SECOND DIVISION

[G.R. No. 110480. June 29, 2001.]

BANGKO SILANGAN DEVELOPMENT BANK, petitioner, vs. COURT OF
APPEALS, JUDGE PABLO D. ATIENZA, in his capacity as Presiding Judge of Branch
14, Regional Trial Court, Fourth Judicial Region, Nasugbu, Batangas and LEONIDA
UMANDAL-BAUSAS, respondents.
Edgar A. Pacis for petitioner.
Ricardo T. Diaz for private respondent.
SYNOPSIS
Private respondent Leonida Umandal-Bausas was a depositor of petitioner Bangko
Silangan Development Banko (BSDB) since 1985. As of April 1990, she had Fifteen
Thousand Pesos (P15,000.00) deposited in her savings account. On April 23, 1990, she
attempted to withdraw Five Thousand Pesos (P5,000.00) from that savings account but,
to her surprise, the bank teller told her that her brother had already withdrawn the amount
allegedly with her written authorization and that her remaining balance was only Eight
Hundred Pesos (P800.00). Respondent Bausas then inquired about the withdrawal slip
and found that the signatures appearing thereon were not hers and neither that of her
brother. Dismayed by the turn of events, she sought the assistance of a family friend,
Edmundo Villadolid. Villadolid sent petitioner BSDB a letter, together with an affidavit
executed by respondent Bausas. In substance, Villadolid, in his letter informed petitioner
BSDB of the "sad experience" of respondent Bausas. Also through a letter, petitioner
BSDB informed respondent Bausas that the investigation it had conducted on the matter
revealed that her brother bearing her passbook and the withdrawal slip to which her
signature was affixed, withdrew the amount of Fifteen Thousand Pesos (P15,000.00). The
petitioner bank asserted that it observed the usual procedure in bank-transaction. As a
result of that information, respondent Bausas sought the help of the National Bureau of
Investigation. After an investigation, a case was filed with the Office of the Provincial
Prosecutor and docketed therein. It appeared that respondent Bausas sought another
venue for airing her complaint the press. Aggrieved with the developments, petitioner
BSDB filed a complaint for damages against respondent Bausas, Villadolid, the
Philippine Journalists, Inc., and its officers and employees. The complaint alleged that the
"series of publications" were "clearly defamatory and libelous," and caused damage to the
"goodwill, integrity and good reputation" of the 21-year old bank. Respondents filed their
answer with compulsory counterclaim. While the civil case was pending in RTC-Manila,
respondent Bausas, joined by her husband Ricardo, filed a complaint for a sum of money,
with damages, against petitioner BSDB before the RTC of Batangas. Instead of filing a
responsive pleading to the complaint, petitioner BSDB filed a motion to dismiss, alleging
among others, that there was another pending action between the same parties for the
same cause, and that the filing of the complaint constituted forum-shopping. The RTC of
Batangas denied the motion to dismiss. Petitioner BSDB then filed a motion for
reconsideration, which was likewise denied. Petitioner BSDB elevated the matter to the
Court of Appeals via a petition for certiorari, prohibition and mandamus. The Court of
Appeals rendered the now assailed decision dismissing the petition for certiorari,
prohibition and mandamus and upholding the denial of its motion to dismiss. The
appellate court held that an order denying a motion to dismiss, being interlocutory, could

not be the subject of a petition for certiorari. Besides, the principle of litis pendentia
invoked by petitioner BSDB is not applicable to the case at bar. HIaSDc
According to the Supreme Court, the petition for certiorari, prohibition and mandamus
interposed by petitioner before the Court of Appeals was not the proper remedy to
question the denial of its motion to dismiss. The resolution and order of the RTC of
Batangas denying the motion to dismiss were merely interlocutory. The Court also ruled
that the filing of the latter case was not barred by litis pendentia. What is essential in litis
pendentia is the identity and similarity of the issues under consideration. Clearly, there
was no similarity of issues involved in the case at bar. Basically, that second case was a
collection suit founded on a contract of bank deposit, while the issue in the first case was
whether or not the alleged publications of the incident made by respondent Bausas and
Villadolid were defamatory so as to warrant petitioner's entitlement to damages. The
petitioner's contention that private respondent was guilty of forum shopping must
likewise fail inasmuch as the cause of action in the two civil cases were separate and
distinct from each other. The instant petition was denied for lack of merit. The challenged
decision of the Court of Appeals was affirmed and the Regional Trial Court of Batangas
was directed to proceed with dispatch to resolve the case filed before it.
SYLLABUS
1.
REMEDIAL LAW; CIVIL PROCEDURE; INTERLOCUTORY ORDER;
ALWAYS UNDER CONTROL OF THE COURT AND MAY BE MODIFIED OR
RESCINDED UPON SUFFICIENT GROUNDS SHOWN AT ANY TIME BEFORE
FINAL JUDGMENT; BASIS; LIMITATION. The petition for certiorari, prohibition
and mandamus interposed by petitioner before the Court of Appeals is not the proper
remedy to question the denial of its motion to dismiss in Civil Case No. 221. The
Resolution and Order of the RTC of Batangas denying the motion to dismiss are merely
interlocutory. An interlocutory order does not terminate nor finally dispose of the case,
but leaves something to be done by the court before the case is finally decided on the
merits. It is always under the control and may be modified or rescinded upon sufficient
grounds shown at any time before final judgment. This proceeds from the court's inherent
power to control its process and orders so as to make them conformable to law and
justice. The only limitation is that the judge cannot act with grave abuse of discretion, or
that no injustice results thereby. These limitations were not transgressed by the trial court
in the case at bar when it denied the petitioner's motion to dismiss. The alleged "chaos
and confusion" arising from conflicting decisions that petitioner purportedly seeks to
avert by the dismissal of Civil Case No. 221 are actually far-fetched and contrived
considering that any adverse decision of the CTA can be made the subject of a proper
appeal. TEAcCD
2.
ID.; ID.; MOTION TO DISMISS; LITIS PENDENTIA; EXECUTION OF
JUDGMENT; CONSTRUED; REQUISITES; WHAT IS ESSENTIAL IN LITIS
PENDENTIA IS THE IDENTITY AND SIMILARITY OF ISSUES UNDER
CONSIDERATION. Moreover, litis pendentia as a ground for the dismissal of a civil
action refers to a situation wherein another action is pending between the same parties for
the same cause of action and that the second action becomes unnecessary and vexatious.
More particularly, it must conform to the following requisites: (a) identity of parties, or at
least such parties who represent the same interests in both actions; (b) identity of rights
asserted and relief prayed for, the relief being founded on the same facts; and (c) identity

with respect to the two (2) preceding particulars in the two (2) cases is such that any
judgment that may be rendered in the pending case, regardless of which party is
successful, would amount to res judicata in the other case. What is essential in litis
pendentia is the identity and similarity of the issues under consideration. There being no
similarity of issues in Civil Cases No. 91-56185 and 221, the filing of the latter case was
not barred by litis pendentia.
3.
ID.; ID.; ID.; ID.; TEST TO DETERMINE IDENTITY OF CAUSES OF
ACTION. The test to determine identity of causes of action is to ascertain whether the
same evidence necessary to sustain the second cause of action is sufficient to authorize a
recovery in the first, even if the form or nature of the two (2) actions are different from
each other. If the same facts or evidence would sustain both, the two (2) actions are
considered the same within the rule that the judgment in the former is a bar to the
subsequent action; otherwise, it is not. This method has been considered the most
accurate test as to whether a former judgment is a bar in subsequent proceedings between
the same parties. It has even been designated as infallible.
4.
ID.; ID.; ACTIONS; FORUM SHOPPING; CONSTRUED. Forum-shopping
is "the act of a party against whom an adverse judgment has been rendered in one forum,
of seeking another (and possibly favorable) opinion in another forum other than by
appeal or special civil action of certiorari, or the institution of two (2) or more actions or
proceedings grounded on the same cause on the supposition that one or the other court
might look with favor upon the party. Where the elements of litis pendentia are not
present or where a final judgment in one case will not amount to res judicata in the other,
there is no forum-shopping. In the case at bar, there is no forum shopping, inasmuch as
earlier discussed, the cause of action in Civil Case No. 91-56185 is separate and distinct
from the cause of action in Civil Case No. 221. SDTIaE
DECISION
DE LEON, JR., J p:
Challenged in this petition for review on certiorari is the Decision 1 dated February 26,
1993 of the Court of Appeals in CA-G.R. No. SP-29659 which affirmed the Resolution 2
dated September 10, 1992 of the Regional Trial Court of Batangas, Branch 14, Nasugbu,
Batangas in Civil Case No. 221. The said Regional Trial Court (RTC) denied the motion
to dismiss filed by petitioner Bangko Silangan Development Bank (BSDB), Nasugbu
Branch, Batangas. The motion to dismiss was based on the ground of litis pendentia
allegedly arising from the same controversy, subject of Civil Case No. 91-56185, then
pending before the Regional Trial Court of Manila. CASTDI
The antecedent facts are as follows:
Private respondent Leonida Umandal-Bausas had been maintaining Savings Account No.
04-3652 as depositor of petitioner BSDB, Nasugbu Branch, Batangas since 1985. As of
April 1990, she had Fifteen Thousand Pesos (P15,000.00) deposited under her Savings
Account No. 04-3652. On April 23, 1990, respondent Leonida Umandal-Bausas
attempted to withdraw Five Thousand Pesos (P5,000.00) from that savings account but,
to her surprise, the bank teller told her that the withdrawal could not be done because her
brother, Antonio Umandal, had already withdrawn on April 16, 1990 the amount of
Fifteen Thousand Pesos (P15,000.00) allegedly with her written authorization and that
her remaining balance was only Eight Hundred Pesos (P800.00). Respondent Bausas then

inquired about the withdrawal slip and found that the signatures appearing thereon were
not hers and neither that of her brother. 3
Dismayed by the turn of events, respondent Bausas sought the assistance of a family
friend, Edmundo Villadolid, who was then the President-Manager of the Rural Bank of
Nasugbu, Batangas. On the following day, Villadolid sent petitioner BSDB a letter, dated
April 24, 1990, together with an affidavit executed by respondent Bausas. In substance,
Villadolid in his letter, informed petitioner BSDB of the "sad experience" of respondent
Bausas, a daughter of his kumadre, whose savings passbook had since been withheld by
the petitioner bank which allowed the withdrawal of the amount of Fifteen Thousand
Pesos (P15,000.00) from her savings account without verifying whether the withdrawal
was duly authorized by respondent Bausas. Claiming that the withdrawal smacked of
"foul play" and "dubious exercise of unwarranted banking operation," Villadolid warned
the petitioner bank that he would be constrained to elevate the matter to "higher
authorities" should there be no "reasonable and convincing results at the earliest (sic)
possible". 4
Upon receipt of the letter, petitioner BSDB caused an investigation on the matter through
its auditor, Benedicto I. Ramirez. On May 4, 1990, Ramirez submitted a report, a portion
of which reads:
"Savings ledger No. 3652 under the name Leonida B. Umandal shows a FIFTEEN
THOUSAND PESO (P15,000.00) withdrawal made last April 16. Said withdrawal is
evidenced by a withdrawal slip bearing the signatures of both the depositor, Leonida B.
Umandal and her representative, Antonio Umandal, which are genuine. Both Leonida B.
Umandal and her brother Antonio Umandal, who dropped by to complaint (sic) sometime
after April 22, 1990, denied having signed said withdrawal slip as per statements
gathered from the officers and staff of Nasugbu Branch. Said withdrawal was processed
in accordance with the standard operating procedure." 5
Subsequently, on May 15, 1990, Villadolid requested the Central Bank of the Philippines
to intervene and conduct an investigation on petitioner BSDB's banking operations on
account of the petitioner bank's "indifference" in the conduct of its investigation on the
unauthorized withdrawal from respondent Bausas' savings account. This was
subsequently referred by the Central Bank to petitioner BSDB's Head Office in Batangas
City.
On May 31, 1990, Villadolid wrote petitioner BSDB another letter, a copy of which was
furnished the Central Bank. He reminded the petitioner bank that it had been forty-five
(45) days since the failed withdrawal and that, notwithstanding the attempt of respondent
Bausas' father to thresh out the matter with Sofronio Comia, petitioner bank's officer-incharge, no "concrete results and/or remedies" has been arrived at. He warned that if,
within five (5) days, the petitioner bank would continue its "insulting treatment" on the
matter, respondent Bausas would be constrained to hire the services of a lawyer in order
that the proper charges would be filed against the petitioner bank. 6
In a letter dated June 6, 1990, petitioner BSDB, through Alberto Buquid, informed
respondent Bausas that the investigation it had conducted on the matter revealed that on
April 16, 1990, her brother, Antonio Umandal, bearing her passbook under Savings
Account No. 04-3652 and the withdrawal slip to which her signature was affixed,
withdrew the amount of Fifteen Thousand Pesos (P15,000.00). The petitioner bank
asserted that it observed the usual procedure in bank transactions it made the proper

verification, posted the withdrawal on the passbook and the bank ledger, and approved
the withdrawal. 7
As a result of that information, respondent Bausas sought the help of the National Bureau
of Investigation (NBI) in Region IV, Batangas City. After an investigation, a case was
filed with the Office of the Provincial Prosecutor of Batangas on February 21, 1993 and
docketed therein as Investigation Slip (I.S.) No. 91-37. 8
It appears that respondent Bausas sought another venue for airing her complaint the
press. Thus, in the September 17, 1990 issue of the People's Journal Tonight, the
following headline appeared: "Bank Money Withdrawn w/o Depositor's Knowledge." 9
Aside from that publication, respondent Bausas and Villadolid reproduced by xerox
machine the said news item and posted the xerox copies in conspicuous places within the
municipal hall of Nasugbu. cda
Aggrieved, on February 22, 1991, petitioner BSDB filed in the RTC of Manila a
complaint for damages 10 against respondent Bausas, Villadolid, the Philippine
Journalists, Inc., Zacarias Nuguid, Jr. (publisher), Alfredo M. Marquez (managing
editor), Franklin Cabaluna (news editor), Benjamin Ayllon (city editor) and Raul S.
Beltran (reporter). Docketed as Civil Case No. 91-56185 in the RTC of Manila, Branch
24, the complaint alleged that the "series of publications" were "clearly defamatory and
libelous," and that the publication constituted the crime defined and penalized under
Article 353 of the Revised Penal Code that damaged the "goodwill, integrity and good
reputation" of the 21-year old bank. 11 Petitioner BSDB prayed for compensatory
damages of One Hundred Thousand Pesos (P100,000.00), moral damages of One Million
Five Hundred Thousand Pesos (P1,500,000.00), exemplary damages of Seven Hundred
Thousand Pesos (P700,000.00), and attorney's fees of Two Hundred Thousand Pesos
(P200,000.00).
In their answer with compulsory counterclaim, 12 in Civil Case No. 91-56185 respondent
Bausas and Villadolid alleged that the withdrawal slip was a forgery and that Villadolid's
actions were moved by a "sense of moral duty" to respondent Bausas and her family.
They raised lack of actual malice as a defense and interposed a compulsory counterclaim
for One Million Pesos (P1,000,000.00) in moral damages, Two Hundred Fifty Thousand
Pesos (P250,000.00) in litigation expenses and other damages, Five Hundred Thousand
Pesos (P500,000.00) in exemplary damages, and Fifty Thousand Pesos (P50,000.00) plus
Two Thousand Pesos (P2,000.00) per appearance as attorney's fees.
While Civil Case No. 91-56185 was pending in the RTC of Manila, or on February 13,
1992, respondent Bausas, joined by her husband Ricardo, filed Civil Case No. 221, a
complaint for a sum of money, with damages, against petitioner BSDB before the RTC of
Batangas, Branch 14 in Nasugbu, Batangas. The complaint specifically prayed that
petitioner BSDB be ordered to pay them (a) Fifteen Thousand Pesos (P15,000.00) "plus
whatever balance" remained of her deposit, including accrued interests thereon; (b)
Twenty Thousand Pesos (P20,000.00) as litigation expenses and/or damages; and (c) Ten
Thousand Pesos (P10,000.00) as attorney's fees plus One Thousand Pesos (P1,000.00)
per hearing attended by their lawyer. 13
Instead of filing a responsive pleading to the complaint, petitioner BSDB filed a motion
to dismiss, 14 alleging that (a) there was another action pending between the same parties
for the same case (sic); (b) the action caused the splitting of the cause of action raised in
the answer and counterclaim in Civil Case No. 91-56185; (c) the action violated the

principle of multiplicity of suits, and; (d) the filing of the complaint constituted forumshopping.
On September 10, 1982, the RTC of Batangas 15 issued a Resolution 16 denying the
motion to dismiss.
Petitioner BSDB then filed a motion for reconsideration 17 which the RTC of Batangas,
however, denied in an Order 18 dated November 19, 1992.
Petitioner BSDB elevated the matter to the Court of Appeals via a petition for certiorari,
prohibition and mandamus, 19 seeking the reversal of the said Resolution and Order of
the RTC of Batangas.
On February 26, 1993, the Court of Appeals rendered the now assailed Decision
dismissing petitioner BSDB's petition for certiorari, prohibition and mandamus and
upholding the denial of its motion to dismiss Civil Case No. 221. 20 The appellate court
held that an order denying a motion to dismiss, being interlocutory, cannot be the subject
of a petition for certiorari.
Besides, the principle of litis pendentia invoked by petitioner BSDB is not applicable to
the case at bar. The appellate court correctly found and declared that: HcSaTI
"In the present case, while concededly, certain pieces of evidence may be identical (to)
both Civil Case No. 91-56185 and Civil Case No. 221, it cannot be said however, that
exactly the same evidence will support the decisions in both. In Civil Case No. 91-56185
pending before the Regional Trial Court of Manila, the issues raised are (1) whether the
publication in the September 17, 1990 issue of the People's Journal Tonight is false and
libelous and the action is directed, not only against private respondent Leonida UmandalBausas but also against the publisher and editorial staff of the publication concerned; and
(2) whether Leonida Umandal-Bausas acted with malice in causing the posting of xerox
copies of said publication at conspicuous places at the Municipal Building of Nasugbu,
Batangas. In Civil Case No. 221, however, the primary issue, shown (sic) of unessential
trimmings, is whether or not petitioner Bank could be held liable to Leonida UmandalBausas for the withdrawal from her savings account in the amount of P15,000.00.
Private respondent Bausas did not invoke as a permissive counterclaim in Civil Case No.
91-56185, that petitioner indemnify her of her savings deposit which she claims to have
been withdrawn by someone else without her authority.
We therefore rule that the court a quo did not commit an abuse of discretion in denying
petitioner's motion to dismiss in Civil Case No. 221 on the ground of litis pendentia." 21
Petitioner BSDB's motion for reconsideration 22 thereof was denied in a Resolution, 23
dated June 7, 1993, of the appellate court.
Hence, the instant petition wherein petitioner BSDB raises the following assignment of
errors:
I
THE RESPONDENT COURT ERRED WHEN IT HELD THAT THE PETITION FOR
CERTIORARI, PROHIBITION AND MANDAMUS SEEKING TO NULLIFY AND
SET ASIDE THE ORDER OF THE RESPONDENT JUDGE DENYING
PETITIONER'S MOTION TO DISMISS "DOES NOT FALL WITHIN THE AMBIT OF
THE EXCEPTION" TO THE GENERAL RULE THAT AN ORDER DENYING A
MOTION TO DISMISS IS NOT AN INTERLOCUTORY ORDER AND CANNOT BE
THE SUBJECT OF A PETITION FOR CERTIORARI.
II

THE RESPONDENT COURT COMMITTED AN ERROR REVIEWABLE ON

APPEAL BY CERTIORARI WHEN IT DENIED DUE COURSE TO THE PETITION
AND TO HAVE DISMISSED THE SAME BECAUSE OF ITS FINDING THAT
THERE IS NO LITIS PENDENTIA BETWEEN CIVIL CASE NO. 221 AND CIVIL
CASE NO. 91-56185.
Petitioner argues that respondent RTC of Batangas acted without or in excess of
jurisdiction or was guilty of grave abuse of discretion when it refused to dismiss Civil
Case No. 221 despite the pendency of Civil Case No. 91-56185 in the RTC of Manila. It
insists that litis pendentia barred the proceedings in Civil Case No. 221 because the
special and affirmative defenses raised by respondent Bausas in Civil Case No. 91-56185
are really the same cause of action which she relied upon in Civil Case No. 221. For that
matter, it claimed that respondent trial court abetted the possibility of conflicting
decisions between two (2) co-equal and coordinate courts that may in the end sow
confusion and chaos that would take years to untangle and settle. 24
Private respondent, on the other hand, counters that an order denying a motion to dismiss
is interlocutory, and hence, cannot be the subject of a petition for certiorari. She claims
that the remedy of petitioner bank should be to proceed with the trial and, in the event of
an adverse decision, interpose an appeal to the proper forum. aHcACI
As regards petitioner's claim of litis pendentia, respondent Bausas contends that the issue
in Civil Case No. 91-56185 is whether or not she and Villadolid acted with malice in
publishing the allegedly libelous letters so as to warrant their liability for damages
whereas the issue in Civil Case No. 221 which is an action for collection of a sum of
money, is whether or not there was an unauthorized withdrawal of her savings deposit
that would warrant the petitioner's liability therefor.
The petition, not being meritorious, the same should be, as it is hereby, denied.
The petition for certiorari, prohibition and mandamus interposed by petitioner before the
Court of Appeals is not the proper remedy to question the denial of its motion to dismiss
in Civil Case No. 221. The Resolution and Order of the RTC of Batangas denying the
motion to dismiss are merely interlocutory. An interlocutory order does not terminate nor
finally dispose of the case, but leaves something to be done by the court before the case is
finally decided on the merits. 25 It is always under the control of the court and may be
modified or rescinded upon sufficient grounds shown at any time before final judgment.
This proceeds from the court's inherent power to control its process and orders so as to
make them conformable to law and justice. The only limitation is that the judge cannot
act with grave abuse of discretion, or that no injustice results thereby. 26 These
limitations were not transgressed by the trial court in the case at bar when it denied the
petitioner's motion to dismiss. The alleged "chaos and confusion" arising from conflicting
decisions that petitioner purportedly seeks to avert by the dismissal of Civil Case No. 221
are actually far-fetched and contrived considering that any adverse decision of the CTA
can be made the subject of a proper appeal.
Our recent ruling in Espao, Sr. vs. Court of Appeals 27 applies to the case at bar, to wit:
"We find occasion here to state the rule, once more, that an order denying a motion to
dismiss is merely interlocutory and therefore not appealable, nor can it be the subject of a
petition for review on certiorari. Such order may only be reviewed in the ordinary course
of law by an appeal from the judgment after trial. The ordinary procedure to be followed
in that event is to file an answer, go to trial, and if the decision is adverse, reiterate the

issue on appeal from the final judgment. This is exactly what petitioner should have done
in this case after his prayer for the dismissal of Civil Case No. 21-88 was denied by the
trial court. Although the special civil action for certiorari may be availed of in case there
is grave abuse of discretion or lack of jurisdiction on the part of the lower court, that
vitiating error is indubitably not present in the instant case."
Moreover, litis pendentia as a ground for the dismissal of a civil action refers to a
situation wherein another action is pending between the same parties for the same cause
of action and that the second action becomes unnecessary and vexatious. 28 More
particularly, it must conform to the following requisites: (a) identity of parties, or at least
such parties who represent the same interests in both actions; (b) identity of rights
asserted and relief prayed for, the relief being founded on the same facts; and (c) identity
with respect to the two (2) preceding particulars in the two (2) cases is such that any
judgment that may be rendered in the pending case, regardless of which party is
successful, would amount to res judicata in the other case. 29
The trial court was correct when it opined that
". . . [T]here has never been any allegation in the answer that would tend to show that the
herein plaintiff intended to collect her deposit of P15,000.00 from the defendant-bank
which is the subject matter of the instant complaint. Even the complaint above-cited filed
in the Regional Trial Court of Manila, the same solely deals on the alleged damages
suffered by the defendant-bank Bangko Silangan Development Bank in the alleged
publication. On ground No. 2, the court finds that the counterclaim interposed by the
plaintiff in the instant case in Civil Case No. 91-51685 before the Regional Trial Court of
Manila is solely for moral damages, litigation expenses; attorney's fees and exemplary
damages. Nothing about the claim for the reimbursement or release of the P15,000.00,
subject matter of the instant case is ever made therein. HETDAa
Since the instant case is entirely different from the case now pending before the court of
Regional Trial Court of Manila, the court views that there is no such multiplicity of
suits." 30
Clearly, the issue in Civil Case No. 221 is whether or not petitioner was negligent in
validating the withdrawal slip and the alleged authority to withdraw of respondent
Bausas' brother so that it could by held responsible for the amount withdrawn. Basically,
that case is a collection suit founded on a contract of bank deposit.
On the other hand, the issue in Civil Case No. 91-56185 is whether or not the alleged
publications of the incident made by respondent Bausas and Villadolid are defamatory so
as to warrant petitioner's entitlement to damages.
What is essential in litis pendentia is the identity and similarity of the issues under
consideration. 31 There being no similarity of issues in Civil Cases No. 91-56185 and
221, the filing of the latter case was not barred by litis pendentia.
There is neither identity of rights asserted and reliefs sought by the parties in the two (2)
cases. Petitioner asserts its right to be compensated for alleged damage to its goodwill
and reputation in Civil Case No. 91-56185 of the RTC of Manila. Respondent Bausas, on
the other hand, asserts her right to be reimbursed the amount illegally withdrawn from
her savings bank account in Civil Case No. 221 of the RTC of Batangas. As to the reliefs
sought, while both petitioner and respondent Bausas seek damages, the reasons for such
reliefs prayed for are divergent. Thus, there is no identity of causes of action in the two
(2) cases.

