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.
ESCOLIN, J.: 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, vicemayor 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 wherefore 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." 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 warrants 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 warrants, the resolution would have been so worded and the case would not have been remanded to the COMELEC which has no jurisdiction, as corrective pointed out by petitioners, over such protest or quo warranty 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 warrants, 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 or, 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 sari resolution, it is now the law of the case as to the parties herein that PDC 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 Ms evidence, petitioners filed their respective Motions to Dismiss/Demurer to Evidence, which were reasonably 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: RESPONDENTS BY COUNSEL individually filed demurers to the evidence, to which the petitioner did not lose time to oppose. lt 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 dismiss. Petitioner disagreed, arguing otherwise. The demurers 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 Singco vs. Costobolo, No. L-22506, Feb. 28, 1982] [Annex "L", Rollo, p. 89]

Petitioners' motions for reconsideration of the above order were likewise derived. 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 designed for the division by presiding commissioner Luis L. Lardizabal [Annex "T", Rollo. p. 126]. From these orders, petitioners come 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' DEMURER TO EVIDENCE BY WAY OF A JUDGMENT WHEREIN IT SHOULD STATE THE FACTS AND THE LAW ON WHICH THE IS 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 Demurer 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 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. 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). 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, CJ., 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 mad 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 all an appropriate quo warrants 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 "Guaranteed, 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 warrants 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, old 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 adore 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 when 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 warrants proceeding. Where, however, such constitutional provision had been seasonably invoked prior to that date with the Commission on Election is having acted on it and the matter then elevated to this Court before such election, the issue thus presented should 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 "In 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 stage, 10 months after the holding of the elections.), 14 in the 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. No. L-33695 May 15, 1989 MANUFACTURER'S BANK & TRUST CO., petitioner, vs. DIVERSIFIED INDUSTRIES, INC., and ALFONSO TAN, respondents Calapatia, Gaviola & Associates for petitioner. Antonio N. Lucero, Jr. for respondents. NARVASA, J.: The propriety of a judgment on the pleadings is the principal issue in the case at bar. The rule is set out in Rule 19 of the Rules of Court. SECTION 1. Judgment on the pleadings. Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading, the court may, on motion of that party, direct judgment on such pleading. .. Manufacturers Bank & Trust Co. filed a complaint with the Court of First Instance of Manila for the recovery of a sum of money against Diversified Industries, Inc. and Alfonso Tan. 1 The complaint alleged. 2 2. That on December 17, 1963 the defendants were granted a loan in the form of an agreement for credit in current account in the sum of ONE HUNDRED TWENTY-FIVE THOUSAND PESOS (P125,000.00) with interest at the rate of 10% per annum computed upon average daily balances, a copy of the xx Agreement for Credit in Current Account .. (being attached) as Annex "A" .. 3. That the loan became due and pay able on February 26, 1965, but the defendants failed and refused to liquidate their obligations, leaving an outstanding balance of P100,119.21 as of June 25, 1965; 4. That by reason of the unjust refusal on the part of the defendants to satisfy their just and valid obligation upon maturity, the plaintiff was compelled to engage the services of counsel for a fee equivalent to 10% of the total sum due which the defendants have expressly agreed to pay in accordance with the terms of the agreement, Annex "A". WHEREFORE, it is most respectfully prayed .. that judgment be rendered in favor of the plaintiff ordering the defendant to pay: a) the sum of P100,119.27 plus interest thereon from June 26, 1965 until complete payment is made; b) the sum equivalent to 10% of the total sum due as attorney's fees; c) the costs of suit. PLAINTIFF prays for such other remedy as this Honorable Court may deem just and equitable under the premises.

In their answer, 3 the defendants admitted the averments of paragraph 2 of the complaint (and paragraph 1 thereof relative to the parties' personal circumstances); but they professed to have no "sufficient knowledge or information to form a belief as to the truth or falsity of the allegations contained in paragraphs 3 and 4 and, therefore, .. (denied) the same." Manufacturers Bank moved for judgment on the pleadings. 4 It adverted to the defendants' admissions of the parties' personal circumstances and "the fact that the defendants were granted a loan in the form of an Agreement for Credit in Current Account in the sum of P125,000.00 with interest at the rate of 10% per annum computed upon average daily balances, a copy of which agreement has been attached as Annex A of the complaint." It also branded as contrived and inefficacious the defendants' profession of lack of knowledge of "the fact that the loan was due and payable on February 26, 1965 and that the same has been unliquidated as of the time that the complaint was filed," as well as the fact "of attorney's fees equivalent to 10% of the total sum due since 1) the Agreement for Credit in Current Account which the defendants had expressly admitted clearly stated that the loan would automatically be due and payable on February 26, 1965 and that attorney's fees would be payable at the rate of 10% of amount due, and hence, it was not credible for them to claim to have no knowledge of the transactions in question, including the drawing they had made in virtue of the agreement; and 2) by letter dated October 18, 1966, written to Manufacturers Bank by defendant Alfonso Tan, as President of Diversified Industries (copy attached to the motion), the latter had requested that they be allowed to pay the obligation by installments at the rate of P20,000.00 every six (6) months until the same was paid in full. The defendants, Diversified Industries and Tan, filed an opposition to the bank's motion for judgment on the pleadings. 5 They alleged that neither the amounts drawn against the overdraft account nor the current balance due from them, were within the knowledge either of Alfonso Tan because he was a mere "guarantor" or even of Diversified Industries because its account officer had long since resigned, and moreover, they could not be expected to know the attorney's fees that Manufacturers Bank had undertaken to pay to its attorney. They also theorized that since there was no allegation that they had in fact made drawings against the overdraft account, no obligation to pay a sum of money had been pleaded and therefore, the complaint failed to state a cause of action. On the same date the defendants filed a motion for leave to amend their answer, and the amended answer itself. 6 Their motion alleged that their original pleading had failed to embody their true plea respecting every material allegation of the complaint and had failed to set forth their affirmative defenses. Their amended answer 1) again admitted the execution of the Agreement for Credit in Current Account but stressed that (a) at time of execution and delivery of the agreement, the bank had not disbursed a single centavo, and (b) the agreement failed to reflect the true intent

of the parties which was that Tan, as "guarantor" of Diversified Industries, was merely an 94 accommodation party; 2) denied (a) the claim that defendants' obligation had become due on February 26, 1965 as expressly stipulated because the bank had extended the term of payment at said defendants' behest; (b) having knowledge of the veracity of the claim that their outstanding balance was P100,119.21 as of June 25, 1961; and (c) having knowledge of Manufacturers Bank's engagement of counsel for a fee of 10% of the total amount due; and 3) set up the following "affirmative defenses:" (a) Tan was meant to be only a guarantor of Diversified Industries, with the benefit of excursion and since this was not expressed in the agreement, the agreement failed to express the parties' real intention; (b) the term of the agreement had been renewed without Tan's consent and therefore, the guaranty had been extinguished; (c) there had been no demand for payment before suit was instituted; (d) alternatively, Tan's hability, if not that of a guarantor, was solidary only as regards payment of interest and merely joint as regards payment of the principal; and (e) the complaint fails to state a cause of action. The Court denied the defendants' motion for leave to amend their answer and rendered judgment on the pleadings. 7 It opined that the original answer failed to tender any issue, the defendants' asserted lack of knowledge or information regarding matters principally and necessarily within their knowledge could not be considered a specific denial. It disposed of the case as follows: WHEREFORE, judgment is hereby rendered ordering the defendants, Diversified Industries, Inc. and Alfonso Tan to pay the plaintiff the sum of One Hundred Thousand One Hundred Nineteen Pesos and Twenty Seven Centavos (P100,119.27), with interest thereon at the legal rate, from 26 June 1965 until fully paid, plus the sum of 110% on the amount due as and for attorney's fees. Costs against defendants. From this judgment appeal was taken to this Court on questions of law by the defendants as well as the plaintiff, Manufacturers Bank. Manufacturers Bank faults the Trial Court for (1) not specifying the defendants' liability to it to be joint and several; and (2) requiring payment by defendants of interest only at the legal rate instead of that stipulated in their agreement. On the other hand, Diversified Industries and Alfonso Tan ascribe the following errors to the Court a quo: (1) refusing to admit their amended answer; (2) not dismissing the complaint for failure to state a cause of action; and (3) rendering judgment on the pleadings. Of no little significance is the fact that the motion to amend the answer was presented only after two (2) years had lapsed from the date of its filing, and only after the plaintiff had drawn attention to its patent and grave imperfections and moved for judgment on the pleadings. Equally noteworthy is that defendants never challenged the authenticity of their letter to the bank dated October 18, 1966,

advising that they had made, thru an Atty. Colayco, payment on their account and requesting that they be allowed to pay their obligation by installments at the rate of P20,000.00 every six (6) months. 8 These facts, considered conjointly with the admissions expressly made in the pleadings and those reasonably inferable therefrom, dictate a verdict in favor of the plaintiff bank. Under the circumstances obtaining in this case, the amendment of the answer in substantial aspects was not a matter of right, 9 but lay in the discretion of the Court. 10 Where amendment is not a matter of right, a bare assertion of a desire to amend the pleading because certain matters had not been therein alleged, or the submission of an amended one, without more, is obviously not sufficient. It is needful to state to the Court some reasonable ground justifying its exercise of discretion to allow amendment. 11 Indeed, the Rules elsewhere provide that judicial admissions "can not be contradicted unless previously shown to have been made through palpable mistake." 12 It is thus incumbent upon a party desiring to amend his pleading, in other words, to furnish the Court with some adequate foundation for it to grant leave to amend the pleading. This was not done by the defendants. Their motion merely declared that they had failed to include certain allegations and defenses in their original answer, but gave no explanation for their failure to do so at the time they drew up that pleading or within a reasonable time thereafter, and why they had not essayed such amendment until after two (2) years and only after their receipt of plaintiff bank's motion for judgment on the pleadings which cited certain serious defects of their answer. The absence of such an explanation, and the implicit admission of liability in their letter of October 18, 1966 requesting that they be permitted to pay in installments of P20,000.00 every six (6) months not unreasonably engendered the belief in the mind of the Court a quo that their motion had been "made with intent to delay the action" 13 by relieving them from the effects of their judicial admissions without a showing of palpable mistake, or other acceptable absolutory cause. An analysis of the amended answer readily discloses its lack of merit if not its arrant sophistry, adding persuasiveness to the Trial Court's resolution of the controversy. The claim that defendant Tan was only an "accommodation party" or a "guarantor," or that he was solidarily bound only as regards interest, flies in the teeth of the Agreement for Credit in Current Account. The agreement clearly and categorically expresses the solidary character of the obligations of Tan and his firm, who are referred to jointly as the "First Party." The First Party agree to be jointly and severally bound by and to comply with the following terms and conditions: xxx xxx xxx 3. The principal and interest of this loan shall be due and become payable on demand by the Second Party (Manufacturers Bank) whether in writing or otherwise; Provided, That in any case, this loan shall automatically be due and become payable and this agreement be terminated on February 26, 1965, without necessity of demand.

