T.C.
JUDGMENT
GENERAL ASSEMBLY OF LAW
E. 2008/6-369
K. 2008/394
T. 28.5.2008
– PROCEEDINGS BASED ON EVICTION COMMITMENT ( CANCELLATION OF THE OBJECTION / EVICTION – THE DEFENDANT DOES NOT KNOW THAT THE DOCUMENT WAS SIGNED IN BLANK, AND SINCE THERE IS NO AGREEMENT BETWEEN THE PARTIES TO FILL IT IN LATER, THE LAWSUIT MUST BE ACCEPTED)
– FILLING THE BLANK DOCUMENT CONTRARY TO THE AGREEMENT ( THE DEFENDANT DOES NOT KNOW THAT THE DOCUMENT WAS SIGNED AS BLANK, AND SINCE THERE IS NO AGREEMENT BETWEEN THE PARTIES TO FILL THE DOCUMENT LATER, THE LAWSUIT BASED ON THE EVICTION COMMITMENT MUST BE ACCEPTED)
– CANCELLATION OF OBJECTION-LIQUIDATION (THE DEFENDANT WAS NOT AWARE THAT THE DOCUMENT WAS SIGNED IN BLANK AND THERE WAS NO AGREEMENT BETWEEN THE PARTIES TO FILL IT IN LATER, THEREFORE THE CASE MUST BE ACCEPTED)
– WRITTEN COMMITMENT DOCUMENT (NEITHER THE DATE OF ISSUE NOR THE DEFENCE THAT ITS CONTENT WAS FILLED IN LATER WAS DULY PROVED BY THE DEFENDANT – THE REQUEST FOR THE CANCELLATION OF THE OBJECTION BASED ON THE EVICTION COMMITMENT AND THE EVICTION OF THE LEASED PROPERTY MUST BE ACCEPTED) 818/M.31 1086/M.352 6570/M.7/A
SUMMARY : The lawsuit is related to the cancellation of the objection to the proceeding based on the eviction commitment and the eviction of the leased property. The written commitment document, which also bears the phrase “the place where we are located as a tenant”, was issued after the lease agreement; neither the date of issue nor the defence that its content was filled in later has not been duly proved by the defendant.
Although it was argued during the discussions that the blank document was filled in contrary to the agreement and that the defendant could rely on the evidence of oath; the majority did not agree with this opinion, since the defendant’s defence was that, contrary to this opinion, the defendant did not know that the document was signed in blank, that there was no agreement between the parties to fill it in later, and that the document was signed by fraud. In this case, since there is no irregularity in the proceedings initiated and the lawsuit filed, it is necessary to accept the lawsuit and decide to evacuate the leased property due to the valid eviction commitment.
LAWSUIT : At the end of the trial held due to the “cancellation of the objection-eviction” lawsuit between the parties; Upon the request of the plaintiff’s attorney for examination of the decision dated 28.12.2006 and numbered 2006/1545-1936 given by the 2nd Civil Court of Peace of Izmir on the rejection of the lawsuit, with the decision of the 6th Civil Chamber of the Court of Cassation dated 13.05.2007 and numbered 2007/3587-6905;
( … The dispute is about the cancellation of the objection to the execution proceeding initiated based on the eviction commitment. The court decided to reject the request and the judgement was appealed by the plaintiff’s attorney.
In the petition, the plaintiff’s attorney requested the cancellation of the unjustified objection to the enforcement proceeding initiated on 12.6.2006 based on the commitment letter dated 20.8.2004 and 5.6.2006 evacuation date. The defendant defended that they signed the empty evacuation commitment on the same date with the contract as a result of fraud, and an oath was offered to the other party on this issue. As the plaintiff did not take the oath, the court decided to reject the request based on the conclusive evidence of oath.
In the eviction commitment letter dated 20.8.2004, which is the basis of the proceedings and taken as a basis for the judgement, it is understood that the commitment letter was given while the lease relationship continued. Although the tenant has defended that he signed on a blank paper for the purpose of eviction commitment and that it was filled in later, this cannot be relied upon. Anyone who signs on a blank paper must bear the consequences of this. As the resolved practice of our Chamber is in this direction, the decision of the General Assembly of the Court of Cassation dated 12.12.1990 and numbered 1990/6 E-1990/628 K., the decision dated 1.7.1992 and numbered E.357-K.422 and the decision dated 17.1.1999 and numbered 1999/6-28-10 are also in this direction. Since the defendant did not use his legal right stipulated in Article 31 of the Code of Obligations and gave up the defence that it was signed by fraud, it should be accepted that the release undertaking signed in blank is valid. Since the plaintiff relies on the written document, the defendant cannot offer an oath in return. For this reason, the plaintiff’s failure to fulfil the oath offered does not result against him. Because by signing on the blank paper, the plaintiff is deemed to be authorised to fill it in as he wishes. On the other hand, since the defendant’s defence is based on the claim of forgery as a result, the oath cannot be offered in this regard in accordance with the provision of Article 352 of the Code of Civil Procedure. Since there is no irregularity in the proceedings initiated and the lawsuit filed, it is not correct to decide to reject the request with the written justification, while it should be decided to accept the lawsuit and evacuate the leased property due to the valid evacuation commitment, and the judgement should be reversed… ),
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.
