Prohibition of Changing And Expanding the Case Or Defense

It is important that when filing a lawsuit on an issue, it is clear what is requested in the case and that every incident and evidence that serves to prove the rightness of that issue is presented to the court. Because the judge in civil courts cannot investigate and take into account events or evidence that have not been brought forward by the parties or submitted to the court on their own.  All events and evidence must be brought before the court by the parties. The judge cannot take into account things or events that one of the two parties has not said by himself, or even make actions that can remind them.[1]

Likewise, the judge cannot decide anything more than the parties request in the case or anything other than the parties’ request. That is, the judge makes a decision in accordance with the demands of the parties, based on the evidence and events presented by the plaintiff and the defendant to the court. However, the parties may not have been able to present certain events or evidence to the court for reasons such as forgetfulness, sometimes misconceptions, and sometimes negligence. Or they may want to change what they requested in the lawsuit or their previous statements. But this is not always possible. Because the parties are subject to certain prohibitions after a certain stage of the trial to show new evidence, change their statements or requests.

In this bulletin, we have examined in detail how the parties can subsequently make changes to the claims, evidence and events submitted in a lawsuit or response petition in light of the changes made to the Code of Civil Procedure last year.

1) Asserting Claims And Defenses in a Case And The Events On Which It Is Based

In criminal cases, the parties can assert all their claims and defenses related to the case at all stages of the case, and they can always show evidence until the verdict is finalized to prove their claim.  In civil proceedings, the plaintiff and the defendant may submit their claims to the court up to a certain stage of the case, the events and evidence on which these claims are based. When the parties want to put forward new and other events, evidence and claims at later stages of the case, they face a number of prohibitions. The aim is to ensure that the proceedings proceed regularly and quickly, and that the cases do not drag on unnecessarily. Therefore, when filing a lawsuit and responding to petitions, it is necessary to think carefully, make sure that all requests, events and evidence are described in the petitions.[2]

Courts can also make decisions only taking into account the claims and evidence put forward up to a certain stage. This is called a ban on the expansion and modification of the claim or defense.[3]

2) When Does the Ban On Change And Expansion Begin?

There are two different types of judicial procedures in civil proceedings; petty judicial procedure and written judicial procedure. Which judicial procedure will be applied is determined by the courts and the subject of the case. A person who thinks that his right has been violated claims his right with a petition written to the official and authorized court presidium. In both trial procedures, the petitions stage, which is the first stage of the trial, begins with this petition, called the petition of claim. The respondent party, whose petition for a lawsuit has been notified to him, notifies him of this petition with a request for an response that he will respond to. In a petty trial procedure, the petitions stage ends with a response petition. Then it is passed on to the stages of preliminary examination and investigation.[4]

In the written trial procedure, the respondent’s response petition is also notified to the plaintiff and the plaintiff submits his statements against this petition to the court with a response petition to the respondent’s response. The respondent responds to the response petition with the second response petition. With the issuance of the second response petition, the petitions phase ends. After the petitions stage, the trial continues with the preliminary examination and investigation stage.

2.1.) If a Response or a Response to a Response Petition has been Submitted within the Time Limit;

In the written trial procedure, a response petition must be submitted within a 2-week period after the petitions have been notified to the other party.[5] With the issuance of the second response petition in the written trial procedure; with the issuance of the response petition in the petty trial procedure, the ban on changing and expanding the claim and defense begins.[6] In the written procedure of the trial, the plaintiff can freely assert all his claims by filing a petition for a lawsuit and a petition for a response to the response. The defendant can also put forward all his defenses with requests for a response and a second response. In a petty trial, the parties will freely put forward all their demands in the only petition they will give.

2.2.) If No Response or Response to the Response Petition has been Submitted within the Time Limit;

If the defendant has not filed a response petition within 2 weeks of the petition being notified to the other party, he is deemed to have denied all the issues in the lawsuit petition. At the next stage, he cannot defend himself by filing a re-petition. During the trial, he must make a defense within the framework of his denial of the case. If the defendant does not file an response petition, the plaintiff will also not be able to file an response petition for a response.[7] In this case, with the expiration of the 2-week period, which is the period for filing a petition, the petitions stage will be completed, and the ban on changing and expanding the case (or defense) will begin with the expiration of this period.

