The Civil Courts Of Peace Are In Charge Of Disassociation Cases Concerning Immovable Property
14th Civil Chamber 2020/4125 E. , 2021/1110 K.
“Case Law Text”
COURT :Civil Court of First Instance
It was decided to reject the appeal request as it was not in time with the judgement dated 14/09/2020 and numbered 2016/16284 Main, 2020/4931 Decision of our Chamber, which was given by the district court due to the case of disassociation and registration between the parties. Since the correction of the decision was requested by the plaintiff’s attorney within the period of time, all documents in the file were examined and the necessity was considered:
DECISION
The lawsuit is related to the request for disassociation from shareholding based on Article 696 of the TMK.
The plaintiff’s attorney; they purchased the workplace subject to the lawsuit from the defendant by tender, TOKİ did not fulfil its legal and humanitarian duties in the place subject to the lawsuit for 15 years, did not establish the condominium ownership of the bazaar and did not obtain the occupancy, the bazaar was occupied by negative people contrary to the project for years, they were threatened by the defendant when they tried to seek their legal rights, they could not even go to this place to see what the place they bought was like, they were constantly threatened, for these reasons, the defendant was removed from the shareholding in accordance with Article 696 of the TMK. In accordance with Article 696 of the TCC, the defendant was disqualified from being a shareholder, TOKİ’s shareholding was terminated and their shares were registered in their names.
The defendant’s attorney defended the rejection of the lawsuit.
The court decided to dismiss the lawsuit.
Upon the appeal of the plaintiff’s attorney, it was decided to reject the appeal request as it was not in due time with the decision of our Chamber dated 14.09.2020 and numbered 2016/16284 Main, 2020/4931 Decision.
The plaintiff’s attorney requested a correction of the decision.
Pursuant to Article 2 of the Code of Civil Procedure No. 6100, regardless of the value and amount of the subject matter of the lawsuit, the court in charge of cases related to property rights and cases related to personal assets is the civil court of first instance, unless there is a contrary regulation. Unless otherwise stipulated in this Law and other laws, the civil court of first instance shall also have jurisdiction over other cases and proceedings.
The duty is related to public order and must be taken into consideration by the court at every stage of the proceedings.
Since the plaintiff requests the removal of the defendant from the shareholding in the immovable property numbered 512 block 4 parcel, the case must be heard in the civil court of peace in accordance with Article 696 of the Turkish Civil Code. It is not correct for the court to examine the merits of the case by the civil court of first instance, which has no jurisdiction, while the court should make a decision of non-jurisdiction on the grounds that the civil court of peace has jurisdiction to resolve the dispute by ex officio considering the duty issue, which is a matter of public order.
As a result of the appellate examination of the judgement, while it should be reversed for the reason written above, it was decided to reject the appeal request as it was not in time as a result of a material error, but since it was understood by the examination made this time that the appeal request of the plaintiff’s attorney was in time, it was necessary to accept the decision correction request of the plaintiff’s attorney and to revoke the decision of our Chamber dated 14.09.2020 and numbered 2016/16284 Esas, 2020/4931 Decision and to revoke the judgement for the reason stated above.
CONCLUSION:
For the reasons explained above, it was decided unanimously on 22.02.2021 that the decision of our Chamber dated 14.09.2020 and numbered 2016/16284 Main, 2020/4931 Decision be revoked, the judgement be reversed, other appellate objections are not examined for the time being, and the prepaid fee be returned to the depositor.
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