General Assembly of the Law 2020/242 E. , 2020/712 K.
“Text Of Jurisprudence”
COURT : Magistrate’s Court
1. Between the parties “will”, made about the case in the trial of Samsun Magistrates ‘ Court on the rejection of the case by the decision upon an appeal by the plaintiff’s attorney, the court of Appeals 8. The examination by the Legal Department was eventually overturned, and the Court resisted the decision to demolish the Private Apartment.
2. The decision to resist was appealed by the deputy plaintiff.
3. After the documents in the file were examined by the General Assembly of the Law, they were discussed as necessary.
I. THE JUDICIAL PROCESS
The Plaintiff Prompt:
4. The deputy plaintiff filed a petition for the lawsuit dated 17.02.2014; University Health Research and application hospital, his client number located at the entrance to a surface area of 3 M2 297,60 canteen/cafeteria as a result of the tender for the leasing of the purpose of the defendant, the defendant signed a contract with the rental agreement is delivered to the subject of the immovable, the immovable end date to be extended and the contract relating to the lease agreement was evacuated for the defendant to be delivered on the matters of real estate of the defendant’s lease expired with the rector’s post, which was reported by failing to deliver these items will continue to use, the defendant in this state, saying Thanks is due to unfair occupation redundant 04.01.2013 – 90.000 TL dates for the period between 03.07.2013, 04.07.2013-165.000 TL dates for the period between 03.12.2013 a total of 75.000 adequate payment receivables amounting to TL, 90.000 TL 08.08.2013 part of the date, from 75.000 TL 13.01.2014 part of the collection process with legal interest from the date of the decision to be given to the defendant requested.
The Defendant’s Answer:
5. In the respondent’s decoy petition dated 20.05.2014; the tenancy relationship between the parties continues, in the case of preventing confiscation previously filed by the defendant, a decommissioning decision was made due to the continuation of the tenancy relationship between the parties, there was no finalized eviction order, as well as no outstanding rent debt, the plaintiff has no 75 of the State Tender Code No. 2886. stating that the eviction request based on the article was rejected by the official institutions, the unfair intervention of his client could not be mentioned, he asked for a decision to dismiss the case.
ruling:
6. The Court of First Instance of Samsun dated 26.02.2014 and dated 2014/67 E., 2014/112 K. by the decision numbered; the dispute between the parties should be resolved according to the provisions of the contract that regulates the relationship of the lease, the lease is not over and that the ending of the relationship that is the subject of the claim by the plaintiff for the period of the determination of the capacity of the respondent on the grounds that the case falls under the jurisdiction of the magistrate’s court 6100) of Civil Procedure Law (HMK)’s 114/(C) and 115/2. in accordance with the articles, due to the lack of a case requirement, a procedural refusal was decided. The decision was finalized without appeal by the parties, and the file was sent to the relevant magistrate’s court at the request of the plaintiff’s deputy.
7. As a result of the trial held after the decision of non-duty, Samsun 3. The decision of the Magistrate’s Court dated 04.11.2014 and dated 2014/116 E., 2014/781 K. with its numbered decision; an auction was held to rent the canteen and cafeteria subject to the lawsuit for a period of 3 years, and as a result of the tender, a lease agreement was signed with the defendant and the real estate was delivered to the defendant, the contract was a 3-year lease agreement for a certain period, 347/1 of the Turkish Code of Obligations (TBK) No. 6098. paragraph 1 of the the sentence in accordance with the period of the lease notified at least 15 days before the end of the fixed term unless the contract is extended for 1 year under the same conditions in the case where the lessor on the basis of the duration of the contract before the end of the lease agreement in question was not going to break off the contract duly opened case of evacuation or the loans or the complete disappearance of the Mutual will of the parties that ended with the declaration of the plaintiff to file any document is not submitted by a party, the lease agreement is not terminated duly held by the plaintiff’s own tenants for eviction eviction case has not been opened or the existing tenant lease agreement is valid and bind all the provisions of the parties held by the lessor with notice of cancellation with unilateral termination of the lease, and accordingly, the defendant stated that the tenant is not possible thanks redundant at the same time zilyet wrongful occupation of compensation for non-Malik, malik, non-malicious request can zilyet compensation, in this state, the respondent’s case is a valid reason zilyet as of the date of tenant-based used in accordance with the law, and litigation arising from the lease contract the lessee with the examination of the defendant be the subject of 04.01.2013 – 04.07.2013 03.07.2013 does not have any rent arrears, it is understood that between the dates of -03.12.2013 with accordingly, the occupation of the plaintiff on grounds that the case does not conform to the legal requirements of demanding the case be dismissed.
