trial Court’s action disapproving petitioner’s Record on
104 SUPREME COURT REPORTS ANNOTATED
Yap vs. Court of Appeals
No. L-51458. July 19, 1982.*
MANUEL YAP, petitioner, vs. HON. COURT OF
APPEALS, RAYMOND AND LYDIA TOMASSI,
respondents.
Remedial Law; Civil Procedure; Motions; General
rule that a motion should contain a notice of
hearing; Exception; Purpose of 3-day notice.—As a general
rule, notice of motion is required where a party has a
right to resist the relief sought by the motion and
principles of natural justice demand that his right be not damages, P20,000.00, as actual damages, P5,000.00, as
affected without an opportunity to be heard. The three-
day-notice required by law is intended not for the benefit
of the movant but to avoid surprises upon the adverse
party and to give the latter time to study and meet the
arguments of the motion. The Motion in question does not
affect the substantive rights of private respondents as it
merely seeks to extend the period to file the Record on
Appeal, which extension may be granted by the Trial
Court upon application made prior to the expiration of the
original period. Neither was there any claim that said
Motion, which was grounded on justifiable reason, was
interposed to delay the appeal.
Same; Same; Appeals; Dismissal of appeals on
technical grounds frowned upon; Reason.—Dismissal of
appeals on purely technical grounds is frowned upon as
the policy of the Court is to encourage the hearing of
appeals on the merits. Litigants should be afforded every
opportunity to establish the merits of their cases without petitioner’s Record on Appeal, stating:
the constraints of technicalities.
PETITION for review on certiorari from the decision of
the Court of Appeals.
The facts are stated in the opinion of the Court.
Francisco E. F. Remotigue and Francis M. Zosa for
petitioner.
Ernesto F. Carreon for respondents.
_______________
*FIRST DIVISION.
105
VOL. 115, JULY 19, 1982
Yap vs. Court of Appeals
MELENCIO-HERRERA, J.:
Petitioner herein seeks to set aside respondent Court of
Appeals’1 Decision of May 22, 1979 and its Resolution of
July 26, 1979 in CA-G.R. No. 07966-SP, sustaining the
then filed with the Court of Appeals a Petition for
Appeal for having been filed out of time.
The antecedent facts follow:
On September 11, 1973, private respondents, spouses
Raymond Tomassi and Lydia Tomassi, filed a complaint
for Damages against petitioner Manuel Yap, before the
Court of First Instance of Cebu, Branch XIII, docketed as
Civil Case No. R-13571.
Petitioner-defendant filed his Answer with Special
Defenses and Counterclaim, after which, trial ensued. On
January 31, 1978, the Trial Court rendered judgment
against petitioner, ordering him to pay private
respondents P30,000.00, as moral and exemplary
attorney’s fees, and the costs of suit.
Copy of the Decision was received by petitioner-
defendant on February 10, 1978. He filed, on March 2,
1978, a Notice of Appeal, and on March 7, 1978, a Cash
Appeal Bond and Motion for Extension of twenty days
from March 13, 1978 (or until April 2, 1978) within which
to file his Record on Appeal. Said Motion was not acted
upon by the Trial Court. On March 30, 1978, or within the
extended period prayed for, petitioner submitted his
Record on Appeal. On the same date, respondents filed a
Motion for the Issuance of Writ of Execution alleging that
the Decision had already become final and executory as
petitioner’s Motion for extension of time to file Record on
Appeal failed to comply with the requirements of the
Rules of Court on Motions, and therefore, did not toll the
running of the period to perfect an appeal.
On April 24, 1978, the trial Court disapproved
_______________
1 Former Second Division, composed of JJs. Lourdes
P. San Diego, Hugo E. Gutierrez, Jr., Serafin R. Cuevas
(ponente).
106
106 SUPREME COURT REPORTS ANNOTATED
Yap vs. Court of Appeals mandatorily comply with the requirements of the Rules
“The records show that on March 7, 1978, defendant filed
a MOTION FOR EXTENSION OF TIME TO FILE
RECORD ON APPEAL, but since said motion did not
contain any notice of hearing, the COURT did not act on
it. The reglementary period expired on March 13, 1978,
105
without any extension granted to defendant. It is rather, motion, and other papers accompanying it. The Court,
too presumptuous, on the part of the defendant to assume
that the Court would grant the extension just because he
prayed for it.
IN VIEW OF THE FOREGOING, the approval of
defendants RECORD ON APPEAL is hereby denied for
having been filed out of time.”
Petitioner moved to reconsider the said Order, but
reconsideration was denied by the Trial Court. Petitioner No motion shall be acted upon by the court, without proof
“Certiorari and Mandamus” docketed as CA-G.R. No.
07966-SP, praying that the Trial Court be ordered to
approve his Record on Appeal and give due course thereto.
On May 22, 1979, the Court of Appeals dismissed the
Petition ruling that the Trial Court did not commit grave
abuse of discretion in disapproving the Record on Appeal
as the same was filed beyond the prescribed period.
Reconsideration of the Decision was sought by
petitioner but respondent Court denied the same for lack
of merit.
Petitioner hied to this Court, with the present
Petition for Review on Certiorari, posing the following
queries:
1. “1.Is a motion for extension of time to file record
on appeal, a litigated and contentious motion
which requires a notice of hearing before it
may be acted upon by the trial court or is it
one that may be heard ex-parte and therefore
does not need a notice of hearing?
2. “2.In disapproving petitioner’s record on appeal
which was filed within the extended period
prayed for, did the Court of Appeals not depart
from the liberal posture adopted by the
Honorable Supreme Court in a long line of
cases to disregard technicalities so that cases
may be decided on their merits?”
It is not disputed that petitioner’s Notice of Appeal, Cash
Appeal Bond, and Motion for Extension to File Record on
Ap-
107
VOL. 115, JULY 19, 1982
Yap vs. Court of Appeals
peal were seasonably filed, and that the Record on Appeal
was submitted within the extended period requested. The
only issue is whether the said Motion for extension should
on Motions before the same may be acted upon by the
trial Court. Sections 4, 5 and 6 of Rule 15 provide:
“Section 4. Notice.—Notice of a motion shall be served by
the applicant to all parties concerned at least three days
before the hearing thereof, together with a copy of the
however, for good cause may hear a motion on shorter
notice, specially on matters which the Court may dispose
of on its own motion.
“Section 5. Contents of Notice.—The notice shall be
directed to the parties concerned, and shall state the time
and place for the hearing of the motion.
“Section 6. Proof of service to be filed with motion.—
of service of the notice hereof, except when the court is
satisfied that the rights of the adverse party or parties are in obtaining a fair, expeditious and reasonable Court of Appeals is premised on the absence of evidence
not affected.” (Italics supplied) determination of his rights as he seeks recourse to the and is contradicted by evidence on record.
As a general rule, notice of motion is required where a court of law for justice without technicalities and without (Macadangdang vs. Court of Appeals,100 SCRA 73.)
party has a right to resist the relief sought by the motion strict adherence to the letter of the Rules, thereby
and principles of natural justice demand that his right be promoting their objective. x x x” ——o0o——
not affected without an opportunity to be heard.2 The Accordingly, we find for petitioner. Dismissal of appeals
three-day-notice required by law is intended not for the on purely technical grounds is frowned upon as the policy
110
benefit of the movant but to avoid surprises upon the of the Court is to encourage the hearing of appeals on the
© Copyright 2018 Central Book Supply, Inc. All rights
adverse party and to give the latter time to study and merits.5 Litigants should be afforded every opportunity to reserved.
meet the arguments of the motion.3 establish the merits of their cases without the constraints
The Motion in question does not affect the of technicalities.6
substantive rights of private respondents as it merely WHEREFORE, the Petition is granted. The
seeks to extend the period to file the Record on Appeal, questioned Decision and Resolution of respondent Court
which extension may be granted by the Trial Court upon of Appeals dated May 22, 1979 and July 26, 1979,
application made prior to the expiration of the original respectively, are hereby annulled and set aside. The Court
period.4 Neither was there any claim that said Motion, of First Instance of Cebu,
which was grounded on justifiable reason, was interposed _______________
to delay the appeal. As early as Moya vs. Barton, 76 Phil.
831 [1946], this Court held that a Motion requesting an 5 Calasiao Farmers Cooperative Marketing
extension within which to file Record on Appeal Association, Inc. vs. Court of Appeals, 106 SCRA
_______________ 630 [1981].
6 A-One Feeds, Inc. vs. Court of Appeals, 100 SCRA
2 Amante vs. Sunga, 64 SCRA 192 [1975], citing 60 590 [1980].
C.J.S. 15. 109
3 JM Tuason & Co. Inc. vs. Magdangal, 4 SCRA
VOL. 115, JULY 19, 1982 109
84 [1962].
4 Berkenkotter vs. Court of Appeals, 53 SCRA Yap vs. Court of Appeals
228 [1973]. Branch XIII, is hereby directed to approve petitioner’s
108 Record on Appeal and to elevate the same to the Court of
108 Appeals.
SUPREME COURT REPORTS ANNOTATED
No costs.
Yap vs. Court of Appeals SO ORDERED.
may be considered as one which may be heard ex- Teehankee (Acting
parte. In Que Tiac vs. Republic, 43 SCRA 56 [1972], it was C.J.), Makasiar, Plano, Vasquezand Relova, JJ., concur.
similarly held that a telegraphic Motion for extension of Gutierrez, Jr., J., no part.
time to file a Record on Appeal is addressed to the Petition granted.
discretion of the Court, which may act thereon ex- Notes.—Only issues raised or within the issues
parte. And in the more recent case of Commercial Union raised on appeal should be resolved by appellate court.
Assurance Company Limited vs. Lepanto Consolidated (Escano vs. Court of Appeals, 100 SCRA 197.)
Mining Company, 86 SCRA 79, 98 [1978], this Court ruled The findings of facts of the Court of Appeals are
that the Trial Court has the power and authority to act on conclusive on the parties and in the Supreme Court,
an ex-parte Motion for extension of time to file the Record unless (1) the conclusion is a finding grounded entirely on
on Appeal, which was filed within the original period speculation, surmise, and conjectures; (2) the inference
prescribed by the Rules since the said Motion did not made is manifestly mistaken; (3) there is grave abuse of
appear to be a litigated or a contentious Motion and may discretion; (4) the judgment is based on misappropriation
be acted upon even without proof of service on adverse of facts; (5) the Court of Appeals went beyond the issue of
party. the case and its findings are contrary to the admission of
In the same case, this Court held: both appellant and appellee; findings are contrary to the
“x x x While the earlier cases pertinent to the issue admission of both appellant and appellee; (6) the findings
command mandatory compliance with Sections 4, 5 and 6 of facts of the Court of Appeals are contrary to those of the
of Rule 15 of the Rules of Court, the weight of the trial court; (7) said findings of facts are conclusions
authorities recently promulgated by the Supreme Court without citation of specific evidence on which they are
culminating in Amante v. Sunga, 64 SCRA based; (8) the facts set forth in the petition as well as in
192 and Pimentel vs. Court of Appeals, 64 SCRA 475, the petitioner’s main and reply briefs are not disputed by
tend towards liberally giving every litigant the assistance the respondents; and (9) when the findings of facts of the

VOL. 145, NOVEMBER 10, 1986
Azajar vs. Court of Appeals
No. L-40945. November 10,1986.*
IGMEDIO AZAJAR, petitioner, vs. THE HONORABLE
COURT OF APPEALS (Second Division) and CHAM
SAMCO & SONS, INC., respondents.
Remedial Law; Civil
Procedure; Motions; Requirement ofservice of motions
upon the adverse party three (3) days before the date of
hearing; Failure to comply with the requirement of notice,
fatal.—It was wrong, of course, for Cham Samco to have
failed to set its motion to dismiss for hearing on a
specified date and time. The law explicitly requires that
notice of a motion shall be served by the applicant to all
parties concerned at least three (3) days before the
hearing thereof, together with a copy of the motion, and of
any affidavits and other papers accompanying it; and that
the notice shall be directed to the parties concerned,
stating the time and place f or the hearing of the motion.
The uniform holding of this Court has been that a failure
to comply with the requirement is a fatal flaw. Such
notice is required to avoid surprises upon the opposite
party and give the latter time to study and meet the
arguments of the motion, as well as to determine or make
determinable the time of submission of the motion f or
resolution.
Same; Same; Same; Same; Purpose of giving notice
to the adverse party.—These considerations, to be sure,
did not erase movant’s duty to give notice to the adverse
party of the date and time of the hearing on its motion,
the purpose of said notice being, as already stressed, not
only to give the latter time to oppose the inotiou if so
minded, but also to determine the time of its submission
for resolution. Without such notice, the occasion would not
arise to determine with reasonable certitude whether and
within what time the
_______________
*FIRST DIVISION.
334
335
3 SUPREME COURT REPORTS ANNOTATED
34
Azajar vs. Court of Appeals
adverse party would respond to the motion, and
when the motion might already be resolved by the Court.
The duty to give that notice is imposed on the movjant,
not on the Court.
Same; Same; Same; Reasons for aparty’s erroneous
motion of the dispensability ofd hearing on its motion to
dismiss are not utterly without plausibility and that
saidparty has a meritorious defense att conduce to
concurrence with the Court of Appeals that the ends of
333
justice would be better served if technicality is set aside
and afford petitioner its day in court—Withal, the reasons
for Cham Samco’s erroneous notion of the dispensability
of a hearing on its motion to dismiss are not utterly
without plausibility. This circumstance, taken together
with the fact, found by the Intermediate Appellate Court
and not disputed by petitioner Azajar, that Cham Samco
has meritorious defenses wbich if proven would defeat
Azajar’s claim against it, and the eminent desirabiiity
more than once stressed by this Court that cases should
be determined cm the merits after full opportunity to ali
parties for ventilation of their causes and defenses, rather
than on technicality or some procedural imperfections, all
conduce to concurrenee with the Court of Appeals that
“the ends of justice would be better served in this case if
we brush aside technicality and afford the patitioner its
day in court.”
PETITION to review the resolution of the Court of
Appeals.
The facts are stated in the opinion of the Court.
NARVASA, J.;
Petitioner seeks reversal of the Resolution of the
respondent Court of Appeals (now Intermediate Appellate
Court) dated March 25,1975 setting aside the judgment
by default rendered against private respondent by the
Court of First Instance, and directing that said
re^pondent be allowed to file its answer to the cpmplaint
and after joinder of iesues, trial be had and judgment
rendered on the merits.
This case originated from a complaint filed by
petitioner Igmedio Azajar against respondent Cham
Samco and Sons, Inc., in the Court of First Instance (now
Regional Trial Court) of Camarines Sur.1 Azajar’s claim,
briefly, is that he had purchased from defendant
(hereafter referred to simply as Cham
_______________
Rollo, pp, 41–43; Annex D, petition.
1 Azajar vs. Court of Appeals
VOL. 145, NOVEMBER 10, 1986
Azajar vs. Court of Appeals
Samco), thru the latter’s agent, 100 Kegs of nails of
various sizes, specified in one of Cham Samco’s printed
order forms, and had given to the agent Pl8,000.00 in full
payment thereof; but in breach of contract, Cham Samco
had offered to deliver only a part of the quantity ordered.
Cham Samco filed a motion to dismiss on two
grounds: (1) failure of the complaint to state a cause of
action—the complaintfs language indicating not a
perfected sale but merely an “offer to buy by plaintiff that
was partly accepted by defendant,” and failing to show
that as explicitly required by the order form, prices had
been confirmed by Cham Samco’s “Manila Office,"2 and (2)
that venue was improperly laid—Cham Samco’s
invariable condition in transactions of this nature, as
Azajar well knew from many such transactions in the
past, being that “any legal action thereon must be
instituted in the City of Manila."3
The motion to dismiss contained a notice addressed to
the Clerk of Court reading as follows:
“The Clerk of Court
Court of First Instance of Camarines Sur
Naga City
Sir:
Please submit the foregoing motion to the Court for its
consideration and resolution immediately upon receipt
thereof.
Makati, Rizal for Naga City, February 4,1974
(SGD) POLO S. PANTALEON
Copy furnished:
Atty. Augusto A. Pardalias
Naga City
NF-927"4
_______________
2 Annexes 1 and 2, Appellees-Respondents’ Brief
(Rollo, p. 133).
3 Annex 2, Brief (Rollo, p. l33)
4 Rollo, p. 133, Annex 2, p. 6, Brief for Appellants-
Respondents.
336
336 SUPREME COURT REPORTS ANNOTAT
It is this notice that has given rise to the controversy at
bar.
335
Contending that such a notice was fataliy defective
and rendered the Motion to Dismiss incapable of tolling
the period to answer, Azajar fUed a motion dated
February 20, 1974 to declare Cham Samco in default,
which the Court granted. By Order dated February 22,
1974 the Court pronounced Cham Samco in default and
ailowed Azajar to present evidence ex~ parte. The Court
justified the order of default in this wise:
“On February 4, 1974, defendant thru counsel, instead of
filing an answer to the complaint, filed a “Motion to
Dismiss” whicfa, in iegal conteinplation, is not a motion at
all because the “notice” therein is directed to the Clerk of
Court instead of to the party concerned (as required by
Section 5, Rule 15 of the Rules of Court) and is without
the requisite notice of time and place of hearing; that a
inotion “with a notice of hearing (a) directed to the Clerk
of Court not to the parties; and (b) merely stating that the
same be “submitted for resolution of the Honorable Court
upon receipt thereof,” copy of which motion was duly
furnished to and received by “the adverse eounsei, is
iatally defective and did not toll the running of the period
to appeal” (Cladera v. Sarmiento, 39 SCRA 552).
Consequentjy, inasinuch as the “motion to disiniss in this
casc is a mere scrap of paper beeause it is without the
requisite notice of time and place of hearing (Manakil v.
Hevilla, 42 Phil 81; Roman Catholic Bishop v. Unisan, 44
Phil. 866; Director of Lands v. Sanz, 45 Phil 117;
and Manila Surety v. Bath, 14 SCRA 435), the filing
thereof did not suspend the running of the period to file
the required responsive pieading. That from February 4,
1974 to February 21, 1974, seventeen (17) days had
lapsed and defendant failed to file any responsive
pleading.* *"5
Then on March 30,1974, the Trial Court rendered
judgment by default against defendant Cham Samco
ordering it:
"* * to deliver iminediately to the plaintiff the naiis
mentioned in the Order Form No. 9020 (Exhibit A); (2)
requiring defendant to pay pkintiff the sum of P15,000.00
by way of actual damages, the sum of P10.000.00 by way
of consequential damages, plus interest in both instances,
and the additional sum of P5,000.00, for exemplary
damages; (3) ordering defendant to pay plaintifi the sum
of P7,500.00 for attorney’s fees and related expenses of
litigation; and (4) to pay the costs.”
_______________
5Rollo, p. 133.
337
VOL. 145, NOVEMBER 10, 1986
Azajar vs. Court of Appeals
Cham Samco filed a Motion for New Trial on April 9.
1974. It contended that its failure to observe the rules
governing notice of motions was due to excusable
negligence, “because the grounds alleged in the Motion to
Dismiss were all in such nature and character that
addressed themselves to a motu proprio resolution by the
court and thus rendered a hearing dispensable."6 It also
alleged certain defenses available to it which if duly
alleged and proven, would absolve it from all
liability.7 This motion was denied.
Cham Samco went to the Court of Appeals
on certiorariasserting that the trial court acted with grave
abuse of discretion amounting to lack of jurisdiction in
declaring it in default and then rendering judgment by
default.8 The petition was dismissed for lack of merit by
the Court of Appeals on November 20,1974.9
But on motion for reconsideration seasonably
presented, the Court of Appeals reversed itself. By
Resolution dated March 25, 1975,10 it set aside the Trial
Court’s order of default of February 22, 1974, judgment by
default of March 13, 1974, and Order dated June 4, 1974
denying Cham Samco’s motion for new trial, and directed
the lower Court to allow Cham Samco to file its answer to
the coinplaint and upon due joinder of issues, to try and
decide the case on the merits.
The Court held that:
"* * (t)henoticeinthemotionwhichwasaddressedtotheclerk
of court asking him to submit the motion f or the
consideration of the court is a substantial compliance with
the provision of section 3 Rule 16 of the Rules of Court.
Verily under the said rule, the Court has the alteraative
of either hearing the case or deferring the hearing and
determination thereof until the trial on the merits. Thus
upon the filing of said inotion the eourt should have set
the motion for hearing or outrightly deny the motion, or
otherwise postpone the hearing until the trial on the
ground that the grounds thereof do not appear to be
_______________
6 Annex 4, Brief (Rollo, p. 133).
7 Id.
8 Rollo, pp. 49 to 67, Annex F, Petition for Review.
9 Rollo, pp. 32–39.
10 Rollo, pp. 17–30.
338
338 SUPREME COURT REPORTS ANNOTATED
Azojar vs. Court of Appeals
indubitable. The prompt filing and apparently valid
grounds invoked in the motion are not the acts and
declarations of a defaulting party.”
“* * (E)ven assuming
337 that the declaration of default of
the petitioner was in order we find that the trial court
committed a grave abuse of discretion when it denied the
motion for new triai that was filed by the petitioner not
only on the ground of excusabie negiigence we have above
discussed but also on the ground that it has a meritorious
defense.” and
"* * (E)xcessive damages have been awarded to the
private respondent In addition to ordering the petitioner
to deliver to the private respondent the nails ordered by
the latter, the petitioner was also ordered to pay not only
P15,000 actual damages for profits that the private
respondent could have earned but also consequential
damages of P10,000 for the unrealized profits that the
said earnings and capital of the plaintiff could have
earned, plus interest in both instances, exemplary
damages of P5,000 and P7,500 for attorney’s fees and
related expenses of litigatiocu Thus for the capital of
respondent of P18,100.00 in the purchase of the naUs, the
petitioner was ordered to pay damages of a total of
P37,500.00, which including the interest awarded can
amount to over P40,000, more than double the value of
the said investment of respondent, Under Section 1, Rule
37 of the Rules of Court award of excessive damages could
be a ground for new trial”
The Court concluded its opinion with the observation that
“the ends of justice would be better served in this case if
we brush aside technicality and afford the petitioner its
day in court.”
It was wrong, of course, for Cham Samco to have
failed to set its motion to dismiss for hearing on a
specified date and time. The law explicitly requires that
notice of a motion shall be served by the appellant to ail
parties concerned at least three (3) days before the
hearing thereof, together with a copy of the motion, and of
any affidavits and other papers accompanying it;11 and
that the notice shall be directed to the parties concerned,
stating the time and place for the hearing of the
motion.12 The uniform holding of this Court has been that
a f ailure to comply with the requirement is a fatal
flaw.13 Such notice is
_______________
11 Sec. 4, Rule 15, Rules of Court.
12 Sec.5,id
13 CASES.
339
VOL. 145, NOVEMBER 10, 1986
Azajar vs. Court of Appeals
required to avoid surprises upon the opposite party and
give the latter time to study and meet the arguments of
the motion, as well as to determine or make determinable
the time of submission of the motion for resolution.14
Cham Samco quite frankly admits its error. It pleads
however that under the circumstances the error be not
regarded as irremediable or that it be deemed as
constituting excusable negligence, warranting relief. It
argues that legal and logical considerations, which it took
to be tenable, caused it to theorize that a hearing on the
motion was dispensable. It also adverts to its possession
of affirmative defenses in addition to those set out in its
motion to dismiss which, if ventilated and established at
the trial, would absolve it from all liability under the
complaint.
Cham Samco’s belief that it was not necessary that
its motion to dismiss be set for hearing was avowedly
engendered by two factors, namely:
 1. 1)the fact that while the Rules of Court “specify
the motions which can be heard only with
prior service upon adverse parties,"15 said
Rules “do not point out which written motions
may be ex parte, preferring, it appears, to
leave to the court, in mGtions other than those
specified, the cliseretion either to ex
parteresolve* * or to call the parties to a
hearing * *;16and
2. 2)the further fact that its motion to dismiss was
based on two grounds on which a hearing was
superfluous, the first, failure of the complaint
to state a cause of action, being determinable
exclusively from the allegations of the
complaint and no evidence being allowable
thereon; and the second, that
_______________
14 SEE J.M. Tuason & Co. v. Magdangal, 4 SCRA
84,86.
15 It enumerates the motions as follows: (1) motion to
intervene, Sec. 2, Rule 12; (2) motion for summary
judgment, Sec. 3, Rule 34; (3) motion for new trial, Sec. 2,
Rule 37; (4) motion for execution pending appeal, Sec. 2,
Rule 39; (5) motion for preliminary injunction, Sec. 5,
Rule 58; (6) motion for support pendente lite, Sec. 2, Rule
61; (7) motion for immediate execution in an ejectment
case, Sec. 8, Rule 70; (8) motion for approval of
administrator’s account, Sec. 10, Rule 85; and (9) motion
for authority to sell or encumber a decedent’s property,
Sec. l, Rule 89.
16 Brief for Appellees-Respondents, pp. 13–14.
340
340 SUPREME COURT REPORTS ANNOTATED
Azajar vs. Court of Appeals
1. venue is improperly laid, being resolvable
exclusively on the basis of documents annexed
to the motion.17
These considerations, to be sure, did not erase inovant’s
duty to give notice to the adverse party of the date and
time of the hearing on its motion, the purpose of said
notice being, as already stressed, not only to give the
latter time to oppose the motion if so minded, but also to
determine the time of its submission for resolution.
Without such notice, the occasion would not arise to
determine with reasonable certitude whether and within
what time the adverse party would respond to the motion,
and when the motion might already be resolved by the
Court. The duty to give that notice is imposed on the
movant, not on the Court.
Withal, the reasons for Cham Samco’s erroneous © Copyright 2018 Central Book Supply, Inc. All rights
notion of the dispensability of a hearing on its motion to reserved.
dismiss are not utterly without plausibility. This
circumstance, taken together with the fact, found by the
Intermediate Appellate Court and not disputed by
petitioner Azajar, that Cham Samco has meritorious
defenses which if proven would defeat Azajar’s claim
against it, and the eminent desirabiiity more than once
stressed by this Court that cases should be determined on
the merits after full onportunity to all parties for
ventilation of their causes and defenses, rather than on
technicality or some procedural imperfeetions,18 all
conduce to concurrence with the Court of Appeals that
“the ends of justice would be better served in this case if
we brush aside technicality and afford the petitioner its
day in court”
WHEREFORE, the Resolutions of the Court of
Appeals appealed from, are affirmed. Costs against
petitioner.
SO ORDERED.
Yap (Chairman), Melencio-
Herrera, Cruz and Paras,** JJ., concur.
_______________
17Id., pp. 15–16.
18A-Qne Feeds, Inc. vs. Court of Appeals, 100
SCRA 590; Yap vs. Court of Appeals, 115 SCRA 104; Abad
vs. Court of Appeals, 137 SCRA 416.
** Justice Feliciano took no part. Justice Paras was
designated to sit in the First Division.
341
VOL. 145, NOVEMBER 10, 1986 341
GSIS vs. Court of Appeals
Feliciano, J., took no part.
Resolutions affirmed.
Notes—Dismissal of case without setting the case for
hearing to give appellant an opportunitj to prove Her
defense and to comment an allegation that she was
delaying the hearing of the caseis improper. (San Agustin
vs. Orozco, 120 SCRA 125.)
Granting or denial of motion to set aside default order
or new trial or relief from judgment is within the sound
discretion of the court. (Claridad vs. Santos, 120 SCRA
148.)
A motion to dismiss under any of the grounds
enumerated in Section 1, Rule 8 (now Section 1, Rule 16)
of the Rules of Court, must be filed within the time for
pleading, that is, within the time to answer. (Barrasa vs
Campos, Jr., 120 SCRA 881.)
——o0o——

432 SUPREME COURT REPORTS ANNOTATED
KKK Foundation, Inc. vs. Calderon-Bargas
G.R. No. 163785. December 27, 2007.*
KKK FOUNDATION, INC., petitioner, vs. HON.
ADELINA CALDERON-BARGAS, in her capacity as
Presiding Judge of the REGIONAL TRIAL COURT,
Branch 78 of Morong, Rizal, SHERIFF IV SALES T.
BISNAR, THE REGISTER OF DEEDS FOR MORONG,
RIZAL, and IMELDA A. ANGELES, respondents.
Actions; Motions; Pleadings and Practice; Notice of
Hearing;Service of a copy of a motion containing a notice
of the time and the place of hearing of that motion is a
mandatory requirement, and the failure of movants to
comply with these requirements renders their motions
fatally defective; Exceptions.—We have consistently held
that a motion which does not meet the requirements of
Sections 4 and 5 of Rule 15 of the Rules of Court is
considered a worthless piece of paper, which the Clerk of
Court has no right to receive and the trial court has no
authority to act upon. Service of a copy of a motion
containing a notice of the time and the place of hearing of
that motion is a mandatory requirement, and the failure
of movants to comply with these requirements renders
their motions fatally defective.
_______________
* SECOND DIVISION.
433
VOL. 541, DECEMBER 27, 2007
KKK Foundation, Inc. vs. Calderon-Bargas
However, there are exceptions to the strict
application of this rule. These exceptions are: (1) where a
rigid application will result in a manifest failure or
miscarriage of justice especially if a party successfully
shows that the alleged defect in the questioned final and
executory judgment is not apparent on its face or from the
recitals contained therein; (2) where the interest of
substantial justice will be served; (3) where the resolution
of the motion is addressed solely to the sound and
judicious discretion of the court; and (4) where the
injustice to the adverse party is not commensurate with
the degree of his thoughtlessness in not complying with
the procedure prescribed.
Same; Same; Same; Same; Due Pr ocess; Procedural
Rules and Technicalities; A notice of hearing is an integral
component of procedural due process to afford the adverse
parties a chance to be heard before a motion is resolved by
the court; The notice requirement is not a ritual to be
followed blindly—procedural due process is not based
solely on a mechanical and literal application that renders
any deviation inexorably fatal.—A notice of hearing is an The facts are stated in the opinion of the Court.
integral component of procedural due process to afford the Joel F. Pradia and Mayda E. Lintag for petitioner.
adverse parties a chance to be heard before a motion is Quiason, Makalintal, Barot, Torres & Ibarra for
resolved by the court. Through such notice, the adverse Imelda A. Angeles.
party is given time to study and answer the arguments in
the motion. Records show that while Angeles’s Motion for
QUISUMBING, J.:
Issuance of Writ of Execution contained a notice of
hearing, it did not particularly state the date and time of
In this petition for review under Rule 45 of the Rules of
the hearing. However, we still find that petitioner was not
Court, petitioner urges this Court to reverse and set aside
denied procedural due process. Upon receiving the Motion
the Decision1 dated November 28, 2003, and the
for Issuance of Writ of Execution, the trial court issued an
Resolution2 dated May 26, 2004, of the Court of Appeals
Order dated September 9, 2002 giving petitioner ten (10)
in CA-G.R. SP No. 73965.
days to file its comment. The trial court ruled on the
The antecedent facts are as follows:
motion only after the reglementary period to file comment
lapsed. Clearly, petitioner was given time to study and
comment on the motion for which reason, the very _______________
purpose of a notice of hearing had been achieved. The
notice requirement is not a ritual to be followed blindly. 1 Rollo, pp. 130-136. Penned by Associate Justice Eloy
Procedural due process is not based solely on a R. Bello, Jr., with Associate Justices Amelita G. Tolentino
mechanical and literal application that renders any and Arturo D. Brion concurring.
deviation inexorably fatal. Instead, procedural rules are 2 Id., at pp. 163-164.
liberally construed to promote their objective and to assist 435
in obtaining a just, speedy and inexpensive determination
of any action and proceeding.
VOL. 541, DECEMBER 27, 2007
Judgments; Writs of Execution; Where the execution KKK Foundation, Inc. vs. Calderon-Bargas
is not in harmony with the judgment which gives it life On March 1, 2002, petitioner KKK Foundation, Inc. filed
and exceeds it, it has a complaint for Annulment of Extra-judicial Foreclosure
434 of Real Estate Mortgage and/or Nullification of Sheriff’s
Auction Sale and Damages with Prayer for the Issuance
4 SUPREME COURT REPORTS ANNOTATED
of Temporary Restraining Order and/or Writ of
34 Preliminary Injunction.3 Petitioner alleged that: (1) the
KKK Foundation, Inc. vs. Calderon-Bargas auction sale was made with fraud and/or bad faith since
there was no public bidding; (2) the sheriff did not post
pro tanto no433 validity.—Undoubtedly, the writ of
the requisite Notice of Sheriff’s Sale; (3) the petition for
execution imposed upon petitioner an alternative
extrajudicial foreclosure was fatally defective since it
obligation which was not included or contemplated in the
sought to foreclose properties of two different entities; (4)
Compromise Agreement. While the complaint originally
the foreclosed properties were awarded and sold to Imelda
sought to restrain Angeles from consolidating her
A. Angeles for an inadequate bid of only P4,181,450; and
ownership to the foreclosed properties, that has been
(5) the auction sale involved eight parcels of land covered
superseded by the Compromise Agreement. Therefore, the
by individual titles but the same were sold en masse.
writ of execution which directed Sheriff Bisnar to “cause
On March 7, 2002, Judge Adelina Calderon-Bargas
the Register of Deeds of Morong, Rizal, to allow the
issued a temporary restraining order preventing Angeles
consolidation of the subject real properties in favor of the
from consolidating her ownership to the foreclosed
defendant Imelda Angeles” is clearly erroneous because
properties. On even date, petitioner and Angeles executed
the judgment under execution failed to provide for
a Compromise Agreement wherein petitioner agreed to
consolidation. Because the writ of execution varied the
pay Angeles the bid price of the eight parcels of land
terms of the judgment and exceeded them, it had no
within 20 days. The parties then filed a Motion to
validity. The writ of execution must conform to the
Approve Compromise Agreement.4
judgment which is to be executed, as it may not vary the
On April 1, 2002, petitioner filed an Urgent Ex
terms of the judgment it seeks to enforce. Neither may it
ParteMotion to Recall Compromise Agreement5 since the
go beyond the terms of the judgment sought to be
other property owner and other trustees of petitioner were
executed. Where the execution is not in harmony with the
not consulted prior to the signing of the agreement.
judgment which gives it life and exceeds it, it has pro
Angeles opposed the motion.
tanto no validity.
On May 2, 2002, Judge Calderon-Bargas issued an
PETITION for review on certiorari of the decision and
Order,6 which reads in part:
resolution of the Court of Appeals.
_______________ 437 In the instant petition before us, petitioner alleges
that the appellate court seriously erred:
VOL. 541, DECEMBER 27, 2007 437
3 CA Rollo, pp. 26-37.
4 Id., at pp. 38-39. KKK Foundation, Inc. vs. Calderon-Bargas I.
5 Id., at pp. 40-41. sued by the plaintiff to the defendant as payment of its
6 Id., at p. 50. obligations. … IN NOT HOLDING THAT PETITIONER WAS
436 xxxx DENIED THE REQUISITE PROCEDURAL DUE
Finding the Compromise Agreement quoted above to PROCESS WHEN PUBLIC RESPONDENT ISSUED
436 SUPREME COURT REPORTS ANNOTATED
be not contrary to law, morals, good customs and public THE QUESTIONED ORDERS OF OCTOBER 3, 2002
KKK Foundation, Inc. vs. Calderon-Bargas policy, the same is hereby APPROVED. AND OCTOBER 10, 2002 EVEN BEFORE PETITIONER
x x xx x x x x” COULD FILE ITS COMMENT AND IN FURTHER
Record shows that the Urgent Ex Parte Motion to Angeles then moved for the issuance of a writ of ISSUING THE WRIT OF EXECUTION EVEN BEFORE
Recall Compromise Agreement and Motion to Approve execution. On September 9, 2002, the trial court required THE RESOLUTION OF THE PETITIONER’S MOTION
Compromise Agreement both failed to comply with Sec[s]. petitioner to comment on the motion within ten (10) FOR RECONSIDERATION OF THE ORDER OF
4 and 5, Rule 15 of the Civil Procedure. Both proceedings days. On October 3, 2002, the trial court directed the
8
OCTOBER 3, 2002.
have no specific date of hearing. The reason why the Clerk of Court to issue a writ of execution. On the same
9

Motion to Approve Compromise Agreement up to now has date, the trial court received petitioner’s Motion for
Extension of Time to File Comment with Entry of II.
not yet been acted upon was that it has no date of
hearing. Appearance which was denied on October 10,
2002.10 Petitioner then moved for reconsideration of the … IN NOT HOLDING THAT PUBLIC
WHEREFORE, the Urgent Ex Parte Motion to Recall
October 3, 2002 Order. RESPONDENT COMMITTED GRAVE ABUSE OF
Compromise Agreement and the Motion to [Approve]
Petitioner came to the Court of Appeals via petition DISCRETION WHEN IT GRANTED PRIVATE
Compromise Agreement are considered mere scrap[s] of
for certiorari alleging that Judge Calderon-Bargas RESPONDENT’S MOTION FOR ISSUANCE OF WRIT
paper.
SO ORDERED.” committed grave abuse of discretion amounting to lack or OF EXECUTION ALTHOUGH THE SAME WAS FILED
In its Decision7 dated June 28, 2002, the trial court excess of jurisdiction when: (1) she issued the October 3, WITHOUT AN ACCOMPANYING NOTICE OF
2002 and the October 10, 2002 Orders even before HEARING.
approved the Compromise Agreement, as follows:
“The parties, duly assisted by their respective counsels, petitioner could file its comment; (2) she granted the
submitted before this Court a Compromise Agreement, as Motion for Issuance of Writ of Execution although it III.
follows: lacked the requisite notice of hearing; and (3) the writ of
“x x x x execution changed the tenor of the decision dated June … IN NOT HOLDING THAT PUBLIC
[1.] The plaintiff shall pay to the defendant, Imelda 28, 2002. RESPONDENT COMMITTED GRAVE ABUSE OF
Angeles, the amount of P5,500,000.00 representing the In dismissing the petition, the appellate court ruled DISCRETION IN NOT HOLDING THAT EVEN
bid price for all the eight titles (TCT Nos. M-95417, that petitioner was not deprived of due process when the ASSUMING THAT THE DECISION RENDERED IN
95419, 95418, 95420, 95421, 50889, 50890 and 50893) trial court issued the October 3, 2002 and the October 10, ACCORDANCE WITH THE COMPROMISE
subject of the auction sale dated March 7, 2001 plus 2002 Orders since it was given sufficient time to file its AGREEMENT IS VALID AND BINDING UPON THE
whatever taxes [and/or] assessments and expenses of the comment. The appellate court did not rule on the second PETITIONER, THE WRIT OF EXECUTION ISSUED
public auction as prescribed under Act 3135, within and third issues after noting that petitioner’s motion for PURSUANT THERETO IS VOID AS IT VARIES THE
twenty (20) days from the signing of this compromise reconsideration of the October 3, 2002 Order had not yet TENOR OF THE JUDGMENT.12
agreement. Said payment shall be considered full been resolved by the
settlement of all obligations stated under that Real Estate _______________
Mortgage, dated July 15, 1997…and that Deed of _______________
Assumption of Mortgage dated August 11, 1999.…. 11 Id., at pp. 200-201.
2. Upon the payment of the afore-stated amount, the 8 Id., at p. 58.
12 Rollo, pp. 16-17.
defendant shall make, sign, execute and deliver to the 9 Id., at pp. 61-62.
plaintiff a Certificate of Deed of Redemption of all the 439
10 Id., at p. 78.
above titles, and shall surrender and deliver to the 438 VOL. 541, DECEMBER 27, 2007
plaintiff all the eight titles mentioned above. The
defendant shall also make, sign, execute and deliver to 438 SUPREME COURT REPORTS ANNOTATED KKK Foundation, Inc. vs. Calderon-Bargas
the plaintiff a Deed of Cancellation of Mortgage annotated Simply, the issues are whether the trial court seriously
KKK Foundation, Inc. vs. Calderon-Bargas
at the back of all the eight titles above-mentioned. The erred: (1) in issuing the October 3, 2002 and the October
trial court. It did not resolve the issues even after the trial 10, 2002 Orders without awaiting petitioner’s comment;
defendant shall also return to the plaintiff all checks is court denied petitioner’s motion for reconsideration on (2) in granting the Motion for Issuance of Writ of
December 12, 2003,11 ratiocinating that the trial court’s Execution although it lacked the requisite notice of
_______________ denial of petitioner’s motion for reconsideration did not hearing; and (3) in issuing the writ of execution since it
operate to reinstate the petition because at the time it varied the tenor of the decision dated June 28, 2002.
7 Id., at pp. 51-53. was filed, petitioner had no cause of action.
 Petitioner contends that it was denied due process
when the trial court granted Angeles’s Motion for
Issuance of Writ of Execution on October 3, 2002, despite
its receipt of petitioner’s Motion for Extension of Time to
File Comment with Entry of Appearance on the same day.
Further, Sheriff Sales T. Bisnar served upon petitioner
the Notice to Settle and/or Pay the Compromise Judgment
Amount although its motion for reconsideration of the
October 3, 2002 Order was still pending. Petitioner also
argues that Angeles’s Motion for Issuance of Writ of
Execution lacked the requisite notice of hearing. Finally,
petitioner claims that the writ of execution varied the
tenor of the decision dated June 28, 2002.
Respondent Angeles counters that petitioner was not
denied due process since it was given ten (10) days to
comment on the Motion for Issuance of Writ of Execution
which period had lapsed without petitioner filing any
comment. Petitioner filed its Motion for Extension of Time
to File Comment with Entry of Appearance only after the
reglementary period had expired. Angeles further
contends that the Motion for Issuance of Writ of
Execution contained the requisite notice of hearing.
Finally, she argues that the writ of execution did not vary
the tenor of the decision dated June 28, 2002.
On the first issue, we note that in its September 9,
2002 Order, the trial court gave petitioner ten (10) days to
file its comment to Angeles’s Motion for Issuance of Writ
of Execution. While petitioner claims that it received the
Order only on September 21, 2002, Angeles counters that
petitioner received it on September 12, 2002. We are more
inclined to believe Angeles’s allegation since the trial
court itself de-
440
440 SUPREME COURT REPORTS ANNOTATED
KKK Foundation, Inc. vs. Calderon-Bargas the degree of his thoughtlessness in not complying with
clared in its Order dated October 10, 2002 that the Order
dated September 9, 2002 was personally served upon
petitioner on September 12, 2002.13 Thus, petitioner had
until September 22, 2002 within which to file its comment
or to request for an extension of time. Consequently,
petitioner’s motion for extension and comment were not
seasonably filed and such procedural lapse binds
petitioner.
Anent the second issue, we have consistently held
that a motion which does not meet the requirements of
Sections 4 and 5 of Rule 15 of the Rules of Court is
14
considered a worthless piece of paper, which the Clerk of
Court has no right to receive and the trial court has no
authority to act upon. Service of a copy of a motion
15
containing a notice of the time and the place of hearing of
that motion is a mandatory requirement, and the failure
of movants to comply with these requirements renders
their motions fatally defective. However, there are
exceptions to the strict application of this rule. These
exceptions are: (1) where a rigid application will result in
a manifest failure or miscarriage of justice especially if a
party successfully shows that the alleged defect in the
questioned final and executory judgment is not apparent
on its
_______________
13 CA Rollo, p. 78.
14 SEC. 4. Hearing of motion.—Except for motions
which the court may act upon without prejudicing the
rights of the adverse party, every written motion shall be
set for hearing by the applicant.
Every written motion required to be heard and the
notice of the hearing thereof shall be served in such a
manner as to ensure its receipt by the other party at least
three (3) days before the date of hearing, unless the court
for good cause sets the hearing on shorter notice.
SEC. 5. Notice of hearing.—The notice of hearing
shall be addressed to all parties concerned, and shall
specify the time and date of the hearing which must not
be later than ten (10) days after the filing of the motion.
15 Pallada v. Regional Trial Court of Kalibo, Aklan,
Br. 1, G.R. No. 129442, March 10, 1999, 304 SCRA 440,
446.
441
VOL. 541, DECEMBER 27, 2007
KKK Foundation, Inc. vs. Calderon-Bargas
face or from the recitals contained therein; (2) where the
interest of substantial justice will be served; (3) where the
resolution of the motion is addressed solely to the sound
and judicious discretion of the court; and (4) where the
injustice to the adverse party is not commensurate with
the procedure prescribed.16
A notice of hearing is an integral component of
procedural due process to afford the adverse parties a
chance to be heard before a motion is resolved by the
court. Through such notice, the adverse party is given
time to study and answer the arguments in the
motion.17 Records show that while Angeles’s Motion for
Issuance of Writ of Execution contained a notice of
hearing, it did not particularly state the date and time of
the hearing. However, we still find that petitioner was not
denied procedural due process. Upon receiving the Motion
for Issuance of Writ of Execution, the trial court issued an
Order dated September 9, 2002 giving petitioner ten (10)
days to file its comment. The trial court ruled on the
motion only after the reglementary period to file comment
lapsed. Clearly, petitioner was given time to study and
comment on the motion for which reason, the very
purpose of a notice of hearing had been achieved.
The notice requirement is not a ritual to be followed
blindly. Procedural due process is not based solely on a
mechanical and literal application that renders any
deviation inexorably fatal. Instead, procedural rules are
liberally construed to promote their objective and to assist
in obtaining a just, speedy and inexpensive determination
of any action and proceeding.18
_______________
16 Vlason Enterprises Corporation v. Court of
Appeals, G.R. Nos. 121662-64, July 6, 1999, 310 SCRA 26,
53-54.
17 Id., at p. 54.
18 Id., at p. 55.
442
442 SUPREME COURT REPORTS ANNOTAT
KKK Foundation, Inc. vs. Calderon-Bargas
On the last issue, we note that the Compromise
Agreement approved by the trial court in its Decision
dated June 28, 2002 merely provided that petitioner
would pay Angeles the bid price of P5,500,000, for the
eight parcels of land subject of the auction sale, within
twenty (20) days. Upon payment, Angeles would execute a
Certificate of Deed of Redemption and a Deed of
Cancellation of Mortgage, and surrender to petitioner the
titles to the eight parcels of land. Nevertheless, when the
trial court issued441the writ of execution, the writ gave
Sheriff Bisnar the option “to allow the consolidation of the
subject real properties in favor of the defendant Imelda
Angeles.”19
Undoubtedly, the writ of execution imposed upon
petitioner an alternative obligation which was not
included or contemplated in the Compromise Agreement.
While the complaint originally sought to restrain Angeles
from consolidating her ownership to the foreclosed
properties, that has been superseded by the Compromise
Agreement. Therefore, the writ of execution which
directed Sheriff Bisnar to “cause the Register of Deeds of
Morong, Rizal, to allow the consolidation of the subject
real properties in favor of the defendant Imelda Angeles”
is clearly erroneous because the judgment under
execution failed to provide for consolidation.
Because the writ of execution varied the terms of the
judgment and exceeded them, it had no validity. The writ
of execution must conform to the judgment which is to be
executed, as it may not vary the terms of the judgment it
seeks to enforce. Neither may it go beyond the terms of
the judgment sought to be executed. Where the execution
is not in harmony with the judgment which gives it life
and exceeds it, it has pro tanto no validity.20
_______________
19 CA Rollo, p. 82.
 20 Windor Steel Mfg. Co., Inc. v. Court of Appeals, No.

