The Decision Of The Court In The Previous Case Is Not A Final Judgement In Respect Of Continuing Actions
General Assembly of Civil Chambers 2017/2268 E. , 2017/2020 K.
“Case Law Text”
COURT :
Civil Court of First Instance (as a Consumer Court)
At the end of the trial held due to the “cancellation and registration of title deed and compensation in the second stage” lawsuit between the parties, Muğla Civil Court of First Instance (in the capacity of Consumer Court) rejected the case on 10.06.2014 and 2013/811 E. and 2014/324 K. The appeal of the decision numbered 2013/811 E. and 2014/324 K. was requested by the plaintiff’s attorney, and with the decision of the 14th Civil Chamber of the Court of Cassation dated 17.03.2015 and numbered 2014/16080 E. 2015/2946 K:
“…The lawsuit is related to the cancellation and registration of the title deed based on the assignment of the contractor and the request for compensation at the second stage.
The heirs of the defendant landowner defended that the judgement of Muğla 2nd Civil Court of First Instance numbered 2009/655 Main 2013/33 Decision is a final judgement, the lawsuit should be dismissed due to the absence of a cause of action, the right to request registration has not occurred, and it should be dismissed due to the absence of hostility in terms of compensation.
Court decided to dismiss the claim for cancellation and registration of the title deed filed against the defendant contractor … and the defendant landowner heirs due to the existence of a final judgement, to dismiss the claim for the receivables filed by the plaintiff against the defendant landowner heirs due to the lack of hostility towards these defendants, and to separate the claim for the receivables filed against the defendant contractor … during the trial.
The judgement was appealed by the plaintiff’s attorney.
The final judgement, which aims to provide stability in the legal order, is included in our legal jurisdiction system in the form of exhaustion of legal remedies against the judgement (final judgement in the formal sense) and the legal relationship between the parties is not subject to litigation again (final judgement in the substantive sense).
Final judgement in the substantive sense, which obliges finalisation in the formal sense and aims to prevent the legal relationship between the parties from being subject to litigation again, is regulated in Article 303 of the CCP No. 6100.
According to the aforementioned article, in order for the judgement of one case, which has been finalised in the formal sense, to constitute a final judgement in the substantive sense in another case, the parties, the causes of action, the paragraph of judgement of the first case and the result of the claim of the second case must be the same.
On the other hand, in the event that the contractor, who has a construction contract in return for land shares with the landowners, transfers (assigns) his personal right to a third party, in order to determine whether the third party can demand performance, it is obligatory to first clarify whether the contractor has fulfilled his performance (the obligation to create and deliver the work) and then whether he has fulfilled his other obligations under the provisions of the contract.
Here, it is necessary to make some explanations regarding the obligations of the contractor arising from the contract of work. In general, in contracts of work, the contractor undertakes to create a certain work and deliver it to the owner. The contractor’s “obligation to create the work” is based on Article 470 of the Turkish Code of Obligations. According to the aforementioned provision; “a work contract is a contract where the contractor undertakes to create a work and the owner undertakes to pay a price in return.”
The main obligation of the contractor is to create the work by performing a work and to deliver the work to the owner (in construction contracts in return for land share, to deliver the building to the land owner by constructing the building in accordance with the contract, its purpose and the rules of science and art). As a rule, what is essential is the complete performance of the contract as agreed. Otherwise, the balance of benefits expected from the contract will be disturbed against one party. In such a case, the contractor cannot be deemed to have fulfilled its obligation.
As for the concrete case in the light of the above-mentioned principles and explanations, a construction contract dated 19.10.1990 was concluded between the land owner and the contractor, and the plaintiff purchased the flat subject to the lawsuit from the contractor with the externally arranged contract. In the case filed by the plaintiffs, including the plaintiff of our file, in the file numbered 2009/655 Main, 2013/33 Decision of Muğla 2nd Civil Court of First Instance, it was decided to dismiss the lawsuit based on the same legal reason for the cancellation of the title deed of the apartment subject to the lawsuit against the same defendants, on the grounds that the obligation to be manufactured in accordance with the rules of science and zoning was not fulfilled and the construction was not brought to an acceptable level, and the decision was finalised after the appellate review of our Chamber.