The Decision to Spoil the Private Apartment:
8. Samsun 3. Against the above-mentioned decision of the Magistrate’s Court, an appeal was filed by the deputy plaintiff within the time limit.
9. Court of Cassation 8. By the Law Department dated 29.04.2019 and dated 2018/3514 E., 2019/4430 K. with its numbered decision; “The case is related to the ecrimisil request as clearly stated in the lawsuit petition. 51 of the Dec Procurement Law No. 2886 between the parties. according to the article, there is no dispute that there is a 3-year lease agreement with a start date of 04.01.2010. 75 of the Same Law. according to the article; from the date of the end of the lease agreement, if the occupation continues, if there is a provision in the contract, it will be acted according to it, otherwise ecrimisil will be taken. Dec. 4 of the lease agreement concluded between the parties. according to the article; When the tender period expires or if it is canceled by the administration before the deadline, the tenant is obliged to evacuate the rented place without any conditions. The plaintiff informed the defendant that the lease agreement will be terminated on 03.01.2013 with the article No. 4811 dated 20.11.2012 and the real estate must be evicted.
As such, it is not possible to talk about an existing lease relationship between the parties. dec. Since the case is related to the ecrimisil request, see Section 2 of HMK No. 6100. in accordance with the article, the court in charge is the court of first instance, and it was not considered correct to establish a provision in writing when a decision on dismissal should be made.” the decision has been overturned on grounds of.
The Decision to Resist:
10. Samsun 3. The decision of the Magistrate’s Court dated 03.10.2019 and dated 2019/1019 E., 2019/1414 K. by its numbered decision; Although the immovable property subject to the case has been leased in accordance with the provisions of the State Tender Law, it is subject to Article 75 of the State Tender Law entitled “ecrimisil and eviction”. as amended by the article made on 21.03.2018, it was added that this article can also be applied in case of occupation of immovable property owned by special budgetary administrations (university in a concrete case), and since the period under investigation is before 2018, this article cannot be applied in a concrete case, the treasury, municipalities, special provincial administrations and immovable belonging to the General Directorate of foundations according to the provisions of the state procurement code, leasing, or other organizations that would apply in the case of (a concrete case the University) according to the law on state procurement of immovable property, even though it was rented in accordance with the provisions of this law due to the lack of evacuation, hence the provisions of the Code shall apply in the concrete case, the lease agreement is valid as of the date of the lawsuit because it is not duly terminated in accordance with the articles of the task HMK Magistrates ‘ Courts on the grounds that its decision to resist is in charge of has been given.
Appeal of the Decision to Resist:
11. The decision to resist was appealed by the deputy plaintiff within the time limit.
II. DISPUTE
12. The General Board of the resistance path from the front of the conflict with the law; when considering the petition, the case is based on prompt payment of adequate property rights, or arising from the relationship of the lease the lease is the collection of receivables related to the prompt, according to the results to be reached from here, the officer of the court, magistrates ‘ court or the court of First Instance at the point that is collected.
III. reason
13. In order to resolve the dispute, it is useful to briefly explain the legal regulations and concepts related to the subject.
14. 683 of the Turkish Civil Code No. 4721 (TMK). a person who owns something in accordance with the article has the right to use, use and save as he wishes on this thing within the limits of the legal order. The owner can file a rations lawsuit against anyone who has his property unfairly in his possession, as well as file a lawsuit to prevent any unfair seizure.
15. Occupation, however, is neither malicious nor judicial in education from the application of the holder as set forth in zilyet can request a compensation that is dated and the decision to merge 08.03.1950 No. 22/4 case law; and the occupation of the sides to each other with their proper Fuzuli that he created cannot be likened to a lease contract, unjust occupation should be regarded as an unfair action by nature that would have to be compensated due to the losses it was emphasized that. Ecrimisil is a special form of compensation for damages due to unfair occupation, the least of which is the cost of rent, the most of which is the loss in exchange for the loss of income deprived of. For this reason, the positive damage caused by the use of ecrimicillin, which is formed in the form of obsolescence as a result of normal use caused by unfair occupation, and the benefit (negative damage) that the owner or owner lacks (negative damage) determines the scope of ecrimicillin.
16. As a matter of fact, TMK has 995. Article 1. in its paragraph, it is stipulated that the person who does not have good intentions must pay compensation in exchange for the damages caused to the rightful owner and the products he has obtained or neglected to obtain because he has unfairly detained what he is obliged to give back. Unfair occupation is an unfair act, in which case there is no doubt that a lawsuit can be filed in accordance with the general provisions in the general courts for the collection of ecrimycin.