L-34332, January 27, 1981, 102 SCRA 275, 283-284;

See Greater Metropolitan Manila Solid Waste
Management Committee v. Jancom Environ
443
VOL. 541, DECEMBER 27, 2007 443
KKK Foundation, Inc. vs. Calderon-Bargas
WHEREFORE, the instant petition is PARTIALLY
GRANTED. The Decision dated November 28, 2003 and
the Resolution dated May 26, 2004 of the Court of Appeals
in CA-G.R. SP No. 73965 are MODIFIED such that the
writ of execution issued on October 11, 2002 by Judge
Adelina CalderonBargas is declared NULL and VOID.
Let this case be REMANDED to the Regional Trial
Court of Morong, Rizal, Branch 78, which is hereby
ORDERED to issue another writ of execution against
petitioner KKK Foundation, Inc., in conformity with the
Decision dated June 28, 2002 of the trial court. This is
without prejudice to filing a new motion for consolidation
by respondent Angeles.
No pronouncement as to costs.
SO ORDERED.
Carpio, Carpio-Morales, Tinga and Velasco, Jr.,
JJ., concur.
Petition partially granted.
Notes.—A motion without notice of hearing is a mere
scrap of paper, and a pro forma motion for reconsideration
does not suspend the running of the period to appeal.
(Philippine Commercial and Industrial Bank [PCIBank]
vs. Court of Appeals, 336 SCRA 258 [2000])
Section 2, Rule 37 of the Rules of Court providing
that “[a] pro forma motion for new trial or reconsideration
shall not toll the reglementary period of appeal” does not
apply to an original petition for certiorari and mandamus
under Rule 65. (People vs. Garfin, 426 SCRA 393 [2004])

——o0o——

_______________

mental Corporation, G.R. No. 163663, June 30,

2006, 494 SCRA 280, 297.
444
© Copyright 2018 Central Book Supply, Inc. All rights
reserved.

VOL. 101, NOVEMBER 28, 1980
Santos vs. Liwag
No. L-24238. November 28, 1980.*
JOSE SANTOS, plaintiff-appellant, vs. LORENZO J.
LIWAG, defendant-appellee.
Remedial Law; Civil Procedure; Appeals; Bill of
Particulars;Allowance of bill of particulars discretionary
upon the court.—The allowance of a motion for a more
definite statement or bill of particulars rests within the
sound judicial discretion of the court and, as usual in
matters of a discretionary nature, the ruling of the trial
court in that regard will not be reversed unless there has
been a palpable abuse of discretion or a clearly erroneous
order. In the instant case, the complaint is without doubt
imperfectly drawn and suffers from vagueness and
generalization to enable the defendant properly to
prepare a responsive pleading and to clarify issues and
aid the court in an orderly and expeditious disposition of
the case.
Same; Same; Same; Same; Need for a bill of
particulars due to a vague complaint; Failure of plaintiff
to comply with a court order to file a bill of particulars
results in dismissal of complaint.—The present action is
one for the annulment of documents which have been
allegedly executed by reason of deceit, machination, false
pretenses, misrepresentation, threats, and other
fraudulent means. Deceit, machination, false pretenses,
misrepresentation, and threats, however, are largely
conclusions of law and mere allegations thereof without a
statement of the facts to which such terms have reference
are not sufficient. The allegations must state the facts
and circumstances from which the fraud, deceit,
machination, false pretenses, misrepresentation, and
threats may be inferred as a conclusion. In his complaint,
the appellant merely averred that all the documents
sought to be annulled were all executed through the use of
deceits, machination, false pretenses, misrepresentations,
threats, and other fraudulent means without the
particular facts on which the alleged fraud, deceit,
machination, or misrepresentations are predicated. It was
proper for the trial court to grant the defendant’s motion
for a bill of particulars, and when the plaintiff failed to
comply with the order, the trial court correctly dismissed
the complaint.
_______________
The trial court, however, granted the motion and directed
*SECOND DIVISION the plaintiff “to submit a bill of particulars with respect to
328 the paragraphs specified in defendant’s motion”,4 and
328 when the plaintiff failed to comply with the order, the
SUPREME COURT REPORTS ANNOTATED
court,
Santos vs. Liwag
APPEAL from the order of the Court of First Instance of
Manila.
327
The facts are stated in the opinion of the court.
CONCEPCION JR., J.:
Appeal from the order of the Court of First Instance of
Manila, dated October 17, 1964, which dismissed the
complaint filed in Civil Case No. 57282, for the failure of
the plaintiff to submit a bill of particulars within 10 days
from notice thereof.
The record shows that on June 8, 1964, the appellant
Jose Santos filed a complaint against Lorenzo J. Liwag
with the Court of First Instance of Manila, docketed
therein as Civil Case No. 57282, seeking the annulment of
certain documents, attached to the complaint and marked
as Annexes “A”, “B”, and “C”, as having been executed by
means of misrepresentations, machination, false
pretenses, threats, and other fraudulent means, as well as
for damages and costs.1
Claiming that the allegations in the complaint are
indefinite and uncertain, as well as conflicting, the
defendant filed a motion on July 4, 1964, asking the trial
court that the plaintiff be ordered to submit a more
definite statement or bill of particulars on certain
allegations of the complaint, as well as the facts
constituting the misrepresentations, machinations, and
frauds employed by the defendant in the execution of the
documents in question in order that he could be well
informed of the charges filed against him, for him to
prepare an intelligent and proper pleading necessary and
appropriate in the premises.2
The plaintiff opposed the motion saying that the
allegations in his complaint are sufficient and contain
ultimate facts constituting his causes of action and that
the subject of the defendant’s motion is evidentiary in
nature.3
_______________
1 Record on Appeal, pp. 2-17.
2 Id., pp. 20-24.
3 Id., pp. 25-31.
329
VOL. 101, NOVEMBER 28, 1980
Santos vs. Liwag
acting upon previous motion of the
defendant,5 dismissed the complaint with costs against
the plaintiff.6 Hence, the present appeal.
We find no merit in the appeal. The allowance of a
motion for a more definite statement or bill of particulars
rests within the sound judicial discretion of the court and,
as usual in matters of a discretionary nature, the ruling of
the trial court in that regard will not be reversed unless
there has been a palpable abuse of discretion or a clearly
erroneous order. In the instant case, the complaint is
without doubt imperfectly drawn and suffers from
vagueness and generalization to enable the defendant
properly to prepare a responsive pleading and to clarify
issues and aid the court in an orderly and expeditious
disposition of the case.
The present action is one for the annulment of
documents which have been allegedly executed by reason
of deceit, machination, false pretenses, misrepresentation,
threats, and other fraudulent means. Deceit,
machination, false pretenses, misrepresentation, and
threats, however, are largely conclusions of law and mere
allegations thereof without a statement of the facts to
which such terms have reference are not sufficient. The
allegations must state the facts and circumstances from
which the fraud, deceit, machination, false pretenses,
misrepresentation, and threats may be inferred as a
conclusion. In his complaint, the appellant merely averred
that all the documents sought to be annulled were all
executed through the use of deceits, machination, false
pretenses, misrepresentations, threats, and other
fraudulent means without the particular facts on which
alleged fraud, deceit, machination, or misrepresentations
are predicated. Hence, it was proper for the trial court to
grant the defendant’s motion
_______________
4 Id., p. 33.
5 Id., pp. 33-34.
6 Id., pp. 39-40.
330
330 SUPREME COURT REPORTS ANNOTAT
Santos vs. Liwag
for a bill of particulars, and when the plaintiff failed to
comply with the order, the trial court correctly dismissed
the complaint.7
WHEREFORE, 329the judgment appealed from should
be, as it is hereby, affirmed. Without pronouncement as to
costs in this instance.
SO ORDERED.
Barredo (Chairman), Aquino, Abad
Santos and De Castro,* JJ., concur.
Petition denied.
Notes.—The sufficiency of a complaint tested on
whether a competent court could render a valid judgment
upon the facts alleged therein, if said facts were admitted plaintiff’s primary right and (2) defendant’s delict or
or proved. (Raquiza vs. Ofilada, 9 SCRA 120). wrongful act or omission which violates plaintiff’s primary
Complaint is insufficient where the condition right. (Racoma vs. Fortich, 39 SCRA 520).
precedent on which cause of action depends is omitted. The fact that the defendant may have been declared
(De Guzman vs. J.M. Tuason & Co., 30 SCRA 857). in default is of no moment where the plaintiff would not
Annexes to the complaint should be considered have been entitled to relief because his complaint failed to
together with the allegations in determining the nature of state a cause of action. (Reyes vs. Tolentino, 42 SCRA
the action. (Jornales vs. Cnetral Azucarera de Bais, 9 365).
SCRA 67).
When a complaint states a common cause of action ——o0o——
against several defendants some of whom answer and the
others fails to do so, the court shall try the case against
332
all upon answer thus filed by some and render judgment
© Copyright 2018 Central Book Supply, Inc. All rights
upon the evidence presented. (Bueno vs. Ortiz, 23 SCRA reserved.
1151).
Every complaint must state at least the ultimate facts
upon which a party relies for his cause of action. (Republic
vs. Delos Angeles, 41 SCRA 422).
Allegations in the amended complaint which
introduce new matters which merely reinforce the
plaintiff’s alternative

_______________

7 Sec. 1(c), Rule 12 and Sec. 3, Rule 17, Revised Rules

of Court; Matias de Bautista vs. Teodoro, Jr., 101 Phil.

701.
* Mr. Justice Pacifico P. de Castro, a member of the

First Division, was designated to sit in the Second

Division.
331
VOL. 101, NOVEMBER 28, 1980 331
Santos vs. Liwag
cause of action are admissible. (Keramik Industries, Inc.
vs. Guerrero, 61 SCRA 265).
Defense that the complaint failed to state a cause of
action may be alleged in a later pleading and is not
waived by failure to include the same in the original
answer. (Bengson vs. Chan, 78 SCRA 113).
A complaint deficient in details but which deficiency
does not amount to failure to state cause of action may be
cured by a motion for a bill of particulars. (Sabangan vs.
Manila Railroad Company, 28 SCRA 772).
In collection cases, where the defendant who was
engaged in the business of buying and selling
merchandise had plaintiff as one of her creditors from
home she used to buy on credit ready-made goods for
resale, the defendant need not submit a bill of particulars,
specifying therein in detail the goods representing the
alleged amount to be collected to enable her to prepare
her answer to the complaint or prepare for trial. (Pajares
vs. Abad Santos, 30 SCRA 748).
A complaint is sufficient where it alleges the two
factors that a cause of action must consist of, namely: (1)

No. L-15808. April 23, 1963.
FAUSTA AGCANAS, JUAN MIGUEL, JUANITA
MIGUEL, assisted by her husband ULPIANO
PASION, assisted by her husband JUAN PASCUAL,
plaintiffs-appellees, vs.BRUNO MERCADO and
ANTONIO DASALLA, defendants-appellants.
Pleading and practice; Denial of motion to dismiss
while motion for bill of particulars remained pending;
Filing of answer suspended.—Upon denial of a
defendant’s motion to dismiss, the reglementary period
within which to file an answer remains suspended until
the motion for a bill of particulars previously filed by the
same defendant is denied or, if it is granted, until the bill
is served on him.
APPEAL from an order and decision of the Court of First
Instance of Isabela.
The facts are stated in the opinion of the Court.
Melanio T. Singson for plaintiffs-appellees.
Adriano D. Dasalla and Antonio F. Dasalla for
defendants-appellants.
689
VOL. 7, APRIL 23, 1963
Agcanas vs. Mercado
MAKALINTAL, J.:
Appeal by defendants from the Court of First
Instance of Isabela on a question of law.
On November 25, 1956 plaintiffs filed this action to
recover portions of a parcel of land in Isabela, and
damages. Under date of December 4, 1956 defendants
filed a motion for a bill of particulars, with notice of
hearing on December 8, but since the motion was actually
received in court only on December 12 the court set it for
hearing on December 22. On December 17, however,
defendants filed a motion to dismiss the complaint, with a
prayer that consideration of their motion for a bill of
particulars be held in abeyance pending resolution of
their motion to dismiss. On December 22, 1956, the date
set by the court for the hearing of the motion for a bill of
particulars and by defendants for the hearing of their
motion to dismiss, the court issued an order postponing
“consideration” of both motions to December 29. On
March 7, 1957 the court denied the motion to dismiss and
ordered defendants “to answer the complaint within the
reglementary period provided for by the Rules of Court.”
Hearing of the case on the merits was set for October 29,
1957, notice of which was duly received by defendants.
Defendants not having filed their answer, plaintiffs, on
October 17, 1957, moved to have them declared in default.
On the same day the court issued the order of default
together with another order commissioning the clerk of
court to receive plaintiff’s evidence. On October 21, 1957
defendants moved to cancel the hearing scheduled for
October 29, on two grounds one of which was that their
motion for a bill of particulars had not yet been resolved.
The motion to cancel was set for hearing on October 26,
1957. When defendants arrived in court on that day they
learned that an order of default had been issued, so they
immediately filed a motion asking that the same be set
aside that their pending motion for a bill of particulars be
resolved and that they be given a reasonable period
thereafter within which to file their answer to the
complaint. On December 13, 1957 the court denied the
motion and rendered its decision in favor of plaintiffs and
against defendants. On
690
690 SUPREME COURT REPORTS ANNOTATED
Agcanas vs. Mercado
January 4, 1958 it denied defendants’ motion for
reconsideration of the order of denial. On January 24,
defendants filed their record on appeal (to this Court from
the order of December 13, 1957), but as they subsequently
filed a petition for relief from the judgment by default,
they asked that consideration and approval of their record
on appeal be held in abeyance until said petition had been
resolved. The request
689 was granted. Defendant’s petition
for relief, which was filed on January 28, 1958, was
denied on March 21, as was also, on September 20, 1958
their motion for reconsideration of the order of denial. On
October 4, 1958 the court denied likewise their motion for
a writ of preliminary injunction to restrain execution of
the judgment by default. Hence, this appeal.
Appellants’ eighteen assignments of error may be
reduced to a single proposition: Whether or not upon
denial of a defendants’ motion to dismiss the
reglementary period within which to file an answer
resumes running even though the motion for a bill of
particulars of the same defendants is still pending and
unresolved.
Both a motion to dismiss and a motion for a bill of
particulars interrupt the time to file a responsive
pleading. In the case of a motion to dismiss, the period
starts running against as soon as the movant receives a
copy of the order of denial.1 In the case of a motion for a
bill of particulars, the suspended period shall continue to
run upon service on the movant of the bill of particulars,
if the motion is granted, or of the notice of its denial, but
in any event he shall have not less than five days within
which to file his responsive pleading.2
When appellants filed a motion to dismiss they
requested that resolution of their previous motion for a
bill of particulars be held in abeyance. This was but
practical because if the court had granted the motion to
dismiss, there would have been no need for a bill of
particulars. Resolution of the motion for the purpose was
necessary only in the event that court should deny, as it
did, the motion to dismiss, in which case the period to file
an answer re-
_______________
1 Sec. 4, Rule 8, Rules of Court.
2 Sec. 2, Rule 16, Rules of Court.
691
VOL. 7, APRIL 23, 1963
Agcanas vs. Mercado
mained suspended until the motion for a bill of
particulars is denied or, if it is granted, until the bill is
served on the moving party.
The lower court deemed appellants to have “tacitly
waived their right to push through the hearing of the
motion for bill of particulars,” because of their failure to
set it for hearing or to ask the clerk of court to calendar it
after denial of the motion to dismiss. Appellants did set
the motion for hearing on December 8, 1956, although it
was not heard on that day because it arrived in court only
on December 12. Thereafter they did not have to reset it,
as the clerk of court scheduled it for hearing on December
22, 1956. And on that day the court issued an order that
“the consideration of the motion to dismiss, as well as the
bill of particulars, is hereby postponed to December 29,
1956.” As to whether or not both motions were actually
heard on December 29, does not appear of record. But
heard or not, the motions should be considered submitted,
and it was the clear duty of the court to resolve the
motion for a bill of particulars, as it did the motion to
dismiss. No action having been taken thereon until the
present, the period to answer has not yet expired. The
lower court, therefore, erred in declaring appellants in
defaults and in taking all the subsequent actions it did in
the case.
The order of default issued and the decision rendered
by the trial court are set aside and the case is remanded
for further proceedings, pursuant to the Rules. Costs
against plaintiffs-appellees.
Bengzon, C.J., Padilla, Bautista Angelo,
Concepcion, Reyes, J.B.L., Barrera, Paredes,
Dizon and Regala, JJ., concur.
Labrador, J., took no part.
Order and decision set aside and case remanded to
lower court for further proceedings.
Notes.—After the service of the bill of particulars (if
one is submitted) the moving party shall have the same
time to serve his responsive pleading, if any is permitted
by the Rules, as that to which he was entitled at the time
of serving his motion, but not less than five (5) days in
692
692 SUPREME COURT REPORTS ANNOTAT
Agcanas vs. Mercado
any event (Section 2, Rule 16; now Section 1[b], Rule 12).
If the order of the court to make a pleading more definite
and certain, or for a bill of particulars is not obeyed
within ten days after notice thereof or within such
striking out of the pleading to which the motion was
directed or make such other order as it deems just; it may
also, upon motion, set aside the order, or modify it in the
interest of justice (Itchon v. Baligod, et al., L-20962, May
27, 1966, 17 SCRA 268, 270-271).

_______________

© Copyright 2018 Central Book Supply, Inc. All rights

reserved.

100 SUPREME COURT REPORTS ANNOTATED
Salita vs. Magtolis
G.R. No. 106429. June 13, 1994.*
JOSELITA SALITA, petitioner, vs. HON. DELILAH
MAGTOLIS, in her capacity as Judge of the RTC, Quezon
City, Br. 107, and ERWIN ESPINOSA, respondents.
Actions; Pleadings and Practice; Words and restitution and damages. There, the alleged illicit acts
Phrases; Ultimate Facts, defined; A complaint only needs
to state the ultimate facts constituting the plaintiff’s cause other hand, concerns marital relationship. It would be
or causes of action.—A complaint only needs to state the
“ultimate facts constituting the plaintiff’s cause or causes
of action.” Ultimate facts has been defined as “those facts
which the expected evidence will support.” As stated by
private respondent, “[t]he term does not refer to the
details of probative matter or particulars of evidence by
which these material elements are to be established.” It
refers to “the facts which the evidence on the trial will
prove, and not the evidence which will be required to
prove the existence of those facts.”
Same; Same; Bill of Particulars; A motion for bill of
particulars may not call for matters which should form
part of the proof of the complaint upon trial.—And a
motion for bill of particulars will not be granted if the
complaint, while not very definite, nonetheless already
states a sufficient cause of action. A motion for bill of
particulars may not call for matters which should form
part of the proof of the complaint upon trial. Such
information may be obtained by other means.
Same; Same; Same; To obtain evidentiary matters
is not the function of a motion for bill of particulars.—
Private respondent has already alleged that “she
(petitioner) was unable to understand and accept the
demands made by his profession x x x upon his time and
efforts x x x x” Certainly, she can respond to this. To
demand for more details would indeed be asking for
information on evidentiary facts—facts necessary to prove
essential or ultimate facts. For sure, the additional facts
called for by petitioner regarding her particular acts or
omissions would be evidentiary, and to obtain evidentiary
matters is not the function of a motion for bill of
particulars.
Same; Same; Same; Present case distinguished
from Tantuico, Jr. v. Republic; It would be unreasonable,
if not unfeeling, to document each and every circumstance
of marital disagreement. We distinguish the
_______________
* FIRST DIVISION.
101
VOL. 233, JUNE 13, 1994
Salita vs. Magtolis
instant case from Tantuico, Jr. v. Republic, 204
SCRA 428.—That ruling involves alleged
“misappropriation and theft of public funds, plunder of
the nation’s wealth, extortion, blackmail, bribery,
embezzlement, and other acts of corruption, betrayal of
public trust and brazen abuse of power.” The respondents
therein pray for reconveyance, reversion, accounting,
should be fully documented. The instant case, on the
unreasonable, if not unfeeling, to document each and
every circumstance of marital disagreement. True, the
complaining spouse will have to prove his case, but that
will not come until trial begins.
Marriage; Annulment; Family Code; Psychological
incapacity;Whether one spouse is psychologically
incapacitated should be immediately determined as there
is no point in unreasonably delaying the resolution of the
petition and prolonging the agony of the wedded couple
who still have the right to a renewed blissful life either
alone or in the company of each other.—Consequently, we
have no other recourse but to order the immediate
resumption of the annulment proceedings which have
already been delayed for more than two years now, even
before it could reach its trial stage. Whether petitioner is
psychologically incapacitated should be immediately
determined. There is no point in unreasonably delaying
the resolution of the petition and prolonging the agony of
the wedded couple who after coming out from a storm still
have the right to a renewed blissful life either alone or in
the company of each other.
Same; Same; Same; Same; There is no need to
define or limit the scope of Art. 36 of the Family Code in
the present case as the same would only be an obiter
dictum.—A word on Art. 36 of the Family Code. We do not
see the need to define or limit the scope of the provision.
Not in this case, at least. For, we are not called upon to do
so, the actual controversy being the sufficiency of the bill
of particulars. To interpret the provision at this juncture
would be to give an obiter dictum which is ill-timed.
Besides, it appears that petitioner in her memorandum
has demonstrated a good grasp of what Art. 36 actually
covers. Suffice it to say that Mme. Justice Sempio-Diy,
formerly of the Court of Appeals and a member of the
Civil Code Revision Committee that drafted the Family
Code, explains—The Committee did not give any
examples of psychological incapacity for fear that the
giving of examples would limit the applicability of the
provision under the principle of ejusdem generis. Rather,
the Committee would like the judge to interpret the
provision on a case-to-case basis, guided by experience,
the findings of experts and researchers in psychological
disciplines, and by101
decisions of church
102
1 SUPREME COURT REPORTS ANNOT
02
Salita vs. Magtolis
tribunals which, although not binding on the civil
courts, may be given persuasive effect since the provision
was taken from Canon Law.
PETITION for review on certiorari of a resolution of the
Court of Appeals.
The facts are stated in the opinion of the Court.
Alfredo F. Tadiar for petitioner.
Yolanda, Quisumbing-Javellana & Associates for
private respondent.
BELLOSILLO, J.:
Erwin Espinosa, 32, and Joselita Salita, 22, were married
at the Roman Catholic Church in Ermita, Manila, on 25
January 1986. A year later, their union turned sour. They
separated in fact in 1988. Subsequently, Erwin sued for
annulment on the ground of Joselita’s psychological
incapacity.
The issue before us however is not the scope nor even
the interpretation of Art. 36 of the Family Code.1 Rather,
the issue is the sufficiency of the allegations in the
petition for annulment of marriage and the subsequent
bill of particulars filed in amplification of the petition.
The petition for annulment was filed before the
Regional Trial Court of Quezon City on 7 January 1992.
Therein it is alleged that “[s]ometime in 1987, petitioner
came to realize that respondent was psychologically
incapacitated to comply with the essential marital
obligations of their marriage, which incapacity existed at
the time of the marriage although the same became
manifest only thereafter.”2 Dissatisfied with the
allegation in the petition, Joselita moved for a bill of
particulars which the trial
_______________
1 Art. 36. A marriage contracted by any party who, at
the time of the celebration, was psychologically
incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even if such
incapacity becomes manifest only after its solemnization
(As amended by E.O. 227).
2 Petition for Annulment of Marriage filed by Erwin
Espinosa, par. 3; Rollo, p. 20.
103
VOL. 233, JUNE 13, 1994
 be resolved in a motion to dismiss or after trial on the Private respondent further argues that “[c]onclusions of
Salita vs. Magtolis
merits of the case, not in a motion for bill of particulars. law and evidentiary matters need not be stated in the
court granted.3 Subsequently, in his Bill of Particulars,
And certainly, that matter cannot be resolved in the complaint. The rules of pleading limit the statement of
Edwin specified that—
present petition.5 the cause of action only to such operative facts as would
x x x at the time of their marriage, respondent (Joselita
Hence, the instant petition for review on certiorari filed give rise to the right of action of the plaintiff to obtain
Salita) was psychologically incapacitated to comply with
by Joselita Salita questioning the Resolution of the Court relief against the wrongdoer. The details of probative
the essential marital obligations of their marriage in that
of Appeals denying due course to her petition. matter or particulars of evidence, statements of law,
she was unable to understand and accept the demands
Petitioner insists that the allegations in the Bill of inferences and arguments need not be stated.”8
made by his profession—that of a newly qualified Doctor
Particulars constitute a legal conclusion, not an averment In a nutshell, the ultimate question is whether the
of Medicine—upon petitioner’s time and efforts so that
of facts, and fail to point out the specific essential marital Bill of Particulars submitted by herein respondent is of
she frequently complained of his lack of attention to her
obligations she allegedly was not able to perform, and sufficient definiteness or particularity as to enable herein
even to her mother, whose intervention caused petitioner
thus render the Bill of Particulars insufficient if not petitioner to properly prepare her responsive pleading or
to lose his job.
irrelevant to her husband’s cause of action. She for trial.
Still Joselita was not contented with the Bill of
rationalizes that her insistence on the specification of her A complaint only needs to state the “ultimate facts
Particulars. She argued that the “assertion (in the Bill of
particular conduct or behavior with the corresponding constituting the plaintiff’s cause or causes of
Particulars) is a statement of legal conclusion made by
circumstances of time, place and person does not call for action.”9Ultimate facts has been defined as “those facts
petitioner’s counsel and not an averment of ‘ultimate
information on evidentiary matters because without these which the expected evidence will support.”10 As stated by
facts,’ as required by the Rules of Court, from which such
details she cannot adequately and intelligently prepare private respondent, “[t]he term does not refer to the
a conclusion may properly be inferred x x x x”4 But finding
her answer to the petition. details of probative matter or particulars of evidence by
the questioned Bill of Particulars adequate, the trial court
Private respondent on the other hand believes that which these material elements are to be established.” It
issued an order upholding its sufficiency and directing
his allegations in the Bill of Particulars constitute the refers to “the facts which the evidence on the trial will
Joselita to file her responsive pleading.
ultimate facts which the Rules of Court requires at this prove, and not the evidence which will be required to
Joselita was not convinced. She filed a petition for
point. He defines ultimate facts as— prove the existence of those facts.” And a motion for bill of
certiorari with us. However, we referred her petition to
x x x important and substantial facts which either directly particulars will not be granted if the complaint, while not
the Court of Appeals for resolution.
form the basis of the primary right and duty, or which very definite, nonetheless already states a sufficient cause
On 21 July 1992, the Court of Appeals denied due
directly make upon the wrongful acts or omissions of the of action.11 A motion for bill of particulars may not call for
course to her petition thus—
defendant. The term does not refer to the details of matters which should form part of the proof of the
In the case under consideration, Espinosa has amplified
probative matter or particulars of evidence by which these complaint upon trial. Such information may be obtained
Salita’s alleged psychological incapacity in his bill of
material elements are to be established. It refers to by other means.12
particulars x x x x
principal, determinate facts upon the existence of which
In our view, the aforesaid specification more than
the entire cause of action rests.6 _______________
satisfies the Rules’ requirement that a complaint must
Ultimate facts are conclusions drawn from
allege the ultimate facts constituting a plaintiff’s cause of
intermediate and evidentiary facts, or allegations of
action. To require more details thereof, to insist on a 7Id., citing 71 C.J.S. 34.
mixed law and fact; they are conclusions from reflection
specification of Salita’s particular conduct or behavior 8Memorandum for Private Respondent, p. 10; Rollo,
and natural reasoning on evidentiary fact. The ultimate
with the corresponding ‘circumstances of time, place and p. 197.
facts which are to be pleaded are the issuable, 9 Sec. 3, Rule 6, Rules of Court.
person’ indicating her alleged psychological incapacity
constitutive, or 10 Black’s
would be to ask for information on evidentiary matters. Law Dictionary, Fourth Ed.,
To obtain evidentiary details, Salita may avail herself of citing McDuffie v. California Tehama Land Corporation,
the different modes of discovery provided by the Rules of _______________ 138 Cal. App. 245, 32 P.2d 385, 386.
11 Paras, Rules of Court Annotated, Vol. I, Second Ed.,
5 Resolution penned by Associate Justice Alfredo L. 1989, p. 320.
_______________
Benipayo, concurred in by Associate Justices Fidel P. 12 Moran, Comments on the Rules of Court, 1979 Ed.,

3 Order issued by Judge Delilah Magtolis, Regional

Purisima and Quirino D. Abad Santos, Jr., of the Ninth Vol. 1, p. 397, citing W.J. Dillmer Transfer Co. v.
Division. International Brotherhood of Teamsters, Chauffeurs,
Trial Court, Br. 107, Quezon City; Rollo, p. 26. 6 Francisco, The Revised Rules of Court in the
4 Opposition to the Supposed Bill of Particulars
Warehousemen and Helpers of America, 8 Fed. Rules
Philippines, Vol. I, p. 435. Service, p. 163, US Dist. Ct., W.D. Pa., 6 October 1944.
Submitted by Petitioner, p. 2, par. 6; Rollo, p. 30.
105 106
104
VOL. 233, JUNE 13, 1994 106 105 SUPREME COURT REPORTS ANNOTAT
104 SUPREME COURT REPORTS ANNOTATED
Salita vs. Magtolis Salita vs. Magtolis
Salita vs. Magtolis
traversible facts essential to the statement of the cause of We sustain the view of respondent Court of Appeals that
Court (Rules 24 to 28).
action; the facts which the evidence on the trial will prove, the Bill of Particulars filed by private respondent is
Whether Espinosa’s averments in his bill of
and not the evidence which will be required to prove the sufficient to state a cause of action, and to require more
particulars constitute psychological incapacity in the
existence of those facts x x x x7 details from private respondent would be to ask for
contemplation of the Family Code is a question that may
information on evidentiary matters. Indeed, petitioner
has already been adequately apprised of private
respondent’s cause of action against her thus—
x x x x (she) was psychologically incapacitated to comply
with the essential marital obligations of their marriage in
that she was unable to understand and accept the
demands made by his profession—that of a newly
qualified Doctor of Medicine—upon petitioner’s time and
efforts so that she frequently complained of his lack of
attention to her even to her mother, whose intervention
caused petitioner to lose his job.
On the basis of the aforequoted allegations, it is evident
that petitioner can already prepare her responsive
pleading or for trial. Private respondent has already
alleged that “she (petitioner) was unable to understand
and accept the demands made by his profession x x x upon
his time and efforts x x x x” Certainly, she can respond to
this. To demand for more details would indeed be asking
for information on evidentiary facts—facts necessary to
prove essential or ultimate facts.13 For sure, the
additional facts called for by petitioner regarding her
particular acts or omissions would be evidentiary, and to
obtain evidentiary matters is not the function of a motion
for bill of particulars.14
We distinguish the instant case from Tantuico, Jr. v.
Republic15 where we said—
Furthermore, the particulars prayed for, such as names of
persons, names of corporations, dates, amounts involved,
a specification of property for identification purposes, the
particular transactions involving withdrawals and
disbursements, and a statement of other material facts as
would support the conclusions and inferences in the
complaint, are not evidentiary in nature. On the contrary,
those particulars are material facts that should be clearly
and definitely averred in the
_______________
13 Black’s Law Dictionary, Fourth Ed., citing People ex
rel. Hudson & M.R. Co. v. Sexton, Supp., 44 N.Y. S.2d
884, 885.
14 Paras, See Note 11, citing Graffius v. Weather-Seal
Inc., 9 Fed. Rules Service 12e, 231, Case No. 13.
15 G.R. No. 89114, 2 December 1991, 204 SCRA 428.
107
VOL. 233, JUNE 13, 1994
Salita vs. Magtolis
complaint in order that the defendant may, in fairness, be
informed of the claims made against him to the end that
he may be prepared to meet the issues at the trial.
The aforementioned pronouncement cannot apply to the
instant case. That ruling involves alleged
“misappropriation and theft of public funds, plunder of
the nation’s wealth, extortion, blackmail, bribery,
embezzlement, and other acts of corruption, betrayal of
public trust and brazen abuse of power.” The respondents Cruz (Chairman), Davide,
therein pray for reconveyance, reversion, accounting, Jr., Quiason and Kapunan, JJ., concur.
restitution and damages. There, the alleged illicit acts Petition denied, resolution of Court of Appeals
should be fully documented. The instant case, on the affirmed.
other hand, concerns marital relationship. It would be Note.—Abandonment implies a departure by one
unreasonable, if not unfeeling, to document each and spouse with the avowed intent never to return, followed
every circumstance of marital disagreement. True, the by prolonged absence without just cause, and without in
complaining spouse will have to prove his case, but that the meantime providing in the least for one’s family
will not come until trial begins. although able to do so (Partosa-Jo vs. Court of
Consequently, we have no other recourse but to order Appeals, 216 SCRA 692 [1992]).
the immediate resumption of the annulment proceedings
which have already been delayed for more than two years ——o0o——
now, even before it could reach its trial stage. Whether
petitioner is psychologically incapacitated should be
© Copyright 2018 Central Book Supply, Inc. All rights
immediately determined. There is no point in reserved.
unreasonably delaying the resolution of the petition and
prolonging the agony of the wedded couple who after
coming out from a storm still have the right to a renewed
blissful life either alone or in the company of each other.
A word on Art. 36 of the Family Code.16 We do not see
the need to define or limit the scope of the provision. Not
in this case, at least. For, we are not called upon to do so,
the actual controversy being the sufficiency of the bill of
particulars. To interpret the provision at this juncture
would be to give an obiter dictum which is ill-timed.
Besides, it appears that petitioner in her memorandum
has demonstrated a good grasp of what Art. 36 actually
covers. Suffice it to say that Mme. Justice Sempio-Diy,
formerly of the Court of Appeals and a member of the
Civil Code Revision Committee that drafted the Family
Code, explains—
The Committee did not give any examples of psychological
incapacity for fear that the giving of examples would limit
the applicability
_______________
16See Note 1.
108
108 SUPREME COURT REPORTS ANNOTATED
People vs. Sandagon
of the provision under the principle of ejusdem
generis. Rather, the Committee would like the judge to
interpret the provision
107 on a case-to-case basis, guided by
experience, the findings of experts and researchers in
psychological disciplines, and by decisions of church
tribunals which, although not binding on the civil courts,
may be given persuasive effect since the provision was
taken from Canon Law.17
WHEREFORE, there being no reversible error, the
instant petition is DENIED and the questioned
Resolution of respondent Court of Appeals dated 21 July
1992 is AFFIRMED.
SO ORDERED.

