What are pendency and res judicata (objection to final judgment)?

1. Introduction: The Mechanism Preventing Repeated Litigation of the Same Dispute

The fundamental aim in civil litigation is to resolve disputes once, correctly, and fairly . Repeated litigation of the same dispute between the same parties;

It unnecessarily burdens the judicial system
This creates the risk of contradictory decisions
It is costly and time-consuming for both parties
It undermines legal security and stability.

This is "pending litigation" and "final judgment" where the objections of

Pendencyrefers to the situation where a new lawsuit is filed even though the same case is already being heard in another court.
A final judgment refers to the reopening of a case despite a previous, final decision on the same dispute that can no longer be overturned.

Both institutions prerequisites for litigation . This means the court must, on its own initiative, assess the existence of these conditions from the beginning to the end of the proceedings. The parties can also an "objection of pendency" or an "objection of res judicata." raise this issue as

This article will discuss in detail the answers to the following questions, which are frequently encountered in practice:

What is pendency (or pending litigation), and what are its elements?
What constitutes a final judgment, and under what conditions does it arise?
How and when are the claims of pendency and final judgment invoked?
What happens if the court accepts these objections?
Which Supreme Court approach serves as a guide in practice?

2. The Concept of Condition for Filing a Lawsuit and Pendens – Its Relationship with Res judicata

2.1. What are the prerequisites for filing a lawsuit?

a court before it can examine a case on its merits are preconditions that will dismiss the case on procedural grounds.

In general terms, the requirements for filing a lawsuit are as follows:

The court's jurisdiction and competence,
The parties' standing to be a party and their capacity to sue,
The power of attorney must be in accordance with the proper procedure
Payment of the fee,
The existence of a legal interest,
The same case not having been previously filed and still pending (pending case),
The same case has not been previously adjudicated (final judgment).

In this system, pendency and res judicata procedural economyand legal certainty are special conditions for litigation that protect

2.2. Ex Officio Examination of the Conditions for Filing a Lawsuit

An important feature of the conditions for filing a lawsuit is that, by the court:

Not only when the lawsuit is filed,
At every stage of the trial,
, even if the parties do not raise the issue It is an investigation conducted ex officio.

Therefore, the judge, in the case before him:

"Is this dispute still pending in another court?" (pending case)
"Is there a previous final judgment regarding this dispute?" (final ruling)

He is obliged to independently search for the answers to his questions.

3. What is Pending Case?

3.1. Definition of the Concept of Pendens

Simply put pendencyis "the filing of a new lawsuit with the same claim by the same parties while the same case is still ongoing in another file."

In more technical terms:

between the same parties,
based on the same subject matter (claim) and the same factual circumstances (cause of action),
When a lawsuit has already been filed and is still pending
the lack of a prerequisite for filing a lawsuit that arises in a subsequently filed lawsuit pendency .

The most important point to consider here "the same case." is determining whether

3.2. Elements of Pendens

For a case to be considered pending, the following elements must occur simultaneously:

There must be more than one lawsuit
. At least two lawsuits are required: a first lawsuit and a second lawsuit. The claim of pendency is usually in the second lawsuit raised
The first case must still be ongoing (pending)
- No decision has been made yet
- A decision has been made, but it is not final
- The case must not have been dismissed as never having been filed, or terminated due to waiver.
The parties must be the same in terms of
their legal status; the roles of plaintiff and defendant are taken as the basis. Even if the parties have different names, if their legal status is the same, a case of pendency may exist (for example, heirs becoming parties to the case).
The subject matter of the lawsuit (the requested outcome) must be the same.
If the desired outcome is the same in both lawsuits (for example, collection of the same debt, refund due to the same defect, request for registration of the same immovable property, etc.), then the issue of pendency arises.
The cause of action (the facts relied upon) must be the same.
, not the legal basis of the case, The material facts are important. If the same events are described and these facts give rise to the same claim, the likelihood of a pendency increases.

These three elements (party – subject – cause) are classically "the identity of the case" .

3.3. The Relationship Between Pendens and Legal Interest

In order to file a lawsuit, the plaintiff must also a legal interest . If a lawsuit is already ongoing regarding a dispute, filing a second lawsuit on the same matter often lacks legal standing. This is because:

It is already possible to reach a conclusion in the first case,
A second lawsuit would only prolong the trial and increase costs.