The General Assembly of Civil Chambers examined the decision and after it was understood that the decision of resistance 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 cancellation of the objection to the proceeding based on the eviction commitment and the evacuation of the leased property.
With the petition dated 29.08.2006, the plaintiff lessor’s attorney requested the cancellation of the objection and the evacuation of the immovable property, claiming that the defendant lessee objected unfairly to the proceeding based on the eviction commitment.
The defendant defended that the eviction commitment was fraudulently made him to sign the contract with the agreement in blank, that it was not a product of free will, that the eviction date was written later, and that the document was invalid.
The court brought the execution file; the lease agreement, the commitment letter, the evidence of the parties were included in the file; the defendant was reminded of the right to offer oath to the plaintiff; the plaintiff stated that they did not accept the proposed oath since the case was fixed according to the written document and it was decided to dismiss the case.
Upon the appeal of the plaintiff’s attorney, the decision was rendered by the Special Chamber; Since the defendant did not use his legal right and gave up the defence that it was signed by fraud, it should be accepted that the eviction undertaking signed in blank is valid, since the plaintiff is based on the written document, the defendant cannot offer an oath in return, therefore, the plaintiff’s failure to take the oath offered will not result against him, because by signing on the blank paper, the plaintiff will be deemed to have been given the authority to fill it in the way he wants, On the other hand, since the defendant’s defence is based on the claim of forgery as a result, the judgment is dismissed in accordance with the provision of Article 352 of the Code of Civil Procedure. On the other hand, since the defendant’s defence is based on the claim of forgery as a result, in accordance with the provision of Article 352 of the Code of Civil Procedure, the oath cannot be offered in this regard, and since there is no irregularity in the proceedings initiated and the lawsuit filed, it is necessary to decide on the evacuation of the leased property by accepting the lawsuit due to the valid evacuation commitment; The court has resisted the previous decision.
The judgement is appealed by the plaintiff/lessor’s attorney.
It is not a matter of dispute that there is a written contract and commitment between the parties; the signature under the eviction commitment letter belongs to the manager of the defendant company; the defendant stated that they would not file a criminal complaint due to fraud and made an oath offer; and if a criminal complaint was filed later, it resulted in non-prosecution since the time period had passed.
The defendant bases its defence on the fact that the commitment, which is the basis of the proceedings and the lawsuit, was fraudulently made to be signed as blank when the contract was signed and filled in later.
The dispute that came before the General Assembly of Civil Chambers by way of resisting; whether the defence that the eviction undertaking, the signature of which is not objected to, was fraudulently made the defendant sign the lease agreement with the lease agreement in blank and then filled in, and whether the fact that the plaintiff did not fulfil the oath offered by the defendant will affect the conclusion to be reached.
First of all, it should be noted that there is no dispute that it is not possible to prove the claim that the top of a document, which is signed and signed in blank, is filled in contrary to the agreement between the parties; however, it must be proved by written evidence, and if there is no written evidence, oath evidence may be in question, provided that it is relied upon. This opinion has become established in judicial practice and includes an evaluation and conclusion specific to the disputes arising in relation to the documents that the parties have agreed on how to be filled in, and which one party signs in blank and gives to the other party to be filled in accordance with this agreement.
On the other hand, the defendant’s objection to the execution file in the present case and its defence in the present case differ from the situation described above; it is claimed that the eviction commitment letter subject to the proceedings and the lawsuit was not signed in blank and given to the other party, but on the contrary, while the lease agreement was signed, a blank document was fraudulently signed by the defendant and then filled in as an eviction commitment, and that there was no agreement between the parties on this issue.
This defence of the defendant is based on the claim of forgery as a result; in the face of Article 352 of the Code of Civil Procedure No. 1086, it is not possible to offer an oath on this issue. As the defendant did not present any evidence to prove his claim of forgery, he also stated that he would not file a criminal complaint regarding this claim at the trial stage and relied on the oath evidence; later on, although he filed a criminal complaint, this application resulted in non-prosecution.
Since the oath evidence, which is the only evidence relied on by the defendant, cannot be listened to in the case of forgery allegation, not fulfilling this oath will not result against the plaintiff.
In this case, the written commitment document, which also bears the expression “the place where we are located as a tenant”, was issued on 20.08.2004, after the lease agreement dated 01.05.2004 and 15.04.2004; neither the date of issue nor the defence that its content was filled in later has not been duly proved by the defendant.
Although it was argued during the discussions that the blank document was filled in contrary to the agreement and that the defendant could rely on the evidence of oath, the majority did not agree with this opinion, since the defendant’s defence was that, contrary to this opinion, the defendant did not know that the document was signed in blank, there was no agreement between the parties to fill it in later, and the document was signed by fraud.
In this case; since there is no irregularity in the proceedings initiated and the lawsuit filed, it is against the procedure and the law to decide to reject the request while it should be decided to accept the lawsuit and evacuate the leased property due to the valid eviction commitment, and the judgement should be reversed.
Therefore, the decision of resistance should be reversed.
You can access our other article examples and petition examples by clicking