412 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Peralta
G.R. No. 45107. November 11, 1991. *
BENEDICTO RAMOS, petitioner, vs. HON. ELVIRO L.
PERALTA, Presiding Judge, Branch XVII, Court of First
Instance of Manila, SPOUSES JUVENCIO ORTANEZ
and JULIANA S. ORTANEZ, MINDANAO INSURANCE
CO., INC. and P. R. ROMAN, INC., respondents.
Civil Procedure; Dismissal of action on ground of
lites pendentia.—Under the rules and jurisprudence,
for litis pendentiato be invoked as a ground for the
dismissal of an action, the concurrence of the following
requisites is necessary: (a) Identity of parties or at least
such as represent the same interest in both actions; (b)
Identity of rights asserted and relief prayed for, the relief
being founded on the same facts; and (c) The identity in
the two cases should be such that the judgment that may
be rendered in one would, regardless of which party is
successful, amount to res judicata in the other.
Same; Petition for consignation.—Anent the second
element, we agree with private respondents’ observation
that petitioner’s approach to his consignation case is quite
constricted. His contention that the only issue in a
consignation case is whether or not the defendant is
willing to accept the proffered payment is true only where
there is no controversy with respect to the obligation
sought to be discharged by such payment. His
consignation case, however, is not as simple. While
ostensibly, the immediate relief sought for in his
consignation case is to compel therein defendants to
accept his advance rentals, the ultimate purpose of such
action is to compel the new owner of the fishpond to
recognize his leasehold rights and right of occupation. In
the last analysis, therefore, the issue involved in Civil
Case No. 103647 is the right of possession over the
fishpond intertwined with the validity and effectivity of
the lease contract.
_______________
*THIRD DIVISION.
413
VOL. 203, NOVEMBER 11, 1991
Ramos vs. Peralta
Same; Venue of personal actions.—Petitioner next
contends that the dismissal of Civil Case No. 103647
deprived him of his right to choose the venue of his action.
Verily, the rules on the venue of personal actions are laid
down generally for the convenience of the plaintiff and his
witnesses. But, as observed by private respondents, this
right given to the plaintiff is not immutable. It must yield
to the greater interest of the orderly administration of
justice, which as in this case, may call for the dismissal of
an action on the basis of litis pendentia to obviate the
possibility of conflicting decisions being rendered by two
different courts. As private respondents would put it,
“(T)he Rules of Court are not perfect. It does not pretend
to be able to make everyone happy simultaneously or
consecutively or all the time. Even the Rules of Court has
a hierarchy of values; thus,the choice of venue may bow to
dismissal of the case because of litis pendentia. x x x The
rule on litis pendetiadoes not require that the later case
should yield to the earlier case. What is required merely
is that there be another pending action, not
a prior pending action.
PETITION for certiorari to review the decision of the then
Court of First Instance of Manila, Br. 17. Peralta, J.
The facts are stated in the opinion of the Court.
Angel Suntay, Jr. and Renato M. Coronado for
petitioner.
Tolentino, Garcia, Cruz & Reyes for respondents
Ortanez.
FERNAN, C.J.:
Put in issue in this petition for review on certiorari is the
propriety of the dismissal by the then Court of First
Instance of (CFI) of Manila, Branch XVII of petitioner’s
action for consignation of the sum of P70,000.00
representing advance rentals for the 101-hectare Salgado
fishpond located in Bo. Balut, Pilar, Bataan.
Petitioner started occupying the Salgado fishpond in
1964 by virtue of a lease contract executed in his favor by
private respondents spouses Juvencio and Juliana
Ortanez. The original lease for a term of five (5) years
from January 1, 1964 to January 1, 1990, was renewed
several times, the last renewal being on June 28, 1974
under a “Kasunduan sa Pag-upa” for a period of three (3)
years starting January 1, 1975 to December 31, 1977.
414
414 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Peralta
Unknown to petitioner, title1 to said property was in the
413
name of Philippine International Surety Co., Inc., a
corporation founded, organized and 99.5%-owned by the
Salgado spouses. Later renamed Mindanao Insurance Co.,
Inc., said corporation was placed under receivership and
2
liquidation on June 20, 1968 in Civil Case No. Q-10664 of
the then CFI of Rizal, Branch IV, Quezon City, upon
application of Insurance Commissioner Gregoria Cruz-
Ansaldo who was appointed receiver.
Thereafter on February 23, 1976, respondent P. R.
Roman, Inc. purchased from Mindanao Insurance the
Salgado fishpond for P950,000.00. The deed of sale was
signed by the receiver and duly approved by the
liquidation court.
Apparently due to this development, the spouses
Ortanez refused to accept from petitioner the advance
rentals on the fishpond due on March 15, 1976 in the
amount of P30,000.00.
On or about May 1, 1976, petitioner received a letter
from Don Pablo R. Roman informing him of the latter’s
acquisition of the fishpond and intention to take
possession thereof on May 16, 1976. In his letter-reply,
petitioner reminded Mr. Roman of his lease contract over
the fishpond and refused to consent to the intended take
over. Notwithstanding petitioner’s objection, P. R. Roman,
Inc. took over possession of the fishpond.
On August 2, 1976, petitioner filed before the CFI of
Manila the aforesaid complaint, docketed as Civil Case
No. 103647,3 against private respondents Juvencio and
Juliana Ortanez, Mindanao Insurance and P. R. Roman,
Inc. for consignation of the sum of P70,000.00
representing advance rentals on the fishpond in the
amounts of P30,000.00 and P40,000.00 respectively due
on March 15, 1976 and June 15, 1976, which he had
previously tendered to, but refused by the spouses
Ortanez and Pablo Roman.
P. R. Roman, Inc. filed a motion to dismiss on the
grounds that venue was improperly laid, the complaint
states no cause of action and the court has no jurisdiction
over the subject of the
______________
1 Under Certificates of Title Nos. 7881, 7882 and
7883, Registry of Deeds of Bataan.
2 Hereinafter Mindanao Insurance.
3 Assigned to Branch XVII presided over by
respondent Hon. Judge Elviro L. Peralta.
415
VOL. 203, NOVEMBER 11, 1991
Ramos vs. Peralta
action or suit. In its motion to dismiss, P. R. Roman, Inc.
cited the pendency before the then CFI of Bataan of Civil
Case No. 4102 instituted by P.R. Roman, Inc. against
petitioner Benedicto Ramos on August 13, 1976 to quiet
its title over the Salgado fishpond.
On August 27, 1976, respondent CFI of Manila issued
an order4 dismissing Civil Case No. 103647, stating in
part:
Without discussing in detail the grounds mentioned
above, the Court really sees that this case should be
dismissed not only insofar as against P. R. Roman, Inc.
but also as against the other defendants mentioned above
for the reason, principally, that there is already a case
pending between the same parties and for the same cause
in Civil Case No. 4102 of Branch II of the Court of First
Instance of Bataan, entitled P. R. Roman, Inc. vs.
Benedicto Roman, which is precisely for the ownership of
the subject matter of the property allegedly leased to the
plaintiff herein (Exhibit “A”-Motion). In the said case, the
defendant therein, Benedicto Ramos, who is the plaintiff
in the case at bar, filed a motion for leave to file a third-
party complaint against the spouses surnamed Ortanez
and the Mindanao Insurance Company, Inc. All the issues
respecting the fishpond, including the lease contract, are
necessarily involved in the case pending now in Bataan.
Aside from the above, the Court cannot decide this case
because it cannot pre-empt the Court of Bataan on
whether or nor the P. R. Roman, Inc. is already the owner
because if it finds that the said defendant P. R. Roman,
Inc. is really the owner of the fishpond, there is no more
lease for which rentals are to be paid.”
Petitioner moved for reconsideration, but was
unsuccessful, the court a quo, standing “pat on its
previous order and reiterat(ing) its dismissal of the case,
without costs.”5
Hence this petition anchored on the following
ascribed errors of law:6
1. 1.The respondent court erred in not holding that
the only issue in consignation of funds is
whether the defendant is willing to accept the
proffered payment or not.
_______________
4 Annex “I”, Petition, pp. 76-77, Rollo.
5 Annex “R, Petition, pp. 108-109, Rollo.
6 pp. 15-16, Brief for the Petitioner, p. 293, Rollo.
416
416 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Peralta
1. 2.The respondent court erred in not holding that
the prerogative of choosing the proper venue
belongs to the plaintiff.
2. 3.The respondent court erred in holding that the
subsequent filing of Civil Case No. 4102 before
the Court of First Instance of Bataan is a bar
to the prosecution of Civil Case No.
103647 before it.
Petitioner contends that the Bataan quieting-of-title Civil
Case No. 4102 cannot serve as a bar to his Manila
consignation Civil Case No. 103647 because they involve
different issues. Civil Case No. 4102 deals with the
question of ownership while the only issue involved in his
consignation case is whether or not the defendant is
willing to accept the proffered payment. In fact, petitioner
posits, the action to quiet title is a useless futile exercise
as he does not question P. R. Roman Inc.’s ownership of
the fishpond under consideration, but merely wishes to
assert his leasehold and possessory rights over said
property under the “Kasunduan sa Pag-upa.” He further
contends that compelling him to litigate before the
Bataan court would render nugatory his right as a
plaintiff to choose the venue of his action. Besides, Civil
Case No. 103647 was filed on August 2, 1976, ahead
of Civil Case No. 4102 which was filed on a much later
date, August 13, 1976, after the Manila CFI had already
acquired jurisdiction over Civil Case No. 103647.
Private respondents counter that the view taken by
petitioner of the Manila consignation case is quite limited
and bookish, because while it may be true that
theoretically, the main issue involved in a consignation
case is whether or not the defendant is willing to accept
the proffered payment, in the consignation case brought
by petitioner, other issues were pleaded by petitioner
himself, such as the validity and binding effect of the
lease contract and the existence of the supposed obligor-
obligee relationship. They further contend that a
plaintiff’s right of choice of venue is not absolute, but
must invariably bow to the dismissal of the case because
of litis pendentia which, in refutation of petitioner’s
argument, does not require that there is a prior pending
action, merely that there is a pending action.
We find for respondents.
Under the rules and jurisprudence, for litis
pendentia to be invoked as a ground for the dismissal of
an action, the concurrence of the following requisites is
necessary: (a) Identity of
417
VOL. 203, NOVEMBER 11, 1991
Ramos vs. Peralta
parties or at least such as represent the same interest in
both actions; (b) Identity of rights asserted and relief
prayed for, the relief being founded on the same facts; and
(c) The identity in the two cases should be such that the
judgment that may be rendered in one would, regardless
of which party is successful, amount to res judicata in the
other.7
These requisites are present in the case at bar. It is
worthwhile mentioning that in his basic petition for
review, one of the assigned errors of petitioner is that the
respondent court erred in not holding that the parties
in Civil Case No. 4102 are not the same as the parties
in Civil Case No. 103647.8 However, in his brief, no
further mention of this assigned error was made; a clear
indication of petitioner’s admission of the identity of
parties in Civil Case No. 4102 and Civil Case No. 103647,
particularly as he filed a third party complaint in Civil
Case No. 4102against the spouses Ortanez and Mindanao
Insurance.
Anent the second element, we agree with private
respondents’ observation that petitioner’s approach to his
consignation case is quite constricted. His contention that
the only issue in a consignation case is whether or not the
defendant is willing to accept the proffered payment is
true only where there is no controversy with respect to
the obligation sought to be discharged by such payment.
His consignation case, however, is not as simple. While
ostensibly, the immediate relief sought for in his
consignation case is to compel therein defendants to
accept his advance rentals, the ultimate purpose of such
action is to compel the new owner of the fishpond to
recognize his leasehold rights and right of occupation. In
the last analysis, therefore, the issue involved in Civil
Case No. 103647 is the right of possession over the
fishpond intertwined with the validity and effectivity of
the lease contract.
This is the same issue involved in Civil Case No.
4102. Although an action for quieting of title refers to
ownership, P.
_______________
7 Ramos vs. Ebarle, G.R. No. 49833, February 15,
1990, 182 SCRA 245; Marapao vs. Mendoza, et al., 119
SCRA 97; Lopez, et al. vs. Villaruel, et al., 164 SCRA 616.
8 p. 12, Petition, p. 19, Rollo.
418
418 SUPREME COURT REPORTS ANNOTAT
Ramos vs. Peralta
R. Roman, Inc. in its complaint9 in Civil Case No.
4102alleged:
5. There is a cloud417on the aforesaid titles of plaintiff on
the said agricultural land, marked Annexes “A”, “B” and
“C” hereof, as well as on its right of possession over that
real property by reason of a certain “Kasunduan sa
Pagupa” (Contract of Lease) dated June 28, 1974 executed
by and between the spouses Jovencio Ortanez and Juliana
S. Ortanez purportedly as “may-ari/Nagpapaupa”
(owner/lessor) and the defendant as lessee, which
instrument is apparently valid or effective but in truth
and in fact invalid, ineffective, voidable or unenforceable,
and is prejudicial to the said titles of plaintiff as well as to
its right of possession over the same fishpond/agricultural
land in Barrio Balut, Pilar, Bataan.
Thus, while the respondent court in the assailed order of
dismissal dated August 27, 1976 described Civil Case No.
4102 as “precisely for the ownership of the subject matter
of the property allegedly leased to the plaintiff
herein,”10 its order dated October 22, 1976 denying
petitioner’s motion for reconsideration, more perceptively
stated:11
“In Civil Case No. 4102 of the Court of First Instance of
Bataan, entitled P. R. Roman, Inc. vs. Benedicto
Ramos one of the principal issues is the possession of the
fishpond subject matter of the leasesupposed rents of
which are supposed to be consignated in the instant case,
plaintiff P. R. Roman, Inc. there, claiming to be entitled to
the possession of said property as owner under a
certificate of title and defendant Benedicto Ramos,
plaintiff here, anchoring his claim of possession upon his
lease with the Ortanez spouses against whom, on his
motion, he filed a third party complaint in which he
prayed in the alternative, that should he lose possession
of the fishpond in favor of P. R. Roman, Inc., the
Ortanezes should be condemned to reimburse him the
rentals he has already paid for the unexpired portion of
the lease. The issue of whether or not the lease subsists
even as regards P. R. Roman, Inc., for it is the view of
Ramos that it bought the property with knowledge of the
lease, is squarely planted in the case before the Court of
First Instance of Bataan, and, consequently, the more
appropriate court with which rents are to be consignated.
x x x”
_______________
9 Annex “G”, Petition, p. 62, Rollo, emphasis supplied.
10 p. 77, Rollo.
11 pp. 108-109, Rollo, emphasis supplied.
419
VOL. 203, NOVEMBER 11, 1991
Ramos vs. Peralta
That whatever decision may be handed down in Civil
Case No. 4102 would constitute res judicata in Civil Case
No. 103647 is beyond cavil. Should the Bataan court rule
that the lease contract is valid and effective against P. R.
Roman, Inc., then petitioner can compel it to accept his
proffered payment of rentals; otherwise, he may not do so.
Petitioner next contends that the dismissal of Civil
Case No. 103647 deprived him of his right to choose the
venue of his action. Verily, the rules on the venue of
personal actions are laid down generally for the
convenience of the plaintiff and his witnesses. But, as
observed by private respondents, this right given to the
plaintiff is not immutable. It must yield to the greater
interest of the orderly administration of justice, which as
in this case, may call for the dismissal of an action on the
basis of litis pendentia to obviate the possibility of
conflicting decisions being rendered by two different
courts.12
As private respondents would put it, “(T)he Rules of
Court are not perfect. It does not pretend to be able to
make everyone happy simultaneously or consecutively or
all the time. Even the Rules of Court has hierarchy of
values; thus, the choice of venue may bow to dismissal of
the case because of litis pendentia.13 At any rate,
petitioner cannot complain of any inconvenience arising
from the dismissal of Civil Case No. 103647. Being the
defendant in Civil Case No. 4102, he cannot but litigate
before the Bataan court, and bringing his consignation
case before the same court would actually save him time,
effort and litigation expenses.
Finally, the rule on litis pendentia does not require
that the later case should yield to the earlier case. What
is required merely is that there be another pending
action, not a prior pending action. Considering the
broader scope of inquiry involved in Civil Case No.
4102 and the location of the property involved, no error
was committed by the lower court in deferring to the
Bataan court’s jurisdiction.
WHEREFORE, the assailed decision dated August
27, 1976
_______________
12 See Vallacar Transit, Inc. vs. Yap, G.R. No. 61308,
December 29, 1983, 126 SCRA 500.
13 p. 28, Brief for Respondents-Spouses Ortanez, p.
401, Rollo.
420
420 SUPREME COURT REPORTS ANNOTATED
Abrin vs. Campos
of the then Court of First Instance of Manila, Branch
XVII, is AFFIRMED 419 in toto. This decision is immediately
executory, with costs against petitioner.
SO ORDERED.
Gutierrez, Jr., Bidin, Davide, Jr. and Romero,
JJ.,concur.
Decision affirmed.
Note.—Requisites of pendency of another suit
between same parties as ground for dismissal. (Arceo vs.
Oliveros,134 SCRA 308.)
——o0o——
© Copyright 2018 Central Book Supply, Inc. All rights
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 Court on June 27, 1956 in case No. L-5996 has become the
law of the case, and may not now be disputed or
416 SUPREME COURT REPORTS ANNOTATED
relitigated by a reopening of the same questions in a
Lee Bun Ting vs. Aligaen subsequent litigation between the same parties and their
privies over the same subject matter.
No. L-30523. April 22, 1977. Same; Stability must be accorded to final
LEE BUN TING and ANG CHIA, petitioners, vs. HON. judgments of the highest court.—Reasons of public policy,
JOSE A. ALIGAEN, Judge of the Court of First Instance judicial orderliness, economy and judicial time and the
of Capiz, 11th Judicial District, Branch II; ATTY. interests of litigants, as well as the peace and order of
ANTONIO D. AMOSIN, as court-appointed Receiver; society, all require that stability be accorded the solemn
RAFAEL A. DINGLASAN, FRANCISCO A. and final judgments of the courts or tribunals of
DINGLASAN, CARMEN A. DINGLASAN, RAMON A. competent jurisdiction. There can be no question that
DINGLASAN, LOURDES A. DINGLASAN, MERCEDES such reasons apply with greater force on final judgments
A. DINGLASAN, CONCEPCION A. DINGLASAN, of the highest Court of the land.
MARIANO A. DINGLASAN, JOSE A. DINGLASAN,
LORETO A. DINGLASAN, RIZAL A. DINGLASAN,
JIMMY DINGLASAN, and JESSE DINGLASAN, ORIGINAL PETITION in the Supreme Court. Certiorari
with preliminary injunction.
respondents.
Res judicata; A case that has become final and
executory cannot be re-opened on account of a decision of The facts are stated in the opinion of the Court.
the Supreme Court subsequently promulgated enunciating Norberto J. Quisumbing and Humberto V.
a different doctrine regarding the effects of a sales of lands Quisumbing for petitioners.
to aliens.—The issue posed before us is whether the Rafael A. Dinglasan for respondents.
questions which were decided in Rafael Dinglasan, et al.
vs. Lee Bun Ting, et al., supra, could still be re-litigated in ANTONIO, J.:
Civil Case No. V-3064, in view of the subsequent decision
of this Court in Philippine Banking Corporation vs. Lui Petition for certiorari to annul the Orders of respondent
She, supra. We resolve the issue in the negative. The court dated October 10, 1968 and November 9, 1968 and
decision of this Court in G.R. No. L-5996, “Rafael other related Orders in Civil Case No. V-3064, entitled
Dinglasan, et al. vs. Lee Bun Ting, et al.” constitutes a
“Rafael A. Dinglasan, et al. vs. Lee Bun Ting, et al.”, with
bar to Civil Case No. V-3064 before the respondent, court. prayer for the issuance of a
Said civil case,
418
417
418 SUPREME COURT REPORTS ANNOTATED
VOL. 76, APRIL 22, 1977 417
Lee Bun Ting vs. Aligaen
Lee Bun Ting vs. Aligaen
writ of preliminary injunction. The antecedent facts are
therefore, should have been dismissed because it is
as follows:
a mere relitigation of the same issues previously adjudged
On June 27, 1956, this Court rendered judgment in G.
with finality, way back in 1956, between the same parties R. No. L-5996, entitled “Rafel Dinglasan, et al. vs. Lee
or their privies and concerning the same subject matter. Bun Ting, et al.”1 In that case, We found that:
We have consistently held that the doctrine of res judicata “In the month of March, 1936, petitioners-appellants sold
applies where, between a pending action and one which to Lee Liong, a Chinese citizen, predecessor in interest of
has been finally and definitely settled, there is identity of respondents-appellees, a parcel of land situated on the
parties, subject matter and cause of action. corner of Roxas Avenue and Pavia Street, Capiz (now
Same; Posterior changes in the Supreme Court’s Roxas City), Capiz, designated as lot 398 and covered by
doctrine cannot be applied retroactively to nullify a prior Original Certificate of Title No. 3389. The cost was
final ruling.—Contrary to the contentions of private P6,000.00 and soon after the sale Lee Liong constructed
respondents, there has been no change in the facts or in thereon a concrete building which he used as a place for
the conditions of the parties. Neither do we find our ruling his lumber business and in part as residence for himself
in the Philippine Banking Corporation case applicable to and family. Petitioners had contended that the sale was a
the case at bar, considering the rule that posterior conditional sale, or one with the right of repurchase
changes in the doctrine of this Court cannot retroactively during the last years of a ten-year period, but both the
be applied to nullify a prior final ruling in the same trial court and the Court of Appeals found that the sale
proceeding where the prior adjudication was had, whether was an absolute one. Another contention of the
the case should be civil or criminal in nature. The petitioners-appellants is that the sale is null and void as
determination of the questions of fact and of law by this
it was made in violation of the provision contained in the
Constitution (Article XIII, section 5), but the Court of
Appeals found that the purchaser was not aware of the
constitutional prohibition while petitioners-appellants
were because the negotiations for the sale were conducted
with the knowledge and direct intervention of Judge
Rafael Dinglasan, one of the plaintiffs, who was at that
time an assistant attorney in the Department of Justice. *
* *” (p. 429)
In reply to the contention of appellants therein that as the
sale to Lee Liong is prohibited by the Constitution, title to
the land did not pass to said alien because the sale did not
produce any juridical effect in his favor, and that the
constitutional prohibition should be deemed self-executing
in character in order to give effect to the constitutional
mandate, this Court said:
“* * * In answer we state that granting the sale to be null
and void and can not give title to the vendee, it does not
necessarily follow therefrom that the title remained in the
vendor, who had also violated the constitutional
prohibition, or that he (vendor) has the right to recover
the title of which he has divested himself by his act in
ignoring the prohibition. In such contingency another
principle of law sets in to bar to equally guilty vendor
from recovering the title which he had voluntarily
conveyed for a consideration, that of pari delicto. We
have
_______________
199 Phil. 427.
419
VOL. 76, APRIL 22, 1977
Lee Bun Ting vs. Aligaen
applied this principle as a bar to the present action in a
series of cases, thus:
*** *** ***
‘We can, therefore, say that even if the plaintiffs can still
invoke the Constitution, or the doctrine in the Krivenko
case, to set aside the sale in question, they are now
prevented from doing so if their purpose is to recover the
lands that they have voluntarily parted with, because of
their guilty knowledge that what they were doing was in
violation of the Constitution. They cannot escape the law.
As this Court well said: A party to an illegal contract
cannot come into a court of law and ask to have his illegal
objects carried out. The law will not aid either party to an
illegal agreement; it leaves the parties where it finds
them. The rule is expressed in the maxims: ‘Ex dolo malo
non oritur actio’, and ‘In pari delicto potior est conditio
defendentis.’.* * *’
 “It is not necessary for us to re-examine the doctrine plaintiffs and to receive the amount of P6,000.00 from the
laid down by us in the above cases. We must add in plaintiffs as restitution of the purchase price; and that
justification of the Acloption of the doctrine that the scope defendants be ordered to pay damages to the plaintiffs in
of our power and authority is to interpret the law merely, the amount of P2,000.000 a month from the time of the
leaving to the proper co-ordinate body the function of filing of the complaint until the property is returned to
laying down the policy that should be followed in relation them, as well as the costs of suit.
to conveyances in violation of the constitutional A motion to dismiss, dated September 23, 1968, was
prohibition and in implementing said policy. The situation filed by defendants-petitioners on the ground of res
of these prohibited conveyances is not different from that judicata,alleging that the decision in the case of “Rafael
of homestead sold within five years from and after the Dinglasan, et al. vs. Lee Bun Ting, et
issuance of the patent, (Section 118, C.A. 141, otherwise al.”, supra, promulgated on June 27, 1956, has definitely
known as the Public Land Law), for which situation the settled the issues between the parties. An opposition
legislature has Aclopted the policy, not of returning the thereto was filed by plaintiffs, with the averment that the
homestead sold to the original homesteader, but of decision in the prior case “cannot be pleaded in bar of the
forfeiting the homestead and returning it to the public instant action because of new or additional facts or
domain again subject to disposition in accordance with grounds of recovery and because of change of law or
law. (Section 124, Id.) jurisprudence.”3 In support of the change in jurisprudence
“The doctrine of in pari delicto bars petitioners- asserted, the decision of this Court in Philippine Banking
appellants from recovering the title to the property in Corporation vs. Lui She, supra, was advanced, upon the
question and renders unnecessary the consideration of the contention that said decision warrants a reopening of the
other arguments presented in appellants’ brief. case and the return of the parcel of land involved to the
“There is one other cause why petitioners’ remedy plaintiffs. A reply to the opposition was filed by
cannot be entertained, that is the prescription of the defendants by registered mail on October 16, 1968,
action. As the sale occurred in March, 1936, more than alleging that the decision in Philippine Banking
ten years had already elapsed from the time the cause of Corporation vs. Lui She, which was promulgated in 1967,
action accrued when the action was filed (1948).” (pp. 431- “cannot affect the
432)
Noting the absence of policy governing lands sold to aliens _______________
in violation of the constitutional prohibition, We further
said: 221 SCRA 52.
“We take this occasion to call the attention of the 3Annex “D”, Petition, p. 63 SC Rollo.
legislature to the absence of a law or policy on sales in
421
violation of the Constitution; this Court would have filled
the void were we not aware of the fact VOL. 76, APRIL 22, 1977
420
Lee Bun Ting vs. Aligaen
420 SUPREME COURT REPORTS ANNOTATEDoutcome of the instant case. Said 1987 decision cannot be
Lee Bun Ting vs. Aligaen applied to the instant case where there had been already
a final and conclusive determination some twelve years
that the matter fails beyond the scope of our authority
earlier. While a doctrine laid down in previous cases may
and properly belongs to a co-ordinate power.” (P. 432)
be overruled, the previous cases themselves cannot
Accordingly, the petition in the foregoing case was denied.
thereby be reopened. The doctrine may be changed for
Twelve (12) years later, on the basis of the decision of
future cases but it cannot reach back into the past and
this Court in Philippine Banking Corporation vs. Lui
overturn finally settled cases.”4
She,2private respondents Rafael A. Dinglasan, et al. filed
However, on October 10, 1968, before the filing of the
a complaint on July 1, 1968 for the recovery of the same
above reply, respondent court had issued an Order
parcel of land subject matter of the first-mentioned case.
denying the motion to dismiss. The court said:
Said complaint was docketed as Civil Case No. V-
“A copy of the decision rendered in the case of Rafael
3064before respondent court. Private respondents
Dinglasan, et al. vs. Lee Bun Ting, et al., G. R. No. L-
(plaintiffs before the court a quo) reiterated their
5996 is attached to the motion to dismiss.
contention that the sale made to Lee Liong, predecessor-
“In that case, the Supreme Court ruled that both
in-interest of petitioners (defendants a quo), was null and
parties violated the constitutional prohibition (Article
void for being violative of the Constitution, and prayed
XIII, sec. 9) for the purchaser was an alien and prohibited
that plaintiffs be declared as the rightful and legal owners
to acquire residential lot while the vendors, Filipino
of the property in question; that defendants be ordered to
citizens, can not also recover the property for having
vacate the premises, to surrender possession thereof to
violated the constitutional prohibition, under the
principle of pari delicto. The vendee cannot own the
property, neither can the vendor recover what he sold.
“To fill the void, the Supreme Court pointed out that
the coordinate body—Congress of the Philippines—can
pass remedial legislation.
“But Congress failed to act. Neither was there any
proceeding after almost twenty years for escheat or
reversion instituted by the Office of the Solicitor General
after the Krivenko decision which prohibits the transfer to
aliens of any private agricultural land including
residential lands whatever its origin might have been.
“But the Supreme Court took a decisive step and in
bold relief dispelled darkening clouds in the case of
Philippine Banking Corporations vs. Lui She,
promulgated September 12, 1967, * * *.
“The concurring opinion of Justice Fernando is very
enlightening and elucidating. * * *.
“The Court wishes to refer to the concurring opinion
of Justice Fernando as an additional authority supporting
the herein order.
“PREMISES CONSIDERED, the Court finds the
motion to dismiss unmeritorious and holds that the same
be as it is hereby DENIED.”5
A motion for reconsideration of the foregoing Order was
filed by defendants, alleging that their reply to plaintiffs’
opposition
_______________
4Annex “E”, Ibid., p. 72, SC Rollo.
5Annex “F”, Ibid., pp. 76-77, SC Rollo.
422
422 421 SUPREME COURT REPORTS ANNOTAT
Lee Bun Ting vs. Aligaen
to the motion to dismiss was not even considered by the
court a quo because the Order was issued before said
reply could reach the court. Further, it was asserted that
the Philippine Banking Corporation vs. Lui She case had
the effect of annulling and setting aside only the contracts
subject matter thereof “and no other contracts, certainly
not contracts outside the issues in said judgment as that
in the instant case”, and of ordering the return only of the
lands involved in said case, and not the land subject of the
present action. Moreover, it was averred that “Nowhere in
the majority opinion nor in the concurring opinion in said
decision of Philippine Banking Corporation vs. Lui
Shedoes there appear any statement which would have
the effect of reopening and changing previously
adjudicated rights of parties and finally settled cases” and
that the principle enunciated in such case “should apply
after, not on or before, September 12, 1967”. The motion
for reconsideration was found to have not been well taken
and, consequently, was denied by respondent court on
November 9, 1968. Defendants were given ten (10) days
from receipt of the Order within which to file their answer
to the complaint, which defendants complied with.
Defendants’ answer, dated December 5, 1968,
contained the following allegations, among others:
1. “(a)The sale of the parcel of land involved was
made in 1935 before the promulgation of the
Constitution.
2. “(b)Said conveyance was an absolute sale, not
subject to any right or repurchase * * *
3. “(c)Upon the purchase of the said parcel of land
by the deceased Lee Liong, he and defendant
Ang Chia constructed thereon a camarin for
lumber business and later a two-storey five
door accessoria with an assessed valuation of
P35,000.00, which said improvements were
destroyed during the Japanese entry into the
municipality of Capiz in April 1942;
thereafter, the same improvements were
rebuilt.
4. “(d)In July 1947, the said Lee Liong being
already deceased, defendants as his legal heirs
entered into an extrajudicial settlement of said
property, there being no creditors or other
heirs, and by virtue of said extradjudicial
settlement, approximately two-thirds of said
property was adjudicated to defendant Ang
Chia and Lee Bing Hoo as co-owners and the
remaining one-third to defendant Lee Bun
Ting.
5. “(e)The deceased Lee Liong and defendants have
been declaring and paying real estate taxes on
the said property since 1935 and up to the
present year.
*** *** * * *”
423
VOL. 76, APRIL 22, 1977
Lee Bun Ting vs. Aligaen
In addition to the foregoing, defendants reiterated their
defense of res judicata, on the basis of the decision of the
Supreme Court of June 27, 1956. It was, therefore, prayed
that the complaint be dismissed, with counterclaim for
attorney’s fees and expenses of litigation or, in case of
adverse judgment, that plaintiffs be ordered to pay the
reasonable equivalent of the value of the property at the
time of the restoration, plus reimbursement of
improvements thereon.
A reply and answer to the counterclaim, dated
December 14, 1968, was filed by plaintiffs. On March 31,
1969, respondent court issued an Order denying a motion
filed by petitioners for simplification of the issues and for
the striking out from the records of the declaration of
Rafael Dinglasan under the Survivorship Disqualification
Rule. A motion for reconsideration of the foregoing Order
was denied on May 7, 1969.
During the pendency of the trial, plaintiffs filed a
petition for the appointment of a receiver “to receive,
collect and hold in trust all income of the property in the
form of monthly rentals of P2,000.00”, on the premise that
defendants have no other visible property which will
answer for the payment of said rentals. This petition was
opposed by defendants, alleging that plaintiffs will not
suffer any irreparable injury or grave damage if the
petition for receivership is not granted, particularly as
defendants are solvent, and further considering that
defendants have a building on the parcel of land, the
value of which must likewise be considered before
plaintiffs can be awarded possession of the land. The
matter of receivership was heard by respondent court and
on May 17, 1969, it issued an Order appointing
respondent Atty. Antonio D. Amosin, Deputy Clerk of
Court, as receiver, with instructions to take immediate
possession of the property in litigation and to preserve,
administer and dispose of the same in accordance with
law and order of the court, upon the posting of a bond in
the amount of P500.00. On May 17, 1969, the appointed
receiver took his oath. Hence, the instant petition.
Petitioners herein pray that judgment be rendered
annulling and setting aside respondent court’s
complained of Orders dated October 10, 1968. November
9, 1968, March 31, 1969, May 7, 1969 and May 17, 1969,
and ordering the dismissal of Civil Case no. V-3064 of
respondent court on the ground of res
judicata. Petitioners further prayed for the issuance of a
writ of
424
424 SUPREME COURT REPORTS ANNOTATED
Lee Bun Ting vs. Aligaen
preliminary injunction to restrain respondent court from
proceeding with the scheduled hearings of the case, and
423
respondent receiver from executing the order to take
immediate possession of the property in litigation.
On June 16, 1969, this Court issued the writ
of preliminary injunction prayed for, restraining
respondent court from continuing with the scheduled trial
of the case and respondent receiver from executing the
order to take immediate possession of the property in
litigation and/or otherwise discharging or performing his
function as receiver.
The issue posed before Us is whether the questions
which were decided in Rafael Dinglasan, et al. vs. Lee Bun
Ting, et al., supra, could still be relitigated in Civil Case
No. V-3064, in view of the subsequent decision of this
Court in Philippine Banking Corporation vs. Lui She,
supra.
We resolve the issue in the negative. The decision of
this Court in G. R. No. L-5996, “Rafael Dinglasan, et al.
vs. Lee Bun Ting, et al.” constitutes a bar to Civil Case
No. V-3064before the respondent court. Said Civil case,
therefore, should have been dismissed because it is a
mere relitigation of the same issues previously adjudged
with finality, way back in 1956, between the same parties
or their privies and concerning the same subject matter.
We have consistently held that the doctrine of res
judicataapplies where, between a pending action and one
which has been finally and definitely settled, there is
identity of parties, subject matter and cause of action.
The concept of res judicata as a “bar by prior
judgment” was explained in Comilang vs. Court of
Appeals, et al.,promulgated on July 15, 1975,6 thus:
“ ‘The fundamental principle upon which the doctrine
of res judicatarests is that parties ought not to be
permitted to litigate the same issue more than once; that,
when a right or fact has been juridically tried and
determined by a court of competent jurisdiction, or an
opportunity for such trial has been given, the judgment of
the court, so long as is remains unreversed, should be
conclusive upon the parties and those in privity with them
in law or estate. * * *’
*** *** ***
“This principle of res judicata is embodied in Rule 39, Sec.
49(b) and (c) of the Rules of Court, as follows;
_______________
665 SCRA 69.
425
VOL. 76, APRIL 22, 1977
Lee Bun Ting vs. Aligaen
1. ‘(b)In other cases the judgment or order is, with
respect to the matter directly adjudged or as to
any other matter that could have been raised
in relation thereto, conclusive between the
parties and their successors in interest by title
subsequent to the commencement of the action
or special proceeding, litigating for the same
title and in the same capacity.
2. ‘(c)In any other litigation between the same
parties or their successors-in-interest, that
only is deemed to have been adjudged in a
former judgment which appears upon its face
to have been so adjudged, or was actually and
necessarily included therein or necessary
thereto.’
“Sec. 49(b) enunciates that concept of res judicata known
as ‘bar by prior judgment’ while Sec. 49(c) refers to
‘Conclusiveness of judgment.’ There is ‘bar by prior
judgment’ when, between the first case where the
judgment was rendered and the second case which is
sought to be barred, there is identity of parties, subject
matter and cause of action. The judgment in the first case
constitutes an absolute bar to the subsequent action. It is
final as to the claim or demand in controversy, including
the parties and those in privity with them, not only as to
every matter which was offered and received to sustain or
defeat the claim or demand, but as to any other
admissible matter which might have been offered for that
purpose and of all matters that could have been adjudged
in that case. But where between the first and second
cases, there is identity of parties but no identity or cause
of action, the first judgment is conclusive in the second
case, only as to those matters actually and directly
controverted and determined and not as to matters
merely involved therein.” (pp. 76-78).
A comparison between the earlier case of “Rafael
Dinglasan, et al. vs. Lee Bun Ting, et al.” (G. R. No. L-
5996) and the case pending before respondent
court7reveals that the requisites for the application of the
doctrine of res judiciata are present. It is undisputed that
the first case was tried and decided by a court of
competent jurisdiction, whose decision was affirmed on
appeal by this Tribunal. The parties to the two cases are
substantially the same, namely, as plaintiffs, Rafael A.
Dinglasan, Carmen A. Dinglasan, Francisco A. Dinglasan,
Jr., Ramon A. Dinglasan, Lourdes A. Dinglasan, Mercedes
A. Dinglasan, Concepcion A. Dinglasan, Mariano A.
Dinglasan, Jose A. Dinglasan, Loreto A. Dinglasan,
Manuel A. Dinglasan, Rizal A. Dinglasan and Jimmy
Dinglasan (the differences being
________________
7 Civil Case No. V-3064, entitled “Rafael A.
Dinglasan, et al. vs. Lee Bun Ting, et al.”
426
426 SUPREME COURT REPORTS ANNOTATED
Lee Bun Ting vs. Aligaen
the inclusions of the minor Vicente Dinglasan in L-5996
and Jesse Dinglasan in the case before respondent court),
against defendants Lee Bun Ting and Ang Chia, in her
capacity as widow of the deceased Lee Liong (and
Administratrix of his estate in L-5996). The subject
matter of the two actions are the same, namely, that
“parcel of land, Cadastral Lot No. 398, located at Trece de
Agosto Street, now Roxas Avenue, corner of Pavia St., in
the municipality of Capiz, now Roxas City, covered by
Original Certificate of Title No. 3389 of the Office of
Register of Deeds of Capiz in the name of * * * Francisco
Dinglasan and originally declared under Tax
(Declaration) No. 19284 also in his name in the
municipality of Capiz, but now declared as Cadastral Lots
Nos. 398-A and 398-B respectively under Tax
Declarations Nos. 7487 and 7490 in the City of Roxas in
the names of Ang Chia Vda. de Lee and Lee Bun Ting
respectively* * *” The causes of action and the reliefs
prayed for are identical—the annulment of the sale and
the recovery of the subject parcel of land.
Notwithstanding the mode of action taken by private
respondents, We find that in the ultimate analysis, Civil
Case No. V-3064 is but an attempt to reopen the issues
which were resolved in the previous case. Contrary to the
contentions of private respondents, there has been no
change in the facts or in the conditions of the parties.
Neither do We find Our ruling in the Philippine Banking
Corporation case applicable to the case at bar, considering
the rule that posterior changes in the doctrine of this
Court cannot retroactively be applied to nullify a prior
final ruling in the same proceeding where the prior
adjudication was had, whether the case should be civil or
criminal in nature. The determination of the questions of
fact and of law by this Court on June 27, 1956 in case No.
L-5996 has become the law of the case, and may not now
be disputed or relitigated by a reopening of the same
questions in a subsequent litigation between the same
parties and their privies over the same subject matter.
Thus, in People vs. Olarte,8 We explained this doctrine, as
follows:
“Suffice it to say that our ruling in Case L-13027,
rendered on the first appeal, constitutes the law of the
case, and, even if erroneous, it may no longer be disturbed
or modified since it has become final long ago. A
subsequent reinterpretation of the law may be applied to
new
_______________
819 SCRA 494, 489-499.
427
VOL. 76, APRIL 22, 1977
Lee Bun Ting vs. Aligaen
cases but certainly not to an old one finally and
conclusively determined (People vs. Pinuila, G. R. No. L-
11374, May 30, 1958; 55 O.G. 4228).
“Law of the case’ has been defined as the opinion
delivered on a former appeal. More specifically, it means
that whatever is once irrevocably established as the
controlling legal rule of decision between the same parties
in the same case continues to be the law of the case,
whether correct on general principles or not, so long as
the facts on which such decision was predicated continue
to be the facts of the case before the court. (21 C.J.S. 330).
(cited in Pinuila case, supra)
‘As a general rule a decision on a prior appeal of the
same case is held to be the law of the case whether that
decision is right or wrong, the remedy of the party being
to seek a rehearing. (5 C.J.S. 1277).’ (also cited in Pinuila
case)
It is also aptly held in another case that:
‘It need not be stated that the Supreme Court, being the
court of last resort, is the final arbiter of all legal
questions properly brought before it and that its decision
in any given case constitutes the law of that particular
case. Once its judgment becomes final it is binding on all
inferior courts, and hence beyond their power and
authority to alter or modify.’ (Kabigting vs. Acting
Director of Prisons, G. R. No. L-15548, October 30, 1962).
“More categorical still is the pronouncement of this Court
in Pomeroy vs. Director of Prisons, L-14284-85, February
24, 1960:
‘It will be seen that the prisoner’s stand assumes that
doctrines and rulings of the Supreme Court operate
retrospectively, and that they can claim the benefit of
decisions in People vs. Hernandez; People vs. Geronimo,
and People vs. Dugonon (L-6025-26, July 18, 1956; L-
8936, Oct. 31, 1956; and and L-8926, June 29, 1957,
respectively), promulgated four or more years after the
prisoner applicants had been convicted by final judgment
and started serving sentence. However, the rule Aclopted
by this Court (and by the Federal Supreme Court) is that
judicial doctrines have only prospective operation and do
not apply to cases previously decided (People vs.
Pinuila, L-11374, promulgated May 30, 1958)’
“In the foregoing decision, furthermore, this Court
quoted and reiterated the rule in the following excerpts
from People vs. Pinuila, G.R. No. L-11374, jam cit.:
428
428 SUPREME COURT REPORTS ANNOTAT
Lee Bun Ting vs. Aligaen
“The decision of this Court on that appeal by the
government from the order of dismissal, holding that said
appeal did not place the appellants, including Absalong
Bignay, in double jeopardy, signed and concurred in by six
justices as against
427three dissenters headed by the Chief
Justice, promulgated way back in the year 1952, has long
become the law of the case. It may be erroneous, judge by
the law on double jeopardy as recently interpreted by this
same Tribunal. Even so, it may not be disturbed and
modified. Our recent interpretation of the law may be
applied to new cases, but certainly not to an old one
finally and conclusively determined. As already stated,
the majority opinion in that appeal is now the law of the
case.”
“The same principle, the immutability of the law of the
case notwithstanding subsequent changes of judicial
opinion, has been followed in civil cases:
Fernando vs. Crisostomo, 90 Phil. 585;
 Padilla vs. Paterno, 93 Phil. 884;
Samahang Magsasaka, Inc. vs. Chua Guan, L-7252,
February, 1955.
“It is thus clear that posterior changes in the doctrine
of this Court can not retroactively be applied to nullify a
prior final ruling in the same proceeding where the prior
adjudication was had, whether the case should be civil or
criminal in nature.”9
Reasons of public policy, judicial orderliness, economy and
judicial time and the interests of litigants, as well as the
peace and order of society, all require that stability be
accorded the solemn and final judgments of the courts or
tribunals of competent jurisdiction. There can be no
question that such reasons apply with greater force on
final judgments of the highest Court of the land.
WHEREFORE, certiorari is granted, the Orders
complained of are hereby annulled and set aside, and
respondent Judge is directed to issue an Order
dismissing Civil Case No. V-3064. With costs against
private respondents.
Barredo, Aquino and Concepcion Jr., JJ.,
concur.
about the pretention concerning Gustilo’s occupancy of
more than 2/3 appears, and, on the contrary, the award
clearly stated that Gustilo was occupying only 170 square
meters. Therefore, the decision in G.R. No. L-
16934 cannot be deemed to have resolved the issue in
question. (Cabungcal vs. Cordova, 29 SCRA 639).
The plea of res judicata applies not only to the point
upon which the court was required by the parties to form
an opinion and pronounce judgment, but to every point
which belonged to the subject of litigation and which the
parties exercising reasonable diligence might have
brought forward at the time. (De Goma vs. De Goma, 12
SCRA 674).
——o0o——
430
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_______________

9 See also: Zarate v. Director of Lands, 39 Phil.

747; Comilang v. Court of Appeals, supra.

429
VOL. 76, APRIL 22, 1977 429
Lee Bun Ting vs. Aligaen
Castro, C.J., in the result.
Fernando, J., did not take part.
Certiorari granted, Orders annulled and set aside.
Notes.—When the ground of the dismissal motion is a
prior judgment rendered by the same court, the taking of
judicial notice of said prior judgment by the same court
constitutes the very evidence needed to dispose of the
dismissal motion. (Baguio vs. Vda de Jalagat, 42 SCRA
337).
A judge who entertains a dispute finally and
conclusively decided already abuses his discretion.
(Mangayao vs. De Guzman, 55 SCRA 540).
The corollary principle of res judicata is that courts
“are not concerned so much with the form of actions as
with their substance” and that “despite a difference in
form of action, nevertheless the doctrine of res judicata
would be applied where it appears that the parties in the
two suits were in truth litigating the same thing.” (Senoro
vs. Lobo,67 SCRA 248).
While the issue of whether or not Gustilo is the
occupant of more than 2/3 of the lot in question was clear
from the pleadings, it was evidently ignored by the parties
for in the stipulation of facts submitted jointly by them
and which served as the basis of the decision, nothing

20 SUPREME COURT REPORTS ANNOTATED
Philippine National Bank vs. Hipolito materialize; that said offer of plan of payment was an
No. L-16463. January 30, 1965.
PHILIPPINE NATIONAL BANK, plaintiff-
appellant, vs.HERMOGENES HIPOLITO and LEONOR
JUNSAY, defendants-appellees.
Pleadings and Practice; Motion to Dismiss; Motion
to dismiss admits truth of allegations of complaint.—In a
motion to dismiss defendant hypothetically admits the
truth of the allegations of fact contained in the complaint.
Same; Same; Denial of allegations of complaint not
proper In a motion to dismiss.—A denial of an allegation
of a complaint, as for example the denial of an offer of
payment which would prevent prescription from setting
in, would be proper in the answer to the complaint but not
in a motion for dismissal, for the contradictory allegations
would require presentation of evidence.
Prescription; Renewal of obligation by offer of
payment.—An offer of payment works as a renewal of the
obligation and prevents prescription from setting in.
APPEAL from an order of the Court of First Instance of
Negros Occidental.
The facts are stated in the opinion of the Court.
Ramon B. de los Reyes for plaintiff-appellant.
P. A. Palanca for defendants-appellees.
MAKALINTAL, J.:
Appeal from the order of dismissal by the Court of First
Instance of Negros Occidental.
The complaint, filed on June 18, 1959, alleges that
defendants obtained various sugar crop loans from
plaintiff through its Victorias Branch, evidenced by
promissory notes
21
VOL. 13, JANUARY 30, 1965
Philippine National Bank vs. Hipolito
(reproduced as annexes to the complaint) respectively
dated January 25, 1941, February 13, 1941, March 8,
1941, April 3, 1941, May 2, 1941 and June 23, 1941; that
of the total amount of P9,692.00 represented by said notes
defendants paid P3,905.61, leaving a balance of
P6,786.39, which, added to accrued interest of P5,213.34,
summed up to P11,999.73 as of January 17, 1957; that
despite repeated demands, defendants failed and refused
to pay said amount; that in view of such demands
defendants, on May 7, 1957, went to Attorney Francis I.
Medel of the legal department of plaintiffs Victorias
branch and offered a plan of payment of the account, but
for reasons unknown to plaintiff and probably due to the
transfer of defendant Hipolito as supervising teacher to
some other province, his proposed plan of payment did not
acknowledgment of defendants’ just and valid obligation.
The prayer is for the court to order defendants to pay to
plaintiff the said amount of P11,999.73, with accrued
annual interest thereon at the rate of 5% from January
17, 1957 up to the date of payment, plus attorney’s fees
equivalent to 10%.
Defendants moved for a bill of particulars, but the
motion was denied. They then moved to dismiss on the
ground that plaintiff’s cause of action, if any, had already
prescribed. To the motion they attached a joint affidavit of
merit, wherein they averred that they never made any
acknowledgment of indebtedness nor offered a plan of
payment, but on the contrary had always maintained that
plaintiff’s action had prescribed.
Plaintiff opposed the motion, contending that the
prescriptive period had been suspended by “Executive
Order No. 32, otherwise known as the Moratorium Law,”
and interrupted, pursuant to Article 1973 of the old Civil
Code, by plaintiff’s written extra-judicial demands as well
as by defendants’ acknowledgment of the indebtedness.
Attached to the opposition were (1) a statement of
defendants’ account dated July 22, 1947; (2) plaintiff’s
letter dated October 31, 1953, asking defendants to make
arrangements for the liquidation of the debt; (3) letter of
plaintiff’s Victorias Branch Manager, dated February 4,
22
22 SUPREME COURT REPORTS ANNOTATED
Philippine National Bank vs. Hipolito
1959, addressed to defendant Hipolito (at Iloilo City)
requesting him to settle his account, otherwise drastic
action would be taken against him as a government
employee, and reminding him of his May 7, 1957
interview with Branch Attorney Medel, wherein he
proposed a plan of payment which however did not
materialize; and (4) defendant Hipolito’s answer dated
February 16, 1959, requesting said Manager, in his
personal and not 21in his official capacity, to be more
“sensitive” to the financial plight of defendants; and
requesting further that he or any of his investigators
study the case by seeing Mrs. Hipolito (who was then
staying very near the Victorias Branch Office) about “the
actual insolvency of the family,” ending up with an appeal
for help “in this matter.”
Defendants replied to plaintiff’s opposition, stating
among other things that Executive Order No. 32, if at all,
suspended the prescriptive period “only for two (2) years,
four (4) months and sixteen (16) days, from March 10,
1945, or only up to July 26, 1948,” citing Bachrach Motors
Co., Inc. v. Chua Tia Hian, 53 O.G. 6524; that the alleged
written extrajudicial demands constitute self-serving
evidence; and that defendant Hipolito’s letter of February
16, 1959 cannot be considered as an acknowledgment of
indebtedness.
In dismissing the complaint the lower court ruled
that since the seven promissory notes constituted one
single obligation, arising as it did from plaintiff’s
financiation of defendants’ sugar crop for 1941-42, the
date of the last promissory note, June 23, 1941, should be
considered as the true date of the written contract, from
which the ten-year prescriptive period (Art. 1144, par. 1 of
the new Civil Code) started; that said period was
suspended only for two (2) years, four (4) months and
sixteen (16) days (by reason of Executive Order No. 32)
until said Order was declared unconstitutional; that
prescription set in on November 8, 1953, five (5) years,
five (5) months and ten (10) days before the complaint
was filed on June 18, 1959; that the alleged letters of
demand cannot be considered as extrajudicial demands
“under Art. 1155 of the Civil Code” because there is no
proof that defendants
23
VOL. 13, JANUARY 30, 1965
Philippine National Bank vs. Hipalito
received them; that plaintiff’s letter of demand of
February 4, 1959, which was admittedly received by
defendant Hipolito, did not work to interrupt the
prescriptive period which had already previously elapsed;
and that defendant Hipolito’s answering letter of
February 16, 1959 does not contain any express or tacit
acknowledgment of the obligation nor promise to pay the
same and hence did not renew the obligation.
We are of the opinion that the dismissal of the
complaint is erroneous. In a motion to dismiss defendant
hypothetically admits the truth of the allegations of fact
contained in the complaint (Pangan v. Evening News
Publishing Co., Inc., L-13308, Dec. 29, 1960; Pascual v.
Secretary of Public Works and Communications, L-10405,
Dec. 29, 1960; Republic v. Ramos, L-15484, Jan. 31, 1963).
An examination of the complaint herein does not
indicate clearly that prescription has set in. On the
contrary, it is belied by the allegation concerning
defendant’s offer of payment made on May 7, 1957. Such
offer hypothetically admitted in the motion, worked as a
renewal of the obligation.
It is true that defendants attached to the motion a
joint affidavit of merit wherein they deny having made an
offer of a plan of payment. Such denial, however, being a
contrary averment of fact, would be proper in the answer
to the complaint but not in a motion for dismissal, for the
contradictory allegations would require presentation of
evidence (Alquigue v. De Leon, L-15059, March 30, 1963).
The same is true of the other allegations in the complaint
concerning the demands for payment sent by plaintiff
upon defendants and the partial payments made by them,
all or some of which may have a material bearing on the
question of prescription. In others words, the ground for
dismissal not being indubitable, the lower court should
have deferred determination of the issue until after trial
of the case on the merits (Sec. 3, Rule 16, Revised Rules of
Court; Gegante v. Katalbas, L-17105, July 31, 1963).
The order appealed from is set aside and the case is
remanded to the lower court for further proceedings, with
24
24 SUPREME COURT REPORTS ANNOTATED
Republic vs. Philippine National Bank
costs against appellees,
Bengzon, C.J., Bautista
Angelo, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala, Be
ngzon, J.P., and Zaldivar, JJ., concur.
Concepcion, J., took no part.
Order set aside and ease remanded to lower court for
further proceedings.
Note.—In pleadings and practice the rule is always in
favor of liberality in construction so that the real matter
in dispute may be submitted to the judgment of the court.
Imperfections of form and technicalities of procedure
should be disregarded, unless substantial rights would
otherwise be prejudiced. (Clorox Company vs. Director of
Patents, 20 SCRA 1965.)