Although the court decided to dismiss the lawsuit on the grounds that the decision is based on the same legal reasons and facts, the parties and the subject matter are the same, and therefore, a final judgement has been formed as of the date of the lawsuit in terms of the request for cancellation and registration of the title deed, in such cases, in order to accept the registration request filed based on the personal right assigned from the contractor, the contractor or the plaintiff, who is his successor, must complete the building according to the construction contract in return for the land share,
In the event that the land owner delivers the land to the land owner by manufacturing it in accordance with its purpose, science and art rules, it cannot be mentioned that the previous decision constitutes a final judgement, since the personal right will be acquired. In other words, since the constructions made in the lawsuits filed based on the assignment of the contractor due to the construction contract in return for land share are continuous and there may be changes in the physical ratio of the construction at any time, the previous lawsuit does not constitute a final judgement for the subsequent lawsuit in two separate lawsuits filed on this subject.
For this reason, it was not deemed correct for the court to decide to dismiss the case due to final judgement in terms of the request for cancellation and registration of the title deed on the grounds that no declaration was made that the lawsuit was filed according to the level of the construction or the new situation that developed and the obligations in the Zoning Law were not fulfilled.
In addition, the basis of the claim in the case is the assignment transaction made by the contractor with an ordinary written contract. To make a definition, the assignment of the receivable is a formal contract that can be made between the creditor and the third party who takes over the receivable without the need for the consent of the debtor and is only a gainful disposition transaction. However, the debtor, who was not aware of the assignment at the time of the assignment, may assert to the new creditor whatever objections and defences he had against the previous creditor upon the new creditor’s demand for performance (Art. 188 TCO).
However, the party relying on the assignment transaction must prove the existence of the assignment transaction to the assignor, and that it has acquired a personal right due to the assignment against the debtor. In this respect, it can be said that in such cases, there is compulsory litigation friendship between the contractor and the land owners. In the presence of compulsory litigation friendship, both the contractor and the landowners must be parties to the same lawsuit. Therefore, the court’s decision to separate the compensation claim against the contractor is not in accordance with Article 167 of the CCP.
While the court should wait for the consolidation of the lawsuit for compensation against the defendant contractor … with this lawsuit and make a decision according to the result by going into the merits of the case, it was not deemed correct to make a written judgement without considering the stated issues, and for this reason, the decision had to 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.
DECISION OF THE GENERAL ASSEMBLY OF LAW
After it was understood that the decision to resist was appealed in due time and the papers in the file were read, the necessity was discussed:
The lawsuit is related to the cancellation of the title deed based on the assignment of the contractor and the request for the collection of compensation in the absence of registration.
The attorneys of the defendants argued that the decision of Muğla 2nd Civil Court of First Instance numbered 2009/655 E., 2013/33 K. constitutes a final judgement and the lawsuit should be dismissed due to the absence of a cause of action, that if the court does not accept that it is a final judgement, the plaintiff does not have the right to request registration due to the contractor’s failure to fulfil its performance, and that the lawsuit should be dismissed due to the lack of capacity in terms of the request for the collection of the immovable property price.
After the local court decided to separate the claim for the collection of the receivable filed against the contractor … from this case file and to register it under a separate main number, considering that the plaintiff did not make a statement regarding the level of the construction or the new situation that developed, Muğla 2nd Civil Court of First Instance 2009/655. Civil Court of First Instance’s decision numbered 2009/655 Main, 2013/33 Decision constitutes a final judgement in terms of the plaintiff’s request for cancellation and registration of the title deed, and considering that the plaintiff can only claim the amount paid from the contractor according to the provisions of unjust enrichment, the landowners do not have party status in the case, the Special Chamber, upon the appeal of the plaintiff’s attorney, reversed the decision on the grounds shown above and the court resisted the previous decision.
