Court Of Cassation Decision On Opening A Workplace By The Board Of Condominium Owners
T.C Judiciary Court 20th Civil Chamber Esas: 2019/ 4647 Decision: 2020 / 225 Date of Decision: 20.01.2020
JUDICIARY DECISION
COURT :Magistrate Law Court
The Supreme Court of Appeals was requested by the plaintiff’s attorney to review the judgment established at the end of the hearing of the lawsuit between the parties, and after the acceptance of the petition of appeal, which was understood to be in due time, the file was examined and considered accordingly:
DECISION
In the lawsuit petition, the insured/non-claimant … Furniture Textile İnş. Tur. Tic. Ltd. Şti. was insured with the workplace package insurance policy of the client … between 09/01/2014-09/01/2015, and on 01/10/2014, the ground floor of the building in Block B of … Outer Blocks
that a fire broke out from the electrical panel on the ground floor of the building, according to the Antalya Metropolitan Municipality fire brigade fire report.
In the fire report, it was stated that the electrical panel in the floor corridor burned with flames, there was dense smoke in the building, the residents of the building were trapped on the balconies, in the fire report, it was determined that some of the furniture in the workplace was damaged due to water leakage as a result of water leakage from the water installation pipes that burned during the fire to the workplace of … furniture belonging to … Ltd. Sti. belonging to … furniture, it was determined that some of the furniture in the workplace was damaged by water as a result of water leakage into the workplace of … furniture belonging to … furniture belonging to … Ltd. which belongs to … Ltd. the insured of the client company, and in the expertise examination made by the client company at the insured workplace, it was concluded that the damage caused by the fire was evaluated within the insurance policy coverage in accordance with the relevant general condition article and the insured
Since 19.475,00 TL was paid to the workplace by the client company at the rate of 100% primary fault of the defendant parties, since the damage was caused by fire and the cause of the fire and the building
Since the floor owner is based on the fault of the defendants, since the defendant parties are responsible for the damage cost, the 19.475,00 TL recourse compensation receivable from the defendant parties, together with the bank rediscount interest from 20/01/2015, the date of payment of the client company from the defendant parties, to the immovable property
It was requested to collect from the owners jointly and severally in proportion to their shares in the immovable property.
It has been seen that with the decision of the court dated 02/10/2015 and numbered 2015/597 E. – 2015/703 K., it has been decided that the court has no jurisdiction and that the Alanya Civil Court of First Instance is authorized to look at the file, and the file has been sent to the Court of Cassation by the plaintiff’s attorney against the decision of lack of jurisdiction. It was decided to be reversed with the decision of the 17th Civil Chamber of the Court of Cassation dated 01/10/2015 and numbered 2015/10951 E. – 2015/10082 K.
As a result of the trial conducted by the court in accordance with the reversal, it was decided to dismiss the case due to the lack of hostility, and the judgment was appealed by the plaintiff’s attorney.
Pursuant to the provisional Article 3, paragraph 1 of the CCP No. 6100; the regional courts of appeal are the courts of first instance of the Courts of First Instance and Regional Courts of First Instance dated 26/9/2004 and numbered 5235.
Pursuant to the provisional Article 2 of the Law on the Establishment, Duties and Authorities of the Regional Courts of Appeal, the provisions of the Law No. 1086 in force regarding the appeal shall continue to be applied until the date of commencement of duty to be announced in the Official Gazette. According to paragraph 2; regional court
The provisions of Articles 427 to 454 of the Law numbered 1086, prior to the amendment made by the Law dated 26/9/2004 and numbered 5236, shall continue to be applied to the decisions rendered before the date of commencement of duty of the courts until they are finalized. The files related to these decisions cannot be sent to the regional courts of justice. Pursuant to paragraph (3) of the same article, in cases where the regional courts of justice are assigned by this Law, the provisions of the Law No. 1086 which are not contrary to this Law shall be applied until the date these courts take office. Pursuant to paragraph (2) of the same article; the provisions of Articles 427 to 454 of the Law No. 1086, prior to the amendment made by the Law dated 26.09.2004 and numbered 5236, shall continue to be applied to the decisions against which the appeal has been filed before the date of the commencement of the duty of the regional courts of justice, until they are finalized, and in Article 437 of the HUMK No. 1086, the appeal period against the decisions of the civil court of peace is 8 days.