The test to determine identity of causes of action is to ascertain whether the same
evidence necessary to sustain the second cause of action is sufficient to authorize a
recovery in the first, even if the form or nature of the two (2) actions are different from
each other. If the same facts or evidence would sustain both, the two (2) actions are
considered the same within the rule that the judgment in the former is a bar to the
subsequent action; otherwise, it is not. This method has been considered the most
accurate test as to whether a former judgment is a bar in subsequent proceedings between
the same parties. It has even been designated as infallible. 32
While it is true that the two (2) cases are founded on practically the same set of facts, as
correctly observed by the Court of Appeals, it cannot be said that exactly the same
evidence are needed to prove the causes of action in both cases. Thus, in Civil Case No.
91-56185 of the RTC of Manila, the evidence needed to prove that petitioner sustained
damage to its reputation and goodwill is not the same evidence needed in Civil Case No.
221 of the RTC of Batangas to prove the allegation that a substantial amount of
respondent Bausas' bank deposit in petitioner's bank was illegally withdrawn without her
consent or authority. The RTC of Batangas and the Court of Appeals, therefore, did not
abuse their discretion in denying petitioner's motion to dismiss which was based on the
ground of litis pendentia..
The petitioner's contention that private respondent is guilty of forum-shopping must
likewise fail.
Forum-shopping is "the act of a party against whom an adverse judgment has been
rendered in one forum, of seeking another (and possibly favorable) opinion in another
forum other than by appeal or special civil action of certiorari, or the institution of two
(2) or more actions or proceedings grounded on the same cause on the supposition that
one or the other court might look with favor upon the party." 33 Where the elements of
litis pendentia are not present or where a final judgment in one case will not amount to
res judicata in the other, 34 there is no forum-shopping. In the case at bar, there is no
forum shopping, inasmuch as earlier discussed, the cause of action in Civil Case No. 9156185 is separate and distinct from the cause of action in Civil Case No. 221. aSDHCT
WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of
merit. The challenged Decision of the Court of Appeals is AFFIRMED; and the Regional
Trial Court of Batangas, Branch 14, Nasugbu, Batangas, is hereby directed to proceed
with dispatch to resolve Civil Case No. 221.
SO ORDERED.
Bellosillo, Mendoza, Quisumbing and Buena, JJ., concur.

A.M. No. 03-1-09-SC

RE: PROPOSED RULE ON GUIDELINES TO BE OBSERVED BY TRIAL
COURT JUDGES AND CLERKS OF COURT IN THE CONDUCT OF PRETRIAL AND USE OF DEPOSITION-DISCOVERY MEASURES
RESOLUTION
Acting on the recommendation of the Chairman of the Committee on Revision of the
Rules of Court submitting for this Court's, consideration and approval the Proposed Rule
on Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct
of Pre-Trial and Use of Deposition-Discovery Measures, the Court Resolved
to APPROVE the same. The said Rule is hereto attached as an integral part of this
Resolution.
The Rule shall take effect on August 16, 2004 following its publication in a newspaper of
general circulation not later than July 30, 2004.
July 13, 2004.
(Sgd.)Davide, Jr. C.J., Puno, Vitug, Panganiban, Quisumbing, Ynarez-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr.,
Azcuna and Tinga JJ.
GUIDELINES TO BE OBSERVED BY TRIAL COURT JUDGES AND CLERKS
OF COURT IN THE CONDUCT OF PRE-TRIAL AND USE OF DEPOSITIONDISCOVERY MEASURES
The use of pre-trial and the deposition-discovery measures are undeniably important and
vital components of case management in trial courts. To abbreviate court proceedings,
ensure prompt disposition of cases and decongest court dockets, and to further implement
the pre-trial guidelines laid down in Administrative Circular No. 3-99 dated January 15,
1999 and except as otherwise specifically provided for in other special rules, the
following guidelines are issued for the observance and guidance of trial judges and clerks
of court:
I.
PRE-TRIAL
A. Civil Cases
1. Within one day from receipt of the complaint:
1.1 Summons shall be prepared and shall contain a reminder to defendant to observe
restraint in filing a motion to dismiss and instead allege the grounds thereof as defenses
in the Answer, in conformity with IBP-OCA Memorandum on Policy Guidelines dated
March 12, 2002. A copy of the summons is hereto attached as Annex "A;" and
1.2 The court shall issue an order requiring the parties to avail of interrogatories to parties
under Rule 25 and request for admission by adverse party under Rule 26 or at their
discretion make use of depositions under Rule 23 or other measures under Rules 27 and
28 within five days from the filing of the answer.1 A copy of the order shall be served
upon the defendant together with the summons and upon the plaintiff.
Within five (5) days from date of filing of the reply,2 the plaintiff must promptly move ex
parte that the case be set for pre-trial conference.3 If the plaintiff fails to file said motion
within the given period, the Branch COC shall issue a notice of pre-trial.
2. The parties shall submit, at least three (3) days before the pre-trial, pre-trial briefs
containing the following:4

a. A statement of their willingness to enter into an amicable settlement indicating the

desired terms thereof or to submit the case to any of the alternative modes of dispute
resolution;
b. A summary of admitted facts and proposed stipulation of facts;
c. The issues to be tried or resolved;
d. The documents or exhibits to be presented, stating the purpose thereof. (No evidence
shall be allowed to be presented and offered during the trial in support of a party's
evidence-in-chief other than those that had been earlier identified and pre-marked
during the pre-trial, except if allowed by the court for good cause shown);
e. A manifestation of their having availed or their intention to avail themselves of
discovery procedures or referral to commissioners; and
f. The number and names of the witnesses, the substance of their testimonies, and the
approximate number of hours that will be required by the parties for the presentation of
their respective witnesses.
A copy of the Notice of Pre-trial Conference is hereto attached as Annex "B."
The rule on the contents of the pre-trial brief must strictly be complied with.
The parties are bound by the representations and statements in their respective pre-trial
briefs.
3. At the start of the pre-trial conference, the judge shall immediately refer the parties
and/or their counsel if authorized by their clients to the PMC mediation unit for purposes
of mediation if available.5 If mediation fails, the judge will schedule the continuance of
the pre-trial conference. Before the continuance, the Judge may refer the case to the
Branch COC for a preliminary conference to assist the parties in reaching a settlement, to
mark the documents or exhibits to be presented by the parties and copies thereof to be
attached to the records after comparison and to consider such other matters as may aid in
its prompt disposition.6
During the preliminary conference, the Branch COC shall also ascertain from the parties
the undisputed facts and admissions on the genuineness and due execution of the
documents marked as exhibits. The proceedings during .the preliminary conference shall
be recorded in the "Minutes of Preliminary Conference" to be signed by both parties
and/or counsel, the form of which is hereto attached as Annex. "C".
The minutes of preliminary conference and the exhibits shall be attached by the Branch
COC to the case record before the pre-trial.
4. Before the continuation of the pre-trial conference, the judge must study all the
pleadings of the case, and determine the issues thereof and the respective positions of the
parties thereon to enable him to intelligently steer the parties toward a possible amicable
settlement of the case, or, at the very least, to help reduce and limit the issues. The judge
should not allow the termination of pre-trial simply because of the manifestation of the
parties that they cannot settle the case. He should expose the parties to the advantages of
pre-trial. He must also be mindful that there are other important aspects of the pre-trial
that ought to be taken up to expedite the disposition of the case.7
The Judge with all tact, patience, impartiality and with due regard to the rights of the
parties shall endeavor to persuade them to arrive at a settlement of the dispute.8 The court
shall initially ask the parties and their lawyers if an amicable settlement of the case is
possible. If not, the judge may confer with the parties with the opposing counsel to
consider the following:

a. Given the evidence of the plaintiff presented in his pre-trial brief to support his claim,
what manner of compromise is considered acceptable to the defendant at the present
stage?
b. Given the evidence of the defendant described in his pre-trial brief to support his
defense, what manner of compromise is considered acceptable to the plaintiff at the
present stage?
If not successful, the court shall confer with the party and his counsel separately.
If the manner of compromise is not acceptable, the judge shall confer with the parties
without their counsel for the same purpose of settlement.
5. If all efforts to settle fail, the trial judge shall:
a. Adopt the minutes of preliminary conference as part of the pre-trial proceedings and
confirm markings of exhibits or substituted photocopies and admissions on the
genuineness and due execution of documents;
b. Inquire if there are cases arising out of the same facts pending before other courts and
order its consolidation if warranted;
c. Inquire if the pleadings are in order. If not, order the amendments if necessary;
d. Inquire if interlocutory issues are involved and resolve the same;
e. Consider the adding or dropping of parties;
f. Scrutinize every single allegation of the complaint, answer and other pleadings and
attachments thereto and the contents of documents and all other evidence identified and
pre-marked during pre-trial in determining further admissions of facts and documents.
To obtain admissions, the Court shall ask the parties to submit the depositions taken
under Rule 23, the answers to written interrogatories under Rule 25 and the answers to
request for admissions by the adverse party under Rule 26. It may also require the
production of documents or things requested by a party under Rule 27 and the results of
the physical and mental examination of persons under Rule 28;
g. Define and simplify the factual and legal issues arising from the pleadings.
Uncontroverted issues and frivolous claims or defenses should be eliminated. For each
factual issue, the parties/counsel shall state all the evidence to support their positions
thereon. For each legal issue, parties/counsel shall state the applicable law and
jurisprudence supporting their respective positions thereon. If only legal issues are
presented, the judge shall require the parties to submit their respective memoranda and
the court can proceed to render judgment;9
h. Determine the propriety of rendering a summary judgment dismissing the case based
on the disclosures made at the pre-trial or a judgment based on the pleadings, evidence
identified and admissions made during pre-trial;10
i. Ask parties to agree on the specific trial dates for continuous trial in accordance with
Circular No. 1-89 dated January 19, 1989; adhere to the case flow chart determined by
the court, which shall contain the different stages of the proceedings up to the
promulgation of the decision and use the time frame for each stage in setting the trial
dates. The One-Day Examination of Witness Rule, that is, a witness has to be fully
examined in one (1) day only, shall be strictly adhered to subject to the courts' discretion
during trial on whether or not to extend the direct and/or cross-examination for justifiable
reasons. On the last hearing day allotted for each party, he is required to make his formal
offer of evidence after the presentation of his last witness and the opposing party is
required to immediately interpose his objection thereto. Thereafter, the Judge shall make

the ruling on the offer of evidence in open court. However the judge has the discretion to
allow the offer of evidence in writing in conformity with Section 35, Rule 132;
j. Determine the most important witnesses to be heard and limit the number of
witnesses (Most Important Witness Rule). The facts to be proven by each witness and the
approximate number of hours per witness shall be fixed;
k. At his discretion, order the parties to use the affidavits of witnesses as direct
testimonies subject to the right to object to inadmissible portions thereof and to the right
of cross-examination by the other party. The affidavits shall be based on personal
knowledge, shall set forth facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein. The
affidavits shall be in question and answer form, and shall comply with the rules on
admissibility of evidence;
l. Require the parties and/or counsel to submit to the Branch COC the names, addresses
and contact numbers of the witnesses to be summoned by subpoena;
m. Order the delegation of the reception of evidence to the Branch COC under Rule 30;
and
n. Refer the case to a trial by commissioner under Rule 32.
During the pre-trial, the judge shall be the one to ask questions on issues raised therein
and all questions or comments by counsel or parties must be directed to the judge to
avoid hostilities between the parties.
6. The trial judge shall schedule the pre-trial in the afternoon sessions and set as many
pre-trial conferences as may be necessary.
7. All proceedings during the pre-trial shall be recorded. The minutes of each pre-trial
conference shall contain matters taken up therein more particularly admissions of facts
and exhibits and shall be signed by the parties and their counsel.
8. The judge shall issue the required Pre-Trial Order within ten (10) days after the
termination of the pre-trial. Said Order shall bind the parties, limit the trial to matters not
disposed of and control the course of the action during the trial. A sample Pre-Trial
Order is hereto attached as Annex "D."
However, the Court may opt to dictate the Pre-Trial Order in open court in the presence
of the parties and their counsel and with the use of a computer, shall have the same
immediately finalized and printed. Once finished, the parties and/or their counsel shall
sign the same to manifest their conformity thereto.
9. The court shall endeavor to make the parties agree to an equitable compromise or
settlement at any stage of the proceedings before rendition of judgment.
B. Criminal Cases
1. Before arraignment, the Court shall issue an order directing the public prosecutor to
submit the record of the preliminary investigation to the Branch COC for the latter to
attach the same to the record of the criminal case.
Where the accused is under preventive detention, his case shall be raffled and its records
transmitted to the judge to whom the case was raffled within three days from the filing of
the complaint or information. The accused shall be arraigned within ten days from the
date of the raffle. The pre-trial of his case shall be held within ten days after arraignment
unless a shorter period is provided for by law.11
2. After the arraignment, the court shall forthwith set the pre-trial conference within thirty
days from the date of arraignment, and issue an order: (a) requiring the private offended

party to appear thereat for purposes of plea-bargaining except for violations of the
Comprehensive Dangerous Drugs Act of 2002, and for other matters requiring his
presence;12 (b) referring the case to the Branch COC, if warranted, for a preliminary
conference to be set at least three days prior to the pre-trial to mark the documents or
exhibits to be presented by the parties and copies thereof to be attached to the records
after comparison and to consider other matters as may aid in its prompt disposition; and
(c) informing the parties that no evidence shall be allowed to be presented and offered
during the trial other than those identified and marked during the pre-trial except when
allowed by the court for good cause shown. A copy of the order is hereto attached as
Annex "E". In mediatable cases, the judge shall refer the parties and their counsel to the
PMC unit for purposes of mediation if available.
3. During the preliminary conference, the Branch COC shall assist the parties in reaching
a settlement of the civil aspect of the case, mark the documents to be presented as
exhibits and copies thereof attached to the records after comparison, ascertain from the
parties the undisputed facts and admissions on the genuineness and due execution of
documents marked as exhibits and consider such other matters as may aid in the prompt
disposition of the case. The proceedings during the preliminary conference shall be
recorded in the Minutes of Preliminary Conference to be signed by both parties and
counsel. (Please see Annex "B")
The Minutes of Preliminary Conference and the exhibits shall be attached by the Branch
COC to the case record before the pre-trial.
4. Before the pre-trial conference the judge must study the allegations of the information,
the statements in the affidavits of witnesses and other documentary evidence which form
part of the record of the preliminary investigation.
5. During the pre-trial, except for violations of the Comprehensive Dangerous Drugs Act
of 2002, the trial judge shall consider plea-bargaining arrangements.13 Where the
prosecution and the offended party agree to the plea offered by the accused, the court
shall:
a. Issue an order which contains the plea bargaining arrived at;
b. Proceed to receive evidence on the civil aspect of the case; and
c. Render and promulgate judgment of conviction, including the civil liability or damages
duly established by the evidence.14
6. When plea bargaining fails, the Court shall:
a. Adopt the minutes of preliminary conference as part of the pre-trial proceedings,
confirm markings of exhibits or substituted photocopies and admissions on the
genuineness and due execution of documents and list object and testimonial evidence;
b. Scrutinize every allegation of the information and the statements in the affidavits and
other documents which form part of the record of the preliminary investigation and other
documents identified and marked as exhibits in determining farther admissions of facts,
documents and in particular as to the following:15
1. the identity of the accused;
2. court's territorial jurisdiction relative to the offense/s charged;
3. qualification of expert witness/es;
4. amount of damages;
5. genuineness and due execution of documents;
6. the cause of death or injury, in proper cases;

7. adoption of any evidence presented during the preliminary investigation;

8. disclosure of defenses of alibi, insanity, self-defense, exercise of public authority and
justifying or exempting circumstances; and
9. such other matters that would limit the facts in issue.
c. Define factual and legal issues;
d. Ask parties to agree on the specific trial dates and adhere to the flow chart determined
by the court which shall contain the time frames for the different stages of the proceeding
up to promulgation of decision and use the time frame for each stage in setting the trial
dates;
e. Require the parties to submit to the Branch COC the names, addresses and contact
numbers of witnesses that need to be summoned by subpoena;16 and
f. Consider modification of order of trial if the accused admits the charge but interposes a
lawful defense.
7. During the pre-trial, the judge shall be the one to ask questions on issues raised therein
and all questions must be directed to him to avoid hostilities between parties.
8. All agreements or admissions made or entered during the pre-trial conference shall be
reduced in writing and signed by the accused and counsel, otherwise, they cannot be used
against the accused. The agreements covering the matters referred to in Section 1 of Rule
118 shall be approved by the court. (Section 2, Rule 118)
9. All proceedings during the pre-trial shall be recorded, the transcripts prepared and the
minutes signed by the parties and/or their counsels.
10. The trial judge shall issue a Pre-trial Order within ten (10) days after the termination
of the pre-trial setting forth the actions taken during the pre-trial conference, the facts
stipulated, the admissions made, evidence marked, the number of witnesses to be
presented and the schedule of trial. Said Order shall bind the parties, limit the trial to
matters not disposed of and control the course the action during the trial.17
Encl:
Annex "A" - Summons
Annex "B" - Notice of Pre-trial Conference in Civil Cases
Annex "C" - Minutes of Preliminary Conference
Annex "D" - Pre-trial Order in Civil Cases
Annex "E" - Notice of Pre-trial Conference in Criminal Cases

SECOND DIVISION
[G.R. No. 108229. August 24, 1993.]
DASMARIAS GARMENTS, INC., petitioner, vs. HON. RUBEN T. REYES, Judge,
Regional Trial Court, Manila, Branch 50, and AMERICAN PRESIDENT LINES, LTD.,
respondents.
Sobrevias, Diaz, Haudini & Bodegon Law Offices for petitioner.
Tan, Manzano & Velez Law Offices for private respondent.
SYLLABUS
1.
REMEDIAL LAW; CIVIL ACTIONS; DEPOSITIONS AND DISCOVERY;
DEPOSITION; OBJECT. Depositions are chiefly a mode of discovery. They are
intended as a means to compel disclosure of facts resting in the knowledge of a party or
other person which are relevant in some suit or proceeding in court. Depositions, and the
other modes of discovery (interrogatories to parties; requests for admission by adverse
party; production or inspection of documents or things; physical and mental examination
of persons) are meant to enable a party to learn all the material and relevant facts, not
only known to him and his witnesses but also those known to the adverse party and the
latter's own witnesses. In fine, the object of discovery is to make it possible for all the
parties to a case to learn all the material and relevant facts, from whoever may have
knowledge thereof, to the end that their pleadings or motions may not suffer from
inadequacy of factual foundation, and all the relevant facts may be clearly and completely
laid before the Court, without omission or suppression.
2.
ID.; ID.; ID.; ID.; GENERALLY NOT MEANT TO BE A SUBSTITUTE FOR
ACTUAL TESTIMONY IN OPEN COURT. Depositions are principally made
available by law to the parties as a means of informing themselves of all the relevant
facts; they are not therefore generally meant to be a substitute for the actual testimony in
open court of a party or witness. The deponent must as a rule be presented for oral
examination in open court at the trial or hearing. This is a requirement of the rules of
evidence. (Section 1, Rule 132 of the Rules of Court)
3.
ID.; ID.; ID.; ID.; PRESENTATION THEREOF MAY BE OPPOSED ON
GROUND OF HEARSAY. Any deposition offered to prove the facts therein set out
during a trial or hearing, in lieu of the actual oral testimony of the deponent in open court,
may be opposed and excluded on the ground that it is hearsay: the party against whom it
is offered has no opportunity to cross-examine the deponent at the time that his testimony
is offered. It matters not that that opportunity for cross-examination was afforded during
the taking of the deposition; for normally, the opportunity for cross-examination must be
accorded a party at the time that the testimonial evidence is actually presented against
him during the trial or hearing.
4.
ID.; ID.; ID.; ID.; DEPOSITIONS MAY BE USED WITHOUT DEPONENT
BEING CALLED TO WITNESS STAND; REQUISITES. However, depositions may
be used without the deponent being actually called to the witness stand by the proponent,
under certain conditions and for certain limited purposes. These exceptional situations are
governed by Section 4, Rule 24 of the Rules of Court. "SEC 4. Use of depositions. At
the trial or upon the hearing of a motion of an interlocutory proceeding, any part or all of
a deposition, so far as admissible under the rules of evidence, may be used against any
party who was present or represented at the taking of the deposition or who had due
notice thereof, in accordance with any of the following provisions; (a) Any deposition

may be used by any party for the purpose of contradicting or impeaching the testimony of
deponent as a witness; (b) The deposition of a party or of any one who at the time of
taking the deposition was an officer, director, or managing agent of a public or private
corporation, partnership, or association which is a party may be used by an adverse party
for any purpose; (c) The deposition of a witness, whether or not a party, may be used by
any party for any purpose if the court finds: (1) that the witness is dead; or (2) that the
witness is out of the province and at a greater distance than fifty (50) kilometers from the
place of trial or hearing, or is out of the Philippines, unless it appears that his absence was
procured by the party offering the deposition; or (3) that the witness is unable to attend to
testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering
the deposition has been unable to procure the attendance of the witness by subpoena; or
(5) upon application and notice, that such exceptional circumstances exist as to make it
desirable, in the interest of justice and with due regard to the importance of presenting the
testimony of witnesses orally in open court, to allow the deposition to be used; (d) If only
part of a deposition is offered in evidence by a party, the adverse party may require him
to introduce all of it which is relevant to the part introduced, and any party may introduce
any other parts."
5.
ID.; ID.; ID.; ID.; MAY BE TAKEN ANYWHERE. The deposition of any
person may be taken wherever he may be, in the Philippines or abroad. If the party or
witness is in the Philippines, his deposition "shall be taken before any judge, municipal or
notary public" (Sec. 10, Rule 24, Rules of Court). If in a foreign state or country, the
deposition "shall be taken: (a) on notice before a secretary or embassy or legation, consul
general, consul, vice-consul, or consular agent of the Republic of the Philippines, or (b)
before such person or officer as may be appointed by commission or under letters
rogatory" (Sec. 11, Rule 24).
6.
ID.; ID.; ID.; ID.; GENERALLY, NO INTERVENTION BY THE COURT
WHERE ANSWER HAS BEEN SERVED. Leave of court is not necessary where the
deposition is to be taken before "a secretary or embassy or legation, consul general,
consul, vice-consul, or consular agent of the Republic of the Philippines," and the
defendant's answer has already been served (Sec. 1, Rule 24). After answer, whether the
deposition-taking is to be accomplished within the Philippines or outside, the law does
not authorize or contemplate any intervention by the court in the process, all that is
required being that "reasonable notice" be given "in writing to every other party to the
action . . . (stating) the time and place for taking the deposition and the name and address
of each person to be examined, if known, and if the name is not known, a general
description sufficient to identify him or the particular class or group to which he belongs .
. . "(Sec. 15, Rule 24).
7.
ID.; ID.; ID.; ID.; ID.; EXCEPTIONS. The court intervenes in the process
only if a party moves (1) to "enlarge or shorten the time" stated in the notice (id.), or (2)
"upon notice and for good cause shown," to prevent the deposition-taking, or impose
conditions therefor, e.g., that "certain matters shall not be inquired into" or that the taking
be "held with no one present except the parties to the action and their officers or counsel,"
etc. (Sec. 16, Rule 24), or (3) to terminate the process on motion and upon a showing that
"it is being conducted in bad faith or in such manner as unreasonably to annoy,
embarrass, or oppress the deponent or party" (Sec. 18, Rule 24).