Therefore, pendency is often "lack of legal interest." considered an institution intertwined with a separate and explicit condition for filing a lawsuit regulates pendency as

3.4. Examples of Pendens

Here are a few simple examples to help better understand the topic:

Example 1: Due to a debt relationship between A and B, A filed a lawsuit for 100,000 TL in the 5th Civil Court of First Instance in Istanbul. While this lawsuit is still ongoing, if A files another lawsuit for the same debt in the 10th Civil Court of First Instance in Istanbul, the second lawsuit will be considered a pendency.
Example 2: If a person who has filed a registration lawsuit regarding the ownership of a property files a second registration lawsuit for the same property while the first lawsuit is ongoing, the second lawsuit will be dismissed on procedural grounds due to pendency.
Example 3: A worker has filed a lawsuit in labor court for unpaid wages. If, while this lawsuit is ongoing, they file another separate lawsuit for wages from the same period, the issue of pendency arises to the extent that the claims overlap.

4. How and When to File an Objection of Pendensity?

4.1. Pendensity is No Longer a "Preliminary Objection" but a Condition for Filing a Lawsuit

In the old system, pendency was a preliminary objection and would not be heard if not raised within a specified time. In the new system, pendency a prerequisite for litigation has been made

The parties may raise a claim of pendency without being bound by a time limit
The judge shall consider the pending nature of the case ex officio, even if the parties do not raise it
The issue of pendency can be examined at every stage of the proceedings, even during the appeal and cassation phases.

4.2. Who Shall Raise the Objection of Pendens?

Generally, the defendant raises the objection of pendency because they don't want to be dealt with the same case twice. However, legally, the plaintiff can also invoke the pendency principle, especially to push a second case filed in the wrong court into the background.

The objection is usually:

In the reply letter,
During the preliminary review phase,
This can be done at any stage, either by written petition or orally during the hearing, following the issuance of the preliminary report.

4.3. The Court's Determination and Decision on Pendensity of the Case

When faced with a case of pending litigation, the court follows these steps:

It identifies the case number, the court, and the parties involved in the first case.
By examining the first file via UYAP:
- Whether the parties are the same or not
- Whether the demand results match or not,
- whether the cause of action is based on the same facts,
- It investigates whether the first case is still pending.
in the second case a "procedural dismissal due to lack of a prerequisite for filing a lawsuit" .

This rejection decision without addressing the merits . In other words, the judge closes the case without going into a debate of right or wrong, simply because the same dispute is already being heard in another case.

5. What is a Final Judgment?

5.1. Distinction Between Definitive Judgment in Form and Substance

The concept of a final judgment is considered from two perspectives:

Formal finality:
A court decision becomes formally final when it can no longer be challenged through ordinary legal channels, meaning there is no longer any possibility of appeal or cassation.
Final judgment in a substantive sense:
This means that a final judgment prevents a new lawsuit from being filed regarding the same dispute and is binding in other lawsuits. The institution we call "objection to a final judgment" in practice is related to this substantive finality .

In fact, a final judgment has two important effects:

Negative effect:
It prevents the same dispute from being litigated again.
Positive effect:
The legal situation established in a final judgment is binding on the parties and the courts; it is not possible to argue otherwise in other cases.

5.2. Conditions for a Final Judgment

For a decision to constitute a final and definitive judgment in a material sense, the following conditions are generally required:

There must be a final judgment
. A decision must have been made, legal remedies exhausted, or the time limit expired; in other words, the decision must no longer be subject to change.
The parties must be the same.
An objection based on a final judgment can only occur between the same individuals. In some cases, the successors of the parties (heirs, transferees, etc.) are also included.
The subject matter of the lawsuit (the outcome of the claim) must be the same.
If the claim decided in the first lawsuit is the same as the claim put forward in the second lawsuit, then a final judgment is reached. For example, a second lawsuit cannot be filed for the collection of the same debt.
The cause of action must be the same.
If the fundamental factual events giving rise to the dispute are the same, the previous judgment becomes binding with respect to the second lawsuit.

If these conditions are met, an "objection to the final judgment" can be made in the second case.