The denials in the amended answer are cut from the same bolt as those in the original answer. They are sham denials, consisting of an avowed lack of knowledge of facts which could not but be clearly known to the defendants or ought to be or could quite easily have been known by them. 14 Their disclaimer of knowledge of the amount of their outstanding balance is implausible, but even if true, cannot be deemed a proper denial because concerning something they could very easily have learned or verified had they wished to. Their disclaimer of knowledge of the amount of the fee undertaken to be paid by the Manufacturers Bank to its attorneys is immaterial because not prayed for in the complaint, the claim being in fact for attorney's fees equivalent to 10% of the total amount due, as expressly stipulated in the contract. And the averment that their obligation was not yet due because plaintiff bank had extended the term of payment is also specious, being contrary to the defendants' written request to the bank that they be allowed to repay their loan in stated installments. The correctness, therefore, of the Trial Court's denial of the motion to amend answer and the propriety of the assailed judgment on the pleadings are beyond civil. Amendment in the circumstances was clearly subject to said Court's discretion the exercise of which cannot be faulted; and the defendants' original answer in truth tendered no issue, or otherwise admitted the allegations of the complaint material and necessary to a valid decision. 15 Finally, since the Agreement for Credit on Current Account plainly declares both Diversified Industries and Alfonso Tan jointly and severally liable for both principal and interest on the loan, the interest being fixed at 10% per annum, it was error for the Trial Court to decline to so hold them both solidarily liable, and to set the interest payable at the legal rate instead of the stipulated rate of 10% of the total amount due. WHEREFORE, the judgment of the Trial Court is AFFIRMED WITH THE MODIFICATION that the liability to Manufacturers Bank & Trust Co. of Diversified Industries, Inc. and Alfonso Tan is pronounced to be joint and several, and the interest payable on their obligation is fixed at 10% per annum of the total amount due, in accordance with the Agreement of Credit on Current Account, with costs against the latter. Cruz, Grio-Aquino and Medialdea, JJ., concur. Gancayco, J., is on leave.

G.R. No. 74766 December 21, 1987 DOMINGO VERGARA, SR., petitioner, vs. HON. JOSE T. SUELTO Presiding Judge of the Municipal Trial Court in Davao City, Branch IV, MANOLITO GUINOO ROMEO MONTEBON and PORFERIO CABASE respondents. NARVASA, J.: Two issues are involved in the instant special civil action of mandamus. The first is whether or not the appropriateness of a summary judgment may ever be so selfevident in a case as to make it well nigh a duty on the part of the Trial Judge to grant the plaintiff's motion therefor. The second relates to the propriety of the filing directly with this Court an application for a writ of mandamus against a municipal trial court, considering that jurisdiction to issue this extraordinary writ is also possessed by the Court of Appeals as well as the Regional Trial Court of the district. To resolve the first issue it will be necessary to deal with the facts in some detail. Petitioner Vergara commenced in the Municipal Trial Court of Davao City an action for illegal detainer against the private respondents. 1 His complaint 2 alleged in essence that 1) he is the owner of a commercial building consisting of three (3) sections, each of which is separately occupied by the defendants (private respondents herein) as lessees; 2) the defendants' lease contracts, two of which were written, were all on "a month to month basis," and originally prescribed a monthly rental of P350.00, later increase to P450.00; 3) because the defendants all defaulted in the payment of their rentals for many months, Vergara's lawyer sent each of them a letter "(1) demanding payment of their unpaid rentals, (2) terminating their lease contracts effective at the end of December 1985 on two grounds: non- payment of rentals and plaintiff's need of the property for some other purpose, and (3) demanding that defendants vacate the leased premises not later than the end of said month of December 1985; " 4) the defendants sent Vergara a joint reply pertinently reading as follows: This is to confirm our verbal commitment with you to leave the said premises as soon as you need it. However due to mainly economic reason, we request for an extension of three months (3) to enable us to find new space wherein we can continue our sole livelihood; in addition, defendant Montebon also paid a part of his arrearage; 5) later however, the defendants wrote Vergara another letter; this time, while acknowledging the latter's ownership of the building and their status as lessees

thereof they announced their refusal to vacate the premises on the ground that the lot on which the building stands, though titled in Vergara's name, was part of a tract of land Identified as Lot 508 which had been ordered reverted to the public domain by the Regional Trial Court (Branch XIV) in a decision rendered in Civil Case No. 16192 for "Cancellation of Titles and Reversion" entitled "Republic of the Philippines vs. Kwong Tai Lung y Cia et al. ; 6) Vergara wrote back to them, pointing out the error of the position thus taken by them, and reiterating his demand to vacate; his reply having gone unheeded, he initiated the requisite proceedings before the Office of the Barangay Captain; and when the controversy was not settled by conciliation, he instituted the ejectment suit at bar. In their answer to the complaint, 3 defendants Guinoo, Montebon and Cabase 1) denied the averments of the complaint relative to their and the plaintiff's personal circumstances; 2) denied Vergara's ownership of the building and the fact that it consisted of three sections separately leased by him: 3) claimed that their lease contract with Vergara were null and void; 4) denied having initially paid rentals but thereafter defaulting and incurring arrearages in the amounts specified in the complaint, claiming that they had been "occupying the premises in the concept of an owner;" 5) denied knowledge and hence professed inability to form a belief regarding either their joint letter to Vergara (copy of which was attached to the complaint) or of the reply thereto by Vergara's lawyer; 6) denied liability to Vergara for damages because as member(s) of good standing of (a group calling itself) Salandanan et al Landless Association Inc., ... (they were) occupying the land as owners;" and 7) claimed that in virtue of the judgment of the Regional Trial Court in Civil Case No. 16192 declaring null and void the title issued over "lot 508"- of which Vergara's was formerly a part they were claiming Vergara's land "as their share as member of Salandanan et al Landless Association," which was "a recognized intervenor" in the case. Vergara presented a reply to the defendants' answer, chiefly making the point that neither he nor any of the defendants was a party to Civil Case No. 16192 and hence could not be bound by whatever judgment or orders might be rendered therein; that his title to the land was not void nor had it ever been subject of any action for annulment; and that in any event Civil Case No. 16192 had no relevance to the "case for ejectment against defendants for non- payment of rents on x x (his) commercial building. 4

Under date of March 7, 1986 Vergara filed a Motion for Summary Judgment. 5 The motion was verified and had 8 supporting documents annexed to it. 6 It asserted and sought to substantiate the following propositions, to wit: 1. The 3 defendants were lessees of Vergara's commercial building, their status as such being established bya) the 2 written contracts of lease of Guinoo and Cabase, copies of which were attached to the verified complaint as Annexes A and B. b) the demand letters sent by Vergara's lawyer to each of the 3 defendants, copies of which were attached to the motion for summary judgment as Annexes A, B, and C thereof; c) the payment by Montebon on December 20, 1985 of back rentals for November and December 1984, evidenced by Official Receipt No. 2300, a copy of which was appended to the motion as Annex D; d) the joint letter dated December 6, 1985 confirming their "verbal commitment to leave the ... "premises" as soon as needed and asking for an "extension of three (3 months to enable ... (them) to find new space, " a copy of was attached to the verified complaint as Annex C thereof. 2. Neither he (Vergara) nor the defendants were parties in Civil Case No. 16192 and consequently could not be bound by any judgment or order therein promulgated, a proposition confirmed by the Order of the Court in that action dated February 24, 1986, a copy of which he attached to his motion as Annex E. 3. Civil Case No. 16192, involving "parcels of land, " was relevant to the ejectment case at bar involving ejectment from Vergara's "commercial building;" and defendants had acknowledged in their joint letter dated January 7, 1976 that the building belongs to Vergara, a copy of the letter being attached to the motion as Annex F. 4. In view of their acknowledgment of Vergara's ownership of the building, the defendants' claim of ownership of the land on which it stands is "false and absurd." "Moreover, defendants as lessees are estopped from asserting any adverse claim or title against plaintiff (Art. 1436 of the Civil Code). " 5. The defendants' answer is patently defective. It flatly denies their own personal circumstances, and professes lack of knowledge sufficient to form a belief about the exchange of letters between them and Vergara's lawyer-matters about which they could not but have direct, personal awareness and about which they could not therefore claim ignorance. 7 Against this motion defendants filed an "Opposition to Motion for Summary Judgment and Motion to Dismiss." 8 They argued that 1. A genuine issue exists which "cannot be resolved by mere resort to summary judgment," that issue having arisen from defendants' controversion of Vergara's

claim "of possession and ownership over the commercial building and the land on which the same is constructed, " 2. Their answer "tendered a genuine issue and does not only consist of a mere general denial" since in the main "it specifically denied the material averment of facts in the complaint setting forth the substance of the matters in support of their denial;" and as regards their declared ignorance of some of the facts alleged in the complaint, an averment of lack of knowledge was under the Rules equivalent to a specific denial. 3. The Court had no jurisdiction over the case because "the real issue involved ... is title and/or ownership of the property and not physical possession," and "this case should not be by accion interdictal but accion de reivendicacion (sic). " Vergara submitted a reply dated April 9, 1986, adverting to the distinction between a summary judgment under Rule 34 and a judgment on the pleadings under Rule 19, and reiterating and amplifying the propositions and arguments set out in his motion for summary judgment. 9 The incidents were resolved by the respondent Judge in two separate orders promulgated on the same day, April 15, 1986. The first order denied the defendants' motion to dismiss. 10 The Judge ruled that... Ownership by the plaintiff of this building has not been seriously denied by defendants who instead insist that their claim to ownership of the land be a ground for a dismissal of this case for the court's lack of jurisdiction. But the court believes that this case properly is an Unlawful Detainer action as it assesses the respective claims of the parties and it (the court), in accordance with the provisions of Section 33 of Batas Pambansa Blg. 129 is not without authority to resolve the issue of ownership if only to determine the issue of possession. 11 The second order 12 denied Vergara's motion for summary judgment. The denial was grounded on the following observations of the respondent Judge: ... Of course, the (plaintiff's) discussion seeks to convince the court that there is no more need of a trial because conclusively it is claimed that no genuine issue on a material fact was raised. But it appears from the answer that the material allegations of facts in the complaint constituting plaintiff's cause of action are specifically denied and in addition thereto, defendants have put up affirmative defenses in avoidance of plaintiff's claims. ... . The rule gives the court limited authority to enter summary judgment. Upon a motion for summary judgment, the court's sole function is to determine whether there is an issue of fact to be tried. It does not vest the court with authority to try the issues on depositions, pleadings, letters or affidavits. ... (I)f there is a controversy upon any question of fact, there should be a trial of the case upon its merits. 13 His Honor's observations expose no little confusion about the fundamental nature of a summary judgment. The confusion is further bared by his statement that the "only