Likewise, if the plaintiff has not submitted an response petition to the response, the defendant cannot submit a second response petition. The petitions stage will be completed after the expiration of the 2-week period.[8]

In the same way, in the petty trial procedure, the petitions stage is considered completed after the petition for an response is not submitted within a 2-week period.[9]

The parties may request additional time for a one-time petition. The court may give additional time not exceeding 2 weeks.[10]

3) Which Requests And Amendments Are Not Covered By The Ban?

  • It is possible to reduce claims in the case, to narrow its scope.
  • Changing the legal reasons The case relied on does not count as changing and expanding the case. [11]
  • Correction of simple writing and account inaccuracies in the lawsuit or response petition, is possible until judgment is passed.[12]
  • Events that are implicitly involved in the actual event can also be put forward. These are events that are too dependent on the actual event to be the subject of a separate case.[13]
  • Objections that can be understood from the case file can be put forward during the case. It is possible to disclose the content of the events that are present in the case file.
  • Events arising after the submission of the petition can also be put forward, these are not covered by the ban.[14]
  • The claim of malice is a reason for objection that prevents the origination of a right, so it can always be put forward. The judge is obliged to consider such objections at all stages of the case.
  • Abuse of a right(violation of the rule of decency) is also a claim that can always be put forward.If the immovable property to which the share subject to the pre-sale claim is related is privately divided among the stakeholders and each stakeholder uses a certain part while one of them sells the place used by him and the share corresponding to this place to a third party, the plaintiff who does not claim the right to this place at the time of the seller uses the pre-sale right due to the sale made in the title deed it is incompatible with the rule of acting honestly contained in Turkish Civil Code article 2. According to the Decision of the Supreme Court Case Law No. 17/1 dated 14.2.1951 on the claim of malevolence, it can be put forward at all stages of the case, as well as the court itself must be taken into consideration. In such cases, there is no question of expanding the defense. If there is an active sharing, the case must be dismissed.” [15]
  • Claims that a debt has been paid off or otherwise terminated can always be put forward. “As a rule, evidence, whether based on it at the trial stage or not, cannot be presented at the appeal or decision correction stage; even if they are presented, they cannot be considered during the examinations at these stages. The only exception to this rule is that the evidence based on and submitted is of a nature that extinguishes the debt subject to this case; for example, a receipt indicating that the debt subject to the case has been paid is a document such as equittanceIt is also necessary to recognize that there can be no mention of a ban on expanding the defense in the presence of a document submitted at the appeal stage that extinguishes the debt. (General Assembly of the Supreme Court of Law Dated 24.02.2016, based on 2014/22-735, decision of 2016/166) In the concrete case, it was seen that the defendant submitted some charts and payment documents to the file after the expiration date. It has been in place that documents other than payment documents have not been considered by the court. However, the submitted documents related to the payment are objectionable and the payment documents must be taken into consideration at every stage of the trial, even at the appeal stage, because of the feature that eliminates the right.”[16]
  • Due to the legal nature of the case and the specific nature of the concrete event, if the defendant has provided a document that extinguishes the debt subject to the case at the appeal stage, a decision must be made by conducting the necessary examination of this document. In other words, if the trial stage has not yet been completed, in such a case, the document redeeming the debt should be evaluated. Indeed, the defendant’s defense, which denies the case at trial, also covers the defense that there is no debt. Therefore, it cannot be mentioned that the defendant’s right to explain why the debt was not found and to substitute his evidence in contrast to the claim has disappeared. It is also necessary to recognize that for the reasons indicated, there can be no mention of a ban on expanding the defense in the presence of a document submitted at the appeal stage that eliminates the debt.[17]
  • This prohibition does not apply in cases where the principle of ex officio examination applies. For example, cases related to robbery, a case for the cancellation of a marriage due to absolute impediment are cases where the principle of ex officio examination is applied. “In cases where the principle of ex officio examination is valid and the principal gain is determined, the ban on expanding the claim and defense is not applied.[18]
  • Showing the issues that are the evidence of the existing cases within the limits of showing the evidence is also not a suggestion of a new case. However, if a new case is also being brought forward while evidence is being put forward, it will be considered within the scope of the ban.”[19]
  • In cases of indefinite receivables, the plaintiff may increase his demand for a one-time payment. It is possible that it will increase the case value without getting stuck in the ban on changing or expanding the case. According to article 107 of the Code of Civil Procedure entitled “Uncertain Receivables and Determination Case”, the plaintiff can file an indefinite receivable claim by specifying a minimum amount or value if he cannot determine the exact and precise amount of the receivable on the date of filing the lawsuit. As soon as it is possible to determine the full and exact amount or value of the receivable as a result of the information provided by the counter party or the investigation, for example, an expert report, the plaintiff can increase the claim specified at the beginning of the case without being subject to a ban on expanding the claim.[20] The court will give him a definite period of 2 weeks in this case. If the plaintiff does not increase his request during this period, the case will be heard and decided on his former request. If the plaintiff, who has filed a partial lawsuit and has requested only a part of his/her receivables, which are all obvious, wants to add the rest of his/her receivables to his/her claim during the lawsuit, he/she can do so only with the reclamation or the express consent of the counter party[21]; as in the case of indefinite receivables, the case cannot increase its value freely.