From the examination of the case file; it is understood that in the short decision and the reasoned decision of the first instance court, the application period and the authority for the legal remedy were stated as the legal remedy of appeal within 2 weeks, and the defendant’s attorney submitted the petition for application to the legal remedy according to this period.
In the second paragraph of Article 40 of the Constitution, it is stated that the state is obliged to specify the legal remedies and authorities to which the relevant persons will apply and their duration. Pursuant to subparagraph “ç.” of Article 297 of the Code of Civil Procedure No. 6100, it is an obligation to indicate the legal remedies and their duration in the judgment. By ensuring that the parties are properly informed about the legal remedies and the authorities to which they can apply against the actions taken by the state organs and the duration of the application, the legislator aims to ensure that individuals who do not know or hesitate which remedy to apply in the face of the scattered legislation can exercise their freedom to seek their rights in an effective and healthy manner.
The Constitutional Court has also stated in many of its judgments that it may be considered reasonable for the applicants to rely on the time period specified in the reasoned decision and that, considering the obligation of the court to correctly indicate the legal remedy and its duration to the parties, in the face of the fact that the appeal period is stated differently in the court decision,
The Constitutional Court concluded that the evaluations that decided to reject the petition by accepting that the period specified in the law was the period specified in the law could not be accepted to be within the framework of the provisions of the legislation and within the limits of foreseeability, that the interpretation made was obtained with an excessive formalist approach to the extent that it was impossible for the applicants to exercise their right of appeal, and that in this respect, the decision violated the applicants’ right of access to the court, and concluded that the right to a fair trial guaranteed under Article 36 of the Constitution was violated. (The decision of the Constitutional Court with application number 2014/819 and dated 09.06.2016 (published in the Official Gazette numbered 29757 and dated 29.06.2016)).
In the concrete case; the court of first instance explained the legal remedy period as 2 weeks from the date of notification of the decision in the short decision and the reasoned decision. The reasoned decision was notified to the plaintiff’s attorney on 14/02/2019, and the plaintiff’s attorney filed a legal remedy against the decision on 28.02.2019 by depositing the fees and expenses within the 2-week period specified in the short decision and the reasoned decision. For the stated reason, considering the right to a fair trial and the right to access to justice, it has been decided to examine the reasons for the plaintiff’s appeal by accepting that the appeal request is in due time and entering the merits of the matter.
The lawsuit is related to the claim for recourse compensation arising from workplace insurance.
In order to resolve the dispute, it is necessary to first explain the compulsory litigation (follow-up) friendship.
Compulsory friendship of lawsuit is the friendship of lawsuit in cases where it is compulsory for more than one person to file a lawsuit together or to file a lawsuit together against more than one person. The friendship of litigation arising from the reasons of substantive law can be called compulsory friendship of litigation in terms of substance, and the friendship of litigation arising from the reasons related to procedural law can be called compulsory friendship of litigation in terms of form.
The type of litigation friendship that becomes operational exclusively for the defendants, aims to reveal the truth with all its dimensions and to resolve the dispute between the parties in a healthier and more accurate manner, and arises in cases expressly stipulated by the law is called formal compulsory litigation friendship (Tanrıver, S. Civil Procedural Law, C 1, Ankara 2016, p. 542). It is necessary to determine whether the lawsuits (proceedings) arising from a disputed legal relationship that leads to formal friendship of litigation are mandatory to be filed against more than one person, according to whether there is a legal provision on this issue.