issue in this motion (for summary judgment) is whether, in this Unlawful Detainer action the material averments of facts constituting plaintiff's cause of action have been specifically denied in accordance with Section 10, Rule 8 of the Rules of Court." He seems to think it is the same as a judgment on the pleadings which, of course, it is not. The confusion is shared by the defendants (private respondents), this being revealed by their argument that in view of their denial of plaintiff's assertion of ownership over the premises in question, and their controversion of "the material facts of the adverse party," their answer did not only consist of a mere "general denial" but "definitely tendered a genuine issue" "which cannot be resolved by resort to mere summary judgment." 14 Indeed, they point out that in their answer they have dealt with each paragraph of the complaint; and "considering therefore the totality of the allegations of ... (said) answer vis-a-vis the allegations of the complaint, ... the answer tendered a valid issue. 15 The essential question however is not whether the answer does controvert the material allegations of the complaint but whether that controversion is bona fides. The fundamental issue is not whether the answer does tender valid issues as by setting forth specific denials and/or affirmative defenses but whether the issues thus tendered are genuine, or fictitious, sham, characterized by bad faith. Section 1, Rule 19 of the Rules of Court provides that where an answer "fails to tender an issue, or otherwise admits the material allegation of the adverse party's pleading, the court may, on motion of that party, direct judgment on such pleading." 16 The answer would fail to tender an issue, of course, if it does not comply with the requirements for a specific denial set out in Section 10 (or Section 8) of Rule 8; and it would admit the material allegations of the adverse party's pleadings not only where it expressly confesses the truthfulness thereof but also if it omits to deal with them at all. 17 Now, if an answer does in fact specifically deny the material averments of the complaint in the manner indicated by said Section 10 of Rule 8, and/or asserts affirmative defenses (allegations of new matter which, while admitting the material allegations of the complaint expressly or impliedly, would nevertheless prevent or bar recovery by the plaintiff) in accordance with Sections 4 and 5 of Rule 6, a judgment on the pleadings would naturally not be proper. But even if the answer does tender issues and therefore a judgment on the pleadings is not proper-a summary judgment may still be rendered on the plaintiff's motion if he can show to the Court's satisfaction that "except as to the amount of damages, there is no genuine issue as to any material fact," 18 that is to say, the issues thus tendered are not genuine, are in other words sham, fictitious, contrived, set up in bad faith, patently unsubstantial. 19 The determination may be made by the Court on the basis of the pleadings, and the depositions, admissions and affidavits that the movant may submit, as well as those which the defendant may present in his turn. 20 In this case, the defendants' answer appears on its face to tender issues. It purports to deal with each of the material allegations of the complaint, and either specifically

denies, or professes lack of knowledge or information to form a belief as to them. It also sets up affirmative defenses. But the issues thus tendered are sham, not genuine, as the slightest reflection and analysis win readily demonstrate. 1. To begin with, the defendants' denial of their own personal circumstances, as these are stated in the complaint, is obviously sham. The accuracy of those stated circumstances is quite evident. They are in truth all residents of Davao City, doing business at Cabaguio Avenue, where the plaintiff's building is located, and in which they have rented space and where they have been maintaining their commercial establishments under one trade name or another. As fictitious is their denial of plaintiff's own personal circumstances. They could not but know that those circumstances had been correctly set down in the complaint, having been dealing with the plaintiff for years, and he being the owner of the building occupied by them. 2. Their disavowal of the plaintiff's ownership of the building occupied by them, and also that the building is composed of three (3) sections, also cannot be genuine. They had each been occupying those three (3) sections for years and been paying rentals therefor to the plaintiff. Their answer contains their admission that the plaintiff has title over the land on which the building stands. 21 There are two (2) written contracts showing the lease by two of them of the building from the plaintiff, and a receipt evidencing payment by another of rentals to the plaintiff, documents which they have made no serious or effective effort to controvert but which, on the contrary, they have impliedly admitted. There is, too, their own letter to the plaintiff dated December 6, 1985, acknowledging receipt of the communication of the latter's lawyer (demanding their vacation of the premises and payment of rentals in arrears), and confirming their "verbal commitment to you to leave the said premises as soon as you need it. 22 There is, finally, another letter of their dated January 7, 1986 referring to Vergara's demand for the payment of their "rental in arrears" and for them "to vacate the building rented by us." 23 3. Also patently sham is their professed ignorance of the joint letter sent by them to the plaintiff under date of December 6, 1985, just referred to. It should be noted that they have not denied writing or sending the letter. What they say is that "they have no knowledge or information sufficient to form a belief" as to it. This is ridiculous. Either they wrote the letter or they did not. Either way, they cannot but have knowledge of it. To say that they are ignorant of it is palpable dishonesty. In any event we have already pronounced such a profession of ignorance about a fact which is patently and necessarily within the pleader's knowledge, or means of knowing as ineffectual, as no denial at all. 24 4. So, too, their denial of ever having paid rents to the plaintiff is fictitious. The facts on record, to which the plaintiff has drawn attention, inclusive of the official receipt issued to defendant Montebon, prove they're beyond cavil. 5. Finally, their affirmative defense, in which they assert title in themselves over the land on which the plaintiff's building stands, is also sham, even an absurdity. They base their claim on a judgment rendered by the Regional Trial Court in an entirely separate action in which title over a large tract of land of which the plaintiff's once formed a part had been annulled, and the land ordered reverted to the public domain. But neither the plaintiff nor the defendants are parties to this action. The

judgment has moreover been appealed. And the defendants' connection with the case rests on nothing more substantial than their alleged membership in an association at whose relation the reversion suit had supposedly been instituted by the Republic, and which association would presumably have preferential rights to occupy or acquire the land once finally reverted to the public domain. It is apparent that defendants' claim of title to the particular lot of the plaintiff is so tenuous and conjectural as to be practically inexistent. In any event, the claim is utterly irrelevant to the ejectment suit at bar, which involves merely the question of whether or not their possession of the plaintiff's premises had become illegal in virtue of their extended failure to pay rentals and their refusal to vacate the premises and pay those arrears despite due demand. They are moreover estopped to dispute the plaintiff's title. "The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them." 25 Under the circumstances herein set forth at some length, the fitness and propriety of a summary judgment cannot be disputed. The failure of the respondent Judge to render such a judgment was due solely to his unfortunate unfamiliarity with the concept of a summary judgment. It is a failure which we have it in our power to remedy. No genuine issue having been tendered by the defendants, judgment should be directed as a matter of right in the plaintiff's favor. To yet require a trial notwithstanding the pertinent allegations of the pleadings and the other facts indubitably appearing on record would be a waste of time, and an injustice to the plaintiff whose obtention of the relief to which he is plainly and patently entitled would be further delayed. As it is, the delay has already been considerable. The remedy properly available to the petitioner in the premises, however, is not the writ of mandamus. Well known is the rule that mandamus issues only to compel performance of a mandatory, ministerial duty. 26 The determination that under the facts and circumstances obtaining in a case a summary judgment is proper, and the motion therefor should be granted and summary judgment consequently rendered, rests in the sound discretion of a trial court and can not be regarded as a duty of ministerial function compellable by the extraordinary writ of mandamus. In this case, the respondent Judge had discretion to make that determination. What happened was that His Honor made that determination with grave abuse of discretion. Despite the plain and patent propriety of a summary judgment, he declined to render such a verdict. The writ of certiorari will lie to correct that grave abuse of discretion. 27 We turn now to the second question posed in the opening paragraph of this opinion, as to the propriety of a direct resort to this Court for the remedy of mandamus or other extraordinary writ against a municipal court, instead of an attempt to initially obtain that relief from the Regional Trial Court of the district or the Court of Appeals, both of which tribunals share this Court's jurisdiction to issue the writ. As a matter of policy such a direct recourse to this Court should not be allowed. The Supreme Court is a court of last resort, and must so remain if it is to satisfactorily perform the functions assigned to it by the fundamental charter and immemorial tradition. It cannot and should not be burdened with the task of dealing with causes in the first instance. Its original jurisdiction to issue the so-called extraordinary writs should be exercised only where absolutely necessary or where serious and important reasons exist therefor. Hence, that jurisdiction should generally be exercised relative to actions or proceedings before the Court of Appeals, or before constitutional or other

tribunals, bodies or agencies whose acts for some reason or another, are not controllable by the Court of Appeals. Where the issuance of an extraordinary writ is also within the competence of the Court of Appeals or a Regional Trial Court, it is in either of these courts that the specific action for the writ's procurement must be presented. This is and should continue to be the policy in this regard, a policy that courts and lawyers must strictly observe. In the case at bar, however, to apply the policy by referring the action to the Regional Trial Court of the district would serve no useful purpose. It would on the contrary work injustice to the petitioner to whom the relief rightly due has already been withheld for many years. The case having been filed before this Court as early as 1986, and having already been subject of an extensive exchange of pleadings, it should and will now be decided without further delay. WHEREFORE, the Order of the respondent Judge dated April 15, 1986 denying the petitioner's (plaintiff's) motion for summary judgment, and that dated April 30, 1986 declining to reconsider the same, are hereby annulled and set aside. Said respondent Judge is hereby commanded forthwith to render a summary judgment in favor of the petitioner (plaintiff) against the private respondents (defendants), namely: Manolito Guinoo, Romeo Montebon and Porferio Cabase, in accordance with the prayer of the former's motion for summary judgment dated March 7, 1986. The appropriateness and correctness of a summary judgment in the premises having already been adjudged by this Court, His Honor is further commanded to direct execution of the judgment immediately upon its rendition. This decision is immediately executory and no motion for extension of time to file a motion for reconsideration shall be entertained. Costs against private respondents. Teehankee, C.J., Cruz, Paras, * and Gancayco, JJ., concur.