4) Which Requests And Changes Are Covered By The Ban?

  • Modification or expansion of the subject of the case, that is, the claim in the case,
  • Modification or expansion of the cause of case,
  • Adding new claims to the result of the claim in the case,
  • Changing the events and facts based on the case or relying on new and other events,
  • It cannot be done after the petitions stage due to the ban on changing or expanding the claim and defense. The ability to make these changes depends on the fact that the counter party explicitly allows it. Otherwise, if such requests are put forward by new petitions submitted to the court after the petitions stage, even if they are voiced at the hearing, they will not be considered by the court. They are ignored when judging, almost like requests that have never been voiced. For example;
  • Increasing the amount of receivables subject to litigation,
  • While no interest was requested when filing a lawsuit, it being requested later,
  • In the case where the determination of the rental price is requested, the tenant’s eviction is requested afterwards,
  • The claim that the receivable subject to the lawsuit has been subject to the statute of limitations is put forward later,
  • Relying on the reason for the violation of the contractual debt in a case based on a tort,
  • Conversion of the inheritance equalization request into a abatement request,
  • Although a claim for material and non-pecuniary damages has not been filed in a divorce case, these claims being added later,
  • Requesting payment of the cost of the goods by refusing the delivery of the goods subject to the case,
  • In addition to material compensation, non-pecuniary compensation being requested,
  • Conversion of the case of cancellation of the title deed and registration into a case of revocation of the certificate of inheritance,
  • Converting the abatement case into a title cancellation and registration case due to simulation,
  • In the case of the employee’s receivables, the employee requesting new receivables afterwards,
  • Requests such as the person who opposes the amount of receivables in the promissory note to assert the claim that the signature in the promissory note does not belong to him are prohibited.

According to the evidence collected by the court of first instance and the trial conducted, that the plaintiff did not object to the signature on the check in question in the petition of claim, in which case it cannot be assumed that the plaintiff has just found out that the turnover on the check is fake, that this issue that the plaintiff put forward after the expert report is contrary to the prohibition of expanding the claim, the defendant paid the debt with two checks, there was no debt left to the plaintiff on the grounds that the case was dismissed, the award of bad faith compensation was decided in favor of the defendant, and the decision was appealed by the plaintiff’s deputy to the remedy of the law of appeal. After the expert report was submitted to the file by the Regional Court of Justice, the claim that the signature on the …check did not belong to the client’s company official..since the claim is subject to a ban on expanding, the plaintiff’s attorney has not filed a petition for correction related to …this claim, the defendant has no explicit consent to it, the court has Decried its interim decision on this issue and decided to reject the plaintiff’s attorney’s appeal on the grounds that the decision to dismiss the case is in accordance with the procedure and law, and the verdict was appealed by the plaintiff’s attorney. The court of first instance did not examine the plaintiff’s books, nor did it have a check delivery document submitted by the defendant in the file, but it also interrupted its investigation into whether the endorsement signature belonged to the plaintiff with the defendant’s objection. Investigation of the authenticity of the case material submitted to the case file cannot be considered as an expansion of the claim and defense. As a result, the request for an appeal against the decision established by the court of first instance with incomplete examination was not considered on the spot by the Regional Court of Justice, and it was not correct to reject the request for an appeal on the merits, and the provision had to be overturned.[22]