8.
ID.; ID.; ID.; ID.; PERSONS AUTHORIZED TO TAKE DEPOSITION IN A
FOREIGN COUNTRY. Where the deposition is to be taken in a foreign country
where the Philippines has no "secretary or embassy or legation, consul general, consul,
vice-consul, or consular agent," then obviously it may be taken only "before such person
or officer as may be appointed by commission or under letters rogatory. (Section 12, Rule
24)
9.
ID.; ID.; ID.; COMMISSION AND LETTERS ROGATORY,
DISTINGUISHED. A commission may be defined as "(a)n instrument issued by a
court of justice, or other competent tribunal, to authorize a person to take depositions, or
do any other act by authority of such court or tribunal" (Feria, J., Civil Procedure, 1969
ed., p. 415, citing Cyclopedic Law Dictionary, p. 200). Letters rogatory, on the other
hand, may be defined as "(a)n instrument sent in the name and by the authority of a judge
or court to another, requesting the latter to cause to be examined, upon interrogatories
filed in a cause pending before the former, a witness who is within the jurisdiction of the
judge or court to whom such letters are addressed" (Feria, J., op. cit., citing Cyclopedic
Law Dictionary, p. 653). Section 12, Rule 24 just quoted states that a commission is
addressed to "officers . . . designated . . . either by name or descriptive title," while letters
rogatory are addressed to some "appropriate judicial authority in the foreign state."
Noteworthy in this connection is the indication in the Rules that letters rogatory may be
applied for and issued only after a commission has been "returned unexecuted."
10.
ID.; ID.; ID.; DEPOSITION; SITUS OF TAKING THEREOF,
INCONSEQUENTIAL. Petitioner would however prevent the carrying out of the
commission on various grounds. The first is that the deposition-taking will take place in
"a foreign jurisdiction not recognized by the Philippines in view of its 'one-China'
policy.'" This is inconsequential. What matters is that the deposition is taken before a
Philippine official acting by authority of the Philippine Department of Foreign Affairs
and in virtue of a commission duly issued by the Philippine Court in which the action is
pending, and in accordance, moreover, with the provisions of the Philippine Rules of
Court pursuant to which opportunity for cross-examination of the deponent will be fully
accorded to the adverse party.
11.
ID.; ID.; ID.; ID.; MAY BE TAKEN ANYTIME AFTER THE INSTITUTION
OF ANY ACTION. Dasmarias also contends that the "taking of deposition is a mode
of pretrial discovery to be availed of before the action comes to trial." Not so.
Depositions may be taken at any time after the institution of any action, whenever
necessary or convenient. There is no rule that limits deposition-taking only to the period
of pre-trial or before it; no prohibition against the taking of depositions after pre-trial.
Indeed, the law authorizes the taking of depositions of witnesses before or after an appeal
is taken from the judgment of a Regional Trial Court "to perpetuate their testimony for
use in the event of further proceedings in the said court" (Rule 134, Rules of Court), and
even during the process of execution of a final and executory judgment (East Asiatic Co.
v. C.I.R., 40 SCRA 521, 544).
12.
ID.; ID.; ID.; ID.; AN EXCEPTION FROM THE ACCEPTED AND USUAL
JUDICIAL PROCEEDINGS OF EXAMINING WITNESSES IN OPEN COURT. Of
course the deposition-taking in the case at bar is a "departure from the accepted and usual
judicial proceedings of examining witnesses in open court where their demeanor could be
observed by the trial judge"; but the procedure is not on that account rendered illegal nor

is the deposition thereby taken, inadmissible. It precisely falls within one of the
exceptions where the law permits such a situation, i.e., the use of a deposition in lieu of
the actual appearance and testimony of the deponent in open court and without being
"subject to the prying eyes and probing questions of the Judge." This is allowed provided
the deposition is taken in accordance with the applicable provisions of the Rules of Court
and the existence of any of the exceptions for its admissibility e.g., "that the witness is
out of the province and at a greater distance than fifty (50) kilometers from the place of
trial or hearing, or is out of the Philippines, unless it appears that his absence was
procured by the party offering the deposition; or ** that the witness is unable to attend to
testify because of age, sickness, infirmity, or imprisonment, etc." (Sec. 4, Rule 24, supra,
emphasis supplied) is first satisfactorily established (See Lopez v. Maceren, 95 Phil.
754).
13.
ID.; ID.; ID.; ID.; OPPORTUNITY TO CROSS-EXAMINE, HOW
EXERCISED. The Regional Trial Court saw fit to permit the taking of the depositions
of the witnesses in question only by written interrogatories, removing the proponent's
option to take them by oral examination, i.e., by going to Taipei and actually questioning
the witnesses verbally with the questions and answers and observations of the parties
being recorded stenographically. The imposition of such a limitation, and the
determination of the cause thereof, are to be sure within the Court's discretion. The
ostensible reason given by the Trial Court for the condition that the depositions be
taken "only upon written interrogatories" is "so as to give defendant (Dasmarias) the
opportunity to cross-examine the witnesses by serving cross-interrogatories." The
statement implies that opportunity to cross-examine will not be accorded the defendant if
the depositions were to be taken upon oral examination, which, of course, is not true. For
even if the depositions were to be taken on oral examination in Taipei, the adverse party
is still accorded full right to cross-examine the deponents by the law, either by
proceeding to Taipei and there conducting the cross-examination orally, or opting to
conduct said cross-examination merely by serving cross-interrogatories.
14.
ID.; ID.; NO PROVISION OF LAW FIXING THE TIME WITHIN WHICH
RECONSIDERATION OF INTERLOCUTORY ORDER SHOULD BE SOUGHT;
ORDER ASSAILED IN CASE AT BAR IS ONE DENYING RECONSIDERATION OF
ORDER ALLOWING TAKING OF DEPOSITION BY COMMISSION. In its Order
of July 5, 1991 denying Dasmarias' motion for reconsideration of the earlier order
dated March 15, 1991 (allowing the taking of deposition by commission) one of the
reasons adduced by the Regional Trial Court for the denial was that the motion had been
"filed out of time." Evidently, the Trial Court reached this conclusion because, as the
record discloses, the motion for reconsideration was filed by Dasmarias on June 25,
1991, twenty-five (25) days after notice (on May 20, 1991) of the Order of March 15,
1991 sought to be reconsidered. Denial of the motion on such a ground is incorrect. In the
first place, it appears that there was a motion for extension of time to file a motion for
reconsideration, ending on June 25, 1991 which was however not acted on or granted by
the Court. More importantly, the order sought to be reconsidered is an interlocutory
order, in respect of which there is no provision of law fixing the time within which
reconsideration thereof should be sought.
RESOLUTION
NARVASA, C.J p:

Sometime in September, 1987, in the Regional Trial Court of Manila, the American
President Lines, Ltd. sued Dasmarias Garments, Inc. to recover the sum of US
$53,228.45 as well as an amount equivalent to twenty-five percent (25%) thereof as
attorney's fees and litigation expenses.
In its answer dated December 1, 1987, Dasmarias Garments, Inc. (hereafter, simply
Dasmarias) specifically denied any liability to the plaintiff (hereafter simply APL), and
set up compulsory counterclaims against it.
The case was in due course scheduled for trial on April 27, 1988. On that date APL
presented its first witness whose testimony was completed on November 12, 1988. The
case was reset to May 3, 1989 for reception of the testimony of two (2) more witnesses in
APL's behalf.
At the hearing of May 3, 1989, instead of presenting its witnesses, APL filed a motion
praying that it intended to take the depositions of H. Lee and Yeong Fang Yeh in Taipei,
Taiwan, and prayed that for this purpose, a "commission or letters rogatory be issued
addressed to the consul, vice-consul or consular agent of the Republic of the Philippines
in Taipei . . ." Five (5) days later APL filed an amended motion stating that since the
Philippine Government has no consulate office in Taiwan in view of its "one-China
policy," there being in lieu thereof an office set up by the President "presently occupied
by Director Joaquin Roces which is the Asian Exchange Center, Inc.," it was necessary
and it therefore prayed "that commission or letters rogatory be issued addressed to
Director Joaquin Roces, Executive Director, Asian Executive Exchange Center, Inc.,
Room 901, 112 Chunghsiao, E. Road, Section 1, Taipei, Republic of China, to hear and
take the oral deposition of the a forenamed persons . . ."
The motion was opposed by Dasmarias. It contended that (a) the motion was "fatally
defective in that it does not seek . . that a foreign court examine a person within its
jurisdiction;" (b) issuance of letters rogatory was unnecessary because the witnesses "can
be examined before the Philippine Court;" and (c) the Rules of Court "expressly require
that the testimony of a witness must be taken orally in open court and not by deposition."
Extensive argument on the matter thereafter followed, through various pleadings filed by
the parties, in the course of which APL submitted to the Trial Court (a) the letter received
by its counsel from Director Joaquin R. Roces of the Asian Exchange Center, Inc., dated
November 20, 1989, advising that "this Office can only take deposition upon previous
authority from the Department of Foreign Affairs," this being "in consonance with the
Supreme Court Administrative Order requiring courts or judicial bodies to course their
requests through the Department of Foreign Affairs;" and (b) a letter sent by "fax" to the
same counsel by a law firm in Taipei, Lin & Associates Maritime Law Office,
transmitting information inter alia of the mode by which, under the "ROC Civil
Procedure Code," "a copy or an abridged copy" of documents on file with a Taiwan Court
may be obtained. LLjur
By Order dated March 15, 1991, the Trial Court resolved the incident in favor of APL,
disposing as follows:
"ACCORDINGLY, the motion to take the testimonies of plaintiff's Taiwanese witnesses,
Kenneth H. Lee and Yeong Fah Yeh, by deposition (upon written interrogatories) is
hereby GRANTED. The Asian Exchange Center, Inc. thru Director Joaquin R. Roces is
hereby COMMISSIONED to take down the deposition. Compliance with the Rules on

the taking of testimony by deposition upon written interrogatories under Sections 25-29
of Rules 24, Rules of Court, is enjoined.
Let this Order be coursed through the Department of Foreign Affairs, Manila, pursuant to
Supreme Court Administrative Circular No. 4 dated April 6, 1987."
The Court opined that "the Asian Exchange Center, Inc, being the authorized Philippine
representative in Taiwan, may take the testimonies of plaintiff's witnesses residing there
by deposition, but only upon written interrogatories so as to give defendant the
opportunity to cross-examine the witnesses by serving cross-interrogatories."
Dasmarias sought reconsideration by motion filed June 25, 1991 on the following
grounds: (1) authority of the Asian Exchange Center, Inc. (AECI) to take depositions has
not been established, it not being one of those so authorized by the Rules of Court to take
depositions in a foreign state; (2) AECI's articles of incorporation show that it is not
vested with any such authority; (3) to permit deposition-taking by commission without
the authority of the foreign state in which deposition is taken constitutes infringement of
judicial sovereignty; and (4) depositions by written interrogatories have inherent
limitations and are not suitable to matters dependent on the credibility of witnesses; oral
testimony in open court remains the "`most satisfactory method of investigation of facts'"
and "`affords the greatest protection to the rights and liberties of citizens.'"
By Order dated July 5, 1991, the motion for reconsideration was denied because "filed
out of time" and being a mere rehash of arguments already passed upon. In the same
Order, APL was directed "to take the necessary steps to implement the order authorizing
the . . (deposition-taking) of its witnesses not later than the end of this month, otherwise
the Court will consider inaction or lack of interest as waiver to adduce additional
evidence by deposition."
Dasmarias instituted a special civil action of certiorari in the Court of Appeals to nullify
the orders of the Trial Court just described. Said Appellate Court restrained enforcement
of the orders of March 15, 1991 and July 5, 1991 "in order to maintain the status quo and
to prevent the infliction of irreparable damage and injury upon the petitioner."
After due proceedings, the Court of Appeals (Third Division) rendered judgment on
September 23, 1992 denying Dasmarias' petition for certiorari and upholding the
challenged orders of the Trial Court. Once again, Dasmarias sought reconsideration of
an adverse disposition, and once again, was rebuffed. Its motion for reconsideration was
denied in a Resolution of the Court of Appeals dated December 11, 1992.
Once again Dasmarias has availed of the remedy of appeal. It has come to this Court
and prays for the reversal of the Appellate Court's Decision of September 23, 1992 and
Resolution dated December 11, 1992. Once again, it will fail. cdll
Dasmarias ascribes to the Court of Appeals the following errors, to wit:
1)
"in holding that a party could, during the trial of the case, present its evidence by
taking the deposition of its witnesses in a foreign jurisdiction before a private entity not
authorized by law to take depositions in lieu of their oral examination in open Court
considering that:
a)
the taking of deposition is a mode of pretrial discovery to be availed of before the
action comes to trial;
b)
no urgent or compelling reason has been shown to justify the departure from the
accepted and usual judicial proceedings of examining witnesses in open court where their
demeanor could be observed by the trial judge;"

2)
"in disregarding the inherently unfair situation in allowing private respondent, a
foreign entity suing in the Philippines, to present its evidence by mere deposition of its
witnesses away from the 'penetrating scrutiny' of the trial Judge while petitioner is
obligated to bring and present its witnesses in open court subject to the prying eyes and
probing questions of the Judge;" and
3)
"in sanctioning the deposition taking of . . (APL's) witnesses in Taipei, Taiwan, a
foreign jurisdiction not recognized by the Philippines in view of its 'one-China policy,'
before the AECI, a private entity not authorized by law to take depositions."
Depositions are chiefly a mode of discovery. They are intended as a means to compel
disclosure of facts resting in the knowledge of a party or other person which are relevant
in some suit or proceeding in court. Depositions, and the other modes of discovery
(interrogatories to parties; requests for admission by adverse party; production or
inspection of documents or things; physical and mental examination of persons) are
meant to enable a party to learn all the material and relevant facts, not only known to him
and his witnesses but also those known to the adverse party and the latter's own
witnesses. In fine, the object of discovery is to make it possible for all the parties to a
case to learn all the material and relevant facts, from whoever may have knowledge
thereof, to the end that their pleadings or motions may not suffer from inadequacy of
factual foundation, and all the relevant facts may be clearly and completely laid before
the Court, without omission or suppression.
Depositions are principally made available by law to the parties as a means of informing
themselves of all the relevant facts; they are no therefore generally meant to be a
substitute for the actual testimony in open court of a party or witness. The deponent must
as a rule be presented for oral examination in open court at the trial or hearing. This is a
requirement of the rules of evidence. Section 1, Rule 132 of the Rules of Court provides:
"SECTION 1. Examination to be done in open court. The examination of witnesses
presented in a trial or hearing shall be done in open court, and under oath or affirmation.
Unless the witness is incapacitated to speak, or the question calls for a different mode of
answer, the answers of the witness shall be given orally."
Indeed, any deposition offered to prove the facts therein set out during a trial or hearing,
in lieu of the actual oral testimony of the deponent in open court, may be opposed and
excluded on the ground that it is hearsay: the party against whom it is offered has no
opportunity to cross-examine the deponent at the time that his testimony is offered. It
matters not that opportunity for cross-examination was afforded during the taking of the
deposition; for normally, the opportunity for cross-examination must be accorded a party
at the time that the testimonial evidence is actually presented against him during the trial
or hearing.
However, depositions may be used without the deponent being actually called to the
witness stand by the proponent, under certain conditions and for certain limited purposes.
These exceptional situations are governed by Section 4, Rule 24 of the Rules of Court.
prLL
"SEC 4.
Use of depositions. At the trial or upon the hearing of a motion of an
interlocutory proceeding, any part or all of a deposition, so far as admissible under the
rules of evidence, may be used against any party who was present or represented at the
taking of the deposition or who had due notice thereof, in accordance with any of the
following provisions:

(a)
Any deposition may be used by any party for the purpose of contradicting or
impeaching the testimony of deponent as a witness;
(b)
The deposition of a party or of any one who at the time of taking the deposition
was an officer, director, or managing agent of a public or private corporation, partnership,
or association which is a party may be used by an adverse party for any purpose;
(c)
The deposition of a witness, whether of not a party, may be used by any party for
any purpose if the court finds: (1) that the witness is dead; or (2) that the witness is out of
the province and at a greater distance than fifty (50) kilometers from the place of trial or
hearing, or is out of the Philippines, unless it appears that his absence was procured by
the party offering the deposition; or (3) that the witness is unable to attend to testify
because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the
deposition has been unable to procure the attendance of the witness by subpoena; or (5)
upon application and notice, that such exceptional circumstances exist as to make it
desirable, in the interest of justice and with due regard to the importance of presenting the
testimony of witnesses orally in open court, to allow the deposition to be used;
(d)
If only part of a deposition is offered in evidence by a party, the adverse party
may require him to introduce all of it which is relevant to the party introduced, and any
party may introduce any other parts."
The principle conceding admissibility to a deposition when the deponent is dead, out of
the Philippines, or otherwise unable to come to court to testify, is consistent with another
rule of evidence, found in Section 47, Rule 132 of the Rules of Court.
"SEC. 47.
Testimony or deposition at a former proceeding. The testimony or
deposition of a witness deceased or unable to testify, given in a former case or
proceeding, judicial or administrative, involving the same parties and subject matter, may
be given in evidence against the adverse party who had the opportunity to cross-examine
him."
It is apparent then that the deposition of any person may be taken wherever he may be, in
the Philippines or abroad. If the party or witness is in the Philippines, his deposition
"shall be taken before any judge, municipal or notary public" (Sec. 10, Rule 24, Rules of
Court). If in a foreign state or country, the deposition "shall be taken: (a) on notice before
a secretary or embassy or legation, consul general, consul, vice-consul, or consular agent
of the Republic of the Philippines, or (b) before such person or officer as may be
appointed by commission or under letters rogatory" (Sec. 11, Rule 24).
Leave of court is not necessary where the deposition is to be taken before "a secretary or
embassy or legation, consul general, consul, vice-consul, or consular agent of the
Republic of the Philippines," and the defendant's answer has already been served (Sec. 1,
Rule 24). After answer, whether the deposition-taking is to be accomplished within the
Philippines or outside, the law does not authorize or contemplate any intervention by the
court in the process, all that is required being that "reasonable notice" be given "in
writing to every other party to the action . . (stating) the time and place for taking the
deposition and the name and address of each person to be examined, if known, and if the
name is not known, a general description sufficient to identify him or the particular class
or group to which he belongs . . . "(Sec. 15, Rule 24). The court intervenes in the process
only if a party moves (1) to "enlarge or shorten the time" stated in the notice (id.), or (2)
"upon notice and for good cause shown," to prevent the deposition-taking, or impose
conditions therefor, e.g., that "certain matters shall not be inquired into" or that the taking

be "held with no one present except the parties to the action and their officers or counsel,"
etc. (Sec. 16, Rule 24), or (3) to terminate the process on motion and upon a showing that
"it is being conducted in bad faith or in such manner as unreasonably to annoy,
embarrass, or oppress the deponent or party" (Sec 18, Rule 24). Cdpr
Where the deposition is to be taken in a foreign country where the Philippines has no
"secretary or embassy or legation, consul general, consul, vice-consul, or consular agent,"
then obviously it may be taken only "before such person or officer as may be appointed
by commission or under letters rogatory. Section 12, Rule 24 provides as follows:
"SEC. 12.
Commission or letters rogatory. A commission or letters rogatory shall
be issued only when necessary or convenient, on application and notice, and on such
terms and with such directions as are just and appropriate. Officers may be designated in
notices or commissions either by name or descriptive title and letters rogatory may be
addressed 'To the Appropriate Judicial Authority in (here name the country)."
A commission may be defined as "(a)n instrument issued by a court of justice, or other
competent tribunal, to authorize a person to take depositions, or do any other act by
authority of such court or tribunal" (Feria, J., Civil Procedure, 1969 ed., p. 415, citing
Cyclopedic Law Dictionary, p. 200). Letters rogatory, on the other hand, may be defined
as "(a)n instrument sent in the name and by the authority of a judge or court to another,
requesting the latter to cause to be examined, upon interrogatories filed in a cause
pending before the former, a witness who is within the jurisdiction of the judge or court
to whom such letters are addressed" (Feria, J., op. cit., citing Cyclopedic Law Dictionary,
p. 653). Section 12, Rule 24 just quoted states that a commission is addressed to
"officers . . . designated . . . either by name or descriptive title," while letters rogatory are
addressed to some "appropriate judicial authority in the foreign state." Noteworthy in this
connection is the indication in the Rules that letters rogatory may be applied for and
issued only after a commission has been "returned unexecuted," as is apparent from Form
21 of the "Judicial Standard Forms" appended to the Rules of Court, which requires the
inclusion in a "petition for letters rogatory" of the following paragraph, viz.:
"xxx
xxx
xxx
"3.
A commission issued by this Court on the ____________ day of
_______________, 19___, to take the testimony of (here name the witness or witnesses)
in (here name the foreign country in which the testimony is to be taken), before
_______________________ (name of officer), was returned unexecuted by
_____________________ on the ground that _________________________________,
all of which more fully appears from the certificate of said
____________________________ to said commission and made a part hereof by
attaching it hereto (or state other facts to show commission is inadequate or cannot be
executed)" (emphasis supplied)
In the case at bar, the Regional Trial Court has issued a commission to the "Asian
Exchange Center, Inc. thru Director Joaquin R. Roces" "to take the testimonies of . . .
Kenneth H. Lee and Yeong Fah Yeh, by deposition (upon written interrogatories) . . ." It
appears that said Center may, "upon request and authority of the Ministry (now
Department) of Foreign Affairs, Republic of the Philippines" issue a "Certificate of
Authentication" attesting to the identity and authority of Notaries Public and other public
officers of the Republic of China, Taiwan (eg., the Section Chief, Department of

Consular Affairs of the latter's Ministry of Foreign Affairs) (Annex B of Annex N of the
petition for review on certiorari) a prima facie showing now rebutted by petitioner.
It further appears that the commission is to be coursed through the Department of Foreign
Affairs conformably with Circular No. 4 issued by Chief Justice Claudio Teehankee on
April 6, 1987, pursuant to the suggestion of the Department of Foreign Affairs - directing
"ALL JUDGES OF THE REGIONAL TRIAL COURTS, METROPOLITAN TRIAL
COURTS, MUNICIPAL TRIAL COURTS IN CITIES, MUNICIPAL TRIAL COURTS
AND MUNICIPAL CIRCUIT TRIAL COURTS" "to course all requests for the taking of
deposition of witnesses residing abroad through the Department of Foreign Affairs" to
enable it and "the Philippine Foreign Service establishments to act on the matter in a
judicious and expeditious manner;" this, "in the interest of justice", and to avoid delay in
the deposition-taking. Cdpr
Petitioner would however prevent the carrying out of the commission on various grounds.
The first is that the deposition-taking will take place in "a foreign jurisdiction not
recognized by the Philippines in view of its 'one-China policy.'" This is inconsequential.
What matters is that the deposition is taken before a Philippine official acting by
authority of the Philippine Department of Foreign Affairs and in virtue of a commission
duly issued by the Philippine Court in which the action is pending, and in accordance,
moreover, with the provisions of the Philippine Rules of Court pursuant to which
opportunity for cross-examination of the deponent will be fully accorded to the adverse
party.
Dasmarias also contends that the "taking of deposition is a mode of pretrial discovery to
be availed of before the action comes to trial." Not so. Depositions may be taken at any
time after the institution of any action, whenever necessary or convenient. There is no
rule that limits deposition-taking only to the period of pre-trial or before it; no prohibition
against the taking of depositions after pre-trial. Indeed, the law authorizes the taking of
depositions of witnesses before or after an appeal is taken from the judgment of a
Regional Trial Court "to perpetuate their testimony for use in the event of further
proceedings in the said court" (Rule 134, Rules of Court), and even during the process of
execution of a final and executory judgment (East Asiatic Co. v. C.I.R., 40 SCRA 521,
544).
Dasmarias further claims that the taking of deposition under the circumstances is a
"departure from the accepted and usual judicial proceedings of examining witnesses in
open court where their demeanor could be observed by the trial judge;" that it is
"inherently unfair" to allow APL, "a foreign entity suing in the Philippines, to present its
evidence by mere deposition of its witnesses away from the 'penetrating scrutiny' of the
trial Judge while petitioner is obligated to bring and present its witnesses in open court
subject to the prying eyes and probing questions of the Judge."
Of course the deposition-taking in the case at bar is a "departure from the accepted and
usual judicial proceedings of examining witnesses in open court where their demeanor
could be observed by the trial judge;" but the procedure is not on that account rendered
illegal nor is the deposition thereby taken, inadmissible. It precisely falls within one of
the exceptions where the law permits such a situation, i.e., the use of a deposition in lieu
of the actual appearance and testimony of the deponent in open court and without being
"subject to the prying eyes and probing questions of the Judge." This is allowed provided
the deposition is taken in accordance with the applicable provisions of the Rules of Court

and the existence of any of the exceptions for its admissibility e.g., "that the witness is
out of the province and at a greater distance than fifty (50) kilometers from the place of
trial or hearing, or is out of the Philippines, unless it appears that his absence was
procured by the party offering the deposition; or . . . that the witness is unable to attend to
testify because of age, sickness, infirmity, or imprisonment, etc." (Sec. 4, Rule 24, supra,
italics supplied) is first satisfactorily established (See Lopez v. Maceren, 95 Phil. 754).
cdll
The Regional Trial Court saw fit to permit the taking of the depositions of the witnesses
in question only by written interrogatories, removing the proponent's option to take them
by oral examination, i.e., by going to Taipei and actually questioning the witnesses
verbally with the questions and answers and observations of the parties being recorded
stenographically. The imposition of such a limitation, and the determination of the cause
thereof, are to be sure within the Court's discretion. The ostensible reason given by the
Trial Court for the condition that the depositions be taken "only upon written
interrogatories" is "so as to give defendant (Dasmarias) the opportunity to crossexamine the witnesses by serving cross-interrogatories." The statement implies that
opportunity to cross-examine will not be accorded the defendant if the depositions were
to be taken upon oral examination, which, of course, is not true. For even if the
depositions were to be taken on oral examination in Taipei, the adverse party is still
accorded full right to cross-examine the deponents by the law, either by proceeding to
Taipei and there conducting the cross-examination orally, or opting to conduct said crossexamination merely by serving cross-interrogatories.
One other word. In its Order of July 5, 1991 denying Dasmarias' motion for
reconsideration of the earlier order dated March 15, 1991 (allowing the taking of
deposition by commission) one of the reasons adduced by the Regional Trial Court for
the denial was that the motion had been "filed out of time." Evidently, the Trial Court
reached this conclusion because, as the record discloses, the motion for reconsideration
was filed by Dasmarias on June 25, 1991, twenty-five (25) days after notice (on May 20,
1991) of the Order of March 15, 1991 sought to be reconsidered. Denial of the motion on
such a ground is incorrect. In the first place, it appears that there was a motion for
extension of time to file a motion for reconsideration, ending on June 25, 1991 which was
however not acted on or granted by the Court. More importantly, the order sought to be
reconsidered is an interlocutory order, in respect of which there is no provision of law
fixing the time within which reconsideration thereof should be sought. cdphil
PREMISES CONSIDERED, the Court Resolved to DISMISS the petition for review on
certiorari. Costs against petitioner.
SO ORDERED.
Padilla, Regalado, Nocon and Puno, JJ., concur.