[G.R. No. 131466. November 27, 1998] CRISTINA DIMAN, CLARISSA DIMAN, GEORGE DIMAN, FELIPE DIMAN and FLORINA DIMAN, petitioners, vs. HON, FLORENTINO M. ALUMBRES, PRESIDING JUDGE, REGIONAL TRIAL COURT, LAS PIAS, BRANCH 255; HEIRS OF VERONICA V. MORENO LACALLE, REPRESENTED BY JOSE MORENO LACALLE, respondents. DECISION NARVASA, C.J.: The petition for review on certiorari in this case was initially dismissed by Resolution dated January 14, 1998; but after deliberating on petitioners' motion for reconsideration dated February 23, 1998, the private respondents' comment thereon, the reply to the comment, as well as the record of the case itself, the Court was convinced that the order of dismissal should be reconsidered and the petition reinstated. It accordingly promulgated a resolution to that effect on October 12, 1998, and required "respondents to file their Comment on the petition within ten (10) days from notice **." Notice of the Resolution was duly served on private respondents' attorney on October 21, 1998. The latter filed a motion for extension of time of thirty (30) days to file comment, counted from October 31. The Court granted the extension sought, but only for fifteen (15) days. The comment was filed late, on November 20, 1998, Counsel's explanation is that he had sought an extension of 30 days "due to the other volume of legal works similarly situated and school work of the undersigned as professor of law and dean of the University of Manila," and had entertained "the honest belief" that it would be granted. However, he learned belatedly that only a 15-day extension had been conceded. He forthwith completed the comment and filed it, albeit five days late. The Court admits the late comment, but takes this occasion to reiterate the familiar doctrine that no party has a right to an extension of time to comply with an obligation within the period set therefor by law; motions for extension are not granted as a matter of course; their concession lies in the sound discretion of the Court exercised in accordance with the attendant circumstances; the movant is not justified in assuming that the extension sought will be granted, or that it will be granted for the length of time suggested by him. It is thus incumbent on any movant for extension to exercise due diligence to inform himself as soon as possible of the Court's action on his motion, by time inquiry of the Clerk of Court. Should he neglect to do so, he runs the risk of time running out on him, for which he will have nobody but himself to blame. Now, the petition for review on certiorari appends practically all the material pleadings, motions, orders and judgments in the Regional Trial Court and the Court of Appeals. The respondents' comment on the petition has been filed, as just mentioned, and opposes its material averments. There is now no impediment to the

adjudication of petitioners' appeal on the merits on the basis of the record as it stands at this time. This, the Court will now proceed to do. In 1991, more than fifty years after the effectivity of the Rules of Courti -- containing provisions relative inter alia to the modes of discoveryii -- this Court had occasion to observe that "among far too many lawyers (and not a few judges), there is, if not regrettable unfamiliarity and even outright ignorance about the nature, purposes and operation of the modes of discovery, at least a strong yet unreasoned and unreasonable disinclination to resort to them -- which is a great pity for the intelligent and adequate use of the deposition-discovery procedure, could, as the experience of other jurisdictions convincingly demonstrate, effectively shorten the period of litigation and speed up adjudication."iii The case at bar deals with one of such modes of discovery -- a request for admission under Rule 26 of the Rules of 1964; more particularly, the legal consequences of the failure to respond thereto in the manner indicated by law. It also treats of other adjective devices to expedite litigation: a summary judgment under Rule 34,iv and a judgment on demurrer to evidence under Rule 35.v Had the principles involved been better understood and more faithfully observed, the case might have been more quickly decided. Actually, there are several adjective tools incorporated in the Rules of Court explicitly designed, like those just mentioned, to abbreviate litigation or abort it at certain stages. Their obvious purpose is to unmask as quickly as may be feasible, and give short shrift to, untenable causes of action or defenses and thus avoid waste of time, effort and money.vi For reasons yet to be fathomed, these devices seem to be of scant familiarity and of infrequent availment, as above observed, with the result that the salutary objective of the Rules of bringing about a simple, inexpensive and expeditious system of litigation has not been fully achieved. Now, to come to grips with the case. There is no disagreement about the antecedents. The case began in the Regional Trial Court of Las Pias (Branch 255), where a complaint for "Quieting of Title and Damages" was filed by the Heirs of Veronica V.Moreno Lacalle (represented by Jose Moreno Lacalle) against Cristina Diman, Clarissa Diman, George Diman, Felipe Diman and Florina Diman.vii In their complaint, the Lacalle heirs claimed that: a) their mother, the late Veronica V. Moreno Lacalle (who died in 1992), was the owner of a "parcel of land situated at Brgy. Pulang Lupa Uno, Las Pias, ** covered by Transfer Certificate of Title No. 273301 of the Registry of Deeds of the Province of Rizal;" b) Veronica Lacalle had acquired the land in 1959 by virtue of a deed of absolute sale, and retained as caretakers the persons she found in occupancy of the lot at the time of the sale, namely: Julian Nario and his wife, Adelaida Legaspi, "with arrangement to share the agricultural fruits" until the former would have need of the property; c) the caretakers of the lot were served with a notice for them to vacate the land (dated November 22, 1994) and an alias writ of demolition (dated June 7, 1994)

issued by the Metropolitan Trial Court in Civil Case No. 2619 -- a case for "ejectment with damages" filed by the Dimans against the Narios, judgment in which, commanding the Narios' ouster, had supposedly been affirmed by the Makati Regional Trial Court (Branch 137); d) neither the deceased Veronica nor any of her heirs had been made parties to said ejectment action; e) the complaint for ejectment contains false assertions, and had caused them injury for which the Dimans should be made to pay damages. In their answer with counterclaim dated February 2, 1995,viii the Dimans alleged that: a) they are the registered and absolute owners of the land registered in their names under TCT Nos. 90628, 90629 and 58676 (Pasay City), and have no knowledge of the land claimed by the Lacalle Heirs; b) they are entitled to eject from their land the Nario Spouses, who were falsely claiming to be their lessees; c) if the Heirs' theory is that the land in their title, No. 273301, is the same as that covered by the Dimans' titles, then said title No. 2733101 is spurious because: (1) no less than three official agencies -- (i) the Office of the Registrar of Deeds for Rizal and Regional Registrar for Region IV, (ii) the Registrar of Deeds of Pasay City, and (iii) the Pangasiwaan Pangtalaan ng Lupain (Land Registration Authority) -have certified to the absence of any entry in their records concerning TCT No. 273301 covering land with an area of 22,379 square meters in the name of Veronica Vda. De Moreno Lacalle; (2) Decree No. N-11601 explicitly cited as basis by TCT No. 273301 refers to land in Mauban, Quezon Province, according to the records of the Land Registration Authority; and GLRO Record No. 14978 also expressly mentioned as basis for TCT No. 273301, refers to a registration case heard in Pangasinan; and d) they are entitled to damages on their counterclaim.

c) in the Index Records of Registered Property Owners under Act No. 496 in the Office of the land Registration Authority, there is no record of any property situated in Las Pias in the name of Veronica Lacalle, more particularly described in TCT 273301; 4) the Heirs cannot produce a certified true copy of TCT 273301;

5) neither Veronica Lacalle nor any of her heirs ever declared the property under TCT 273301 for taxation purposes since its alleged acquisition on February 24, 1959 or since the issuance of said title on August 7, 1959; 6) not a single centavo has been paid by the Heirs as real estate taxes; and

7) no steps have been taken by the Heirs to ascertain the genuineness and authenticity of the conflicting titles. The REQUEST FOR ADMISSION was received by Jose Lacalle himself through registered mail on February 6, 1995, and copy thereof, by the latter's lawyer (Atty. Cesar T. Ching) on February 4, 1995. However, no response whatever was made to the request by Lacalle, his lawyer, or anyone else, despite the lapse of the period therefor fixed by Section 2 of Rule 26 (not less than ten days after service). The Dimans thereupon filed with the Court a "MANIFESTATION WITH MOTION TO REQUIRE PLAINTIFFS TO ANSWER REQUEST FOR ADMISSION," dated March 28, 1995,x giving the Heirs ten (10) more days to file their answer to the request for admission, a copy of which was personally delivered to the latter's lawyer; but again, no response whatever was made. The Dimans then submitted a "MOTION FOR SUMMARRY JUDGMENT" dated April 17, 1995.1 In that motion they drew attention to the Heirs' failure to file any Pre-Trial Brief, and the several instances when the Heirs failed to appear at scheduled hearings resulting in the dismissal of their complaint, which was however later reinstated. They argued that because the heirs had failed to respond to their REQUEST FOR ADMISSION, each of the matters of which an admission was requested, was deemed admitted pursuant to Section 2, Rule 26. On this basis, and on the basis of the joint affidavit of Clarissa Diman de los Reyes and Florina Diman Tan -- attached to the motion and substantiating the facts recited in the request for admission -- the Dimans asserted that no genuine issue existed and prayed that "a summary judgment be entered dismissing the case for lack of merit." The Heirs' counsel filed a two-page opposition dated May 15, 1995xi in which, betraying an unfortunate unfamiliarity with the concept of summary judgments, he asserted inter alia that: "In order for defendants (Dimans) to successfully pray for judgment on the pleadings, they have to clearly alleged in their permissive counterclaim their cause of action and if the answer of the plaintiffs (Heirs) to such kind of counterclaim admit (sic) it or the answer to the counterclaim is a sham, that is the time for the

After joinder of the issues, the Dimans served on the Heirs on February 2, 1995, a REQUEST FOR ADMISSION (dated February 2, 1995) of the truth of the following specified matters of fact, to wit:ix a) the Heirs' TCT 273301 (Rizal) is not recorded in the Registry of Rizal, or of Pasay City, or of Paraaque, or of Las Pias; b) the Dimans' transfer certificates of title are all duly registered in their names in Pasay City, as alleged in their answer;

defendants to move for a judgment summarily. ** ** (D)efendants have no cause of action for praying for summary judgment. It is the plaintiffs who will pray for that and not the defendants." Subsequently, the Dimans submitted a reply dated May 23, 1995;xii the Heirs, a rejoinder dated June 1, 1995;xiii and the Dimans, a pleading entitled "Exceptions and Comment to Plaintiffs' Rejoinder" dated June 8, 1995.xiv The Trial Court denied the Dimans' motion for summary judgment. In its Order of June 14, 1995,xv the Court declared that a "perusal of the Complaint and the Answer will clearly show that material issue is raised in that both plaintiffs and defendants claimed ownership over the land in dispute, presenting their respective titles thereto and accused each other of possessing false title to the land." It stressed, citing jurisprudence, that a summary judgment "is not proper where the defendant presented defenses tendering factual issues which call for the presentation of evidence." The case proceeded to trial in due course. At its start, the Heirs' counsel, Atty. Michael Moralde, responding to questions of the Court, admitted that his clients did not have the original copy of the title which was the basis for their cause of action, but asserted that they were "still searching" for it since "(i)n every municipality there are several Registry of Deeds." He theorized that the word "'title' ** is a relative term ** (and) does not only refer to a document but refers to ownership."xvi Only Jose Moreno Lacalle gave evidence for the plaintiff Heirs. Like Atty. Moralde, he admitted that he had no copy "of the document which says ** (his) mother is the registered owner;" that the deed of sale was not the only basis for his and his coheirs' claim to the land, but also "a xerox copy of the ** title ** except that ** (he) cannot find the original;" that "maybe" the original was in possession of the person who was his mother's agent in all her transactions, a certain Mr. Lopez, whom he could no longer locate; that he had tried to verify the existence of the title "from the Register of Deeds of Pasig and Pasay" without success; that he had not, however, gone to the Register of Deeds of Paraaque or Las Pias.xvii The Heirs' documentary evidence consisted of (1) Veronica Lacalle's death certificate, (2) the special power of attorney authorizing Jose Lacalle to act for his brothers and sisters; and (3) the deed of absolute sale purportedly executed by Eusebio Mojica, Clara Mojica, Maria Mojica, Antonia Mojica, Amanda Mojica and Teodora Aranda which deeded over to Veronica Lacalle the "Land 'known as Lot 1 PSU-151453,'" but which made no reference to any Torrens title over it Shortly after the Heirs rested their case, the Dimans filed a "Motion for Judgment on Demurrer to Evidence," dated June 25, 1996.xviii They summarized the Heirs' evidence -- focusing attention on the Heirs failure to present "even an unauthenticated photocopy of the title," and the absence of any proof that any proceedings for registration of the land under the Torrens Act had been instituted -and emphasized anew said Heirs' implied admissions resulting from their failure to answer their (the Dimans') request therefor as a mode of discovery. On these premises, the Dimans contended that a judgment on demurrer should be rendered,