The decision of resisting was appealed by the plaintiff’s attorney.
The dispute before the General Assembly of Civil Chambers by way of resisting; whether the decision of Muğla 2nd Civil Court of First Instance dated 17.01.2013 and numbered 2009/655 E., 2013/33 K., which is claimed to be the same for the parties, subject and reason of the case, should be accepted as a final judgement in terms of the case at hand; whether there is a compulsory litigation friendship between the landowner and the contractor in terms of the request of the plaintiff, who assigns the real estate left to the contractor in accordance with the construction contract in return for the transfer of the land share, regarding the collection of the fair value of the real estate.
In terms of the dispute regarding the final judgement:
In order to resolve the dispute, firstly, it is useful to focus on the institutions and concepts of “condition of litigation” and “final judgement”.
The conditions of the case are the elements necessary for the court to make a judgement on the merits of the case. In other words, the conditions of the lawsuit are the mandatory conditions related to public order, which are required for the court to enter into the merits of the case, not for the lawsuit to be filed.
The court investigates and examines the existence of the conditions of the lawsuit both on the day the lawsuit is filed and at every stage of the proceedings, and is not bound by the requests and statements of the parties in this regard. In the event that the conditions of the lawsuit are not present on the day the lawsuit is filed or if it is learnt that one of these conditions has disappeared during the trial, the court must dismiss the lawsuit on the grounds that it is not admissible.
Article 114 of the Code of Civil Procedure No. 6100 reads as follows: “(1) The conditions of the lawsuit are as follows:
a) Turkish courts have jurisdiction.
b) The judicial remedy is permissible.
c) The court has jurisdiction.
ç) In cases where jurisdiction is conclusive, the court shall have jurisdiction.
d) The parties have the capacity to act as parties and litigants; in cases where legal representation is in question, the representative must have the necessary qualifications.
e) Being authorised to pursue a lawsuit.
f) In cases pursued by proxy, the proxy must have the capacity to act as proxy and must have a duly issued power of attorney.
g) The plaintiff has deposited the advance on expenses that should be deposited by the plaintiff.
ğ) Fulfilment of the decision regarding the provision of collateral.
h) The plaintiff has a legal interest in filing a lawsuit.
ı) The same case has not been filed before and is not still pending.
i) The same lawsuit has not been finalised before.
(2) The provisions regarding the conditions of action in other laws are reserved.”
The provisions of this provision are as follows. Accordingly, some of the conditions of the lawsuit are positive (must be present at the time of filing the lawsuit) and some are negative (must not be present at the time of filing the lawsuit).
It is also a condition of the lawsuit that the dispute subject to the lawsuit has been previously resolved by a final judgement (Article 114/1-i of the Code of Civil Procedure (CCP) No. 6100). This condition is called a negative litigation condition.
A final judgement establishes a stability in the legal situation (both for individuals and the state). Since legal security and confidence in the judicial power are ensured, final judgement is directly related to the public interest.
It should be noted immediately that the purpose of final judgement is to resolve disputes between individuals both at the time of finalisation and for the future. In the realisation of this purpose, both the parties to the case, the State and the society benefit. This is because the parties use all their means during the lawsuit in order to finalise the dispute between them in a definitive manner and they want this dispute to end with the decision to be rendered as a result of the lawsuit. This is also in the interest of the State. Because the State does not want the courts to be repeatedly occupied with the same dispute indefinitely ( Arslan, R./Yilmaz, E./Taspinar Ayvaz, S.: Civil Procedural Law, Ankara 2016, p.664).
If there is a final judgement on the dispute subject to the lawsuit, a new lawsuit cannot be filed on the same subject, between the same parties and based on the same cause of action.
The objection of final judgement can be raised at every stage of the lawsuit, and the court must automatically consider the existence of a final judgement at every stage of the lawsuit and dismiss the lawsuit on the grounds that there is a final judgement (due to the lack of a cause of action).