17. Tbk lease of 299. in its article, it is defined as a contract in which the lessor undertakes to leave the use of something or the use of it together with the use to the lessee, and the lessee, in turn, undertakes to pay the agreed rental price.
18. A lease agreement is a consensual contract that imposes debts on both parties, and for a lease agreement to occur, the lessor and the lessee must agree on the main points of the contract, the statements of will must be mutual and in accordance with each other. The person who undertakes to transfer the use of something in the contract to the lessor, and the person who undertakes to pay a price in return, is also called the lessee. The lessor may be the owner of the leased thing, as well as have a limited real right to that thing or be a tenant. 4 of HMK No. 6100. in the article; ”… in cases of receivables arising from the lease relationship, regardless of their value,”it is regulated that the magistrates’ courts are in charge.
19. As can be seen, in ecrimisil; When it comes to malicious occupation and use of a property without the permission and consent of the rightholder, there is a mutual agreement between the lessor and the lessee in the rental relationship and the use of the property for a certain price, and they are subject to different laws and conditions.
20. In addition, some basic principles for a correct and fair trial have been adopted in the field of civil procedural law. These principles, which are binding on both the parties to a case and the court and guide the proceedings, are the most basic elements that ensure that a healthy outcome can be achieved in the courts. These rules should be observed at every stage of the trial, even when interpreting the procedural provisions, they should not be interpreted in a way that contradicts these principles and contradicts them.
21. A part of the principles that dominate the civil procedure law is clearly regulated in HMK No. 6100 and 24. according to the “principle of saving” in its article, 25. according to the “principle of introduction by the parties” in its article, 26. in its article, the ”principle of commitment to demand” is given.
22. Private law has given the parties the right and the possibility to save on their own rights. The power of saving arising from private law begins before the dispute and continues as soon as the dispute is transferred to the judicial body and is considered before it. The rightholder is free to sue the right subject to dispute, to reconcile with the defendant in or out of the trial after the lawsuit, to go to the mediator, to become a magistrate or to waive the case he has filed. The parties have the right to initiate a dispute, determine the subject of the dispute and to continue or terminate the dispute (Pekcanitez Procedural, Civil Procedural Law, Editors: Pekcanite, H./Özekes, M./Akkan, M / Taş Korkmaz, H., March 2017, c.I, p. 783-784). HMK’s 24th. within the scope of the “savings principle” regulated in the article; as the initiative to file a lawsuit belongs to the plaintiff, the parties have the right to fully save on the case, determine the subject matter of the case (time limit), influence the case by filing petitions, and take actions that end the case without the need for a court decision. Due to the principle of saving, no one can be forced to file a lawsuit in his favor or claim his right, unless it is clearly stated in the law (HMK m. 24/2).
23. In accordance with the principle of saving, the plaintiff must clearly state what legal protection he requested when opening his case, as well as in accordance with Article 119/1-d of the HMK, which contains a regulation on the “content of the lawsuit petition”, the “subject of the lawsuit” must be shown in the lawsuit petition. In paragraph (e) of the same article, “Clear summaries of all cases that are the basis of the plaintiff’s claim under the ordinal number”, in paragraph (g) “Based on legal reasons” and in paragraph (dec) “Clearly as a result of the request” are considered among the other elements that should be included in the petition for action.
24. As a result of the principle of being brought by the parties, the plaintiff must report all the cases that are the basis of his claim in the lawsuit petition. The Law (m. 194) he calls this the burden of embodying (cases). In a case, in order for the proving activity to be carried out in full, for the court to judge the dispute correctly, for the counterparty to defend itself against the cases put forward, the alleged cases must be clearly and concretely stated. The burden of concretization in this way (HMK m. 194) it will be fulfilled, as well as the defendant will make his defense according to these cases. The legal reasons that will be applied to the decried cases have also been considered among the non-mandatory elements of the lawsuit petition. The judge in charge of formally applying Turkish law (HMK m. 33) the legal reasons cited for are not binding. In contrast, the judge is bound by the cases reported by the plaintiff in the petition for action and cannot examine the cases that the plaintiff has not reported on his own and find them even in cases that may remind him (HMK m. 25). The cases reported by the plaintiff in the petition for action are the basis of the case. Because only these cases delineate the boundaries of the case, the judge can only examine these cases. If it is proved during the trial that the cases reported by the plaintiff in the petition are true, and these cases justify the plaintiff as a result of the claim, the court accepts the plaintiff’s case and decides the case in favor of the plaintiff.
