The Lawsuit Was Filed As An Indefinite Claim – The Plaintiff Cannot Change The Type Of Lawsuit And Therefore The Result Of The Claim Through Partial Amendment – He Can Only Do This By Fully Amending His Lawsuit
T.C. JUDICIARY
22nd Civil Chamber
Main: 2015/10805
Decision: 2016/17961
Date of Decision: 16.06.2016
EMPLOYEE RECEIVABLES LAWSUIT – THE LAWSUIT WAS FILED AS AN INDEFINITE RECEIVABLE LAWSUIT – THE PLAINTIFF CANNOT CHANGE THE TYPE OF LAWSUIT AND THEREFORE THE RESULT OF THE CLAIM BY PARTIAL AMENDMENT – HE CAN ONLY DO THIS BY FULLY AMENDING HIS LAWSUIT – REVERSAL OF THE JUDGMENT
SUMMARY: The lawsuit was filed as an indefinite receivable lawsuit. During the continuation of the proceedings, the plaintiff partially amended his lawsuit by increasing the amount of receivables he requested. He also changed the type of lawsuit as a partial lawsuit with the aforementioned partial amendment petition. The court accepted the lawsuit as a partial lawsuit based on the amendment petition. As such, it was erroneous and required a reversal to render a written judgment without considering that the plaintiff could not change the type of lawsuit and therefore the result of the claim through partial amendment, but could only do so by fully amending the lawsuit.
(6100 S. Code Art. 141, 176, 319)
Case and Decision: Summary of the plaintiff’s claim: The plaintiff’s attorney, stating that the case is an indefinite receivable case, stated that his client worked at the defendant’s hospital workplace between 16.03.2005-25.02.2013, that he terminated his employment contract due to retirement, and requested severance pay, annual paid leave, overtime and general holiday receivables.
Summary of the defendant’s response: The defendant Ministry of Health attorney argued that since there is no employment contract or agreement between the plaintiff and the defendant administration, the case should be dismissed.
Summary of the court decision: The court decided to partially accept the lawsuit with the written justification according to the evidence collected and the expert report.
Appeal: The decision was appealed by the defendant’s attorney within the time limit.
Grounds: Pursuant to Article 319 of the Code of Civil Procedure No. 6100, there is a prohibition on the extension or amendment of the claim and defense in cases where the simple trial procedure is applied, and (unless there is the express consent of the other party) both parties, as a rule, cannot change the procedural actions they have taken after a certain stage of the case.
Article 176 et seq. of the Code of Civil Procedure No. 6100 provides that “amendment of pleading” is one of the exceptions to this prohibition (Art. 141,2)
As it is known, amendment of pleading is a way that allows one of the parties to correct a procedural action partially or completely for one time only and does not require the approval of the other party.
In the doctrine, amendment of pleading is defined similar to the above definition, as the complete or partial correction of the procedural act made by one of the parties. (KURU, Baki, Civil Procedure Procedure, Vol. IV, Istanbul 2001, p. 3965; ALANGOYA/YILDIRIM/DEREN YILDIRIM/DEREN YILDIRIM, Principles of Civil Procedural Law, Istanbul 2009, p.266; PEKCANITEZ/ATALAY/ÖZEKES, Civil Procedural Law, Ankara 2009, p.361; ÜSTÜNDAĞ, Civil Procedure Law, Vol: I-II, Istanbul 1997, p.549; BİLGEN, Mahmut, Islah in Civil Trial Law, Ankara 2010, definitions and authors cited in p.1; YILMAZ, Ejder, Islah in Civil Trial Law, Ankara 2010, definitions and authors cited in p.49-50).
The lawsuit may be amended completely. It is the plaintiff who can fully amend the case. In a complete amendment, the plaintiff amends his/her case from the beginning (from the statement of claim) and submits a new statement of claim. The plaintiff may change the result of the claim by fully amending the lawsuit. For example, the plaintiff may change the claim for compensation to a claim for registration, change the claim for ecrimisil (receivable) to a claim for prevention of interference, change the claim for cancellation of title deed to a claim for cancellation of the certificate of inheritance (certificate of inheritance).
On the other hand, the amendment applied for the extension or partial amendment of the result of the claim or the cause of action is not a complete amendment, but a partial amendment.(KURU, Baki, Civil Procedure Procedure, Vol. IV, Istanbul 2001, p. 3965)
In the concrete case, the lawsuit was filed as an indefinite receivable lawsuit. During the continuation of the proceedings, the plaintiff partially amended the lawsuit by increasing the amount of the receivables requested. He also changed the type of lawsuit as a partial lawsuit with the aforementioned partial amendment petition. The court accepted the lawsuit as a partial lawsuit based on the amendment petition. As such, it was erroneous and required to be reversed to establish a written judgment without considering that the plaintiff could not change the type of lawsuit and therefore the result of the claim by partial amendment, but could only do so by fully amending the lawsuit.
Conclusion It was unanimously decided on 16.06.2016 that the appealed decision shall be reversed for the reasons written above and the prepaid appeal fee shall be returned to the relevant party upon request.
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