[G.R. No. 135874. January 25, 2000.]

SECURITY BANK CORPORATION, petitioner, vs. COURT OF APPEALS, SPOUSES
AGUSTIN P. UY and PACITA TANG * SIOC TEN, DOMINGO UY, and Hon.
PRUDENCIO A. CASTILLO JR. in his capacity as presiding judge of the Quezon City
RTC (Branch 220), respondents.
Castro & Associates for petitioner.
A. V. Camara & Associates Law Offices for Domingo P. Uy.
Corpus & Associates for spouses Agustin and Pacita Uy.
SYNOPSIS
Spouses Agustin P. Uy and Pacita Tang Sioc Ten filed a petition for injunction and
damages with an application for the issuance of a temporary restraining order and
preliminary injunction against Security Bank Corporation (SBC), Domingo Uy and the
Sheriff of Quezon City. They sought to enjoin the extra-judicial foreclosure of the Uy's
property located in Quezon City. Both SBC and Domindo P. Uy separately filed their
answers with compulsory counterclaims and cross-claims. SBC filed its answer to
Domingo's cross-claim. Before filing his answer to SBC's cross-claim, Domingo filed an
Omnibus Motion for the Production of Documents and Extension of Time to File Answer
to Cross-claim. He wanted SBC to produce the documents, which was used in the
evaluation, processing and approval of the loans of Jackivi Trading Center, Inc., the real
estate mortgages and the special power of attorney. These documents, according to
Domingo, must first be produced before he could prepare and file the answer to SBC's
cross-claim. Later, the spouses Uy also filed a similar motion against SBC. SBC opposed
both motions. The trial court, however, granted the production and inspection of the
documents. The Court of Appeals upheld the ruling of the trial court. In the main, the
Court was asked to determine whether the appellate court erred in affirming the grant of
the two motions for production and inspection of documents. AcEIHC
The Supreme Court found the arguments of petitioner as not persuasive. Section 1, Rule
27 of the Rules of Court clearly provides that the documents sought must be material to
any matter involved in the action. Respondents herein had shown that the subject
documents were indeed material to the action involved. Petition was denied and the
assailed decision was affirmed.
SYLLABUS
1.
REMEDIAL LAW; CIVIL PROCEDURE; ACTION; LITIGATION, DEFINED
AND CONSTRUED. Litigation is essentially an abiding quest for truth undertaken
not by the judge alone, but jointly with the parties. Litigants, therefore, must welcome
every opportunity to achieve this goal; they must act in good faith to reveal documents,
papers and other pieces of evidence material to the controversy. In Alonzo v. Villamor,
the Court ruled: "A litigation is not a game of technicalities in which one, more deeply
schooled and skilled in the subtle art of movement and position, entraps and destroys the
other. It is, rather a contest in which each contending party fully and fairly lays before the
court the facts in issue and then, brushing aside as wholly trivial and indecisive all
imperfections of form and technicalities of procedure, asks that justice be done on the
merits. Lawsuits, unlike duels, are not to be won by a rapier's thrust. Technicality, when
it deserts its proper office as an aid to justice and becomes its great hindrance and chief
enemy, deserves scant consideration from courts. There should be no vested right in
technicalities. . . .. "

2.
ID.; ID.; MODES OF DISCOVERY; MOTION FOR PRODUCTION OR
INSPECTION; AIMS TO ENABLE THE PARTIES TO INFORM THEMSELVES OF
ALL RELEVANT FACTS TO THE ACTION; RATIONALE. In Republic v.
Sandiganbayan, (204 SCRA 213, 222-223, November 21, 1991, per Narvasa, CJ.) the
Court discussed exhaustively the significance of the various modes of discovery, an
example of which is Section 1, Rule 27 of the 1997 Rules of Court. In sum, the Court
held that the said Rule aims to enable the parties to inform themselves, even before the
trial, of all the facts relevant to the action, including those known only to the other
litigants. Through this procedure, "civil trials should not be carried on in the dark." As
quoted: ". . . Indeed, it is the purpose and policy of the law that the parties before the
trial if not indeed even before the pre-trial should discover or inform themselves of all
the facts relevant to the action, not only those known to them individually, but also those
known to their adversaries; in other words, the desideratum is that civil trials should not
be carried on in the dark; and the Rules of Court make this ideal possible through the
deposition-discovery mechanism set forth in Rules 24 to 29. The experience in other
jurisdictions has been that ample discovery before trial, under proper regulation,
accomplishes one of the most necessary ends of modern procedure; it not only eliminates
unessential issues from trials thereby shortening them considerably, but also requires
parties to play the game with the cards on the table so that the possibility of fair
settlement before trial is measurably increased. . . ..' "As just intimated, the depositiondiscovery procedure was designed to remedy the conceded inadequacy and
cumbersomeness of the pre-trial functions of notice-giving, issue-formulation and fact
revelation theretofore performed primarily by the pleadings. "The various modes or
instruments of discovery are meant to serve (1) as a device, along with the pre-trial
hearing under Rule 20, to narrow and clarify the basic issues between the parties, and (2)
as a device for ascertaining the facts relative to those issues. The evident purpose is, to
repeat, to enable the parties, consistent with recognized privileges, to obtain the fullest
possible knowledge of the issues and facts before civil trials and thus prevent that said
trials are carried on in the dark." It is clear that courts are given wide latitude in granting
motions for discovery in order to enable parties to prepare for trial or otherwise to settle
the controversy prior thereto. Thus, in the same case, the Court further held: "What is
chiefly contemplated is the discovery of every bit of information which may be useful in
the preparation for trial, such as the identity and location of persons having knowledge of
relevant facts; those relevant facts themselves; and the existence, description, nature,
custody, condition, and location of any books, documents, or other tangible things.
Hence, 'the deposition-discovery rules are to be accorded a broad and liberal treatment.
No longer can the time-honored cry of 'fishing expedition' serve to preclude a party from
inquiring into the facts underlying his opponent's case. Mutual knowledge of all the
relevant facts gathered by both parties is essential to proper litigation. To that end, either
party may compel the other to disgorge whatever facts he has in his possession. The
deposition-discovery procedure simply advances the stage at which the disclosure can be
compelled from the time of trial to the period preceding it, thus reducing the possibility,
of surprise. . . . .'" IcHTCS
3.
ID.; ID.; ID.; AS A RULE COURTS SHOULD BE LIBERAL IN PASSING
UPON A MOTION FOR DISCOVERY. Indeed, the rule is that courts, in passing
upon a motion for discovery, should be liberal in determining whether the documents in

question are relevant to the subject matter of the action. To repeat, the rule on discovery
"requires the parties to play the game with cards on the table so that the possibility of fair
settlement before trial is measurably increased."
DECISION
PANGANIBAN, J p:
Litigation should not be carried on in the dark. Courts are given great latitude in enabling
the parties to inform themselves of all relevant facts, including those known only to their
adversaries. For this reason, the rules on discovery are accorded broad and liberal
interpretation. cdphil
The Case
Before us is a Petition for Review on Certiorari assailing the July 8, 1998 Decision of the
Court of Appeals (CA), 1 which affirmed the trial court's grant of the Motions, filed
respectively by Domingo Uy and Spouses Agustin Uy and Pacita Tang Sioc Ten, for the
production and inspection of several documents.
Also assailed by petitioner is the October 7, 1998 CA Resolution, which denied
petitioner's Motion for Reconsideration. 2
The Facts
The facts are summarized by the Court of Appeals (CA) in this wise: 3
"Petitioner Security Bank Corporation (SBC) is a domestic banking corporation duly
organized and existing under Philippine laws. It is one of the defendants in Civil Case
No. Q-97-30330 entitled [S]pouses Agustin P. Uy and Pacita Tang Sioc Ten versus
Security Bank Corporation, Domingo P. Uy and the Ex-Officio City Sheriff of Quezon
City, for injunction and damages with an application for the issuance of a temporary
restraining order and preliminary injunction.
"Plaintiffs Spouses Agustin P. Uy and Pacita Tang Sioc Ten sought to enjoin Security
Bank Corporation (SBC for brevity) and the Ex-Officio Sheriff of Quezon City from
proceeding with the extra-judicial foreclosure of a mortgage over a piece of property
registered under the respondent spouses' names located at Cubao, Quezon City and
covered by TCT No. RI-8731 (281736).
"On February 25, 1997, a temporary restraining order was issued by Hon. Pedro M.
Areola of the Regional Trial Court of Quezon City (Branch 85) where the case was
originally assigned. The temporary restraining order was lifted on April 8, 1997 when
Judge Areola resolved to deny the spouses' application for a preliminary injunction. This
denial prompted the said plaintiffs to file a motion for the inhibition of Judge Areola from
hearing the case, hence, the case was re-raffled to Branch 220 presided over by
respondent judge, Hon. Prudencio Altre Castillo, Jr.
"On April 7, 1997, SBC filed its answer with compulsory counterclaim and cross-claim
while defendant Domingo P. Uy filed on April 18, 1997 his answer with compulsory
counterclaim and cross-claim. SBC filed its answer to defendant Domingo Uy's crossclaim on April 28, 1997.
"Before filing his answer to defendant SBC's cross-claim, defendant Domingo P. Uy filed
an Omnibus Motion (Production of Documents and Suspension and/or Extension of Time
to File Answer to Cross-Claim) on the ground that all documents, papers and instruments
made and executed by SBC on the evaluation, processing and approval of the loans of
Jackivi Trading Center, Inc., the real estate mortgages (REM) and the Special Power of
Attorney (SPA) themselves must first be produced before he [could] prepare and file the

answer to SBC's cross-claim. SBC filed its opposition to the aforesaid motion of
Domingo Uy. In return defendant Domingo Uy filed a motion to admit reply with the
reply attached and on June 3, 1997 SBC filed its rejoinder. LibLex
"Acting on defendant Uy's Omnibus Motion (Production of Documents and Suspension
and/or Extension of Time to File Answer to Cross-Claim) the trial court issued an Order
on June 25, 1997 denying the motion.
"On July 16, 1997, Domingo P. Uy moved for the reconsideration of denial by filing an
Omnibus Motion (Motion for Reconsideration and/or Extension of Time to File Answer
to Cross-Claim).
"On the other hand, plaintiffs also filed their Motion (For Production, Inspection and
Copying of Documents) praying for the issuance of an order directing SBC to produce
and allow them to inspect and copy the original and additional mortgage contracts
executed by Jackivi Trading Center, Inc. and/or Jose Tanyao. Defendant SBC opposed
the motion on July 25, 1997 by filing its Consolidated Opposition to the spouses' Motion
for Production, Inspection and Copying of Documents and Urgent Motion for a
temporary restraining order and a writ of preliminary injunction. Respondent spouses
filed their reply to the aforementioned consolidated opposition of SBC. dctai
"On August 3, 1997, SBC filed its opposition to respondent Domingo Uy's motion for
reconsideration of the Order dated June 25, 1997.
"On October 2, 1997, the trial court issued the first assailed Order, the dispositive portion
of which states, thus:
'WHEREFORE, premises considered, defendant Security Bank Corporation is hereby
ordered to produce and permit defendant Domingo P. Uy to inspect, copy or photograph
the documents, papers and instruments made and executed on the evaluation, processing
and approval of the loans of Jackivi Trading Center, Inc., during usual business hours and
day after at least three (3) days notice in advance by defendant Domingo P. Uy to
defendant Security Bank Corporation. However, the filing of the answer to cross-claim
need not await the production of the documents. Defendant Uy is given, for the last time,
ten (10) days from receipt within which to file answer to the cross-claim of defendant
Security Bank Corporation, stating only the ultimate facts without including evidentiary
matters.
'Defendant Security Bank Corporation is hereby ordered to produce and permit
plaintiff[s] to inspect, copy or photograph the original and additional mortgage contracts
executed by Jackivi Trading Center, Inc. and/or Mr. Jose Tanyao within which (sic) usual
business hours and day after at least three (3) days notice in advance by plaintiff to
defendant Security Bank Corporation.
The application for issuance of temporary restraining order is hereby DENIED. In the
meantime, set the case for hearing on the application for issuance of writ of preliminary
injunction on October 31, 1997, at 8:30 o'clock in the morning.
Furnish the parties and counsels with a copy of this Order.
SO ORDERED.' dctai
"SBC filed a motion for partial reconsideration of the Order, claiming that said order
[did] not explain the basis for requiring it to produce the requested documents, and that
there was no good cause for their production, hence, it cannot be compelled to produce
the same.

"Acting on the aforesaid motion, respondent judge issued the second assailed Order on
November 25, 1997 denying the Motion for Partial Reconsideration."
Ruling of the Court of Appeals
Affirming the trial court, the Court of Appeals held: 4
"It will be noted that the only condition imposed by the Rules is that the production of the
documents must be for 'good cause.'
"Contrary to the allegation of petitioner that respondent Domingo Uy ha[s] not shown
good cause for the production of such documents, said respondent has sufficiently shown
the good cause on which his motion is anchored [] that of being able to intelligently
prepare his defenses against the cross-claim of petitioner SBC.
"On the other hand, the motion for production filed by the respondents spouses Uy and
Pacita Tang Sioc Ten is likewise for good cause, it being necessary for a full
determination of the issues raised in Civil Case No. Q-97-30330.
"'Good cause' does not relate to the substance in the document but to the reason for
producing relevant or material matters therein; so that the enforcement of the rule entails
exercise of sound discretion. The burden is on the moving party to demonstrate the need
for the documents sought beyond the relevancy or materiality of the evidence therein."
Hence, this Petition. 5
The Issue
In its Memorandum, petitioner submits this lone issue for the consideration of the Court:
6
"Whether or not the Honorable Court of Appeals committed grave abuse of discretion 7
when it sustained the Orders of the Respondent Regional Trial Court dated 02 October
1997 and 25 November 1997 which granted the respective Motions [For Production,
Inspection and Copying of Documents] of Respondents Spouses Agustin P. Uy and
Pacita Tang Sioc Ten and Domingo Uy."
In the main, the Court is being asked to determine whether the appellate court erred in
affirming the grant of the two Motions for production and inspection of documents.
The Court's Ruling
The Petition is bereft of merit.
Main Issue:
Grant of Motions for Production and Inspection of Documents
Petitioner Security Bank Corporation (SBC) maintains that, in sustaining the grant of the
Motions for production, inspection and copying of documents filed by private
respondents, the CA grossly misconstrued and misapplied Section 1, Rule 27 of the Rules
of Court. Petitioner stresses that the CA erred in focusing only on the requirement of
"good cause" and in ignoring the prerequisite of relevancy.
Moreover, petitioner contests the "good cause" invoked by the CA. Specifically, it
contends that the "good cause," which Respondent Domingo Uy relied upon to be able to
prepare an answer to the cross-claim against him, was negated by the rulings of both the
trial court and the CA requiring him to file such answer without awaiting the production
of the documents sought.
We disagree with petitioner. Section 1, Rule 27 of the 1997 Rules of Court provides:
cdasia
"SECTION 1. Motion for production or inspection; order. Upon motion of any party
showing good cause therefor, the court in which an action is pending may (a) order any

party to produce and permit the inspection and copying or photographing, by or on behalf
of the moving party, of any designated documents, papers, books, accounts, letters,
photographs, objects or tangible things not privileged, which constitute or contain
evidence material to any matter involved in the action and which are in his possession,
custody or control; or (b) order any party to permit entry upon designated land or other
property in his possession or control for the purpose of inspecting, measuring, surveying,
or photographing the property or any designated relevant object or operation thereon. The
order shall specify the time, place and manner of making the inspection and taking copies
and photographs, and may prescribe such terms and conditions as are just."
In Republic v. Sandiganbayan, 8 the Court discussed exhaustively the significance of the
various modes of discovery, an example of which is the aforecited provision. In sum, the
Court held that the said Rule aims to enable the parties to inform themselves, even before
the trial, of all the facts relevant to the action, including those known only to the other
litigants. Through this procedure, "civil trials should not be carried on in the dark." We
quote:
". . . Indeed, it is the purpose and policy of the law that the parties before the trial if
not indeed even before the pre-trial should discover or inform themselves of all the
facts relevant to the action, not only those known to them individually, but also those
known to their adversaries; in other words, the desideratum is that civil trials should not
be carried on in the dark; and the Rules of Court make this ideal possible through the
deposition-discovery mechanism set forth in Rules 24 to 29. The experience in other
jurisdictions has been that ample discovery before trial, under proper regulation,
accomplishes one of the most necessary ends of modern procedure: it not only eliminates
unessential issues from trials thereby shortening them considerably, but also requires
parties to play the game with the cards on the table so that the possibility of fair
settlement before trial is measurably increased. . . ..'
"As just intimated, the deposition-discovery procedure was designed to remedy the
conceded inadequacy and cumbersomeness of the pre-trial functions of notice-giving,
issue-formulation and fact revelation theretofore performed primarily by the pleadings.
LLjur
"The various modes or instruments of discovery are meant to serve (1) as a device, along
with the pre-trial hearing under Rule 20, to narrow and clarify the basic issues between
the parties, and (2) as a device for ascertaining the facts relative to those issues. The
evident purpose is, to repeat, to enable the parties, consistent with recognized privileges,
to obtain the fullest possible knowledge of the issues and facts before civil trials and thus
prevent that said trials are carried on in the dark."
It is clear that courts are given wide latitude in granting motions for discovery in order to
enable parties to prepare for trial or otherwise to settle the controversy prior thereto.
Thus, in the same case, the Court further held:
"What is chiefly contemplated is the discovery of every bit of information which may be
useful in the preparation for trial, such as the identity and location of persons having
knowledge of relevant facts; those relevant facts themselves; and the existence,
description, nature, custody, condition, and location of any books, documents, or other
tangible things. Hence, 'the deposition-discovery rules are to be accorded a broad and
liberal treatment. No longer can the time-honored cry of 'fishing expedition' serve to
preclude a party from inquiring into the facts underlying his opponent's case. Mutual

knowledge of all the relevant facts gathered by both parties is essential to proper
litigation. To that end, either party may compel the other to disgorge whatever facts he
has in his possession. The deposition-discovery procedure simply advances the stage at
which the disclosure can be compelled from the time of trial to the period preceding it,
thus reducing the possibility, of surprise. . . ..'" 9
In the present case, the CA did not err in affirming the trial court ruling that there was
"good cause" for the grant of the Motions for inspection of documents. The latter's
holding that the documents were not indispensable to the preparation of the answer of Uy
to the cross-claim did not militate against respondents' availment of this important mode
of discovery. As he himself averred in his Motion, the subject documents were "material
and important to the issues raised in the case in general, and as between defendant and
defendant SBC in particular." 10
Verily, the CA noted that the documents would enable Respondent Uy to "intelligently
prepare his defenses against the cross-claim of petitioner SBC," 11 and not merely to
formulate his answer. Likewise, we agree with the appellate court that the Motion of
Spouses Agustin Uy and Pacita Tang Sioc Ten was for a good cause, because the said
documents were "necessary for a full determination of the issues raised in Civil Case No.
Q-97-30330." 12
Indeed, litigation is essentially an abiding quest for truth undertaken not by the judge
alone, but jointly with the parties. Litigants, therefore, must welcome every opportunity
to achieve this goal; they must act in good faith to reveal documents, papers and other
pieces of evidence material to the controversy. In Alonzo v. Villamor, 13 the Court ruled:
cdphil
"A litigation is not a game of technicalities in which one, more deeply schooled and
skilled in the subtle art of movement and position, entraps and destroys the other. It is,
rather a contest in which each contending party fully and fairly lays before the court the
facts in issue and then, brushing aside as wholly trivial and indecisive all imperfections of
form and technicalities of procedure, asks that justice be done on the merits. Lawsuits,
unlike duels, are not to be won by a rapier's thrust. Technicality, when it deserts its proper
office as an aid to justice and becomes its great hindrance and chief enemy, deserves
scant consideration from courts. There should be no vested right in technicalities. . . ..'
Materiality of the
Subject Documents
Petitioner points out that a party may be compelled to produce or allow the inspection of
documents if six procedural requisites are complied with, viz.:
"(a) The party must file a motion for the production or inspection of documents or
things, showing good cause therefor;
(b)
Notice of the motion must be served to all other parties of the case;
(c)
The motion must designate the documents, papers, books, accounts, letters,
photographs, objects or tangible things which the party wishes to be produced and
inspected;
(d)
Such documents, etc. are not privileged;
(e)
Such documents, etc. constitute or contain evidence material to any matter
involved in the action; and
(f)
Such documents, etc. are in the possession, custody or control of the other party."
14

Petitioner contends that Requisite "e" has not been satisfied, arguing that respondents
have not shown the relevancy or materiality of the documents subject of the Motions.
Specifically, it maintains that the documents sought by Spouses Uy and Tang Sioc Ten.
"the original and additional mortgage contracts executed by Jackivi Trading Center,
Inc. 15 and / or Mr. Jose Tanyao" 16 were not relevant to Civil Case Q-97-30330,
which was for the declaration of the nullity of the January 27, 1993 and August 16, 1995
Real Estate Mortgages between Jackivi and petitioner. The existence or the absence of
other mortgages executed by Jackivi, petitioner insists, has absolutely no bearing on the
said case, because it does not in any way determine the validity or the invalidity of the
subject Real Estate Mortgages.
Petitioner also argues that the documents sought by Respondent Domingo Uy "all the
documents, papers and instruments made and executed by [Petitioner] SBC in the
evaluation, processing and approval of the loans to Jackivi . . ." 17 were not relevant,
because the trial court itself ruled that he could prepare his answer to the cross-claim
without those documents.
These arguments are not persuasive. Section 1 of Rule 27 clearly provides that the
documents sought must be "material to any matter involved in the action." Respondents
have shown that the subject documents are indeed material to the present action. LexLib
Indeed, the factual backdrop of the case strengthens respondent's cause. The civil action
instituted by the Spouses Uy sought the annulment of two deeds of Real Estate Mortgage
between Jackivi and petitioner. They allegedly issued a Special Power of Attorney to
Respondent Uy to mortgage their property only for their benefit, not for that of Jackivi.
Because he mortgaged the property as security for Jackivi's loan, they contend that he
exceeded his authority and that the contracts of real estate mortgage were consequently
invalid. Petitioner, on the other hand, filed a cross-claim against him, because it "relied
on the representations and documents submitted by [the latter] that he was duly
authorized to mortgage the subject property." 18
In this light, the relevance of the documents sought by Respondent Domingo Uy is
readily apparent. The papers executed by the petitioner bank in evaluating and processing
the real estate mortgage are manifestly useful in his defense against its cross-claim. The
trial court's ruling that he could file his answer without examining those documents does
not prove that they are immaterial to the present action. The CA has held that those
documents would enable him to "intelligently prepare his defenses against the crossclaim of Petitioner SBC." Cdpr
So also, the additional mortgage contracts executed by Jackivi are material to the present
action. Because a witness of petitioner admitted in court that there was a third mortgage
contract between Jackivi and the bank, fair play demands that herein respondents must be
given the chance to examine such additional mortgage contracts. In so doing, they can
determine why petitioner was going after their property which was invalidly mortgaged
by Respondent Uy, while the properties of the actual borrower, Jackivi, have not been
touched or foreclosed by the bank.
Indeed, the rule is that courts, in passing upon a motion for discovery, should be liberal in
determining whether the documents in question are relevant to the subject matter of the
action. 19 To repeat, the rule on discovery "requires the parties to play the game with
cards on the table so that the possibility of fair settlement before trial is measurably
increased." 20

All in all, petitioner failed to show any reversible error on the part of the Court of
Appeals. The Motions of respondents were for a good cause, and the documents sought
were material to the action pending before the trial court. cdtai
WHEREFORE, the Petition is DENIED and the assailed Decision is AFFIRMED. Costs
against petitioner.
SO ORDERED.
Melo, Vitug, Purisima and Gonzaga-Reyes, JJ., concur.

[G.R. No. L-60601. December 29, 1983.]