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 PETITION for review of the orders of the Regional Trial
Court of Ilocos Norte, Br. 16. Bello, Jr., J.
274 SUPREME COURT REPORTS ANNOTATED
Guerrero vs. RTC of Ilocos Norte, Br. XVI
G.R. No. 109068. January 10, 1994.*
GAUDENCIO GUERRERO, petitioner, vs. REGIONAL
TRIAL COURT OF ILOCOS NORTE, BR. XVI, JUDGE
LUIS B. BELLO, JR., PRESIDING, AND PEDRO G.
HERNANDO, respondents.
Civil Procedure; Action; The requirement that the
complaint or petition should allege that earnest efforts
towards a compromise have been made but that the same
failed is mandatory.—Considering that Art. 151 herein-
quoted starts with the negative word “No,” the
requirement is mandatory that the complaint or petition,
which must be verified, should allege that earnest efforts
towards a compromise have been made but that the same
failed, so that, “[i]f it is shown that no such efforts were in
fact made, the case must be dismissed.”
Same; Same; Same; The enumeration of “brothers
and sisters” as members of the same family does not
comprehend “sisters-in-law”.—But the instant case
presents no occasion for the application of the above-
quoted provisions. As early as two decades ago, we
already ruled in Gayon v. Gayon that the enumeration of
“brothers and sisters” as members of the same family does
not comprehend “sisters-in-law.” In that case, then Chief
Justice Concepcion emphasized that “sisters-inlaw”
(hence, also “brothers-in-law”) are not listed under Art.
217 of the New Civil Code as members of the same family.
Since Art. 150 of the Family Code repeats essentially the
same enumeration of “members of the family,” we find no
reason to alter existing jurisprudence on the matter.
______________
*FIRST DIVISION.
275
VOL. 229, JANUARY 10, 1994
Guerrero vs. RTC, Ilocos Norte, Br. XVI
Same; Same; Same; The attempt to compromise as
well as the inability to succeed is a condition precedent to
the filing of a suit between members of the same family.—
As regards the second issue, we need only reiterate our
ruling in O’Laco v. Co Cho Chit, citing Mendoza v. Court
of Appeals, that the attempt to compromise as well as the
inability to succeed is a condition precedent to the filing of
a suit between members of the same family, the absence
of such allegation in the complaint being assailable at any
stage of the proceeding, even on appeal, for lack of cause
of action.
The facts are stated in the opinion of the Court.
Juan Jacinto for petitioner.
Alipio V. Flores for private respondent.
BELLOSILLO, J.:
Filed by petitioner as an accion publiciana1 against
private respondent, this case assumed another dimension
when it was dismissed by respondent Judge on the ground
that the parties being brothers-in-law the complaint
should have alleged that earnest efforts were first exerted
towards a compromise.
Admittedly, the complaint does not allege that the
parties exerted earnest efforts towards a compromise and
that the same failed. However, private respondent Pedro
G. Hernando apparently overlooked this alleged defect
since he did not file any motion to dismiss nor attack the
complaint on this ground in his answer. It was only on 7
December 1992, at the pre-trial conference, that the
relationship of petitioner Gaudencio Guerrero and
respondent Hernando was noted by respondent Judge
Luis B. Bello, Jr., they being married to half-sisters hence
are brothers-in-law, and on the basis thereof respondent
Judge gave petitioner five (5) days “to file his motion and
amended complaint” to
______________
1 Docketed as Civil Case No. 10084-16 of the Regional
Trial Court, Br. XVI, Laoag City; the complaint seeking to
recover from private respondent Lot No. 15731 of the
Sarrat Cadastre, Ilocos Norte, with damages.
276
276 SUPREME COURT REPORTS ANNOTATED
275 Guerrero vs. RTC, Ilocos Norte, Br. XVI Art. 151. No suit between members of the same family
allege that the parties were very close relatives, their
respective wives being sisters, and that the complaint to
be maintained should allege that earnest efforts towards
a compromise were exerted but failed. Apparently,
respondent Judge considered this deficiency a
jurisdictional defect.
On 11 December 1992, Guerrero moved to reconsider
the 7 December 1992 Order claiming that since brothers
by affinity are not members of the same family, he was
not required to exert efforts towards a compromise.
Guerrero likewise argued that Hernando was precluded
from raising this issue since he did not file a motion to
dismiss nor assert the same as an affirmative defense in
his answer.
On 22 December 1992, respondent Judge denied the
motion for reconsideration holding that “[f]ailure to allege
that earnest efforts towards a compromise is
jurisdictional such that for failure to allege same the court
would be deprived of its jurisdiction to take cognizance of
the case.” He warned that unless the complaint was
amended within five (5) days the case would be dismissed.
On 29 January 1993, the 5-day period having expired
without Guerrero amending his complaint, respondent
Judge dismissed the case, declaring the dismissal
however to be without prejudice.
Guerrero appeals by way of this petition for review
the dismissal by the court a quo. He raises these legal
issues: (a) whether brothers by affinity are considered
members of the same family contemplated in Art. 217,
par. (4), and Art. 222 of the New Civil Code, as well as
under Sec. 1, par. (j), Rule 16, of the Rules of Court
requiring earnest efforts towards a compromise before a
suit between them may be instituted and maintained;
and, (b) whether the absence of an allegation in the
complaint that earnest efforts towards a compromise were
exerted, which efforts failed, is a ground for dismissal for
lack of jurisdiction.
The Constitution protects the sanctity of the family
and endeavors to strengthen it as a basic autonomous
social institution.2 This is also embodied in Art. 149,3 and
given flesh in Art. 151, of
________________
2 First sentence of Sec. 12, Art. II, Constitution.
3 The family, being the foundation of the nation, is a
basic social institution which public policy cherishes and
protects. Consequently,
277
VOL. 229, JANUARY 10, 1994
Guerrero vs. RTC of Ilocos Norte, Br. XVI
the Family Code, which provides:
shall prosper unless it should appear from the verified
complaint or petition that earnest efforts toward a
compromise have been made, but that the same have
failed. If it is shown that no such efforts were in fact
made, the case must be dismissed.
This rule shall not apply to cases which may not be
the subject of compromise under the Civil Code.
Considering that Art. 151 herein-quoted starts with the
negative word “No,” the requirement is mandatory4 that
the complaint or petition, which must be verified, should
allege that earnest efforts towards a compromise have
been made but that the same failed, so that, “[i]f it is
shown that no such efforts were in fact made, the case
must be dismissed.”
 Further, Art. 151 is complemented by Sec. 1, par. (j),
Rule 16, of the Rules of Court which provides as a ground
for a motion to dismiss “(t)hat the suit is between
members of the same family and no earnest efforts
towards a compromise have been made.”
The Code Commission, which drafted the precursor
provision in the Civil Code, explains the reason for the
requirement that earnest efforts at compromise be first
exerted before a complaint is given due course—
This rule is introduced because it is difficult to imagine a
sadder and more tragic spectacle than a litigation
between members of the same family. It is necessary that
every effort should be made toward a compromise before a
litigation is allowed to breed hate and passion in
__________________
the family. It is known that a lawsuit between close
relatives generates family relations are governed by law
and no custom, practice or agreement destructive of the
family shall be recognized or given effect.
4 Fule v. Court of Appeals, G.R. No. 79094, 22 June
1988, where it was held; By its very language, the Rule is
mandatory. Under the rule of statutory construction,
negative words and phrases are to be regarded as
mandatory while those in the affirmative are merely
directory (McGee v. Republic, 94 Phil. 820 [1954]). The use
of the term “shall” further emphasizes its mandatory
character and means that it is imperative, operating to
impose a duty which may be enforced (Bersabal v.
Salvador, No. L-35910, 21 July 1978, 84 SCRA 176).
278
278 SUPREME COURT REPORTS ANNOTATED
Guerrero vs. RTC, Ilocos Norte, Br, XVI
deeper bitterness than between strangers x x x x A
litigation in a family is to be lamented far more than a
lawsuit between strangers x x x x5
But the instant case presents no occasion for the
application of the above-quoted provisions. As early as
two decades ago, we already ruled in Gay on v.
Gayon6 that the enumeration of “brothers and sisters” as
members of the same family does not comprehend
“sisters-in-law.” In that case, then Chief Justice
Concepcion emphasized that “sisters-in-law” (hence, also
“brothers-in-law”) are not listed under Art. 217 of the New
Civil Code as members of the same family. Since Art. 150
of the Family Code repeats essentially the same
enumeration of “members of the family,” we find no
reason to alter existing jurisprudence on the matter.
Consequently, the court a quo erred in ruling that
petitioner Guerrero, being a brother-in-law of private
respondent Hernando, was required to exert earnest
efforts towards a compromise before filing the present
suit.
In his Comment, Hernando argues that “x x x x
although both wives of the parties were not impleaded, it
remains a truism that being spouses of the contending
parties, and the litigation involves ownership of real
property, the spouses’ interest and participation in the
land in question cannot be denied, making the suit still a
suit between half-sisters x x x x”7
Finding this argument preposterous, Guerrero
counters in his Reply that his “wife has no actual interest
and participation in the land subject of the xxx suit,
which the petitioner bought, according to his complaint,
before he married his wife.”8 This factual controversy
however may be best left to the court a quo to
_______________
5 Report of the Code Commission, cited in Vicente J.
Francisco, The Revised Rules of Court in the Philippines
(1973), Vol. I, p. 959.
6 No. L-28394, 26 November 1970, 36 SCRA 104, 108.
7 Comment, p. 2; Rollo, p. 50.
8 Reply, pp. 3-4, Rollo, pp. 58-59. Guerrero apparently
refers to the Complaint, p. 1, par. 4, Rollo, p. 20. In this
connection, he implies that he married his wife during the
effectivity of the New Civil Code hence the presumption
under Art. 119 thereof that their property relation is one
of conjugal partnership of gains. Art. 148 of the same
Code provides that property brought to the marriage as
his or her own shall be his or her own exclusive property.
279
VOL. 229, JANUARY 10, 1994
Guerrero vs. RTC, Ilocos Norte, Br. XVI
resolve when it resumes hearing the case.
As regards the second issue, we need only reiterate
our ruling in O’Laco v. Co Cho Chit,9 citing Mendoza v.
Court of Appeals,10 that the attempt to compromise as
well as the inability to succeed is a condition precedent to
the filing of a suit between members of the same family,
the absence of such allegation in the complaint being
assailable at any stage of the proceeding, even on appeal,
for lack of cause of action.
It is not therefore correct, as petitioner contends, that
private respondent may be deemed to have waived the
aforesaid defect in failing to move to dismiss or raise the
same in the Answer. On the other hand, we cannot
sustain the proposition of private respondent that the
case was, after all, also dismissed pursuant to Sec. 3, Rule
17, of the Rules of Court” for failure of petitioner to
comply with the court’s order to amend his complaint.
A review of the assailed orders does not show any
such directive which Guerrero supposedly defied. The
Order of 7 December 1992 merely gave Guerrero five (5)
days to file his motion and amended complaint with a
reminder that the complaint failed to allege that earnest
efforts were exerted towards a compromise. The Order of
22 December 1992, which denied Guerrero’s motion for
reconsideration, simply stated that “Plaintiff if it (sic) so
desire must amend the complaint otherwise, the
_______________
9G.R. No. 58010, 31 March 1993.
10No. L-23102, 24 April 1967, 19 SCRA 756, 759. In
that case, this Court through Justice J.B.L. Reyes held: x
x x x Since the law forbids a suit being initiated (filed) or
maintained unless such efforts at compromise appear, the
showing that efforts in question were made is a condition
precedent to the existence of the cause of action. It follows
that the failure of the complaint to plead that plaintiff
previously tried in earnest to reach a settlement out of
court renders it assailable for lack of cause of action and it
may be so attacked at any stage of the case even on
appeal.
11 If plaintiff fails to appear at the time of the trial, or
to prosecute his action for an unreasonable length of time,
or to comply with these rules or any order of the court, the
action may be dismissed upon motion of the defendant or
upon the court’s own motion. This dismissal shall have
the effect of an adjudication upon the merits, unless
otherwise provided by the court.
280
280 SUPREME COURT REPORTS ANNOTAT
People vs. Ablao
court will have to279
dismiss the case (italics supplied) x x x
x” The Order of 29 January 1993 dismissing the case
without prejudice only made reference to an earlier order
“admonishing” counsel for Guerrero to amend the
complaint, and an “admonition” is not synonymous with
“order.” Moreover, since the assailed orders do not find
support in our jurisprudence but, on the other hand, are
based on an erroneous interpretation and application of
the law, petitioner could not be bound to comply with
them.12
WHEREFORE, the petition is GRANTED and the
appealed Orders of 7 December 1992, 22 December 1992
and 29 January 1993 are SET ASIDE. The Regional Trial
Court of Laoag City, Branch 16, or whichever branch of
the court the case may now be assigned, is directed to
continue with Civil Case No. 10084-16 with deliberate
dispatch.
SO ORDERED.
Cruz (Chairman), Davide, Jr. and Quiason, JJ.,
concur.
Petition granted; appealed orders set aside.
——o0o——

728 SUPREME COURT REPORTS ANNOTATED
Continental Cement Corporation vs. Court of Appeals
G.R. No. 88586. April 27, 1990.*
CONTINENTAL CEMENT CORPORATION,
petitioner, vs.COURT OF APPEALS and
MUNICIPALITY OF NORZAGARAY, respondents.
Motions; Pleadings; Rules as to filing of a Motion to
dismiss by the defendant.—On the basis of the above
doctrines, the Court recapitulates the rules as follows: 1.
The trial court may in its discretion and on proper motion
extend the 15-day reglementary period for the filing of
responsive pleadings. 2. During the original reglementary
15-day period, or any extension of such period, the
defendant may file a motion to dismiss the complaint. 3. If
the motion to dismiss is denied, the defendant is allowed
another fifteen days from notice of the denial to file the
responsive pleading. The full 15-day reglementary period
starts all over again.
Same; Same; Same; Default; Default order was a
total nullity and produced no legal effect whatsoever
because it was issued even before the petitioner could file
its answer.—Accordingly, we hold that in
_______________
* FIRST DIVISION.
729
VOL. 184, APRIL 27, 1990
Continental Cement Corporation vs. Court of Appeals
issuing the order of default before the expiration of
the period for the filing of its answer, the trial court
deprived the petitioner of the opportunity to be heard in
its defense. The judgment by default thereafter rendered,
on the basis only of the evidence of the plaintiff, was
therefore also invalid. We do not agree with the
respondent court that the petitioner should have first
filed a motion to set aside the default order before
challenging the judgment by default on appeal. The
evidence that the default order was not served on the
petitioner has not been refuted. It is not explained why
the default judgment was served on the correct counsel of
the petitioner but the default order was not. At any rate,
the default order was a total nullity and produced no legal
effect whatsoever because it was issued even before the
petitioner could file its answer. This was clearly a
violation of due process.
PETITION to review the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Gil Venerando R. Racho for petitioner.
Ponciano G. Hernandez for private respondent.
CRUZ, J.:
The question involved in this case is quite simple and not
even new. A little research could have easily resolved it
and avoided this litigation that has come up all the way to
this Court. If we are rendering a full-blown decision
instead of disposing of the issue by a short resolution, it is
not only because we see the need to reiterate certain basic
rules that should be well-settled by now. What we
especially intend is to impress upon bench and bar the
value of keeping abreast of the doctrines announced by
the Court in the interpretation of its Rules.
The facts are easily recounted.
On February 1, 1985, the Municipality of Norzagaray
filed a complaint for recovery of taxes against the
petitioner in the Regional Trial Court of Malolos,
Bulacan. Before the expiration of the 15-day reglementary
period to answer, the petitioner filed two successive
motions for extension of time to file responsive pleadings,
which were both granted. The last day of the second
extension was May 28, 1985. On May 25, 1985, the
petitioner filed a motion to dismiss the complaint on the
ground
730
730 SUPREME COURT REPORTS ANNOTATED
Continental Cement Corporation vs. Court of Appeals reglementary period during which the petitioner was
of the plaintiff’s lack of capacity to sue and lack of a cause
of action. The motion729 was denied on July 16, 1985, “both
for lack of merit and for having been improperly filed.” On
July 25, 1985, the plaintiff moved to declare the petitioner
in default for having filed only the motion to dismiss and
not a responsive pleading during the extension granted.
This declaration was made on August 2, 1985, and
evidence for the plaintiff was thereafter received ex parte,
resulting in a judgment in its favor on February 4, 1986.
The judgment was affirmed by the respondent court in its
decision dated April 7, 1989,1 which is the subject of the
present petition.
Our ruling follows.
The default order was clearly erroneous and should
not have been sustained on appeal. There is no question
that the motion to dismiss was filed seasonably, within
the period of the second extension granted by the trial
court. It is true that such a motion could not be considered
a responsive pleading as we have held in many
cases.2Nevertheless, it is also true that in Section 1 of
Rule 16 of the Rules of Court, it is provided that “within
the time for pleading, a motion to dismiss the action may
be made” on the grounds therein enumerated, including
the grounds invoked by the petitioner.
Moreover, it is clearly provided in Section 4 of the
same Rule that:
Sec. 4. Time to plead.—If the motion to dismiss is denied
or if determination thereof is deferred, the movant shall
file his answer within the period prescribed by Rule 11,
computed from the time he received notice of denial or
deferment, unless the court provides a different period.
The motion to dismiss was filed on May 25, 1985, three
days before the expiration of the second extension. Notice
of its denial was served on the petitioner on July 29, 1985.
From that date, the petitioner had 15 days within which
to file its answer,
______________
1 Penned by Ejercito, J., with the concurrence of Pe
and Victor, JJ.
2 Ong Peng v. Custodio, 1 SCRA 780; Rodriguez, Sr. v.
Fernan, 3 SCRA 486; Rep. v. Ilao, 41 SCRA 106; Soledad
v. Manañgun, 8 SCRA 110; Dauden-Hernandez v. De los
Angeles, 27 SCRA 1276.
731
VOL. 184, APRIL 27, 1990
Continental Cement Corporation vs. Court of Appeals
or until August 13, 1985. It was unable to do so, however,
because of the default order issued by the trial court on
August 2, 1985. On that date, the petitioner still had
eleven days before the expiration of the 15-day
supposed to file his answer.
The respondents are reminded of our ruling in
Barraza v. Campos,3 to wit:
Under the facts of the case at bar, respondent judge had
granted petitioners an extension of fifteen (15) days to file
their answer, or up to November 18, 1978. Instead of
filing the answer, petitioners filed a Motion to Dismiss the
Complaint on November 17, 1978, one (1) day before the
expiration of the period as extended by the court. This is
clearly allowed under Section 1, Rule 16, Rules of Court.
A motion to dismiss is the usual, proper and ordinary
method of testing the legal sufficiency of a complaint. The
issue raised by a motion to dismiss is similar to that
formerly raised by a demurrer under the Code of Civil
Procedure. (Zobel v. Abreu, 98 Phil. 343). A motion to
dismiss under any of the grounds enumerated in Section
1, Rule 8 (now Section 1, Rule 16) of the Rules of Court,
must be filed within the time for pleading, that is, within
the time to answer. (J.M. Tuason v. Rafor, L-15537, June
30, 1962, 5 SCRA 478.)
Private respondents’ argument that although a
motion to dismiss interrupts the running of the period
within which to file an answer, this refers to the original
period of fifteen (15) days within which to file the
responsive pleading and not to the extension of time
within which to file the answer, is without merit. There is
nothing in the Rules which provides, directly or indirectly,
that the interruption of the running of the period within
which to file an answer when a motion to dismiss the
complaint is filed and pending before the court, refers
only to the original period of fifteen (15) days and not to
the extension of time to file the answer as granted by the
court. It may be true that under Section 4 of Rule 16, if
the motion to dismiss is denied or if the termination
thereof is deferred, the movant shall file his answer
within the time prescribed by Rule 11, computed, from the
time he received notice of the denial or deferment, unless
the court provides a different period.
This Section 1 of Rule 11 in relation to Section 4 of
Rule 16 allows the defendant to file his answer not only
within the original fifteen
_______________
3120 SCRA 881; see also B.A. Finance Corp. v.
Pineda, 119 SCRA 493.
732
732 SUPREME COURT REPORTS ANNOTATED
Continental Cement Corporation vs. Court of Appeals
(15) days period but also within “a different period (as)
fixed by the court.” (Emphasis supplied.)
The above ruling was a reiteration of Mandac v.
Gumarad,4where we also set aside a default order upon a
showing that the motion to dismiss was filed before the
expiration of the extension granted by the trial court for
the filing of the answer.
As for the period allowed the defendant to file its
answer following the denial of the motion to dismiss, the
Court clearly held thus in Acosta-Ofalia v. Sundiam:5
x x x the period for filing a responsive pleading
commences to run all over again from the time the
defendant receives notice of the denial of his motion to
dismiss.
In the case at bar, the petitioners received the notice
of the denial of their motion to dismiss on September 24,
1975. Hence, they had fifteen (15) days from said date or
up to October 9, 1975, within which to file their answer.
The petitioners were declared in default on September 29,
1975, i.e., ten (10) days before the expiration of the time
for filing their answer. Obviously, the order of default
made on September 19, 1975, was premature and is,
therefore, null and void as well as the reception of private
respondents’ evidence ex parte, the decision rendered
thereon, and the writ of execution, having been predicated
on a void order of default.
Manifestly, respondent Judge acted with grave abuse
of discretion when he declared the petitioners in default.
(Emphasis supplied.)
On the basis of the above doctrines, the Court
recapitulates the rules as follows:
1. 1.The trial court may in its discretion and on
proper motion extend the 15-day reglementary
period for the filing of respon-sive pleadings.
2. 2.During the original reglementary 15-day
period, or any extension of such period, the
defendant may file a motion to dismiss the
complaint.
3. 3.If the motion to dismiss is denied, the
defendant is allowed another fifteen days from
notice of the denial to file the responsive
pleading. The full 15-day reglementary period
starts all
______________
487 Phil. 278.
585 SCRA 412.
733
VOL. 184, APRIL 27, 1990
Continental Cement Corporation vs. Court of Appeals
over again.
Accordingly, we hold that in issuing the order of
default before the expiration of the period for the filing of
its answer, the trial court deprived the petitioner of the
opportunity to be heard in its defense. The judgment by
default thereafter rendered, on the basis only of the
evidence of the plaintiff, was therefore also invalid.
We do not agree with the respondent court that the
petitioner should have first filed a motion to set aside the
default order before challenging the judgment by default
on appeal. The evidence that the default order was not
served on the petitioner has not been refuted. It is not
explained why the default judgment was served on the
correct counsel of the petitioner but the default order was
not.6 At any rate, the default order was a total nullity and
produced no legal effect whatsoever because it was issued
even before the petitioner could file its answer. This was
clearly a violation of due process.
We come finally to the timeliness of the present
petition.
The private respondent contends that it was filed out
of time on July 22, 1989, because the appealed decision
had already become final and executory before that date.
The record shows that the decision of the Court of
Appeals was rendered on April 7, 1989, and notice thereof
was served on the petitioner on April 17, 1989. On April
28, 1989, the petitioner filed a motion for reconsideration,
which was denied on June 1, 1989. Notice of the denial
was served on June 8, 1989, and on June 21, 1989, the
petitioner asked this Court for a 30-day extension within
which to file the present petition. The extension was
granted up to July 23, 1989.
The private respondent contends that the petition
was filed late because the 15-day reglementary period
should be counted from April 17, 1989, when the decision
of the respondent court was served on the petitioner. Its
reason is that the motion for reconsideration was pro
forma and did not suspend the running of the said period,
which thus expired on May 3, 1989. The basis of this
argument is the wording of the denial, which ran as
follows:
_______________
6Rollo, pp. 9, 10, 88.
734
734 SUPREME COURT REPORTS ANNOTAT
Continental Cement Corporation vs. Court of Appeals
The issues raised and the arguments contended in the
Motion for Reconsideration of defendant-appellant are the
same issues and arguments presented in the appellant’s
brief, reply brief and
733 supplemental reply brief, which have
been discussed in plaintiff-appellee’s brief and resolved in
the decision of this Court dated April 7, 1989.
After close scrutiny of the Motion for Reconsideration,
We find no cogent reason to reverse Our decision.
WHEREFORE, the Motion for Reconsideration is
DENIED for lack of merit.7
While mindful of the decision cited by the private
respondent,8 we call attention to our later pronouncement
on this matter, in the case of Siy v. Court of Appeals:9
In the first place, the very purpose of a motion for
reconsideration is to point out the findings and
conclusions of the decision which in the movant’s view,
are not supported by law or the evidence. The movant,
therefore, is very often confined to the amplification on
further discussion of the same issues already passed upon
by the court. Otherwise, his remedy would not be a
reconsideration of the decision but a new trial or some
other remedy.
Conformably, we must hold that the motion for
reconsideration was not pro forma. Hence, it did have the
effect of suspending the reglementary period of appeal
until the denial of the motion was notified to the
petitioner.
The rest of the petition deals with the substantive
issue of whether the respondent Municipality of
Norzagaray has the power to impose business taxes on
the petitioner as a manufacturer and distributor of
cement. This issue involves not only legal but also factual
considerations that have not been fully examined because
the petitioner was not given its day in court. A fair
resolution of this issue requires a hearing where both
parties will be given an opportunity to present their
respective sides in accordance with the procedure
prescribed by the Rules of Court. No less than full
compliance with procedural due

______________

7 Resolution denying the petitioner’s motion for

reconsideration promulgated on June 1, 1989; rollo, p. 80.

8 Dacanay v. Alvendia, 30 SCRA 40.
9 138 SCRA 536.

735
VOL. 184, APRIL 27, 1990 735
Continental Cement Corporation vs. Court of Appeals
process will suffice. Hence, it is imperative that this case
be remanded to the court a quo for a full trial on the
merits.
WHEREFORE, the decision of the respondent court
dated April 7, 1989, the default order of the trial court
dated August 2, 1985, and the judgment by default dated
February 4, 1986, are SET ASIDE. Civil Case No. 7971-M
is REMANDED to the Regional Trial Court of Malolos,
Bulacan, for further proceedings in accordance with the
rules laid down in this decision. Costs against respondent
Municipality of Norzagaray.
SO ORDERED.
Narvasa (Chairman), Gancayco, Griño-
Aquino and Medialdea, JJ., concur.
Decision set aside. Case remanded to the RTC of
Malolos, Bulacan for further proceedings.
Note.—Appeal from judgment by default is proper
upon denial of petition for relief. (Aguilar vs. Chan, 144
SCRA 673.)

——o0o——

736
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576 SUPREME COURT REPORTS ANNOTATED
Borje vs. CFI of Misamis Occidental, Br. II
No. L-48315. February 27, 1979.*
ATTY. DOMINADOR B. BORJE, petitioner, vs. HON.
COURT OF FIRST INSTANCE OF MISAMIS
OCCIDENTAL, BRANCH II, VIOLETA GALICINAO;
MISAMIS OCCIDENTAL WATER DISTRICT, and THE
CHAIRMAN OF THE BOARD, respondents.
Actions; The dismissal of an action on a ground not
cited in the motion to dismiss is improper because the
Court thereby prevents the plaintiff from arguing the point
in question.—Indeed, respondent Court acted with grave
abuse of discretion if not in excess of its jurisdiction in
dismissing the case. Firstly, the said order of dismissal
dated March 9, 1978 is not premised on lack of
jurisdiction or on the pendency of another case between
the same parties for the same cause—the grounds alleged
by private respondents in their motion to dismiss. On this
score, it has been held in the case of Malig, et al. vs. Bush,
that dismissal of actions on grounds not alleged in the
motion to dismiss is improper for in so doing, a court in
effect dismisses an action motu proprio without giving the
plaintiffs a chance to argue the point and without
receiving any arguments or evidence on the question.
Same; Except on grounds allowed by the Rules of
Court a Trial Court cannot order the dismissal of an
action unless a motion to dismiss is filed.—In the light of
this express requirement we do not believe that the court
had power to dismiss the case without the requisite
motion duly presented. x x x The only instance in which,
according to said Rules, the court may dismiss upon the
court’s own motion an action is, when the “plaintiff fails to
appear at the time of the trial or to prosecute his action
for an unreasonable length of time or to comply with the
Rules or any order of the court.
Same; A trial court may not order a complaint
dismissed without first ordering a heaving where there are
factual issues involved. A trial of the case on the merits
should be ordered.—Verily, the above discussion shows
the need of presentation of proof for the respective
allegations of the parties. For the respondent Court to
make a summary finding of lack of malice or bad faith on
the part of private respondents from those controverted
facts and then decree the dismissal of the case is,
therefore, violative of due process. In view of
_______________
* FIRST DIVISION.
577
VOL. 88, FEBRUARY 27, 1979
Borje vs. CFI of Misamis Occidental, Br. II
the exercise-of sound discretion, should have
refused to consider and decide in a summary manner and
should have allowed the parties to present proof in
support of their respective stand. This is because the right
to a hearing, which is the right of the parties interested or
affected to present their respective cases and submit
evidence in support thereof, is one of the primary cardinal
rights of litigants.
ORIGINAL ACTION for certiorari and/or mandamus.
The facts are stated in the opinion of the Court.
Dominador B. Borje in his own behalf.
GUERRERO, J.:
The cause for certiorari and/or mandamus brought to the
attention of this Court in this case is the alleged grave
abuse of discretion amounting to lack of jurisdiction of
respondent Court of First Instance of Misamis Occidental,
Branch II, for dismissing the complaint for damages of
petitioner in Civil Case No. OZ 686, entitled “Atty.
Dominador B. Borje vs. Violeta Galicinao, et al.” without
conducting any hearing despite the existence of
controverted facts that needed to be proved.
Petitioner alleged that he is the counsel of the water
consuming public of Ozamiz City who were indignant
against the increase of water rates imposed by respondent
Misamis Occidental Water District and who thereby
resorted to court action for redress and/or remedy. After
acceptance of the retainer as counsel plus the consequent
representation of the consumers also in debates and
discussions in the air, he allegedly received water bills
from the Water District without indication of the meter
readings, the number of cubic meters consumed and the
amounts to be paid. So he refused to pay the “blank bills.”
For such failure, petitioner’s water service was cut on
February 6, 1978.
By reason of these acts of “harassment” of private
respondents resulting in his “humiliation” as well as
unlawful deprivation of a life’s necessity, petitioner
brought Special Civil Case No. OZ 686, an action for
damages with preliminary mandatory injunction, before
respondent Court. 577
578
578 SUPREME COURT REPORTS ANNOTATED
Borje vs. CFI of Misamis Occidental, Br. II damages which could be proved by him in an impartial
Acting on the prayer incorporated therein for preliminary
mandatory injunction, respondent Court issued an order
dated February 8, 1978 enjoining respondents from
disconnecting the577water service of petitioner. Upon
learning that the same was already cut, the Court issued
another order reconnect it immediately.
On February 15, 1978, private respondents filed a
motion to dismiss the complaint on two grounds, namely:
a lack of jurisdiction of respondent Court allegedly
because the “main thrust of the subject and nature of the
action or suit appearing in the complaint is clearly within
the field of special civil action or suit action or special
proceeding”1 and (b) there is another action pending
between the same parties for the same cause, referring to
Special Civil Case No. 0390.
On February 27, 1978, petitioner filed an opposition
thereto stating that the issues raised are justiciable and a
court of general jurisdiction has the authority to try the
case. He further contended that Special Civil Case No.
0390, which questioned the increased water rates
unilaterally imposed by the Misamis Occidental Water
District, the constitutionality of Presidential Decree No.
198 and the selection of the members of the Board of
Directors, is entirely different from Civil Case No. OZ-
686, which is an action for damages due to the
harassment committed by private respondents on
petitioner.
Surprisingly though, respondent Court, through Hon.
Melecio A. Genato, a temporary judge assigned thereat,
issued an order dated March 9, 1978 dismissing the case
not on the basis of the grounds alleged by private
respondents in their motion to dismiss but on the grounds
that there was no malice or bad faith in the severance of
the water connection of petitioner and that private
respondent had already reconnected the same. The
dispositive portion thereof states:
“WHEREFORE, the above entitled case is hereby
dismissed for being moot and academic without
pronouncement as to costs. SO ORDERED.”2
_______________
1Annex “B”, Petition, p. 15, Rollo.
2Annex “D”, Petition, p. 20, Rollo.
579
VOL. 88, FEBRUARY 27, 1979
Borje vs. CFI of Misamis Occidental, Br. II
A motion for reconsideration was thus filed by petitioner
where he assailed the said order of dismissal for having
been rendered in violation of Section 1, Rule 36, Revised
Rules of Court and for not being correct because although
his water service has been reconnected, he has suffered
proceeding. He also assailed the said order, denominating
it as a “midnight order” because on March 9, 1978, “the
Clerk of Court officially showed Hon. Melecio A. Genato
the telegram of Hon. Bienvenido A. Ebarle to schedule
trials from March 10, 1978 to March 17, 1978 indicating
that he has already and previously taken his oath.”3
An opposition thereto was filed by private
respondents disputing only the claim of petitioner that
the order dated March 9, 1978 was a midnight order.
Petitioner filed a “rejoinder” reiterating that the order of
dismissal is a midnight order citing the cases of Siazon vs.
Hon. Judge of CFI of Cotabato, Branch II, L-29354,
January 27, 1969, 26 SCRA 664 and Li Siu Liat vs.
Republic of the Philippines, L-25356. November 26,
1967, 21 SCRA 1039. By reason of the number of
arguments on the issue of whether the order dated March
9, 1978 is a midnight order or not, the respondent Court,
through Hon. Bienvenido A. Ebarle, considered the
motion for reconsideration as mainly anchored on the lack
of authority of Judge Genato. In denying the said motion,
the Court held in an order dated April 18, 1978, as
follows:
“While it may be true that Judge Genato might not have
the authority anymore to issue the said order in view of
the pertinent citations made by plaintiff, the more
important thing to consider is the intrinsic merit of the
complaint in relation to the order of dismissal. The Court
has gone over the pleadings of both parties, closely
studied the issues involved, and weighed the
preponderance of their implication carefully.
“The cause of action as admitted by plaintiff is the
alleged arbitrary disconnection by defendants of plaintiff’s
water pipes. However, it appears that plaintiff was not
singled out in the matter of water pipes disconnection, for
aside from him, there were three
_______________
3 Annex “E”, Petition, p. 21, Rollo.
580
580 SUPREME COURT REPORTS ANNOTATED
Borje vs. CFI of Misamis Occidental, Br. II academic.
other consumers whose connections were ordered cut and
in fact disconnected about the same time and/or occasion,
an official act of defendants indicating absence of malice.”4
In assailing the order of dismissal dated March 9, 1978
which was affirmed in the order dated April 18, 1978,
petitioner contends In this instant petition for certiorari
and/or mandamus with this Court that said dismissal
cannot be on lack of cause of action because the complaint
alleged sufficient facts to show that his rights have been
seriously violated by private respondents. He also argues
that it cannot be a judgment on the pleadings because the
facts are controverted. He thereby concludes that
respondent Court has gravely abused its discretion
amounting to lack or excess of jurisdiction when it
dismissed the case without any evidence presented by
both parties in support of their respective positions
considering that the allegations of that he has no appeal
nor any plain, speedy and adequate remedy in the
ordinary course of law, except this present petition.
Indeed, respondent Court acted with grave abuse of
discretion if not in excess of its jurisdiction in dismissing
the case. Firstly, the said order of dismissal dated March
9, 1978 is not premises on lack of jurisdiction or on the
pendency of another case between the same parties for
the same cause—the grounds alleged by private
respondents in their motion to dismiss. On this score, it
has been held in the case of Malig, et al. vs. Bush,5 that
dismissal of actions on grounds not alleged in the motion
to dismiss is improper for in so doing, a court in effect
dismisses an action motu proprio without giving the
plaintiffs a chance to argue the point and without
receiving any arguments or evidence on the question.
But while in the aforecited Malig case, the order of
dismissal is based on one of the grounds enumerated in
Section 1 of Rule 16, Revised Rules of Court, namely:
prescription, the order herein brought to Us for review is
not based on any of them. In a rather summary fashion,
respondent Court made a finding on
_______________
4Annex “H”, Petition, pp. 27-28. Rollo.
5G.R. No. L-22761, May 31, 1969, 28 SCRA 449.
581
VOL. 88, FEBRUARY 27, 1979
Borje vs. CFI of Misamis Occidental, Br. II
the basis merely of the pleadings filed and without
conducting any hearing, that there is no malice or bad
faith on the part of private respondents in their act of
severing petitioner’s water supply. Respondent court also
noted the fact that private respondents had reconnected
the water pipes or water service of petitioner and
erroneously concluded that the case has become moot and
To all intents and purposes, respondent Court
decreed the dismissal on its own initiative as in the case
of Manila Herald Publishing Co., Inc. vs. Ramos, et
al.6 where neither a motion to dismiss nor an answer had
been made when the decision was handed down. In
granting the writ of certiorari, this Court ruled therein
that: “Section 1 of Rule 8 (now Section 1 of Rule 16)
enumerates the grounds upon which an action may be
dismissed, and it specifically ordains that a motion to this
end be filed. In the light of this express requirement we do
not believe that the court had power to dismiss the case
without the requisite motion duly presented. x x x The
only instance in which, according to said Rules, the court
may dismiss upon the court’s own motion on action is,
when the “plaintiff fails to appear at the time of the trial
or to the prosecute his action for an unreasonable length
of time or to comply with the Rules or any order of the
court.”
The real cause for concern, though, is not so much the
dismissal of the case for lack of presentation of the
requisite motion but rather the dismissal thereof without
affording petitioner an opportunity to be heard despite
the presence of factual issues that needed to be proved.
In the case at bar, respondents premised their right
to cut off the water service connection on the violation of
petitioner’s water service contract7 which is the contract
signed by petitioner with the National Waterworks and
Sewerage Authority on September 16, 1958 to which
private respondent Misamis Occidental Water District
claims it has been subrogated. The said contract provides
the following:
_______________
688 Phil. 94.
7Annex “4-a”, Respondents’ Comment, p. 57, Rollo.
582
582 SUPREME COURT REPORTS ANNOTAT
Borje vs. CFI of Misamis Occidental, Br. II
“3. To pay monthly the NWSA for the water service
furnished upon presentation of the bill or within thirty
(30) days from its presentation.”
“6. That the NWSA may disconnect the service upon
violation of the term
581of the contract.”
In addition to the said contract, private respondents also
presented their “Notice to the Public”8 where the water
consumers were likewise informed that upon failure to
settle their bills within the collection period, their water
service will be shut off. Thirdly, they annexed to their
comment on this petition a facsimile copy of the monthly
bill9 furnished each water consumer wherein it is stated
that “service may be disconnected immediately if payment
of the bill is not made to the field collector after due date.”
Indeed, all these empower the private respondents to
disconnect the water service of the consumers upon
failure to pay. But the question posed by petitioner is
whether or not there is really failure to pay on his part. It
is his contention that there is no failure as he was sent
water bills that did not indicate the meter readings, the
number of cubic meters consumed and the amount to be
paid.
Inasmuch as private respondents deny these
allegations of petitioner, an issue of fact exists that
requires presentation of proof. If the allegations of
petitioner are true, private respondents are not at all
authorized to cut off his water service as the collection
period as to him would not have even started yet. For an
obligation to become due there must be a
demand.10 Default generally begins from the moment the
creditor demands the performance of the obligation.
Without such demand, judicial or extra-judicial, the
effects of default will not arise. It is to be noted that
private respondents attached to their comment on this
petition only a facsimile copy of the water bill issued to
consumers while they presented to this Court a xerox copy
of the contract between NWSA and the petitioner, and a
_______________
8 Annex “4-k”, Respondents’ Comment, p. 67, Rollo.
9 Annex “4-1”, Respondents’ Comment, p. 69, Rollo.
10 Art. 1169, New Civil Code.
583
VOL. 88, FEBRUARY 27, 1979
Borje vs. CFI of Misamis Occidental, Br. II
xerox copy of the final notice, not just facsimiles thereof.
Although the issue of the effectivity of the denial of
private respondents as to the alleged sending of blank
bills is not for this Court to determine, it would not be
amiss to state that private respondents could have easily
annexed also a xerox copy of the water bill sent to
petitioner, if only to belie the latter’s claims.
At any rate, private respondents also argue that
petitioner could have paid his account when the final
notice11 to pay was sent him since lie was then already
certain of the amount of the bill. This final notice is the
notice of disconnection, served on the day the service was
cut off.
Petitioner, however, contends that this was the first
time he ever came to know of the sum due from him and
besides, he claims that only the total amount due for the
months of November and December, 1977 was stated.
There is no specification of the amount due for each
month, the meter readings and the number of cubic
meters consumed, thus, leaving him uncertain as to how
the amount was arrived at. Assuming the truth of these
allegations, private respondents would not have been
entitled still to cut off petitioner’s water supply at the
time they cut if off as the demand did not contain the
requisite details and hence, improper. And even if the
sufficiency of the demand is conceded, petitioner has still
thirty days from date of such knowledge within which to
pay the same in accordance with the contract and the
avowed policy of the water district.
Verily, the above discussion shows the need of
presentation of proof for the respective allegations of the
parties. For the respondent Court to make a summary
finding of lack of malice or bad faith on the part of private
respondents from those controverted facts and then
decree the dismissal of the case is, therefore, violative of
due process. In view of the doubtful question of facts
presented herein, respondent court, in the exercise of
sound discretion, should have refused to consider and
decide in a summary manner and should have allowed the
parties to present proof in support of their respective
stand. This
_______________
11 Annex “4-N”, Respondents’ Comment, p. 72, Rollo.
584
584 SUPREME COURT REPORTS ANNOTATED
Borje vs. CFI of Misamis Occidental, Br. II scheduled time is not enough ground to dismiss the case
ties interested or affected to present their respective cases
and submit evidence in support thereof, is one of the
primary cardinal rights of litigants.
The importance583of this right has been underscored in
several cases of this nature decided by this Court. In one
of such cases, De Leon vs. Henson,12 this Court ruled that
the dismissal of an action upon a motion to dismiss
constitutes a denial of due process, if, from a
consideration of the pleadings, it appears that there are
issues of fact which cannot be decided without a trial of
the case on the merits. Similarly, in Constantino vs.
Estenzo,13 citing Garanciang, et al. vs. Garanciang, et
al.14 and Boñaga vs. Soler,15this Court held as follows:
“x x x Summary or outright dismissals of actions are not
proper where there are factual matters in dispute which
need presentation and appreciation of evidence. The
demands of a fair, impartial and wise administration of
justice call for faithful adherence to legal precepts on
procedure which ensure to litigants the opportunity to
present their evidence and secure a ruling on all the
issues presented is their respective pleadings. ‘Short cuts’
in judicial processes are to be avoided where they impede
rather than promote a judicious dispensation of justice.”
WHEREFORE, the petition for certiorari and/or
mandamus is hereby GRANTED, the Orders dated March
9, 1978 and April 18, 1978 dismissing the complaint of
petitioner for damages and denying the motion for
reconsideration thereof, respectively, are set aside for
being null and void, and respondent Court of First
Instance of Misamis Occidental, Branch II is hereby
ordered to try the case on the merits after conducting a
pre-trial conference.
Teehankee (Chairman), Makasiar, Fernandez, D
e Castro and Melencio-Herrera, JJ., concur.
Petition granted.
_______________
12 L-11639, April 29, 1961, 1 SCRA 1171.
13 L-40403, July 31, 1975, 65 SCRA 675.
14 L-22351, May 21, 1969, 28 SCRA 229.
15 L-15717, June 30, 1961, 2 SCRA 755.
585
VOL. 88, FEBRUARY 27, 1979
Borje vs. CFI of Misamis Occidental, Br. II
Notes.—The dismissal of a case may be made by the
court motu proprio upon the assumption that the plaintiff
already lost interest in prosecuting the case to its final
termination. (Ventura vs. Baysa, 4 SCRA 167). Such a
dismissal has the ef
fect of an adjudication on the merits unless otherwise
provided for in the order of dismissal. (Ibid.)
Counsel’s act in coming ten minutes late of the
definitely. (Go Lea Chu vs. Gonzales, 22 SCRA 766).
A purely capricious dismissal of an information
deprives the State of a fair opportunity to prosecute and
convict. It denies the prosecution a day in court. It is a
dismissal without due process. (People vs. Gomez, 20
SCRA 293).
Where all the facts upon which the trial court based
its resolution are still in the pleadings, a petition may be
dismissed on mere motion without further proof.
(Philippine Independent Church vs. Mateo, 1 SCRA 1119).
Under Section 1, Rule 8 of the Rules of Court, a
motion to dismiss for any of the grounds therein
enumerated—pendency of another action is one of them—
must be filed within the time for pleading, that is, within
the time to answer. When he defendant filed his motion to
dismiss 25 days after he filed his answer, he violated said
requirement, and his motion was properly denied. (J.M.
Tuason & Co., Inc. vs. Rafor, 5 SCRA 478.)
Under Rule 8 of the Rules of Court, a motion to
dismiss, unlike a demurrer provided for in the old Code of
Civil Procedure, may be based on facts not alleged in the
complaint. (Canite vs. Madrigal & Co., Inc., 5 SCRA 943.)
A motion to dismiss is not a responsive pleading.
Hence, there is no need for the court to allow the
admission of an amended complaint which is filed after
the defendant files a motion to dismiss but before the
filing of an answer. (Soledad vs. Mamañgon, 8 SCRA
110.)
——o0o——
586
© Copyright 2018 Central Book Supply, Inc. All rights
reserved.
585