there being no genuine issue between the parties notwithstanding the ostensible conflict of averments in their basic pleadings. The Heirs presented a three-page opposition, dated July 7, 1996.xix In it their counsel set out the startling contention that "(d)emurrer to evidence is violative to due process as the judgment be rendered without giving the plaintiff the opportunity to cross-examine the defendant," and petulantly inquired, "How could the truth come out without cross-examination of the defendants by plaintiff?" particularly, as regards "whether their (the Dimans') title is not fake." Said counsel also posited the amazing notion that "Demurrer to evidence may be correct only in criminal cases as it is the right of the accused to remain silent, and that includes his right to file demurrer for fear of cross-examination. But not in Civil Cases." Once more counsel regrettably exposed his ignorance of quite elementary legal principles. Again, the Dimans' efforts at expediting disposition of the litigation were unsuccessful. By Order dated December 2, 1996,xx the Trial Court denied their motion to dismiss. Respecting the Heirs' omission to present in evidence any copy (even a photocopy) of TCT No. 273301, the Court remarked that "Not being able to prove the genuineness and authenticity of TCT No. 273301, it being only a mere xerox copy ** (the Heirs) did not formally offer the same in evidence." However, the Court said, the deed of sale of the land in Veronica Lacalle's favor that was submitted instead -- the "genuineness and authenticity ** (of which had) been fully established" by the certification of the Clerk of Court of the Manila RTC -- was adequate for the purpose. According to the Court, "(e)xecution of a deed of conveyance in a certain prescribed form gave to the transfer of a title to the land conveyed ** (and) without being controverted by any convincing evidence to the contrary can be sufficient basis in granting the plaintiffs' relief for quieting of their title." The Order passed sub silentio on the quaint contentions in the Heirs' opposition. The Dimans moved for reconsideration under date of January 2, 1997,xxi inter alia (1) alleging that although the photocopy of TCT 2773301 annexed to the Heirs' complaint states that the "certificate is a transfer from T.C.T. No. 259150" (and this, presumably, would be the vendors' [the Mojicas'] title), no effort whatever was made to submit proof thereof, and (2) reiterating the proposition that the Heirs were bound by their implied admissions under Rule 26. The Dimans also submitted a "SUPPLEMENT TO MOTION FOR RECONSIDERATION" dated January 7, 1997xxii in which they invited attention to the identity of the technical description of the land contained in the deed of sale to Veronica Lacalle and that set out in TCT No. 273301. It must therefore have been Veronica Lacalle, they reasoned, who had instituted the registration proceedings leading to the supposed issuance of said TCT No. 273301. Yet the heirs failed to present evidence of the record of any such registration proceedings, just as they failed to present evidence of any authentic copy of the title itself. The Heirs filed a one-page "Vehement Opposition ** " dated February 15, 1997.xxiii Once again they reiterated the astounding argument that the Dimans' "insistence ** (on the demurrer to evidence) is tantamount to suppression of their evidence as they are afraid of cross-examination"!

Again the Trial Court rebuffed the Dimans. In its Order of February 28, 1997,xxiv the Court ruled that the issues raised in the motion for reconsideration and its supplement had already been passed upon in the Order of December 2, 1996. It then set the case "for the reception of defendants' evidence on April 22, 1997 **." What the Dimans did was to commence a special civil action of certiorari, mandamus and prohibition in the Court of Appeals praying (a) that it set aside the Orders of June 14, 1995 (denying summary judgment), of December 2, 1996 (denying demurrer to evidence), and of February 28, 1997 (denying reconsideration); (b) that the Trial Judge be commanded to dismiss the case before it; and (c) that said judge be prohibited from conducting further proceedings in the case. But once again their efforts met with failure. The Appellate Tribunal (Seventh Division) promulgated judgment on September 9, 1997 decreeing that their petition be "DENIED due course and DISMISSED." The Court of Appeals held that insofar as concerned the Order of June 14, 1995, the petition for its invalidation had not been filed within a reasonable time; and that as regards the Order of December 2, 1996, the remedy of certiorari was improper because : (1) said order was merely interlocutory, (2) any error therein constituted only an error of judgment correctible by appeal, and (3) there was no capriciousness or whimsicality attendant upon the order. The Dimans' motion for reconsideration was later denied by the Court of Appeals by Resolution dated November 5, 1997.xxv The Dimans thereupon filed with this Court a petition for review on certiorari of the Appellate Tribunal's Decision of September 9, 1997. But seemingly consistent with the pattern of judicial misfortune which they had theretofore been traversing, their petition for review was dismissed, by Resolution dated January 14, 1998. Their appeal was however subsequently reinstated, as earlier recounted. Now, what first strikes the Court about the case at bar is the regrettable absence of familiarity, therein laid bare, with the rules of discovery and with the underlying philosophy and principles of the cognate remedy of summary judgment. That resulted in the undue protraction of the present action despite ample demonstration of the absence of any genuine issue -- that is to say, that the issues ostensibly arising from the pleadings were sham or fictitious. A Trial Court has no discretion to determine what the consequences of a party's refusal to allow or make discovery should be; it is the law which makes that determination; and it is grave abuse of discretion for the Court to refuse to recognize and observe the effects of that refusal as mandated by law. Particularly as regards request for admission under Rule 26 of the Rules of Court, the law ordains that when a party is served with a written request that he admit : (1) the genuineness of any material and relevant document described in and exhibited with the request, or (2) the truth of any material and relevant matter of fact set forth in the request, said party is bound within the period designated in the request,xxvi to file and serve on the party requesting the admission a sworn statement either (10 denying specifically the matters of which an admission is requested or (2) setting forth in details the reasons why he cannot truthfully either admit or deny those matters. If the party served does not respond with such sworn statement, each of the matters of which an admission is requested shall be deemed admitted.xxvii

In this case, the Dimans' request for admission was duly served by registered mail on Jose Lacalle on February 6, 1995, and a copy thereof on his lawyers on February 4, 1995. Neither made any response whatever within the reglementary period. Nor did either of them do so even after receiving copy of the Dimans' "MANIFESTATION WITH MOTION TO REQUIRE PLAINTIFFS TO ANSWER REQUEST FOR ADMISSION." dated March 28, 1995. On account thereof, in legal contemplation, the Heirs impliedly admitted all the facts listed in the request for admission. These plain and simple legal propositions were disregarded by His Honor. It is also the law which determines when a summary judgment is proper. It declares that although the pleadings on their face appear to raise issues of fact -- e.g., there are denials of, or a conflict in, factual allegations -- if it is shown by admissions, depositions or affidavits, that those issues are sham, fictitious, or not genuine, or, in the language of the Rules, that "except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entiled to a judgment as a matter of law,xxviii the Court shall render a summary judgment for the plaintiffxxix or the defendantxxx as the case may be.xxxi Parenthetically, the existence or appearance of ostensible issues in the pleadings, on the one hand, and their sham or fictitious character, on the other, are what distinguish a proper case for a summary judgmentxxxii from one for a judgment on the pleadings under Rule 19 of the 1964 Rules.xxxiii In the latter case, there is no ostensible issue at all, but the absence of any because of the failure of the defending party's answer to raise an issue. Rule 19 expresses the principle as follows: "Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading, the court may, on motion of that party, direct judgment on such pleading **."xxxiv On the other hand, in the case of a summary judgment, issues apparently exist -i.e., facts are asserted in the complaint regarding which there is as yet no admission, disavowal or qualification; or specific denials or affirmative defenses are in truth set out in the answer -- but the issues thus arising from the pleadings are sham, fictitious, not genuine, as shown by admissions, depositions or admissions. In other words, as a noted authority remarks, a judgment on the pleadings is a judgment on the facts as pleaded while a summary judgment is a judgment on the facts as summarily proven by affidavits, depositions or admissions.xxxv Another distinction is that while the remedy of a judgment on the pleadings may be sought only by a claimant (one seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief, supra), a summary judgment may be applied for by either a claimant or a defending party. These basic distinctions escaped His Honor. He denied the Dimans' motion for summary judgment in his Order of June 14, 1995, opining that a "perusal of the Complaint and the Answer will clearly show that material issue is raised in that both plaintiffs and defendants claimed ownership over the land in dispute, presenting their respective titles thereto and accused each other of possessing false title to the land." He added, citing cases, that a summary judgment "is not proper where the defendant presented defenses tendering factual issues which call for the presentation of evidence." Such a ratiocination is grossly erroneous. Clearly, the

grounds relied on by the Judge are proper for the denial of a motion for judgment on the pleadings -- as to which the essential question, as already remarked, is: are there issues arising from or generated by the pleadings? -- but not as regards a motion for summary judgment -- as to which the crucial question is: issues having been raised by the pleadings, are those issues genuine, or sham or fictitious, as shown by affidavits, depositions or admissions accompanying the application therefor? Errors on principles so clear and fundamental as those herein involved cannot but be deemed so egregious as to constitute grave abuse of discretion, being tantamount to whimsical or capricious exercise of judicial prerogative. When the Heirs closed their evidence as party plaintiffs, and the Dimans moved to dismiss on ground of insufficiency of the Heirs' evidence, the Trial Judge was charged with the duty to assess the evidence to ascertain whether or not "upon the facts and the law the plaintiff(s) ** (have) shown no right to relief." It was in the first place incumbent on His Honor to hold the Heirs bound to their admissions appearing in the record, express and implied. In accordance with Section 2, Rule 26 of the 1964 Rules of Court, the Heirs were impliedly, but no less indubitably, deemed to have admitted the facts on which admissions had been duly requested by reason of their failure to reply thereto. Said Section 2 reads as follows: "SEC. 2. Implied admissions. -- Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, which shall not be less than twn (10) days after service thereof, or within such further time as the court may allow on motion and notice, the party to whom the request is directed serves upon the party requesting the admission a sworn statement either denying specifically the matters on which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. Objections on the ground of irrelevancy or impropriety of the matter requested shall be promptly submitted to the court for resolution."xxxvi In determining the chief issue in the case, the Trial Judge should have taken due account of the following circumstances on record and obvious legal propositions: 1) the Heirs' admissions of the following facts, viz.:

d) the Heirs do not have and cannot produce even a certified true copy of TCT 273301; e) neither Veronica Lacalle nor any of her heirs ever declared the property under TCT 273301 for taxation purposes since its alleged acquisition on February 24, 1959 or since the issuance of said title on August 7, 1959; f) not a single centavo was ever paid by the Heirs as real estate taxes; and

g) no steps were ever taken by the Heirs to ascertain the genuineness and authenticity of the conflicting titles. 2) the statement in open Court of the Heirs' own counsel that his clients did not have original copy of the title, that they were fact "still searching" for the title;xxxvii 3) the testimony of Jose Moreno Lacalle that he had no copy "of the document which says ** (his) mother is the registered owner" of the land in question; that he "cannot find the original" which "maybe" was in possession of his mother's agent, a certain Mr. Lopez, who, he could no longer locate; that he had tried to verify the existence of the title "from the Register of Deeds of Pasig and Pasay" without success; that he had not, however, gone to the Register of Deeds of Paraaque or Las Pias;xxxviii 4) that the only document bearing on the issue submitted by the heirs, the deed of absolute sale purportedly executed by Eusebio Mojica, Clara Mojica, Maria Mojica, Antonia Mojica, Amanda Mojica and Teodora Aranda -- which deeded over to Veronica Lacalle the "land 'known as Lot 1 PSU-151453,'" but which made no reference to any Torrens title over it -- was not accompanied by proof of the vendors' ownership of the land in question; 5) that the land subject of the Heirs' action for quieting of title being registered land (being in fact registered in the Dimans' favor), the unregistered deed of sale relied upon by the Heirs cannot and does not affect said land, or bind any third party (including the Dimans) for the reason that, as a matter of law: " ** (N)o deed, mortgage, lease or other voluntary instrument, except a will purporting to convey or affect registered land, shall take effect as a conveyance or bind the land, but shall operate only as a contract between the parties and as evidence of authority to the Register of Deeds to make registration;" and it is the "act of registration (that) shall be the operative act to convey or effect the land in so far as third persons are concerned," which "registration shall be made in the ** Register of Deeds for the province or city where the land lies."xxxix and 6) that there is no proof whatever of the ownership or character of the rights of the vendors (the Mojicas) over the property purportedly conveyed.

a) the Heirs' TCT 273301 (Rizal) is not recorded in the Registry of Rizal, or of Pasay City, or of Paraaque, or of Las Pias; b) on the other hand, the Dimans' transfer certificates of title are all duly registered in their names in Pasay City; c) there is no record of any property situated in Las Pias in the name of Veronica Lacalle -- more particularly described in TCT 273301 -- in the Index Records of Registered Property Owners under Act No. 496 in the Office of the Land Registration Authority;

In fine, the Heirs had proven nothing whatever to justify a judgment in their favor. They had not presented any copy whatever of the title they wished to be quieted. They had not adduced any proof worthy of the name to establish their precedessors' ownership of the land. On the contrary, their own evidence, from whatever aspect viewed, more than persuasively indicated their lack of title over the land, or the spuriousness of their claim of ownership thereof. The evidence on record could not be interpreted in any other way, and no other conclusion could be drawn therefrom except the unmeritoriousness of the complaint. The case at bar is a classic example of the eminent propriety of a summary judgment, or a judgment on demurrer to evidence. Considering these circumstances, including the outlandish grounds of opposition advanced by the Heirs against the Dimans' motions for summary judgment and for demurrer to evidence, no less than the obviously mistaken grounds cited by the Trial Court for denying said motions, this Court has no hesitation in declaring that it was indeed grave abuse of discretion on the part of the Trial Court to have refused to render a summary judgment or one on demurrer to evidence. In no sense may the Trial Court's errors be considered, as the Court of Appeals did in its judgment of September 9, 1997, as mere errors of judgment correctible by appeal, untarnished by any capriciousness or whimsicality. WHEREFORE, the challenged decision of the Court of Appeals promulgated on September 9, 1997 is REVERSED and SET ASIDE: the Orders dated July 14, 1996 and December 2, 1996 rendered in the action for "Quieting of Title and Damages" -docketed as Civil Case No. 94-3085 of the Regional Trial Court at Las Pias (Branch 255) and entitled "Heirs of Veronica V. Moreno Lacalle, represented by Jose Moreno Lacalle versus Cristina Diman, Clarissa Diman, George Diman, Felipe Diman and Florina Diman" -- are annuled; and said Civil Case No. 94-3085 is DISMISSED. Costs against private respondents. IT IS SO ORDERED.

G.R. No. 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. REGALADO, J.: 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 Augusta 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 plaintiffs 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 vicepresident, 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. 11 7-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. 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 plaintiffs 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: ... 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 houses and/ or construction therefrom, he/she/they has/have failed and refused, and still continues 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 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 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 plaintiffs 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 plaintiffs 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 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. 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. 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 (Chairperson), and Padilla, JJ., concur. Paras, J., took no part. Sarmiento, J., is on leave.

G.R. No. 91779 February 7, 1991 GRAND FARMS, INC. and PHILIPPINE SHARES CORPORATION, petitioners, vs. COURT OF APPEALS, JUDGE ADRIAN R. OSORIO, as Presiding Judge of the Regional Trial Court, Branch 171, Valenzuela, Metro Manila; ESPERANZA ECHIVERRI, as Clerk of Court & Ex-Officio Sheriff of the Regional Trial Court of Valenzuela, Metro Manila; SERGIO CABRERA, as Deputy Sheriffin-Charge; and BANCO FILIPINO SAVINGS AND MORTGAGE BANK, respondents. Balgos & Perez for petitioners. Sycip, Salazar, Hernandez & Gatmaitan for private respondent. REGALADO, J.:p The propriety of a summary judgment is raised in issue in the instant petition, with herein petitioners appealing the decision 1 of respondent court in CA-G.R. SP No. 17535, dated November 29, 1989, which found no grave abuse of discretion on the part of respondent judge in denying petitioners' motion for summary judgment. 2 The antecedents of this case are clear and undisputed. Sometime on April 15, 1988, petitioners filed Civil Case No. 2816-V88 in the Regional Trial Court of Valenzuela, Metro Manila for annulment and/or declaration of nullity of the extrajudicial foreclosure proceedings over their mortgaged properties, with damages, against respondents clerk of court, deputy sheriff and herein private respondent Banco Filipino Savings and Mortgage Bank. 3 Soon after private respondent had filed its answer to the complaint, petitioners filed a request for admission by private respondent of the allegation, inter alia, that no formal notice of intention to foreclose the real estate mortgage was sent by private respondent to petitioners. 4 Private respondent, through its deputy liquidator, responded under oath to the request and countered that petitioners were "notified of the auction sale by the posting of notices and the publication of notice in the Metropolitan Newsweek, a newspaper of general circulation in the province where the subject properties are located and in the Philippines on February 13, 20 and 28, 1988." 5 On the basis of the alleged implied admission by private respondent that no formal notice of foreclosure was sent to petitioners, the latter filed a motion for summary judgment contending that the foreclosure was violative of the provisions of the mortgage contract, specifically paragraph (k) thereof which provides:

k) All correspondence relative to this Mortgage, including demand letters, summons, subpoena or notifications of any judicial or extrajudical actions shall be sent to the Mortgagor at the address given above or at the address that may hereafter be given in writing by the Mortgagor to the Mortgagee, and the mere act of sending any correspondence by mail or by personal delivery to the said address shall be valid and effective notice to the Mortgagor for all legal purposes, and the fact that any communication is not actually received by the Mortgagor, or that it has been returned unclaimed to the Mortgagee, or that no person was found at the address given, or that the address is fictitious, or cannot be located, shall not excuse or relieve the Mortgagor from the effects of such notice; 6 The motion was opposed by private respondent which argued that petitioners' reliance on said paragraph (k) of the mortgage contract fails to consider paragraphs (b) and (d) of the same contract, which respectively provide as follows: b) . . . For the purpose of extra-judicial foreclosure, the Mortgagor (plaintiff) hereby appoints the Mortgagee (BF) his attorney-in-fact to sell the property mortgaged, to sign all documents and perform any act requisite and necessary to accomplish said purpose and to appoint its substitutes as such attorney-in-fact, with the same powers as above-specified. The Mortgagor hereby expressly waives the term of thirty (30) days or any other term granted or which may hereafter be granted him by law as the period which must elapse before the Mortgagee shall be entitled to foreclose this mortgage, it being specifically understood and agreed that the said Mortgagee may foreclose this mortgage at any time after the breach of any conditions hereof. . . . xxx xxx xxx d) Effective upon the breach of any conditions of the mortgage and in addition to the remedies herein stipulated, the Mortgagee is hereby likewise appointed attorney-infact of the Mortgagor with full powers and authority, with the use of force, if necessary, to take actual possession of the mortgaged property, without the necessity for any judicial order or any permission of power to collect rents, to eject tenants, to lease or sell the mortgaged property, or any part thereof, at public or private sale without previous notice or adverstisement of any kind and execute the corresponding bills of sale, lease or other agreement that may be deemed convenient, to make repairs or improvement to the mortgaged property and pay for the same and perform any other act which the Mortgagor may deem convenient . . . 7 On February 27, 1989, the trial court issued an order, denying petitioners' motion for summary judgment. 8 Petitioners' motion for reconsideration was likewise denied by respondent-judge on the ground that genuine and substantial issues exist which require the presentation of evidence during the trial, to wit: (a) whether or not the loan has matured; (b) whether or not private respondent notified petitioners of the foreclosure of their mortgage; (c) whether or not the notice by publication of the foreclosure constitutes sufficient notice to petitioners under the mortgage contract; (d) whether or not the applicant for foreclosure of the mortgage was a duly authorized representative of private respondent; and (e) whether or not the foreclosure was enjoined by a resolution of this Court. 9