CESAR NEPOMUCENO, LEON ARCILLAS and RUBEN AVENIDO, petitioners, vs.
THE HON. COMMISSION ON ELECTIONS and OSCAR LASERNA, respondents.
Ceferino P. Padua, Amado R. Perez and Marciano P. Brion, Jr. for petitioners.
The Solicitor General for respondents.
SYLLABUS
1.
REMEDIAL LAW; CIVIL PROCEDURE; DEMURRER TO EVIDENCE;
CONSTRUED. Section 1 of Rule 35 of the Rules of Court authorizes a judgment on
the merits of the case without the defendant having to submit evidence on his part as he
would ordinarily have to do, if it is shown by plaintiff's evidence that the latter is not
entitled to the relief sought. The demurrer, therefore, is an aid or instrument for the
expeditious termination of an action, similar to a motion to dismiss, which the court or
tribunal may either grant or deny.
2.
ID.; ID.; ID.; DENIAL; MERELY, INTERLOCUTORY IN CHARACTER.
The requirement of Section 1 of Rule 36 would only apply if the demurrer is granted, for
in this event, there would in fact be an adjudication on the merits of the case, leaving
nothing more to be done, except perhaps to interpose an appeal. However, a denial of the
demurrer is not a final judgment, but merely interlocutory in character as it does not
finally dispose of the case, the defendant having yet the right to present his evidence, as
provided for under Section 1 of Rule 35 of the Rules of Court.
3.
ID.; SPECIAL CIVIL ACTION; CERTIORARI; FAILURE TO STATE THE
FACTS AND THE LAW ON WHICH AN ORDER DENYING A DEMURRER TO
EVIDENCE IS BASED; NOT A GRAVE ABUSE OF DISCRETION. In Estrada vs.
Sto. Domingo, 28 SCRA 890, We have ruled that . . . Section 12, Anticle VIII (now
Section 9, Article X) of the Constitution and Section 1, Rule 36, Rules of Court, which
require express findings of fact in a decision, have no application to the questioned order.
Here involved is not a decision on the merits but a mere order upon a motion to
reconsider. The challenged order being merely an interlocutory order and not a final
judgment or decision, no abuse of discretion was committed by respondent Comelec in its
failure to state the facts and the law on which its order denying petitioners' demurrer to
evidence is based.
TEEHANKEE, J., dissenting:
1.
ELECTIONS; TURNCOATISM; ALL PRE-ELECTION CASES SEEKING TO
DISQUALIFY WINNER ON GROUND THEREOF SHOULD BE DISMISSED
AFTER JANUARY 30, 1980 ELECTIONS; REMEDIES. Suffice it to reproduce,
however, what I had stressed in my above cited separate opinion of May 15, 1980, viz:
"(I) reiterate my stand that all such pre-election cases seeking to disqualify the winner
simply on the ground of alleged turncoatism should be ordered dismissed after the last
January 30th elections, subject to the filing of an appropriate quo warranto action or
election protest against the winner in the appropriate forum."
DECISION
ESCOLIN, J p:
This is the third time that petitioners have come to this Court to challenge the actuations
of the respondent Commission on Elections in PDC Case No. 65, entitled "Oscar
Laserna, Petitioner, versus Cesar Nepomuceno, et al., Respondents."

Petitioners Cesar Nepomuceno, Leon Arcillas and Ruben Avenido were the official
candidates of the Nacionalista Party in the 1980 local elections for the positions of
mayor, vice-mayor and member of the Sangguniang Bayan, respectively, of Sta. Rosa,
Laguna. On January 14, 1980, private respondent Oscar Laserna filed a petition before
the COMELEC, docketed as PDC Case No. 65, to disqualify petitioners on the ground of
turncoatism. On January 25, 1980, the COMELEC issued Resolution No. 8484, granting
said petition, thereby denying due course to petitioners' certificates of candidacy.
Alleging denial of due process, petitioners assailed said resolution in a petition for
certiorari and prohibition with prayer for a temporary restraining order filed with this
Court on January 28, 1980 [G.R. Nos. 52427 and 52506]. We issued a restraining order
enjoining the COMELEC from enforcing Resolution No. 8484, by reason whereof,
petitioners were allowed to be voted for in the elections of January 30, 1980. It appears
that in said elections, petitioners won and were proclaimed winners in their respective
positions.
On May 15, 1980, We issued a Resolution in G.R. No. 52427 and G.R. No. 52506,
setting aside the challenged resolution and remanding the cases to respondent
COMELEC "for a full dress hearing in accordance with due process and to decide the
cases as expeditiously as possible after giving the parties full opportunity to present all
evidence relevant to the issue of alleged turncoatism." cdrep
The COMELEC accordingly set PDC Case No. 65 for hearing on the merits. However,
on July 17, 1980, petitioners filed a motion to dismiss the said case, alleging that it being
a pre-election case, the same should be dismissed, without prejudice to the filing of
appropriate quo warranto proceedings pursuant to Section 189 of the 1978 Election Code.
Having obtained an unfavorable ruling from the COMELEC, petitioners filed another
petition with this Court, docketed as G.R. No. 54633, assailing the COMELEC's
resolution which denied their motion to dismiss. On December 22, 1980, We dismissed
this second petition, as follows:
". . . there is no legal basis for the allegation in the instant petition that this Court 'meant
by said resolution that its reference therein to 'due process is the filing of the proper
petition in accordance with Section 189 and 190 of the 1978 Election Code' and that the
disqualification Case PDC No. 65 in the Comelec has become functus officio after the
election, proclamation and assumption to office of petitioners herein, the Court resolved
to DISMISS the petition. Had this Court intended to convert the pre-proclamation
proceedings in PDC Case No. 65 into either a protest or a quo warranto, the resolution
would have been so worded and the case would not have been remanded to the
COMELEC which has no jurisdiction, as correctly pointed out by petitioners, over such
protest or quo warranto, which belongs to the jurisdiction of the Courts of First Instance.
Of course, the resolution is without prejudice to petitioners choosing, if they prefer to
expedite proceedings, to abandon the pre-proclamation contest and instead proceed
directly to the proper Court of First Instance with a protest or quo warranto, as may be
proper."
Likewise, denying the motion for reconsideration of the above Resolution on June 8,
1982, We said:
"G.R. No. 54633 [Cesar Nepomuceno, et al., vs. Commission on Elections, et al.].
Acting on the motion filed by petitioners for reconsideration of the resolution of this
Court of December 22, 1980, the Court resolved to DENY the same for lack of merit.

With the clarification made in said resolution, it is now the law of the case as to the
parties herein that PDC Case No. 65 pending in the Comelec is a pre-proclamation
proceeding. However, the Court did not deem it wise to issue any order disturbing the
continuance in office of petitioners precisely because they are entitled to due process in
the disqualification case PDC No. 65. This denial is final. . . ."
Thereafter, the Comelec proceeded to hear PDC Case No. 65, with petitioners'
manifestation that "they do not waive their right to question the jurisdiction of the
Comelec" having been placed on record. After respondent Oscar Laserna had terminated
the presentation of his evidence, petitioners filed their respective Motions to
Dismiss/Demurrer to Evidence, which were seasonably opposed by respondent Laserna.
Rejoinders and memoranda were filed by the parties, and on March 31, 1982, the
Comelec issued the following order denying the demurrer to evidence, to wit: cdphil
"RESPONDENTS BY COUNSEL individually filed demurrers to the evidence, to which
the petitioner did not lose time to oppose. It is uniformly maintained by said respondents
that the evidence already adduced by the petitioner does not establish a good cause to
proceed against them, for which reason the petition as against them should be dismissed.
Petitioner disagreed, arguing otherwise.
"The demurrers should be DENIED. The Commission [Second Division] would rather
have the complete facts and evidence of the parties upon which to reach a decision than
prematurely go into it now upon the facts and evidence of the petitioner only. The
rationale behind such a procedure is to enable this Body to properly adjudicate the case
on its merits and to ventilate the adversary issues on the basis of all the facts and
evidence presented by the contending parties. [See Siayngco v. Costobolo, No. L-22506,
Feb. 28, 1982] [Annex "L", Rollo, p. 89]
Petitioners' motions for reconsideration of the above order were likewise denied.
On April 15, 1982, petitioners filed with the Comelec another Motion to Dismiss, which
was denied in an order dated April 16, 1982. This order was signed for the division by
presiding commissioner Luis L. Lardizabal [Annex "T", Rollo, p. 126]. From these
orders, petitioners came to Us, alleging:
1.
THAT THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO AN ACT IN EXCESS OF OR WITHOUT JURISDICTION IN
REFUSING TO RESOLVE PETITIONERS' DEMURRER TO EVIDENCE BY WAY
OF A JUDGMENT WHEREIN IT SHOULD STATE THE FACTS AND THE LAW ON
WHICH ITS RESOLUTION IS BASED.
2.
THAT THE RESPONDENT COMMITTED GRAVE ABUSE OF
DISCRETION, AMOUNTING TO LACK OF JURISDICTION, IN DENYING
PETITIONERS' MOTION TO DISMISS.
3.
THAT THE RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION, AMOUNTING TO LACK OF JURISDICTION, IN PROMULGATING
THE RESOLUTION OF APRIL 16, 1982 THROUGH THE ACT OF ONLY ONE
MEMBER OF A DIVISION.
Petitioners are obviously misled by the title of Rule 35 of the Rules of Court, "Judgment
on Demurrer to Evidence." Said Rule, consisting of only one section, allows the
defendant to move for dismissal of the case after the plaintiff has presented his evidence
on the ground of insufficiency of evidence, and provides for the effects of the dismissal
or non-dismissal, as the case may be, on the right of the defendant to present his cause.

Otherwise stated, it authorizes a judgment on the merits of the case without the defendant
having to submit evidence on his part as he would ordinarily have to do, if it is shown by
plaintiff's evidence that the latter is not entitled to the relief sought. The demurrer,
therefore, is an aid or instrument for the expeditious termination of an action, similar to a
motion to dismiss, which the court or tribunal may either grant or deny. LLjur
It is thus apparent that the requirement of Section 1 of Rule 36 1 would only apply if the
demurrer is granted, for in this event, there would in fact be an adjudication on the merits
of the case, leaving nothing more to be done, except perhaps to interpose an appeal.
However, a denial of the demurrer is not a final judgment, but merely interlocutory in
character as it does not finally dispose of the case, the defendant having yet the right to
present his evidence, as provided for under Section 1 of Rule 35.
In Estrada vs. Sto. Domingo, 2 We have ruled that " . . . Section 12, Article VIII,
Constitution and Section 1, Rule 36, Rules of Court, which require express findings of
fact in a decision, have no application to the questioned Order. Here involved is not a
decision on the merits but a mere order upon a motion to reconsider. The judge could
simply dish out a routine capsule-form order 'Denied for lack of merit' or 'motion for
reconsideration denied.' And yet, that kind of order would serve to immunize the judge
against an unlawful neglect-of-duty charge. . . ."
The challenged order being merely an interlocutory order and not a final judgment or
decision, no abuse of discretion was committed by respondent Comelec in its failure to
state the facts and the law on which its order denying petitioners' demurrer to evidence is
based.
The second issue raised by petitioners hardly deserves serious consideration. It had long
been laid to rest in our Resolutions in G.R. No. 54633, and considering the number of
times petitioners have succeeded in suspending the proceedings before the COMELEC,
their insistence on raising said issue over and over again is an obvious dilatory tactic
intended to frustrate this Court's directive to respondent COMELEC to have the case
heard and terminated as expeditiously as possible.
Neither is there merit in petitioners' third contention that the order of April 16, 1982
signed for the division by Presiding Commissioner Luis Lardizabal violated Sec. 3, Art.
XII c of the Constitution, which provides:
"SECTION 3. The Commission on Elections may sit en banc or in three divisions. All
election cases may be heard and decided by divisions, except contests involving
Members of the National Assembly, which shall be heard and decided en banc. Unless
otherwise provided by law, all election cases shall be decided within ninety days from the
date of their submission for decision."
As aptly observed by the Solicitor General in his Comment,
"It is plain that this provision refers to a decision on the merits of the case, where the
contending causes of the parties are decided with finality, one way or the other. The
fallacy of petitioners' contention is obvious. Their argument proceeds from the erroneous
premise that the April 16, 1982 resolution is a decision on the merits. Clearly, the said
resolution is merely interlocutory, and being such, the Presiding Commissioner of the
Division is competent to sign said resolution alone (Resolution No. 9805 dated June 18,
1980 of the Comelec). cdphil
WHEREFORE, the petitioner is hereby denied. Costs against petitioners.
SO ORDERED.

Aquino, Concepcion, Jr., Guerrero, Abad Santos, De Castro, Melencio-Herrera, Plana,

Relova and Gutierrez, Jr., JJ., concur.
Fernando, C.J. and Makasiar, J., took no part.
Separate Opinions
TEEHANKEE, J., dissenting:
I dissent from the majority's judgment which, four years after the holding of the 1980
local elections, would still allow the pre-proclamation petition to disqualify petitioners
(on grounds of alleged turncoatism filed by a mere voter) as the duly elected and
proclaimed mayor, vice mayor and Sangguniang Bayan member of Sta. Rosa, Laguna. I
reiterate the grounds and considerations therefor as stated in my separate opinions in G.R.
Nos. 52427 and 52506 dated May 15, 1980 and in G.R. No. 54633 dated December 22,
1980 which are hereby reproduced by reference in the interest of brevity.
Suffice it to reproduce, however, what I had stressed in my above-cited separate opinion
of May 15, 1980, viz: "(I) reiterate my stand that all such pre-election cases seeking to
disqualify the winner simply on the ground of alleged turncoatism should be ordered
dismissed after the last January 30th elections, subject to the filing of an appropriate quo
warranto action or election protest against the winner in the appropriate forum."
In my separate dissenting opinion in the second case of December 22, 1980, I had pointed
out that "(I)ndeed, it would be a legal anomaly if at this late stage, almost a year after the
January 30, 1980 elections [it is actually now 4 years after the elections], the Comelec
would be still dealing with the cases at bar as if they were a pre-proclamation contest
when petitioners had already been duly proclaimed and had duly assumed their respective
offices by virtue of the Comelec's very Resolution (No. 9258) of February 23, 1980,
which lifted the previous suspension of the effects of their proclamation. These effects
and realities can no longer be challenged or undone in a pre-proclamation controversy
(which has long become moot and functus officio by the Comelec's own action of
February 23, 1980) but in the proper election protest or quo warranto action before the
court of first instance."
Finally, it should be pointed out that the principle invoked by me has been reaffirmed by
the Court in a continuous host of cases, mostly penned by the Chief Justice, the latest of
which was issued on this very same month in G.R. No. 57219-20, entitled "Ramon B.
Resurreccion et al. vs. Comelec, et al.", wherein the Court once more reaffirmed that "this
petition falls squarely within the authoritative Sande Aguinaldo doctrine. 1 As therein set
forth: 'Since Venezuela v. Commission on Elections, this Court has invariably adhered to
the principle that after the holding of the January 30, 1980 election, and a proclamation
thereafter made, a petition to disqualify a candidate based on a change of political party
affiliation within six months immediately preceding or following an election, filed with
this Court after January 30, 1980, arising from a pre-proclamation controversy, should be
dismissed without prejudice to such ground being passed upon in a proper election
protest or quo warranto proceeding. Where, however, such constitutional provision had
been seasonably invoked prior to that date with the Commission on Elections having
acted on it and the matter then elevated to this Court before such election, the issue thus
presented should be resolved.' 2 Since its promulgation on January 5, 1981, such a
principle was followed subsequently in the following cases: Laguda v. Commission on
Elections; 3 Agcaoili, Jr. v. Santos; 4 Mitmug v. Commission on Elections; 5 Jagunap v.
Commission on Elections; 6 Mogueis, Jr. v. Commission on Elections; 7 Faderanga v.

Commission on Elections; 8 Pasion v. Commission on Elections; 9 Mangca v.

Commission on Elections; 10 Disini v. Commission on Elections; 11 and Robes v.
Commission on Elections." 12
As I had stated in my separate opinion in Singco v. Comelec, 13 only "(I)n this wise
(would) this Court's dockets be cleared of all such pending pre-proclamation or postelection cases seeking to disqualify the winners or to prevent or annul their proclamation
(even at this late state, 10 months after the holding of the election.'), 14 in line with the
President's own view as reported in the February 27, 1980 newspapers whereby he
'ordered the lawyers of the KBL [Kilusang Bagong Lipunan] to withdraw all
disqualification charges to allow already proclaimed opposition candidates involved in
such cases to assume office, reserving the right to file an election protest' (although such
Presidential orders seem to have been ignored since I am not aware of any
disqualification case before us that has been so withdrawn)."

[G.R. Nos. 78290-94. May 23, 1989.]

NATALIA REALTY CORPORATION, plaintiff-appellee, vs. PROTACIO RANCHU
VALLEZ, CEFERINO MARTINEZ, PABLO ESPEMEDA, AUGUSTO ARIZOLA and
CERIACO BANDOC, defendants-appellants.
Segundo E. Mangohig for petitioner.
Jose Edward L. Navarro for defendants-appellants.
SYLLABUS
1.
REMEDIAL LAW; SUMMARY JUDGMENT; PROPER IF THERE IS NO
GENUINE ISSUE AS TO THE EXISTENCE OF MATERIAL FACT; PURPOSE. It
is settled that a summary judgment under Rule 34 of the Rules of Court is proper only if
there is no genuine issue as to the existence of any material fact. It is intended to expedite
or promptly dispose of cases where the facts appear undisputed and certain from the
pleadings, depositions, admissions and affidavits on record.
2.
ID.; ID.; PLEADINGS AND DOCUMENTS MUST BE ANALYZED; CASE
AT BAR. The focal point of inquiry is whether or not there is a factual controversy in
these consolidated cases. To resolve this query, the pleadings and documents on file and
an analysis thereof are both indispensable and decisive. The sine qua non of such an
adjudicative recourse is spelled out thus: After the hearing, the judgment sought shall be
rendered forthwith if the pleadings, depositions, and admissions on file together with the
affidavits, show that, except as to the amount of damages, there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.
We are convinced that the rendition of the questioned summary judgment by the trial
court is proper and valid. Tested against the statutory and jurisprudential rules above
stated, the very allegations of the defendants prove that no valid issue has been tendered
by them. They relied mainly on two points, the alleged invalidity of the title of the
plaintiff and their supposed acquisition of the properties by adverse possession.
Defendants' theses are obviously puerile but they are entitled to the benefit of
clarification.
3.
CIVIL LAW; LAND REGISTRATION; ACT 496; TITLE IS INDEFEASIBLE
AFTER ONE YEAR FROM ENTRY OF THE DECREE OF REGISTRATION. We
note with approval the lower court's patient explanation that, inter alia, the certificates of
title issued in the name of the plaintiff in accordance with the Land Registration Act (Act
No. 496) is indefeasible after the expiration of one year from the entry of the decree of
registration. Under Section 38 thereof, a petition for review of the decree must be
presented within one year after its entry as described and defined in Section 40 of the
same. After the lapse of one year, the decree of registration becomes incontrovertible, and
is binding upon and conclusive against all persons whether or not they were notified of or
participated in the registration proceedings.
4.
ID.; ID.; PROPERTY REGISTRATION DECREE (P.D. 1529); CERTIFICATE
OF TITLE CANNOT BE SUBJECT TO COLLATERAL ATTACK. Even assuming
arguendo that said titles may still be challenged, the present case does not provide the
vehicle for that remedy since the judicial action required is a direct, and not a collateral,
attack. In fact, under the existing law, Section 48 of the Property Registration Decree
expressly provides that a certificate of title cannot be subject to collateral attack and can
be altered, modified or cancelled only in a direct proceeding in accordance with law.

5.
ID.; ID.; ACT 496; REGISTERED OWNER CANNOT BE DIVESTED OF
LAND BY ADVERSE POSSESSION. Under Article 1126 of the Civil Code,
prescription of ownership of lands registered under the Land Registration Act shall be
governed by special laws. Correlatively, Act No. 496 provides that no title to registered
land in derogation of that of the registered owner shall be acquired by adverse possession.
Consequently, proof of possession by the defendants is both immaterial and
inconsequential.
6.
ID.; ID.; PRESIDENTIAL DECREE NO. 2 DID NOT GRANT OWNERSHIP
OF LAND. There is nothing either in Presidential Decree No. 2 which may be said to
justify appellants' claim that said decree granted the ownership of said lands to them and
their successors by title. Apparently, appellants were misled or induced to believe that
they acquired the parcels of land in question when the whole country was declared by the
previous regime as a land reform area.
DECISION
REGALADO, J p:
In these appeals in five (5) consolidated cases 1 certified by the Court of Appeals to this
Court since they involve only a question of law, We affirm the summary judgment
rendered by the court a quo.
Said appeals originated from five (5) civil cases commenced by herein appellee Natalia
Realty Corporation against the five (5) appellants, namely, Protacio Ranchu Vallez, 2
Ceferino Martinez, 3 Pablo Espemeda, 4 Augusto Arizola, 5 and Ceriaco Bandoc, 6
which were consolidated and assigned to the Regional Trial Court, Branch LXXI, at
Antipolo, Rizal. 7 Plaintiff alleged that the defendants unlawfully occupied portions of
the parcels of land belonging to it and registered in its name under Transfer Certificates
of Title Nos. 31527 and 31528 (now N-67845) of the Register of Deeds of Rizal. It was
prayed that defendants be adjudged without valid right whatsoever in plaintiff's land, that
they be ordered to vacate the same and to pay the reasonable compensation and financial
reliefs stated in the respective complaints against them.
After filing their consolidated answer, defendants sought the dismissal of all the aforesaid
complaints for ejectment on the ground of lack of jurisdiction. Their motion was denied
on September 26, 1983 on a holding that the grounds therefor are not indubitable.
On October 29, 1983, plaintiff corporation moved for a summary judgment on the
consolidated cases under Rule 34 of the Rules of Court. Plaintiff claimed that the only
issue for resolution, if any, is strictly legal; and that "the pleadings manifestly show that
there is no genuine issue or issues as to any material fact averred in the complaint and
that defendants in their common answer to complaint have put up sham defenses and
counterclaims all of which are mere pretended denials and flimsy defenses." Annexed to
said motion is the affidavit of the company's executive vice-president, Eugenia Oliveros,
attesting to the truth of the averments therein. An opposition was filed by defendants on
November 4, 1983 through a "Joint Motion to Dismiss the Complaint in Opposition to
Plaintiff's Motion for Summary Judgment."
On December 16, 1983, the trial court rendered a summary judgment upon finding that
no valid issue was raised by defendants but only "conclusions that because they have
been in actual possession for over 30 years of their respective farm lots they are entitled
to be respected of (sic) such occupancy and as such the complaints should be dismissed,
(par. 4, p. 7, Record, Answer, Civil Case No. 117-A) that the titles of plaintiff are null

and void ab initio and should be cancelled and in lieu thereof issued new certificates of
titles (sic) to the defendants in accordance with the land reform program under P.D. No.
2." 8
Judgment was rendered in favor of the plaintiff ordering the defendants to vacate the
portions of land involved, to forthwith remove therefrom all improvements they may
have constructed thereon, and to pay rentals of P50.00 a month from January, 1980 until
the defendant concerned shall have vacated the premises he occupied. 9
In a joint notice of appeal, defendants sought appellate review in the then Intermediate
Appellate Court. Their brief, dated June 23, 1984, prayed for the reversal of the summary
judgment rendered by the court below and for the confirmation of their alleged just titles
supposedly under Article 541 of the Civil Code. It does not appear that appellee
corporation filed a brief therein.
As earlier stated, the Court of Appeals, in its resolution of November 27, 1986, certified
the aforesaid consolidated appeals to this Court on its finding that "no question of fact has
been raised by appellants for determination by this Court." The only question, according
to the Court of Appeals, is whether or not the court a quo acted correctly in rendering a
summary judgment in the aforesaid cases. cdphil
It is settled that a summary judgment under Rule 34 of the Rules of Court is proper only
if there is no genuine issue as to the existence of any material fact. 10 It is intended to
expedite or promptly dispose of cases where the facts appear undisputed and certain from
the pleadings, depositions, admissions and affidavits on record. 11 This elucidation of its
role in procedural law is instructive:
". . . This Summary Judgment or Accelerated Judgment is a device for weeding out sham
claims or defenses at an early stage of the litigation, thereby avoiding the expense and
loss of time involved in a trial. The very object is `to separate what is formal or pretended
in denial or averment from what is genuine and substantial, so that only the latter may
subject a suitor to the burden of a trial.' In conducting the hearing, the purpose of the
judge is not to try the issue, but merely to determine whether there is a meritorious issue
to be tried. Where a motion is made for summary judgment, such motion is not directed
to the pleadings and deals only with the question of whether there are triable issues of
facts and where such issue exists summary judgment must be denied. Summary judgment
should not be granted where it fairly appears that there is a triable issue to be tried. The
Court should not pass on questions of credibility or weight of evidence, and that the
summary judgment procedure `should not be perverted to the trial of disputed questions
of fact upon affidavits'. The test, therefore, of a motion for summary judgment is
whether the pleadings, affidavits and exhibits in support of the motions are sufficient to
overcome the opposing papers and to justify a finding as a matter of law that there is no
defense to the action or the claim is clearly meritorious.
"In proceedings for summary judgment, the burden of proof is upon the plaintiff to prove
the cause of action and to show that the defense is interposed solely for the purpose of
delay. After plaintiff's burden has been discharged, defendant has the burden to show
facts sufficient to entitle him to defend." 12
The focal point of inquiry is whether or not there is a factual controversy in these
consolidated cases. To resolve this query, the pleadings and documents on file and an
analysis thereof are both indispensable and decisive. The sine qua non of such an
adjudicative recourse is spelled out thus: After the hearing, the judgment sought shall be