5) How Can Claims, Defenses And Demands That Have Not Been Written To The Petition Be Put Forward?

Is it possible to put forward requests and events that the parties can no longer put forward after the petitions stage under the previous title, which will not be considered by the court even if they put forward? The answer to this question should be “yes under certain circumstances”.

If one of the parties expressly consents to the other, it may put forward these claims and demands later, which it did not specify in its petition. If the counter party objects to the statement of these claims and defenses, the court cannot take them into account.[23]

If the counter party does not object to this request or the statement of events, there are two ways to go;

  • Rectification of the case,
  • To file a new lawsuit and demand that the cases be consolidated. This is possible only if the claims are of a nature that may be the subject of a new lawsuit.

6) Rectification of the case

Correction or modification of the procedural actions taken by one of the parties in the case is possible with the rectification of the case. The plaintiff uses the rectification method in order to submit to the court the issues that he forgot or did not specify in his petition as a result of an error. Or he can rectificate the case in order to correct a transaction he made in his petition or to change it. In short, rectification is carried out in order to put forward evidence, to include events or claims that are not included in the case in the case.[24] For example, he can put forward the statute of limitations that he forgot to put forward through rectification, and he can increase it to 200,000 TL through rectification, while he has indicated in his petition that he will receive 100,000 TL.

In order for the rectification to be valid, the opposing party does not have to consent to it or the court to approve it. It can be done orally in court or by petition. The oral statement must be recorded by the court and signed by the rectificational party.

Each of the parties provided only one-time in the case can freely rectificate his case.

The rectificational party must deposit an amount of collateral that the court will appreciate to the court’s teller within 1 week to cover the costs of transactions that have become invalid due to the correction and the damages suffered and may be incurred by the counter party. If the deposit is not deposited within this period, the rectification is considered to have not been made and this party cannot request rectification again.

The case can be fully or partially rectificated. A complete rectification is a complete renewal of the case from the moment of filing a lawsuit. From the date of filing a lawsuit, all transactions made up to that day are canceled. It’s almost like the case starts all over again. However, with confession, witness statements, expert reports and depositions, discovery, and trial proceedings that have been fulfilled, or has not yet been fulfilled, provided that the other side is notified prior to rectification, oath proposal, return or rejection cannot be overridden by rectification.[25]

The case can be completely rectificated by filing a new petition within 1 week. For example, the plaintiff can completely rectify his case and turn the prevention of confiscation case into unfair occupation compensation.[26]

If the case is partially rectified, the demand in the case is increased or its scope is expanded. It should be indicated in the rectification request which aspect is requested to be corrected or changed.

If the court considers that the rectification has been acted with malice, such as prolonging the case or disturbing the other party, it will not consider the rectification. The court may also decide on the payment of a fine.[27]

7) How Long Till Rectification Can Be Done?

Rectification can be carried out until the end of the investigation stage. “When the file is sent to the court of first instance after the decision of the supreme court to overturn or the decision of the district court of justice to remove it, if the court of first instance takes action on the investigation, rectification can also be made until the end of the investigation. However, the legal situation arising from complying with the decision to overturn cannot be eliminated.”[28] It should be noted that the right to rectification should not have been used before for rectification to be carried out at this stage.