Petitioners thereafter went on a petition for certiorari to respondent court attacking said orders of denial as having been issued with grave abuse of discretion. As earlier adverted to, respondent court dismissed the petition, holding that no personal notice was required to foreclose since private respondent was constituted by petitioners as their attorney-in-fact to sell the mortgaged property. It further held that paragraph (k) of the mortgage contract merely specified the address where correspondence should be sent and did not impose an additional condition on the part of private respondent to notify petitioners personally of the foreclosure. Respondent court also denied petitioners motion for reconsideration, hence the instant petition. We rule for petitioners. The Rules of Court authorize the rendition of a summary judgment if the pleadings, depositions and admissions on file, together with the affidavits, show that, except as to the amount of damages, there is no issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. 10 Although an issue may be raised formally by the pleadings but there is no genuine issue of fact, and all the facts are within the judicial knowledge of the court, summary judgment may be granted. 11 The real test, therefore, of a motion for summary judgment is whether the pleadings, affidavits and exhibits in support of the motion 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 that the claim is clearly meritorious. 12 Applying said criteria to the case at bar, we find petitioners' action in the court below for annulment and/or declaration of nullity of the foreclosure proceedings and damages ripe for summary judgment. Private respondent tacitly admitted in its answer to petitioners' request for admission that it did not send any formal notice of foreclosure to petitioners. Stated otherwise, and as is evident from the records, there has been no denial by private respondent that no personal notice of the extrajudicial foreclosure was ever sent to petitioners prior thereto. This omission, by itself, rendered the foreclosure defective and irregular for being contrary to the express provisions of the mortgage contract. There is thus no further necessity to inquire into the other issues cited by the trial court, for the foreclosure may be annulled solely on the basis of such defect. While private respondent was constituted as their attorney-in-fact by petitioners, the inclusion of the aforequoted paragraph (k) in the mortgage contract nonetheless rendered personal notice to the latter indispensable. As we stated in Community Savings & Loan Association, Inc., et al. vs. Court of Appeals, et al., 13 where we had the occasion to construe an identical provision: On the other important point that militates against the petitioners' first ground for this petition is the fact that no notice of the foreclosure proceedings was ever sent by CSLA to the deceased mortgagor Antonio Esguerra or his heirs in spite of an express stipulation in the mortgage agreement to that effect. Said Real Estate Mortgage provides, in Sec. 10 thereof that:

(10) All correspondence relative to this mortgage, including demand letters, summons, subpoenas, or notifications of any judicial or extrajudicial actions shall be sent to the Mortgagor at the address given above or at the address that may hereafter be given in writing by the Mortgagor to the Mortgagee, and the mere act of sending any correspondence by mail or by personal delivery to the said address shall be valid and effective notice to the Mortgagor for all legal purposes, . . . (Emphasis in the original text.) The Court of Appeals, in appreciating the foregoing provision ruled that it is an additional stipulation between the parties. As such, it is the law between them and as it not contrary to law, morals, good customs and public policy, the same should be complied with faithfully (Article 1306, New Civil Code of the Philippines). Thus, while publication of the foreclosure proceedings in the newspaper of general circulation was complied with, personal notice is still required, as in the case at bar, when the same was mutually agreed upon by the parties as additional condition of the mortgage contract. Failure to comply with this additional stipulation would render illusory Article 1306 of the New Civil Code of the Philippines (p. 37, Rollo). On the issue of whether or not CSLA notified the private respondents of the extrajudicial foreclosure sale in compliance with Sec. 10 of the mortgage agreement the Court of Appeals found as follows: As the record is bereft of any evidence which even impliedly indicate that the required notice of the extrajudicial foreclosure was ever sent to the deceased debtormortgagor Antonio Esguerra or to his heirs, the extrajudicial foreclosure proceedings on the property in question are fatally defective and are not binding on the deceased debtor-mortgagor or to his heirs (p. 37, Rollo) Hence, even on the premise that there was no attendant fraud in the proceedings, the failure of the petitioner bank to comply with the stipulation in the mortgage document is fatal to the petitioners' cause. We do not agree with respondent court that paragraph (k) of the mortgage contract in question was intended merely to indicate the address to which the communications stated therein should be sent. This interpretation is rejected by the very text of said paragraph as above construed. We do not see any conceivable reason why the interpretation placed on an identically worded provision in the mortgage contract involved in Community Savings & Loan Association, Inc. should not be adopted with respect to the same provision involved in the case at bar. Nor may private respondent validly claim that we are supposedly interpreting paragraph (k) in isolation and without taking into account paragraphs (b) and (d) of the same contract. There is no irreconcillable conflict between, as in fact a reconciliation should be made of, the provisions of paragraphs (b) and (d) which appear first in the mortgage contract and those in paragraph (k) which follow thereafter and necessarily took into account the provisions of the preceding two paragraphs. 14 The notices respectively mentioned in paragraphs (d) and (k) are addressed to the particular purposes contemplated therein. Those mentioned in paragraph (k) are specific and additional requirements intended for the mortgagors so that, thus apprised, they may take the necessary legal steps for the protection of

their interests such as the payment of the loan to prevent foreclosure or to subsequently arrange for redemption of the property foreclosed. What private respondent would want is to have paragraph (k) considered as nonexistent and consequently disregarded, a proposition which palpably does not merit consideration. Furthermore, it bears mention that private respondent having caused the formulation and preparation of the printed mortgage contract in question, any obscurity that it imputes thereto or which supposedly appears therein should not favor it as a contracting party. 15 Now, as earlier discussed, to still require a trial notwithstanding private respondent's admission of the lack of such requisite notice would be a superfluity and would work injustice to petitioners whose obtention of the relief to which they are plainly and patently entitled would be further delayed. That undesirable contingency is obviously one of the reasons why our procedural rules have provided for summary judgments. WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE and this case is REMANDED to the court of origin for further proceedings in conformity with this decision. This judgment is immediately executory. SO ORDERED. Melencio-Herrera, Padilla and Sarmiento, JJ., concur. Paras, J., took no part.

G.R. No. L-38280 March 21, 1975 ST. PETER MEMORIAL PARK, INC., petitioner, vs. HON. JOSE C. CAMPOS, JR. and/or COURT OF FIRST INSTANCE OF RIZAL (Quezon City, REGINO CLEOFAS, and LUCIA DE LA CRUZ, respondents. G.R. No. L-39905 March 21, 1975 BANCO FILIPINO SAVINGS & MORTGAGE BANK, petitioner, vs. HON. JOSE CAMPOS, REGINO CLEOFAS, and LUCIA DE LA CRUZ, respondents. Feliciano C. Tumale for petitioner St. Peter Memorial Park, Inc. Tan Law Office for petitioner Banco Filipino Savings and Mortgage Bank. Juan T. Aquino for respondents.

After trial, the lower court, on May 2, 1973, rendered a decision in favor of the plaintiffs and against the defendants. The Memorial Park and Banco Filipino, on June 23, 1973, filed their joint motion for reconsideration of the decision. On June 30, 1973, they filed a joint motion for new trial. On July 9, 1973, the Memorial Park filed a supplement to the motion for reconsideration with prayer for new trial. Plaintiffs opposed the motion for reconsideration and/or new trial. On January 10, 1974, the plaintiffs moved for issuance of writ of preliminary injunction and restoration of receivership. On February 5, 1974, the trial court denied new trial. On February 21, 1974, Banco Filipino and the Memorial Park filed their notice of appeal from the decision of May 2, 1973, and filed their cash bond. Within the reglementary period they filed their joint record on appeal. On February 28, 1974, the Memorial Park filed before this Court a petition for certiorari and prohibition with preliminary injunction (L-38280) against the trial judge and the plaintiff spouses, seeking annulment of the court's order denying new trial, on the ground that the same was issued in grave abuse of discretion. On March 7, 1974, this Court issued a restraining order as follows:t.hqw NOW, THEREFORE, effective immediately and until further orders from this Court, You (respondent Judge), your agents representatives and/or any person or persons acting upon your orders or in your place or stead are hereby RESTRAINED from enforcing your decision dated May 2, 1973 and your order dated February 5, 1974, all issued in Civil Case No. Q-15001, entitled ,"Regino Cleofas, et al., plaintiff versus St. Peter Memorial Park, Inc., et al., defendants," of the Court of First Instance of Rizal, Branch IV at Quezon City, and from stopping the business operations of petitioner herein." In compliance with the foregoing, the lower court, on March 12, 1974, issued an order holding "in abeyance until further orders from the Appellate Court," action on the petition for appointment of a receiver and for execution of judgment pending appeal, and on March 18, 1974, likewise upon motion of spouses Cleofas and De la Cruz, deferred the approval of the Joint Record on Appeal "until the Supreme Court has ruled on the petition for certiorari filed by the defendants." However, on July 8, 1974, the court, again upon motion of said spouses, dismissed the appeal filed by both the Memorial Park and Banco Filipino, on the ground that the same was abandoned when Memorial Park filed the present petition for certiorari on February 28, 1974, the dismissal order having been brought to the attention of this Court in the manifestation of the Memorial Park of July 31, 1974. On January 3, 1975, Banco Filipino, for its part, filed in this Court a petition for certiorari and mandamus with preliminary injunction (L-38843), against the trial judge and the spouses Cleofas and Dela Cruz, to annul the trial court's order of July 8, 1974 dismissing its own appeal. The main issue in these two cases is whether or not the respondent Judge acted in grave abuse of discretion in dismissing the joint appeal of the Memorial Park and Banco Filipino in its order of July 8, 1974.

FERNANDEZ, J.:+.wph!1 The Court decided to dispose of these two cases in a consolidated decision, considering that the facts in both are the same and the issues are intertwined. In the Court of First Instance of Rizal, the spouses Regino Cleofas and Lucia de la Cruz filed suit against St. Peter Memorial Park, Inc. (or Memorial Park for short), Araceli Wijangco del Rosario, National Investment and Development Corporation (or NIDC), Banco Filipino Savings and Mortgage Bank (or Banco Filipino for short), the Register of Deeds of Rizal, the Register of Deeds of Quezon City and the Sheriff of Quezon City (Civil Case No. Q-15001). In their amended complaint, the spouses prayed that they be declared the rightful owners of Lot No. 719 of the Piedad Estate, that the Torrens Title to said lot be reconstituted, the title thereto of their deceased predecessor, Antonio Cleofas, having been burned in a fire in 1933; that the certificates of title over said lot in the name of the Memorial Park, and that in the name of Wijangco del Rosario, and all the certificates of title from which these certificates were derived be declared null and void; that the mortgages over said, lot constituted in favor of Banco Filipino and the NIDC be declared null and void; and that the Memorial Park be ordered to pay plaintiffs damages. The amended complaint likewise sought issuance of preliminary injunction and the appointment of a receiver. The lower court ordered appointment of a receiver, but upon filing of a bond by the Memorial Park, the receivership was lifted.