rendered forthwith if the pleadings, depositions, and admissions on file together with the
affidavits, show that, except as to the amount of damages, there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.
13
The mimeographed complaints filed against the defendants are identical in their
substantial allegations, with the plaintiff alleging as follows:
xxx
xxx
xxx
"3.
Plaintiff is the registered owner and in possession of parcels of land situated at
Barrio Banaba, Antipolo, Rizal, covered by Transfer Certificates Nos. 31527 and 31528
of the Registry of Deeds of Rizal;
"4.
That for more than a year before the filing of this Complaint, defendant/s has/have
(sic) unlawfully occupying and possessing a portion of _______ square meters, more or
less, with an assessed value of P _____ included in Pcs- and within the aforesaid parcel
of land, where his/her/their house and other construction stand, without the knowledge or
consent of the plaintiff, thereby depriving the plaintiff of the possession of the said
portion;
"5.
Notwithstanding the demands made upon defendant/s to vacate the premises in
question and to remove his/her/their house/s and/or construction therefrom, he/she/they
has/have failed and refused, and still continue/s to fail and refuse to do so;
"6.
As a consequence of the acts of usurpation committed by the defendant's (sic)
plaintiff suffered and will continue to suffer damages at the rate of P50.00 monthly from
January 1980 representing the fair rental value of the premises in question;" 14
xxx
xxx
xxx
On the other hand, the position of defendants is the same all throughout the case and is
set out in their "joint and common answer to the complaint," as follows:
xxx
xxx
xxx
"3.
In answer to paragraph No. 3 of the plaintiff's complaint, defendants have no
knowledge or information sufficient to form a belief as to the truth of plaintiff's claim of
titles and consequently denies (sic) the same in that the alleged judgment or decision
from where it derived said titles are null and void as said title numbers have the same
serial numbers as those in the different municipalities of the Province of Rizal and those
included in Metro Manila that said titles are null and void ab initio and should be
cancelled and in lieu thereof issue new certificates of titles (sic) to the defendants and
their privies pursuant to the contract of legal services with the undersigned counsel for
the defendants and their privies who are members of the Confederation of Farm and
Home Lots Proprietors of the Philippines in accordance with the land reform program as
called for under PD No. 2 dated September 26, 1972 and the authority of this Honorable
Court under Section 10 of Rule 39 of the Rules of Court.
"4.
In answer to paragraph No. 4 of the plaintiff's complaint, defendants and their
privies denies (sic) the same, the truth of the matter being that the defendants and their
privies having tacked their respective possessions of their farm and home lots through
their several predecessors in interest without interruption in open, continuous, public, and
adverse (sic) in the concept of owner since time immemorial by actual possession under
claim of ownership as required by Article 433 of the Civil Code and the plaintiff has
never identified the property of the respective defendants in paragraph No. 4 of the
complaint that Article 434 of the Civil Code provides that "In an action to recover, the

property must be identified, and the plaintiff must rely on the strength of his title and not
on the weakness of the defendant's claim" and said paragraph No. 4 of the complaint of
the plaintiff shows that it is for an accion reivindicatoria which cannot be had under the
circumstances since many of the defendants and their privies had been in actual, physical,
and material possession of the land in the concept of owner through their predecessors in
interest for more than fifty (50) years beyond the thirty (30) year limit for an accion
reivindicatoria to prosper hence plaintiff (sic) claim by virtue of a null and void title is
untenable because the plaintiff's claim of ownership of the land in question cannot be
maintained in these class suit of cases (sic), that is, the plaintiff and their privies versus
the defendants and their privies and predecessors in interest.
"5
In answer to paragraph No. 5 of the plaintiffs complaint, defendants and their
privies deny the same the truth of the matter being that as stated in the foregoing
paragraphs Nos. 3 and 4 above, defendants and their privies exercised their ownership of
the land in question in accordance with the provisions of the Civil Code and the land
reform program that the plaintiff should be prosecuted for violation of the law." 15
xxx
xxx
xxx
Additionally, but inexplicably, defendants insist that the filing of a motion for summary
judgment is an admission by plaintiff of the prescription of their action because said
motion is applicable only in the inferior courts. They then pontificate that only three
kinds of actions are available to recover possession of real property, that is, forcible entry
or illegal detainer, accion publiciana, and accion de reivindicacion, which actions,
according to them, cannot be availed of by the plaintiff because the only issue in all the
three kinds of actions is possession which the plaintiff allegedly never had from the
beginning. 16 The incongruity of their said propositions dictate that they should be
disregarded. cdll
We are, consequently, convinced that the rendition of the questioned summary judgment
by the trial court is proper and valid. Tested against the statutory and jurisprudential rules
above stated, the very allegations of the defendants prove that no valid issue has been
tendered by them. They relied mainly on two points, the alleged invalidity of the title of
the plaintiff and their supposed acquisition of the properties by adverse possession.
Defendants' theses are obviously puerile but they are entitled to the benefit of
clarification.
We note with approval the lower court's patient explanation that, inter alia, the
certificates of title issued in the name of the plaintiff in accordance with the Land
Registration Act (Act No. 496) is indefeasible after the expiration of one year from the
entry of the decree of registration. Under Section 38 thereof, a petition for review of the
decree must be presented within one year after its entry as described and defined in
Section 40 of the same. After the lapse of one year, the decree of registration becomes
incontrovertible, 17 and is binding upon and conclusive against all persons whether or not
they were notified of or participated in the registration proceedings. 18 The certificates of
title of appellee corporation were issued more than thirty years ago: Title No. 31527 was
issued on September 11, 1953, while Title No. 31528 (now N-67845) was issued on
February 19, 1952.
Even assuming arguendo that said titles may still be challenged, the present case does not
provide the vehicle for that remedy since the judicial action required is a direct, and not a
collateral, attack. 19 In fact, under the existing law, Section 48 of the Property

Registration Decree 20 expressly provides that a certificate of title cannot be subject to

collateral attack and can be altered, modified or cancelled only in a direct proceeding in
accordance with law.
Appellants' claim of acquisitive prescription is likewise baseless. Under Article 1126 of
the Civil Code, prescription of ownership of lands registered under the Land Registration
Act shall be governed by special laws. Correlatively, Act No. 496 provides that no title to
registered land in derogation of that of the registered owner shall be acquired by adverse
possession. 21 Consequently, proof of possession by the defendants is both immaterial
and inconsequential. LLpr
There is nothing either in Presidential Decree No. 2 which may be said to justify
appellants' claim that said decree granted the ownership of said lands to them and their
successors by title. 22 Apparently, appellants were misled or induced to believe that they
acquired the parcels of land in question when the whole country was declared by the
previous regime as a land reform area.
ACCORDINGLY, the assailed summary judgment rendered by the trial court is hereby
AFFIRMED in toto. This decision is immediately executory.
SO ORDERED.
Melencio-Herrera and Padilla, JJ., concur.
Paras, J., took no part.
Sarmiento, J., is on leave.

[G.R. No. 60036. January 27, 1987.]

INVESTMENTS, INC., petitioner, vs. COURT OF APPEALS, TOBACCO
INDUSTRIES OF THE PHILIPPINES, INC., and THE SHERIFF OF THE CITY OF
MANILA, respondents.
DECISION
NARVASA, J p:
The petitioner seeks the nullification by certiorari of two resolutions of respondent Court
of Appeals in CA G.R. No. Sp. 08253-R: one dated December 9, 1981, denying its
motion inter alia to declare void the auction sale held on August 24, 1981 at the instance
of respondent Tobacco Industries of the Philippines, Inc.; and another dated January 13,
1982 denying its motion for extension of time to file a motion for reconsideration. The
petitioner also seeks to compel respondent Court by mandamus to enforce an earlier
resolution in the same case dated December 12, 1979, for the return to it of the chattels
sold at public auction.
The instant petition originated from Civil Case No. 116617, instituted by Investments,
Inc. (hereinafter referred to simply as "Investments") on July 7, 1978 in the Court of First
Instance of Manila against the private respondent, Tobacco Industries of the Philippines,
Inc. ("TIP"). 1 The action was for the annulment of a chattel mortgage executed by
Investments in TIP's favor covering five cigarette-making machines, which were about to
be sold on foreclosure by the latter. Initially a temporary restraining order was issued by
the Court ex-parte enjoining the Sheriff from proceeding with the auction sale of the
machines. But not long afterwards, the Trial Court promulgated an order denying
Investments' application for a writ of injunction and dissolving the temporary restraining
order. 2 Unable to obtain a reconsideration of the order, Investments brought the matter
to the Court of Appeals on certiorari and prohibition. 3
That Court, on December 21, 1978, directed issuance of a writ of preliminary injunction
against the threatened auction sale upon Investments' posting a bond in the amount of
P75,000.00. Subsequently, however, by resolution dated May 15, 1979, the Court
dismissed Investment's petition and lifted the injunction, Investments filed a motion for
reconsideration, at the hearing of which it argued for the reinstatement of the preliminary
injunction since "the hearing on the merits of the main case below is about to be
terminated." The Appellate Court then suggested that the injunction bond be increased to
P650,000.00 to cover the principal obligation. The suggestion having been accepted by
both parties, Investments accordingly filed a bond in the increased amount. The Court
approved the bond on September 24, 1979 and issued a restraining order which in effect
reinstated the injunction earlier granted. cdrep
On December 12, 1979 the Court of Appeals promulgated a Resolution declaring that
without prejudice to the early conclusion of the case in the Trial Court, it deemed the
proceedings before it terminated because it had already "stopped the sale . . . of the
machines . . . until final judgment shall have been rendered in Civil Case No. 116617." 4
In due course, the Clerk of Court caused entry of judgment in CA-G.R. No. SP-08253-R,
but what was inadvertently entered was the dispositive portion of the previous resolution
of May 15, 1979 dismissing the petition for certiorari, and no reference whatever was
made to the subsequent resolutions of September 24 and December 12, 1979. 5
Trial in Civil Case No. 116617 having continued in the meantime, judgment therein was
rendered on December 19, 1980, dismissing Investments' complaint for lack of merit, and

awarding moral and exemplary damages to TIP. Investments appealed that decision to the
Court of Appeals.
TIP filed with the Trial Court a motion for execution pending appeal; 6 and with the
Court of Appeals - in CA-G.R. No. SP-08253-R a motion to lift the writ of
preliminary injunction. 7 Investments opposed both motions on the ground that the
injunction issued by the Appellate Court against the holding of the auction sale was
meant to subsist until "final judgment in Civil Case No. 116617," and since the decision
rendered in said case was not yet final and executory, said injunction was still in force.
What the Court of Appeals did, however was to declare, by Resolution dated June 9,
1981, that it was no longer entertaining the pending incidents on the ground that the case
before it (CA-G.R. No. SP 08253) had long been terminated. In so declaring the Court
evidently relied only on the dispositive portion of its resolution of May 15, 1979
erroneously entered by the Clerk of Court (dismissing Investment's petition for certiorari
and prohibition) and failed to take account of the injunction it had issued thereafter (upon
the filing of a bond in the increased amount of P650,000.00). TIP then caused the
mortgaged chattels to be sold by the Sheriff at a public auction on August 24, 1981, at
which sale it was the successful bidder.
Investments forthwith filed with respondent Court of Appeals a motion for contempt and
for annulment of the sale. The Court's response was to issue on August 28, 1981 a
temporary restraining order stopping TIP from taking possession of the machines, and
commanding their return to Investments if already in TIP's possession. 8 Subsequently,
however, by Resolution dated December 9, 1981, the Court denied Investment's plea for
nullification of the sale and for an adjudication of TIP's liability for contempt. In that
resolution of December 9, 1981, the Appellate Court sustained TIP's position that the
restraining order enjoining the sale of the mortgaged chattels had lapsed upon the
rendition of final judgment in Civil Case No. 116617, irrespective of the appeal taken
therefrom. The Court also declared valid the auction sale of August 24, 1981, and
dissolved the restraining order embodied in the Resolution of August 28, 1981 said
resolution having been "intended as a temporary measure pending determination of the
status of the main case below." Finally, the respondent Court dismissed the contempt
charges, finding TIP's offer to put up a counterbond in lieu of returning the machines to
be substantial compliance with said resolution of August 28, 1981. 9
Investments then presented a motion for extension of time to file a motion for
reconsideration, pleading time pressure, 10 which was denied for lack of merit. 11 Hence,
the present petition.
As is at once apparent, the crux of the controversy is the effective life of the preliminary
injunction of the Appellate Court as regards the auction sale of Investments' cigarettemaking machines, dated December 21, 1978 which, after having been lifted, was
reinstated upon the filing by Investments of the increased injunction bond of P650,000.00
on September 24, 1979. The parties do not dispute the fact that the injunction was to
subsist "until final judgment shall have been rendered in Civil Case No. 116617." The
point about which they differ is the meaning to be accorded to the term, "final judgment"
in the context of Civil Case No. 116617. Investments theorizes that the judgment
rendered by the Trial Court in said Civil Case No. 116617 on December 19, 1980 was not
a "final judgment" because it was an appealable judgment and had, in fact, been appealed
seasonably. TIP, for its part, asserts that judgment was in truth a "final judgment" as the

term is used in procedural law, even if appealable and hence, upon its rendition, the
preliminary injunction of the Appellate Court expired, its life having precisely been fixed
to endure until such judgment shall have been rendered. prLL
The concept of "final" judgment, as distinguished from one which has "become final" (or
"executory" as of right [final and executory]), is definite and settled. A "final" judgment
or order is one that finally disposes of a case, 12 leaving nothing more to be done by the
Court in respect thereto, e.g., an adjudication on the merits which, on the basis of the
evidence presented at the trial, declares categorically what the rights and obligations of
the parties are and which party is in the right; or a judgment or order that dismisses an
action on the ground, for instance, of res adjudicata or prescription. Once rendered, the
task of the Court is ended, as far as deciding the controversy or determining the rights
and liabilities of the litigants is concerned. Nothing more remains to be done by the Court
except to await the parties' next move (which among others, may consist of the filing of a
motion for new trial or reconsideration, or the taking of an appeal) and ultimately, of
course, to cause the execution of the judgment once it becomes "final" or, to use the
established and more distinctive term, "final and executory."
". . . (A)n order or judgment is deemed final when it finally disposes of the pending
action so that nothing more can be done with it in the trial court. In other words, a final
order is that which gives an end to the litigation.. When the order or judgment does not
dispose of the case completely but leaves something to be done upon the merits, it is
merely interlocutory." 13
"A final order or judgment finally disposes of, adjudicates, or determines the rights, or
some right or right of the parties, either on the entire controversy or on some definite and
separate branch thereof, and concludes them until it is reversed or set aside . . . Where no
issue is left for future consideration, except the fact of compliance or non-compliance
with the terms of the judgment or order, such judgment or order is final and appealable."
14
Conversely, an order that does not finally dispose of the case, and does not end the
Court's task of adjudicating the parties' contentions and determining their rights and
liabilities as regards each other, but obviously indicates that other things remain to be
done by the Court, is "interlocutory," e.g., an order denying a motion to dismiss under
Rule 16 of the Rules, or granting a motion for extension of time to file a pleading, or
authorizing amendment thereof, or granting or denying applications for postponement, or
production or inspection of documents or things, etc. Unlike a "final" judgment or order,
which is appealable, as above pointed out, an "interlocutory" order may not be questioned
on appeal except only as part of an appeal that may eventually be taken from the final
judgment rendered in the case.
". . . Only final judgments or orders shall be subject to appeal. No interlocutory order
shall stay the progress of an action, nor shall it be subject of appeal until final judgment is
rendered for one party or another." 15
The rule is founded on considerations of orderly procedure, to forestall useless appeals
and avoid undue inconvenience to the appealing party by having to assail orders as they
are promulgated by the court, when all such orders may be contested in a single appeal.
16
Now, a "final judgment" in the sense just described becomes final "upon expiration of the
period to appeal therefrom if no appeal has been duly perfected" 17 or, an appeal

therefrom having been taken, the judgment of the appellate tribunal in turn becomes final
and the records of the case are returned to the Court of origin. 18 The "final" judgment is
then correctly categorized as a "final and executory judgment" in respect to which, as the
law explicitly provides, "execution shall issue as a matter of right." 19 It bears stressing
that only a final judgment or order, i.e., "a judgment or order that finally disposes of the
action of proceeding" 20 can become final and executory. prLL
There is no showing that the parties and their counsel intended to give the term "final
judgment" a special signification, a meaning other than that accorded to it by law and
established usage. Their agreement must therefore be construed to mean exactly what it
says, that upon rendition by the Trial Court on December 9, 1981 of its judgment on the
merits, i.e., its "final judgment," the life and effectivity of the preliminary injunction
came to an end, regardless of the appealability of, or the actual taking of an appeal from,
said judgment. The petitioner's theory of the case, founded on its concept of a "final
judgment" is erroneous and cannot be sustained.
WHEREFORE, the petition is dismissed, with costs against petitioner.
SO ORDERED.
Yap, Melencio-Herrera, Cruz, Feliciano and Gancayco, JJ., concur.

[G.R. No. 141524. September 14, 2005.]

DOMINGO NEYPES, LUZ FAUSTINO, ROGELIO FAUSTINO, LOLITO
VICTORIANO, JACOB OBANIA AND DOMINGO CABACUNGAN, petitioners, vs.
HON. COURT OF APPEALS, HEIRS OF BERNARDO DEL MUNDO, namely: FE,
CORAZON, JOSEFA, SALVADOR and CARMEN, all surnamed DEL MUNDO,
LAND BANK OF THE PHILIPPINES AND HON. ANTONIO N. ROSALES, Presiding
Judge, Branch 43, Regional Trial Court, Roxas, Oriental Mindoro, respondents.
Romualdo M. Jubay for petitioners.
Miguel M. Gonzales Rosemarie M. Osoteo and Antonio M. Chua for Land Bank of the
Phils.
Jose Rico P. Domingo for private respondents.
SYLLABUS
1.
REMEDIAL LAW; CIVIL PROCEDURE; APPEALS; RIGHT TO APPEAL; A
STATUTORY PRIVILEGE AND MAY BE EXERCISED ONLY IN THE MANNER
AND IN ACCORDANCE WITH THE PROVISIONS OF LAW. First and foremost,
the right to appeal is neither a natural right nor a part of due process. It is merely a
statutory privilege and may be exercised only in the manner and in accordance with the
provisions of law. Thus, one who seeks to avail of the right to appeal must comply with
the requirements of the Rules. Failure to do so often leads to the loss of the right to
appeal. The period to appeal is fixed by both statute and procedural rules. ACTaDH
2.
ID.; ID.; ID.; PERIOD TO APPEAL; ORDER OR JUDGMENT WHEN
DEEMED FINAL. An appeal should be taken within 15 days from the notice of
judgment or final order appealed from. A final judgment or order is one that finally
disposes of a case, leaving nothing more for the court to do with respect to it. It is an
adjudication on the merits which, considering the evidence presented at the trial, declares
categorically what the rights and obligations of the parties are; or it may be an order or
judgment that dismisses an action.
3.
ID.; ID.; ID.; ID.; ID.; ORDER DENYING THE PARTIES' MOTION FOR
RECONSIDERATION CONSTITUTES THE FINAL ORDER WHICH FINALLY
DISPOSED OF THE ISSUES INVOLVED IN A CASE; CASE AT BAR. In the
recent case of Quelnan v. VHF Philippines, Inc., the trial court declared petitioner
Quelnan non-suited and accordingly dismissed his complaint. Upon receipt of the order
of dismissal, he filed an omnibus motion to set it aside. When the omnibus motion was
filed, 12 days of the 15-day period to appeal the order had lapsed. He later on received
another order, this time dismissing his omnibus motion. He then filed his notice of
appeal. But this was likewise dismissed for having been filed out of time. The court a
quo ruled that petitioner should have appealed within 15 days after the dismissal of his
complaint since this was the final order that was appealable under the Rules. We reversed
the trial court and declared that it was the denial of the motion for reconsideration of an
order of dismissal of a complaint which constituted the final order as it was what ended
the issues raised there. This pronouncement was reiterated in the more recent case of
Apuyan v. Haldeman, et al. where we again considered the order denying petitioner
Apuyan's motion for reconsideration as the final order which finally disposed of the
issues involved in the case. Based on the aforementioned cases, we sustain petitioners'
view that the order dated July 1, 1998 denying their motion for reconsideration was the
final order contemplated in the Rules. HCaIDS

4.
ID.; ID.; ID.; ID.; RULE; DELAY IN THE FILING OF AN APPEAL; WHEN
MAY BE EXCUSED. In National Waterworks and Sewerage Authority and Authority
v. Municipality of Libmanan, however, we declared that appeal is an essential part of our
judicial system and the rules of procedure should not be applied rigidly. This Court has
on occasion advised the lower courts to be cautious about not depriving a party of the
right to appeal and that every party litigant should be afforded the amplest opportunity for
the proper and just disposition of his cause, free from the constraint of technicalities. In
de la Rosa v. Court of Appeals, we stated that, as a rule, periods which require litigants to
do certain acts must be followed unless, under exceptional circumstances, a delay in the
filing of an appeal may be excused on grounds of substantial justice. There, we condoned
the delay incurred by the appealing party due to strong considerations of fairness and
justice. In setting aside technical infirmities and thereby giving due course to tardy
appeals, we have not been oblivious to or unmindful of the extraordinary situations that
merit liberal application of the Rules. In those situations where technicalities were
dispensed with, our decisions were not meant to undermine the force and effectivity of
the periods set by law. But we hasten to add that in those rare cases where procedural
rules were not stringently applied, there always existed a clear need to prevent the
commission of a grave injustice. Our judicial system and the courts have always tried to
maintain a healthy balance between the strict enforcement of procedural laws and the
guarantee that every litigant be given the full opportunity for the just and proper
disposition of his cause.
5.
ID.; ID.; ID.; ID.; FRESH PERIOD RULE. The Supreme Court may
promulgate procedural rules in all courts. It has the sole prerogative to amend, repeal or
even establish new rules for a more simplified and inexpensive process, and the speedy
disposition of cases. In the rules governing appeals to it and to the Court of Appeals,
particularly Rules 42, 43 and 45, the Court allows extensions of time, based on justifiable
and compelling reasons, for parties to file their appeals. These extensions may consist of
15 days or more. To standardize the appeal periods provided in the Rules and to afford
litigants fair opportunity to appeal their cases, the Court deems it practical to allow a
fresh period of 15 days within which to file the notice of appeal in the Regional Trial
Court, counted from receipt of the order dismissing a motion for a new trial or motion for
reconsideration. Henceforth, this "fresh period rule" shall also apply to Rule 40 governing
appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on
petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on
appeals from quasi-judicial agencies to the Court of Appeals and Rule 45 governing
appeals by certiorari to the Supreme Court. The new rule aims to regiment or make the
appeal period uniform, to be counted from receipt of the order denying the motion for
new trial, motion for reconsideration (whether full or partial) or any final order or
resolution. DaTEIc
6.
ID.; ID.; ID.; ID.; ID.; 15-DAY APPEAL PERIOD COUNTED FROM RECEIPT
OF NOTICE OF JUDGMENT OR FROM RECEIPT OF NOTICE OF FINAL ORDER
APPEALED FROM. We thus hold that petitioners seasonably filed their notice of
appeal within the fresh period of 15 days, counted from July 22, 1998 (the date of receipt
of notice denying their motion for reconsideration). This pronouncement is not
inconsistent with Rule 41, Section 3 of the Rules which states that the appeal shall be
taken within 15 days from notice of judgment or final order appealed from. The use of

the disjunctive word "or" signifies disassociation and independence of one thing from
another. It should, as a rule, be construed in the sense in which it ordinarily implies.
Hence, the use of "or" in the above provision supposes that the notice of appeal may be
filed within 15 days from the notice of judgment or within 15 days from notice of the
"final order," which we already determined to refer to the July 1, 1998 order denying the
motion for a new trial or reconsideration. Neither does this new rule run counter to the
spirit of Section 39 of BP 129 which shortened the appeal period from 30 days to 15 days
to hasten the disposition of cases. The original period of appeal (in this case March 3-18,
1998) remains and the requirement for strict compliance still applies. The fresh period of
15 days becomes significant only when a party opts to file a motion for new trial or
motion for reconsideration. In this manner, the trial court which rendered the assailed
decision is given another opportunity to review the case and, in the process, minimize
and/or rectify any error of judgment. While we aim to resolve cases with dispatch and to
have judgments of courts become final at some definite time, we likewise aspire to
deliver justice fairly. In this case, the new period of 15 days eradicates the confusion as to
when the 15-day appeal period should be counted from receipt of notice of judgment
(March 3, 1998) or from receipt of notice of "final order" appealed from (July 22, 1998).
7.
ID.; ID.; ID.; ID.; ID.; ID.; NEW 15-DAY PERIOD MAY BE AVAILED OF
ONLY WHEN EITHER A MOTION FOR NEW TRIAL OR MOTION FOR
RECONSIDERATION IS FILED; CASE AT BAR. To recapitulate, a party litigant
may either file his notice of appeal within 15 days from receipt of the Regional Trial
Court's decision or file it within 15 days from receipt of the order (the "final order")
denying his motion for new trial or motion for reconsideration. Obviously, the new 15day period may be availed of only if either motion is filed; otherwise, the decision
becomes final and executory after the lapse of the original appeal period provided in Rule
41, Section 3. Petitioners here filed their notice of appeal on July 27, 1998 or five days
from receipt of the order denying their motion for reconsideration on July 22, 1998.
Hence, the notice of appeal was well within the fresh appeal period of 15 days, as already
discussed. aIcDCA
DECISION
CORONA, J p:
Petitioners Domingo Neypes, Luz Faustino, Rogelio Faustino, Lolito Victoriano, Jacob
Obania and Domingo Cabacungan filed an action for annulment of judgment and titles of
land and/or reconveyance and/or reversion with preliminary injunction before the
Regional Trial Court, Branch 43, of Roxas, Oriental Mindoro, against the Bureau of
Forest Development, Bureau of Lands, Land Bank of the Philippines and the heirs of
Bernardo del Mundo, namely, Fe, Corazon, Josefa, Salvador and Carmen. TACEDI
In the course of the proceedings, the parties (both petitioners and respondents) filed
various motions with the trial court. Among these were: (1) the motion filed by
petitioners to declare the respondent heirs, the Bureau of Lands and the Bureau of Forest
Development in default and (2) the motions to dismiss filed by the respondent heirs and
the Land Bank of the Philippines, respectively.
In an order dated May 16, 1997, the trial court, presided by public respondent Judge
Antonio N. Rosales, resolved the foregoing motions as follows: (1) the petitioners'
motion to declare respondents Bureau of Lands and Bureau of Forest Development in
default was granted for their failure to file an answer, but denied as against the