25. In the request result section, it should be clearly stated what the request is. Because, according to the principle of commitment to the claim, the judge is bound by the result of the claim and cannot decide more than it or anything else (HMK m. 26). According to this principle, a decision cannot be made on something that the plaintiff does not demand. It determines the limit of the provision to be established as a result of the case as a result of the request that the parties want to be resolved. Therefore, if the result of the request is not clear enough, the judge’s task of clarifying the case (HMK m. 31) it must explain the result of the request, which is not clear in its scope.
26. All these regulatory and policy framework that are described in the event the concrete is evaluated when the plaintiff’s attorney in the petition, the subject of the client’s health research and application Hospital of the University of contention in the number of m2 of surface area 297,60 3 located at the entrance to the canteen/cafeteria in the State according to the provisions of the Procurement Law No. 2886 to the defendant if it were rented out for a period of 3 years, despite the expiration of the lease term, the defendant’s real estate that they did not evacuate, the defendant argued that the case was due to Fuzuli’s occupation and unjust thanks 04.01.2013- he requested the collection of ecrim dec receivables amounting to TL 90,000 for the period between 03.07.2013 and TL 75,000 for the period between 04.07.2013 and 03.12.2013 for a total of TL 165,000. decrimisil receivables. As it will be seen, the material cases described in the lawsuit petition contain the claim that the lease agreement between the parties has expired and is not binding on the plaintiff, and the legal qualification was also made by the plaintiff in accordance with this claim (the material case) and decrimisil was clearly requested.
27. In this case, since the plaintiff is not based on the lease agreement, this request is due to the provisions of TMK No. 4721 and the resolution of the dispute is 2/1 of HMK No. 6100. it is clear that the court of first instance is in its position in accordance with the article.
28. In these circumstances, the courts and the parties of the case the plaintiff was not observed in the lease agreement is valid and binding between the University of debate about whether, in the case of a tenancy relationship, the determination of the existence of legally valid occupation and a use case since it is not malicious, is the rejection of the case, a decision should be made when the payment request otherwise adequate in terms of the Magistrates ‘ Court by the plaintiff’s demand different laws and subject to the conditions decided by the right to be described as a lease receivable was observed.
29. On the other hand, after the sentence “The case is related to the ecrimisil request as clearly stated in the lawsuit petition” in the fourth paragraph of the decision of the Special Chamber to deconstruct, “The parties are not entitled to the 51st paragraph of the State Procurement Law No. 2886. according to the article, there is no dispute that there is a 3-year lease agreement with a start date of 04.01.2010. 75 of the same law. according to the article; from the date of the end of the lease agreement, if the occupation continues, if there is a provision in the contract, it will be acted according to it, otherwise ecrimisil will be taken. Dec. 4 of the lease agreement concluded between the parties. according to the article; if the tender period expires or is canceled by the administration before its deadline, the lessee is obliged to evict the rented place without any conditions. The plaintiff informed the defendant that the lease agreement will be terminated on 03.01.2013 with the article No. 4811 dated 20.11.2012 and the real estate must be evicted. In these circumstances, the relationship between the parties of an existing lease, it is not possible to talk about” – shaped explanations if provided, the current relationship between the parties, the tribunal determined that the lease should be assessed by whether it is civil, because it was concluded that the decision of these parts should be removed from ruining.
30. During the negotiations held at the General Assembly of the Law; determined according to the facts of the dispute settlement procedure according to the facts that brought the parties to declare what is the basic principle of the legal dispute up to determine the cause and detect the mismatch and this application belongs to the judge, the judge not only the facts of legal and dispute in determining the cause brought by the plaintiff, the defendant also brought to you by the rates of spontaneous based on the judge who is tasked with the implementation of the law, which will take the parties not connected with the legal reasons for the reporting of, in the case of a concrete case where the defendant is in use and prior dispute between the parties in the lease agreement that is made between the parties where there is a dispute over the ends of the lease, and this lease agreement on a contract or on the basis of the defendant’s ground without you being where it is gathered at the point of use, the conflicting statements of the parties and the judge in this case evaluate the evidence should first determine where that’s not the end of the lease, the lease agreement, it is understood that over the content not expressly, since the cases arising from the lease contract are under the jurisdiction of the magistrate’s court, there is no failure to decide on the merits of the case, the court of first instance will examine the case according to the ecrimisil provisions and decide to dismiss the case because the lease relationship is found to be incompatible with the principle of procedural economics, for these reasons, it was considered appropriate for the court to resist that it was tasked with looking at the case, and the opinion was put forward that the file should be sent to the Special Department for consideration of appeals on the merits, but this opinion was not adopted by the majority of the Board.
