Petition in answer to the case

FINDING DEFICIENCY IN THE ANSWER PETITION

Article 130 of the Code of Civil Procedure regulates what to do if there are deficiencies in the response petition. According to the article, if there are deficiencies in elements such as the name of the court, the name, surname and address of the plaintiff and the defendant, the identification number of the defendant, the signature of the plaintiff and the name, surname and address of the attorneys, if any, the court gives the defendant a definite period of one week to correct this deficiency. Within this period, the defendant must complete the deficiency. If these deficiencies are not completed, the response petition is deemed not to have been submitted. As can be understood from the provision, these elements are mandatory elements of the response petition.

What to do in case of deficiencies in elements other than these is not regulated in the law. For these reasons, if there are deficiencies in the response petition other than the mandatory elements we have listed, no action will be taken and the trial will be conducted as is.

Here, a different regulation has been introduced than the deficiency in the petition. Dava dilekçesinde talep sonucunun açıkça belirtilmesi zorunlu iken cevap dilekçesinde bu unsur temel unsurlardan sayılmamıştır. Again, while in the petition, clear summaries of all the facts that are the basis of the plaintiff's claim must be shown under the serial number, there is no such requirement in the reply petition.

The fact that the legal reasons relied on in the response petition are not shown has no effect on the trial. Again, the situation will be the same if the wrong legal reason is given. The plaintiff and the defendant are not obliged to give legal reasons. The judge determines the legal reasons.

RESPONSE TIME TO THE CASE

According to Article 122 of the HMK; "The petition is notified to the defendant by the court. It is stated in the notification envelope that the defendant can respond to the case within two weeks." As clearly stated in the provision, the period for submitting a response petition is two weeks from the notification. When calculating the two-week period, the day corresponding to the day on which the petition was notified is taken into consideration, two weeks later. The response period to the lawsuit petition notified on Friday, June 15 ends at the end of working hours on Friday, June 29.

EXTENSION OF THE RESPONSE TIME TO THE CASE

Extension of the response time is regulated by Article 127 of the Code of Civil Procedure. According to the article; In cases where it is very difficult or impossible to prepare the response petition within this period, depending on the situation and conditions, the defendant who applies to the court within this period may be given an additional period of time, not to exceed one month, "to start processing from the end of the response period". The decision regarding the request for additional response time is immediately notified to the parties. This provision took its final form with the amendment made on 15.07.2020, and it was clearly stated that the beginning of the additional period will start from the end of the response period. If an extension of 1 month with additional response time is decided, the response time given to the defendant will be 2 weeks + 1 month. The response time can only be extended once.

SCOPE OF THE DEFENDANT'S RIGHT TO DEFENSE

In accordance with the principle of fair trial, the defendant can freely exercise his right to defense as stated in the law. As we will examine under this heading and the following subheadings, the defendant may accept the case with a response petition, he may oppose the facts in the petition by denying the facts or claiming that the allegations are unfair, or he may assert the facts in his favor by objection and defense.

1- DEFENDANT'S ACCEPTANCE OF THE CASE

The defendant may inform the court in his reply petition that he accepts the case partially or completely. The acceptance of the case does not necessarily have to be made within the period for submitting a response petition. The defendant has the right to accept the case at any stage of the trial. However, if the defendant believes that the case is justified, it will be to his benefit to accept the case with a response petition. As a matter of fact, HMK article 312/2. According to the article; If the defendant did not cause the lawsuit to be filed with his own actions and behavior and accepted the result of the plaintiff's request at the first hearing of the trial, he will not be sentenced to pay the trial expenses.

If the case is fully accepted, the case ends. In case of partial acceptance, the defendant must state his defenses regarding the part he does not accept and the trial should continue with respect to the remaining part.

2- DEFENDANT'S REASONS OF DEFENSE

If the defendant thinks that the case is unfair, he must notify the court of this injustice along with the reasons. When asserting this injustice, defensive means are used. Defense means are divided into two: defense means based on substantive law and defense means based on procedural law. Defense tools based on substantive law are divided into two: objections and defenses. Initial objections and the terms of the case constitute procedural means of defense.

A- DEFENDANT'S PROCEDURE REASONS OF DEFENSE

First Objections

The first of the procedural defense tools consists of initial objections, which are litigation obstacles. Two separate first objections are listed in Article 116 of the Civil Code. There is no other means of initial objection other than these. According to the article, the first objections are as follows:

a) Jurisdiction objection in cases where there is no absolute authority rule.

b) Objection that the dispute should be resolved by arbitration.

