The Lawsuit Must Also Be Directed To The Mandatory Litigation Friend In Terms Of Form
General Assembly of Civil Chambers 2017/1911 E. , 2018/344 K.
“Case Law Text”
COURT : Commercial Court
At the end of the trial held due to the case of “cancellation of the decision of the board of directors of the cooperative and determination of the membership of the cooperative” between the parties, the decision of Kayseri 1st Commercial Court of First Instance dated 04.04.2013 and numbered 2012/477 E. and 2013/99 K. was appealed by the defendant’s attorney and with the decision of the 23rd Civil Chamber of the Court of Cassation dated 11.09.2013 and numbered 2013/4390-E. and 2013/5291 K:
“…The plaintiff’s attorney stated that an agreement was made with the defendant co-operative to give the plaintiff an apartment in return for the land owned by the plaintiff, that the plaintiff was included in the lottery held in the presence of a notary public, and that the F1 Block A Entrance 5th Floor No. 10 was assigned to the plaintiff, that the plaintiff has been using the apartment since that date, and that despite this, the membership registration was cancelled by the defendant co-operative on 07. 10.2001 dated 07.10.2001 and numbered 264, the membership registration was made in the name of the plaintiff’s sister-in-law …, claiming that there was no transaction between the plaintiff and this person to gain membership rights, and requested and sued for the determination of the co-operative membership in the name of the plaintiff.
The defendant’s attorney argued that the plaintiff is not a registered member of the co-operative, he was registered as a landowner with the right to buy an apartment in return for the land share, the co-operative membership registration of the person named … was made in 2004, no lawsuit was filed within a period of seven years, one year has passed since the transfer of the title deed, there are objections to the statute of limitations, the apartment is registered in the name of …, there is a legal dispute between the plaintiff … and …, and no hostility can be directed to the co-operative, and requested the decision to dismiss the lawsuit.
The court decided to dismiss the lawsuit on the grounds that the plaintiff’s claims may be the subject of the action for performance, and the lawsuit filed is a declaratory action; With the decision of our Chamber numbered 2012/4336 Main, 2012/5660 Decision, the lawsuit is related to the request for the determination of the membership of the cooperative, which is alleged to have arisen with the construction contract in return for land share, and the cancellation of the transactions made regarding the transfer of membership due to the non-transfer of membership to a third party, and through amendment, the request is expressed as the determination that the title deed of the apartment should be given to the plaintiff in accordance with the construction contract in return for land share, and the cancellation of the transactions made in the cooperative due to the non-transfer of this right to someone else,
Although the plaintiff party has amended its final claim, it is not correct for the court to make a decision in a way to meet the demands both before and after the amendment, since the beginning of the trial process, the plaintiff party has asserted the existence of the construction contract in return for land share and indirectly relied on the membership of the cooperative in its claim, which it stated that it changed through amendment, and also the defendant’s attorney stated that “my client is not a member of the cooperative, the plaintiff has another membership that is not subject to this case… “, in this case, it was reversed on the grounds that the dispute should be clarified by obtaining the written statements of the parties that do not leave any room for doubt, and the final claim of the plaintiff should be clearly determined and the result should be decided.
As a result of the trial conducted in accordance with the reversal order; a construction contract was concluded between the plaintiff and the defendant cooperative in return for land share, a total of 167 people within the cooperative were drawn lots from 181 houses, there was no member number for the first 63 people in the list, the plaintiff was also included in this group, the plaintiff was assigned the F 1 Block A Entrance 5. Floor 10, it is clearly stated in the minutes of the draw that 104 of the participants participated in the draw as members and 63 of them participated in the draw as landowners, the member numbers of those who participated in the draw as members are clearly written in the draw minutes, the plaintiff’s rights of the third person …
There is no evidence that he transferred his membership to …, the statement of the defendant co-operative is in this direction, the chairman of the board of directors of that period was heard as a witness, the plaintiff had both membership in return for dues and membership in return for land, he stated that he remembered that he transferred his membership in return for dues to someone else, but he could not remember whether he transferred his membership in return for land, he did not make a statement even though the lawsuit was notified to the non-suit …,
the decision of the board of directors of the co-operative dated 07. 10.2004 dated 07.10.2004 and numbered 264 decision of the board of directors of the cooperative regarding the transfer of the right ownership and membership regarding the apartment to be given to the plaintiff … in return for the land to …, on the grounds that the decision was contrary to the Cooperatives Law and the provisions of the articles of association, it was decided to determine that the decision was not valid and to cancel it.
The decision was appealed by the defendant’s attorney.
