A Current Decision of the Assembly of Civil Chambers of the Court of Cassation Regarding the Implementation of Amendment of Pleading

31.07.2022 Abdullah Bozdaş
A Current Decision of the Assembly of Civil Chambers of the Court of Cassation Regarding the Implementation of Amendment of Pleading
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Introduction

In general terms, the amendment of pleading is accepted as an exception to the prohibition of expanding and amending claims and defenses. With the amendment of pleading, the parties can partially or completely correct or amend the procedural actions that they could not perform due to the prohibition. Amendment of pleading is a unilateral and clear statement of will, and therefore, when the conditions are met, it can be done without depending on the acceptance of the other party or the court.[1]

This article will examine a recent decision of the Assembly of Civil Chambers of the Court of Cassation, which has been frequently discussed by the scholars and has been the subject of many Court of Cassation’s decisions on the issue of whether a plea that the statute of limitations has expired can be implemented by amendment of pleading in cases where the response petition is not submitted in due time.

Invoking the Statue of Limitations Plea with the Amendment of Pleading

It was a controversial issue between scholars at the time that Code of Civil Procedure No. 1086 was enacted, whether the statute of limitations plea, which in Turkish law is considered to be a plea and defense tool stemming from substantive law, could be claimed by amendment of pleading. In addition, there were various different opinions and decisions between the various chambers of the Court of Cassation. However, with the adoption of the Civil Procedure Code No. 6100 (“CPC”), it was determined that the amendment of pleading would find an application area in terms of procedural actions in general, and this issue was emphasized by including the expression “in practice, although there are doubts as to whether the statute of limitations can be asserted by way of amendment of pleading, there should be no hesitation if the statute of limitations is not the preliminary objection and can also be asserted through amendment of pleading” in the justification for Article 176. For this reason, there is no obstacle to the implementation of the statute of limitations defense by amendment of pleading of the response petition. However, there is still a question whether a defendant that has not submitted a response petition within the time limit will be able to claim the defense of the statute of limitations by amendment of pleading.

Different Opinions among Scholars and Different Decisions of the Court of Cassation

First of all, it should be noted that different chambers of the Court of Cassation have rendered opposing decisions on this question. As a matter of fact, in the period when the previous law was applied, the Court of Cassation Grand Case-Law Unification Board came to this conclusion, but determined that it was not yet necessary to resort to unification of case law.[2]

Postacıoğlu and Altay state that a defendant who does not respond to the case with a response petition will be deemed to have responded to the case implicitly and accepted the material facts put forward by the plaintiff, and that they can claim the statute of limitations defense by amending the implied reply petition.[3] In addition, Pekcanıtez, Atalay and Özekes refer to the 128th article of the CPC, which states that if the response petition is not submitted in due time, the facts put forward by the plaintiff will be deemed to have been accepted. They state that although the legislature had foreseen consequences for not submitting a response petition, it was not absolutely necessary to submit a response petition in advance in order to assert the statute of limitations plea through amendment of pleading.[4]

The Decision of the Assembly of Civil Chambers of the Court of Cassation[5]

In a case where employment claims were the subject, the local court took into account a statute of limitations plea filed after the response petition was not submitted in due time. However, the 9th Civil Chamber of the Court of Cassation, with its decision dated 11.10.2016, stated that it was not possible to raise an objection to the statute of limitations in this situation, and overturned the decision of the local court.[6] Upon the decision of persistence of the local court, the dispute was examined by the General Assembly of the Court of Cassation.

First of all, the General Assembly of the Court of Cassation determined that the expert report, which was prepared in accordance with the statute of limitations plea asserted by amendment of pleading, after the time period for submitting response petition time of the local court had passed, was inaccurate. Subsequently, it stated that the statute of limitations plea, which was claimed by applying for amendment of pleading after the expiry of the response period, would remain within the scope of the prohibition of expanding and amending claims and defenses, and therefore, it could only be applied in cases where the plaintiff's explicit consent was obtained. In consequence, plaintiff's attorney refused to accept the plea including the statute of limitations in this case.

In the current decision, the General Assembly of the Court of Cassation underlined that the subject of amendment of pleading is the procedural actions of the parties and ruled that the parties can only change the facts stated in their petitions, the subject of the case, and the result of the request, with amendment of pleading. In other words, the Court stated that in order for any of the parties to apply for the amendment of pleading, there must be a procedural action taken before, and it was regulated that only in this case partial or complete amendment of pleading would be possible. In accordance with the reference to the letter of the Law, the Court explained that Article 176 of CPC, which regulates the amendment of pleading, requires that the parties can only submit an amendment of pleading against the procedural actions they have already made. The Court accepted that there was no procedural action in place due to the fact that the defendant did not submit a response petition within the time limit. The General Assembly of the Court of Cassation again underlined that the acceptance of the statute of limitations plea and not responding by remaining silent would have to be accepted as a procedural action. For this reason, the Court emphasized that a procedural action that has not been done cannot be changed or corrected by amendment of pleading.

In addition, the General Assembly of Court of Cassation also mentioned one of the most important reasons for making this decision. It emphasized that in the event that the petition for reply is not submitted in due time, and statute of limitations is brought forward; the procedure of amendment of pleading will mean following the deadlines determined by the law which are already missed, and that the result responding to the case via amendment of pleading will arise. For these reasons, the decision of the local court to resist was overturned.

In addition, this General Assembly of the Court of Cassation, referred to a decision dated 07.06.2017,[7] and ruled on the basis of the same principles in that decision. In the opposing view in the previous decision of the General Assembly of the Court of Cassation, its defense that submitting a timely response to the lawsuit petition in accordance with Article 128 of the CCP, but not asserting the statute of limitations plea, and not giving any reply at all, would lead to the same legal result in terms of denial.

Conclusion

Although the scholars considered that it is possible to assert a statute of limitations plea, even if a response petition is never submitted, the Court of Cassation has made more decisions in expressing this view after the change in the Law. In accordance with its decision dated 07.06.2017, the General Assembly of the Court of Cassation ruled that in cases where the response petition is not submitted within the time limit, the statute of limitations plea cannot be asserted through amendment of pleading.

References
  • Pekcanıtez, Hakan / Atalay, Oğuz/ Özekes, Muhammet: Medeni Usul Hukuku Ders Kitabı, On İki Levha Yayıncılık, İstanbul 2020, p. 309.
  • The decision of the Court of Cassation Grand General Case-Law Unification Board, No. 2007/2 E., 2008/ K., para.28. 14.11.2008
  • Postacıoğlu, İlhan E. / Altay, Sümer: Medeni Usul Hukuku Dersleri, Vedat Kitapçılık, İstanbul 2020, p. 530.
  • Pekcanıtez, Hakan / Atalay, Oğuz/ Özekes, Muhammet: Medeni Usul Hukuku Ders Kitabı, On İki Levha Yayıncılık, İstanbul 2020, p. 310.
  • The decision of the Court of Cassation General Assembly, No. 2017/2782 E. 2020/87 K., 06.02.2020.
  • The decision of the 9th Civil Chamber of the Court of Cassation, No. 2015/2090 E. 2020/87 K., 11.10.2016.
  • The decision of the Court of Cassation General Assembly, No. 2017/17-309 E. 20217/0 K, 06.02.2020.

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