6. How and When to File an Appeal Against a Final Judgment?

6.1. A Final Judgment is Also a Condition for Filing a Lawsuit

A final judgment, like pendency, for a lawsuit . Therefore:

The parties may raise the objection of res judicata at any stage of the proceedings
The judge may also independently investigate whether there has been a previous and final decision on the same dispute when reviewing the case file.

Thanks to the UYAP system in particular, the court can access previous files and examine the judgment clause to see whether the newly opened case has been decided before.

6.2. Scope of the Appeal

When filing an appeal against a final judgment, the following points should be considered:

The court of the previous case, its case number, and its decision are indicated
The decision given in this file is final
The parties, subject matter, and cause of action in the present case are the same as those in the previous case
Therefore, it is argued that the new case cannot be heard due to the principle of res judicata .

If the court, after examining this objection, finds that the conditions are met, it will dismiss the case on its merits, not on procedural grounds ; because there is an existing judgment and it cannot issue a second decision contrary to that judgment.

6.3. The Difference Between Final Judgment and Pendensity

These two concepts are often confused. Here are the differences between them with a simple comparison:

In terms of time:
- The previous case is still pending; there is no verdict yet.
- in this definitive ruling has been concluded and the decision is final.
In terms of results:
- If the case is pending, the second lawsuit will be dismissed on procedural grounds due to the lack of a prerequisite for filing a lawsuit.
- on the grounds that "a final judgment has already been rendered on the same matter will be dismissed on its merits.
In terms of its impact:
- The principle of pendency only prevents the simultaneous conduct of two cases.
- A final judgment prevents the same dispute from being litigated in the future and creates a binding legal situation in other cases.

7. Pendens and Final Judgment in Practice: Example Scenarios

7.1. Example of a Lis Pendens Case

A worker has filed a lawsuit in labor court for severance and notice pay. The case is being heard in the Istanbul Labor Court, and an expert report has not even been received yet. The worker has also filed a new lawsuit for the same claims in another labor court in their place of residence.

The parties are the same (same employee, same employer),
The outcome of the request is the same (severance pay and notice pay),
The cause of the lawsuit is the same (the same employment contract and termination event)
The first case is still pending.

In this case, the second lawsuit is pending, and the court should dismiss it on procedural grounds due to the lack of a prerequisite for filing a lawsuit.

7.2. Example of a Final Judgment

A lawsuit for the cancellation and registration of a property title was previously heard between A and B, and the court ruled in favor of registering the property in A's name. The decision is final.

When B files another lawsuit for cancellation and registration of title for the same property years later, A an objection to the final judgment . The court will then:

The parties in the previous case,
The subject (the same property),
The reason (the same claims and facts)

By comparing them, the to dismiss the second case due to the principle of res judicata court decides

7.3. If the Initial Case is Deemed Not to Have Been Filed

Sometimes an important detail can be overlooked in practice: If a previously filed lawsuit is deemed "not filed" , this case no longer constitutes a pendency. Because:

With the decision to consider the case as never having been filed, the lawsuit is treated as if it had never been opened.
when a new case is filed on the same matter the issue of pendency cannot be invoked.

This distinction is crucial in practice, and lawyers need to pay attention to it when reviewing case history.

8. The Supreme Court's Approach to Pendens and Res judicata (General Outline)

This article will summarize only the general approach, without quoting sentences from Supreme Court decisions:

The Supreme Court, in matters of pendency, specifically : party, cause, and subject matter ; if any of these has changed, it does not accept pendency.
One of the most problematic aspects in practice the scope of the claim. For example, in labor claims, if one file only requests severance pay and notice pay, while another file requests different claims such as overtime and holiday pay, decisions may be made that there is no pendency as long as the claims do not refer to the exact same thing.
Regarding the principle of finality, the Supreme Court places great importance on the content of the judgment clause in the previous case. This is because, in a substantive sense, finality the judgment clause . The assessments in the reasoning do not expand the binding scope of the final judgment.
Furthermore, of adherence to the claim , there is generally no obstacle to res judicata in subsequent lawsuits concerning a claim not made in a previous lawsuit; however, res judicata may come into play with regard to claims that were explicitly rejected or implicitly decided in a previous lawsuit.

These general guidelines necessitate that lawyers comprehensively evaluate the case and previous legal proceedings when formulating their strategy.

pendency, HMK, Code of Civil Procedure, final judgment, civil procedural law

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