What is islah?

There are two exceptions to the prohibition of expanding and changing claims and defenses in procedural law. These exceptions are for correction and the express consent of the other party. Except for these two exceptional cases, no changes can be made in the claim and defense after the exchange of petitions phase is completed.

Correction of Article 176 of the Code of Civil Procedure: "Each party may partially or completely amend the procedural acts it has carried out." organized as follows. This statement of the law allows the parties to partially or completely change their previous procedural actions with unilateral declarations of will. As a result of the unilateral declaration of will, the amendment was not subject to the acceptance of the other party and the court. Parties may increase their demands and change their claims and defenses only once, without seeking the consent of the other party.

WHAT CAN BE DONE WITH RECOVERY

1- With amendment, the plaintiff can change the cause of action stated in the petition.

2- Incompletely reported facts can be completed through correction.

3- The subject of the case can be changed through reform.

4- The defendant may amend his response petition through amendment.

5- The case can be changed through complete reformation. For example, a title deed cancellation and registration case can be converted into a compensation case.

6 - New evidence can be shown through correction.

7- The statute of limitations can be defended by amendment. The decision of the General Assembly of the Supreme Court of Appeals on the subject dated 01.10.2024 and numbered 2024/488 is as follows:

"The case is about the title deed annulment and registration request. The dispute is that the defendant submitted a reply petition on 02.11.2009, which does not contain the statute of limitations defense, before the hearing on 17.11.2009, which will be held after the notification of the invitation stating the hearing date attached to the petition on 14.10.2009, and in the amendment petition dated 08.04.2011, the statute of limitations has expired. In the incident where it was clearly stated that the plaintiff party did not consent to the claim, the questions are whether the reply petition dated 02.11.2009 was submitted within the time limit, whether the time-barred defense put forward with the reform petition dated 08.04.2011 can be taken into account, and whether the decision should be made according to the conclusion by entering into the merits of the matter according to the conclusion to be reached here.

It has been accepted that it was in accordance with the procedure and the law for the defendant's attorney to later amend the statute of limitations defense, which he could not put forward for any reason in the response petition submitted within the legal period, and that the plaintiff's objection to the new amended defense did not have any effect on the outcome.

In this case, the decision to resist, which stated that the defendant's attorney can defend the statute of limitations through amendment, is in accordance with the procedure and law."

8- With the decision of the 2nd Civil Chamber of the Supreme Court of Appeals dated 19.06.2025 and numbered 2024/10051 E. and 2025/6212 K., a fundamental change in jurisprudence was made. With this decision, a request forgotten in the petition can be added to the petition through partial amendment. In the old practice, there was a practice of filing an additional lawsuit in terms of requests forgotten in the petition. The relevant decision is very important in terms of the innovations it brings, and is as follows:

"The plaintiff or the defendant may change the facts stated in their petition, the subject of the case or the result of the request by reforming. Partial improvement is possible according to Article 181 of Civil Code No. 6100. With a partial amendment petition, the plaintiff can increase the demands that he forgot to request when filing a lawsuit or that he felt the need to request later, the amounts stated in the petition, or can add a new request that is not included in the petition. It is against procedural economy to force the plaintiff to file an additional lawsuit instead of this action, which can be done with correction. According to the provision of Article 26 of Law No. 6100, the court is bound by the claims, defenses and demands of the parties. As a rule, it is impossible for the court to rule more than the request or anything else. The plaintiff determines the subject of the case. The court can only decide on the issue determined by the plaintiff. The court cannot decide more than the plaintiff's request. This rule, which is called commitment by demand in doctrine and practice, is applied not only in terms of the result claim, but also in terms of each receivable item for which the result claim is created.

WITNESS REPORTING WITH CORRECTION

Although there is the possibility of presenting new evidence through reformation, Article 240/2 of the Civil Code. Article "The party presenting a witness submits to the court the list containing the facts for which he wants to hear witnesses and the names and surnames of the witnesses to be heard and their addresses suitable for notification. People who are not shown in this list cannot be heard as witnesses and a second list cannot be given." The expression as follows constitutes an exception to this rule. In other words, second witness list cannot be given with correction.

But this rule should not be interpreted as meaning that witnesses cannot be heard with correction. As a matter of fact, it is clear that facts can be changed or new facts can be put forward through reform. Hearing witnesses to prove these changed or newly added facts is stipulated in Article 240/2 of the Code of Civil Procedure. It will not constitute a violation of the article. In a decision given in 2015 by the 4th Civil Chamber of the Supreme Court of Appeals, "through amendment, the facts relied upon can be changed or new facts can be included in the case. Even if the plaintiff has shown it before, he can also show evidence regarding these new facts that he has added to the case. In this case, the hearing of the witnesses cannot be avoided, based on the prohibition that a second witness list cannot be given (TCC. Art. 240/2). The plaintiff's "The witnesses presented in the reform petition should be properly heard and all the evidence should be evaluated together and a decision should be made according to the conclusion." He ruled as follows. From this, it is concluded that witnesses useful for proving changed or newly added facts can be heard and the witness list given for this purpose will not constitute a violation of HMK 240/2.