31. Then, from the decision to decriminalize the Private Office, it follows that “Article 51 of the State Procurement Code No. 2886 between the parties. according to the article, there is no dispute that there is a 3-year lease agreement with a start date of 04.01.2010. 75 of the same law. according to the article; from the date of the end of the lease agreement, if the occupation continues, if there is a provision in the contract, it will be acted according to it, otherwise ecrimisil will be taken. Dec. 4 of the lease agreement concluded between the parties. according to the article; if the tender period expires or is canceled by the administration before its deadline, the lessee is obliged to evict the rented place without any conditions. The plaintiff informed the defendant that the lease agreement will be terminated on 03.01.2013 with the article No. 4811 dated 20.11.2012 and the real estate must be evicted. As a result, it is impossible to talk about an existing lease relationship between the parties,”the decision to resist should be deconstructed with different grounds written above by completely removing the phrases.
IV. result :
For the reasons described,
1-51 of the State Tender Law No. 2886 “Between the parties” contained in the decision to decertify the Special Chamber. according to the article, there is no dispute that there is a 3-year lease agreement with a start date of 04.01.2010. 75 of the same law. according to the article; from the date of the end of the lease agreement, if the occupation continues, if there is a provision in the contract, it will be acted upon, otherwise ecrimisil will be taken. Dec. 4 of the lease agreement concluded between the parties. according to the article; if the tender period expires or is canceled by the administration before its deadline, the lessee is obliged to evict the rented place without any conditions. The plaintiff informed the defendant that the lease agreement will be terminated on 03.01.2013 with the article No. 4811 dated 20.11.2012 and the real estate must be evicted. As such, it is impossible to mention an existing lease relationship between the parties”statements to be excluded from the decision to deconstruct,
2-Provisional Article 3 of the Civil Procedure Code No. 6100 of the decision of the plaintiff’s deputy to accept appeals and resist for various reasons and reasons described above. 429 of the Code of Civil Procedure No. 1086, which is being implemented in accordance with its article. in accordance CORRUPTION,
440 of the same Law. in accordance with the article, the decision was made by majority vote at the second meeting held on 06.10.2020, with the path to correction of the decision being open within fifteen days from the notification of the decision.
VOTE AGAINST
The plaintiff shows the cases that are the basis of his claim in the lawsuit petition (HMK 119/1-e), and the defendant shows the cases that are the basis of his defense in the response petition (HMK129/1-e).
At the preliminary examination hearing, the judge determines the issues that the parties have agreed or not agreed on individually (HMK 140/1) and encourages them to settle over them (HMK 140/2) and, if there is no result from the magistrate’s activity, records what issues they cannot agree on (HMK 140/3). It is determined which of the cases on which the parties do not agree, and it is also determined what are the cases that need to be proven in the dispute.
The judge formally applies Turkish law (HMK 33/1). As a result of this provision, it is the duty of the judge to determine the dispute according to the cases brought by the parties and to find and apply the correct legal reason for this dispute.
Determining and resolving the dispute according to the cases is the basic principle of the procedure. The importance that HMK attaches to this principle is also understood from the fact that there are provisions in twenty-seven separate articles related to cases and the phrase cases has been included thirty-six times.
Of these provisions, in particular; the case which forms the basis of the parties is obliged to make comments about the fact that in a fair way (HMK 29/1), during the investigation phase, both parties about the facts of the case alleged the court duly invited and able to listen (HMK 144/1), isticvab to the underlying facts of the case and about the issues that will be in a relationship with him (HMK 169/2), subject to proof, that may be effective in resolving the dispute and the parties could not agree on the form of a contentious case and shown evidence for the proof of this fact (187/1 HMK), the parties of the facts on which they are based, the proof in a proper manner, they should somutlastirmal (HMK 194/1), provision of a summary of the claims and defenses of the parties, the matters agreed and disagreed, contested evidence collected about the facts, the evidence and discussion of the evaluation should cover them with hard facts and legal reasons, the observed conclusion extracted (297/1 HMK-c) regulations, fact-based that are based on the solution clearly shows us.