Again, even if the objection of final judgement is not raised in the court, it can be raised for the first time in the Court of Cassation (at the stage of appeal or decision correction) and moreover after the reversal, and it has an absolute effect that does not depend on the will of the parties. Therefore, the fact that the existence of a final judgement is not taken into consideration in one part of the proceedings does not prevent its consideration in another part (Kuru, B.: Civil Procedure, 6th Edition, 2001, C. V, p. 4980 et seq.).
In this context, conclusive evidence is the evidence that binds the parties and the judge and requires that the event proved by such evidence be accepted as the legal truth. He has to accept the matter proved in this way as true.
In our law, conclusive evidence is limited and these are deed (Art. 205 CCP), oath (Art. 229 CCP) and final judgement (Art. 303 CCP). A final judgement constitutes conclusive evidence in a subsequent lawsuit filed on the same subject (Kuru, C. II, p. 2034 et seq.). Final judgement is divided into two as final judgement in formal sense and final judgement in substantive sense.
Final judgement in the formal sense means that all ordinary remedies against the said decision are closed. Some final judgements are final as soon as they are rendered (Art. 361 CCP).
On the other hand, if a judgement, which is open to appeal, is appealed and ultimately upheld and the time for correction of the judgement has expired, or if the request for correction of the judgement is rejected, or if the legal remedy is waived, the judgement becomes final in the formal sense. Once a judgement becomes final in the formal sense, ordinary legal remedies cannot be applied against this judgement. In order for a judgement to become final in the substantive sense, it must first become final in the formal sense.
The conditions of final judgement in the material sense are explained in Article 303/1 of the CCP No. 6100. Accordingly, “In order for a judgement that has been finalised in a formal sense in one case to constitute a final judgement in a material sense in another case, the parties of both cases, the causes of action and the paragraph of judgement of the first case and the result of the claim of the second case must be the same.”.
The first condition of final judgement is that the parties of both cases are the same, the second condition is the identity of the claim, and the third condition is the identity of the cause of action.
The second condition of the final judgement is that the claim, which is the second condition of the final judgement, is the same rights that are the subject of the lawsuit. In order to determine whether the subjects of the previous case and the new case are the same, the judge must compare the judgement paragraph of the decision rendered in the old case with the result of the claim asserted in the new case. Even if the material things that are the subject matter of the old and new lawsuit are physically the same, if the rights claimed on these things are different, it cannot be said that the claims are the same.
The third condition of final judgement is that the cause of action must be the same. The cause of action, unlike the legal cause of action, is the facts on which the plaintiff bases his lawsuit. Therefore, if the material facts (events) on which both cases are based are the same, the existence of a final judgement may be mentioned in the presence of the other two conditions.
As a matter of fact, the same principles are emphasised in the decision of the General Assembly of Civil Chambers numbered 2010/1-602 E. 2010/643 K.
A final judgement is binding on all other courts (including the court that rendered the judgement). To put it more clearly, the courts are bound by the judgement rendered on the same subject matter, based on the same cause of action, about the same parties; they cannot re-examine the same dispute (final judgement objection) and in a new case on the same subject matter, they are bound by the final judgement rendered in the previous case (Kuru, C. V, pp. 5051- 5053).
The final judgement is, as a rule, exclusive to the paragraph of judgement and does not extend to the grounds. However, if the justification does not consist of the legal and logical analyses and deductions (judgement from the evidence) made by the court in order to reach the judgement, but is in an inseparable connection with the paragraph of judgement, it should be accepted that this part is also included in the final judgement exceptionally. Which justification is strictly connected to the paragraph of judgement is determined according to the characteristics of each case.
As for the evaluation of the concrete case within the framework of the principles explained; the court accepted that the file of Muğla 2nd Civil Court of First Instance dated 17.01.2013 and numbered 2009/655 E., 2013/33 K. constitutes a final judgement for the case at hand. However, the subject matter of both lawsuits is the construction contract in return for land share, and considering that the construction is continuous and the construction level may change continuously in the lawsuits filed based on the construction contract in return for land share, the subject matter of the previous lawsuit and the subject matter of the subsequent lawsuit are not the same and the judgement given in the previous lawsuit does not constitute a final judgement for the subsequent lawsuit.