With the 04/02/1948 dated and 1944/10-1948/3 numbered Decision of Joint Chambers, it was accepted that no rectification could be made after overturning it. However, with the amendment to the law, rectification can also be carried out after overturn. If the decision returned from the district court is re-examined in the relevant court, rectification can also be made here. But if the court has decided to comply with the overturn, a vested right arises for the party who is in favor of the decision to overturn. In other words, the court can now do so within the framework of the decision to overturn its review and limited to it. It is essential that the decision made also complies with the principles of the decision to overturn.[29] This situation is called a procedural vested right, “..in order to prevent the prolongation of cases, to ensure stability in the legal field and to prevent the general trust in decisions from being lost, it has been developed with the Supreme Court practices, accepted in teaching and has become one of the indispensable basic principles of procedural law. A procedural acquired right, in its meaning, refers to the right that was born in favor of one of the parties by a procedural action taken by a court or the parties in a case and must be complied with.
If the court complies with the Supreme Court’s decision to overturn, a vested right may arise for the benefit of the party in favor of the decision to overturn, as well as a vested right may occur by excluding some issues from the scope of the decision to overturn. The parts of a provision that has been overturned by the Supreme Court that are outside the scope of the decision to overturn shall be finalized. The court that has complied with the decision to overturn cannot make a decision by re-examining these finalized parts. With another narration
, these finalized parts constitute a duly acquired right for the benefit of the party in its favor (Decision of Joint Chambers dated 04.02.1959 and numbered 13/5).”[30]

Conclusion

It is possible to win the case by knowing the rules of procedure well. Because in law, procedure always comes first. If your petition is incomplete or incorrectly prepared, it does not mean anything that you are right if the necessary events and evidence have not been notified to the court in a timely manner. Because the judge will only decide according to the events and evidence that have been duly brought before them. Making changes to your requests during the trial, or increasing your requests, or putting forward new events and evidence also depends on certain rules. Requests and incidents that are put forward in violation of these rules are not taken into account by the court. Cases where the chances of winning are quite high can be lost due to such procedural errors. In order to avoid such victimization, it is important to get professional legal assistance in filing and pursuing a lawsuit.

Best regards.

References

[1] Code of Civil Procedure art.25/1.

2PEKCANITEZ, Hakan, ATALAY, Oğuz, ÖZEKES, Muhammet, 2013, Medeni Usul Hukuku, Yetkin Yayıncılık, Ankara, p.300.

3 KURU, Baki, İstinaf Sistemine Göre Yazılmış Medeni Usul Hukuku, Legal Yayıncılık, İstanbul, p.266.

4 KURU, a.g.e., s.275.

5 Code of Civil Procedure art.136/1.

6 Code of Civil Procedure art.177.

7 KURU, a.g.e., p.273.

8 KURU, a.g.e., p.282; Code of Civil Procedure art.136.

9 Code of Civil Procedure art.317/2; KURU, a.g.e., p.863.

10 Code of Civil Procedure art.136/2, art.127.

11 PEKCANITEZ/ATALAY/ÖZEKES a.g.e., p.300.

12 KURU, a.g.e., p.282; Code of Civil Procedure art.183.

13 KURU, a.g.e., p.282.

14KURU, a.g.e., p.271.

1514th Civil Chamber  of the Supreme Court ,E.2020/3792, K.2020/7639, D: 24.11.2020.

1622nd Civil Chamber  of the Supreme Court, E.2017/35100, K.2020/8782, D: 06.07.2020.

17Supreme Court Assembly of Civil Chambers dated 24.02.2016, Based on 2014/22-735, 2016/166 Decision; 9th Civil Chamber of the Supreme Court 2016/32903 E., 2020/12345 K., D: 09.10.2020.

18Supreme Court Assembly of Civil Chambers, E.2016/376, K.decision No. 2020/306.

1914th Civil Chamber of the Supreme Court, E.2017/6098, K.2018/2609, D: 03.04.2018.

2010th Civil Chamber of the Supreme Court, E.2020/7249 E, K.2020/6918, D:24.11.2020 .

214th Civil Chamber of the Supreme Court, E.2018/2375, K.2020/2565, D: 07.07.2020.

2211th Civil Chamber of the Supreme Court, E.2020/2566 , K.2020/5528, D: 30.11.2020.