As can be seen from these provisions, the civil case proceeds through the cases. It is up to the parties to report cases. It is the duty of the judge to determine the dispute according to the cases brought and to determine and apply the legal reason that corresponds to this dispute. When determining the dispute and the legal reason, the judge takes into account not only the cases brought by the plaintiff, but also the cases brought by the defendant, and, accordingly, resolves the dispute by determining the correct legal relationship. The other meaning of this is that the judge will not be based on the legal relationship that the parties claim, but on the legal relationship that will be accepted as existing based on cases whose accuracy is obvious or proven.
Cases in which HMK imposes an obligation to notify the parties are not legal reasons, but material events. Even if the parties are not obliged to report the rule of law that complies with this material case, they are not bound by these legal reasons reported by the dominant parties who are responsible for applying the law on their own, even if they report it.
The judge does not determine the dispute and the legal reason only in order to be able to make a decision on the merits. It also determines whether there is a case requirement obstacle that does not make it possible to enter the merits for this legal reason in order to determine whether there is a barrier. The rules of duty are already a condition of a lawsuit that will usually be sought based on the legal reason to be applied. It is also not possible for the court to consider itself out of office for a legal reason that does not need to be applied to the dispute.
The description and the rules referred to above, together with the concrete case was evaluated; the plaintiff a lease agreement that exists between the parties for a term of three years, the contract on the expiry date of the lease agreement and reported the issues to be evacuated and cleared in the end time be extended in the case of the defendant’s lease expired by failing to deliver adequate real estate continues to be dominated, indicating that wanted to use these items that will receive the payment.
The defendant, on the other hand, defended the rejection of the case by stating that there is a decency relationship between the parties and that its use in real estate is not unfair.
In this case, there is no dispute between the parties in terms of cases where this place is in the use of dec dec and a lease agreement was concluded between the parties before. The dispute centers on whether the lease agreement has expired and whether the defendant uses this place on the basis of a lease agreement or without a contract.
In this case, the judge must first evaluate the conflicting statements of the parties with evidence and determine whether the lease agreement has expired.
It is clear from the content of the contract that the lease agreement has not expired. Because even if the lease agreement to which the University is a party has been leased in accordance with Law No. 2886, it does not end spontaneously with the expiration of the period when the dates subject to dispute are observed. Article 75 of the Law. although it is stated in the article that the period for treasury and foundation real estate will expire at the end of that date, there is no such termination for university real estate. The plaintiff will be able to ensure the termination of the lease agreement only by filing a lawsuit based on justified reasons regulated by law. Since there is also no court decision taken in this way, it is clear that the mentioned lease agreement has not expired and is valid.
Another case is that the defendant uses this place without compensation. There is no dispute when the defendant uses this place. However, it is debatable what the monetary value of the value of this use is. In order to determine this price, the judge will determine the monetary value of the claim that it was used gratuitously based on the provisions of the lease agreement, since it will be based on the actual relationship. Since the price cannot be determined as if there is no lease agreement while there is a lease agreement, it is imperative that the judge take the right relationship, whose existence is fixed, and not the alleged relationship, on the basis of the right relationship.
Taking the right legal relationship as a basis will also determine the legal reason. Because the judge is responsible for finding the right legal reason. If it is determined that the dispute should be resolved in accordance with the lease agreement, the judge should review the terms of the case. Because according to this legal reason, if there is a case requirement that prevents entry into the merits, the merits will not be examined and the case will have to be dismissed from the procedure in the absence of a case requirement. Since the cases arising from the lease agreement fall under the jurisdiction of the magistrate’s court, there is no lack of case requirements related to the task for the magistrate’s court where the case was filed. In this case, there is no inaccuracy in the fact that a decision has been made on the merits of the case.
If the correct legal relationship is not based on and the alleged legal relationship is based on, the first instance court will have to decide on the merits of a dispute that does not fall under its jurisdiction because it arises from a lease agreement. However, an off-duty court cannot make a decision on the merits.
In addition, when the court of first instance examines it according to the ecrimisil provisions and decides to dismiss the case because there is a lease agreement, the plaintiff will have to file a separate lawsuit in the court in charge of the lease agreement this time. This will lead to results that are incompatible with the basic principles of procedure and especially the principle of procedural economics, such as the fact that multiple lawsuits can be filed based on different legal reasons, even if they are based on the same material case.
For the reasons described above, we cannot agree with the valuable majority opinion that the decision should be overturned on different grounds, as the basis of the ecrimisil provisions on which the plaintiff’s claim is based, since we believe that the file should be sent to the special department for consideration of appeals on the merits, considering it appropriate to resist the court’s duty to look at the case.
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