Elimination of Partnership Sample Decision
14th Civil Chamber Principal No: 2017/3310Decision No: 2021/601
Dispute The dispute relates to the elimination of the partnership; if the plaintiff waives the case and one of the defendants wants to continue the case, the court should continue the case and decide on the merits of the case.
Claimant’s Request: The plaintiff requested that the partnership on 12 immovable properties that he owns together with the defendants should be resolved firstly by division in kind, and in case it is not possible, by sale.
Defendant’s Response: They stated that they want to share the immovables and they want to get their own rights.
Decision of the Court of First Instance: The case was dismissed due to waiver.
Appeal: Appealed by the defendant’s attorney.
Reversal Decision of the 14th Civil Chamber of the Court of Cassation:
In the reversal decision of the 14th Civil Chamber of the Court of Cassation, it was stated that the lawsuits for the elimination of shareholding (partnership) are bilateral lawsuits that have similar results for the parties, and that the defendant has the same rights as the plaintiff in these lawsuits. For this reason, it is emphasised that the plaintiff’s request for the elimination of the shareholding by sale shall not constitute an obstacle for the defendants’ request for sharing in kind.
It has been stated that if the plaintiff waives the lawsuit and one of the defendants wishes to continue the lawsuit, the court should continue the lawsuit and decide on the merits of the case. In this direction, it is stated that the defendants who are present against the plaintiff’s statement of waiver of the lawsuit should be asked what they have to say, and if they wish to continue the case, the proceedings should continue.
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In the concrete case; it is understood that the plaintiff’s attorney waived the lawsuit with all its consequences in the hearing dated 03.03.2014, and the court decided to dismiss the lawsuit due to waiver after the defendant Cebrail stated that he had no objection to the waiver.
Whereas, the defendant noble Sultan requested a decision to eliminate the partnership in the hearing dated 24.09.2007, the defendant Sultan’s attorney submitted a petition of excuse for the hearing where the plaintiff’s attorney waived the lawsuit dated 03.03.2014 and could not be present at the hearing, in this case, in the case of the elimination of the partnership, which is a bilateral lawsuit, it was not deemed correct to decide to dismiss the case without asking what the defendant’s attorney had to say against the waiver, while the judgement should be made after the statement of the defendant’s attorney against the waiver, and therefore the decision of the first instance court was reversed.
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