23 PEKCANITEZ/ATALAY/ÖZEKES a.g.e., p.303.

24EROĞLU, Orhan, “Islah ve Hukuk Muhakemeleri Kanunu ile Bazı Kanunlarda Değişiklik Yapılmasına Dair Kanun Tasarı Tasalğı Kapsamında Islahın Değerlendirilmesi”, TBB Dergisi, year:2018(138), p.168.

25 Supreme Court Assembly of Civil Chambers, 29.06.2011 day and E.2011/1-364, K.453; 3rd Civil Chamber  of the Supreme Court., E.2020/4264, K.2020/7528, D: 09/12/2020.

26 KURU, a.g.e., p.595.

27 KURU, a.g.e., p.606.

28Code of Civil Procedure art.177/2.

29 KURU, a.g.e., p.741-742.

303rd Civil Chamber of the Supreme Court  , E.2020/3077, K.2020/5741, D: 19/10/2020.

[1] Code of Civil Procedure art.25/1.

[2] PEKCANITEZ, Hakan, ATALAY, Oğuz, ÖZEKES, Muhammet, 2013, Medeni Usul Hukuku, Yetkin Yayıncılık, Ankara, p.300.

[3] KURU, Baki, İstinaf Sistemine Göre Yazılmış Medeni Usul Hukuku, Legal Yayıncılık, İstanbul, p.266.

[4] KURU, a.g.e., p.275.

[5] Code of Civil Procedure art.136/1.

[6] Code of Civil Procedure art.177.

[7] KURU, a.g.e., p.273.

[8] KURU, a.g.e., p.282; Code of Civil Procedure art.136.

[9] Code of Civil Procedure art.317/2; KURU, a.g.e., p.863.

[10] Code of Civil Procedure art.136/2, art.127.

[11] PEKCANITEZ/ATALAY/ÖZEKES a.g.e., p.300.

[12] KURU, a.g.e., p.282; Code of Civil Procedure art.183.

[13] KURU, a.g.e., p.282.

[14] KURU, a.g.e., p.271.

[15] 14th Civil Chamber of the Supreme Court ,E.2020/3792, K.2020/7639, D: 24.11.2020.

[16] 22. Civil Chamber of the Supreme Court of the Supreme Court, E.2017/35100, K.2020/8782, D: 06.07.2020.

[17] Supreme Court Assembly of Civil Chambers dated 24.02.2016, Based on 2014/22-735, 2016/166 Decision; 9th Civil Chamber of the Supreme Court 2016/32903 E., 2020/12345 K., D: 09.10.2020.

[18] Supreme Court Assembly of Civil Chambers, E.2016/376, decision No K.2020/306

[19] 14th Civil Chamber of the Supreme Court, E.2017/6098, K.2018/2609, D: 03.04.2018.

[20] 10th Civil Chamber of the Supreme Court, E.2020/7249 E, K.2020/6918, D:24.11.2020 .

[21] 4th Civil Chamber of the Supreme Court, E.2018/2375, K.2020/2565, D: 07.07.2020.

[22] 11th Civil Chamber of the Supreme Court, E.2020/2566 , K.2020/5528, D: 30.11.2020.

[23] PEKCANITEZ/ATALAY/ÖZEKES a.g.e., p.303.

[24] EROĞLU, Orhan, “Islah ve Hukuk Muhakemeleri Kanunu ile Bazı Kanunlarda Değişiklik Yapılmasına Dair Kanun Tasarı Tasalğı Kapsamında Islahın Değerlendirilmesi”, TBB Dergisi, year:2018(138), p.168.

[25] Supreme Court Assembly of Civil Chambers, 29.06.2011 day and E.2011/1-364, K.453; 3rd Civil Chamber of the Supreme Court., E.2020/4264, K.2020/7528, D: 09/12/2020.

[26] KURU, a.g.e., p.595.

[27] KURU, a.g.e., p.606.

[28] Code of Civil Procedure art.177/2.

[29] KURU, a.g.e., p.741-742.

[30]3rd Civil Chamber of the Supreme Court  , E.2020/3077, K.2020/5741, D: 19/10/2020.

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