VOL. 469, SEPTEMBER 9, 2005
Danfoss, Inc. vs. Continental Cement Corporation
G.R. No. 143788. September 9, 2005.*
DANFOSS, INC., petitioner, vs. CONTINENTAL
CEMENT CORPORATION, respondent.
Remedial Law; Actions; Dismissals; In order to
sustain a dismissal on the ground of lack of cause of
action, the insufficiency must appear on the face of the
complaint; Test to determine the sufficiency of the facts
alleged in the complaint to constitute a cause of action.—
In order to sustain a dismissal on the ground of lack of
cause of action, the insufficiency must appear on the face
of the complaint. And the test of the sufficiency of the
facts alleged in the complaint to constitute a cause of
action is whether or not, admitting the facts alleged, the
court can render a valid judgment thereon in accordance
with the prayer of the complaint. For this purpose, the
motion to dismiss must hypothetically admit the truth of
the facts alleged in the complaint.
PETITION for review on certiorari of the decision and
resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Cesar C. Cruz and Partners for petitioner.
_______________
*THIRD DIVISION.
506
506 SUPREME COURT REPORTS ANNOTATED
Danfoss, Inc. vs. Continental Cement Corporation
Pangilinan, Britanico, Sarmiento & Franco Law
Officesfor respondent.
CORONA, J.:
This is a petition for review on certiorari under Rule 45 of
the 1997 Rules on Civil Procedure of the February 11,
2000 decision1 of the Court of Appeals in CA-G.R. No. SP-
55645, and its resolution dated June 7, 2000 denying
petitioner’s motion for reconsideration.
The antecedents show that on November 5, 1998,
respondent Continental Cement Corporation (CCC) filed a
complaint for damages against petitioner DANFOSS and
Mechatronics Instruments and Controls, Inc. (MINCI)
before the Regional Trial Court of Quezon City, Branch
80, alleging that:
xxx xxx xxx
1. 6.On 1 September 1997, Plaintiff CCC
purchased from defendant MINCI two (2) unit
505
132 KW Danfoss Brand Frequency
Converter/Inverter for use in the Finish Mill of
its Cement Plant located in Barrio Bigte,
Norzagaray, Bulacan. The said purchase is
covered by a Purchase [Order] (PO) No.
36625….
1. 6.1Under the terms and conditions of the
purchase order, the delivery of the two (2) unit
Frequency Converter are to be delivered
within eight (8) to ten (10) weeks from the
opening of the letter of credit;
1. 7.Defendant MINCI, immediately relayed the
purchase order of plaintiff CCC to the other
defendant DANFOSS, represented by Messrs.
Klaus Stove and Hans Vigaard, who in turn
forwarded the same to their Asian Regional
Office in Singapore and Head Office in
Denmark for the shipment of the orders to the
Philippines.
1. 7.1Defendant DANFOSS’ commitment to deliver
the two (2) unit Danfoss Brand Frequency
Converter/Inverter to
_______________
1 Penned by Associate Justice Jose L. Sabio, Jr., and
concurred in by Associate Justice Eubulo G. Verzola and
Associate Justice Martin S. Villarama, Jr., Special Tenth
Division, Rollo, pp. 46-50.
507
VOL. 469, SEPTEMBER 9, 2005
Danfoss, Inc. vs. Continental Cement Corporation
plaintiff CCC was relayed by defendant MINCI to CCC
upon the assurance of Messrs. Stove and Vigaard of
DANFOSS.
1. 8.On September 1997, plaintiff CCC received
the pro-forma invoice of defendant MINCI
through fax transmission dated 2 September
1998, indicating the mode of payment through
irrevocable letter of credit in favor of Danfoss
Industries Pte. Ltd. …
1. 8.1Plaintiff CCC executed and opened a letter of
credit under LC No. 970884 in favor of
DANFOSS INDUSTRIES PTE. LTD., with
address at 6 Jalan Pesawat, Singapore
619364, which is the Asian Regional Office of
defendant DANFOSS …
1. 9.Defendant MINCI informed plaintiff CCC
through fax transmission dated 17 September
1997, that the two (2) unit Frequency
Converter/Inverter are ready for shipment,
and at the same time requested for the
amendments of the letter of credit changing
the port of origin/loading from Singapore to
Denmark….
1. 9.1In compliance, plaintiff CCC amended the
letter of credit changing the port of origin from
Singapore to Denmark….
1. 10.On 6 November 1997, defendant MINCI
informed plaintiff CCC that Danfoss
Industries Pte. Ltd. was still checking the
status of the shipment of the two (2) unit
Frequency Converter/Inverter with Danfoss
Denmark.
1. 10.1In reply, plaintiff CCC through a letter
dated 7 November 1997, reiterated its demand
that every delay in the shipment of the two (2)
unit Frequency Converter/Inverter will cause
substantial losses in its operations and
requested for the early work out and the
immediate shipment of the frequency
converter to avoid further loss to the
company….
1. 11.However, on 9 November 1997, defendant
DANFOSS, informed the other defendant
MINCI507through fax transmission, copy
furnished plaintiff CCC, that the reason why
DANFOSS has delivery problems was that
some of the supplied components for the new
VLT 5000 series did not meet the agreed
quality standard. That means that their
factory was canvassing for another supplier.
And at that moment, there was no clear
message when normal production will
resume….
2. 12.Due to this information received, plaintiff
CCC surmised that defendants MINCI and
DANFOSS could not be able to deliver
508
508 SUPREME COURT REPORTS ANNOTAT
Danfoss, Inc. vs. Continental Cement Corporation
 1. the two (2) unit Frequency Converter within the
maximum period of ten (10) weeks period from
the opening of the Letter of Credit, as one of
the conditions in the Purchase Order dated 1
September 1997.
1. 12.1Thereafter, no definite commitment was
received by plaintiff CCC from defendants
MINCI and DANFOSS for the delivery of the
two (2) unit Frequency Converter.
1. 13.By reason of the delay of the defendants
MINCI and DANFOSS to deliver the two (2)
unit Frequency Converter/Inverter under PO
No. 36625, plaintiff CCC, through its
Purchasing Manager, informed defendant
MINCI in a letter dated 13 November 1997, of
the plaintiff’s intention to cancel the said
order….
1. 13.1As a consequence thereof, plaintiff CCC has
suffered an actual substantial production
losses in the amount of Eight Million Sixty-
four Thousand Pesos (P8,064,000.00) due to
the time lost and delay in the delivery of the
said two (2) unit Frequency
Converter/Inverter. Likewise, plaintiff CCC
was compelled to look for another supplier.
x x x x x x x x x2
On February 17, 1999, petitioner DANFOSS filed a
motion to dismiss the complaint on the ground that it did
not state a cause of action:
xxx xxx xxx
The above allegations of the complaint clearly
establish the following key constitutive facts:
1. 1.Defendant’s period of delivery is from 8 to 10
weeks from the opening of the letter of credit
on September 9, 1997 or until November 19,
1997.
2. 2.Defendant Danfoss, although having problems
with its supplier during the period prior to
defendant’s cancellation, nevertheless,
plaintiff never alleged that Danfoss Denmark
cannot perform its obligation to deliver by the
10th week or on November 20, 1997.
Admittedly, plaintiff only surmised that
defendant Danfoss could not deliver.
_______________
2 Rollo, pp. 55-61.
509
VOL. 469, SEPTEMBER 9, 2005
Danfoss, Inc. vs. Continental Cement Corporation
1. 3.Before the period for delivery has expired on
November 19, 1997, the plaintiff cancelled its
order on November 13, 1997. The cancellation
took place seven (7) days before the expiry of
the defendant’s obligation to deliver on
November 19, 1997.
2. 4.Neither plaintiff nor defendant Danfoss
changed the date of delivery, what plaintiff
changed in the letter of credit was only the
port of origin/loading from Singapore to
Denmark. The period of delivery as stipulated
in the pro forma invoice issued by defendant
MINCI remained intact, that is for a period of
6 to 10 weeks from the opening of the letter of
credit on September 9, 1997 or until November
19, 1997 was still in force when the plaintiff
cancelled its order on November 13, 1997.
Defendant Danfoss has not incurred in delay
and has 7 days more within which to make
delivery. Plaintiff, having cancelled the order
on November 13, 1997 before the expiry of
defendant Danfoss’ delivery commitment,
defendant Danfoss’s principal could not have
been in default.
3. 5.Plaintiff never made an extrajudicial demand
for the delivery of two (2) units Frequency
Converter on its due date. On the contrary, as
above alleged, plaintiff cancelled its order on
November 13, 1997.
4. 6.Plaintiff’s claim for damages could not have
accrued until after defendant incurred in
delay.
The above allegations neither prove any right of the
plaintiffs arising from the transactions nor a violation of
such right. It is submitted that this Honorable Court
based on the complaint, cannot render a valid judgment
against the defendant Danfoss. The plaintiff’s cause of
action against Danfoss or plaintiff’s right to demand
delivery cannot arise earlier than November 19, 1997,
which is the last day for the defendant Danfoss’s principal
(Danfoss Denmark) to deliver the two (2) units Frequency
Converter. As admitted by the plaintiff, it cancelled its
order on November 13, 1997, or six (6) days before the
expiry of the defendant’s obligation to deliver. Indeed,
defendant Danfoss’s obligation to deliver is not yet
demandable. The period of 8 to 10 weeks for the delivery
of plaintiff’s purchase order of two (2) units Frequency
Converter was established for the benefit of both the
plaintiff and the defendant Danfoss. As such, plaintiff
cannot demand delivery before the period stipulated….
509
xxx xxx xxx
510
510 SUPREME COURT REPORTS ANNOTAT
Danfoss, Inc. vs. Continental Cement Corporation
From the allegations of the complaint, there is also no
clear and categorical demand for the fulfillment of the
plaintiff’s obligation to deliver by the 10th week or on
November 19, 1997.
WHEREFORE, it is respectfully prayed of this
Honorable Court that the Complaint be dismissed for
failure to state a cause of action.3
The court a quo denied the motion to dismiss in its
order4dated May 28, 1999, holding that:
xxx xxx xxx
“In the Court’s opinion, the issue of whether or not
the defendants incur delay in the delivery of the
equipment in question within the period stipulated is a
debatable question which necessitates actual trial on the
merits where the parties have to adduce evidence in
support of their respective stance.
While the defendants contend that the stipulated
period of delivery had not lapsed yet when the plaintiff
cancelled its order of the two equipments in question as
the cancellation took place seven (7) days before the
expiry date of the defendants’ obligation to deliver, the
plaintiff’s position is that the acts of the defendants had
made compliance with their obligation to deliver within
the period stipulated, impossible, hence, there was no
need for a demand as the law provides that “when
demand would be useless, as when the obligor has
rendered it beyond his power to perform.” The plaintiff’s
contention if properly and strongly supported by evidence
during the hearing of the merits of the case may well
negates (sic) the defendant’s contrary stand.
As to the argument of the defendant MINCI that it
cannot be held liable jointly with the defendant Danfoss
due to the fact that it was merely an “agent” of Danfoss,
the Court finds the same a debatable issue considering
the stand of plaintiff that the defendant MINCI dealt with
the former not as an agent but also as a principal. The
issue at hand necessitates the presentation of evidence
which has to be done during the hearing on the merits of
the case where the issue of damages incurred by either of
the parties may well be
_______________
Rollo, pp. 82-89.
3
Penned by Judge Agustin S. Dizon, RTC, Branch 80,
4
Quezon City.
511

VOL. 469, SEPTEMBER 9, 2005
Danfoss, Inc. vs. Continental Cement Corporation
taken up and judgment be rendered after presentation of
evidence by the parties.
WHEREFORE, premises considered, the two motions
to dismiss, interposed separately by the defendants as
earlier stated, are both denied.
SO ORDERED.”5
Danfoss filed a motion for reconsideration of the order but
it was denied. On appeal to the Court of Appeals, the
latter also denied Danfoss’ petition for lack of merit. The
CA likewise denied petitioner’s motion for
reconsideration, hence, this appeal.
The only issue for our consideration is whether or not
the CA erred in affirming the denial by the court a quo of
petitioner’s motion to dismiss the complaint for damages
on the ground that it failed to state a cause of action.
Section 1 (g), Rule 16 of the 1997 Revised Rules on
Civil Procedure provides that:
Section 1. Grounds.—Within the time for but before filing
the answer to the complaint or pleading asserting a claim,
a motion to dismiss may be made on any of the following
grounds:
xxx xxx xxx
(g) That the pleading asserting the claim states no
cause of action;
A cause of action is defined under Section 2, Rule 2 of the
same Rules as:
Sec. 2. Cause of action, defined.—A cause of action is the
act or omission by which a party violates a right of
another.
It is the delict or wrongful act or omission committed by
the defendant in violation of the primary right of the
plaintiff.6
_______________
5 Rollo, pp. 107-108.
6 Joseph v. Bautista, G.R. No. 41423, 23 February
1989, 170 SCRA 540, cited in Regalado, F., Remedial Law
Compendium, Vol. I, 7th Revised Edition, 1999, p. 66.
512
512 SUPREME COURT REPORTS ANNOTATED
Danfoss, Inc. vs. Continental Cement Corporation Where therefore was the breach? Where was the damage
In order to sustain a dismissal on the ground of lack of
cause of action, the insufficiency must appear on the face
of the complaint. And the test of the sufficiency of the
facts alleged in the complaint to constitute a cause of
action is whether or not, admitting the facts alleged, the
court can render a valid judgment thereon in accordance
with the prayer of the complaint. For this purpose, the
motion to dismiss must hypothetically admit the truth of
the facts alleged in the complaint.7
After a careful perusal of the allegations in
511
respondent’s complaint for damages against petitioner, we
rule that the same failed to state a cause of action. When
respondent sued petitioner for damages, petitioner had
not violated any right of respondent from which a cause of
action had arisen. Respondent only surmised that
petitioner would not be able to deliver the two units
frequency converter/inverter on the date agreed upon by
them. Based on this apprehension, it cancelled its order
six days prior to the agreed date of delivery. How could
respondent hold petitioner liable for damages (1) when
petitioner had not yet breached its obligation to deliver
the goods and (2) after respondent made it impossible for
petitioner to deliver them by cancelling its order even
before the agreed delivery date?
The trial court erred in ruling that the issue of
whether or not the defendants incurred delay in the
delivery of the equipment within the period stipulated
was a debatable question. It said that trial on the merits
was necessary and the parties had to adduce evidence in
support of their respective positions.8 But what was there
to argue about when, based on the allegations of the
complaint, petitioner was not yet due to
_______________
7 Consolidated Dairy Products v. Court of
Appeals, G.R. No. 100401, 24 August 1991, 212 SCRA
810.
8 RTC decision, supra at note 5.
513
VOL. 469, SEPTEMBER 9, 2005
Danfoss, Inc. vs. Continental Cement Corporation
deliver the two units frequency converter/inverter when
respondent cancelled its order? It still had six days within
which to comply with its obligation. The court a
quo should not have denied petitioner’s motion to dismiss
the complaint (for its failure to state a cause of action)
when, on its face, it was clear that petitioner had not yet
reneged on its obligation to deliver the frequency
converter/inverter on the date mutually agreed upon by
the parties. Moreover, the obligation itself was negated by
no less than respondent’s own act of cancelling its order
even before the prestation became due and demandable.
caused by petitioner? There was none.
Consequently, it was wrong for the CA to affirm the
order of the trial court denying petitioner’s motion to
dismiss the complaint for its failure to state a cause of
action.
The principle of anticipatory breach enunciated
in Blossom & Company, Inc. v. Manila Gas
Corporation9 does not apply here. In that case, Blossom &
Company, Inc. entered into a contract with Manila Gas
Corporation for the sale and delivery of water gas and
coal gas tar at stipulated prices for a period of four years.
On the second year of the contract, Manila Gas willfully
and deliberately refused to deliver any coal and water gas
tar to Blossom and Company, Inc. because it was asking
for a higher price than what had been previously
stipulated by them. The price of its tar products had gone
up. We held that:
. . . even if the contract is divisible in its performance and
the future periodic deliveries are not yet due, if the obligor
has already manifested his refusal to comply with his
future periodic obligations, “the contract is entire and the
breach total,” hence, there can only be one action for
damages.10
_______________
955 Phil. 226 (1930).
10Id.
514
514 SUPREME COURT REPORTS ANNOTAT
Danfoss, Inc. vs. Continental Cement Corporation
Thus, the principle contemplates future periodic
deliveriesand a willful refusal to comply therewith. Here,
the obligation was single and indivisible—to deliver two
units of frequency converter/inverter by November 19,
1997. The records do not show that petitioner refused to
deliver the goods on the date agreed upon. On the
contrary, petitioner exerted efforts to make good its
obligation by looking for other suppliers who could
provide it the parts needed to make timely delivery of the
513
frequency converter/inverter ordered by respondent.
Furthermore, respondent’s complaint suffered from
another fatal infirmity. It was premature. The obligation
of petitioner to respondent was not yet due and
demandable at the time the latter filed the complaint. The
alleged violation of respondent’s right being no more than
mere speculation, there was no need to call for judicial
intervention.
The premature invocation of the court’s intervention
was fatal to respondent’s cause of action.11 Hence, the
dismissal of respondent’s complaint was in order.
In sum, since respondent’s fear that petitioner might
notbe able to deliver the frequency converter/inverter on
time was not the cause of action referred to by the Rules
and jurisprudence, the motion to dismiss the respondent’s
complaint for damages for lack of cause of action should
have been granted by the trial court. In addition, the
dismissal of the complaint was warranted on the ground
of prematurity.
WHEREFORE, we hereby GRANT the petition. The
assailed decision of the CA dated February 11, 2000 and
its resolution dated June 7, 2000 are REVERSED and
SET ASIDE. Civil Case No. Q-98-35997 pending before
the Regional Trial Court of Quezon City, Branch 80, is
hereby DISMISSED.

_______________

11 Laguna CATV Network, Inc. v. Maraan, 440 Phil.

734; 392 SCRA 221 (2002).

515
VOL. 469, SEPTEMBER 9, 2005 515
Vda. de Lopez vs. Court of Appeals
SO ORDERED.
Panganiban (Actg. C.J., Chairman), Sandoval-
Gutierrez and Garcia, JJ., concur.
Carpio-Morales, J., On Official Business.
Petition granted, assailed decision reversed and set
aside.
Note.—A dismissal based on lack of cause of action is
a dismissal without prejudice and the plaintiff is not
barred from filing a new suit against the defendant
involving the same facts but raising a cause of action
arising therefrom. (Young vs. Keng Seng, 398 SCRA
629 [2003])

——o0o——

© Copyright 2018 Central Book Supply, Inc. All rights

reserved.