respondent heirs of del Mundo because the substituted service of summons on them was
improper; (2) the Land Bank's motion to dismiss for lack of cause of action was denied
because there were hypothetical admissions and matters that could be determined only
after trial, and (3) the motion to dismiss filed by respondent heirs of del Mundo, based on
prescription, was also denied because there were factual matters that could be determined
only after trial. 1
The respondent heirs filed a motion for reconsideration of the order denying their motion
to dismiss on the ground that the trial court could very well resolve the issue of
prescription from the bare allegations of the complaint itself without waiting for the trial
proper.
In an order 2 dated February 12, 1998, the trial court dismissed petitioners' complaint on
the ground that the action had already prescribed. Petitioners allegedly received a copy of
the order of dismissal on March 3, 1998 and, on the 15th day thereafter or on March 18,
1998, filed a motion for reconsideration. On July 1, 1998, the trial court issued another
order dismissing the motion for reconsideration 3 which petitioners received on July 22,
1998. Five days later, on July 27, 1998, petitioners filed a notice of appeal 4 and paid the
appeal fees on August 3, 1998. CTEaDc
On August 4, 1998, the court a quo denied the notice of appeal, holding that it was filed
eight days late. 5 This was received by petitioners on July 31, 1998. Petitioners filed a
motion for reconsideration but this too was denied in an order dated September 3, 1998. 6
Via a petition for certiorari and mandamus under Rule 65 of the 1997 Rules of Civil
Procedure, petitioners assailed the dismissal of the notice of appeal before the Court of
Appeals.
In the appellate court, petitioners claimed that they had seasonably filed their notice of
appeal. They argued that the 15-day reglementary period to appeal started to run only on
July 22, 1998 since this was the day they received the final order of the trial court
denying their motion for reconsideration. When they filed their notice of appeal on July
27, 1998, only five days had elapsed and they were well within the reglementary period
for appeal. 7
On September 16, 1999, the Court of Appeals (CA) dismissed the petition. It ruled that
the 15-day period to appeal should have been reckoned from March 3, 1998 or the day
they received the February 12, 1998 order dismissing their complaint. According to the
appellate court, the order was the "final order" appealable under the Rules. It held further:
Perforce the petitioners' tardy appeal was correctly dismissed for the (P)erfection of an
appeal within the reglementary period and in the manner prescribed by law is
jurisdictional and non-compliance with such legal requirement is fatal and effectively
renders the judgment final and executory. 8
Petitioners filed a motion for reconsideration of the aforementioned decision. This was
denied by the Court of Appeals on January 6, 2000.
In this present petition for review under Rule 45 of the Rules, petitioners ascribe the
following errors allegedly committed by the appellate court:
I
THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING THE
PETITIONERS' PETITION FOR CERTIORARI AND MANDAMUS AND IN
AFFIRMING THE ORDER OF THE HON. JUDGE ANTONIO N. ROSALES WHICH
DISMISSED THE PETITIONERS' APPEAL IN CIVIL CASE NO. C-36 OF THE

REGIONAL TRIAL COURT, BRANCH 43, ROXAS, ORIENTAL MINDORO, EVEN

AFTER THE PETITIONERS HAD PAID THE APPEAL DOCKET FEES. aSEHDA
II
THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN RULING AND
AFFIRMING THE DECISION OR ORDER OF THE RESPONDENT HON. ANTONIO
M. ROSALES THAT PETITIONERS' APPEAL WAS FILED OUT OF TIME WHEN
PETITIONERS RECEIVED THE LAST OR FINAL ORDER OF THE COURT ON
JULY 22, 1998 AND FILED THEIR NOTICE OF APPEAL ON JULY 27, 1998 AND
PAID THE APPEAL DOCKET FEE ON AUGUST 3, 1998.
III
THE HONORABLE COURT OF APPEALS FURTHER ERRED IN RULING THAT
THE WORDS "FINAL ORDER" IN SECTION 3, RULE 41, OF THE 1997 RULES OF
CIVIL PROCEDURE WILL REFER TO THE [FIRST] ORDER OF RESPONDENT
JUDGE HON. ANTONIO M. MORALES DATED FEBRUARY 12, 1998 INSTEAD
OF THE LAST AND FINAL ORDER DATED JULY 1, 1998 COPY OF WHICH WAS
RECEIVED BY PETITIONERS THROUGH COUNSEL ON JULY 22, 1998.
IV
THE HONORABLE COURT OF APPEALS FINALLY ERRED IN FINDING THAT
THE DECISION IN THE CASE OF DENSO, INC. V. IAC, 148 SCRA 280, IS
APPLICABLE IN THE INSTANT CASE THEREBY IGNORING THE PECULIAR
FACTS AND CIRCUMSTANCES OF THIS CASE AND THE FACT THAT THE
SAID DECISION WAS RENDERED PRIOR TO THE ENACTMENT OF THE 1997
RULES OF CIVIL PROCEDURE. 9
The foregoing issues essentially revolve around the period within which petitioners
should have filed their notice of appeal. HESAIT
First and foremost, the right to appeal is neither a natural right nor a part of due process.
It is merely a statutory privilege and may be exercised only in the manner and in
accordance with the provisions of law. Thus, one who seeks to avail of the right to appeal
must comply with the requirements of the Rules. Failure to do so often leads to the loss of
the right to appeal. 10 The period to appeal is fixed by both statute and procedural rules.
BP 129, 11 as amended, provides:
Sec. 39.
Appeals. The period for appeal from final orders, resolutions, awards,
judgments, or decisions of any court in all these cases shall be fifteen (15) days counted
from the notice of the final order, resolution, award, judgment, or decision appealed from.
Provided, however, that in habeas corpus cases, the period for appeal shall be (48) fortyeight hours from the notice of judgment appealed from. . . .
Rule 41, Section 3 of the 1997 Rules of Civil Procedure states:
SEC. 3.
Period of ordinary appeal. The appeal shall be taken within fifteen (15)
days from the notice of the judgment or final order appealed from. Where a record on
appeal is required, the appellant shall file a notice of appeal and a record on appeal within
thirty (30) days from the notice of judgment or final order.
The period to appeal shall be interrupted by a timely motion for new trial or
reconsideration. No motion for extension of time to file a motion for new trial or
reconsideration shall be allowed. (emphasis supplied)
Based on the foregoing, an appeal should be taken within 15 days from the notice of
judgment or final order appealed from. A final judgment or order is one that finally

disposes of a case, leaving nothing more for the court to do with respect to it. It is an
adjudication on the merits which, considering the evidence presented at the trial, declares
categorically what the rights and obligations of the parties are; or it may be an order or
judgment that dismisses an action. 12
As already mentioned, petitioners argue that the order of July 1, 1998 denying their
motion for reconsideration should be construed as the "final order," not the February 12,
1998 order which dismissed their complaint. Since they received their copy of the denial
of their motion for reconsideration only on July 22, 1998, the 15-day reglementary period
to appeal had not yet lapsed when they filed their notice of appeal on July 27, 1998.
aCSDIc
What therefore should be deemed as the "final order," receipt of which triggers the start
of the 15-day reglementary period to appeal the February 12, 1998 order dismissing
the complaint or the July 1, 1998 order dismissing the MR?
In the recent case of Quelnan v. VHF Philippines, Inc., 13 the trial court declared
petitioner Quelnan non-suited and accordingly dismissed his complaint. Upon receipt of
the order of dismissal, he filed an omnibus motion to set it aside. When the omnibus
motion was filed, 12 days of the 15-day period to appeal the order had lapsed. He later on
received another order, this time dismissing his omnibus motion. He then filed his notice
of appeal. But this was likewise dismissed for having been filed out of time.
The court a quo ruled that petitioner should have appealed within 15 days after the
dismissal of his complaint since this was the final order that was appealable under the
Rules. We reversed the trial court and declared that it was the denial of the motion for
reconsideration of an order of dismissal of a complaint which constituted the final order
as it was what ended the issues raised there.
This pronouncement was reiterated in the more recent case of Apuyan v. Haldeman et al.
14 where we again considered the order denying petitioner Apuyan's motion for
reconsideration as the final order which finally disposed of the issues involved in the
case.
Based on the aforementioned cases, we sustain petitioners' view that the order dated July
1, 1998 denying their motion for reconsideration was the final order contemplated in the
Rules.
We now come to the next question: if July 1, 1998 was the start of the 15-day
reglementary period to appeal, did petitioners in fact file their notice of appeal on time?
aHCSTD
Under Rule 41, Section 3, petitioners had 15 days from notice of judgment or final order
to appeal the decision of the trial court. On the 15th day of the original appeal period
(March 18, 1998), petitioners did not file a notice of appeal but instead opted to file a
motion for reconsideration. According to the trial court, the MR only interrupted the
running of the 15-day appeal period. 15 It ruled that petitioners, having filed their MR on
the last day of the 15-day reglementary period to appeal, had only one (1) day left to file
the notice of appeal upon receipt of the notice of denial of their MR. Petitioners,
however, argue that they were entitled under the Rules to a fresh period of 15 days from
receipt of the "final order" or the order dismissing their motion for reconsideration.
In Quelnan and Apuyan, both petitioners filed a motion for reconsideration of the
decision of the trial court. We ruled there that they only had the remaining time of the 15day appeal period to file the notice of appeal. We consistently applied this rule in similar

cases, 16 premised on the long-settled doctrine that the perfection of an appeal in the
manner and within the period permitted by law is not only mandatory but also
jurisdictional. 17 The rule is also founded on deep-seated considerations of public policy
and sound practice that, at risk of occasional error, the judgments and awards of courts
must become final at some definite time fixed by law. 18
Prior to the passage of BP 129, Rule 41, Section 3 of the 1964 Revised Rules of Court
read:
Sec. 3. How appeal is taken. Appeal may be taken by serving upon the adverse party
and filing with the trial court within thirty (30) days from notice of order or judgment, a
notice of appeal, an appeal bond, and a record on appeal. The time during which a motion
to set aside the judgment or order or for new trial has been pending shall be deducted,
unless such motion fails to satisfy the requirements of Rule 37. ScaCEH
But where such motion has been filed during office hours of the last day of the period
herein provided, the appeal must be perfected within the day following that in which the
party appealing received notice of the denial of said motion. 19 (emphasis supplied)
According to the foregoing provision, the appeal period previously consisted of 30 days.
BP 129, however, reduced this appeal period to 15 days. In the deliberations of the
Committee on Judicial Reorganization 20 that drafted BP 129, the raison d' etre behind
the amendment was to shorten the period of appeal 21 and enhance the efficiency and
dispensation of justice. We have since required strict observance of this reglementary
period of appeal. Seldom have we condoned late filing of notices of appeal, 22 and only
in very exceptional instances to better serve the ends of justice.
In National Waterworks and Sewerage Authority and Authority v. Municipality of
Libmanan, 23 however, we declared that appeal is an essential part of our judicial system
and the rules of procedure should not be applied rigidly. This Court has on occasion
advised the lower courts to be cautious about not depriving a party of the right to appeal
and that every party litigant should be afforded the amplest opportunity for the proper and
just disposition of his cause, free from the constraint of technicalities.
In de la Rosa v. Court of Appeals, 24 we stated that, as a rule, periods which require
litigants to do certain acts must be followed unless, under exceptional circumstances, a
delay in the filing of an appeal may be excused on grounds of substantial justice. There,
we condoned the delay incurred by the appealing party due to strong considerations of
fairness and justice.
In setting aside technical infirmities and thereby giving due course to tardy appeals, we
have not been oblivious to or unmindful of the extraordinary situations that merit liberal
application of the Rules. In those situations where technicalities were dispensed with, our
decisions were not meant to undermine the force and effectivity of the periods set by law.
But we hasten to add that in those rare cases where procedural rules were not stringently
applied, there always existed a clear need to prevent the commission of a grave injustice.
Our judicial system and the courts have always tried to maintain a healthy balance
between the strict enforcement of procedural laws and the guarantee that every litigant be
given the full opportunity for the just and proper disposition of his cause. 25
The Supreme Court may promulgate procedural rules in all courts. 26 It has the sole
prerogative to amend, repeal or even establish new rules for a more simplified and
inexpensive process, and the speedy disposition of cases. In the rules governing appeals

to it and to the Court of Appeals, particularly Rules 42, 27 43 28 and 45, 29 the Court
allows extensions of time, based on justifiable and compelling reasons, for parties to file
their appeals. These extensions may consist of 15 days or more. HcTIDC
To standardize the appeal periods provided in the Rules and to afford litigants fair
opportunity to appeal their cases, the Court deems it practical to allow a fresh period of
15 days within which to file the notice of appeal in the Regional Trial Court, counted
from receipt of the order dismissing a motion for a new trial or motion for
reconsideration. 30
Henceforth, this "fresh period rule" shall also apply to Rule 40 governing appeals from
the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review
from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasijudicial agencies 31 to the Court of Appeals and Rule 45 governing appeals by certiorari
to the Supreme Court. 32 The new rule aims to regiment or make the appeal period
uniform, to be counted from receipt of the order denying the motion for new trial, motion
for reconsideration (whether full or partial) or any final order or resolution.
We thus hold that petitioners seasonably filed their notice of appeal within the fresh
period of 15 days, counted from July 22, 1998 (the date of receipt of notice denying their
motion for reconsideration). This pronouncement is not inconsistent with Rule 41,
Section 3 of the Rules which states that the appeal shall be taken within 15 days from
notice of judgment or final order appealed from. The use of the disjunctive word "or"
signifies disassociation and independence of one thing from another. It should, as a rule,
be construed in the sense in which it ordinarily implies. 33 Hence, the use of "or" in the
above provision supposes that the notice of appeal may be filed within 15 days from the
notice of judgment or within 15 days from notice of the "final order," which we already
determined to refer to the July 1, 1998 order denying the motion for a new trial or
reconsideration.
Neither does this new rule run counter to the spirit of Section 39 of BP 129 which
shortened the appeal period from 30 days to 15 days to hasten the disposition of cases.
The original period of appeal (in this case March 3-18, 1998) remains and the
requirement for strict compliance still applies. The fresh period of 15 days becomes
significant only when a party opts to file a motion for new trial or motion for
reconsideration. In this manner, the trial court which rendered the assailed decision is
given another opportunity to review the case and, in the process, minimize and/or rectify
any error of judgment. While we aim to resolve cases with dispatch and to have
judgments of courts become final at some definite time, we likewise aspire to deliver
justice fairly. DAaIHT
In this case, the new period of 15 days eradicates the confusion as to when the 15-day
appeal period should be counted from receipt of notice of judgment (March 3, 1998)
or from receipt of notice of "final order" appealed from (July 22, 1998).
To recapitulate, a party litigant may either file his notice of appeal within 15 days from
receipt of the Regional Trial Court's decision or file it within 15 days from receipt of the
order (the "final order") denying his motion for new trial or motion for reconsideration.
Obviously, the new 15-day period may be availed of only if either motion is filed;
otherwise, the decision becomes final and executory after the lapse of the original appeal
period provided in Rule 41, Section 3.

Petitioners here filed their notice of appeal on July 27, 1998 or five days from receipt of
the order denying their motion for reconsideration on July 22, 1998. Hence, the notice of
appeal was well within the fresh appeal period of 15 days, as already discussed. 34
We deem it unnecessary to discuss the applicability of Denso (Philippines), Inc. v. IAC
35 since the Court of Appeals never even referred to it in its assailed decision.
WHEREFORE, the petition is hereby GRANTED and the assailed decision of the Court
of Appeals REVERSED and SET ASIDE. Accordingly, let the records of this case be
remanded to the Court of Appeals for further proceedings. THcEaS
No costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario
and Garcia, JJ., concur.

[G.R. No. L-45114. October 26, 1987.]

APOLONIO SUMBINGCO, petitioner, vs. COURT OF APPEALS, et al., respondents.
[G.R. No. L-45192. October 26, 1987.]
JEPTE DEMERIN, et al., petitioners, vs. COURT OF APPEALS, et al., respondents.
DECISION
NARVASA, J p:
Jepte Demerin, Rogelio Argel, Demetrio Jongco and Alfonso Demerin filed with the
Court of Agrarian Relations a complaint against Apolonio Sumbingco, seeking their
reinstatement as tenants on the latter's two (2) haciendas and the payment to them of
damages for their ouster therefrom. According to them, prior to the purchase by
Sumbingco of the haciendas in question from Ricardo Nolan, they were already tenants
of the latter, planting the areas occupied by them with rice; that even after Sumbingco
acquired the land they continued as tenants thereon by permission of Sumbingco's
administrator; that Sumbingco caused the planting of their landholdings to citrus little by
little, thus progressively depriving them of possession thereof until the time came when
their landholdings were completely planted to citrus and they were effectively divested of
any area to cultivate; that in view thereof, they asked Sumbingco to compensate them for
the loss of their tenancy rights but although the former promised to do so, he never did;
that instead, in 1964, Sumbingco told them to vacate their landholdings.
The Court of Agrarian Relations dismissed their complaint. It declined to give credence
to the evidence proferred by them to substantiate their claim of being Sumbingco's
tenants, declaring that evidence to be both implausible and tainted by material
inconsistencies. LLjur
On appeal, however, the Court of Appeals reversed the judgment of the Court of Agrarian
Relations. It ruled that in the light of the admission that Jepte Demerin and his coplaintiffs were tenants in at least one of the haciendas prior to the sale to Sumbingco, it
was difficult to believe the latter's protestation that he had never seen them; at the very
least, Sumbingco's overseer should have apprised him of their presence on the land;
hence, it was safe to assume that Demerin and his companions continued as tenants on
the land under the new owner. The Appellate Court accordingly ordered the payment to
Demerin, et al. of damages by Sumbingco but not their reinstatement on the ground that
the landholdings had already been completely planted to citrus.
Both Sumbingco and the Demerin group have taken an appeal by certiorari to this Court,
the former's being docketed as G.R. No. 45114 and the latter's, G.R. No. 45192.
It is axiomatic that appeals from the Court of Appeals are not a matter of right but of
sound judicial discretion on the part of this Court, and will be granted only when there
are special and important reasons therefor. 1 In other words, appeals from the Court of
Appeals are not entertained as a matter of routine; they may be rejected out of hand in the
exercise of this Court's sound judicial discretion. The prescribed mode of appeal is by
certiorari, 2 limited only to issues or questions of law which must be distinctly set forth
in the petition for review on certiorari. 3 The findings of fact of the Appellate Court are
conclusive even on this Court, subject only to a few well defined exceptions (none of
which is present in the instant case). 4 It is incumbent on the appellant to make out a
sufficiently strong demonstration of serious error on the part of the Court of Appeals, and
adduced special and important reasons to justify the exercise by this Court of its
discretionary appellate jurisdiction, 5 failing in which this Court will decline to wield its

invoked power of review and will dismiss the appeal on the ground that it is without
merit, or is prosecuted manifestly for delay, or the questions raised are too unsubstantial
to require consideration. 6
A thoroughgoing review of the record discloses that contrary to this Court's first
impression, which initially led it to give due course to both petitions in its case, there is
no special and important reason to justify this Court's exercise of its appellate
jurisdiction. The issues raised are principally factual, and such of those issues as may be
characterized as legal are not sufficiently weighty or substantial to warrant consideration
and review. LexLib
WHEREFORE, the petitions in G.R. No. 45114 and G.R. No. 45192 are DENIED, and
the decision of the Court of Appeals sought to be thereby reviewed is affirmed. This
decision is immediately executory, and no motion for extension of time to file a motion
for reconsideration will be entertained.
Teehankee, C.J., Cruz, * Paras and Gancayco, JJ., concur.

Davao Light & Power Co. Inc. v CA

(204 SCRA 343)
Facts:
Davao Light and Power Inc, Co. filed a complaint for recovery of sum of money and
damages against Queensland Hotel and Teodorico Adarna. The complaint contained
an ex parte application for a writ of preliminary attachment.
Judge Nartatez granted the writ and fixed the attachment bond at around P4Million.
The summons, copy of complaint, writ of attachment, copy of attachment bond were
served upon Queensland and Adarna. Pursuant to the writ, the Sheriff seized the
properties of the latter.
Queensland and Adarna filed a motion to discharge the attachment for lack of
jurisdiction to issue the same because at the time the order of attachment was
promulgated (May 3, 1989) and the attachment writ issued (May 11,1989), the Trial
Court had not yet acquired jurisdiction over cause and person of defendants.
Trial Court denied the motion to discharge.
CA annulled the Trial Courts Order. Davao seeks to reverse CAs order.
Issue:
Whether or not preliminary attachment may issue ex parte against a defendant
before acquiring jurisdiction over his person.
Held:
Yes. Rule 57 speaks of the grant of the remedy at the commencement of the action
or at any time thereafter What the rule is saying is that after an action is properly
commenced (by filing of the complaint and payment of all requisite docket and other
fees), the plaintiff may apply for and obtain a writ of preliminary attachment. This he
may do so, before or after, the summons to the defendant.
The CA decision is reversed and the writ of attachment issued by Judge Nartatez is
reinstated.
**
Preliminary Attachment provisional remedy in virtue of which a plaintiff or other
party may, at the commencement of the action or at any time thereafter, have the
property of the adverse party taken into custody of court as security for satisfaction
of judgment to be recovered.
Nature of Attachment: a remedy which is purely statutory in respect of which the law
requires a strict of construction of the provisions granting it. No principle, whether
statutory or through jurisprudence, prohibits its issuance by any court before the
acquisition of jurisdiction over the person.

[G.R. No. 93262. November 29, 1991.]

DAVAO LIGHT & POWER CO., INC., petitioner, vs. THE COURT OF APPEALS,
QUEENSLAND HOTEL or MOTEL or QUEENSLAND TOURIST INN, and
TEODORICO ADARNA, respondents.
Breva & Breva Law Offices for petitioner.
Goc-Ong & Associates for private respondents.
SYLLABUS
1.
REMEDIAL LAW; ACTIONS; JURISDICTION; HOW ACQUIRED. An
action or proceeding is commenced by the filing of the complaint or other initiatory
pleading. By that act, the jurisdiction of the court over the subject matter or nature of the
action or proceeding is invoked or called into activity; and it is thus that the court
acquires jurisdiction over said subject matter or nature of the action. And it is by that selfsame act of the plaintiff (or petitioner) of filing the complaint (or other appropriate
pleading) by which he signifies his submission to the court's power and authority
that jurisdiction is acquired by the court over his person. On the other hand, jurisdiction
over the person of the defendant is obtained, as above stated, by the service of summons
or other coercive process upon him or by his voluntary submission to the authority of the
court.
2.
ID.; PROVISIONAL REMEDIES; PRELIMINARY ATTACHMENT;
DEFINED. A preliminary attachment may be defined, paraphrasing the Rules of
Court, as the provisional remedy in virtue of which a plaintiff or other proper party may,
at the commencement of the action or at any time thereafter, have the property of the
adverse party taken into the custody of the court as security for the satisfaction of any
judgment that may be recovered. It is a remedy which is purely statutory in respect of
which the law requires a strict construction of the provisions granting it. Withal no
principle, statutory or jurisprudential, prohibits its issuance by any court before
acquisition of jurisdiction over the person of the defendant.
3.
ID.; ID.; ID.; PHRASE "AT THE COMMENCEMENT OF THE ACTION,"
CONSTRUED. Rule 57 in fact speaks of the grant of the remedy "at the
commencement of the action or at any time thereafter." The phrase, "at the
commencement of the action," obviously refers to the date of the filing of the complaint
which, as above pointed out, is the date that marks "the commencement of the action;"
and the reference plainly is to a time before summons is served on the defendant, or even
before summons issues.
4.
ID.; ID.; ID.; WRIT MAY BE ISSUED EX-PARTE. What the rule is saying
quite clearly is that after an action is properly commenced by the filing of the
complaint and the payment of all requisite docket and other fees the plaintiff may
apply for and obtain a writ of preliminary attachment upon fulfillment of the pertinent
requisites laid down by law, and that he may do so at any time, either before or after
service of summons on the defendant. And this indeed, has been the immemorial practice
sanctioned by the courts: for the plaintiff or other proper party to incorporate the
application for attachment in the complaint or other appropriate pleading (counterclaim,
cross-claim, third-party claim) and for the Trial Court to issue the writ ex-parte at the
commencement of the action if it finds the application otherwise sufficient in form and
substance.

