T.C. JUDGMENT
3rd Civil Chamber
Main: 2017/11871
Decision: 2017/8998
Decision Date: 05.06.2017
SUMMARY: The plaintiff claimed that the monthly rent was one thousand four hundred TL and initiated enforcement proceedings for the collection of the unpaid ten-month rent receivable. The defendant, on the other hand, stated that the monthly rent was three hundred and fifty TL. The plaintiff could not prove that the monthly rent is one thousand four hundred TL. If the plaintiff cannot prove the amount of the monthly rent, the monthly rent declared by the defendant should be taken as a basis in the calculation of the receivable. In terms of the amount accepted by the defendant, the defendant has the burden of proving that the debt has been paid and the payment has not been proved. In this case, the court should make a calculation based on the monthly rent of three hundred and fifty TL accepted by the defendant and according to the result, the amount of the receivable subject to the proceedings should be determined and judgement should be made.
(4721 S. K. art. 6) (2004 S. K. art. 67)
As a result of the trial of the cancellation of the objection and eviction case between the parties, the judgement given for the dismissal of the case and that there is no need to make a decision since the eviction is not subject matter, was appealed by the plaintiff’s attorney within the time limit; after the appeal petition was decided to be accepted, the papers in the file were read and considered accordingly:
The plaintiff’s attorney stated that there is an oral lease agreement between the plaintiff and the defendant with a monthly rent of 1.400.-TL, that the defendant’s objection to the enforcement proceedings initiated against the defendant upon non-payment of the rent is unjustified, and requested the cancellation of the objection and the eviction from the immovable.
The defendant’s attorney defended the rejection of the lawsuit by stating that the monthly rent is 350.-TL and the defendant has no debt.
The court stated that the amount of the receivable stated in the proceeding initiated by the plaintiff based on the oral lease agreement and the issues stated in the petition are not based on written evidence and the defendant has refuted the plaintiff’s claims with the oath of the defendant, and since the plaintiff could not prove the rent receivable, It is understood that the objection made by the defendant to the follow-up file is in accordance with the procedure and law, and it has been decided that the lawsuit is dismissed and the plaintiff shall pay the bad faith compensation not less than 20% to the defendant and that there is no place to make a decision on the eviction request, and the judgement has been appealed by the plaintiff’s attorney within the time limit.
As a rule, the burden of proof of the existence of the lease relationship and the amount of the monthly rent falls on the plaintiff, and the burden of proof that the rent accepted by the defendant has been paid falls on the defendant. According to the amount of rent requested by the plaintiff, the plaintiff must prove the rent with a written document in accordance with the provision of Article 200 of the … Law. Otherwise, the amount declared by the defendant should be taken as basis. Again, the defendant tenant must prove that the rent debt has been paid with a written document in accordance with Article 200 of the Code of Civil Procedure.
In the concrete case; the plaintiff claimed that the monthly rent was 1.400.-TL and initiated enforcement proceedings for the collection of the 10-month rent receivable between 01.09.2012 and 01.06.2013. The defendant, on the other hand, stated that the monthly rent was 350.-TL. The plaintiff could not prove that the monthly rent is 1.400.-TL. If the plaintiff cannot prove the amount of the monthly rent, the monthly rent declared by the defendant should be taken as a basis in the calculation of the receivable. In terms of the amount accepted by the defendant, the defendant has the burden of proving that the debt has been paid and the payment has not been proved. In this case, while the court should make a calculation based on the monthly rent of 350.-TL accepted by the defendant and determine the amount of the receivable subject to the follow-up according to the result, the decision to dismiss the case in writing by accepting that the payment of 6.000.-TL made by the defendant for the months prior to the follow-up belongs to the months subject to the follow-up is contrary to the procedure and the law and requires reversal.
Conclusion For the reasons explained above, it was unanimously decided on 05.06.2017 with the acceptance of the appeal objections and in accordance with the provisional article 3 added to the Law No. 6100 … by Law No. 6217, the judgement shall be DISMISSED in favour of the plaintiff in accordance with Article 428 of the HUMC and the prepaid appeal fee shall be refunded to the appellant upon request, with the way of decision correction being open in accordance with Article 440 of the HUMC No. 1086 with reference to the provisional article 3 of the HUMC No. 6100. (¤¤)
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