1- The lawsuit is related to the cancellation of the membership transfer transaction through amendment. From the evidence in the file, it is understood that the membership of the plaintiff … was transferred to the non-suit … with the decision of the co-operative board of directors dated 07.10.2004. In this case, since the rights of … will also be affected by the result of the judgement established by the court, it was not correct not to consider that the plaintiff party should be given time to file a lawsuit against this person based on the same reasons, and if a lawsuit is filed, it should be consolidated with this file, and then the evidence and statements of the parties should be evaluated and a judgement should be established.
2- For the reason of reversal, it is not deemed necessary to examine the other appellate objections of the defendant’s attorney for the time being…”
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 of the General Assembly of Civil Chambers was appealed in due time and the documents in the file were read, the necessity was discussed:
The lawsuit is related to the cancellation of the decision of the board of directors of the co-operative for the transfer of membership.
The plaintiff’s attorney stated that in the construction contract signed between the parties for the purpose of constructing a building on the immovable property owned by his client, it was agreed that his client would be given an apartment, in this context, the plaintiff was registered as a member of the co-operative, and then in the lottery held in the presence of a notary public, the plaintiff was assigned the apartment numbered F1 Block A Entrance 5th Floor 10, and his client has been using the independent section since that date, the defendant co-operative transferred the plaintiff’s sister-in-law …
to the co-operative on 07. 10.2001 dated 07.10.2001 and numbered 264, whereas there was no transfer transaction between the defendant and the defendant …, which would give this person the right to membership, and all transactions regarding the transfer of the membership right to … are invalid, and requested and sued for a decision to determine that his client is a member of the co-operative.
The defendant attorney argued that the plaintiff was not a registered member of the co-operative, that he was registered as a landowner with the right to buy flats in return for land share, therefore the case should be heard at the Consumer Court, that the plaintiff’s claims are time-barred since the co-operative membership registration of the person named … was made in 2004 and one year has passed since the transfer of the title deed, and that since the independent section subject to the lawsuit is registered in the name of …, the legal dispute is between the plaintiff … and … and that no hostility can be directed to the co-operative, and requested the dismissal of the lawsuit.
The court rejected the request for the determination that the plaintiff is a member of the defendant co-operative on the grounds that there is no decision taken by the board of directors that the plaintiff was dismissed from the co-operative due to the transfer of the co-operative partnership, and that he was accepted as a co-operative partner afterwards; with the petition for amendment, it was decided to dismiss the claim for the determination that the claimant has the right to purchase an independent section from the defendant co-operative in return for the land, that this right has not been transferred and that the title deed of the independent section delivered by the co-operative should be given to the claimant, on the grounds that the claimant does not have legal interest in filing a declaratory action in cases where it is possible to file an action for performance.
In the first reversal decision made by the Special Chamber upon the appeal of the plaintiff’s attorney, the decision was reversed on the grounds that it was not correct to make a decision in a way to meet the demands both before and after the amendment, while a decision should be made according to the result to be formed after the clarification of the dispute and the clear determination of the plaintiff’s final demand by taking the written statements of the parties that do not leave room for doubt.
As a result of the trial conducted by the court by complying with the reversal decision; a contract or document stating that the membership right given to the plaintiff in return for the land share was transferred by the plaintiff to the non-suit … should be kept by the defendant cooperative, the decision dated 07.10. 2004 dated 07.10.2004 and numbered 664 cannot be taken by the co-operative board of directors without any basis, although the burden of proving the existence of the transfer agreement with written evidence and documents belongs to the defendant, no contract or document was submitted by the co-operative within the given definite period, and no declaration and document was submitted by …
to whom the lawsuit was notified, as a result, the basis of the decision regarding the transfer of the right ownership could not be proved with written, definite and sufficient evidence, and it was decided to accept the lawsuit and to cancel the decision of the co-operative board of directors dated 07.10.2004 and numbered 264.
The decision was reversed by the Special Chamber upon the appeal of the defendant co-operative’s attorney with the reasoning written in the title section above.
The court resisted the previous judgment on the grounds that the lawsuit was notified to …, that he did not make a verbal or written statement despite the proper notification, that the lawsuit is related to the cancellation of the decision of the board of directors of the defendant cooperative, that there is no compulsory litigation friendship between the defendant and the non-suit …, and therefore the plaintiff cannot be forced to file a lawsuit against the third party.
Decision of resisting was appealed by the plaintiff’s attorney.
The dispute, which came before the General Assembly of Civil Chambers by way of resistance, centres on whether it is necessary to file a lawsuit based on the same reasons against …, who is aware of the case as the notified party, and whether it is necessary to consolidate it with the case at hand.