As such, there is no irregularity in the plaintiff’s request for cancellation and registration of the title deed with a new lawsuit. In that case, it is not correct for the court to resist its decision to reject the request for cancellation and registration of the title deed on the grounds that there is a final judgement.
Regarding the dispute regarding compulsory litigation friendship;
First of all, it should be noted that in order for a lawsuit to be filed by more than one person or against more than one person, there must be a legal connection between those who are on the same side. In our law, this connection finds its counterpart in the institution of “friendship of litigation”. The friendship of litigation is analysed under two main headings: compulsory and voluntary. Compulsory friendship of litigation is also regulated under two main headings: substantive and procedural.
In cases where the right that is the subject of the lawsuit is common between more than one person and the court must make a single decision about this legal relationship in the same way for all concerned, it should be accepted that the litigation friendship is compulsory in material terms. In other words, in cases where a right must be exercised by more than one person together or against more than one person, more than one person related to that right is a compulsory litigation friend when that right is subject to litigation.
The conditions under which the friendship of litigation is compulsory are determined according to the substantive law. In compulsory litigation friendship; since the relationship between the litigation friends is very tight, they have to act together in the lawsuit. At the end of the case, the court shall render a single and identical judgement for all of the mandatory litigation friends. In compulsory friendship of litigation, the right that is the subject of the lawsuit is single and there is not as many defendants as the number of litigation partners.
In some cases, although there is no material obligation to file a lawsuit together against more than one person, the law has made it procedurally obligatory to file a lawsuit against more than one person in order to ensure that the truth is better revealed and the legal relationship between the parties is concluded correctly. İn such a case, it cannot be said that a single judgement must be rendered against the litigation partners or that there is an obligation for the litigation partners to act together and in the same way.
Except for these compulsory litigation friendship cases, the litigation friendship is voluntary. According to Article 59 of the Code of Civil Procedure No. 6100 (CCP) titled “Compulsory Companionship of Litigation”; “(1) According to the substantive law, in cases where a right must be exercised jointly by more than one person or asserted jointly against more than one person and a single judgement must be made on all of them, there is compulsory litigation friendship.”
There is a provision in this article.
In this case, in cases where the right and debt subject to the lawsuit, which are clearly listed in the article, are common, more than one person has incurred an obligation with a common transaction (for example, a contract), and the lawsuit has arisen for the same (or similar) reason against more than one person, it is possible for more than one person to file a lawsuit together, and a lawsuit can be filed against them together.
When the concrete case is evaluated in the light of all these explanations; the plaintiff has requested the cancellation and registration of the title deed, and if this is not possible, the collection of the value of the house from the defendants. The basis of the plaintiff’s claim for compensation is the assignment made by the contractor to the plaintiff with an ordinary written contract. The plaintiff, who claims that the right has been assigned to him, must prove to the landowner (debtor) that the contractor has fulfilled his performance, in other words, that he is entitled to claim the personal right. For this reason, it should be accepted that there is a compulsory litigation friendship between the contractor and the land owners.
As a result, while the local court should reach a conclusion by going into the merits of the matter, it is not correct to decide to separate the claim for the receivable filed against the contractor from this case with the contrary opinion and to dismiss the lawsuit filed in terms of the land owner procedurally.
As such, while the local court should comply with the Special Chamber’s reversal decision, which was also adopted by the General Assembly of Civil Chambers, resisting the previous decision is contrary to the procedure and the law.
For these reasons, the decision of resistance should be reversed.
CONCLUSION:
It was unanimously decided on 20.12.2017, with the acceptance of the appeals of the plaintiff’s attorney, that the decision of resistance be reversed for the reasons shown in the Special Chamber’s reversal decision, and that the pre-appeal fee be returned to the depositor if requested, and that the way of correcting the decision within fifteen days shall be open.
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