In cases where it is required to file a lawsuit against more than one person in accordance with the provisions of special laws, the lawsuit must be filed against all of the defendants. When there is a deficiency in the co-defendants, the current defendant cannot carry out the case alone, and a judgment cannot be rendered against the current defendant until the deficiency in the defendant is eliminated. This deficiency is the lack of authority to pursue the case and the case should be dismissed procedurally (Pekcenıtez, H. /Özekes, M./Akkan, M. Korkmaz, H.T.: Civil Procedural Law C 1, Istanbul 2017, pp. 706-707).
However, from the examination of the information and documents in the file; it is understood that the main immovable subject to the lawsuit is a condominium.
Article 19 of the Condominium Law No. 634 stipulates that each condominium owner is liable for the damage caused to the main real estate and other independent sections due to his fault.
According to Article 20/1-b of the Condominium Law, “The insurance premiums of the main real estate and the maintenance, protection and repair expenses of all common areas and other expenses such as the manager’s salary and the operating expenses of the common facilities and the advance to be collected for the expenses in proportion to its own land share
is obliged to participate.” Although the plaintiff’s attorney requested the collection of the amount paid to the insured jointly and severally from the defendants in proportion to their shares in the immovable property, the liability of the defendants that will arise if the plaintiff proves the plaintiff’s claim is in proportion to the land share and in this respect, there is no compulsory litigation friendship between the defendants. Compulsory litigation friendship
… and if they are not included in the lawsuit, the lawsuit should be dismissed only for this defendant and a decision should be made according to the result to be formed by entering into the merits of the case for the other defendants, but it was not deemed correct to decide to dismiss the whole lawsuit for lack of hostility.
Moreover, after the lawsuit was filed, the plaintiff was given a definite deadline to include the heirs of the defendant …, who died during the trial, in the lawsuit, and it was decided to dismiss the lawsuit for lack of hostility, but it cannot be said that the deadline given was in accordance with the procedure. In order for the cases to be concluded in a short time and for justice to be served as soon as possible, some judicial procedures to be performed by the parties or the courts are subject to periods of time. As it is known, while the law itself determines some of these periods, it has left some of them to the judge to determine according to the nature of the work and the situation of the parties. The statutory periods are definitive, except for clearly stated exceptions.
For this reason, as stated in Article 90 of the Code of Civil Procedure No. 6100, the periods determined by the law cannot be reduced or increased by the judge. On the other hand, according to Article 94 of the same Law, the periods determined by the judge are not definite as a rule. The judge may reduce or increase the time limit before it expires, or may grant a new time limit upon the request of the party after the expiration of the time limit.
In this case, the second period is final. However, the judge may also decide that the period he/she has determined is definite. There is no doubt that a procedural vested right will arise in favor of the other party in the event that a definite time period is determined. It should be noted immediately that, whether it is determined by the law or by the judge, it is not possible to fulfill a transaction that has not been fulfilled within the definite period, after this period has passed.
Thus, missing the deadline brings heavy consequences such as not being able to rely on that evidence or right, and sometimes even causes the case to be lost. In this respect, based on the idea that delayed justice is an injustice, the definite time rule, which is set in order to prevent unnecessary prolongation of the lawsuits, should be used in accordance with the purpose of the law and should not be considered as a tool for the dismissal of the lawsuit. First of all, the interim decision regarding the definite period of time must be written clearly and completely in a way to prevent any misunderstanding, and the tasks to be performed must be specified one by one.
In addition, the time given must be sufficient, the works ordered must be necessary and feasible, and the judge must clearly explain the consequences of failure to comply with the deadline and warn the parties. In the concrete case, in the hearing dated 11/04/2018, the plaintiff party was given a definite period of time to include the heirs of the defendant … in the case or to make a statement regarding this
The plaintiff party submitted a petition to the court on 24/04/2018 to obtain a certificate of inheritance, and the court was authorized by an interim decision to obtain a certificate of inheritance. Thus, it cannot be accepted that the plaintiff has the intention to prolong the case, and while at least the result of the transaction should be awaited, it was necessary to make a decision as written with the opposite opinion.
CONCLUSION: For the reasons explained above; it was decided on 20/01/2020 with the majority of votes to accept the appeals of the plaintiff’s attorney and to VACATE the judgment and to refund the appeal fee upon request.
