Statement of claim for the withdrawal of land from the possession of another illegally entered part of it and its withdrawal
The plaintiff O. filed a lawsuit against the defendant A. with a claim to withdraw the illegally entered part of the land from his possession and transfer it. By the decision of the Kyzylorda City Court of October 27, 2016, O.'s claim was dismissed. By the decision of the Judicial Board of the Kyzylorda regional court for civil cases dated December 29, 2016, the decision of the court of first instance was canceled, and the application was left without consideration due to the plaintiff's refusal of the claim. Defendant A. in the petition, he did not agree with the decision of the Appellate Judicial Board, indicated that he did not know about the consideration of the case at the appeal stage, and there was no document in the case documents that informed him about the time and place of the court session. Hearing the opinion of A. on the cancellation of the decision of the Appellate Judicial Board adopted in this case, on the full satisfaction of the petition, the objection of the plaintiff's Representative K. on the dismissal of the petition, studying the materials of the case, discussing the arguments of the petition, the Cassation judicial board concluded that the decision of the Appellate Judicial Board is subject to cancellation due to the following grounds. As it turned out from the case documents, the plaintiff substantiated his application to the court with the following arguments. On the basis of the contract for the purchase of real estate on December 23, 1998, O. Azamat B. purchased from Kyzylorda, Zharkynbayev (Nekrasov) street, a four-room house without a number, with a land plot of 773.0 square meters, put in order and registered his ownership of this real estate in accordance with the procedure specified in the law.
Statement of claim for the withdrawal of land from the possession of another illegally entered part of it and its withdrawal
A neighbor of the plaintiff, a resident of the House No. 15, located on Zharkynbayev street, defendant A. illegally and without the permission of the owner, entered the place where the plaintiff's House is located up to one meter and illegally owned it, defending his rights, asked to withdraw the illegally owned part of the land belonging to him. During the consideration of a civil case, the Appellate Judicial Board committed a significant violation of the current procedural legislation. In particular, Part 1 of Article 418 of the APC states that "if any of the persons participating in the case who have not been properly informed about the time and place of consideration of the case does not appear at the court session of the court of appeal, the court postpones the Proceedings of the case." Truthfully informing the parties involved in the case about the time and place of consideration of civil cases is a prerequisite for maintaining their right to defense in court. And it is the duty of the court of appeal to inform the parties of the time and place of consideration of cases at the stage of the court of Appeal. During the court session, the judicial board must investigate whether the parties invited to the meeting have honestly received subpoenas or not, the reasons for their failure to appear at the court session, and postpone the court session if the parties have not received proper notification. The requirements of the specified law in this case were not met. Defendant A. did not attend the meeting of the appellate court board.
He explains this situation by the fact that he was not invited to a meeting of the judicial board, he did not receive a notification. Evidence refuting these arguments of the defendant was not recorded in the case materials. Therefore, the court of Cassation considers that the defendant's right to defense specified in the law has been infringed. The basis for canceling the decision of the court of first instance was only the plaintiff's application for leaving the statement of claim without consideration. The legal grounds for leaving a statement of claim without consideration are provided for in Article 279 of the APC. The norms specified in this article are final and are not subject to widespread discussion. In his application to the court of appeal, the plaintiff O. indicated that he intended to supplement "the application with the recognition of the land act as illegal" and did not sign the statement of claim. First of all, the arguments put forward by O. in the application do not correspond to Article 279 of the APC. Secondly, the judicial board made a decision formally, without studying the circumstances specified in the application at all, without checking the grounds for a civil dispute and an appeal, without giving them a legal assessment. For example, in his application to the court of appeal, the plaintiff asked to cancel the court decision on other grounds, without referring to even one of the norms provided for by law. Due to improper invitation to the meeting of the appellate judicial board, the defendant A. could not express his opinion on the plaintiff's application for leaving the statement of claim without consideration.
In addition, during the consideration of the case in the court of first instance, the plaintiff O. appealed for the help of lawyer K. and lawyer M., who authorized them to perform all the actions specified in the procedural law on their behalf, and the transfer of these representations was formalized in writing. During the Proceedings of the court of first instance, the plaintiff did not exercise his right in connection with changing the essence of the claim. The statement of claim was filed with the court on August 22, 2016, and the statement was signed not by O.'s representative, but by him. And the power of attorney for representation to lawyer K. was issued on behalf of the plaintiff on August 24, 2016, that is, after the application of the claim was accepted in court. These circumstances indicate that the appeal judicial board of the regional court made a unilateral, incomplete decision without checking the legality and validity of O.'s application for leaving the case without consideration, without checking the circumstances specified in the cited appeal. In the course of consideration of a civil case in the Cassation procedure, the Judicial Board of the Supreme Court of the Republic of Kazakhstan on civil cases considered it necessary to cancel the decision of the Appellate Judicial Board and send the civil case to the court of appellate instance for new consideration in another composition of judges. The Cassation petition of defendant A. was satisfied.
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