Initial objections can only be submitted with a response petition. Initial objections not raised in the response petition cannot be raised again at any stage. As a matter of fact, HMK article 117/1. According to the article; "All initial objections must be put forward in the response petition; otherwise, they cannot be heard." In the decision numbered 2015/241 K. of the 15th Civil Chamber of the Supreme Court of Appeals on the subject, "In cases where there is no absolute authority rule, the jurisdiction objection must be put forward as the first objection. Initial objections that are not put forward in the response petition cannot be heard. In cases where there is no absolute authority, it is not possible to raise the jurisdiction objection that is not put forward by the defendant in due time, and it cannot be automatically taken into consideration by the court." It is stated as follows.

The court first examines the initial objections and cannot examine the merits of the case without making a decision on this issue. In the decision numbered 2013/1480 of the Civil Assembly of the Supreme Court of Appeals, "The jurisdictional objection is among the first objections in accordance with Article 116 of the HMK No. 6100. Initial objections are preliminary issues. The court cannot begin to examine the merits without examining and deciding on the initial jurisdictional objection." The provision was made as follows.

In cases where initial objections and objections regarding the terms of the case are put forward together, Article 117/2 of the Code of Civil Procedure. In accordance with the article, the circumstances of the case will be examined first. If there are deficiencies in the case conditions, the case will be rejected due to procedural grounds, otherwise an investigation will be conducted on the first objections.

Case Conditions

HMK'nın 114. Maddesinde 12 farklı dava şartına yer verilmiştir. In addition to these, there are also lawsuit conditions in some special laws. For example, in the EBL, obtaining a certificate of insolvency has been regulated as a condition of litigation in terms of action for cancellation of savings. The lawsuit requirement objection is also a means of procedural defense. For example, the defendant may state in his reply petition that the court has no duty.

In the absence of a lawsuit condition, the trial will not begin and the case will be rejected due to procedural grounds. Lack of due process can be claimed at any stage of the case and is observed by the court ex officio. The defendant's defense of lack of litigation will assist the court. In addition, HMK article 115/3. According to the article, "If the lack of a case condition was not noticed by the court before entering into the merits of the case, was not put forward by the parties, but this deficiency was remedied at the time of judgment, the case cannot be rejected on procedural grounds due to the lack of the initial case condition." The provision is included. Therefore, in some cases, the defendant's objection to the lack of case conditions may cause the case to be concluded in his favor.

Mahkemenin dava şartı eksikliğinde davanın usulden reddine karar verebileceğini belirtmiştik. However, the lack of every case requirement does not require the rejection of the case due to procedural grounds. In cases where the deficiency in the lawsuit requirement can be corrected, the court first grants time to correct this deficiency.

The following explanations regarding the conditions of the case are included in the decision numbered 2019/284 K. of the General Assembly of the Supreme Court of Appeals:

"While the case conditions are not included under separate headings in the Code of Civil Procedure No. 1086, they are listed under the headings "Case Conditions" in Article 114 and "Examination of the Case Conditions" in Article 115 in the Code of Civil Procedure No. 6100.

The circumstances whose existence or absence is necessary for the court to make a judgment on the merits of the case (examine the case on its merits) are called cases (trial conditions). Circumstances that require an investigation into the merits of the case are called positive case conditions (e.g. duty, legal benefit, etc.); Situations whose absence is necessary are called negative case conditions (for example, final judgment, etc.).

Case conditions are not necessary for a lawsuit to be filed, but for the court to examine the merits of the case (to enter into the merits of the case). This is also called the conditions for the case to be heard (accepted).

A lawsuit filed without one of the lawsuit conditions is also deemed to have been filed, that is, it is pending. However, when the court determines that one of the conditions of the case is not met, it cannot examine the merits of the case; is obliged to reject the case due to the absence of a lawsuit requirement (procedural, not legal).

In a narrow and real sense, case conditions are the circumstances whose existence or absence is absolutely necessary for the case to be examined on its merits and decided. In other words, the judge in the case automatically (ex officio) observes whether the conditions of the case are present or not; Even if the parties consent to the hearing of the case (deciding on the merits) in which the condition of a case is missing, the judge is obliged to reject the case due to procedural reasons (since it is not legal).

Legal action may be taken against the procedural rejection decision. The case, which was rejected due to procedural reasons due to the circumstances of the case, can be reopened after the deficiencies are completed.

B- DEFENDANT'S REASONS OF DEFENSE RELATED TO MATERIAL LAW

Objections

Bir hakkın doğumuna engel olan ya da o hakkı sona erdiren vakıalar itiraz olarak nitelendirilir. Defenses such as incapacity of the contract parties, payment, irregularity of form are considered as objections. Again, the first objections we explained above and the means of defense such as the terms of the case are also objections. However, these should be evaluated separately as procedural objections.

