T.C.
JUDGMENT
GENERAL ASSEMBLY OF LAW
E. 2012/6-762
K. 2013/278
T. 27.2.2013
– EVICTION CASE DUE TO COMMITMENT (BOTH PARTIES WILL BE INVITED UPON THE REQUEST FOR LIFTING THE OBJECTION – IT IS INAPPROPRIATE TO MAKE A DECISION WITHOUT A HEARING)
– SIMPLE TRIAL PROCEDURE ( EVICTION CASE DUE TO COMMITMENT / REQUEST FOR LIFTING THE OBJECTION – SIMPLE TRIAL PROCEDURE SHOULD BE APPLIED BY THE ENFORCEMENT COURT / IF NECESSARY, THE PARTIES CONCERNED WILL BE CALLED TO THE HEARING)
– THE NECESSITY OF HOLDING A HEARING ( EVICTION CASE DUE TO COMMITMENT / REQUEST FOR LIFTING THE OBJECTION – SIMPLE TRIAL PROCEDURE SHOULD BE APPLIED BY THE ENFORCEMENT COURT / THE NECESSITY OF CALLING THE RELEVANT PARTIES TO THE HEARING IF NECESSARY)
– REQUEST FOR LIFTING THE OBJECTION ( EVICTION CASE DUE TO COMMITMENT – BOTH PARTIES WILL BE INVITED / DECISION WITHOUT A HEARING IS INAPPROPRIATE ) 2004/M.18, 70, 269
SUMMARY : In the eviction case due to commitment, the Enforcement Court invites the two parties upon the request for lifting the objection.
It is stated that simple trial procedure shall be applied in the matters submitted to the Enforcement Court. If the Enforcement Court deems it appropriate to hold a hearing, it calls the parties concerned to the hearing as soon as possible and makes the necessary decision even if they do not come. While a hearing should be held and a decision should be made according to the result, it is not correct to make a decision without a hearing as mentioned in the reversal order.
CASE : At the end of the trial held due to the “Eviction due to commitment” lawsuit between the parties; Upon the request of the defendant’s attorney for examination of the decision dated 06.01.2012 and numbered 2012/3 E., 2012/19 K., which was given by the Izmir 6th Execution Law Court on the rejection of the lawsuit, with the decision of the 6th Civil Chamber of the Court of Cassation dated 18.04.2012 and numbered 2012/3253 E., 2012/6153 K;
( … The dispute is whether to decide on the file without inviting the parties to the hearing in a lawsuit filed based on Articles 269 and following articles regulating the evacuation of the immovables rented in the 10th section of the EBL No. 2004, in the face of Article 320/1 of the CCP No. 6100, which entered into force on 01.10.2011. As it is known, execution courts are a special judicial body established for execution and bankruptcy affairs and have their own specific rules. In Article 18 of the EBL, it is stated that the simple trial procedure will be applied in the matters submitted to the enforcement court, and in Article 70 of the same Law, it is regulated that the enforcement court will decide according to the provision of Article 18 after inviting the two parties upon the request for the removal of the objection. On the other hand, according to Article 70 of the EBL, where Article 269/d of the EBL is among the articles to be applied, the provision regulated in Article 18, in cases where there is no provision to the contrary, the execution court shall determine whether there is a need for a hearing or not, should not be applied in the eviction proceedings without writ. The execution court is obliged to hold a hearing.
Article 320/1 of the CCP, which entered into force on 01.10.2011, stipulates that the court decides on the file without inviting the parties to the hearing in cases where possible, should be interpreted and evaluated in terms of the relevant articles of the EBL explained above and the enforcement law. First of all, it should be noted that in order to make a decision without a hearing according to the aforementioned article, it must be legally possible. In other words, a decision can only be made on the file in cases where the law gives the judge the right of discretion to decide on the file without a hearing, such as “precautionary injunction, precautionary attachment, etc.” or in the complaint cases stipulated in Articles 17-18 of the EBL. In cases where the law explicitly orders a trial by opening a hearing, a decision cannot be made on the file. In the meantime, Article 27 of the CCP entitled the right to be heard, Article 36 of the Constitution of the Republic of Turkey regulating the freedom to seek rights, Article 6 of the European Convention on Human Rights on the right to a fair trial should also be taken into consideration.
Considering the provisions of the law explained above and the purpose pursued by the legislator, it cannot be said that the provisions in the EBL, which is a more specialised law, have been changed by the CPC, which is a more general law. In practice, it is accepted that the provisions in the CCP shall not be applied in the EBL unless there is a clear reference. For these reasons, while the trial should be held by opening a hearing, it is against the procedure and the law to make a decision on the documents by making a mistake in the evaluation,)
At the end of the retrial held after the file was returned to its place with the justification; the court resisted the previous decision.
The decision of the General Assembly of Civil Chambers was examined and the necessity was discussed after it was understood that the appeal was filed in due time and the papers in the file were read:
DECISION : The lawsuit is related to the eviction request due to commitment.
The plaintiffs’ attorney claimed that the defendant, who is their tenant, has not evacuated the immovable property although he has accepted and undertaken to evacuate the immovable property on 17.10.2011 without the need for notice with the evacuation commitment letter dated 29.09.2011 and requested the evacuation of the defendant from the immovable property.