DISSENTING OPINION
Although the decisions of the civil court of peace can be appealed within 8 days, since the appeal period is stated as “two weeks” in the short decision of the local court, it is necessary to evaluate whether the appeal petition submitted by the defendant’s attorney 14 days after the notification of the decision will be accepted within the time limit in terms of the provisions of the legislation in force and legal stability.
In the judicial activity that starts with the filing of a lawsuit, there are certain actions that must be taken by the court and the parties in order to reach a decision, and each action must be taken within a certain time interval. These time intervals, which acquire a normative value through procedural provisions, are called time periods. Thus, the execution of procedural acts is not left to the desires and initiatives of the parties or the court.
By being brought to court, a dispute is transferred to the public sphere, to a platform that also concerns the interests of the society. Therefore, it is in the interest of society as well as the parties to bring a case to an end within a reasonable time.
In this case, the objectives to be achieved in civil procedural law with the adoption of norms on duration can be summarized as: ensuring justice as soon as possible, preventing arbitrariness, preventing the court from being preoccupied with the same matter for a long time, in other words, preventing the court from being unable to allocate enough time to other cases and matters; ensuring the conclusion of the case within a reasonable time in accordance with supranational and national mandatory norms, conducting the proceedings in a certain order and with a predictable timeliness, in other words, ensuring the fair conduct of the proceedings.
An important part of the time limits are the time limits set for the parties. The parties may or must carry out certain transactions within these periods. Transactions that cannot be performed within this period cannot be performed again and will result in consequences against the party who missed the deadline. The time limits set for the parties are divided into two: the time limits set by law and the time limits set by the judge.
The time limits specified in the law are the time limits stipulated by the law. Such as reply period, appeal period. These deadlines are final and the court shall ex officio observe whether a transaction has been carried out within the statutory period. The periods determined by the judge, on the other hand, are, as a rule, not final (Kuru, Baki, Prof. Dr.; Arslan, Ramazan, Prof. Dr.; Yılmaz, Ejder, Prof. Dr.; Textbook of Civil Procedural Law, 22nd Edition Rewritten According to the CCP No. 6100, Ankara 2011, p.749).
Pursuant to Article 90/2 of the Code of Civil Procedure No. 6100 (CCP), the judge may reduce or increase the period of time that he has determined, based on justified reasons, after hearing the two parties. The judge may also decide that the time period determined by the judge is definitive (Art. 94/2 of the CCP, Art. 163 of the HUMK).
As stated above, although there are cases where the judge can determine the duration, the judge does not have the authority to dispose of the periods determined in the law. In other words, a period stipulated by law cannot be extended or shortened by the judge. The time limits for appeal are also definite time limits regulated by the law and must be observed ex officio.
Paragraph (1) of the provisional Article 3 of the CCP No. 6100 Paragraph (1) of the provisional Article 3 of the CCP No. 6100; “Regional courts of appeal shall be established in accordance with the Law No. 5235 dated 26/9/2004 on Courts of First Instance and Regional Courts of Appeal.
The current provisions of the Law No. 1086 regarding the appeal shall continue to be applied until the date of commencement of duty to be announced in the Official Gazette pursuant to the provisional Article 2 of the Law on Establishment, Duties and Authorities.”
Article 437 of the Code of Civil Procedure No. 1086 as it existed before Article 16 of the Law No. 5236, which reorganized Article 437 of the Code of Civil Procedure No. 1086, reads as follows: “The period of appeal against the decisions of the court of peace is eight days. This period starts to run with the notification of the judgment to each of the parties….”
For all these reasons, except in exceptional cases specified in the law, the judge cannot increase or decrease the periods in the law. Although the period of appeal against the decisions of the civil court of peace is 8 days according to the provisions of the law currently in force, we cannot agree with the opinion of the majority since the erroneous statement by the court judge that the decision can be appealed within 2 weeks will not provide any rights to the party appealing the judgment.
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