Since the lawsuit is based on two parties, there are always two parties in the lawsuit, the plaintiff and the defendant. Due to the nature of the case, sometimes there may be more than one person on the plaintiff and/or defendant side. In cases where there is more than one person on the plaintiff and/or defendant side of the case, the relationship between the persons on the side consisting of more than one person is called “friendship of litigation” (subjective joinder of actions; taaddüdudu of parties) (Alangoya, H.Y.: Medeni Usul Hukuku Esasları, İstanbul 2001, p. 131.) 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 the parties. In our law, this connection finds its counterpart in the institution of friendship of litigation.
Although the friendship of litigation may be subject to different distinctions according to the way it arises, in the Code of Civil Procedure No. 6100 (CCP), the friendship of litigation is regulated under two headings as compulsory (Art. 59 of the CCP) and optional friendship of litigation (Art. 57 et seq. of the CCP)
It is useful to explain the concepts in question here.
In cases where the right that is the subject of the lawsuit is common between more than one person, and the court is required to make a single decision about this legal relationship in the same way for all concerned, it should be accepted that the friendship of litigation 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 is a compulsory litigation friend. İn practice and doctrine, the friendship of litigation arising from the reasons of substantive law is called “compulsory litigation friendship in material terms”, and the friendship of litigation arising from the reasons related to procedural law is called “friendship of litigation in formal terms”.
The cases in which the friendship of litigation is compulsory are generally determined according to the substantive law. In cases where the legal relationship (right or obligation) that is the subject of the lawsuit is common (jointly) between more than one person and the court is required to make a single judgement (judgement) about this legal relationship in the same way for all concerned (those persons), the litigation friendship is compulsory in material terms (Article 59 of the CCP).
Here, the legal relationship between the litigation partners is very tight; the litigation partners can act in the same way and together. In other words, it is not possible for the litigation partners to act differently from each other on the legal relationship (right or debt) subject to the lawsuit, and the court cannot make a different decision about one or some of the litigation partners (Kuru, B.: Civil Procedure, Istanbul 2001, C. III, pp. 3286-3287). This is because in compulsory litigation, the right subject to the lawsuit is single and there is not as many claims 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; in this case, compulsory litigation friendship is in question in terms of form and this type of litigation friendship is only on the defendant side. In such a case, it is not possible to talk about the existence of the obligation to make a single decision about the litigation friends or the obligation of the litigation friends to act together and in the same way (HGK, decision dated 03.07.2013 and numbered 2012/21-1699 E., 2013/1029 K.).
All cases of litigation friendship other than this compulsory litigation friendship are voluntary.
When the concrete case is evaluated in the light of all these explanations, the lawsuits for the cancellation of the decisions of the board of directors of the cooperative must be filed against the cooperative. As a matter of fact, the case at hand was filed against the co-operative. However, since the request is related to the cancellation of the decision regarding the transfer of membership to …, there is no doubt that the rights of … will also be affected by the decision of the court.
This situation obliges … to take part in the case and to use his/her rights of explanation and proof to protect his/her rights. An opinion to the contrary constitutes a violation of the right to a fair trial regulated in Article 6 of the European Convention on Human Rights and the right to be heard in accordance with Article 27 of the Code of Civil Procedure. Accordingly, it should be accepted that there is a kind of formal (procedural) compulsory litigation friendship for the defendant party specific to the concrete case.
As can be seen, this solution is a solution that protects the rights of both the plaintiff and the defendant … in material and procedural terms in accordance with the law.
It is contrary to the procedure and the law for the court to render a judgement on the merits without establishing the parties by taking into account the above-mentioned material and legal facts.
In that case, the court should give the plaintiff a deadline for the case to be directed to …, who is not shown as a defendant, and if the case is directed to this person, with whom there is a connection in terms of material law, the case should be continued, otherwise the case should be dismissed for lack of capacity.
During the discussions held in the General Assembly of Civil Chambers, it was argued that there is no internal lawsuit institution in our law, therefore, the Special Chamber’s reversal decision that a separate lawsuit should be filed against the non-suit … and the lawsuit should be consolidated with this lawsuit is appropriate and the decision of resistance should be reversed on this ground, but this opinion was not adopted by the majority.
As such, the decision of resisting should be reversed for these different grounds and reasons explained above.
CONCLUSION:
With the acceptance of the appeal objections of the defendant’s attorney, the decision of resistance should be reversed for the different reasons and grounds explained above, in accordance with Article 429 of the Code of Civil Procedure No. 1086, which is being applied according to the Provisional Article 3 of the Code of Civil Procedure No. 6100. It was decided by majority of votes in the second meeting held on 28.02.2018, in accordance with Article 440 of the same Law, to return the pre-appeal fee to the depositors if requested, and to be open for decision correction within a period of fifteen days from the notification in accordance with Article 440 of the same Law.
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