The court stated that the plaintiff creditors made a proceeding against the defendant debtor company, sent an evacuation order numbered sample 14, the basis of the proceeding was the evacuation commitment letter dated 17.10.2011, the evacuation order was notified to the debtor company on 17.11.2011, the debtor company’s attorney objected to the signature and writings in the evacuation commitment letter with a petition dated 22.11.2011, the objection was accepted on 02.01.2012 and the proceeding was suspended, and in accordance with Article 275 of the Execution and Bankruptcy Law No. 2004. Pursuant to Article 275 of the Execution and Bankruptcy Law No. 2004, in case of objection to the eviction order, the lessor may request the removal of the objection and it is possible to remove the objection if the eviction request is based on a contract officially issued by the notary public or whose dated signature has been certified or acknowledged, but in the concrete case, since the objection was raised against the eviction order, the plaintiffs should request the removal of the objection and the eviction of the defendant, but they cannot file a direct eviction case without requesting the removal of the objection; In addition, since the signature and writings in the eviction undertaking were objected to with the objection petition and the plaintiff did not have a notarised eviction undertaking or an eviction undertaking whose date and signature were acknowledged, it was decided to dismiss the plaintiffs’ lawsuit on the documents.
Upon the appeal of the defendant’s attorney, the judgement was reversed by the Special Chamber on the grounds quoted above. The Local Court resisted with the previous grounds and the defendant’s attorney has brought the decision to appeal.
Before proceeding to the merits of the case, the Local Court decided to dismiss the case by examining the file without opening a hearing in the case regarding the plaintiff’s eviction request and without notifying the defendant, and upon the appeal of the decision by the defendant, upon the reversal of the judgement by the Special Chamber on the grounds that the case cannot be decided without a hearing, the Local Court determined the date of the hearing and invited the parties to the hearing, The issue of whether this decision is in the nature of a new judgement formed as a result of actual compliance with the reversal decision, and accordingly, whether the appeal examination will be made by the Special Chamber or the General Assembly of Civil Chambers has been discussed as a preliminary problem, and as a result, the court did not fulfil the hearing phase during the trial, and after the reversal, pursuant to Article 439/3 of the HUMK No. 1086. Pursuant to Article 439/3 of the Code of Civil Procedure No. 1086 after the reversal, since the Court will decide whether to comply with the reversal decision of the Court of Cassation after calling the parties to the hearing and listening to them, and since the parties were invited to the hearing to ask what they have to say against the reversal as required by the law, it was unanimously accepted that this situation is not in the nature of actual compliance with the reversal decree and there is no preliminary problem.
As for the merits of the case, the plaintiff creditors S. D., N.K., D. D.- İ. D. initiated an execution proceeding dated 31.10.2011 against the debtor T. Lpg etc. Şti. with the execution file numbered 2011/20569 of İzmir 27th Execution Directorate pursuant to Articles 269 et seq. of the Execution and Bankruptcy Law numbered 2004, and in the follow-up request, the eviction and delivery of the immovable property at the address of K. Dirik Mahallesi Zafer Cad no: 13/B Bornova/İzmir as empty, a written lease agreement for 60 months starting from 1.2.2008, a written lease agreement for 60 months starting from 1.2.2008, a written lease agreement based on the eviction commitment dated 17.10. 2011 dated 17.10.2011, it is understood that the evacuation order dated 31.10.2011 with sample number 14 of the immovable leased with the written contract was sent to the defendant company, it was notified to the debtor on 17.11.2011, the debtor company objected with a petition dated 22.11.2011 with the allegations that the evacuation commitment on which the proceeding was based was forged, the signatures and writings did not belong to the company representatives and the proceeding was stopped on 02.01.2012.
The defendant appealed the judgement with the allegations that the lawsuit petition was not notified to them, the lawsuit was rejected on the merits without completing the procedural procedures, and no attorney fee was awarded in their favour.
As it is known, regarding the eviction of leased immovable properties, Articles 269 and following articles of the Execution and Bankruptcy Law No. 2004 (EBL) are applied, and Article 269/d of the same law regulates the articles to be applied by analogy in this proceeding. Article 70 of the EBL is also among the provisions to be applied by analogy.
According to Article 70 of the EBL, the Enforcement Court invites both parties upon the request for the removal of the objection and makes its decision according to the provision of Article 18.
Article 18 of the Enforcement Law states that the simple trial procedure shall be applied in the matters submitted to the Enforcement Court. If the Enforcement Court deems it appropriate to hold a hearing, it calls the parties concerned to the hearing as soon as possible and makes the necessary decision even if they do not come.
Therefore, while the court should hold a hearing in accordance with Article 70 through Article 269/d of the EBL and make a decision according to the result, it is not correct to make a decision in writing without holding a hearing as mentioned in the reversal order.
For the reasons explained, it is against the procedure and the law to resist the previous decision, while the reversal decision adopted by the General Assembly of Civil Chambers should be complied with for the reasons stated in the Special Chamber’s reversal decision. Therefore, the decision to resist should be reversed.
CONCLUSION : With the acceptance of the appeal objections of the defendant’s attorney, the decision of resistance shall be reversed in accordance with Article 429 of the Code of Civil Procedure No. 1086, which is being implemented with the reference to the “Provisional Article 3” added to the Code of Civil Procedure No. 6100 with Article 30 of the Law No. 6217 for the reasons shown in the Special Chamber reversal decision. In the second meeting held on 27.02.2013, it was unanimously decided to return the pre-appeal fee to the depositor upon request, with the decision correction path being open within 10 days from the notification in accordance with Article 366/III of the Execution and Bankruptcy Law No. 2004.