298 SUPREME COURT REPORTS ANNOTATED
Lu Ym vs. Nabua
G.R. No. 161309. February 23, 2005. *
DOUGLAS LU YM, petitioner, vs. GERTRUDES NABUA,
GEORGE N. LU, ALEX N. LU, CAYETANO N. LU, JR.,
JULIETA N. LU AND BERNADITA N. LU, respondents.
Remedial Law; Certiorari; Motion to Dismiss; The
general rule is that the denial of a motion to dismiss
cannot be questioned in a special civil action for certiorari unspecific and amorphous thrust, the issuance is
which is a remedy designed to correct errors of jurisdiction inappropriate to the grounds detailed in the motion to
and not errors of judgment; In order to justify the grant of dismiss.
the extraordinary remedy of certiorari, the denial of the
motion to dismiss must have been tainted with grave
abuse of discretion amounting to lack or excess of
jurisdiction.—An order denying a motion to dismiss is an
interlocutory order which neither terminates nor finally
disposes of a case, as it leaves something to be done by the
court before the case is finally decided on the merits. As
such, the general rule is that the denial of a motion to
dismiss cannot be questioned in a special civil action for
certiorari which is a remedy
_______________
*SECOND DIVISION.
299
VOL. 452, FEBRUARY 23, 2005
Lu Ym vs. Nabua
designed to correct errors of jurisdiction and not
errors of judgment. Neither can a denial of a motion to
dismiss be the subject of an appeal unless and until a
final judgment or order is rendered. In order to justify the
grant of the extraordinary remedy of certiorari, the denial
of the motion to dismiss must have been tainted with
grave abuse of discretion amounting to lack or excess of
jurisdiction.
Same; Same; Same; There are three (3) courses of
action which the trial court may take in resolving a motion
to dismiss, i.e., to grant, to deny, or to allow amendment of
the pleading.—Under this provision, there are three (3)
courses of action which the trial court may take in
resolving a motion to dismiss, i.e., to grant, to deny, or to
allow amendment of the pleading. Deferment of the
resolution of a motion to dismiss if the ground relied upon
is not indubitable is now disallowed in view of the
provision requiring presentation of all available
arguments and evidence. Thus, there is no longer any
need to defer action until the trial as the evidence
presented, and such additional evidence as the trial court
may require, would already enable the trial court to rule
upon the dubitability of the ground alleged.
Same; Same; Same; The questioned order of the
trial court denying the motion to dismiss with a mere
statement that there are justiciable questions which
require a full blown trial falls short of the requirement of
Rule 16.—The questioned order of the trial court denying
the motion to dismiss with a mere statement that there
are justiciable questions which require a full blown trial
falls short of the requirement of Rule 16 set forth above.
Owing to the terseness of its expressed justification, the
challenged order ironically suffers from undefined
breadth which is a hallmark of imprecision. With its
PETITION for review on certiorari of the decision and
resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Calderon, Davide, Trinidad & Tolentino Law
Offices;Sycip, Salazar, Hernandez & Gatmaitan for
petitioner.
M. B. Mahinay & Associates for respondents.
300
300 SUPREME COURT REPORTS ANNOTATED
Lu Ym vs. Nabua
TINGA, J.:
299
One of the innovations introduced by the 1997 Rules of
Civil Procedure is that the resolution of a motion to
dismiss shall state clearly and distinctly the reasons
therefor. In the case at bar, the Court is provided with the
opportunity and task to elucidate on the meaning and
application of the new requirement.
Before us is a Petition for Review on Certiorari1 dated
February 11, 2004 filed by Douglas Lu Ym assailing the
Court of Appeals’ Decision2 and Resolution3 respectively
dated August 20, 2003 and December 16, 2003. The
questioned Decision dismissed petitioner’s Petition4 and
affirmed the trial court’s orders dated September 16,
20025and October 16, 20026 which respectively denied
petitioner’s Omnibus Motion to Dismiss the Amended
Complaint7 and Motion for Reconsideration.8
The facts9 as succinctly summarized by the Court of
Appeals are as follows:
The instant petition stemmed from an Amended
Complaint filed by the private respondents against the
petitioner, for Accounting with TRO and Injunction, on
May 15, 2002.
On August 16, 2002, the petitioner filed an Omnibus
Motion to Dismiss the Amended Complaint based on the
following grounds:
_______________
1 Rollo, pp. 21-529 with Annexes.
2 Id., at pp. 78-84. Penned by Associate Justice
Amelita G. Tolentino and concurred in by Associate
Justices Eloy R. Bello, Jr. and Jose C. Mendoza.
3 Id., at p. 86.
4 Id., at pp. 289-316.
5 Id., at p. 280.
6 Id., at p. 288.
7 Id., at pp. 181-187.
8 Id., at pp. 281-284.
9 Supra, note 2 at pp. 79-80.
301
VOL. 452, FEBRUARY 23, 2005
Lu Ym vs. Nabua
1. A.Plaintiffs’ claims are barred by a prior
judgment or by the statute of limitations {Rule
16, Sec. 1 (f)}.
2. B.Plaintiffs have no legal capacity to sue and/or
do not have a cause of action {Rule 16, Sec.
1(d) and/or 1(g)}.
3. C.Fraud and equity.
4. D.Docket fees not deemed paid, therefore, a
condition precedent for filing the claim has not
been complied with {Rule 16, Sec. 1(j)}.
On August 29, 2002, the private respondents filed their
Opposition to the Omnibus Motion to Dismiss Amended
Complaint alleging the following:
1. 1.Plaintiffs’ claims are not barred by prior
judgment nor by statute of limitations;
2. 2.Plaintiffs have the legal capacity to sue and
have valid cause of action;
3. 3.Docket fees have been paid by plaintiffs.
After the filing of petitioner’s Reply to the Opposition
to the Motion to Dismiss Amended Complaint, the
incident was submitted for resolution pursuant to the
August 30, 2002 Order of the court a quo.
In resolving the Omnibus Motion to Dismiss the
Amended Complaint, the lower court ruled as follows:
“There are justiciable questions raised in the pleadings of
the herein parties which are proper subject of a full blown
trial. The Omnibus Motion to Dismiss Amended
Complaint is hereby denied.
SO ORDERED.”
The Motion for Reconsideration filed by the petitioner
was resolved by the trial court in this wise:
“An attempt to discuss on the merit of the case might be
interpreted as prejudgment. It is the better part of
discretion, for the Court to deny the Motion
Reconsideration of the order denying the Motion to
Dismiss.
WHEREFORE, the Motion for Reconsideration is
hereby denied.
SO ORDERED.”
302
302
SUPREME COURT REPORTS ANNOTATED
Lu Ym vs. Nabua
Petitioner filed a Petition for Certiorari and Prohibition
Under Rule 65 With Prayer for the Issuance of Temporary
Restraining Order and/or Writ of Preliminary
Injunction,contending that the trial court committed
grave abuse of discretion in denying his motion to
dismiss. The appellate court dismissed the petition
holding that the assailed orders may only be reviewed in
the ordinary course of law by an appeal from the
judgment after trial. Thus, the proper recourse was for
petitioner to have filed an answer and proceeded to trial
since the issues raised in his motion to dismiss require
presentation of evidence aliunde. An exception is when
the trial court acts with grave abuse of discretion in
denying the motion to dismiss, in which case a petition for
certiorari under Rule 65 may be proper. This, the trial
court did not commit. Moreover, the Court of Appeals
declared that although the assailed orders were briefly
phrased, the trial court complied with the requirements
set forth under Rule 16 of the 1997 Rules of Civil
Procedure (Rules) on the resolution of motions to dismiss.
With the denial of his Motion for Reconsideration,
petitioner is now before this Court seeking a review of the Complaint fails to plead his actual contribution to the
appellate court’s Decision and Resolution claiming that
the denial of his motion to dismiss was a disguised
deferment of the resolution of the said motion and that
the trial court failed to discuss and address each of the
grounds cited therein contrary to the express mandate of
Section 3, Rule 16 of the Rules. Petitioner further argues _______________
that the trial court committed grave abuse of discretion in
refusing to address his grounds to dismiss and thereby
postponing their proper ventilation until trial. According
to him, Section 2 of the Rules provides that all available
evidence on the question of fact involved in the motion to
dismiss may be presented including evidence aliunde.
Thus, the grounds for dismissal raised in his motion to
dismiss could have been resolved in a hearing prior to a
full-blown trial.
Even assuming that the presentation of
evidence aliunde is not allowed, petitioner contends that
the trial court and the
303
VOL. 452, FEBRUARY 23, 2005
the Project of Partition dated November 25, 1983; (iii)
Lu Ym vs. Nabua
respondents George, Alex, Cayetano, Jr., Julieta and
Court of Appeals both erred in refusing to rule on the
Bernadita Lu executed the Assignment of Rights and
other grounds to dismiss which do not require
Interests to the Inheritance from Don Cayetano
presentation of evidence aliunde such as failure of
Ludo dated February 22, 1984; and (iv) the estate court
the Amended Complaintto state a cause of action/the
issued its (a) July 6, 1983 Order14 admitting Mr. Ludo’s
application of the “clean hands” doctrine, and the trial
Will to probate; (b) January 18, 1984 Order15 approving
court’s lack of jurisdiction for failure of the respondents to
the Project of Partition and terminating the estate case;
pay the proper filing and docket fees.
and (c) May 18, 1984 Order16 discharging petitioner and
Petitioner also avers that there are other grounds to
Silvano Ludo from all their duties, liabilities and
dismiss the case such as res judicata, respondents’ lack of
responsibilities as executors of Mr. Ludo’s estate.
capacity to sue/waiver and prescription, all of which are
In their Comment17 dated May 28, 2004, respondents
allegedly supported by evidence on record. It is
contend that the trial court did not defer the resolution of
petitioner’s theory that the Amended Complaint is a
petitioner’s motion to dismiss. On the contrary, the trial
collateral attack on the duly probated and fully
court denied the motion considering that there are
implemented Last Will and Testament of Cayetano
justiciable questions raised in the pleadings of the parties
Ludo. According to petitioner, Cayetano Ludo’s estate
10
which require a full-blown trial. According to respondents,
had been distributed by virtue of a Project of
the appellate court properly considered this a sufficient
Partition approved
11 by the estate court in
disposition of the motion because the Rules do not require
its Order12 dated January 18, 1984 in Sp. Proc. No. 167-
courts at all times to cite the law and the facts upon
CEB. There are, between the estate case and Civil Case
which a resolution is based, it being sufficient, in case of
No. 27717, identity of parties, subject matter and cause of
resolutions that do not finally dispose of a case such as
action. Hence, any further issue regarding the recovery of
the denial of a motion to dismiss, to cite the legal basis
respondents’ supposed shares in Mr. Ludo’s estate
therefor.
through Civil Case No. 27717 is precluded by the estate
Moreover, the estate proceedings allegedly do not bar
court’s final and fully executed orders.
the instant case. Having hypothetically admitted that Mr.
Petitioner moreover contends that respondents
Ludo’s Will was simulated, respondents contend that
George, Alex, Cayetano, Jr., Julieta and Bernadita Lu
petitioner cannot invoke the finality of the probate
have lost standing to sue as a result of the document
proceedings as a shield against the instant case because
entitled Assignment of Rights and Interests to the
the simulation and fraud
Inheritance from Don Cayetano Ludo by which they
13
supposedly conveyed their interest to their inheritance to
_______________
Ludo and Lu Ym Corporation. As regards respondent
Gertrudes Nabua, petitioner alleges that the Amended
14 Id., at pp. 115-117.
properties acquired by Mr. Ludo as required by Article 15 Supra note 11.
148 of the Family Code. Hence, she too lacks capacity to 16 Id., at p. 150.
17 Id., at pp. 539-552.
sue.
305
VOL. 452, FEBRUARY 23, 2005
Lu Ym vs. Nabua
10 Id., at pp. 105-111.
11 Id., at pp. 118-121. attendant in the execution of the Will are personal to
12 Id., at p. 128. This Order approved the Project of petitioner. Besides, the properties included in Mr. Ludo’s
Partition and considered the case closed and terminated. Will are not the same properties sought to be accounted in
13 Id., at pp. 129-132. the instant case. Allegedly, the properties subject of this
case are those which petitioner excluded from Mr. Ludo’s
304
Will during the probate proceedings, whose titles and
304 SUPREME COURT REPORTS ANNOTATEDevidence of ownership were earlier transferred to
petitioner for him to hold in trust for respondents.
Lu Ym vs. Nabua
Respondents contend that the issue as to respondent
Finally, petitioner claims that the case is already barred
Gertrudes Nabua’s shares in Mr. Ludo’s properties as the
by prescription and laches. Petitioner asserts that nearly
latter’s common law wife, raised as a specific allegation in
20 years had passed since (i) Mr. Ludo passed away on the Amended Complaint, has been joined by petitioner’s
April 14, 1983; (ii) 303 petitioner and respondents George,
denial. Hence, a hearing on this matter is necessary.
Alex, Cayetano, Jr., Julieta and Bernadita Lu executed
 Moreover, respondents insist that the trial court
correctly declared that there are justiciable questions
necessitating trial on the merits because the Assignment
of Rights and Interests to the Inheritance from Don
Cayetano Ludo dated February 22, 1984, by which
respondents George, Alex, Cayetano, Jr., Julieta and
Bernadita Lu allegedly transferred their interest in Mr.
Ludo’s estate to Ludo and Lu Ym Corporation, was
allegedly not offered and admitted in evidence. Hence,
any conclusion drawn from this document would be
unwarranted.
Finally, respondents contend that petitioner never
raised the issues of prescription and laches in his motion
to dismiss.
In his Reply18 dated September 30, 2004, petitioner
reiterates his submissions.
At issue is whether the Court of Appeals erred in
dismissing the petition for certiorari and in holding that
the trial court did not commit grave abuse of discretion in
denying petitioner’s motion to dismiss.
An order denying a motion to dismiss is an
interlocutory order which neither terminates nor finally
disposes of a case,
_______________
18 Id., at pp. 571-591.
306
306 SUPREME COURT REPORTS ANNOTATED Further, it is now specifically required that the
Lu Ym vs. Nabua
as it leaves something to be done by the court before the
case is finally decided on the merits. As such, the general
rule is that the denial of a motion to dismiss cannot be
questioned in a special civil action for certiorari which is a taking recourse therefrom and likewise on the higher
remedy designed to correct errors of jurisdiction and not
errors of judgment. Neither can a denial of a motion to
dismiss be the subject of an appeal unless and until a
final judgment or order is rendered. In order to justify the
grant of the extraordinary remedy of certiorari, the denial
of the motion to dismiss must have been tainted with
grave abuse of discretion amounting to lack or excess of
jurisdiction.19
At the core of the present petition is the question of
whether the trial court’s denial of petitioner’s motion to
dismiss on the ground that “[T]here are justiciable
questions raised in the pleadings of the herein parties
which are proper subject of a full blown
trial”20 contravenes Sec. 3, Rule 16 of the Rules and
constitutes grave abuse of discretion on the part of the
trial court.
Sec. 3, Rule 16 of the Rules provides:
Sec. 3. Resolution of motion.—After the hearing, the court
may dismiss the action or claim, deny the motion or order
the amendment of the pleading.
The court shall not defer the resolution of the motion
for the reason that the ground relied upon is not
indubitable.
In every case, the resolution shall state clearly and
distinctly the reasons therefor.
Under this provision, there are three (3) courses of action
which the trial court may take in resolving a motion to
dismiss, i.e., to grant, to deny, or to allow amendment of
the pleading. Deferment of the resolution of a motion to
dismiss if the ground relied upon is not indubitable is now
disallowed in
_______________
19 Bernardo v. Court of Appeals, 388 Phil. 793; 333
SCRA 135 (2000); Diaz v. Diaz, 387 Phil. 314; 331 SCRA
302 (2000).
20 Supra note 1 at p. 280.
307
VOL. 452, FEBRUARY 23, 2005
Lu Ym vs. Nabua
view of the provision21 requiring presentation of all
available arguments and evidence. Thus, there is no
longer any need to defer action until the trial as the
evidence presented, and such additional evidence as the
trial court may require, would already enable the trial
court to rule upon the dubitability of the ground alleged.22
resolution on the motion shall clearly and distinctly state
the reasons therefor. This proscribes the common practice
of perfunctorily dismissing the motion for “lack of merit.”
Such cavalier dispositions can often pose difficulty and
misunderstanding on the part of the aggrieved party in
court called upon to resolve the same, usually on
certiorari.23
The questioned order of the trial court denying the
motion to dismiss with a mere statement that there are
justiciable questions which require a full blown trial falls
short of the requirement of Rule 16 set forth above. Owing
to the terseness of its expressed justification, the
challenged order ironically suffers from undefined
breadth which is a hallmark of imprecision. With its
unspecific and amorphous thrust, the issuance is
inappropriate to the grounds detailed in the motion to
dismiss.
While the requirement to state clearly and distinctly
the reasons for the trial court’s resolutory order under
Sec. 3,
_______________
21 Sec. 2. Hearing of motion.—At the hearing of the
motion, the parties shall submit their arguments on the
questions of law and their evidence on the questions of
fact involved except those not available at that time.
Should the case go to trial, the evidence presented during
the hearing shall automatically be part of the evidence of
the party presenting the same. [Rule 16, Rules of Court]
22 F. Regalado, Remedial Law Compendium, Vol. I,
(1999), pp. 258-259.
23 Pefianco v. Moral, 379 Phil. 468; 322 SCRA
439 (2000); Intramuros Administration v. Contacto, G.R.
No. 152576, May 5, 2003, 402 SCRA 581.
308
308 SUPREME COURT REPORTS ANNOTAT
Lu Ym vs. Nabua
Rule 16 of the Rules does call for a liberal interpretation,
especially since jurisprudence dictates that it is decisions
on cases submitted for decision that are subject to the
stringent requirement of specificity of rulings under Sec.
1, Rule 3624 of the 307Rules, the trial court’s order in this
case leaves too much to the imagination.
It should be noted that petitioner raised several
grounds in his motion to dismiss, i.e., bar by prior
judgment or by the statute of limitations, lack of capacity
to sue, lack of cause of action, and non-payment of docket
fees.
Specifically, petitioner sought the dismissal of the
complaint, arguing as follows:
A. Plaintiffs’ claims are barred by a prior judgment or by
the statute of limitations (Rule 16, Sec. 1[f])
....
5. Plaintiffs now raise the issue that Cayetano Ludo,
allegedly then “in failing health” was unduly influenced
by the defendant to execute a “simulated will” to cheat the
government of enormous amounts of estate and
inheritance taxes.
6. Plaintiffs may no longer do so, for, subject to the
right to appeal, the allowance of a will is conclusive as to
its due execution, Rule 75, Sec. 1. “Due execution” settles
the extrinsic validity of the will, i.e., whether the
testator, being of sound mind freely executed the
will in accordance with the formalities by law.
7. It was conclusively established by the allowance of
the will, which plaintiffs did not appeal, that the following
circumstances were not present:
Rule 76, Sec. 9
(b) . . . the testator was insane, or otherwise mentally
incapable to make a will, at the time of its execution;
_______________
24 Sec. 1. Rendition of judgments and final orders.—A
judgment or final order determining the merits of the case
shall be in writing personally and directly prepared by the
judge, stating clearly and distinctly the facts and the law
on which it is based, signed by him, and filed with the
clerk of the court. (Emphasis supplied).
309
VOL. 452, FEBRUARY 23, 2005
Lu Ym vs. Nabua
(c) . . . (the will) was executed under duress, or the
influence of fear, or threats;
(d) . . . (the will) was procured by undue and improper
pressure and influence, on the part of the beneficiary, or of
some other person for his benefit;
8. The foregoing are the precise sort of questions and
issues plaintiffs Nabua and her children are illicitly
seeking to try by independent action in a different sala.
Why are they doing this? Because the time for them to
bring their claims in the probate court has prescribed.
The judicial decree of distribution vests title in the
distributees and any objections thereto should be raised
in a seasonable appeal, otherwise it will have binding
effect like any other judgment in rem.
....
B. Plaintiffs have no legal capacity to sue and/or do
not have a cause of action (Rule 16, Secs. 1(d) and/or 1(g))
12. The following documents reveal that the plaintiff
Nabua could never have been the common-law wife that
she claims to be, because Cayetano Ludo was married to
someone else:
(a) Petition for Naturalization by Cayetano Ludo filed
in 1946, wherein he declares in paragraph FIFTH that he
is married to Uy Ching Gee (ANNEX “J”);
(b) Order of the Court of First Instance dated June 7,
1949, wherein it is stated that Cayetano Ludo has
established in open court that he is married to Uy Ching
Gee, a native of Amoy, China, who likewise lived with him
in the Philippines and that they have three legitimate
children born 1937, 1939 and 1942 (ANNEX “K”);
(c) Identification Certificate No. 5697 issued by the
Bureau of Immigration to Liong Cheng on November 18,
1957, also known as Visitacion Uy Ching Gui, recognizing
her as a citizen of the Philippines being the lawful wife of
Cayetano Ludo (ANNEX “L”);
(d) Death Certificate of Visitacion Uy dated August 7,
1969, wherein it is indicated that her civil status is
married and the surviving spouse is Cayetano Ludo
(ANNEX “M”);
(e) Death Certificate of Cayetano Ludo dated July 16,
1986, wherein it is indicated that his surviving spouse is
Florame delos Reyes Ludo (ANNEX “B”).
sively the reasons for their issuance, which are necessary
310
for the full understanding of the action taken.26
310 SUPREME COURT REPORTS ANNOTATED Accordingly, considering that the order of the trial
court is a patent nullity for failure to comply with a
Lu Ym vs. Nabua
mandatory provision of the Rules, petitioner was correct
in directly assailing the order on certiorari before the
Court of Appeals.
13. Plaintiffs-children of Nabua do not have legal capacity
or cause of action because they are not the real parties in
interest.
13. [sic] Their distributive share in the estate of
Cayetano Ludo having been assigned to Ludo and LuYm
309
Corporation (ANNEX
“G”), plaintiffs-children of Nabua are not real
parties in interest; Ludo & LuYm Corp. is. Every
action must be prosecuted or defended in the name of the
real party in interest.
....
C. Fraud and Equity
14. The “fraud” (confused by plaintiffs to mean undue
influence) of “imposing” a “stimulated will” on Cayetano
Ludo has been conclusively negated by the allowance of
the will, as provided in Rule 75, Sec. 1, above discussed.
15. Furthermore, an action for fraud prescribes 4
years from the execution of the “fraudulent” or “simulated
will,” which was long ago in this case.
16. But more important than any of the foregoing is
that plaintiffs who participated in the probate
proceedings and signed the settlement are precluded by
“dirty hands” from claiming relief.
17. By their own admission (to which they are bound
by Rule 130, Sec. 26), plaintiffs were parties to a
settlement pursuant to a fraudulent “simulated will”
which they portrayed as a massive scheme to defraud the
government of estate and inheritance taxes.
. . . . 25 (Emphases in the original.)
Having raised substantial grounds for dismissal, the trial
court should have, at the very least, specified which of
these grounds require a full-blown trial. This would have
enabled the defendant to determine the errors that should
be the subject of his motion for reconsideration or petition
for certiorari, and given the appellate court sufficient
basis for determining the propriety of the denial of the
motion to dismiss.
In this regard, judges should be reminded to take
pains in crafting their orders, stating therein clearly and
comprehen-
_______________
25Supra note 1 at pp. 182-185.
311
VOL. 452, FEBRUARY 23, 2005
Lu Ym vs. Nabua
However, while it was error for the appellate court to
rule that the trial court did not commit grave abuse of
discretion in denying petitioner’s motion to dismiss, it
does not necessarily follow that the motion to dismiss
should have been granted. The instant petition raises
significant factual questions as regards petitioner’s claim
that the Amended Complaint should have been dismissed
which are properly addressed to the trial court. Moreover,
it cannot be gainsaid that the trial court should be given
the opportunity to correct itself by evaluating the
evidence, applying the law and making an appropriate
ruling.27 A remand of the case to the trial court for further
proceedings is, therefore, in order.
WHEREFORE, the petition is GRANTED in part.
The Decision of the Court of Appeals dated August 20,
2003 sustaining the trial court’s denial of petitioner’s
motion to dismiss, as well as its Resolution dated
December 16, 2003 denying reconsideration, is
REVERSED and SET ASIDE. The case is REMANDED to
the Regional Trial Court of Cebu City for further
proceedings to resolve anew with deliberate dispatch the
motion to dismiss in accordance with Section 3, Rule 16 of
the 1997 Rules of Civil Procedure as elucidated in
this Decision.
SO ORDERED.
Puno (Chairman), Austria-Martinez, Callejo,
Sr. and Chico-Nazario, JJ., concur.
_______________
Pefianco v. Moral, supra at note 23.
26
Parañaque Kings Enterprises, Inc. v. Court of
27
Appeals , 335 Phil. 1124; 268 SCRA 727 (1997).
312
312 SUPREME COURT REPORTS ANNOTAT
Caballes vs. Court of Appeals
Petition granted in part, judgment and resolution reversed
and set aside. Case remanded to trial court.
Note.—The general rule is that the denial of a motion
to dismiss is interlocutory and hence, it cannot be
questioned in a special civil action of certiorari is not
absolute. (Bernardo vs. Court of Appeals, 333 SCRA
135 [2000])
311 ——o0o——
© Copyright 2018 Central Book Supply, Inc. All rights
reserved.
 G.R. No. 153567. February 18, 2008.*
LIBRADA M. AQUINO, petitioner, vs. ERNEST S.
AURE,1respondent.
Actions; Barangay Justice System; Katarungang
Pambarangay Law (P.D. 1508); The barangay justice
system was established primarily as a means of easing up
the congestion of cases in the judicial courts; The
primordial objective of Presidential Decree No. 1508 is to
reduce the number of court litigations and prevent the
deterioration of the quality of justice which has been
brought by the indiscriminate filing of cases in the courts;
P.D. No. 1508 is now incorporated in R.A. No. 7160,
otherwise known as The Local Government Code, which
took effect on 1 January 1992.—The barangay justice
system was established primarily as a means of easing up
the congestion of cases in the judicial courts. This could be
accomplished through a proceeding before the barangay
courts which, according to the conceptor of the system, the
late Chief Justice Fred Ruiz Castro, is essentially
arbitration in character, and to make it truly effective, it
should also be compulsory. With this primary objective of
the barangay justice system in mind, it would be wholly
in keeping with the underlying philosophy of Presidential
Decree No. 1508, otherwise known as the Katarungang
Pambarangay Law, and the policy behind it would be
better served if an out-of-court settlement of the case is
reached voluntarily by the parties. The primordial
objective of Presidential Decree No. 1508 is to reduce the
number of court litigations and prevent the deterioration
of the quality of justice which has been brought by the
indiscriminate filing of cases in the courts. To ensure this
objective, Section 6 of Presidential Decree No. 1508
requires the parties to undergo a conciliation process
before the Lupon Chairman or the Pangkat ng
Tagapagkasundo as a precondition to filing a complaint in
court subject to certain exceptions which are inapplicable
to this case. The said section has been declared
compulsory in nature. Presidential Decree No. 1508 is
now incorporated in Repub-
_______________
* THIRD DIVISION.
1 Substituted by his heirs: Agnes J. Aure, Ma.
Cecilia Aure-Quinsay, Ma. Concepcion Criselda Aure-
Barrion, Ma. Erna J. Aure, Ernest Michael J. Aure and
Ma. Melissa J. Aure; Rollo, p. 159.
72lic Act No. 7160, otherwise known as The Local
Government Code, which took effect on 1 January 1992.
Same; Same; Jurisdictions; Exhaustion of
Administrative Remedies; While it is true that the precise
technical effect of failure to comply with the requirement of
Section 412 of the Local Government Code on barangay
conciliation is much the same effect produced by non-
exhaustion of administrative remedies—the complaint
becomes afflicted with the vice of pre-maturity—the
conciliation process is not a jurisdictional requirement, so
that non-compliance therewith cannot affect the
jurisdiction which the court has otherwise acquired over
the subject matter or over the person of the defendant.—It
is true that the precise technical effect of failure to comply
with the requirement of Section 412 of the Local
Government Code on barangay conciliation (previously
contained in Section 5 of Presidential Decree No. 1508) is
much the same effect produced by non-exhaustion of
administrative remedies—the complaint becomes afflicted
with the vice of pre-maturity; and the controversy there
alleged is not ripe for judicial determination. The
complaint becomes vulnerable to a motion to dismiss.
Nevertheless, the conciliation process is not a
jurisdictional requirement, so that non-compliance
therewith cannot affect the jurisdiction which the court
has otherwise acquired over the subject matter or over the
person of the defendant.
Same; Same; Same; Pleadings and Practice; The
fact that the defendant raised the issue of non-recourse to
barangay mediation proceedings during the pre-trial and
in her Position Paper is of no moment, for the same should
be impleaded in her Answer.—By Aquino’s failure to
seasonably object to the deficiency in the Complaint, she
is deemed to have already acquiesced or waived any
defect attendant thereto. Consequently, Aquino cannot
thereafter move for the dismissal of the ejectment suit for
Aure and Aure Lending’s failure to resort to
the barangay conciliation process, since she is already
precluded from doing so. The fact that Aquino raised such
objection during the pre-trial and in her Position Paper is
of no moment, for the issue of non-recourse
to barangaymediation proceedings should be impleaded in
her Answer.
Same; Same; Same; Same; Statutory Construction;
It is clear and categorical in Section 1, Rule 9 of the
Revised Rules of Court that failure to raise defense and
objections in a motion to dismiss or in an answer is
deemed a waiver thereof—and basic is the rule in
statutory 73construction that when the law is clear and
free from any doubt or ambiguity, there is no room for
construction or interpretation.—The spirit that surrounds
the foregoing statutory norm is to require the party filing
a pleading or motion to raise all available exceptions for
relief during the single opportunity so that single or
multiple objections may be avoided. It is clear and
categorical in Section 1, Rule 9 of the Revised Rules of
Court that failure to raise defenses and objections in a
motion to dismiss or in an answer is deemed a waiver
thereof; and basic is the rule in statutory construction
that when the law is clear and free from any doubt or
ambiguity, there is no room for construction or
interpretation. As has been our consistent ruling, where
the law speaks in clear and categorical language, there is
no occasion for interpretation; there is only room for
application. Thus, although Aquino’s defense of non-
compliance with Presidential Decree No. 1508 is
meritorious, procedurally, such defense is no longer
available for failure to plead the same in the Answer as
required by the omnibus motion rule.
Same; Same; Same; A court may not motu proprio
dismiss a case on the ground of failure to comply with the
requirement for barangay conciliation, this ground not
being among those mentioned for the dismissal by the trial
court of a case on its own initiative.—Neither could the
MeTC dismiss Civil Case No. 17450 motu proprio.The
1997 Rules of Civil Procedure provide only three instances
when the court may motu proprio dismiss the claim, and
that is when the pleadings or evidence on the record show
that (1) the court has no jurisdiction over the subject
matter; (2) there is another cause of action pending
between the same parties for the same cause; or (3) where
the action is barred by a prior judgment or by a statute of
limitations. Thus, it is clear that a court may not motu
proprio dismiss a case on the ground of failure to comply
with the requirement for barangay conciliation, this
ground not being among those mentioned for the
dismissal by the trial court of a case on its own initiative.
Jurisdictions; Ejectment; Jurisdiction in ejectment
cases is determined by the allegations pleaded in the
complaint.—Jurisdiction in ejectment cases is determined
by the allegations pleaded in the complaint. As long as
these allegations demonstrate a cause of action either for
forcible entry or for unlawful detainer, the court acquires
jurisdiction over the subject matter. This principle holds,
even if the 74facts proved during the trial do not support
the cause of action thus alleged, in which instance the
court—after acquiring jurisdiction—may resolve to
dismiss the action for insufficiency of evidence.
Same; Same; Ownership; Inferior courts are now
conditionally vested with adjudicatory power over the
issue of title or ownership raised by the parties in an
ejectment suit.—This Court ruled in Hilario v. Court of
Appeals, 260 SCRA 420 (1996): Thus, an adjudication
made therein regarding the issue of ownership should be
regarded as merely provisional and, therefore, would not
bar or prejudice an action between the same parties
involving title to the land. The foregoing doctrine is a
necessary consequence of the nature of forcible entry and
unlawful detainer cases where the only issue to be settled
is the physical or material possession over the real
property, that is, possession de facto and not
possession de jure.” In other words, inferior courts are
now “conditionally vested with adjudicatory power over
the issue of title or ownership raised by the parties in an
ejectment suit.” These courts shall resolve the question of
ownership raised as an incident in an ejectment case
where a determination thereof is necessary for a proper
and complete adjudication of the issue of possession.
PETITION for review on certiorari of the decision and
resolution of the Court of Appeals.
 The facts are stated in the opinion of the Court.
Benigno M. Puno for petitioner.
M.C. Santos Law Office for respondent.
CHICO-NAZARIO, J.:
Before this Court is a Petition for Review
on Certiorari2under Rule 45 of the Revised Rules of Court
filed by petitioner Librada M. Aquino (Aquino), seeking
the reversal and the
_______________
2 Rollo, pp. 8-21.
75setting aside of the Decision3 dated 17 October 2001
and the Resolution4 dated 8 May 2002 of the Court of
Appeals in CA-G.R. SP No. 63733. The appellate court, in
its assailed Decision and Resolution, reversed the
Decision5 of the Regional Trial Court (RTC) of Quezon
City, Branch 88, affirming the Decision6 of the
Metropolitan Trial Court (MeTC) of Quezon City, Branch
32, which dismissed respondent Ernesto Aure’s (Aure)
complaint for ejectment on the ground, inter alia, of
failure to comply with barangay conciliation proceedings.
The subject of the present controversy is a parcel of
land situated in Roxas District, Quezon City, with an area
of 449 square meters and covered by Transfer Certificate
of Title (TCT) No. 205447 registered with the Registry of
Deeds of Quezon City (subject property).7
Aure and E.S. Aure Lending Investors, Inc. (Aure
Lending) filed a Complaint for ejectment against Aquino
before the MeTC docketed as Civil Case No. 17450. In
their Complaint, Aure and Aure Lending alleged that
they acquired the subject property from Aquino and her
husband Manuel (spouses Aquino) by virtue of a Deed of
Sale8 executed on 4 June 1996. Aure claimed that after
the spouses Aquino received substantial consideration for
the sale of the subject property, they refused to vacate the
same.9
In her Answer,10 Aquino countered that the
Complaint in Civil Case No. 17450 lacks cause of action
for Aure and Aure Lending do not have any legal right
over the subject property.
_______________
3 Penned by Associate Justice Ramon Mabutas, Jr.
with Associate Justices Roberto A. Barrios and Edgardo
P. Cruz, concurring. Rollo, pp. 21-26.
4 Id., at p. 28.
5 Records, pp. 514-515.
6 Id., at pp. 436-439.
7 Id., at pp. 482-483.
8 Id.
9 Id., at pp. 1-7.
10 Id., at pp. 11-15.
76Aquino admitted that there was a sale but such was
governed by the Memorandum of Agreement11 (MOA)
signed by Aure. As stated in the MOA, Aure shall secure a
loan from a bank or financial institution in his own name
using the subject property as collateral and turn over the
proceeds thereof to the spouses Aquino. However, even
after Aure successfully secured a loan, the spouses Aquino
did not receive the proceeds thereon or benefited
therefrom.
On 20 April 1999, the MeTC rendered a Decision in
Civil Case No. 17450 in favor of Aquino and dismissed the
Complaint for ejectment of Aure and Aure Lending for
non-compliance with the barangay conciliation process,
among other grounds. The MeTC observed that Aure and
Aquino are residents of the same barangay but there is no
showing that any attempt has been made to settle the
case amicably at the barangay level. The MeTC further
observed that Aure Lending was improperly included as
plaintiff in Civil Case No. 17450 for it did not stand to be
injured or benefited by the suit. Finally, the MeTC ruled
that since the question of ownership was put in issue, the
action was converted from a mere detainer suit to one
“incapable of pecuniary estimation” which properly rests
within the original exclusive jurisdiction of the RTC. The
dispositive portion of the MeTC Decision reads:
“WHEREFORE, premises considered, let this case be,
as it is, hereby ordered DISMISSED. [Aquino’s]
counterclaim is likewise dismissed.”12
On appeal, the RTC affirmed the dismissal of the
Complaint on the same ground that the dispute was not
brought before the Barangay Council for conciliation
before it was filed in court. In a Decision dated 14
December 2000, the RTC stressed that
the barangay conciliation process is a conditio sine qua
non for the filing of an ejectment complaint involving
_______________
11 Id., at pp. 14-15.
12 Id., at p. 439.
77residents of the same barangay, and failure to comply
therewith constitutes sufficient cause for the dismissal of
the action. The RTC likewise validated the ruling of the
MeTC that the main issue involved in Civil Case No.
17450 is incapable of pecuniary estimation and cognizable
by the RTC. Hence, the RTC ruled:
“WHEREFORE, finding no reversible error in the
appealed judgment, it is hereby affirmed in its
entirety.”13
Aure’s Motion for Reconsideration was denied by the
RTC in an Order14 dated 27 February 2001.
Undaunted, Aure appealed the adverse RTC Decision
with the Court of Appeals arguing that the lower court
erred in dismissing his Complaint for lack of cause of
action. Aure asserted that misjoinder of parties was not a
proper ground for dismissal of his Complaint and that the
MeTC should have only ordered the exclusion of Aure
Lending as plaintiff without prejudice to the continuation
of the proceedings in Civil Case No. 17450 until the final
determination thereof. Aure further asseverated that
mere allegation of ownership should not divest the MeTC
of jurisdiction over the ejectment suit since jurisdiction
over the subject matter is conferred by law and should not
depend on the defenses and objections raised by the
parties. Finally, Aure contended that the MeTC erred in
dismissing his Complaint with prejudice on the ground of
non-compliance with barangay conciliation process. He
was not given the opportunity to rectify the procedural
defect by going through the barangay mediation
proceedings and, thereafter, refile the Complaint.15
On 17 October 2001, the Court of Appeals rendered a
Decision, reversing the MeTC and RTC Decisions and
remanding the case to the MeTC for further proceedings
and final deter-
_______________
13 Id., at p. 516.
14 Id., at p. 537.
15 Id., at pp. 465-480.
78mination of the substantive rights of the parties. The
appellate court declared that the failure of Aure to subject
the matter to barangay conciliation is not a jurisdictional
flaw and it will not affect the sufficiency of Aure’s
Complaint since Aquino failed to seasonably raise such
issue in her Answer. The Court of Appeals further ruled
that mere allegation of ownership does not deprive the
MeTC of jurisdiction over the ejectment case for
jurisdiction over the subject matter is conferred by law
and is determined by the allegations advanced by the
plaintiff in his complaint. Hence, mere assertion of
ownership by the defendant in an ejectment case will not
oust the MeTC of its summary jurisdiction over the same.
The decretal part of the Court of Appeals Decision reads:
“WHEREFORE, premises considered, the petition is
hereby GRANTED—and the decisions of the trial courts
below REVERSED and SET ASIDE. Let the records be
remanded back to the court aquo for further
proceedings—for an eventual decision of the substantive
rights of the disputants.”16
In a Resolution dated 8 May 2002, the Court of
Appeals denied the Motion for Reconsideration interposed
by Aquino for it was merely a rehash of the arguments set
forth in her previous pleadings which were already
considered and passed upon by the appellate court in its
assailed Decision.
Aquino is now before this Court via the Petition at
bar raising the following issues:
I.
WHETHER OR NOT NON-COMPLIANCE WITH
THE BARANGAY CONCILIATION PROCEEDINGS IS A
JURISDICTIONAL DEFECT THAT WARRANTS THE
DISMISSAL OF THE COMPLAINT.
II.
WHETHER OR NOT ALLEGATION OF OWNERSHIP
OUSTS THE MeTC OF ITS JURISDICTION OVER AN
EJECTMENT CASE.
_______________
16 Rollo, p. 25.
79
The barangay justice system was established
primarily as a means of easing up the congestion of cases
in the judicial courts. This could be accomplished through
a proceeding before the barangay courts which, according
to the conceptor of the system, the late Chief Justice Fred
Ruiz Castro, is essentially arbitration in character, and to
make it truly effective, it should also be compulsory. With
this primary objective of the barangay justice system in
mind, it would be wholly in keeping with the underlying
philosophy of Presidential Decree No. 1508, otherwise
known as the Katarungang Pambarangay Law, and the
policy behind it would be better served if an out-of-court
settlement of the case is reached voluntarily by the
parties.17
The primordial objective of Presidential Decree No.
1508 is to reduce the number of court litigations and
prevent the deterioration of the quality of justice which
has been brought by the indiscriminate filing of cases in
the courts.18To ensure this objective, Section 6 of
Presidential Decree No. 150819
_______________
17 People v. Caruncho, Jr., 212 Phil. 16, 27; 127
SCRA 16, 29 (1984).
18 Galuba v. Laureta, G.R. No. 71091, 29 January
1988, 157 SCRA 627, 634.
19 SECTION 6. Conciliation, pre-condition to filing
of complaint.—No complaint, petition, action or
proceeding involving any matter within the authority of
the Lupon as provided in Section 2 hereof shall be filed or
instituted in court or any other government office for
adjudication unless there has been a confrontation of the
parties before the LuponChairman or the Pangkat and no
conciliation or settlement has been reached as certified by
the Lupon Secretary or the Pangkat Secretary attested by
the Lupon or Pangkat Chairman, or unless the settlement
has been repudiated. However, the parties may go directly
to court in the following cases:
[1] Where the accused is under detention;
[2] Where a person has otherwise been deprived of
personal liberty calling for habeas corpus proceedings;
80requires the parties to undergo a conciliation process
before the Lupon Chairman or the Pangkat ng
Tagapagkasundoas a precondition to filing a complaint in
court subject to certain exceptions20 which are
inapplicable to this case. The said section has been
declared compulsory in nature.21
Presidential Decree No. 1508 is now incorporated in
Republic Act No. 7160, otherwise known as The Local
Government Code, which took effect on 1 January 1992.
The pertinent provisions of the Local Government
Code making conciliation a precondition to filing of
complaints in court, read:
“SEC. 412. Conciliation.—(a) Pre-condition to filing
of complaint in court.—No complaint, petition, action, or
proceeding involving any matter within the authority of
the lupon shall be filed or instituted directly in court or
any other government office for adjudication, unless there
has been a confrontation between the parties before the
lupon chairman or the pangkat, and that no conciliation
or settlement has been reached as certified by
the luponsecretary or pangkat secretary as attested to by
the lupon chairman or pangkat
_______________
[3] Actions coupled with provisional remedies such
as preliminary injunction, attachment, delivery of
personal property and support pendente lite; and
[4] Where the action may otherwise be barred by the
Statute of Limitations.
20 Paragraph 2, Section 6, PD No. 1508.
However, the parties may go directly to court in the
following cases:
[1] Where the accused is under detention;
[2] Where a person has otherwise been deprived of
personal liberty calling for habeas corpus proceedings;
[3] Actions coupled with provisional remedies such
as preliminary injunction, attachment, delivery of
personal property and support pendente lite; and
[4] Where the action may otherwise be barred by the
Statute of Limitations.
21 Morata v. Go, 210 Phil. 367, 372; 125 SCRA 444,
453 (1983).
81chairman or unless the settlement has been repudiated
by the parties thereto.
(b) Where parties may go directly to court.—The
parties may go directly to court in the following instances:
(1) Where the accused is under detention;
(2) Where a person has otherwise been deprived of
personal liberty calling for habeas corpus proceedings;
(3) Where actions are coupled with provisional
remedies such as preliminary injunction, attachment,
delivery of personal property, and support pendente lite;
and
(4) Where the action may otherwise be barred by the
statute of limitations.
(c) Conciliation among members of indigenous
cultural communities.—The customs and traditions of
indigenous cultural communities shall be applied in
settling disputes between members of the cultural
communities.
SEC. 408. Subject Matter for Amicable Settlement;
Exception Therein.—The lupon of each barangay shall
have authority to bring together the parties actually
residing in the same city or municipality for amicable
settlement of all disputes except:
(a) Where one party is the government or any
subdivision or instrumentality thereof;
(b) Where one party is a public officer or employee,
and the dispute relates to the performance of his official
functions;
(c) Offenses punishable by imprisonment exceeding
one (1) year or a fine exceeding Five thousand pesos
(P5,000.00);
(d) Offenses where there is no private offended
party;
(e) Where the dispute involves real properties
located in different cities or municipalities unless the
parties thereto agree to submit their differences to
amicable settlement by an appropriate lupon;
(f) Disputes involving parties who actually reside
in barangaysof different cities or municipalities, except
where such barangayunits adjoin each other and the
parties thereto agree to submit their differences to
amicable settlement by an appropriate lupon;82
(g) Such other classes of disputes which the
President may determine in the interest of justice or upon
the recommendation of the Secretary of Justice.”
There is no dispute herein that the present case was
never referred to the Barangay Lupon for conciliation
before Aure and Aure Lending instituted Civil Case No.
17450. In fact, no allegation of such barangay conciliation
proceedings was made in Aure and Aure Lending’s
Complaint before the MeTC. The only issue to be resolved
is whether non-recourse to the barangay conciliation
process is a jurisdictional flaw that warrants the
dismissal of the ejectment suit filed with the MeTC.
Aquino posits that failure to resort
to barangayconciliation makes the action for ejectment
premature and, hence, dismissible. She likewise avers
that this objection was timely raised during the pre-trial
and even subsequently in her Position Paper submitted to
the MeTC.
We do not agree.
It is true that the precise technical effect of failure to
comply with the requirement of Section 412 of the Local
Government Code on barangay conciliation (previously
contained in Section 5 of Presidential Decree No. 1508) is
much the same effect produced by non-exhaustion of
administrative remedies—the complaint becomes afflicted
with the vice of pre-maturity; and the controversy there
alleged is not ripe for judicial determination. The
complaint becomes vulnerable to a motion to
dismiss.22Nevertheless, the conciliation process is
not a jurisdictional requirement, so that non-
compliance therewith cannot affect the jurisdiction
which the court has otherwise acquired over the
subject matter or over the person of the
defendant.23
_______________
22 Uy v. Contreras, G.R. Nos. 111416-17, 26
September 1994, 237 SCRA 167, 170.
23 Presco v. Court of Appeals, G.R. No. 82215, 10
December 1990, 192 SCRA 232, 240-241.
83As enunciated in the landmark case of Royales v.
Intermediate Appellate Court:24
“Ordinarily, non-compliance with the condition
precedent prescribed by P.D. 1508 could affect the
sufficiency of the plaintiff's cause of action and make his
complaint vulnerable to dismissal on ground of lack of
cause of action or prematurity; but the same would not
prevent a court of competent jurisdiction from
exercising its power of adjudication over the case
before it, where the defendants, as in this case,
failed to object to such exercise of jurisdiction in
their answer and even during the entire
proceedings a quo.
While petitioners could have prevented the trial court
from exercising jurisdiction over the case by seasonably
taking exception thereto, they instead invoked the very
same jurisdiction by filing an answer and seeking
affirmative relief from it. What is more, they participated
in the trial of the case by cross-examining respondent
Planas. Upon this premise, petitioners cannot now
be allowed belatedly to adopt an inconsistent
posture by attacking the jurisdiction of the court to
which they had submitted themselves
voluntarily. x x x” (Emphasis supplied.)
In the case at bar, we similarly find that Aquino
cannot be allowed to attack the jurisdiction of the MeTC
over Civil Case No. 17450 after having submitted herself
voluntarily thereto. We have scrupulously examined
Aquino’s Answer before the MeTC in Civil Case No. 17450
and there is utter lack of any objection on her part to any
deficiency in the complaint which could oust the MeTC of
its jurisdiction.
We thus quote with approval the disquisition of the
Court of Appeals:
“Moreover, the Court takes note that the defendant
[Aquino] herself did not raise in defense the aforesaid lack
of conciliation proceedings in her answer, which raises the
exclusive affirmative defense of simulation. By this
acquiescence, defendant [Aquino] is deemed to have
waived such objection. As held in a case of similar
_______________
24 212 Phil. 432, 435-436; 127 SCRA 470, 473-474
(1984).
84circumstances, the failure of a defendant [Aquino] in
an ejectment suit to specifically allege the fact that there
was no compliance with the barangay conciliation
procedure constitutes a waiver of that defense. x x x.”25
By Aquino’s failure to seasonably object to the
deficiency in the Complaint, she is deemed to have
already acquiesced or waived any defect attendant
thereto. Consequently, Aquino cannot thereafter move for
the dismissal of the ejectment suit for Aure and Aure
Lending’s failure to resort to the barangay conciliation
process, since she is already precluded from doing so. The
fact that Aquino raised such objection during the pre-trial
and in her Position Paper is of no moment, for the issue of
non-recourse to barangaymediation proceedings should be
impleaded in her Answer.
As provided under Section 1, Rule 9 of the 1997 Rules
of Civil Procedure:
“Section 1. Defenses and objections not pleaded.—
Defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed
waived. However, when it appears from the pleadings or
the evidence on record that the court has no jurisdiction
over the subject matter, that there is another action
pending between the same parties for the same cause, or
that the action is barred by a prior judgment or by statute
of limitations, the court shall dismiss the claim.”
(Emphasis supplied.)
While the aforequoted provision applies to a pleading
(specifically, an Answer) or a motion to dismiss, a similar
or identical rule is provided for all other motions in
Section 8 of Rule 15 of the same Rule which states:
“Sec. 8. Omnibus Motion.—Subject to the provisions
of Section 1 of Rule 9, a motion attacking a pleading,
order, judgment, or proceeding shall include all objections
then available, and all objections not so included shall be
deemed waived.”
_______________
25 Rollo, p. 24.
85
The spirit that surrounds the foregoing statutory
norm is to require the party filing a pleading or motion to
raise all available exceptions for relief during the single
opportunity so that single or multiple objections may be
avoided.26 It is clear and categorical in Section 1, Rule 9 of
the Revised Rules of Court that failure to raise defenses
and objections in a motion to dismiss or in an answer is
deemed a waiver thereof; and basic is the rule in statutory
construction that when the law is clear and free from any
doubt or ambiguity, there is no room for construction or
interpretation.27 As has been our consistent ruling, where
the law speaks in clear and categorical language, there is
no occasion for interpretation; there is only room for
application.28 Thus, although Aquino’s defense of non-
compliance with Presidential Decree No. 1508 is
meritorious, procedurally, such defense is no longer
available for failure to plead the same in the Answer as
required by the omnibus motion rule.
Neither could the MeTC dismiss Civil Case No.
17450 motu proprio. The 1997 Rules of Civil Procedure
provide only three instances when the court may motu
propriodismiss the claim, and that is when the pleadings
or evidence on the record show that (1) the court has no
jurisdiction over the subject matter; (2) there is another
cause of action pending between the same parties for the
same cause; or (3) where the action is barred by a prior
judgment or by a statute of limitations. Thus, it is clear
that a court may not motu proprio dismiss a case on the
ground of failure to comply with the requirement
for barangay conciliation, this ground not being among
those mentioned for the dismissal by the trial court of a
case on its own initiative.
_______________
26 Manacop v. Court of Appeals, G.R. No. 104875, 13
November 1992, 215 SCRA 773, 778.
27 Twin Ace Holdings Corporation v. Rufina and
Company, G.R. No. 160191, 8 June 2006, 490 SCRA 368,
376.
28 Id.
86
Aquino further argues that the issue of possession in
the instant case cannot be resolved by the MeTC without
first adjudicating the question of ownership, since the
Deed of Sale vesting Aure with the legal right over the
subject property is simulated.
Again, we do not agree. Jurisdiction in ejectment
cases is determined by the allegations pleaded in the
complaint. As long as these allegations demonstrate a
cause of action either for forcible entry or for unlawful
detainer, the court acquires jurisdiction over the subject
matter. This principle holds, even if the facts proved
during the trial do not support the cause of action thus
alleged, in which instance the court—after acquiring
jurisdiction—may resolve to dismiss the action for
insufficiency of evidence.
The necessary allegations in a Complaint for
ejectment are set forth in Section 1, Rule 70 of the Rules
of Court, which reads:
“SECTION 1. Who may institute proceedings, and
when.—Subject to the provisions of the next succeeding
section, a person deprived of the possession of any land or
building by force, intimidation, threat, strategy, or
stealth, or a lessor, vendor, vendee, or other person
against whom the possession of any land or building is
unlawfully withheld after the expiration or termination of
the right to hold possession, by virtue of any contract,
express or implied, or the legal representatives or assigns
of any such lessor, vendor, vendee, or other person may at
any time within one (1) year after such unlawful
deprivation or withholding of possession, bring an action
in the proper Municipal Trial Court against the person or
persons unlawfully withholding or depriving of
possession, or any person or persons claiming under them,
for the restitution of such possession, together with
damages and costs.”
In the case at bar, the Complaint filed by Aure and
Aure Lending on 2 April 1997, alleged as follows:
“2. [Aure and Aure Lending] became the owners of a
house and lot located at No. 37 Salazar Street corner
Encarnacion Street, B.F. Homes, Quezon City by virtue of
a deed of absolute sale exe-87cuted by [the spouses
Aquino] in favor of [Aure and Aure Lending] although
registered in the name of x x x Ernesto S. Aure; title to
the said property had already been issued in the name of
[Aure] as shown by a transfer Certificate of Title, a copy
of which is hereto attached and made an integral part
hereof as Annex “A”;
3. However, despite the sale thus transferring
ownership of the subject premises to [Aure and Aure
Lending] as above-stated and consequently terminating
[Aquino’s] right of possession over the subject property,
[Aquino] together with her family, is continuously
occupying the subject premises notwithstanding several
demands made by [Aure and Aure Lending] against
[Aquino] and all persons claiming right under her to
vacate the subject premises and surrender possession
thereof to [Aure and Aure Lending] causing damage and
prejudice to [Aure and Aure Lending] and making
[Aquino’s] occupancy together with those actually
occupying the subject premises claiming right under her,
illegal.”29
It can be inferred from the foregoing that Aure,
together with Aure Lending, sought the possession of the
subject property which was never surrendered by Aquino
after the perfection of the Deed of Sale, which gives rise to
a cause of action for an ejectment suit cognizable by the
MeTC. Aure’s assertion of possession over the subject
property is based on his ownership thereof as evidenced
by TCT No. 156802 bearing his name. That Aquino
impugned the validity of Aure’s title over the subject
property and claimed that the Deed of Sale was simulated
should not divest the MeTC of jurisdiction over the
ejectment case.30
As extensively discussed by the eminent jurist
Florenz D. Regalado in Refugia v. Court of Appeals:31
“As the law on forcible entry and unlawful detainer 32 329 Phil. 202, 208; 260 SCRA 420, 426 (1996), as
cases now stands, even where the defendant raises the cited in Oronce v. Court of Appeals, 358 Phil. 616; 298
question of ownership in his pleadings and the question of SCRA 133 (1998).
possession cannot be resolved 89courts shall resolve the question of ownership raised as
an incident in an ejectment case where a determination
_______________ thereof is necessary for a proper and complete
adjudication of the issue of possession.33
WHEREFORE, premises considered, the instant
29 Records, pp. 1-2.
Petition is DENIED. The Court of Appeals Decision dated
30 Tecson v. Gutierez, G.R. No. 152928, 4 March 2005,
17 October 2001 and its Resolution dated 8 May 2002 in
452 SCRA 781, 786.
CA-G.R. SP No. 63733 are hereby AFFIRMED. Costs
31 327 Phil. 982, 1001-1002; 258 SCRA 347 (1996).
against the petitioner.
88without deciding the issue of ownership, the
SO ORDERED.
Metropolitan Trial Courts, Municipal Trial Courts, and
Ynares-Santiago (Chairperson), Austria-Martinez,
Municipal Circuit Trial Courts nevertheless have the
Nachura and Reyes, JJ., concur.
undoubted competence to resolve the issue of ownership
Petition denied, judgment and resolution affirmed.
albeit only to determine the issue of possession.
Notes.—Non-exhaustion of administrative remedies
x x x. The law, as revised, now provides instead
is not jurisdictional—it only renders the action
that when the question of possession cannot be
premature, i.e., the claimed cause of action is not ripe for
resolved without deciding the issue of ownership,
judicial determination and for that reason a party has no
the issue of ownership shall be resolved only to
cause of action to ventilate in court. (Carale vs. Abarintos,
determine the issue of possession. On its face, the
269 SCRA 132 [1997])
new Rule on Summary Procedure was extended to include
Cognizant of the beneficial effects of amicable
within the jurisdiction of the inferior courts ejectment
settlements, the Katarungang Pambarangay Law (P.D.
cases which likewise involve the issue of ownership. This
1508) and later the Local Government Code provide for a
does not mean, however, that blanket authority to
mechanism for conciliation where party-litigants can
adjudicate the issue of ownership in ejectment suits has
enter into an agreement in the barangay level to reduce
been thus conferred on the inferior courts.
the deterioration of the quality of justice due to
At the outset, it must here be stressed that the
indiscriminate filing of court cases. (Quiros vs. Arjona,
resolution of this particular issue concerns and applies
425 SCRA 57 [2004])
only to forcible entry and unlawful detainer cases where
——o0o——
the issue of possession is intimately intertwined with the
issue of ownership. It finds no proper application where it
_______________
is otherwise, that is, where ownership is not in issue, or
where the principal and main issue raised in the
allegations of the complaint as well as the relief prayed 33 Id.
for make out not a case for ejectment but one for recovery © Copyright 2018 Central Book Supply, Inc. All rights
of ownership.” reserved.
Apropos thereto, this Court ruled in Hilario v. Court
of Appeals:32
“Thus, an adjudication made therein regarding the
issue of ownership should be regarded as merely
provisional and, therefore, would not bar or prejudice an
action between the same parties involving title to the
land. The foregoing doctrine is a necessary consequence of
the nature of forcible entry and unlawful detainer cases
where the only issue to be settled is the physical or
material possession over the real property, that is,
possession de facto and not possession de jure.”
In other words, inferior courts are now “conditionally
vested with adjudicatory power over the issue of title or
ownership raised by the parties in an ejectment suit.”
These
_______________
 G.R. No. 185922. January 15, 2014.*
HEIRS OF DR. MARIANO FAVIS, SR., represented by
their co-heirs and Attorneys-in-Fact MERCEDES A.
FAVIS and NELLY FAVIS-VILLAFUERTE,
petitioners, vs. JUANA GONZALES, her son MARIANO
G. FAVIS, MA. THERESA JOANA D. FAVIS, JAMES
MARK D. FAVIS, all minors represented herein by their
parents, SPS. MARIANO FAVIS and LARCELITA D.
FAVIS, respondents.
Remedial Law; Civil Procedure; Dismissal of
Actions; Under the new rules, a court may motu proprio
dismiss a claim when it
_______________
* SECOND DIVISION.
569appears from the pleadings or evidence on
record that it has no jurisdiction over the subject matter;
when there is another cause of action pending between the
same parties for the same cause, or where the action is
barred by a prior judgment or by statute of limitations.—
Section 1, Rule 9 provides for only four instances when
the court may motu proprio dismiss the claim, namely: (a)
lack of jurisdiction over the subject matter; (b) litis
pendentia; (c) res judicata; and (d) prescription of action.
Specifically in Gumabon v. Larin, 370 SCRA 638
(2001) cited in Katon v. Palanca, Jr., 437 SCRA 565
(2004), the Court held: x x x [T]he motu proprio dismissal
of a case was traditionally limited to instances when the
court clearly had no jurisdiction over the subject matter
and when the plaintiff did not appear during trial, failed
to prosecute his action for an unreasonable length of time
or neglected to comply with the rules or with any order of
the court. Outside of these instances, any motu
proprio dismissal would amount to a violation of the right
of the plaintiff to be heard. Except for qualifying and
expanding Section 2, Rule 9, and Section 3, Rule 17, of the
Revised Rules of Court, the amendatory 1997 Rules of
Civil Procedure brought about no radical change. Under
the new rules, a court may motu proprio dismiss a claim
when it appears from the pleadings or evidence on record
that it has no jurisdiction over the subject matter; when
there is another cause of action pending between the
same parties for the same cause, or where the action is
barred by a prior judgment or by statute of limitations.
Same; Same; Pleadings and Practice; No suit
between members from the same family shall prosper
unless it should appear from the verified complaint that
earnest efforts toward a compromise have been made but
had failed.—That a condition precedent for filing the
claim has not been complied with, a ground for a motion
to dismiss emanating from the law that no suit between
members from the same family shall prosper unless it
should appear from the verified complaint that earnest
efforts toward a compromise have been made but had
failed, is, as the Rule so words, a ground for a motionto
dismiss. Significantly, the Rule requires that such a
motion should be filed “within the time for but before
filing the answer to the complaint or pleading asserting a
claim.” The time frame indicates that thereafter, the
motion to dismiss based on the absence of the condition
precedent is barred. It is so inferable from the opening
sentence of Section 1 of Rule 9 stating that defense and
objections not pleaded either in a motion to dismiss or in
the answer are
570deemed waived. There are, as just noted, only
four exceptions to this Rule, namely, lack of jurisdiction
over the subject matter; litis pendentia; res judicata; and
prescription of action. Failure to allege in the complaint
that earnest efforts at a compromise has been made but
had failed is not one of the exceptions. Upon such failure,
the defense is deemed waived.
Same; Same; Same; Cause of Action; A failure to
allege earnest but failed efforts at a compromise in a
complaint among members of the same family, is not a
jurisdictional defect but merely a defect in the statement of
a cause of action.—Thus was it made clear that a failure
to allege earnest but failed efforts at a compromise in a
complaint among members of the same family, is not a
jurisdictional defect but merely a defect in the statement
of a cause of action. Versoza was cited in a later case as an
instance analogous to one where the conciliation process
at the barangay level was not priorly resorted to. Both
were described as a “condition precedent for the filing of a
complaint in Court.” In such instances, the consequence is
precisely what is stated in the present Rule. Thus: x x x
The defect may however be waived by failing to make
seasonable objection, in a motion to dismiss or
answer, the defect being a mere procedural imperfection
which does not affect the jurisdiction of the court.
PETITION for review on certiorari of the decision and
resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Maria Cecilia I. Olivas for petitioners.
Benjamin P. Quitoriano for respondents.
PEREZ, J.:
Before this Court is a petition for review assailing the
10 April 2008 Decision[1] and 7 January 2009
Resolution[2] of the
_______________
[1] Penned by Associate Justice Vicente S.E. Veloso
with Associate Justices Rebecca De Guia-Salvador and
Apolinario D. Bruselas, Jr., concurring. Rollo, pp. 87-102.
571Court of Appeals in CA-G.R. CV No. 86497 dismissing
petitioners’ complaint for annulment of the Deed of
Donation for failure to exert earnest efforts towards a
compromise.
Dr. Mariano Favis, Sr. (Dr. Favis) was married to
Capitolina Aguilar (Capitolina) with whom he had seven
children named Purita A. Favis, Reynaldo Favis,
Consolacion Favis-Queliza, Mariano A. Favis, Jr., Esther
F. Filart, Mercedes A. Favis, and Nelly Favis-Villafuerte.
When Capitolina died in March 1944, Dr. Favis took
Juana Gonzales (Juana) as his common-law wife with
whom he sired one child, Mariano G. Favis (Mariano).
When Dr. Favis and Juana got married in 1974, Dr. Favis
executed an affidavit acknowledging Mariano as one of
his legitimate children. Mariano is married to Larcelita D.
Favis (Larcelita), with whom he has four children, named
Ma. Theresa Joana D. Favis, Ma. Cristina D. Favis,
James Mark D. Favis and Ma. Thea D. Favis.
Dr. Favis died intestate on 29 July 1995 leaving the
following properties:
1. A parcel of residential land located at
Bonifacio St. Brgy. 1, Vigan, Ilocos Sur, consisting
an area of 898 square meters, more or less,
bounded on the north by Salvador Rivero; on the
East by Eleutera Pena; on the South by Bonifacio
St., and on the West by Carmen Giron; x x x;
2. A commercial building erected on the
aforesaid parcel of land with an assessed value of
P126,000.00; x x x;
3. A parcel of residential land located in Brgy.
VII, Vigan, Ilocos Sur, containing an area of 154
sq. ms., more or less, bounded on the North by the
High School Site; on the East by Gomez St., on
the South by Domingo [G]o; and on the West by
Domingo Go; x x x;
4. A house with an assessed value of P17,600.00
x x x;
_______________
[2] Id., at pp. 103-106.
572
5. A parcel of orchard land located in Brgy. VI,
Vigan, Ilocos Sur, containing an area of 2,257 sq.
ma. (sic) more or less, bounded on the North by
Lot 1208; on the East by Mestizo River; on the
South by Lot 1217 and on the West by Lot 1211-
B, 1212 and 1215 x x x.[3]
Beginning 1992 until his death in 1995, Dr. Favis was
beset by various illnesses, such as kidney trouble, hiatal
hernia, congestive heart failure, Parkinson’s disease and
pneumonia. He died of “cardiopulmonary arrest secondary
to multi-organ/system failure secondary to sepsis
secondary to pneumonia.”[4]
On 16 October 1994, he allegedly executed a Deed of
Donation[5] transferring and conveying properties
described in (1) and (2) in favor of his grandchildren with
Juana.
Claiming that said donation prejudiced their legitime,
Dr. Favis’ children with Capitolina, petitioners herein,
filed an action for annulment of the Deed of Donation,
inventory, liquidation and partition of property before the
Regional Trial Court (RTC) of Vigan, Ilocos Sur, Branch
20 against Juana, Spouses Mariano and Larcelita and
their grandchildren as respondents. In their Answer with
Counterclaim, respondents assert that the properties
donated do not form part of the estate of the late Dr.
Favis because said donation was made inter vivos, hence
petitioners have no stake over said properties.[6]
 The RTC, in its Pre-Trial Order, limited the issues to
the validity of the deed of donation and whether or not
respondent Juana and Mariano are compulsory heirs of
Dr. Favis.[7]
_______________
[3] Id., at pp. 123-124.
[4] Records, p. 338.
[5] Id., at pp. 339-340.
[6] Id., at p. 34.
[7] Rollo, p. 172.
573In a Decision dated 14 November 2005, the RTC
nullified the Deed of Donation and cancelled the
corresponding tax declarations. The trial court found that
Dr. Favis, at the age of 92 and plagued with illnesses,
could not have had full control of his mental capacities to
execute a valid Deed of Donation. Holding that the
subsequent marriage of Dr. Favis and Juana legitimated
the status of Mariano, the trial court also declared Juana
and Mariano as compulsory heirs of Dr. Favis. The
dispositive portion reads:
WHEREFORE, in view of all the foregoing
considerations, the Deed of Donation dated
October 16, 1994 is hereby annulled and the
corresponding tax declarations issued on the basis
thereof cancelled. Dr. Mariano Favis, Sr. having
died without a will, his estate would result to
intestacy. Consequently, plaintiffs Heirs of Dr.
Mariano Favis, Sr., namely Purita A. Favis,
Reynaldo A. Favis, Consolacion F. Queliza,
Mariano A. Favis, Jr., Esther F. Filart, Mercedes
A. Favis, Nelly F. Villafuerte and the defendants
Juana Gonzales now deceased and Mariano G.
Favis, Jr. shall inherit in equal shares in the
estate of the late Dr. Mariano Favis, Sr. which
consists of the following:
1. A parcel of residential land located at
Bonifacio St. Brgy. 1, Vigan City, Ilocos Sur,
consisting an area of 89 sq. meters more or less,
bounded on the north by Salvador Rivero; on the
East by Eleutera Pena; on the South by Bonifacio
St., and on the West by Carmen Giron;
2. A commercial building erected on the
aforesaid parcel of land with an assessed value of
P126,000.00;
3. One-half (1/2) of the house located in Brgy.
VI, Vigan City, Ilocos Sur[,] containing an area of
2,257 sq. meters more or less, bounded on the
north by Lot 1208; on the east by Mestizo River;
on the South by Lot 1217 and on the West by Lot
1211-B, 1212 and 1215.
4. The accumulated rentals of the new Vigan
Coliseum in the amount of One Hundred Thirty
[Thousand]
574(P130,000.00) pesos per annum from the
death of Dr. Mariano Favis, Sr.[8]
Respondents interposed an appeal before the Court of
Appeals challenging the trial court’s nullification, on the
ground of vitiated consent, of the Deed of Donation in
favor of herein respondents. The Court of Appeals ordered
the dismissal of the petitioners’ nullification case.
However, it did so not on the grounds invoked by herein
respondents as appellant.
The Court of Appeals motu proprio ordered the
dismissal of the complaint for failure of petitioners to
make an averment that earnest efforts toward a
compromise have been made, as mandated by Article 151
of the Family Code. The appellate court justified its order
of dismissal by invoking its authority to review rulings of
the trial court even if they are not assigned as errors in
the appeal.
Petitioners filed a motion for reconsideration
contending that the case is not subject to compromise as it
involves future legitime.
The Court of Appeals rejected petitioners’ contention
when it ruled that the prohibited compromise is that
which is entered between the decedent while alive and
compulsory heirs. In the instant case, the appellate court
observed that while the present action is between
members of the same family it does not involve a testator
and a compulsory heir. Moreover, the appellate court
pointed out that the subject properties cannot be
considered as “future legitime” but are in fact, legitime, as
the instant complaint was filed after the death of the
decedent.
Undaunted by this legal setback, petitioners filed the
instant petition raising the following arguments:
1. The Honorable Court of Appeals GRAVELY
and SERIOUSLY ERRED in DISMISSING the
COMPLAINT.
_______________
[8] Id., at pp. 208-209.
575
2. Contrary to the finding of the Honorable
Court of Appeals, the verification of the complaint
or petition is not a mandatory requirement.
3. The Honorable Court of Appeals seriously
failed to appreciate that the filing of an
intervention by Edward Favis had placed the case
beyond the scope of Article 151 of the Family
Code.
4. Even assuming arguendo without admitting
that the filing of intervention by Edward Favis
had no positive effect to the complaint filed by
petitioners, it is still a serious error for the
Honorable Court of Appeals to utterly disregard
the fact that petitioners had substantially
complied with the requirements of Article 151 of
the Family Code.
5. Assuming arguendo that petitioners cannot
be construed as complying substantially with
Article 151 of the Family Code, still, the same
should be considered as a nonissue considering
that private respondents are in estoppel.
6. The dismissal of the complaint by the
Honorable Court of Appeals amounts to grave
abuse of discretion amounting to lack and excess
of jurisdiction and a complete defiance of the
doctrine of primacy of substantive justice over
strict application of technical rules.
7. The Honorable Court of Appeals gravely
and seriously erred in not affirming the decision
of the Court a quo that the Deed of Donation is
void.[9]
In their Comment, respondents chose not to touch
upon the merits of the case, which is the validity of the
deed of donation. Instead, respondents defended the
ruling the Court of Appeals that the complaint is
dismissible for failure of petitioners to allege in their
complaint that earnest efforts towards a compromise have
been exerted.
_______________
[9] Id., at pp. 61-71.
576
The base issue is whether or not the appellate court
may dismiss the order of dismissal of the complaint for
failure to allege therein that earnest efforts towards a
compromise have been made.
The appellate court committed egregious error in
dismissing the complaint. The appellate courts’ decision
hinged on Article 151 of the Family Code, viz.:
Art. 151. No suit between members of the
same family shall prosper unless it should appear
from the verified complaint or petition that
earnest efforts toward a compromise have been
made, but that the same have failed. If it is shown
that no such efforts were in fact made, the case
must be dismissed.
This rule shall not apply to cases which may
not be the subject of compromise under the Civil
Code.
The appellate court correlated this provision with
Section 1, par. (j), Rule 16 of the 1997 Rules of Civil
Procedure, which provides:
Section 1. Grounds.—Within the time for
but before filing the answer to the complaint or
pleading asserting a claim, a motion to dismiss
may be made on any of the following grounds:
xxxx
(j) That a condition precedent for filing the claim
has not been complied with.
The appellate court’s reliance on this provision is
misplaced. Rule 16 treats of the grounds for a motion to
dismiss the complaint. It must be distinguished from the
grounds provided under Section 1, Rule 9 which
specifically deals with dismissal of the claim by the
court motu proprio. Section 1, Rule 9 of the 1997 Rules of
Civil Procedure provides:577
Section 1. Defenses and objections not
pleaded.—Defenses and objections not pleaded
either in a motion to dismiss or in the answer are
deemed waived. However, when it appears from
the pleadings or the evidence on record that the
court has no jurisdiction over the subject matter,
that there is another action pending between the
same parties for the same cause, or that the
action is barred by a prior judgment or by statute
of limitations, the court shall dismiss the claim.
Section 1, Rule 9 provides for only four instances
when the court may motu proprio dismiss the claim,
namely: (a) lack of jurisdiction over the subject matter;
(b) litis pendentia; (c) res judicata; and (d) prescription of
action.[10]Specifically in Gumabon v. Larin,[11] cited
in Katon v. Palanca, Jr.,[12] the Court held:
x x x [T]he motu proprio dismissal of a case was
traditionally limited to instances when the court
clearly had no jurisdiction over the subject matter
and when the plaintiff did not appear during
trial, failed to prosecute his action for an
unreasonable length of time or neglected to
comply with the rules or with any order of the
court. Outside of these instances, any motu
proprio dismissal would amount to a violation of
the right of the plaintiff to be heard. Except for
qualifying and expanding Section 2, Rule 9, and
Section 3, Rule 17, of the Revised Rules of Court,
the amendatory 1997 Rules of Civil Procedure
brought about no radical change. Under the new
rules, a court may motu proprio dismiss a claim
when it appears from the pleadings or evidence on
record that it has no jurisdiction over the subject
matter; when there is another cause of action
pending between the same parties
_______________
[10] P.L. Uy Realty Corporation v. ALS Management
and Development Corp., G.R. No. 166462, 24 October
2012, 684 SCRA 453, 464-465.
[11] 422 Phil. 222, 230; 370 SCRA 638, 643-644
(2001).
[12] 481 Phil. 168, 180; 437 SCRA 565, 573-574
(2004).
578for the same cause, or where the action is
barred by a prior judgment or by statute of
limitations. x x x.[13]
The error of the Court of Appeals is evident even if
the consideration of the issue is kept within the confines
of the language of Section 1(j) of Rule 16 and Section 1 of
Rule 9. That a condition precedent for filing the claim has
not been complied with, a ground for a motion to dismiss
emanating from the law that no suit between members
from the same family shall prosper unless it should
appear from the verified complaint that earnest efforts
toward a compromise have been made but had failed, is,
as the Rule so words, a ground for a motion to dismiss.
Significantly, the Rule requires that such a motion should
be filed “within the time for but before filing the answer to
the complaint or pleading asserting a claim.” The time
frame indicates that thereafter, the motion to dismiss
based on the absence of the condition precedent is barred.
It is so inferable from the opening sentence of Section 1 of
Rule 9 stating that defense and objections not pleaded
either in a motion to dismiss or in the answer are deemed
waived. There are, as just noted, only four exceptions to
this Rule, namely, lack of jurisdiction over the subject
matter; litis pendentia; res judicata; and prescription of
action. Failure to allege in the complaint that earnest
efforts at a compromise has been made but had failed is
not one of the exceptions. Upon such failure, the defense
is deemed waived.
It was in Heirs of Domingo Valientes v.
Ramas[14] cited in P.L. Uy Realty Corporation v. ALS
Management and Development Corporation[15] where we
noted that the second sentence of Section 1 of Rule 9 does
not only supply exceptions to the rule that defenses not
pleaded either in a motion to dismiss or in the answer are
deemed waived, it also allows courts to dismiss
cases motu propio on any of the enumerated
_______________
[13] Gumabon v. Larin, supra note 11 at p. 230; pp.
643-644.
[14] G.R. No. 157852, 15 December 2010, 638 SCRA
444, 451.
[15] Supra note 10 at p. 465.
579grounds. The tenor of the second sentence of the Rule
is that the allowance of a motu propio dismissal can
proceed only from the exemption from the rule on waiver;
which is but logical because there can be no ruling on a
waived ground.
Why the objection of failure to allege a failed attempt
at a compromise in a suit among members of the same
family is waivable was earlier explained in the case
of Versoza v. Versoza,[16] a case for future support which
was dismissed by the trial court upon the ground that
there was no such allegation of infringement of Article
222 of the Civil Code, the origin of Article 151 of the
Family Code. While the Court ruled that a complaint for
future support cannot be the subject of a compromise and
as such the absence of the required allegation in the
complaint cannot be a ground for objection against the
suit, the decision went on to state thus:
The alleged defect is that the present
complaint does not state a cause of action. The
proposed amendment seeks to complete it. An
amendment to the effect that the requirements of
Article 222 have been complied with does not
confer jurisdiction upon the lower court. With or
without this amendment, the subject-matter of
the action remains as one for support, custody of
children, and damages, cognizable by the court
below.
To illustrate, Tamayo v. San Miguel Brewery,
Inc.,[17]allowed an amendment which “merely
corrected a defect in the allegation of plaintiff-
appellant’s cause of action, because as it then
stood, the original complaint stated no cause of
action.” We there ruled out as inapplicable the
holding in Campos Rueda Corporation v.
Bautista,[18] that an amendment cannot be made
so as to confer jurisdiction on the court x x x.
(Italics supplied).
_______________
[16] 135 Phil. 84, 94; 26 SCRA 78, 87 (1968).
[17] 119 Phil. 368; 10 SCRA 115 (1964).
[18] 116 Phil. 546; 6 SCRA 240 (1962).
580Thus was it made clear that a failure to allege
earnest but failed efforts at a compromise in a complaint
among members of the same family, is not a jurisdictional
defect but merely a defect in the statement of a cause of
action. Versoza was cited in a later case as an instance
analogous to one where the conciliation process at
the barangay level was not priorly resorted to. Both were
described as a “condition precedent for the filing of a
complaint in Court.”[19] In such instances, the
consequence is precisely what is stated in the present
Rule. Thus:
x x x The defect may however be waived by
failing to make seasonable objection, in a motion
to dismiss or answer, the defect being a mere
procedural imperfection which does not affect the
jurisdiction of the court.[20] (Underscoring
supplied).
In the case at hand, the proceedings before the trial
court ran the full course. The complaint of petitioners was
answered by respondents without a prior motion to
dismiss having been filed. The decision in favor of the
petitioners was appealed by respondents on the basis of
the alleged error in the ruling on the merits, no mention
having been made about any defect in the statement of a
cause of action. In other words, no motion to dismiss the
complaint based on the failure to comply with a condition
precedent was filed in the trial court; neither was such
failure assigned as error in the appeal that respondent
brought before the Court of Appeals.
Therefore, the rule on deemed waiver of the non-juris-
dictional defense or objection is wholly applicable to
respondent. If the respondents as parties-defendants
could not, and
_______________
[19] Peregrina v. Hon. Panis, 218 Phil. 90, 92; 133
SCRA 72, 75 (1984).
[20] Agbayani v. Hon. Belen, 230 Phil. 39, 42; 145
SCRA 635, 638 (1986) citing Catorce v. Court of Appeals,
214 Phil. 181; 129 SCRA 210 (1984).
581did not, after filing their answer to petitioner’s
complaint, invoke the objection of absence of the required
allegation on earnest efforts at a compromise, the
appellate court unquestionably did not have any authority
or basis to motu propio order the dismissal of petitioner’s
complaint.
Indeed, even if we go by the reason behind Article 151
of the Family Code, which provision as then Article 222 of
the New Civil Code was described as “having been given
more teeth”[21] by Section 1(j), Rule 16 of the Rules of
Court, it is safe to say that the purpose of making sure
that there is no longer any possibility of a compromise,
has been served. As cited in commentaries on Article 151
of the Family Code —
This rule is introduced because it is difficult
to imagine a sudden and more tragic spectacle
than a litigation between members of the same
family. It is necessary that every effort should be
made towards a compromise before a litigation is
allowed to breed hate and passion in the family. It
is known that a lawsuit between close relatives
generates deeper bitterness than between
strangers.[22]
The facts of the case show that compromise was never
an option insofar as the respondents were concerned. The
impossibility of compromise instead of litigation was
shown not alone by the absence of a motion to dismiss but
on the respondents’ insistence on the validity of the
donation in their favor of the subject properties. Nor could
it have been otherwise because the Pre-trial Order
specifically limited the issues to the validity of the deed
and whether or not respondent Juana and Mariano are
compulsory heirs of Dr. Favis. Respondents not only
confined their arguments within the pre-trial order; after
losing their case, their appeal was based on the
proposition that it was error for the trial court to have
_______________
[21] Verzosa v. Verzosa, supra note 16 at p. 88; p. 82.
[22] Paras, Report of the Code Commission, Code
Commission of the Philippines Annotated, 14th Ed., Vol. 1,
p. 579.
582relied on the ground of vitiated consent on the part of
Dr. Favis.
The Court of Appeals ignored the facts of the case
that clearly demonstrated the refusal by the respondents
to compromise. Instead it ordered the dismissal of
petitioner’s complaint on the ground that it did not allege
what in fact was shown during the trial. The error of the
Court of Appeals is patent.
Unfortunately for respondents, they relied completely
on the erroneous ruling of the Court of Appeals even when
petitioners came to us for review not just on the basis of
such defective motu proprio action but also on the
proposition that the trial court correctly found that the
donation in question is flawed because of vitiated consent.
Respondents did not answer this argument.
The trial court stated that the facts are:
x x x To determine the intrinsic validity of the
deed of donation subject of the action for
annulment, the mental state/condition of the
donor Dr. Mariano Favis, Sr. at the time of its
execution must be taken into account. Factors
such as his age, health and environment among
others should be considered. As testified to by Dr.
Mercedes Favis, corroborated by Dr. Edgardo
Alday and Dra. Ofelia Adapon, who were all
presented as expert witnesses, Dr. Mariano Favis,
Sr. had long been suffering from Hiatal Hernia
and Parkinson’s disease and had been taking
medications for years. That a person with
Parkinson’s disease for a long time may not have
a good functioning brain because in the later
stage of the disease, 1/3 of death develop from this
kind of disease, and or dementia. With respect to
Hiatal Hernia, this is a state wherein organs in
the abdominal cavity would go up to the chest
cavity, thereby occupying the space for the lungs
causing the lungs to be compromised. Once the
lungs are affected, there is less oxygenation to the
brain. The Hernia would cause the heart not to
pump enough oxygen to the brain and the effect
would be chronic, meaning, longer lack of
oxygenation to the brain will
583make a person not in full control of his
faculties. Dr. Alday further testified that during
his stay with the house of Dr. Mariano Favis, Sr.
(1992-1994), he noticed that the latter when he
goes up and down the stairs will stop after few
seconds, and he called this pulmonary cripple — a
very advanced stage wherein the lungs not only
one lung, but both lungs are compromised. That
at the time he operated on the deceased, the left
and right lung were functioning but the left lung
is practically not even five (5%) percent
functioning since it was occupied by abdominal
organ. x x x.
Dr. Mariano Favis, Sr. during the execution
of the Deed of Donation was already 92 years old;
living with the defendants and those years from
1993 to 1995 were the critical years when he was
sick most of the time. In short, he’s dependent on
the care of his housemates particularly the
members of his family. It is the contention of the
defendants though that Dr. Mariano Favis, Sr.
had full control of his mind during the execution
of the Deed of Donation because at that time, he
could go on with the regular way of life or could
perform his daily routine without the aid of
anybody like taking a bath, eating his meals,
reading the newspaper, watching television, go to
the church on Sundays, walking down the plaza
to exercise and most importantly go to the cockpit
arena and bet. Dr. Ofelia Adapon, a neurology
expert however, testified that a person suffering
from Parkinson’s disease when he goes to the
cockpit does not necessarily mean that such
person has in full control of his mental faculties
because anyone, even a retarded person, a person
who has not studied and have no intellect can go
to the cockpit and bet. One can do everything but
do not have control of his mind. x x x That Hiatal
Hernia creeps in very insidiously, one is not sure
especially if the person has not complained and no
examination was done. It could be there for the
last time and no one will know. x x x.
The Deed of Donation in favor of the
defendants Ma. Theresa, Joana D. Favis, Maria
Cristina D. Favis, James Mark D. Favis and
Maria Thea D. Favis, all of
584whom are the children of Mariano G. Favis,
Jr. was executed on [16 October] 1994, seven (7)
months after Dra. Mercedes Favis left the house
of Dr. Favis, Sr. at Bonifacio St., Vigan City,
Ilocos Sur, where she resided with the latter and
the defendants.
Putting together the circumstances
mentioned, that at the time of the execution of the
Deed of Donation, Dr. Mariano Favis, Sr. was
already at an advanced age of 92, afflicted with
different illnesses like Hiatal hernia, Parkinsons’
disease and pneumonia, to name few, which
illnesses had the effects of impairing his brain or
mental faculties and the deed being executed only
when Dra. Me[r]cedes Favis had already left his
father’s residence when Dr. Mariano Favis, Sr.
could have done so earlier or even in the presence
of Dra. Mercedes Favis, at the time he executed
the Deed of Donation was not in full control of his
mental faculties. That although age of senility
varies from one person to another, to reach the
age of 92 with all those medications and
treatment one have received for those illnesses,
yet claim that his mind remains unimpaired,
would be unusual. The fact that the Deed of
Donation was only executed after Dra. Mercedes
Favis left his father’s house necessarily indicates
that they don’t want the same to be known by the
first family, which is an indicia of bad faith on
the part of the defendant, who at that time had
influence over the donor.[23]
The correctness of the finding was not touched by the
Court of Appeals. The respondents opted to rely only on
what the appellate court considered, erroneously though,
was a procedural infirmity. The trial court’s factual
finding, therefore, stands unreversed; and respondents
did not provide us with any argument to have it reversed.
The issue of the validity of donation was fully
litigated and discussed by the trial court. Indeed, the trial
court’s findings were placed at issue before the Court of
Appeals but the appellate court chose to confine its review
to the procedural
_______________
[23] Rollo, pp. 433-435.
585aspect. The judgment of the Court of Appeals, even if
it dealt only with procedure, is deemed to have covered all
issues including the correctness of the factual findings of
the trial court. Moreover, remanding the case to the Court
of Appeals would only constitute unwarranted delay in
the final disposition of the case.
WHEREFORE, the Decision of the Court of Appeals
is REVERSED and SET ASIDE and the Judgment of
the Regional Trial Court of Vigan, Ilocos Sur, Branch 20
is AFFIRMED.
SO ORDERED.
Carpio (Chairperson), Brion, Del
Castillo and Perlas-Bernabe, JJ., concur.
Judgment reversed and set aside.
Notes.—To be a sufficient ground for dismissal, delay
must not only be lengthy but also unnecessary resulting
in the trifling of court processes. (Republic vs. Heirs of
Enrique Oribello, Jr., 692 SCRA 645 [2013])
Not all petitions or complaints reach reply or
memorandum stage. Depending on the merits of the case,
the Court has the discretion either to proceed with the
case by first requiring the parties to file their respective
responsive pleadings or to dismiss the same outright.
(Rodica vs. Lazaro, 693 SCRA 273 [2013])
——o0o——
© Copyright 2018 Central Book Supply, Inc. All rights
reserved.