PETITION IN ANSWER WITH ISLAH

Islah ile süresinde verilmemiş olan cevap dilekçesi verilemez. Article 176 of the Code of Civil Procedure stipulates that the parties may partially or completely amend the procedural transactions they have made. However, in order for a procedural action to be corrected, it must have been done before. If the case is not answered in a timely manner, correction is not possible since there is no previous procedural action. Again, initial objections that cannot be made due to the lack of a reply petition cannot be put forward through amendment. For example, no authority objection can be made through reformation.

If the defendant has not filed a statute of limitations in the response petition submitted within the response period, he may claim this through amendment. However, if the defendant has not submitted a response petition, he will not be able to claim the statute of limitations.

CHANGING SIDES WITH IMPROVEMENT

An adversary cannot be changed through improvement. The plaintiff cannot involve third parties or change defendants in his lawsuit. If the plaintiff has filed the lawsuit against a person who is not a defendant, he cannot change this person and request that the lawsuit be continued against a third party who is the real defendant but has not been named as a defendant in the case.

CASES THAT DO NOT REQUIRE TREATMENT

1- There is no need to resort to improvement to reduce the demand result. The prohibition on changing the case is only related to increasing the result of the claim.

2- There is no need to resort to correction in order to raise the issues that the court must examine ex officio. Matters that must be examined ex officio are not subject to the prohibition of changing or expanding the defense.

3- There is no need for reform to change the legal reasons.

4- It is not necessary to resort to correction due to obvious calculation errors. Such material errors can be corrected.

BREEDING TIME

TCC No. 6100 states that correction can be made at any stage until the end of the investigation. The investigation phase refers to the phase of collecting and evaluating evidence, starting from the preliminary examination hearing and continuing until the oral trial phase.

Rehabilitation cannot be made during the legal process. In other words, reforms cannot be made during the appeal and appeal stages.

IMPROVEMENT AFTER DETERMINATION

According to the decisions of the Supreme Court Unification Jurisprudence No. 1944/10 E. 1948/3 K. dated 04.02.1948 and 2015/4-268 E. 2016/1 K. dated 12.05.2016, it was not possible to make corrections after the reversal.

But with the amendment made on 22.07.2020, HMK stated: "When the file is sent to the first instance court after the Supreme Court's decision to overturn or the regional court of justice's decision to annul, if the first instance court takes an action regarding the investigation, corrections can be made until the investigation ends. However, the legal situation arising from complying with the decision to overturn cannot be eliminated." A provision has been added as follows. As can be understood from the text of the article, if the first instance court takes action regarding the investigation after the reversal, reforms can be made. However, the correction to be made should not cause a change in the situation of complying with the decision to annul. What is meant by this sentence is the protection of procedural acquired rights. However, the legislator has not drawn a framework here in terms of procedurally acquired rights. Therefore, this gap will be filled by the courts.

The legal chambers of the Supreme Court have ruled in all their recent decisions that reformation is possible after reversal. The decision we share below is one of them and is as follows:

"Article 141/1 of the Code of Civil Procedure No. 6100 regulates how long the parties can change their claims and defenses in the trial. Accordingly, the parties can freely expand or change their claims or defenses with the answer to the answer and the second reply petitions. With this regulation, as a rule, the parties are required to present their claims and defenses at the petition stage. The prohibition of expanding and changing the claim and defense can only be overcome by amendment and the express consent of the opposing party. It is stated in Article 144/2 of the HMK. In cases where the other party does not consent, amendment will be the only legal opportunity for the parties to change the claims and defenses from the moment the ban begins. One of the conditions stipulated in the HMK regarding amendment is related to time.

At this point, it is accepted that the investigation phase, which begins after the preliminary examination phase is completed in both written and simple trial procedures, will be completed when there is no matter that requires investigation, as explained in Articles 184 and 185 of the Code of Civil Procedure, and the court notifies the parties that the investigation is over.

In this context, in Article 177/2 of Civil Code No. 6100, amended by Law No. 7251 dated 22.07.2020; "When the file is sent to the first instance court after the Supreme Court's reversal decision or the regional court of justice's annulment decision, if the first instance court takes an action regarding the investigation, corrections can be made until the investigation ends. However, the legal situation arising from complying with the reversal decision cannot be eliminated." By including the regulation, legal clarity has been brought to the issue of reformation after corruption.