The judge considers the objections on his own. Although the objections are not clearly stated by the defendant, if they are evident from the case file, they are definitely taken into consideration by the court. The only condition here is that the objection is evident from any document in the file. Apart from this, since the judge does not have the authority to collect evidence, it will not be possible for the judge to consider a reason for objection that is not included in the file or to ask the parties to bring it to the file. The defendant is obliged to prove the reasons for objection.

Defiler

Despite the existence of a debt, it refers to the debtor's ability to refrain from fulfilling his debt due to a special reason. For example, a statute-barred debt may not be paid by the debtor even though it actually exists.

The difference between objection and defense arises at this point. With objection, the debtor claims that the right has not arisen or has expired, while in defense, the debtor accepts the existence of the debt but refrains from performing it for a special reason.

The defenses must be clearly stated in the reply and the second reply petition. We stated above that the fact that the objections are understandable from the file is sufficient for them to be evaluated. However, even if the defenses are understood by the judge, they are not taken into consideration unless they are clearly put forward. Pleadings must be submitted before the prohibition of expanding or changing the defense begins (at the exchange of petitions stage).

WHERE TO SEND AN ANSWER PETITION?

As we stated above, the defendant may submit his/her answers to the case to the court through a response petition within the scope of his/her right to defense. The issue of where and how the response petition should be submitted is regulated in Article 126 of the Civil Code. According to the first paragraph of the article, the response petition is submitted to the court where the case was filed. As many examples as the number of plaintiffs should be added to the response petition. If the defendant is located somewhere other than where the case was filed, he can also send the response petition by combat. In such cases, the response petition is recorded in the correspondence book by the court judge on the same date and transferred. The date of submission of the response petition is considered as the transfer date.

CONSEQUENCES OF ANSWERING THE CASE

Submitting the response petition to the court will have some consequences. The most important of these consequences is the termination of the first right of objection with the response petition. Even within the response period, the defendant will not be able to submit the initial objections that he did not state in the response petition to the court with another petition.

The response petition submitted by the defendant is notified to the other party. With this notification, the plaintiff is given the right to submit a response petition. If the plaintiff submits a reply petition, the defendant will have the right to submit a second reply petition. At this stage, called the exchange of petitions, the defendant and the plaintiff can freely expand or change their claims and defenses. Both parties are given the right to make new claims and submit evidence, excluding initial objections. If the defendant does not submit a response petition, these stages will no longer be possible and the plaintiff will not be able to change or expand his claims in the petition. So what will happen if the plaintiff does not submit a response petition? If the plaintiff does not submit a response petition, the defendant will no longer have the right to submit a second response petition and the prohibition phase will begin. The plaintiff and the defendant will not be able to change or expand the facts stated in their first petition. Since our subject of review is the response to the case, information about the prohibition of expanding and changing the defense will be included under a separate heading below.

PROHIBITION ON EXPANSION AND CHANGE OF DEFENSE

The principle of condensation has been adopted by the Code of Civil Procedure. In accordance with the principle of compilation, case materials must be brought to the court within a certain time. The defendant who has passed this time will now be prohibited from changing or expanding the defense.

According to Article 141 of the HMK; "The parties may freely expand or change their claims or defenses through reply to reply and second reply petitions. After the petitions are mutually submitted, the claim or defense cannot be expanded or changed." Before the HMK was amended on 22.07.2020, it was stated at the preliminary examination hearing that the plaintiff and the defendant would not be subject to this ban under some conditions. However, the ban on expanding or changing the claims and defenses after the amendment will begin after the petition exchange phase ends. The exception to this rule is the express consent or correction of the other party. Except for these two cases, the claims and defenses cannot be changed in any way and no new evidence can be put forward after the petitions exchange stage.

CASES CONSIDERED DEFENSE EXPANSION AND THEIR EXCEPTIONS

The defendant must state the facts on which his defense is based in his reply petition. Any subsequent changes to these reported facts will be subject to the prohibition of changing the defence. For example, the defendant who claims that he had no dealings with the plaintiff will not be able to claim payment later. Above, we explained the defendant's means of defense in terms of substantive law as objections and defenses.

In terms of defenses, the defendant's response and second response petitions are examined. Defenses not specified in these petitions will no longer be put forward and will be considered within the scope of the ban. The defendant's ability to put forward a defense can only be possible with the explicit consent of the opposing party - which has almost no precedent in practice - or by amending the response petition. Reclamation is only possible in cases where a response petition is submitted. Detailed explanations on this subject are available in our article titled What is Islah?.