VOL. 172, APRIL 17, 1989
Go vs. Cruz
G.R. No. 58986. April 17, 1989.*
DANTE Y. GO, petitioner, vs. HON. FERNANDO CRUZ,
Judge, etc., CITY SHERIFF OF CALOOCAN CITY, and
CALIFORNIA MANUFACTURING CO., INC.,
respondents.
Remedial Law; Civil Procedure; Dismissal of
actions; Loss by plaintiff of the right to cause dismissal of
the action by mere notice is not the filing of defendant’s
answer with the court but the service on the plaintiff of the
answer or of a motion for summary judgment; What the
filing of pleadings, appearances, motions, notices, orders
and other papers with the court means; Service, meaning
of.–––The petitioner is in error. What marks the loss by a
plaintiff of the right to cause dismissal of the action by
mere notice is not the filing of the defendant’s answer
with the Court (either personally or by mail) but
the service on the plaintiff of said answer or of a motion
for summary judgment. This is the plain and explicit
message of the Rules. “The filing of pleadings,
appearances, motions, notices, orders and other papers
with the court,” according to Section 1, Rule 13 of the
Rules of Court, means the delivery thereof to the clerk of
the court either personally or by registered mail. Service,
on the other hand, signifies delivery of the pleading or
other paper to the parties affected thereby through their
counsel of record, unless delivery to the party himself is
ordered by the court, by any of the modes set forth in the
Rules, i.e., by personal service, service by mail, or
substituted service.
Same; Same; Same; Same; In case at bar,
respondent filed its notice of dismissal of its action in the
Manila court after the filing of plaintiff’s answer but
before service thereof.–––Here, California filed its notice of
dismissal of its action in the Manila Court after the
filing of Dante Go’s answer but before service
thereof. Thus having acted well within the letter and
contemplation of the afore-quoted Section 1 of Rule 17 of
the Rules of Court, its notice ipso factobrought about the
dismissal of the action then pending in the Manila Court,
without need of any order or other action by the Presiding
Judge. The dismissal was effected without regard to
whatever reasons or motives California might have had
for bringing it about, and was, as the same Section 1, Rule
17 points out, “without prejudice,” the contrary not being
otherwise “stated in the notice” and it being the first time
the action was being so dismissed.
________________
*FIRST DECISION.
248
2 SUPREME COURT REPORTS ANNOTATED
247
48
Go vs. Cruz
Same; Same; Same; Same; No legal obstacle to the
institution of the second action in the Caloocan court
based on the same claim;Filing of the complaint invested
the Caloocan court with jurisdiction of the subject matter
or nature of the action; Pendency of the first action gives
the defendant the right to move for dismissal of the second
action on the ground of litis pendentia.–––There was
therefore no legal obstacle to the institution of the second
action in the Caloocan Court of First Instance based on
the same claim. The filing of the complaint invested it
with jurisdiction of the subject matter or nature of the
action. In truth, and contrary to what petitioner Dante Go
obviously believes, even if the first action were still
pending in the Manila Court, this circumstance would not
affect the jurisdiction of the Caloocan Court over the
second suit. The pendency of the first action would merely
give the defendant the right to move to dismiss the second
action on the ground of auter action pendant, or litis
pendentia.
PETITION for certiorari to review the restraining order
issued by the Court of First Instance of Rizal, Br. 12.
Cruz, J.
The facts are stated in the opinion of the Court.
De Santos, Balgos & Perez for petitioner.
Francisco N. Carreon, Jr. for respondents.
NARVASA, J.:
The dismissal of civil actions is always addressed to the
sound judgment and discretion of the court; this, whether
the dismissal is sought after a trial has been completed or
otherwise,1 or whether it is prayed for by a defending
party,2 or by a plaintiff or claimant.3 There is one instance
however where the dismissal of an action rests exclusively
on the will of a plaintiff or claimant, to prevent which the
defending party and even the court itself is powerless,
requiring in fact no action what-
________________
1 E.g., as on demurrer to evidence, in accordance with
Rule 35 of the Rules of Court, or by motion to dismiss by a
defending party in accordance with Rule 16, or Sec. 3,
Rule 17, or at the instance of the plaintiff pursuant to Sec.
2 of Rule 17.
2 Rule 16, and Sec. 3, Rule 17, Rules of Court, supra.
3 Sec. 2, Rule 17, Rules of Court, supra.
249
VOL. 172, APRIL 17, 1989
Go vs. Cruz
ever on the part of the court except the acceptance and
recording of the causative document. This is dealt with in
Section 1, Rule 17 of the Rules of Court, which reads as
follows:
SECTION 1. Dismissal by the plaintiff.–––An action may
be dismissed by the plaintiff without order of court by
filing a notice of dismissal at any time before service of
the answer or of a motion for summary judgment. Unless
otherwise stated in the notice, the dismissal is without
prejudice, except that a notice operates as an adjudication
upon the merits when filed by a plaintiff who has once
dismissed in a competent court an action based on or
including the same claim. A class suit shall not be
dismissed or compromised without approval of the court.
It is this provision with which the proceedings at bar are
chiefly concerned.
On October 26, 1981, California Manufacturing Co.,
Inc. (hereinafter, simply, California) brought an action in
the Court of First Instance of Manila against Dante Go,
accusing him of unfair competition.4 The gravamen of
California’s complaint was that Dante Go, doing business
under the name and style of “Sugarland International
Products,”and engaged like California in the manufacture
of spaghetti, macaroni, and other pasta, was selling his
products in the open market under the brand name,
“Great Italian,” in packages which were in colorable and
deceitful imitation of California’s containers bearing its
own brand, “Royal.” Its complaint contained an
application for preliminary injunction commanding Dante
Go to immediately cease and desist from the further
manufacture, sale and distribution of said products, and
to retrieve those already being offered for sale.5
About two weeks later, however, or on November 12,
1981, California filed a notice of dismissal with the Court
reading as follows:6
________________
4 The action was docketed as Case No. 144362 and
was assigned to Branch XV then presided over by Hon.
Ernesto Tengco.
5 Rollo, p. 19.
6 Id., p. 112.
250
250 SUPREME COURT REPORTS ANNOTAT
Go vs. Cruz
COMES NOW the plaintiff in the above-entitled case,
through undersigned counsel, and unto this Honorable
Court most respectfully gives notice of dismissal without
prejudice pursuant to Sec. 1, Rule 17 of the Rules of
Court.
 WHEREFORE, it is respectfully prayed that the
above-entitled case be considered dismissed without
prejudice conformably with Sec. 1, Rule 17 of the Rules of
Court.
Four days afterwards, or on November 16, 1981,
California received by registered mail a copy of Dante
Go’s answer with counterclaim dated November 6, 1981,
which had been filed with the Court on November 9,
1981.7
On November 19, 1981 a fire broke out at the Manila
City Hall destroying among others the sala of Judge
Tengco and the records of cases therein kept, including
that filed by California against Dante Go.8
On December 1, 1981, California filed another
complaint asserting the same cause of action against
Dante Go, this time with the Court of First Instance at
Caloocan City.9This second suit was docketed as Civil
Case No. C-9702and was assigned to the branch presided
over by Judge Fernando A. Cruz.
On December 3, 1981, Judge Cruz issued an ex
parterestraining order directing “the defendant x x to
immediately cease and desist from the further
manufacture, sale, promotion and distribution of
spaghetti, macaroni and other pasta products contained
in packaging boxes and labels under the name ‘GREAT
ITALIAN,’ which are similar to or copies of those of the
plaintiff, and x x recall x x all his spaghetti, macaroni and
other pasta products using the brand, ‘GREAT ITALIAN.’
”10
On the day following the rendition of the restraining
order, Dante Go filed the present petition
for certiorari, etc. with this Court praying for its
nullification and perpetual inhibition. On December 11,
1981, this Court, in turn, issued a writ of pre-
________________
7 Id., pp. 62-72, 222, 223.
8 Id., pp. 157, 173.
9 Id., pp. 22-35.
10 Id., p. 53.
251
VOL. 172, APRIL 17, 1989
Go vs. Cruz
liminary injunction restraining California, Judge Cruz
and the City Sheriff from enforcing or implementing the
restraining order of December 3, 1981, and from
continuing with the hearing on the application for
preliminary injunction in said Civil Case No. C-9702. The
scope of the injunction was subsequently enlarged by this
Court’s Resolution of April 14, 1982 to include the City
Fiscal of Manila, who was thereby restrained from
proceeding with the case of unfair competition filed in his
office by California against Dante Go.11
Dante Go’s thesis is that the case filed against him by
California in the Manila Court remained pending despite
California’s notice of dismissal. According to him, since he
had already filed his answer to the complaint before
California sought dismissal of the action three (3) days
afterwards, such dismissal was no longer a matter of right
and could no longer be effected by mere notice in
accordance with Section 1, Rule 17 of the Rules of Court,
but only on plaintiff’s motion, and by order of the Court;
hence, the Caloocan Court acted without jurisdiction over
the second action based on the same cause. He also
accused California of forum shopping, of selecting a
sympathetic court for a relief which it had failed to obtain
from another.12
The petitioner is in error. What marks the loss by a
plaintiff of the right to cause dismissal of the action by
mere notice is not the filing of the defendant’s answer
with the Court (either personally or by mail) but
the service on the plaintiff of said answer or of a motion
for summary judgment. This is the plain and explicit
message of the Rules.13 “The filing of pleadings,
appearances, motions, notices, orders and other papers
with the court,” according to Section 1, Rule 13 of the
Rules of Court, means the delivery thereof to the clerk of
the court either personally or by registered mail. Service,
on the other hand, signifies delivery of the pleading or
other paper to the parties affected thereby through their
counsel of record, unless
______________
11 I.S. No. 81-26997.
12 Rollo, p. 199.
13 Sec. 1, Rule 17, supra.
252
252 SUPREME COURT REPORTS ANNOTATED Note.–––One of the grounds for a motion to dismiss
Go vs. Cruz
delivery to the party himself is ordered by the court, 14 by cause. In order that this ground may be availed of there
any of the modes set forth in the Rules, i.e., by personal
service,15 service by mail,16 or substituted service.17
Here, California filed its notice of dismissal of its
action in the Manila
251 Court after the filing of Dante Go’s identity of rights asserted and prayed for, the relief being
answer but before service thereof. Thus having acted well
within the letter and contemplation of the afore-quoted
Section 1 of Rule 17 of the Rules of Court, its notice ipso the pending case, regardless of which party is successful,
factobrought about the dismissal of the action then
pending in the Manila Court, without need of any order or
other action by the Presiding Judge. The dismissal was
effected without regard to whatever reasons or motives
California might have had for bringing it about, and was,
as the same Section 1, Rule 17 points out, “without
prejudice,” the contrary not being otherwise “stated in the reserved.
notice” and it being the first time the action was being so
dismissed.
There was therefore no legal obstacle to the
institution of the second action in the Caloocan Court of
First Instance based on the same claim. The filing of the
complaint invested it with jurisdiction of the subject
matter or nature of the action. In truth, and contrary to
what petitioner Dante Go obviously believes, even if the
first action were still pending in the Manila Court, this
circumstance would not affect the jurisdiction of the
Caloocan Court over the second suit. The pendency of the
first action would merely give the defendant the right to
move to dismiss the second action on the ground of auter
action pendant, or litis pendentia.18
WHEREFORE, the petition is DISMISSED, with
costs against petitioner. The temporary restraining order
of December 11, 1981, and the amendatory Resolution of
April 14, 1982 are SET ASIDE.
________________
14Sec. 2, Rule 13.
15Sec. 4, Rule 13.
16 Sec. 5, Rule 13.
17 Sec. 6, Rule 13.
18 Sec. 1(e), Rule 16, Rules of Court, i.e.: “That there is
another action pending between the same parties for the
same cause;” SEE Buan v. Lopez, 145 SCRA
34 (1986), Laroza v. Guia, 134 SCRA 341 (1985).
253
VOL. 172, APRIL 17, 1989
Tanjay Water District vs. Gabaton
Cruz, Gancayco, Griño-Aquino and Medialdea,
JJ.,concur.
Petition dismissed. Restraining order and amendatory
resolution set aside.
under Rule 16 of the Rules of Court is the pendency of
another action between the same parties for the same
must be, between the action under consideration and the
other action: (1) Identity of the parties or at least such as
representing the same interest in both actions; (2)
founded on the same facts; and (3) the identity in both
cases is such that the judgment which may be rendered in
would amount to res judicata in the other case. (Drilon vs.
Gaurana, 149 SCRA 342.)
–––––o0o–––––
© Copyright 2018 Central Book Supply, Inc. All rights

100 SUPREME COURT REPORTS ANNOTATED
Jalover vs. Ytoriaga
No. L-35989. October 28, 1977. *
FERMIN JALOVER, petitioner, vs. PORFERIO
YTORIAGA, CONSOLACION LOPEZ and HON.
VENICIO ESCOLIN, in his capacity as Presiding Judge,
Branch V, Court of First Instance of Iloilo, respondents.
Remedial Law; Court of processes; Notices; when a
party is represented by counsel, notice of court processes
should be made upon such counsel and notice upon party
himself not considered notice in law unless service upon
party is ordered by the court; Court’s dismissal, order of
case does not become final without notice to counsel of
record.—It is settled that when a party is represented by
counsel, notice should be made upon the counsel, and
notice upon the party himself is not considered notice in
law unless service upon the party is ordered by the court.
The term “every written notice” used in Section 2 of Rule
13 includes noticed decisions or orders. Private
respondents’ counsel of record not having been served
with notice of the order dismissing the case, the said order
did not become final.
Same; Same; Same; Court processes should be
served to counsel of record in the absence of formal
withdrawal of counsel in the case, nor his substitution as
such counsel by his clients or his dismissal as counsel.—
Petitioner argues that since private respondents’ counsel
of record, Atty. Atol, had been appointed Chief of the
Secret Service of the Iloilo City Police Department, he was
not anymore allowed to practice law, hence, private
respondents being no longer represented by counsel,
notice to them should be deemed legally effective. The
argument is not valid, for its fails to consider the need of
observing a legal formality before a counsel of record may
be considered relieved
_______________
* SECOND DIVISION.
101
VOL. 80, OCTOBER 28, 1977
Jalover vs. Ytoriaga
of his responsibility as such counsel on account of
withdrawal. A lawyer’s withdrawal as counsel must be
made in a formal petition filed in the case, and where no
such petition has been accomplished, notice of judgment
rendered in the case served on the counsel of record is, for
all legal purposes, notice to the client, the date of receipt
of which is considered the starting point from which the
period of appeal prescribed by law shall begin to run. Not
having withdrawn formally as counsel in the case, nor
having been substituted by his clients with another
lawyer, or dismissed as such counsel, Atty. Atol was, for
all legal purposes, private respondents’ attorney upon
whom the court’s processes should have been served.
Same; Absence of respondent at a hearing not
considered failure to prosecute where plaintiffs had
already adduced evidence and rested their case before
dismissal of said case and it is respondents’ turn to
present evidence; Can only be construed as waiver to cross-
examine witnesses; right to cross-examine witnesses
and/or object to evidence of a party rights that can be
waived.—As found by respondent Judge, private
respondents, as plaintiffs, adduced their evidence and
rested their case on September 4, 1963, or more than six
years before the dismissal of the case on January 26,
1970. It was, therefore, the turn of petitioner, as
defendant, to present his evidence. In the premises,
private respondents could not possibly have failed to
prosecute; they were already past the stage where they
could still be charged with such failure. As correctly held
by respondent Judge, private respondents’ absence at the
hearing scheduled on January 26, 1970 “can only be
construed as a waiver on their part to cross-examine the
witnesses that defendants might present at the
continuation of trial and to object to the admissibility of
the latter’s evidence.” The right to cross-examine
petitioner’s witnesses and/or object to his evidence is a
right that belongs to private respondents which they can
certainly waive. Such waiver could be nothing more than
the “intentional relinquishment of a known right,” and, as
such, should not have been taken against private
respondents.
Same; Same; Dismissal; Dismissal of case after
parties have presented their evidence and rested their case
does not only mean waiver on their part but a denial of
their rights to adduce evidence and to have said evidence
considered by the court.—To dismiss the case after private
respondents had submitted their evidence and rested
their case, would not only be to hold said respondents
accountable for waiving a right, but also to deny them one
of the cardinal primary rights of a litigant, which is,
corollary to the right to adduce evidence, the right, to
have the said evidence considered by the court. The
102
101
1 SUPREME COURT REPORTS ANNOTATED
02
Jalover vs. Ytoriaga an area of 8,153 square meters; that the said parcel of
dismissal of the case for failure to prosecute, when
in truth private respondents had already presented their
evidence and rested their case, and, therefore, had duly
prosecuted their case, would in effect mean a total
disregard by the court of evidence presented by a party in
the regular course of trial and now forming part of the
record. The ends of justice would be better served if, in its
deliberate function, the court would consider the said
evidence together with the evidence to be adduced by
petitioner.
Same; Relief from judgment available only when
judgment or order has become final and executory but not
in a case when an order has not attained finality for
failure of service upon counsel of record.—However, we
are of the view that relief from judgment under Rule 38 of
the Revised Rules of Court is not the appropriate remedy.
A petition for relief is available only if the judgment or
order complained of has already become final and
executory; but here, as earlier noted, the order of January
26, 1970 never attained finality for the reason that notice
therefor was not served upon private respondents’ counsel
of record. The petition for relief may nevertheless be
considered as a second motion for reconsideration or a
motion for new trial based on fraud and lack of procedural
due process.
ORIGINAL ACTION in the Supreme Court. Certiorari
with preliminary injunction.
The facts are stated in the opinion of the Court.
Lorenzo C. Coloso for petitioner.
Amado B. Atol for private respondents.
CASTRO, C.J.:
This is an original action for certiorari, with prayer for a
writ of preliminary injunction, asking this Court to
declare null and void the Orders dated August 24, 1972
and November 10, 1972, issued by the respondent Judge
in civil case No. 5429 of the Court of First Instance of
Iloilo, Branch V. On December 27, 1972, a temporary
restraining order was issued by this Court.
Sometime in April, 1960, private respondents Porferio
Ytoriaga and Consolacion Lopez filed against Ana
Hedriana and petitioner Fermin Jalover a complaint
dated April 6, 1960, in the Court of First Instance of Iloilo
(Civil Case No. 5429), alleging, inter alia, that they are
owners pro indiviso of Lot No. 2255 of the Cadastral
103
VOL. 80, OCTOBER 28, 1977
Jalover vs. Ytoriaga
Survey of Jaro, covered by TCT No. 6738 and containing
land is bounded on the southwest by the Salog River; that
as of January, 1958, by virtue of the effects of the current
of the river, there was a gradual increase of the land on
its southwestern portion of around 900 square meters;
that since before the war, the plaintiffs have been in
continuous possession of the increased portion of the land,
which, under the principle of alluvion, automatically
belongs to them; that sometime in January, 1958, the counsel of record for the plaintiff is Atty. Amado Atol who
defendants had the land increase surveyed, placed since several years ago has been appointed Chief of the
concrete monuments thereon and took possession thereof, Secret Service of the Iloilo City Police Department.
without the knowledge and consent of the plaintiffs; and Plaintiff did not take the necessary steps to engage the
that the defendants, who destroyed plants standing on service of another lawyer in lieu of Atty. Atol.
the land in question which belong to the plaintiffs, have “WHEREFORE, for failure to prosecute this case is
remained in possession of the land in spite of repeated dismissed without pronouncement as to costs.”
demands made by the latter for them to return the said Two years later, or on January 17, 1972, private
possession. The plaintiffs prayed that they be declared the respondents’ lawyer, Atty. Amado B. Atol, filed a motion
owners of the increased portion of the land, and that the for reconsideration of the order dated January 26, 1970
defendants be ordered to vacate the premises and restore dismissing the case, alleging that the said respondents
their possession to the plaintiffs, to pay the plaintiffs the did not fail to prosecute because, during the times that
sum of P147.00 as actual damages, the sum of P300.00 as the case was set for hearing, at least one of said
attorney’s fees, and the sum of P200.00 annually from the respondents was always present, and the record would
time the plaintiffs were deprived of possession up to the show that the transfers of hearing were all made at the
time the said possession shall have been restored, and to instance of petitioner or his counsel; and, moreover,
pay the costs of suit. private respondents had already finished presenting their
In his answer dated April 21, 1960, petitioner Fermin evidence. Petitioner opposed the motion on the ground
Jalover, as a defendant, alleged, inter alia, that his that the order of dismissal issued two years before was an
mother and co-defendant, Ana Hedriana, died on July 21, adjudication on the merits and had long become final. On
1959; that the land in question was formerly a river bed, June 23, 1972, respondent Judge Venicio Escolin, who
which, less than 10 years before, was abandoned through succeeded Judge Blanco in Branch V, issued an order
the natural change in the course of the waters; that the denying the motion for reconsideration on the ground that
said land rightfully belongs to the defendant as sole heir the order of dismissal had become final long ago and was
of his mother, who owned the land pursuant to Article 461 beyond the court’s power to amend or change.
of the Civil Code of the Philippines; that it is not true that Private respondents then filed a Petition for Relief
the plaintiffs were ever in possession of the land, or that from Judgment dated July 10, 1972, claiming that the
they had made demands upon the defendant to vacate the order of dismissal dated January 26, 1970 was void
land; that the plaintiffs had filed an ejectment suit because of lack of due process and for having been
against the defendant with the Municipal Court of Iloilo obtained thru fraud, for the petitioner had
City on March 12, 1958, and the same was decided misrepresented to the court the status of the case by
against the plaintiffs; and that by virtue of the malicious making Judge Blanco—who was not the Presiding Judge
filing of the complaint, the defendant suffered damages when private
and had to hire the services of counsel. The defendant 105
prayed the court to dismiss the complaint with costs
VOL. 80, OCTOBER 28, 1977
against the plaintiffs and to order the plaintiffs to pay the
defendant the sum of P1,000.00 as damages and the sum Jalover vs. Ytoriaga
of P300.00 by way of attorney’s fees. respondents presented their evidence and rested their
104 case in 1963—believe that trial had not even begun.
104 Petitioner opposed the petition for relief, contending that
SUPREME COURT REPORTS ANNOTATED
private respondents were served a copy of the order of
Jalover vs. Ytoriaga dismissal on February 5, 1970, and, therefore, pursuant
Issues having been joined, the case was set for trial. On to Section 3, Rule 38 of the Revised Rules of Court, the
September 4, 1963, private respondents, as plaintiffs, petition for relief should have been filed within 60 days
formally offered documentary evidence, and upon the from February 5, 1970, and within 6 months from
admission thereof, they rested their case; whereupon, January 26, 1970, when the order was issued; hence, the
continuation of trial was ordered transferred until further filing of the petition was beyond the reglementary period.
assignment. Trial was postponed many times stretching The petition for relief was given due course, and on
to a period of more than 6 years, until January 26, 1970, August 24, 1972, respondent Judge issued an order
when the case was called for trial, and then Presiding setting aside the orders dated January 26, 1970 and June
Judge Ramon Blanco dismissed the case, for failure of 23, 1972, and setting the continuation of the trial for
private respondents to appear in court, in an order which September 15, 1972. The reasons stated by respondent
reads: Judge in support of this order are: (1) the record shows
“The complaint was filed on April 6, 1960. Up to the that while respondent Porferio Ytoriaga was furnished
present the trial of the case has not been finished. The with a copy of the dismissal order dated January 26, 1970,
his counsel, Atty. Atol, was never served with a copy
thereof, hence, pursuant to the settled rule that where a
party appears by attorney, a notice to the client and not to
his attorney is not a notice of law, the said order of
dismissal never became final; and (2) the order dated
January 26, 1970 was without legal basis, considering
that private respondents had already presented their
evidence and rested their case on September 4, 1963, and
the hearing scheduled for January 26, 1970 was for the
reception of petitioner’s evidence; consequently, the non-
appearance of private respondents and their counsel at
the said hearing could not mean failure to prosecute on
their part, but may at worst only be construed as a waiver
on private respondents’ part of the right to cross-examine
the witnesses whom petitioner might present and to
object to the admissibility of petitioner’s evidence.
Petitioner, in a motion dated October 16, 1972, moved for
a reconsideration of the order dated August 24, 1972, on
the grounds that the court had full authority to issue the
order of dismissal, and that the said order, which had
long become final, was beyond the court’s power to
reconsider. On November 10, 1972, respondent Judge
issued an order denying the motion for reconsideration
and setting the continuation of trial for December 12,
1972.
Hence, the present recourse by petitioner .
The main thrust of the petition is that respondent
Judge acted without or in excess of jurisdiction or with
grave abuse of discretion
106
106 SUPREME COURT REPORTS ANNOTAT
Jalover vs. Ytoriaga
in setting aside the orders dated January 26, 1970 and
June 23, 1972, because the said orders have long become
105
final and executory, hence, may no longer be disturbed.
It is uncontroverted that the order of January 26,
1970, dismissing the case for private respondents’ “failure
to prosecute,” was served upon private respondents
themselves, and not upon their attorney of record, Atty.
Amado B. Atol, and that there was no court order
directing that the court’s processes, particularly the order
of January 26, 1970, should be served directly upon
private respondents. It is settled that when a party is
represented by counsel, notice should be made upon the
counsel, and notice upon the party himself is not
considered notice in law unless service upon the party is
ordered by the court.1The term “every written notice” used
in Section 2 of Rule 13 includes notice of decisions or
orders.2 Private respondents’ counsel of record not having
been served with notice of the order dismissing the case,
the said order did not become final.
Petitioner argues that since private respondents’
counsel of record, Atty. Atol, had been appointed Chief of
the Secret Service of the Iloilo City Police Department, he
was not anymore allowed to practice law, hence, private
respondents being no longer represented by counsel,
notice to them should be deemed legally effective. The
argument is not valid, for it fails to consider the need of
observing a legal formality before a counsel of record may
be considered relieved of his responsibility as such counsel
on account of withdrawal. A lawyer’s withdrawal as
counsel must be made in a formal petition filed in the
case, and where no such petition has been accomplished,
notice of judgment rendered in the case served on the
counsel of record is, for all legal purposes, notice to the
client, the date of receipt of which is considered the
starting point from which the period of appeal prescribed
by law shall begin to run.3 Not having withdrawn
formally as counsel in the case, nor
_______________
1 Rule 13, Section 2, Revised Rules of Court; McGrath
vs. Collector of Internal Revenue, et al., L-12721,
February 28, 1961, 1 SCRA 639, 643; Elli, et al. vs. Ditan,
et al., L-17444, June 30, 1962, 5 SCRA 503, 506; J.M.
Javier Logging Corporation vs. Mardo, etc., et al., L-
28188, August 27, 1968, 24 SCRA 776, 778-779.
2 Notor vs. Daza, et al., 76 Phil. 850; Chainani vs.
Tancinco, etc., et al., 90 Phil. 862, 864.
3 Damao, et al. vs. Arrieta, etc., et al., L-18879,
January 31, 1963, citing Baquiran vs. CA, et al., L-14551,
July 31, 1961.
107
VOL. 80, OCTOBER 28, 1977
Jalover vs. Ytoriaga
having been substituted by his clients with another
lawyer, or dismissed as such counsel, Atty. Atol was, for
all legal purposes, private respondents’ attorney upon
whom the court’s processes should have been served.
It will also be noted that, as found by respondent
Judge, private respondents, as plaintiffs, adduced their
evidence and rested their case on September 4, 1963, or
more than six years before the dismissal of the case on
January 26, 1970. It was, therefore, the turn of petitioner,
as defendant, to present his evidence. In the premises,
private respondents could not possibly have failed to
prosecute; they were already past the stage where they
could still be charged with such failure. As correctly held
by respondent Judge, private respondents’ absence at the
hearing scheduled on January 26, 1970 “can only be
construed as a waiver on their part to cross-examine the
witnesses that defendants might present at the
continuation of trial and to object to the admissibility of
the latter’s evidence.” The right to cross-examine
petitioner’s witnesses and/or object to his evidence is a
right that belongs to private respondents which they can
certainly waive. Such waiver could be nothing more than
the “intentional relinquishment of a known right,”4 and, I concur and I am writing this separate concurring
as such, should not have been taken against private opinion only to make more patent and to stress why I
respondents. believe the order of dismissal had not yet become final
To dismiss the case after private respondents had when the trial court ordered the reopening of the case.
submitted their evidence and rested their case, would not I fully agree with the holding in the main opinion
only be to hold said respondents accountable for waiving a that the dismissal of respondents’ case ordered by Judge
right, but also to deny them one of the cardinal primary Blanco on January 26, 1970 was legally erroneous.
rights of a litigant, which is, corollary to the right to Indeed, to my mind, it constituted grave abuse of
adduce evidence, the right to have the said evidence discretion, and the contention of respondents that the
considered by the court.5 The dismissal of the case for situation on hand had been misrepresented by counsel for
failure to prosecute, when in truth private respondents petitioner only makes it even more patent that due care
had already presented their evidence and rested their was not exercised in the preparation of said order. Such
case, and, therefore, had duly prosecuted their case, being the case, there
would in effect mean a total disregard by the court of
evidence presented by a party in the regular course of _______________
trial and now forming part of the record. The ends of
justice would be better served if, in its deliberative 6 Anuran vs. Aquino, et al., 38 Phil. 29; Veluz vs. JP
function, the court would consider the said evidence
of Sariaya, etc., et al., 42 Phil. 557, 563; Punzalan vs.
together with the evidence to be adduced by petitioner.
Papica, et al., L-13804, February 29, 1960.
109
_______________
VOL. 80, OCTOBER 28, 1977
4 Castro vs. Del Rosario, etc., et al., L-17915, January Jalover vs. Ytoriaga
30, 1967, 19 SCRA 196, 203. is ample warrant to disregard procedural technicalities
5 Caltex Filipino Managers and Supervisors that might stand in the way of the complete setting aside
Association vs. CIR, et al., L-30632-33, April 11, 1972, 44 thereof to give way to substantial justice.
SCRA 350, 366-367, citing Ang Tibay vs. CIR, et al., 69 It is not disputed that Atty. Amado B. Atol, counsel
Phil. 635; Edwards vs. McCoy, 22 Phil. 598. for plaintiffs—the herein respondents—was not served
108 with notice of such order of dismisal. Accordingly, when
he filed his motion for reconsideration on January 17,
108 SUPREME COURT REPORTS ANNOTATED
107 1972, the running of the period for the finality of that
Jalover vs. Ytoriaga order had not yet started. This motion was denied on
However, we are of the view that relief from judgment June 23, 1972. As there is no showing when Atty. Atol
under Rule 38 of the Revised Rules of Court is not the received copy of the order of denial, the least that can be
appropriate remedy. A petition for relief is available only said in his favor is that when he filed his so-called
if the judgment or order complained of has already petition for relief on July 10, 1972, he still had not less
become final and executory;6 but here, as earlier noted, than thirteen (13) days within which to perfect an appeal.
the order of January 26, 1970 never attained finality for Now, assuming that his petition for relief, not being the
the reason that notice thereof was not served upon private proper remedy—as held in the main opinion, which view I
respondents’ counsel of record. The petition for relief may am also fully in accord with—should be deemed a second
nevertheless be considered as a second motion for motion for reconsideration, the question that would arise
reconsideration or a motion for new trial based on fraud would be whether or not such a second motion for
and lack of procedural due process. reconsideration could be filed.
Under the circumstances of the case, the issuance of In this connection, it is to be noted that Atty. Atol’s
the orders now complained of cannot be said to have been first motion for reconsideration was based on the sole
characterized with abuse of discretion. ground then apparent, namely, that the order of dismissal
ACCORDINGLY, the instant petition is denied. The was improper, since plaintiffs could not be considered as
temporary restraining order issued by this Court on having failed to prosecute their case, it appearing that
December 27, 1972 is hereby dissolved. No costs. they had already closed their evidence and, therefore,
Fernando, Antonio, Concepcion Jr. andSantos, their absence of the resumption of the trial for the
JJ.,concur. reception of the evidence of the defendants could signify
Barredo, J., concurs in a separate opinion. no more than they had waived their right to contest the
Aquino, J., in the result. admissibility of the evidence presented by said
defendants. But the court, in its order of June 23, 1972,
BARREDO, J.: Concurring— denied said first motion on a ground which had nothing to
do with the issue raised in the motion. Such being the ——o0o——
case, it was but fair and proper for the plaintiffs to be
allowed to move to reconsider the order of denial before 111
taking any remedy against it in a higher court with a © Copyright 2018 Central Book Supply, Inc. All rights
view to giving the trial court an opportunity to correct reserved.
itself on the new matter treated in its order. In a sense,
therefore, respondents’ petition for relief which the Court
is treating as a second motion for reconsideration is
allowable under the rules and had the effect of
suspending the respondents’ period to appeal. Thus, at
the time the trial court gave due course to the petition for
relief and granted the same on August 24, 1972 it acted
within its jurisdiction.
110
110 SUPREME COURT REPORTS ANNOTATED
Jalover vs. Ytoriaga
And inasmuch as, as I have stated at the outset, there can
be no doubt as to the right of respondents to the
nullification of the dismissal order of January 26, 1970 as
well as the subsequent order of June 23, 1972, it little
matters that the trial court’s order of August 24, 1972 is
premised on the assumption that what was being acted
upon is a petition for relief instead of on a second motion
for reconsideration. What is important and decisive is
that the reopening was done within the period for finality
of the order of dismissal and before the trial court had lost
jurisdiction over the same. The mistake of respondents in
filing the wrong remedy is a matter of form which under
the circumstances of this particular case could not affect
the efficacy of the actual relief sought.
Petition denied.
Notes.—Lack of notice to a party in a judicial
proceeding is a denial of due process. (Shell Company of
the Philippines, Ltd. vs. Enage, 49 SCRA 416).
Service by registered mail of the appellate court’s
decision upon petitioner’s counsel of record is deemed
completed and effected upon the addressee’s failure to
claim his mail on the fifth day after the first notice of the
postmaster. (Intestate Estate of Luis C. Domingo, Sr. vs.
Aquino, 38 SCRA 472).
When the registry notice, envelope and return card do
not show what orders of the court were mailed, no actual
knowledge can be attributed to the party concerned.
(Sapida vs. De Villanueva, 48 SCRA 19).
Substituted service is effected by leaving copies of
summons at the defendant’s residence with some person
of suitable age and discretion then residing therein.
(Espiritu vs. Court of Appeals, 58 SCRA 195).
It is not necessary to await the order of demolition to
be served upon the defeated party in a forcible entry
proceeding before the writ of demolition may be carried
out. (Albetz Investments, Inc. vs. Court of Appeals, 75
SCRA 310).
 APPEAL from an order of the Court of First Instance of
Nueva Ecija. Makasiar, J.
774 SUPREME COURT REPORTS ANNOTATED
Mina vs. Pacson
No. L-17828. August 31, 1963.
LIGAYA MlNA, JAIME MlNA, SlLVINA MlNA, FAUSTA
MlNA, PABLO MINA and MIGUEL MINA, the minors
represented by PILAR LAZO as guardian-ad-litem,
plaintiffs-appellants, vs. ANTONIA PACSON, CRISPINO
MEDINA and CRESENCIA MINA, defendants-appellees,
Dismissal of actions; Failure to prosecute; Failure to
coma ply with order to implead indispensable party.—
Appellants' contention that the dismissal of the complaint
in the previous action was "at the indirect instance of the
plaintiffs through inaction or omission," is not supported
by the facts of the case, because the order of the court
dismissing the complaint in the first first case contained
the warning that should the plaintiffs fail to comply with
its order to implead the surviving -widow of the deceased
and other necessary parties, the case would be dismissed,
and it was because of plaintiff s refusal to comply with
this express mandate that the dismissal was ordered.
This dismissal was, therefore, justified under Rule 30,
Section 3 of the Rules of
775
VOL. 8, AUGUST 31, 1963
Mina vs. Pacson
Court (Garchitorena, et al. vs. De los Santos, et al.,
L-17045, June 30, 1962.)
Same; Same; Negligence of client and counsel.—The
argument of appellants that the dismissal of the previous
case was due to the negligence of plaintiffs': lawyer for
which the plaintiffs-appellants should not be made to
suffer, is not correct, it was not due to the negligence of
their counsel alone but that of themselves also that the
required amendment was not made. Besides, even if the
failure was due to the lawyer alone, such failure would
not relieve them of the responsibility resulting from the
neglect of their lawyer, for the client is bound by the
action of his counsel. (Valerio as. Sec. of Agriculture, L-
18587, April 23, 1963, and other cases cited.)
Judgments; Res judicata; Complete identity
necessary; Parties not included and matters not raised, in
previous case not barred.—The previous order of dismissal
bars the present complaint only as to matters already
presented in the pevious case, like the action for
annulment of the deeds of sale as regards the defendants
fendants named therein, but matters not raised and
parties not included in the previous case are not barred,
like the action for the recognition of the filiation of the
plaintiffs against the defendant widow of the deceased
alleged father.
The facts are-stated in the opinion of the Court,
F.A. Pelmoka for plaintiffs-appellants.
Castelo Law Office for defendants-appellees.
LABRADOR, J.:
This is an appeal from an order of the Court of First
Instance of Nueva Ecija, Hon. Felix Makasiar, presiding,
in its Civil Case No. 3296, entitled "Ligaya Mina, et al.,
plaintiffs vs. Crispino Medina, et al., defendants,"
dismissing the complaint filed in this case. The appellant
also appeals against the order denying the motion for
reconsideration of the order of dismissal.
The facts necessary to understand the nature of the
issues presented in this appeal, as gleaned from the
pleadings, may be briefly stated as follows : follows:
Plaintiffs Ligaya, Jaime, Silvina, Fausta, Pablo and
Miguel, all surnamed Mina, are alleged to be the
illegitimate children of the deceased Joaquin Mina with
plaintiff Pilar Lazo from 1933-1958, while married to
Antonia Pacson. Joaquin Mina died in August, 1958,
leaving no descendants nor
776 775
776 SUPREME COURT REPORTS ANNOTATEDappears, however, that in the complaint filed in said Civil
Mina vs. Pacson
ascendants except his widow, the defendant herein
Antonia Pacson. On April 9, 1958, Joaquin Mina, then
still living, executed a deed of absolute sale (Annex "B" to court issued in said Civil Case No. 3015 which reads as
Complaint) of three parcels of land situated in the
municipality of Muñoz, Nueva Ecija, in favor of the
defendants Crispino Medina and Cresencia Mina for the
sum of P12,000. On April 15, 1958 again he executed
another deed of sale (Annex "C" to Complaint) of 13
parcels of land covered by 12 transfer certificates of title for partition (paragraphs 8 and 11 of the complaint and
to the same spouses Crispino Medina and Cresencia
Mina. Both deeds of sale bear the conformity of his wife
Antonia Pacson.
In the complaint filed in the Court of First Instance of may be brought in the same case (Lopez v. Lopez, 68 Phil.
Nueva Ecija in the case which originated this appeal. it is
alleged that plaintiffs are illegitimate children of the
deceased Joaquin Mina begotten by him with Pilar Lazo
during the period from 1933 to 1958 while Joaquin Mina
was lawfully married to Antonia Pacson; that the plaintiff
Pablo Mina is a recognized illegitimate child of the
deceased Joaquin Mina; that Joaquin Mina died intestate
leaving no ascendants or descendants, except his widow
Antonia Pacson; that he left various parcels of land
enumerated in the complaint but that on April 9, 1950 the
defendants connived and secured from Joaquin Mina, who
was ill and did not know what he was doing, the execution
of the two deeds of sale without consideration, fictitiously
and fraudulently, transferring his properties to the
spouses Crispino Medina and Cresencia Mina; and that
by reason of said acts, defendants have caused moral
anguish, anxiety and embarrassment to plaintiffs,
causing them damages amounting to P10,000; that
plaintiffs pray that they be declared recognized
illegitimate children of the deceased Joaquin Mina,
entitled to share in the properties left by him as such
illegitimate children; that the deeds of sale, Annexes "B"
and "C" be declared fictitious, fraudulent and therefore,
null and void; and that defendants be required to deliver
to plaintiffs' possession one-fourth of said properties
together with P10,000 for moral damages.
Upon the filing of the complaint the defendants
presented a motion to dismiss the complaint on the
ground of
777
VOL. 8, AUGUST 81, 1963
Mina vs. Pacson
res judicata, alleging that a similar action had previously
been presented as Civil Case No. 3015 in the same court,
and by the same parties against Crispino Medina and
Cresencia Mina, in which the same allegations of
plaintiffs' status and fraudulent conveyance of the
properties to defendants are alleged, together with a
prayer for moral damages in the sum of P20,000. It
Case No. 3015, no prayer is made for the declaration of
the filiation of the plaintiffs in relation or with respect to
the deceased Joaquin Mina.
The motion to dismiss also copied an order of the
follows:
"Acting on the Motion filed by the defendants on
December 22, 1958 for the reconsideration of the order
dated December 8, 1958, and considering that the present
action is not only for annulment of deeds of sale but also
paragraph 4 of the prayer thereof); that to avoid
multiplicity of suits, the complex action to establish
filiation and for partition or for recovery of inheritance
227; Escoval vs. Escoval, 48 O.G. 615; Edades vs. Edades,
L-8964, July 31, 1956) ; and that Antonia Pacson, the
surviving widow and the other intestate heirs of the
deceased Joaquin Mina, or necessary parties are not
made a party in this case (Briz v. Briz, 43 Phil. 763), the
plaintiffs are hereby directed to amend their complaint
within fifteen (15) days from receipt hereof by including
as party defendant the surviving widow of the deceased
Joaquin Mina and other necessary parties.
"Should the plaintiffs fail to comply with this order,
this case will be dismissed."
Lastly, another order of the same court dated February 9,
1959 was quoted, the dispositive part of which reads:
"The fifteen-day period granted to the plaintiffs having
elapsed without said order having been complied with, the
Court hereby dismisses this case, without pronouncement
as to costs."
Opposition to the motion to dismiss was presented 011
behalf of the plaintiffs by their attorney to which a reply
was filed on behalf of the defendants. A rejoinder was also
filed after which Judge Genaro Tan Torres,
778
778 SUPREME COURT REPORTS ANNOTATED
Mina vs. Pacson
then presiding over the court, sustained the motion to
dismiss in an order which reads as follows:
"After a careful consideration of the joint motion to
dismiss of defendants Antonia Pacson and the spouses
Crispino Medina and Cresencia Mina, dated November
11, 1959, the opposition thereto dated November 24, 1959,
and the reply of the defendants to the opposition, dated
December 7, 1959, the Court is of the opinion that said
motion to dismiss is well taken; hence this case is hereby
dismissed without costs.
"Plaintiffs' motion for time to submit rejoinder, dated negligence, gross or criminal, of plaintiffs' lawyer for
December 10, 1959, is hereby denied because it will only
unnecessarily delay the termination of this case.
"So ordered.
"Cabanatuan City, December 18, 1959."
A motion for the reconsideration of the order of the court
dismissing the action having been denied, the plaintiffs in
the present case prosecuted this appeal directly to this
Court.
As shown above the question to be resolved is
whether or not the order dismissing the previous Civil
Case No. 3015 bars the present civil action No. 3296 of
the Court of First Instance of Nueva Ecija.
In the first error assigned by the appellants in their
brief it is argued that the dismissal of the complaint in
the previous action was in fact "at the indirect instance of argument that the failure was due to the lawyer alone,
the plaintiffs through inaction or omission." We do not
find this claim justified by the facts of the case. The order resulting from the neglect of their lawyer, for the client is As to the elements or requisites of res judicata, see
of the court dismissing the complaint in the first case
contains the following warning: "Should the plaintiffs fail
to comply with this order, this case will be dismissed." In
the face of this express warning given in the court's order
the dismissal can not be said to have been "at the indirect
instance of the plaintiffs; it was in fact caused by
plaintiffs' refusal to comply with the express mandate
contained in the order of dismissal. The dismissal,
therefore, was justified under Rule 30, Section 3 of the
Rules of Court, which reads:
"SEC. 3. Failure to prosecute.—When plaintiff fails to
appear at the time of the trial, or to prosecute his action
for an unreasonable length of time, or to comply with
these rules or any order of the court, the action may be
dismissed upon motion of the defendant or upon the
court's own motion. This
779
VOL. 8, AUGUST 31, 1963
Mina vs. Pacson
dismissal shall have the effect of an adjudication upon the
merits, unless otherwise provided by court."
The above provision of the Rules was invoked in the case
of Garchitorena, et al. vs. De los Santos, et al., G.R. No. L-
17045, June 30, 1962, wherein this Court held:
"To order an amendment to a complaint; within a certain
period in order to implead as party plaintiff or defendant
one who is not a party to the case lies within the
discretion of the Court. And where it appears that the
person to be impleaded is an indispensable party, the
party to whom such order is di rected has no other choice
but to comply with it. His refusal or failure to comply with
the order is a ground for the dismissal of his complaint
pursuant to Section 3, Rule 30, of the Rules of Court. x x
x"
Under the second assignment of error it is argued that the
dismissal of the previous case was brought about by the
which the plaintiffs-appellants should not be made to
suffer. The argument is not true to fact. The failure to
amend was a result not of the neglect of the lawyer alone
but also of the plaintiffs-appellants themselves. Had the
plaintiffs taken even an ordinary interest in the result of
the action that they had filed, they would have been able
to secure information from their lawyer that the case had
been dismissed for failure to amend. Upon receipt of such
information, plaintiffs could have applied to the court for
relief under Rule 38 of the Rules of Court and could have
had the complaint amended as directed in the order of
dismissal. It is not alone negligence of their counsel,
therefore, but of themselves also that the required
amendment was not made. But assuming for the sake of
such failure would not relieve them of the responsibility
bound by the action of his counsel. (Isaac v. Mendoza, G.
R. No. L-2830, June 21, 1951; Vivero v. Santos, et al., G.
R. No. L-8105, Feb. 28, 1956; Fernandez v. Tan Tiong
Tick, G.R. No. L-15877, April 28, 1961; Gordulan v.
Gordulan, G.R. No. L-17722, Oct. 9, 1962; Valerio v. Sec.
of Agriculture, G.R. No. L18587, April 23, 1963.)
780
780 SUPREME COURT REPORTS ANNOTATED
Mina vs. Pacson
In the third assignment of error it is claimed that there is
no complete identity between the parties in the first case
and those in the case at bar. The statement is true
because in the previous case Antonia Pacson was not
included as party-defendant. As a matter of fact the order
decided that Pacson was to be included as
partydefendant. As to the latter, therefore, the previous
order of dismissal does not bar the present complaint, not
779
only because she was not made a party but also because
the issue of filiation of the parties-plaintiffs was not
raised in the previous case, although such issue was
necessary for the plaintiffs to be able to maintain their
right of action. In view of this fact, the present action
should be considered barred in respect to the action for
the annulment of the deeds of sale and as regards the
defendants spouses Crispino Medina and Cresencia Mina;
but as to the case for the declaration of the plaintiffs as
illegitimate children and heirs of the deceased Joaquin
Mina this latter case is not barred by the previous action
as above explained and may still be prosecuted.
WHEREFORE, the order of dismissal is hereby
modified in the sense that the action for the recognition of
the filiation of the plaintiffs should be allowed to continue
against the defendant Antonia Pacson; but the dismissal
of the action for the annulment of the deeds of sale is
affirmed. Without costs.
Bengzon, C.J., Padilla, Bautista
Angelo, Concepcion, Reyes,
J.B.L., Barrera, Paredes, Dizon, Regalaand Maka-lintal,
JJ., concur.
Order modified; dismissal of action for annulment
affirmed.
Notes.—The case of Garchitorena vs. De los
Santos cited above is reported in 5 SCRA 491.
In Custodio vs. Cristobal, L-12487, Jan. 30, 1962, 4
SCRA 65, the court considered as harsh. the dismissal by
the lower court of the petition for failure of the petitioner
to amend his petition by including other parties thereto
after petitioner filed a manifestation that the desired
inclusion of the parties is not necessary.
781
VOL. 8, AUGUST 31, 1963
National Shipyards & Steel Corp. vs. Court of Industrial Rela
notesunder Republic vs. Planas, L-21224, Sept. 27,
1966, 18 SCRA 140; Abes, et al. vs. Rodil and Cruz, L-
20996, July 30, 1966, 17 SCRA 822; Suarez vs. Mun. of
Naujan,L22282, Nov. 21, 1966, 18 SCRA 682;
and Santiago vs. Joaquin, L-17237, May 31,
1963, ante. See also the recent case of Cruz vs.
Mossesgeld, L-20495, Aug. 31, 1968, 24 SCRA 1006.
_____________
© Copyright 2018 Central Book Supply, Inc. All rights
reserved.

