statutory period.
Granting the parties a period during the preparation stage (tensip) to present documentary evidence or explain their locations (CCP Art. 140/5) before the preliminary examination hearing is held does not produce legal consequences in this context. Furthermore, evidence is presented to prove contested facts (CCP Art. 187/1). Parties cannot be expected to submit a witness list before the preliminary examination hearing is conducted and the points of agreement and disagreement are identified.
Therefore, given that a defendant who fails to notify response and evidence on time is deemed to have denied the facts in the plaintiff’s petition, the witnesses notified before the preliminary examination hearing must be heard in line with this denial. Establishing a judgment with incomplete research is contrary to the law.
CONCLUSION: It was DECIDED BY MAJORITY on 11.12.2013 to REVERSE the judgment for the reasons stated above.
DISSENTING OPINION (Summary of the Dissent)
The dissenting judge agrees with the reversal but partially disagrees with the reasoning. The dissent argues that a defendant who does not respond within the time limit is deemed to have denied all allegations (CCP Art. 128). Consequently, the dispute is limited to the plaintiff’s facts. The defendant’s right to present evidence is limited to counter-proof (karşı ispat)—that is, proving that the plaintiff’s allegations are untrue. The defendant cannot introduce new separate facts but has the right to present evidence (including witnesses) until the end of the preliminary examination stage to refute the plaintiff’s claims.