In terms of objections, it is necessary to make a double distinction. The defendant may later put forward grounds for objection that can be understood from the case file. This situation is not within the scope of the ban. However, objections that are not clear from the case file cannot be put forward later. There is an exception to this rule adopted by the Supreme Court. According to the Supreme Court, grounds of objection that prevent the emergence of a right cannot be considered within the scope of the prohibition. Documents extinguishing the debt can be put forward at any stage of the trial. As a matter of fact, the General Assembly of the Supreme Court of Appeals stated on the subject, "Due to the legal nature of the case and the nature of the concrete event, if the defendant has given a document extinguishing the debt subject to the lawsuit at the appeal stage, a decision must be made by making the necessary examination on this document. In other words, if the trial phase has not been completed yet, in such a case, the document extinguishing the debt should be taken into consideration. Indeed, the defense of the defendant who denies the case in the trial includes the defense that there is no debt. Therefore, the defendant must explain why the debt does not exist and provide evidence contrary to the claim." "It cannot be said that the right to substitute has been eliminated. For the reasons stated, it is also necessary to accept that there is no prohibition on expanding the defense in the face of the existence of a document submitted at the appeal stage that extinguishes the debt." There is a decision as follows. Documents extinguishing the debt include documents such as receipts and release letters.

The issues that the court must investigate on its own are not subject to the prohibition on expanding the defense. In this respect, case condition deficiencies can be claimed at every stage of the trial. Again, as we mentioned above, subsequent defense reasons are not within the scope of the prohibition. In terms of objections, the exceptions to the prohibition of expanding and changing the defense are correction and the express consent of the other party.

Changing the legal reasons, putting forward facts that are implicitly included in the defense, and putting forward facts that constitute evidence of the facts in the response petition are not considered to change or expand the defense.

FAILURE TO SUBMIT ANSWER PETITION WITHIN TIME

If the defendant does not submit a response petition, this will have some consequences for the defendant and the plaintiff. If the defendant does not submit a response petition in due time, the plaintiff will no longer be able to submit a response petition. Therefore, in case the response petition has not been submitted, the trial will be concluded only by examining the claims and evidence put forward by the plaintiff in the petition. In this respect, not submitting the response petition is in favor of the plaintiff.

But for the defendant, the consequences of not filing a response petition are quite severe. The defendant who does not file a response petition in due time will no longer have the right to put forward new facts and present evidence. Since the defendant who does not submit a response petition will be deemed to have completely denied the case, he will be able to defend himself only within the scope of denial. In this defense, the defendant cannot present counter-evidence and can only respond to the plaintiff's allegations. Therefore, the defendant who has not submitted a response petition will not be able to raise objections, defenses, new facts or present evidence.

As clearly stated in the Code of Civil Procedure, the defendant must have presented all his evidence in his reply and second reply petition. The defendant who does not submit evidence within these periods will no longer be able to submit evidence, even within the scope of denial. In this regard, the decision of the General Assembly of the Supreme Court of Appeals dated 20.04.2016 is a precedent.

According to the relevant decision; "The period for submitting the response petition is two weeks from the notification of the petition to the defendant. It is stated that the evidence with which each fact put forward as the basis of the defense will be proven must be included in the response petition. The defendant who does not submit a response petition within the time limit will be deemed to have denied all the facts put forward by the plaintiff in the petition. At the preliminary examination hearing, the parties are asked to submit to the court the documents they have shown in their petition but have not yet presented, or to make the necessary explanation in order to bring the documents to be brought from elsewhere. A definite period of two weeks is given. If these issues are not fully fulfilled within the given definite time, it is decided that relying on that evidence will be deemed abandoned.

It must be accepted that it is not legally possible for the local court to give time to the defendant to show evidence, since a response petition was not submitted within the time limit after the petition was notified to the defendant, and there was no evidence put forward as a basis for the defense in time.

It should be decided that the request of the defendant party, who did not submit a response petition and submit his evidence in due time, to submit evidence after the legal period has passed."

In yet another General Assembly Decision, it is stated that "It is not legally possible to hear the witnesses reported by the defendant at the investigation stage, who did not present any evidence (HMK. Art. 129 / 1-e) as the basis of his defense in the reply petition and did not claim the existence of exceptional circumstances specified in Article 145 of the HMK in order to present evidence later." A provision has been made as follows.

As we explained above under the heading of situations that expand the defense, the defendant who does not submit a response petition may claim documents extinguishing the debt at any stage of the case. These documents are considered an exception to the prohibition on expanding the defense.

The defendant who does not submit a response petition does not have the right to reform. However, new facts may be put forward with the express consent of the other party.