5.
ID.; ID.; ID.; HEARING ON APPLICATION THEREON, GENERALLY NOT
NECESSARY. In Toledo v. Burgos this Court ruled that a hearing on a motion or
application for preliminary attachment is not generally necessary unless otherwise
directed by the Trial Court in its discretion. And in Filinvest Credit Corporation v.
Relova, the Court declared that "(n)othing in the Rules of Court makes notice and hearing
indispensable and mandatory requisites for the issuance of a writ of attachment."
6.
ID.; ID.; ID.; ID.; BASIS OF GRANT. The only pre-requisite is that the Court
be satisfied, upon consideration of "the affidavit of the applicant or of some other person
who personally knows the facts, that a sufficient cause of action exists, that the case is
one of those mentioned in Section 1 . . . (Rule 57), that there is no other sufficient
security for the claim sought to be enforced by the action, and that the amount due to the
applicant, or the value of the property the possession of which he is entitled to recover, is
as much as the sum for which the order (of attachment) is granted above all legal
counterclaims." If the court be so satisfied, the "order of attachment shall be granted,"
and the writ shall issue upon the applicant's posting of a bond executed to the adverse
party in an amount to be fixed by the judge, not exceeding the plaintiff's claim,
conditioned that the latter will pay all the costs which may be adjudged to the adverse
party and all damages which he may sustain by reason of the attachment, if the court shall
finally adjudge that the applicant was not entitled thereto."
7.
ID.; ID.; ID.; ID.; REASON. In Mindanao Savings & Loan Association, Inc. v.
Court of Appeals, decided on April 18, 1989, decided on April 18, 1989, this Court had
occasion to emphasize the postulate that no hearing is required on an application for
preliminary attachment, with notice to the defendant, for the reason that this "would
defeat the objective of the remedy . . . (since the) time which such a hearing would take,
could be enough to enable the defendant to abscond or dispose of his property before a
writ of attachment issues." As observed by a former member of this Court, such a
procedure would warn absconding debtors-defendants of the commencement of the suit
against them and the probable seizure of their properties, and thus give them the
advantage of time to hide their assets, leaving the creditor-plaintiff holding the proverbial
empty bag; it would place the creditor-applicant in danger of losing any security for a
favorable judgment and thus give him only an illusory victory.
8.
ID.; ID.; ID.; HOW DISCHARGED. There are two (2) ways of discharging an
attachment: first, by the posting of a counterbond; and second, by a showing of its
improper or irregular issuance.
9.
ID.; ID.; ID.; ID.; BY COUNTERBOND. The submission of a counterbond is
an efficacious mode of lifting an attachment already enforced against property, or even of
preventing its enforcement altogether. When property has already been seized under
attachment, the attachment may be discharged upon counterbond in accordance with
Section 12 of Rule 57. But even before actual levy on property, seizure under attachment
may be prevented also upon counterbond. The defendant need not wait until his property
is seized before seeking the discharge of the attachment by a counterbond. This is made
possible by Section 5 of Rule 57.
10.
ID.; ID.; ID.; ID.; BY MOTION TO DISCHARGE ON GROUND THAT THE
SAME WAS IRREGULARLY OR IMPROPERLY ISSUED. Aside from the filing of
a counterbond, a preliminary attachment may also be lifted or discharged on the ground
that it has been irregularly or improperly issued, in accordance with Section 13 of Rule

57. Like the first, this second mode of lifting an attachment may be resorted to even
before any property has beer levied on. Indeed, it may be availed of after property has
been released from a levy on attachment, as is made clear by said Section 13.
11.
ID.; ID.; ID.; ID.; FIRST MODE SPEEDIER THAN THE SECOND. The
filing of a counterbond is a speedier way of discharging the attachment writ maliciously
sought out by the attaching creditor instead of the other way, which, in most instances . . .
would require presentation of evidence in a fullblown trial on the merits, and cannot
easily be settled in a pending incident of the case.
12.
ID.; ID.; ID.; MAY NOT BE DISSOLVED BY A SHOWING OF ITS
IRREGULAR OR IMPROPER ISSUANCE. (a) When an attachment may not be
dissolved by a showing of its irregular or improper issuance:
". . . (W)hen the preliminary attachment is issued upon a ground which is at the same
time the applicant's cause of action e.g., 'an action for money or property embezzled or
fraudulently misapplied or converted to his own use by a public officer, or an officer of a
corporation, or an attorney, factor, broker, agent, or clerk, in the course of his
employment as such, or by any other person in a fiduciary capacity, or for a willful
violation of duty.' (Sec. 1 [b], Rule 57), or 'an action against a party who has been guilty
of fraud in contracting the debt or incurring the obligation upon which the action is
brought' (Sec. 1 [d], Rule 57), the defendant is not allowed to file a motion to dissolve the
attachment under Section 13 of Rule 57 by offering to show the falsity of the factual
averments in the plaintiff's application and affidavits on which the writ was based and
consequently that the writ based thereon had been improperly or irregularly issued (SEE
Benitez v. I.A.C., 154 SCRA 41) the reason being that the hearing on such a motion
for dissolution of the writ would be tantamount to a trial of the merits of the action. In
other words, the merits of the action would be ventilated at a mere hearing of a motion,
instead of at the regular trial. Therefore, when the writ of attachment is of this nature, the
only way it can be dissolved is by a counterbond (G.B. Inc. v. Sanchez, 98 Phil. 886)."
13.
ID.; ID.; ID.; DISSOLUTION OF PRELIMINARY ATTACHMENT DOES
NOT DISCHARGE SURETIES ON BOND; REASON. ". . . The dissolution of the
preliminary attachment upon security given, or a showing of its irregular or improper
issuance, does not of course operate to discharge the sureties on plaintiff's own
attachment bond. The reason is simple. That bond is 'executed to the adverse party, . . .
conditioned that the . . . (applicant) will pay all the costs which may be adjudged to the
adverse party and all damages which he may sustain by reason of the attachment, if the
court shall finally adjudge that the applicant was not entitled thereto' (SEC. 4, Rule 57).
Hence, until that determination is made, as to the applicant's entitlement to the
attachment, his bond must stand and cannot be withdrawn."
DECISION
NARVASA, J p:
Subject of the appellate proceedings at bar is the decision of the Court of Appeals in CAG.R. Sp. No. 1967 entitled "Queensland Hotel, Inc., etc. and Adarna v. Davao Light &
Power Co., Inc., promulgated on May 4, 1990. 1 That decision nullified and set aside the
writ of preliminary attachment issued by the Regional Trial Court of Davao City 2 in
Civil Case No. 19513-89 on application of the plaintiff (Davao Light & Power Co.),
before the service of summons on the defendants (herein respondents Queensland Co.,
Inc. and Adarna).

Following is the chronology of the undisputed material facts culled from the Appellate
Tribunal's judgment of May 4, 1990.
1.
On May 2, 1989 Davao Light & Power Co., Inc. (hereafter, simply Davao Light)
filed a verified complaint for recovery of a sum of money and damages against
Queensland Hotel, etc. and Teodorico Adarna (docketed as Civil Case No. 19613-89).
The complaint contained an ex parte application for a writ of preliminary attachment.
2.
On May 3, 1989 Judge Nartatez, to whose branch the case was assigned by raffle,
issued an Order granting the ex parte application and fixing the attachment bond at
P4,600,513.37.
3.
On May 11, 1989 the attachment bond having been submitted by Davao Light, the
writ of attachment issued.
4.
On May 12, 1989, the summons and a copy of the complaint, as well as the writ
of attachment and a copy of the attachment bond, were served on defendants Queensland
and Adarna; and pursuant to the writ, the sheriff seized properties belonging to the latter.
LibLex
5.
On September 6, 1989, defendants Queensland and Adarna filed a motion to
discharge the attachment for lack of jurisdiction to issue the same because at the time the
order of attachment was promulgated (May 3, 1989) and the attachment writ issued (May
11, 1989), the Trial Court had not yet acquired jurisdiction over the cause and over the
persons of the defendants.
6.
On September 14, 1989, Davao Light filed an opposition to the motion to
discharge attachment.
7.
On September 19, 1989, the Trial Court issued an Order denying the motion to
discharge.
This Order of September 19, 1989 was successfully challenged by Queensland and
Adarna in a special civil action of certiorari instituted by them in the Court of Appeals.
The Order was, as aforestated, annulled by the Court of Appeals in its Decision of May 4,
1990. The Appellate Court's decision closed with the following disposition:
". . . the Orders dated May 3, 1989 granting the issuance of a writ of preliminary
attachment, dated September 19, 1989 denying the motion to discharge attachment; dated
November 7, 1989 denying petitioner's motion for reconsideration; as well as all other
orders emanating therefrom, specially the Writ of Attachment dated May 11, 1989 and
Notice of Levy on Preliminary Attachment dated May 11, 1989, are hereby declared null
and void and the attachment hereby ordered DISCHARGED."
The Appellate Tribunal declared that
". . .While it is true that a prayer for the issuance of a writ of preliminary attachment may
be included in the complaint, as is usually done, it is likewise true that the Court does not
acquire jurisdiction over the person of the defendant until he in duly summoned or
voluntarily appears, and adding the phrase that it be issued 'ex parte' does not confer said
jurisdiction before actual summons had been made, nor retroact jurisdiction upon
summons being made. . . ."
It went on to say, citing Sievert v. Court of Appeals, 3 that "in a proceedings in
attachment," the "critical time which must be identified is . . . when the trial court
acquires authority under law to act coercively against the defendant or his property . . .;"
and that " critical time is the time of the vesting of jurisdiction in the court over the
person of the defendant in the main case."

Reversal of this Decision of the Court of Appeals of May 4, 1990 is what Davao Light
seeks in the present appellate proceedings. cdrep
The question is whether or not a writ of preliminary attachment may issue ex parte
against a defendant before acquisition of jurisdiction of the latter's person by service of
summons or his voluntary submission to the Court's authority.
The Court rules that the question must be answered in the affirmative and that
consequently, the petition for review will have to be granted.
It is incorrect to theorize that after an action or proceeding has been commenced and
jurisdiction over the person of the plaintiff has been vested in the court, but before the
acquisition of jurisdiction over the person of the defendant (either by service of summons
or his voluntary submission to the court's authority), nothing can be validly done by the
plaintiff or the court. It is wrong to assume that the validity of acts done during this
period should be dependent on, or held in suspension until, the actual obtention of
jurisdiction over the defendant's person. The obtention by the court of jurisdiction over
the person of the defendant is one thing; quite another is the acquisition of jurisdiction
over the person of the plaintiff or over the subject-matter or nature of the action, or the
res or object thereof.
An action or proceeding is commenced by the filing of the complaint or other initiatory
pleading. 4 By that act, the jurisdiction of the court over the subject matter or nature of
the action or proceeding is invoked or called into activity; 5 and it is thus that the court
acquires jurisdiction over said subject matter or nature of the action. 6 And it is by that
self-same act of the plaintiff (or petitioner) of filing the complaint (or other appropriate
pleading) by which he signifies his submission to the court's power and authority
that jurisdiction is acquired by the court over his person. 7 On the other hand, jurisdiction
over the person of the defendant is obtained, as above stated, by the service of summons
or other coercive process upon him or by his voluntary submission to the authority of the
court. 8
The events that follow the filing of the complaint as a matter of routine are well known.
After the complaint is filed, summons issues to the defendant, the summons is then
transmitted to the sheriff, and finally, service of the summons is effected on the defendant
in any of the ways authorized by the Rules of Court. There is thus ordinarily some
appreciable interval of time between the day of the filing of the complaint and the day of
service of summons of the defendant. During this period, different acts may be done by
the plaintiff or by the Court, which are of unquestionable validity and propriety. Among
these, for example, are the appointment of a guardian ad litem, 9 the grant of authority to
the plaintiff to prosecute the suit as a pauper litigant, 10 the amendment of the complaint
by the plaintiff as a matter of right without leave of court, 11 authorization by the Court
of service of summons by publication, 12 the dismissal of the action by the plaintiff on
mere notice. 13
This, too, is true with regard to the provisional remedies of preliminary attachment,
preliminary injunction, receivership or replevin. 14 They may be validly and properly
applied for and granted even before the defendant is summoned or is heard from. LibLex
A preliminary attachment may be defined, paraphrasing the Rules of Court, as the
provisional remedy in virtue of which a plaintiff or other proper party may, at the
commencement of the action or at any time thereafter, have the property of the adverse
party taken into the custody of the court as security for the satisfaction of any judgment

that may be recovered. 15 It is a remedy which is purely statutory in respect of which the
law requires a strict construction of the provisions granting it. 16 Withal no principle,
statutory or jurisprudential, prohibits its issuance by any court before acquisition of
jurisdiction over the person of the defendant.
Rule 57 in fact speaks of the grant of the remedy "at the commencement of the action or
at any time thereafter." 17 The phrase, "at the commencement of the action," obviously
refers to the date of the filing of the complaint which, as above pointed out, is the date
that marks "the commencement of the action;" 18 and the reference plainly is to a time
before summons is served on the defendant, or even before summons issues. What the
rule is saying quite clearly is that after an action is properly commenced by the filing
of the complaint and the payment of all requisite docket and other fees the plaintiff
may apply for and obtain a writ of preliminary attachment upon fulfillment of the
pertinent requisites laid down by law, and that he may do so at any time, either before or
after service of summons on the defendant. And this indeed, has been the immemorial
practice sanctioned by the courts: for the plaintiff or other proper party to incorporate the
application for attachment in the complaint or other appropriate pleading (counterclaim,
cross-claim, third-party claim) and for the Trial Court to issue the writ ex-parte at the
commencement of the action if it finds the application otherwise sufficient in form and
substance.
In Toledo v. Burgos, 19 this Court ruled that a hearing on a motion or application for
preliminary attachment is not generally necessary unless otherwise directed by the Trial
Court in its discretion. 20 And in Filinvest Credit Corporation v. Relova, 21 the Court
declared that "(n)othing in the Rules of Court makes notice and hearing indispensable and
mandatory requisites for the issuance of a writ of attachment." The only pre-requisite is
that the Court be satisfied, upon consideration of "the affidavit of the applicant or of
some other person who personally knows the facts, that a sufficient cause of action exists,
that the case is one of those mentioned in Section 1 . . . (Rule 57), that there is no other
sufficient security for the claim sought to be enforced by the action, and that the amount
due to the applicant, or the value of the property the possession of which he is entitled to
recover, is as much as the sum for which the order (of attachment) is granted above all
legal counterclaims." 22 If the court be so satisfied, the "order of attachment shall be
granted," 23 and the writ shall issue upon the applicant's posting of a bond executed to
the adverse party in an amount to be fixed by the judge, not exceeding the plaintiff's
claim, conditioned that the latter will pay all the costs which may be adjudged to the
adverse party and all damages which he may sustain by reason of the attachment, if the
court shall finally adjudge that the applicant was not entitled thereto." 24
In Mindanao Savings & Loan Association, Inc. v. Court of Appeals, decided on April 18,
1989, 25 this Court had occasion to emphasize the postulate that no hearing is required on
an application for preliminary attachment, with notice to the defendant, for the reason
that this "would defeat the objective of the remedy . . . (since the) time which such a
hearing would take, could be enough to enable the defendant to abscond or dispose of his
property before a writ of attachment issues." As observed by a former member of this
Court, 26 such a procedure would warn absconding debtors-defendants of the
commencement of the suit against them and the probable seizure of their properties, and
thus give them the advantage of time to hide their assets, leaving the creditor-plaintiff
holding the proverbial empty bag; it would place the creditor-applicant in danger of

losing any security for a favorable judgment and thus give him only an illusory victory.
Cdpr
Withal, ample modes of recourse against a preliminary attachment are secured by law to
the defendant. The relative ease with which a preliminary attachment may be obtained is
matched and paralleled by the relative facility with which the attachment may
legitimately be prevented or frustrated. These modes of recourse against preliminary
attachments granted by Rule 57 were discussed at some length by the separate opinion in
Mindanao Savings & Loans Asso. Inc. v. C.A., supra.
That separate opinion stressed that there are two (2) ways of discharging an attachment:
first, by the posting of a counterbond; and second, by a showing of its improper or
irregular issuance.
1.0.
The submission of a counterbond is an efficacious mode of lifting an attachment
already enforced against property, or even of preventing its enforcement altogether.
1.1.
When property has already been seized under attachment, the attachment may be
discharged upon counterbond in accordance with Section 12 of Rule 57.
'SECTION 12.Discharge of attachment upon giving counterbond. At any time after an
order of attachment has been granted, the party whose property has been attached or the
person appearing in his behalf, may, upon reasonable notice to the applicant, apply to the
judge who granted the order, or to the judge of the court in which the action is pending,
for an order discharging the attachment wholly or in part on the security given . . . in an
amount equal to the value of the property attached as determined by the judge to secure
the payment of any judgment that the attaching creditor may recover in the action . . .'
1.2.
But even before actual levy on property, seizure under attachment may be
prevented also upon counterbond. The defendant need not wait until his property is seized
before seeking the discharge of the attachment by a counterbond. This is made possible
by Section 5 of Rule 57.
'SECTION 5. Manner of attaching property. The officer executing the order shall
without delay attach, to await judgment and execution in the action, all the properties of
the party against whom the order is issued in the province, not exempt from execution, or
so much thereof as may be sufficient to satisfy the applicant's demand, unless the former
makes a deposit with the clerk or judge of the court from which the order issued, or gives
a counter-bond executed to the applicant, in an amount sufficient to satisfy such demand
besides costs, or in an amount equal to the value of the property which is about to be
attached, to secure payment to the applicant of any judgment which he may recover in the
action. . . .' (Emphasis supplied).
2.0.
Aside from the filing of a counterbond, a preliminary attachment may also be
lifted or discharged on the ground that it has been irregularly or improperly issued, in
accordance with Section 13 of Rule 57. Like the first, this second mode of lifting ar
attachment may be resorted to even before any property has beer levied on. Indeed, it
may be availed of after property has been released from a levy on attachment, as is made
clear by said Section 13, viz.: cdphil
'SECTION 13.Discharge of attachment for improper or irregular issuance. The party
whose property has been attached may also, at any time either BEFORE or AFTER the
release of the attached property, or before any attachment shall have been actually levied,
upon reasonable notice to the attaching creditor, apply to the judge who granted the order,
or to the judge of the court in which the action is pending, for an order to discharge the

attachment on the ground that the same was improperly or irregularly issued. If the
motion be made on affidavits on the part of the party whose property has been attached,
but not otherwise, the attaching creditor may oppose the same by counter-affidavits or
other evidence in addition to that on which the attachment was made. . . .' (Emphasis
supplied).
This is so because "(a)s pointed out in Calderon v. I.A.C., 155 SCRA 531 (1987), 'The
attachment debtor cannot be deemed to have waived any defect in the issuance of the
attachment writ by simply availing himself of one way of discharging the attachment
writ, instead of the other. Moreover, the filing of a counterbond is a speedier way of
discharging the attachment writ maliciously sought out by the attaching creditor instead
of the other way, which, in most instances . . . would require presentation of evidence in a
fullblown trial on the merits, and cannot easily be settled in a pending incident of the
case.'" 27
It may not be amiss to here reiterate other related principles dealt with in Mindanao
Savings & Loans Asso. Inc. v. C.A., supra., 28 to wit:
(a)
When an attachment may not be dissolved by a showing of its irregular or
improper issuance:
". . . (W)hen the preliminary attachment is issued upon a ground which is at the same
time the applicant's cause of action e.g., 'an action for money or property embezzled or
fraudulently misapplied or converted to his own use by a public officer, or an officer of a
corporation, or an attorney, factor, broker, agent, or clerk, in the course of his
employment as such, or by any other person in a fiduciary capacity, or for a willful
violation of duty.' (Sec. 1 [b], Rule 57), or 'an action against a party who has been guilty
of fraud in contracting the debt or incurring the obligation upon which the action is
brought' (Sec. 1 [d], Rule 57), the defendant is not allowed to file a motion to dissolve the
attachment under Section 13 of Rule 57 by offering to show the falsity of the factual
averments in the plaintiffs application and affidavits on which the writ was based and
consequently that the writ based thereon had been improperly or irregularly issued (SEE
Benitez v. I.A.C., 154 SCRA 41) the reason being that the hearing on such a motion
for dissolution of the writ would be tantamount to a trial of the merits of the action. In
other words, the merits of the action would be ventilated at a mere hearing of a motion,
instead of at the regular trial. Therefore, when the writ of attachment is of this nature, the
only way it can be dissolved is by a counterbond (G.B. Inc. v. Sanchez, 98 Phil. 886)."
(b)
Effect of the dissolution of a preliminary attachment on the plaintiff's attachment
bond:
". . . The dissolution of the preliminary attachment upon security given, or a showing of
its irregular or improper issuance, does not of course operate to discharge the sureties on
plaintiff's own attachment bond. The reason is simple. That bond is 'executed to the
adverse party, . . . conditioned that the . . . (applicant) will pay all the costs which may be
adjudged to the adverse party and all damages which he may sustain by reason of the
attachment, if the court shall finally adjudge that the applicant was not entitled thereto'
(SEC. 4, Rule 57). Hence, until that determination is made, as to the applicant's
entitlement to the attachment, his bond must stand and cannot be withdrawn." LexLib
With respect to the other provisional remedies, i.e., preliminary injunction (Rule 58),
receivership (Rule 59), replevin or delivery of personal property (Rule 60), the rule is the
same: they may also issue ex parte. 29

It goes without saying that whatever be the acts done by the Court prior to the acquisition
of jurisdiction over the person of the defendant, as above indicated issuance of
summons, order of attachment and writ of attachment (and/or appointment of guardian ad
litem, or grant of authority to the plaintiff to prosecute the suit as a pauper litigant, or
amendment of the complaint by the plaintiff as a matter of right without leave of court 30
and however valid and proper they might otherwise be, these do not and cannot bind
and affect the defendant until and unless jurisdiction over his person is eventually
obtained by the court, either by service on him of summons or other coercive process or
his voluntary submission to the court's authority. Hence, when the sheriff or other proper
officer commences implementation of the writ of attachment, it is essential that he serve
on the defendant not only a copy of the applicant's affidavit and attachment bond, and of
the order of attachment, as explicitly required by Section 5 of Rule 57, but also the
summons addressed to said defendant as well as a copy of the complaint and order for
appointment of guardian ad litem, if any, as also explicitly directed by Section 3, Rule 14
of the Rules of Court. Service of all such documents is indispensable not only for the
acquisition of jurisdiction over the person of the defendant, but also upon considerations
of fairness, to apprise the defendant of the complaint against him, of the issuance of a
writ of preliminary attachment and the grounds therefor and thus accord him the
opportunity to prevent attachment of his property by the posting of a counterbond in an
amount equal to the plaintiff's claim in the complaint pursuant to Section 5 (or Section
12), Rule 57, or dissolving it by causing dismissal of the complaint itself on any of the
grounds set forth in Rule 16, or demonstrating the insufficiency of the applicant's
affidavit or bond in accordance with Section 13, Rule 57.
It was on account of the failure to comply with this fundamental requirement of service
of summons and the other documents above indicated that writs of attachment issued by
the Trial Court ex parte were struck down by this Court's Third Division in two (2) cases,
namely: Sievert v. Court of Appeals, 31 and BAC Manufacturing and Sales Corporation
v. Court of Appeals, et al. 32 In contrast to the case at bar where the summons and a
copy of the complaint, as well as the order and writ of attachment and the attachment
bond were served on the defendant in Sievert, levy on attachment was attempted
notwithstanding that only the petition for issuance of the writ of preliminary attachment
was served on the defendant, without any prior or accompanying summons and copy of
the complaint; and in BAC Manufacturing and Sales Corporation, neither the summons
nor the order granting the preliminary attachment or the writ of attachment itself was
served on the defendant "before or at the time the levy was made."
For the guidance of all concerned, the Court reiterates and reaffirms the proposition that
writs of attachment may properly issue ex parte provided that the Court is satisfied that
the relevant requisites therefor have been fulfilled by the applicant, although it may, in its
discretion, require prior hearing on the application with notice to the defendant; but that
levy on property pursuant to the writ thus issued may not be validly effected unless
preceded, or contemporaneously accompanied by service on the defendant of summons, a
copy of the complaint (and of the appointment of guardian ad litem, if any), the
application for attachment (if not incorporated in but submitted separately from the
complaint), the order of attachment, and the plaintiff's attachment bond.
WHEREFORE, the petition is GRANTED; the challenged decision of the Court of
Appeals is hereby REVERSED, and the order and writ of attachment issued by Hon.

Milagros C. Nartatez, Presiding Judge of Branch 8, Regional Trial Court of Davao City
in Civil Case No. 19513-89 against Queensland Hotel or Motel or Queensland Tourist
Inn and Teodorico Adarna are hereby REINSTATED. Costs against private respondents.
SO ORDERED.
Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Grio-Aquino,
Medialdea, Regalado and Romero, JJ., concur.
Fernan, C.J., is on leave.
Davide, Jr., J., took no part; one of the parties was his client before.