462 SUPREME COURT REPORTS ANNOTATED
Caseñas vs. Rosales, et al.
No. L-18707. February 28, 1967.
AGUSTIN O. CASEÑAS, plaintiff-
appellant, vs.CONCEPCION SANCHEZ VDA. DE
ROSALES (Substituted by her heirs), ROMEO S.
ROSALES, ET AL., defendants-appellees.
Actions; Parties; Legal representative takes place of
deceased party.—When the trial court is apprised of the
death of a party, it should order, not the amendment of
the complaint, but the appearance of the legal
representative of the deceased as provided in section 17,
Rule 3 of the Rules of Court. An order to amend the
complaint, before the proper substitution of the deceased
parties has been effected, is void. In such a case the order
of the court, dismissing the complaint, for plaintiff’s
noncompliance with the order. to amend it, is likewise
void.
463
VOL. 19, FEBRUARY 28, 1967
Caseñas vs. Rosales, et al.
Same; Res judicata; No res judicata where
dismissal of prior case was void.—Where the dismissal of
a prior case was void, such dismissal cannot be pleaded as
a bar to a subsequent case reviving the action in the first
case.
Same; Cause of action defined.—A cause of action is
an act or omission of one party in violation of the legal
right or rights of the other.
Pleading and practice; When resolution of issue of
prescription should be deferred.—The resolution of the
issue of prescription may be deferred until after the case
is tried on the merits where the defense pleaded against
said issue is the existence of a trust over the property in
dispute.
APPEAL from an order of dismissal rendered by the
Court of First Instance of Agusan.
The facts are stated in the opinion of the Court.
Juan L. Pastrana for plaintiff-appellant.
Francisco Ro. Cupin and Wenceslao B. Rosales for
defendants-appellees.
REGALA, J.:
This is an appeal from the order of dismissal entered by
the Court of First Instance of Agusan in Civil Case No.
780, entitled Agustin Caseñas vs. Concepcion Sanchez
Vda. de Rosales, et al.
On August 21, 1952, Rodolfo Arañas and Agustin O.
Caseñas filed with the Court of First Instance of Agusan,
under Civil Case No. 261, a complaint for specific
performance and enforcement of their alleged right under
a certain deed of sale, and damages against the spouses
Jose A. Rosales and Concepcion Sanchez. They alleged
that sometime in 1939, Agustin O. Caseñas acquired from
Rodolfo Arañas, under a deed of assignment, the latter’s
rights and interest over a parcel of land covering an area
of more or less than 2,273 square meters and designated
as Lot No. 445-A of the Butuan Cadastre No. 84 (Psd.
4943); that Rodolfo Arañas, in turn, acquired the said
property from the spouses Jose A. Rosales and Concepcion
Sanchez under a deed of sale executed on March 18, 1939
under the terms of which, however, the actual transfer of
the aforesaid land unto the vendee would be made only on
or before February 18, 1941; and that despite the above
documented transactions, and despite the arrival of the
464
464 SUPREME COURT REPORTS
Caseñas vs. Rosales, et al.
stipulated period 463
for the execution of the final deed of
transfer, the vendors spouses refused to fulfill their
obligation to effect such transfer of the said lot to the
vendee, Rodolfo Arañas, or his assignee, the herein
appellant, Agustin O. Caseñas. Thus, the principal relief
prayed for in the above complaint was for an order
directing the defendants-spouses to “execute a deed of
absolute sale of the property described in the complaint in
favor of the assignee, plaintiff Agustin O. Caseñas.”
After the defendants-spouses had filed their answer
to the above complaint, but before trial, the counsel for
the plaintiffs gave notice to the trial court that plaintiff
Rodolfo Arañas and defendant Jose A. Rosales had both
died. In view of the said manifestation, the lower court, in
an order dated April 27, 1956, directed the surviving
plaintiff, Agustin O. Caseñas, to amend the complaint to
effect the necessary substitution of parties thereon. The
said surviving plaintiff, however, failed altogether to
comply with the aforementioned order of April 27, 1956 to
the end that on July 18, 1957, the lower court issued the
following order:
“Until this date no amended complaint was filed by the
attorney for the plaintiffs. This shows abandonment and
lack of interest on the part of the plaintiffs. This being an
old case, for failure on the part of the counsel for the
plaintiffs to comply with the order of this Court the same
is hereby dismissed without pronouncement as to costs.”
As no appeal was taken from the above order of dismissal,
the same, in due time, became final.
On April 18, 1960, Agustin O. Caseñas, the same
plaintiff Caseñas in Civil Case No. 261, filed with the
same Court of First Instance of Agusan, under Civil Case
No. 780, another complaint against the widow and heirs
of the late Jose A. Rosales “to quiet, and for reconveyance
of, title to real property, with damages.” This suit referred
itself to the very same property litigated under Civil Case
No. 261 and asserted exactly the same allegations as
those made in the former complaint, to wit: “that the
plaintiff (Agustin O. Caseñas) has acquired the
abovedescribed property by purchase from its previous
owner, Rodolfo Arañas, now deceased, x x x; and said
Rodolfo Arañas had in turn acquired the same property by
virtue of
465
VOL. 19. FEBRUARY 28, 1967
Caseñas vs. Rosales, et al.
another deed of sale executed by Jose A. Rosales, now also
deceased;” (Par. 3, Complaint) “that under the terms and
stipulations of paragraph 2 of the deed of sale (between
Rosales and Arañas) x x x Jose A. Rosales was to hold
title to the land in question in favor of Rodolfo Arañas or
the latter’s assigns and successors in interest for a period
ANNOTATED
of (5) years from February 19, 1936, at. the expiration of
which said Jose A. Rosales was to execute a document
conveying absolutely the title to the land in question in
favor of the aforementioned Rodolfo Arañas or his assigns
and successors in interest” (Par. 9, Complaint); “despite
which obligation the defendants refused, even after the
expiration of the stipulated period to “convey title to the
land in question and to execute the corresponding
document covering the same.” (Par. 12, Complaint) In the
premises, the plaintiff prayed for judgment “quieting the
title of the plaintiff to the land in question and ordering
the defendants to execute a deed of conveyance of the
same in favor of the said plaintiff” plus costs and
damages.
To the above complaint, the defendants filed a motion
to dismiss on several grounds, namely: res
judicata,prescription, lack of cause of action, failure to
include indispensable parties, and that the contract
subject of the complaint was void ab initio. After the
plantiff had filed his opposition to the above motion, the
lower court issued the order under appeal dismissing the
complaint. Of the above grounds, though, the lower court
relied alone OR the defendants’ plea of res judicata, lack
of cause of action and prescription. The material portion
of this order of dismissal reads:
“The Court. however, believes that this action is barred by
prior judgment. The order of dismissal in Civil Case No.
261 was already final and has the effect of an adjudication
upon the merits. The parties in Civil Case No. 261 and in
this case are substantially the same; the subject matter is
the same and there is identity of cause of action. All the
elements of res judicata are therefore present.
“Moreover, the complaint states no cause of action if
its purpose is to quiet title, because the plaintiff has as
yet no title to the land in question. Precisely, this action is
brought in order to acquire or secure title by compelling
the defendants to execute a deed of sale in favor of the
plaintiff. However, this action for specific performance
cannot also prosper because
466
466 SUPREME COURT REPORTS ANNOTATEDthat in the former two of the litigants died while only one
Caseñas vs, Rosales, et al.
being based upon an agreement in writing it is already
barred by prescription as the period of ten years has long
expired when the present complaint was filed.”
The appeal at bar assails the above determination
that Civil Case No. 780 is barred by a prior judgment and
by prescription and that the same states no cause of
action. It is on these issues, therefore, that this Court
shall dispose of this appeal.
We find for the appellant.
When certain of the parties to Civil Case No. 261 died
and due notice thereof was given to the trial court, it
devolved on the said court to order, not the amendment of
the complaint, but the appearance of the legal
representatives of the deceased in accordance with the
procedure and manner outlined in Rule 3, Section 17 of
the Rules of Court, which provides:
“SEC. 17. Death of party.—After a party dies and the
claim is not thereby extinguished, the court shall order,
upon proper notice, the legal representative of the
deceased to appear and to be substituted for the deceased,
within a period of thirty (30) days, or within such time as
may be granted. If the legal representative fails to appear
within said time, the court may order the opposing party
to procure the appointment of a legal representative of the
deceased within a time to be specified by the court, and
the representative shall immediately appear for and on
behalf of the interest of the deceased. The court charges
involved in procuring such appointment, if defrayed by
the opposing party, may be recovered as costs. The heirs
of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an
executor or administrator and the court may appoint
guardian ad litem for the minor heirs.”
In the case of Barrameda vs. Barbara, 90 Phil. 718, this
court held that an order to amend the complaint, before
the.proper substitution of parties as directed by the
aforequoted rule has been effected, is void and imposes
upon the plaintiff no duty to comply therewith to the end
that an order dismissing the said complaint, for such
noncompliance, would similarly be void. In a subsequent
case, Ferriera, et al. vs. Gonzalez, et al., G.R. No. L-
11567, July 17, 1958, this court affirmed a similar
conclusion on the determination that the continuance of a
proceedings during the pendency of which a party thereto
dies, without
467
VOL. 19, FEBRUARY 28, 1967
636; Vasquez vs. Porta, 98 Phil. 490; Concepcion vs.
Caseñas vs. Rosales, et al.
Santos, 89 Phil. 429; Gotamco vs. Chan Seng, 46 Phil.
such party having been validly substituted in accordance
542).
with the rules, amounts to a “lack of jurisdiction.”
The facts of this case fit four squares into the
______________
Barrameda case abovecited, save for the minor variance
predeceased the case in Barrameda. Here, as in © Copyright 2018 Central Book Supply, Inc. All rights
Barrameda, during the pendency of civil case, notice was reserved.
given to the trial court of the deaths of one of the
plaintiffs and one of the defendants in it. Instead of
ordering the substitution of the deceased’s legal
representatives in accordance with Rule 3, section 17 of
the Rules of Court, the trial court directed the surviving
plaintiff to amend the complaint and when the latter
failed to comply therewith, the said court dismissed the
complaint for such non-compli-ance. We must hold,
therefore, as We did in Barramedathat inasmuch as there
was no obligation on the part of the plaintiff-appellant
herein to amend his complaint in Civil Case No. 261, any
such imposition being void, his failure to comply with
such an order did not justify the dismissal of his
complaint. Grounded as it was upon a void order, the
dismissal was itself void.
Consequently, as the dismissal of Civil Case No.
261 was void, it clearly may not be asserted to bar the
subsequent prosecution of the same or identical claim.
Finally, We find ourselves unable to share the
appellees’ view that the appellant’s complaint under Civil
Case No. 780 failed to state a sufficient cause of .action. A
cause of action is an act or omission of one party in
violation of the legal right or rights of the other (Ma-ao
Sugar Central vs. Barrios, 79 Phil. 666) and both these
elements were clearly alleged in the af oresaid complaint.
Insofar as the issue of prescription is concerned, this
Court is of the view that it should defer resolution on it
until after Civil Case No. 780 shall have been tried on the
merits, considering that one of the defenses set up by the
appellant against the said issue is the existence of a trust
relationship over the property in dispute.
In view of all the foregoing, the order dated January
20, 1961 dismissing Civil Case No. 780 is hereby set
aside
468
468 SUPREME COURT REPORTS ANNOTATED
Republic vs. Heirs of Cresencio V. Martir
and the said case is ordered remanded to the court of
origin for trial on the merits. Costs against the appellees.
Conception, C.J., Reyes,
J.B.L., Dizon, Makalintal,Bengzon,
J.P., Zaldivar, Sanchez and Castro, JJ., concur.
Order of dismissal set aside and case is remanded to
lower court for trial on the merits.
Note.—The rule of res judicata is predicated on a
prior valid judgment467 (De Almeda vs. Cruz, 84 Phil.

VOL. 166, SEPTEMBER 28, 1988
Republic Planters Bank vs. Molina
No. L-54287. September 28, 1988.*
REPUBLIC PLANTERS BANK, petitioner, vs. HON.
CONRADO M. MOLINA, as Presiding Judge, Court of
First Instance of Manila, Branch XX, SARMIENTO
EXPORT CORPORATION, SARMIENTO SECURITIES
CORPORATION and FELICIANO SARMIENTO, JR.,
respondents.
Civil Procedure; Res judicata; In order for the Court
to have authority to dispose of the case on the merits, it
must acquire jurisdiction over the subject matter and the
parties; A judgment to be considered res judicata, must be
binding and must be rendered by a Court of competent
jurisdiction.—In the very order of dismissal of Civil Case
No. 116028, the trial court admitted that it did not
acquire jurisdiction over the persons of private
respondents and yet, it held that it was of no moment as
to the dismissal of the case. We disagree. For the court to
have authority to dispose of the case on the merits, it
must acquire jurisdiction over the subject matter and the
parties. If it did not acquire jurisdiction over the private
respondents as parties to Civil Case No. 116028, it cannot
render any binding decision, favorable or adverse to them,
or dismiss the case with prejudice which, in effect, is an
adjudication on the merits. The controverted orders in
Civil Case No. 116028 disregarded the fundamental
principles of remedial law and the meaning and the effect
of jurisdiction. A judgment, to be considered res
judicata, must be binding, and must be rendered by a
court of competent jurisdiction. Otherwise, the judgment
is a nullity.
Same; Same; Same; The order of dismissal in Civil
Case No. 116028 does not have the effect of an
adjudication on the merits.—The order of dismissal in
Civil Case No. 116028 does not have the effect of an
adjudication on the merits of the case because the court
that rendered the same did not have the requisite
jurisdiction over the persons of the defendants therein.
This being so, it cannot be the basis of res judicata and it
cannot be a bar to a lawful claim. If at all, such a
dismissal may be considered as one without prejudice.
Same; Same; Same; Same; Court finding the two
questioned orders to be irregular, improper and were
issued with grave abuse of discretion amounting to excess
of jurisdiction.—Trial Courts have the duty to dispose of
controversies after trial on the merits whenever
_______________
*FIRST DIVISION.
40
41
4 SUPREME COURT REPORTS ANNOTATED
39 VOL. 166, SEPTEMBER 28, 1988
0
Republic Planters Bank vs. Molina
Republic Planters Bank vs. Molina
sideration of that order was denied on January 15, 1979.2
possible. In this case, there are no indications that
When Civil Case No. 129829 was filed by petitioner, a
petitioner intentionally failed to prosecute the case. The
motion to dismiss was submitted by private respondents
delay could not be attributed to its fault. Petitioner
on the ground that the cause of action is barred by a prior
pursued the case with diligence, but jurisdiction could not
judgment (res judicata) in Civil Case No. 116028. Private
be acquired over defendants-private respondents. The
respondents opined that said order was an adjudication
sheriff had not yet submitted his return of the alias
upon the merits. Petitioner opposed the motion to dismiss,
summons when the action was precipitately dismissed by
claiming that res judicata does not apply because the
the trial court. These are proven circumstances that
summons and complaint in Civil Case No. 116028 were
negate the action of respondent judge that the dismissal
never served upon private respondents and, as such, the
of Civil Case No. 116028 has the effect of an adjudication
trial court never acquired jurisdiction over private
upon the merits and constitutes a bar to the prosecution
respondents and, consequently, over the case. Petitioner
of Civil Case No. 129829. The court finds that the two
maintains that the order of dismissal in Civil Case No.
questioned orders of the trial court are irregular,
116028 never became final as against private
improper, and were issued with grave abuse of discretion
respondents.
amounting to excess of jurisdiction.
The trial court (Branch XX), in its order dated May 8,
1980, dismissed the complaint in Civil Case No.
PETITION for certiorari to review the orders of the Court 129829 on the ground that the orders dated May 21, 1979
of First Instance of Manila, Br. 20. Molina, J. and June 15, 1979 issued by Judge Alfredo C. Florendo,
dismissing Civil Case No. 116028, had become final. The
The facts are stated in the opinion of the Court. trial court ruled that the dismissal of Civil Case No.
Paco, Gutierrez, Dorado, Asia & Associates for 116028 had the effect of an adjudication upon the merits,
petitioner. that the dismissal was with prejudice since the order was
Benjamin M. Reyes for respondents. unconditional, and that the lack of jurisdiction over
defendants (private respondents) in Civil Case No.
GANCAYCO, J.: 116028 was of no moment.3
In a motion for reconsideration of the order of May 8,
1980, petitioner reiterated its allegation that in Civil Case
The principal issue raised in this case is whether the trial
No. 116028, the court did not acquire jurisdiction over
court committed a grave abuse of discretion when it
private respondents and that at the time the court
ordered Civil Case No. 129829 dismissed on the ground
ordered its dismissal, a motion for an alias writ of
of res judicata it appearing that Civil Case No.
summons was pending resolution inasmuch as the sheriff
116028 was dismissed on May 21, 1979, for failure of
had not acted on the same.4 The motion for
petitioner to prosecute within a reasonable length of time,
reconsideration was denied by the trial court on June 26,
although in the said case, the trial court never acquired
1980 in Civil Case No. 129829.5
jurisdiction over the persons of private respondents.
Petitioner appealed to the Court of Appeals both
It is not disputed that both complaints in Civil Case
questioned orders of respondent court in Civil Case No.
No. 116028 (Branch XXXVI, Manila, Judge Alfredo C.
129829.6 But then, petitioner sought a more speedy
Florendo) and in Civil Case No. 129829 (Branch XX,
remedy in questioning said
Manila, Judge Conrado M. Molina) were filed by
petitioner Republic Planters Bank against private
respondent, for the collection of a sum of money based on _______________
a promissory note dated January 26, 1970, in the amount
of P100,000.00. 2 Page 26, Rollo.
On May 21, 1979, Judge Alfredo C. Florendo 3 Pp. 38-40, Rollo.
dismissed Civil Case No. 116028 for failure of the 4 Pp. 41-42, Rollo.
petitioner “to prosecute its case within a reasonable 5 Page 50, Rollo.
length of time.”1 A motion for recon- 6 Page 51, Rollo.
42
_______________ 42 SUPREME COURT REPORTS ANNOTATE
Republic Planters Bank vs. Molina
1 Page 25, Rollo.
orders by filing this petition for certiorari before this
Court.
Under the foregoing undisputed facts, the Court finds
this petition to be impressed with merit.
The questioned orders of the trial court in Civil Case
No. 129829 supporting private respondent’s motion to
dismiss on the ground of res judicata are without cogent
basis. We sustain petitioner’s claim that respondent trial
judge acted without or in excess of jurisdiction when he
issued said orders because he thereby traversed the
constitutional precept that “no person shall be deprived of
property without due process of law” and that jurisdiction
is vitally essential for any order or adjudication to be
binding. Justice cannot be sacrificed for technicality.
Originally, the action for collection of the loan, evidenced
by a promissory note, was only for P100,000.00 but
petitioner claims that as of March 5, 1981, the obligation
was already P429,219.74. It is a cardinal rule that no one
must be allowed to enrich himself at the expense of
another without just cause.
In the very order of dismissal of Civil Case No.
116028, the trial court admitted that it did not acquire
jurisdiction over the persons of private respondents and
yet, it held that it was of no moment as to the dismissal of
the case. We disagree. For the court to have authority to
dispose of the case on the merits, it must acquire
jurisdiction over the subject matter and the parties. If it
did not acquire jurisdiction over the private respondents
as parties to Civil Case No. 116028, it cannot render any
binding decision, favorable or adverse to them, or dismiss
the case with prejudice which, in effect, is an adjudication
on the merits.7The controverted orders in Civil Case No.
116028disregarded the fundamental principles of
remedial law and the meaning and the effect of
jurisdiction. A judgment, to be considered res
judicata, must be binding, and must be rendered by a
court of competent jurisdiction. Otherwise, the judgment
is a nullity.
The order of dismissal in Civil Case No. 116028 does
not have the effect of an adjudication on the merits of the
case because the court that rendered the same did not
have the requisite jurisdiction over the persons of the
defendants therein.
_______________
7Section 3, Rule 17, Rules of Court.
43
VOL. 166, SEPTEMBER 28, 1988
Republic Planters Bank vs. Molina
This being so, it cannot be the basis of res judicata and it
cannot be a bar to a lawful claim. If at all, such a
dismissal may be considered as one without prejudice.8
Trial courts have the duty to dispose of controversies © Copyright 2018 Central Book Supply, Inc. All rights
after trial on the merits whenever possible. In this case, reserved.
there are no indications that petitioner intentionally
failed to prosecute the case. The delay could not be
attributed to its fault. Petitioner pursued the case with
diligence, but jurisdiction could not be acquired over
defendants-private respondents. The sheriff had not yet
submitted his return of the alias summons when the
action was precipitately dismissed by the trial court.
These are proven circumstances that negate the action of
respondent judge that the dismissal of Civil Case No.
116028 has the effect of an adjudication upon the merits
and constitutes a bar to the prosecution of Civil Case No.
129829. The court finds that the two questioned orders of
the trial court are irregular, improper, and, were issued
with grave abuse of discretion amount ing to excess of
jurisdiction.
Petitioner correctly states that its appeal to the Court
of Appeals in CA-G.R. No. 67288 pertaining to the
questioned orders of the trial court is not an adequate
remedy, because petitioner was not able to present
evidence in the trial court. The sole issue involved in this
case is one of jurisdiction, which is appropriate for
resolution by the instant petition.
WHEREFORE, and by reason of the foregoing, the
questioned orders dated May 8, 1980 and June 26, 1980
issued in Civil Case No. 129829 are hereby REVERSED
and SET ASIDE. The records of the case are ordered
returned to the trial court for trial and disposition on the
merits. No costs.
This decision is immediately executory.
SO ORDERED.
Narvasa, Cruz, Griño-Aquino and Medialdea,
JJ., concur.
Orders reversed and set aside.
Note.—For res judicata to apply, the following
requisites must concur: (1) there must be a prior final
judgment or order;
_______________
8Section 2, Rule 17, Rules of Court.
44
44 SUPREME COURT REPORTS ANNOTATED
Board of Liquidators vs. Court of Appeals
(2) the court rendering the judgment or order must have
jurisdiction over the subject matter and over the parties;
(3) the judgment or 43order must be on the merits; and (4)
there must be between two cases, this earlier and the
instant, identity of parties, identity of subject matter and
indentity of cause of action. (Lorenzana vs. Macagba, 154
SCRA 723.)
——o0o——

VOL. 4, FEBRUARY 28, 1962
De Arroyo vs. Abay
No. L-15814. February 28, 1962.
IN THE MATTER OF THE ESTATE OF CANDELARIA
BENGUAN, deceased. SUSANA ABAY DE ARROYO,
petitioner-appellant, vs. FRANCISCO ABAY, CONRADO
ABAY, JR., JOSE ABAY and NORMA ABAY, opponents-
appellees.
Dismissal of petition for probate of will for failure to
appear; Not adjudication on merits.—The dismissal of a
petition for probate of a will and last testament in a
previous special proceedings due to the failure of the then
petitioner and his
556
5 dismissed the petition. After considering the motion for
SUPREME COURT REPORTS ANNOTATED
56
De Arroyo vs. Abay
counsel to appear on the date and time set for the
hearing thereof is not an adjudication on the merits.
Same; Same; Same; Provisions of rules on dismissal
not applicable; Reasons.—The provisions of Sections 3 ? a
nd 4, R 30, and Section 2, Rule 73 of the Rules of Court
cannot be made to apply to proceedings for the probate of
wills, because parties interested in the probate of a will
for transmission of property rights to them should not be
prejudiced by the act or fault of another and because it is last will and testament involved therein is the same
the policy of the state to have such last wills and
testaments submitted to Court for their probate or
legalization as shown or indicated by or in the
punishment provided for persons who are in possession of
last wills and testaments of deceased persons and fail or
neglect to deliver or present them to Court for probate or
to deliver them to the executor named in the will within
twenty days after they know of the death of the testators
or within the same period of time after they know that
they were named executors of the will (Sections 2 to 5,
Rule 76).
APPEAL from an order of dismissal of the Court of First
Instance of Negros Occidental.
The facts are stated in the opinion of the Court.
PADILLA, J.:
On 5 January 1956 Susana Abay de Arroyo filrst-degree
Court of First Instance of Negros Occidental a petition for the petitioner and his counsel to appear at the hearing set
the probate of the will of her deceased first-degree cousin by the Court was not an adjudication on the merits of the
Candelaria Benguan (special proceedings No. 3883). On
28 May, the Court ordered that the petition be published
once a week for three consecutive weeks in Civismo, a
newspaper of general circulation in Negros Occidental,
setting the date of hearing thereof for the 23rd day of
June 1956. On the date and time set for the hearing of the
petition attorney Rolando Medalla, representing some of
555
the heirs hereinafter referred to as opponents, moved for
the postponement of the hearing to give him time and
opportunity to file a written objection to the petition.
Whereupon, the hearing was postponed to 30 June 1956.
On 28 June, the opponents filed a motion to dismiss on
the ground that a petition for the probate of the same last
will and testament had been dismissed by the same Court
in a previous special proceedings No.
557
VOL. 4, FEBRUARY 28, 1962
De Arroyo vs. Abay
3628 and constitutes a bar to the present proceedings (No.
3883). On 7 July, the petitioner answered the motion to
dismiss. By an order entered on 14 July, the Court
reconsideration filed by the petitioner on 31 July 1956
and the answer thereto filed by the opponents on 3
August 1956, the Court denied the motion for
reconsideration. The petitioner appealed to the Court of
Appeals which certified the appeal to this Court for only
questions of law are raised.
The previous proceedings invoked by the opponents to
bar the present is special proceedings No. 3623 filed in
the Court of First Instance of Negros Occidental on 27
September 1955 by one Felix Abay, a brother of Susana
Abay de Arroyo, the herein petitioner and appellant. The
involved herein. However, upon failure of Felix Abay and
his counsel Pio B. Japitana to appear at the hearing on 4 ,
Novemb er 19 55, des pit e due n oti ce, t he Co urt missed
the petition, without stating that it was a dismissal with
prejudice. Two motions for reconsideration were filed, the
first on 15 November 1955 and the second on 28
November 1955, but both were denied, the last for lack of
merit.
The issue now hinges on whether or not the petition
for the probate of a will filed in this special proceedings is
barred by a previous special proceedings No. 3628, the
petition of which was dismissed for failure of the
petitioner and his counsel to appear on the date set for
the hearing thereof.
The appellant contends that the dismissal of the
petition in the previous case (spec. proc. No. 3628) does
not bar the present (spec. proc. No. 3883), both for the
probate of the same last will and testament of the late
Candelaria Benguan, because the dismissal for failure of
case and is not res judicata, because the parties in the
previous and present proceedings are not the same.
The appellant's contention that the dismissal of the
petition for probate in the previous special proceedings
due
558
558 SUPREME COURT REPORTS ANNOTAT
De Arroyo vs. Abay
to failure of the then petitioner and his counsel to appear
on the date and time set for the hearing thereof is not an
adjudication on the merits must be upheld. In arriving at
this conclusion the Court has not overlooked the
provisions of sections
557 3 ? a nd 4, R ule 30, and sec ti on 2 ,
R of the Rules of Court. The probate of a will may be the
concern of one person or several persons as usually is the
case. The fault of one such person may be imputed to him
alone who must suffer the consequences of his act. Such
fault cannot be imputed to other persons. Hence, the
failure of Felix Abay and his counsel to appear on the date
and time set for the hearing of the petition for the probate
of a will claimed to have been executed by the late
Candelaria Benguan during her lifetime which brought
about the dismissal of the petition filed in that special
proceedings (No. 3628) cannot prejudice the right of
Susana Abay de Arroyo, the petitioner, in a subsequent
petition filed for the probate of the same will and last
testament. So the provisions of the Rules cited and
invoked by the opponents-appellees cannot be made to
apply to proceedings for the probate of wills, because as
already stated other parties interested in the probate of a
will for transmission of property rights to them should not
be prejudiced by the act or fault of another and because it
is the policy of the State to have such last wills and
testaments submitted to Court for their probate or
legalization, as shown or indicated or evidenced by or in
the punishment provided for persons who are in
possession of last wills and testaments of deceased
persons and fail or neglect to deliver or present them to
Court for probate or to deliver them to the executor
named in the will within twenty days after they know of
the death of the testators or within the same period of
time after they know that they were named executors of
the will sections 2 ) to 5, R ule The underlying reason for
the rule that a dismissal of an action or complaint in a
civil case may be a bar to a subsequent action unless the
dismissal is without prejudice is lack of interest or
inaction of the one who brought the action in court by his
complaint and for such lack of interest or inaction he
should be made to suffer.
559
VOL. 4, FEBRUARY 28, 1962
People vs. Arconado
The order of dismissal appealed from is set aside and the
petition for probate of a will filed in special proceedings
No. 3883 remanded to the Court of First Instance o