Another issue that needs to be clarified at this point is the concept of duly acquired rights. There is no clear provision regarding the concept of "procedurally acquired right" in Civil Code No. 6100, which was in force on the date of the decision (also in the content of the repealed Civil Code No. 1086). This institution was developed with the practices of the Supreme Court of Appeals 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 shaken, it has been accepted in the doctrine and has become one of the indispensable main principles of procedural law. Procedural right, in its meaning, refers to the right that arose in favor of one of the parties in a case, as a result of a procedural action taken by the court or the parties, and that must be complied with.

A procedural right may arise for the benefit of the party in favor of the reversal decision by the court's compliance with the Supreme Court's reversal decision, or a procedural vested right may be realized by leaving some issues outside the scope of the reversal decision. However, it should not be overlooked that the exception to the concept of procedural acquired rights will be applied in case of a new jurisprudence decision (YİBK dated 09.05.1960 and numbered 21/9) or a new law with retroactive effect after the Court complies with the reversal. Moreover, the basic principle in the field of procedural law is that the legal provisions regarding the trial come into force immediately.

In the light of these explanations, the initial decision of the court to reject the case on merits was reversed in favor of the plaintiff by the 13th Civil Chamber of the Supreme Court of Appeals; The investigation proceedings were established by the court by complying with the reversal order, in this regard, the plaintiff's attorney increased his request with the reform petition dated 25/05/2016 and the court decided by considering the correction, and that the said decision could not be reformed after the reversal by the 13th Civil Chamber of the Supreme Court of Appeals in accordance with the Supreme Court of Appeals Jurisprudence Unification Decision No. 10/3 dated 04/02/1948. It is understood that it was broken for some reason.

Considering that Article 177/2 of the Code of Civil Procedure No. 6100, amended by the Law No. 7251 dated 28.07.2020, has made a clear regulation stating that if an action is taken regarding the investigation after the Supreme Court's reversal decision, corrections can be made until the investigation is completed, the necessity of making a decision in accordance with the amendment to the law, which is an exception to the procedural right as explained above, has been created. For the reasons explained, the Court understood that the judgment should be made by considering the reformation of the plaintiff party dated 03/09/2016, and therefore the decision had to be reversed." Y3HD. 2020/7578 K.

METHOD OF BREEDING

Correction can be made in writing or orally. However, if the opposing party is not present at the hearing or the correction is made outside the hearing, a copy of the request or report is sent to the opposing party. This posting is for informational purposes only. As we mentioned above, reformation does not depend on the acceptance of the other party or the court.

EFFECT OF BREEDING

The effect of improvement is regulated in Article 179 of the Code of Civil Procedure. According to the relevant article;

1- Correction results in all procedural procedures being deemed not to have been carried out, starting from the point to be extended by the party making it.

2- However, confessions, witness statements, expert reports and statements, discovery and request minutes, the offer, rejection or return of the oath, which have been fulfilled or have not yet been fulfilled, cannot be invalidated by amendment, provided that the other party has notified before the amendment that they will fulfill it.

3- Provided that, according to the results of the investigation to be carried out after the correction, if these operations do not need to be taken into consideration, they are deemed not to have been carried out.

IMPROVEMENT IN ADMINISTRATIVE JURISDICTION

16/4 of Law No. 2577. According to the article, "The parties cannot claim rights based on the defenses or second petitions they submit after the deadline." As can be clearly seen from the provision, correctional institutions are not allowed in the administrative jurisdiction. However, since this situation causes loss of rights for plaintiffs in full jurisdiction cases, a one-time increase in the amount of compensation is allowed only in full jurisdiction cases, with Law No. 6459, which came into force in 2013. 16/4 of the İYUK after the amendment. According to the second sentence of the article; "However, in full jurisdiction cases, the amount specified in the petition may be increased only once, by paying the fee, until the final decision is made, regardless of the time period or other procedural rules, and the petition regarding the increase in the amount shall be notified to the opposing party to be answered within thirty days."

As a matter of fact, in the decision of the 15th Chamber of the Council of State dated 17.02.2014, the following provision was made on the subject.

"With the amendment made in the Administrative Procedure Law No. 2577, with the Law No. 6459, it has been possible to increase the amount specified in the petition in full jurisdiction cases, including the legal remedy stage, in cases pending on the effective date, without considering the time period or other procedural rules. As stated in the preamble of the article, although the damage suffered by those concerned with the legal amendment is more than the amount of damage shown in the petition, the amount of damage stated by the plaintiff or plaintiffs in the petition is It is aimed to eliminate the loss of rights arising from the fact that their requests for increases are not accepted by the courts and they are awarded compensation in the amount of the damage shown in the petition by applying the rule of being bound by the petition. In other words, it is possible for the plaintiff or plaintiffs to increase the amount shown in the petition, for once, by submitting a petition to the Court that made the decision by paying the fee corresponding to the increased amount, provided that any of the parties have taken legal action against the decisions made by the courts by applying the rule of being bound by the petition.