And with respect to Case No. L-38280, the main issue is whether or not the respondent Judge committed a grave abuse of discretion when it denied in its order of February 5, 1974 the motion for new trial of the Memorial Park. In moving for dismissal of the appeal in the trial court, respondents spouses averred that "the filing of the petition for certiorari and prohibition in the Supreme Court by the principal defendant with the acquiescence of the other defendant subsequent to the filing of the notice of appeal, appeal bond and motion for extension to file the record on appeal, in effect, is abandonment of the unperfected appeal;" that "the defendants could not pursue both remedies, appeal to the Court of Appeals and appeal by special action to the Supreme Court of one and the same case;" and that "the dismissal of the appeal is not covered by the restraining order issued by the Supreme Court in the aforesaid petition filed by one of the defendants in this case." And the trial court, "finding the reasons for the motion to dismiss to be well taken, and it appearing that consideration by this Court of the pending motion to dismiss the appeal is not one of those sought to be restrained by the order of the Supreme Court," dismissed the appeal in its order of July 8, 1974. It must be noted that the petitioner in L-38280 is only St. Peter Memorial Park. Banco Filipino is not a party in that first proceeding before this Court. Thus, whatever may be the effect of the filing of a petition for certiorari, on the pending appeal, cannot affect the appeal of Banco Filipino. And the respondent Judge clearly committed a clear error and a grave abuse of discretion when it dismissed the appeal of Banco Filipino due to the filing by the Memorial Park of its petition in L-38280. Moreover, as will now be explained, the dismissal of the appeal violated the restraining order issued by this Court. Even with respect to the Memorial Park, we cannot say there was abandonment of the appeal. There would have been abandonment if there is incompatibility between the two remedies sought by the Memorial Park, that is, between said appeal and the petition for certiorari. The appeal is from the decision of May 2, 1973; the certiorari petition is directed against the order dated February 5, 1974. Under American Law, a motion for new trial does not work as a waiver of the appeal, unless there is a rule to the contrary (U.S. v. Hodge, 12 L ed 437). Thus, both the motion for new trial and the appeal may be pursued at the same time (McCandless v. Kramer, 76 Idaho 516, 286 P2d 334; Labbe v. Cyr 111 A2d 330). This ruling is of persuasive effect on us considering the source of our rules on appeal and new trial. Here, the certiorari petition in L-38280 is in pursuance of the motion for new trial. Memorial Park can pursue this remedy as well as that of the appeal from the main decision. More important, it must be remembered that in L-38280 this Court issued a restraining order enjoining respondent Judge "from enforcing your decision dated May 2, 1973." This restraining order was intended to retain the status quo insofar as said decision and other circumstances surrounding it are concerned. Any court action or order that would change any circumstance of the decision is necessarily included in the scope of the restraining order. At the time that restraining order was issued, the trial court's decision was a decision on appeal. The order dismissing the appeal tended to change the status quo since by reason of the dismissal, the enjoined

decision became final. For the reasons we have expounded we find said dismissal order to have been issued in grave abuse of discretion. Let us now take up the order of February 5, 1974, denying the motion for new trial of both the Memorial Park and the Banco Filipino, challenged in L-38280. From the decision of the trial court it appears that the parties do not dispute that Lot No. 719 of the Piedad Estate forms part of the land covered by Original Certificate of Title No. 614 of the Registry of Deeds of Rizal, in the name of the Government of the Philippine Islands. On March 20, 1909, the Director of Lands, as administrator of the Piedad Estate, executed a contract in favor of Antonio Cleofas (Sales Certificate No. 923). According to the said decision, private respondents' evidence indicated that Antonio Cleofas, their predecessor, took possession of the lot and occupied the same until his death sometime in 1945. However, Antonio's title was burned in a fire sometime in 1933. Private respondents did not take any step to reconstruct said title until the real estate boom in Quezon City. But when they filed a petition for reconstruction in the Court of First Instance of Rizal (Quezon City), they discovered that the lot was already covered by TCT No. 21893 in the name of Trino Narciso and Aniceto Martin, predecessors of the Memorial Park. In support of their allegation that a certificate of title to Lot No. 719 was issued in favor of Antonio Cleofas, respondents presented Exh. A, which is Sheet 15 of O.C.T No. 614, mother title of the Piedad Estate. This title contained many sheets to record transactions because the estate was large. On the other hand, the decision states, that the Memorial Park and Banco Filipino presented evidence to the following effect: On July 15, 1921, Antonio Cleofas executed a Deed of Assignment of Sales Certificate No. 923 (over Lot 719) in favor of Aniceto Martin (Exh. 1), before the Friar Lands Division of the Bureau of Lands, which deed was approved on July 22, 1921. On May 2, 1932, the Bureau of Lands issued Deed of Conveyance No. 25874 over Lot No. 719 (Exh. 2), in favor of Aniceto Martin and Trino Narciso, upon the latter's payment of the full price of the lot. On the basis of this deed, there issued to Aniceto Martin and Trino Narciso, on June 17, 1932, TCT No. 21893 (Exh. 3). Martin and Narciso declared the lot in their name, for purposes of taxation (Exh. 4, dated March 12, 1935). On May 1, 1937, they sold tile lot to Nazario Roque (Exh. 5), in view of which, TCT No. 32258 (Exh. 6) was issued to Roque. Upon his death, TCT No. 12360 was issued to his heirs, Basilisa and Carmen Roque. In 1967 St. Peter Memorial Park, Inc. purchased Lot No. 719, for value and in good faith, from Carmen and Basilisa Roque. On the basis of Exh. A, respondent Judge made the finding that "on Page 15 of O.C.T. No. 614, by virtue of Sale Certificate No. 923 issued by the Bureau of Lands to Antonio Cleofas executed on March 20, 1909, an entry was made in the name of Antonio Cleofas on July, 1929 showing the award and final sale of Lot No. 719 to him by the government, owner of Lot No. 719 of the Piedad Estate." Exh. A (Sheet 15 of O.C.T No. 614), however, is torn, and the only data appearing thereon are as follows:t.hqw

Document Number - 4357-0-614 Kind Sale Executed in favor of Antonio Cleofas et als. Conditions I hereby certify................. herein described .............. certificate of sale.............. Lands, for the sum........... as certificate of T ............. T-63 at the Book of........... deed of sale ratified ......... tary Vicente Garcia .......... and filed in T-No. 156...... The motion for new trial is based on newly discovered evidence. It alleges that:t.hqw Fully convinced of the validity of its title, having discovered no flaw in spite of extraordinary diligence and extensive search into record connected with Lot No. 719 of the Piedad Estate, defendant St. Peter assessed and analyzed the situation after receipt of a copy of the Decision sought to be reconsidered. Defendant St. Peter was certain of one thing: that a certificate of title over Lot No. 719) of the Piedad Estate could not have been issued in favor of Cleofas because all rights thereto had been assigned to Martin predecessor-in-interest of defendant St. Peter (Exh. "1"), pursuant to which Exh. "2" (Deed of Conveyance from bureau of Lands to Martin) and Exh. "3" (TCT No, 21893) were issued, also all in favor of Martin. So, defendant St. Peter started on the premise now that the entry in favor of Antonio Cleofas, et als. on Sheet 15 of OCT No. 614 (the major portion of which appear to have been torn off and lost) must refer to another lot of the Piedad Estate and not to lot No. 719. Defendant St. Peter took another hard look at the said incomplete entry concerning Antonio Cleofas, et als on sheet 15 of OCT 614. It provided only three valuable clues to start on, namely: 1) "T-63 at the Book of ------" 2) "tary Vicente Garcia ------" 3) "and filed in T-No. 156 ---" Knowing that during the particular period in question, TCTs had only 5 digits, defendant St. Peter surmised that "T-No 156 " refers to TCT No. 156 with 2 digits missing. The said defendant then thought it only had to look at 100 TCTs or from TCT No. 15600 up to TCT No. 15699 to discover the remaining two digits and finally, the missing link.

"T-63 at the book of " was a vital clue. It turned out to be a volume in the Register of Deeds of Rizal containing 200 TCTs (from No. 15501 to 15699), and as conjectured, included the 15600 series. And defendant St. Peter discovered TCT No. 15694: 1) in the name of Antonio Cleofas, et als. 2) covering Lot No. 640 (not 719) of the Piedad Estate. 3) transferred from OCT No. 614. 4) and referring to Sheet 15 of OCT No. 614. 5) issued on July 15, 1929. The hunch of defendant St. Peter became a reality. The entry on sheet or page 15 of OCT no. 614 refers to another lot (not 719) and another title (TCT No. 15694 covering Lot No. 640 of the Piedad Estate). It is important to state as the Register of Deeds of Rizal will testify, that there is no other TCT in the series from No. 15601 to 15699 (except for No. 15694) in the name of Antonio Cleofas, alleged processor of plaintiff. Defendant St. Peter still had another clue: "Vicente Garcia", the notary whose name kept cropping up in the various documents involved in the case at bar. Another search was conducted in the musty record of the and files of Notary Public Vicente Garcia were found to be intact They disclosed:t.hqw 1) Entry No. 1977 in the Notary's book referring to Deed No. 18562 in favor of "Antonio Cleofas y hermanos" referring to lot No. 640 of the Piedad Estate. 2) Deed No. 18562 conveying Lot No. 640 of the Piedad Estate from the Bureau of Lands to Antonio Cleofas, et als. It is, therefore, now a certainty that the certificate of title to on sheet or page 15 of OCT no. 614 in the name of Antonio Cleofas et als is another certificate of title covering a different lot (TCT N4 15694 of Lot 640 of the Piedad Estate), and not a certificate of title covering Lot No. 719. The foregoing are newly discovered evidence within the meaning of paragraph (b), Sec. 1, Rule 137 of the Rules of Court and/or not presented due to mistake or excusable negligence within the purview of paragraph (a) supra. Certified copies of these are attached hereto as: 1) Annex "a" TCT no. 15694. 2) Annex "b" Entry No. 1977 of Notary Public Vicente Garcia. 3) Annex "c" Deed No. 18562"

As heretofore stated, the trial court refused to grant new trial. The questions presented in L-38280 are : (1) Is certiorari the proper remedy, ordinary appeal being available to petitioner St. Peter Memorial Park, Inc. (2) Did respondent Judge commit grave abuse of discretion and/or excess of jurisdiction when he denied the motion for new trial? As contended by herein respondents, the general rule is that the extraordinary writ of certiorari is not proper when ordinary appeal is available. However, we have granted the writ in cases where it is shown that appeal would be inadequate, slow, insufficient and will not promptly relieve petitioner from the injurious effects of the order complained of (Jose vs. Zulueta, 2 SCRA 578; 57 Phil. 893; Botelho Shipping Corporation vs. Leuterio, 8 SCRA 127; People vs. Zulueta, 89 Phil. 756). In fact, in "Alfonso vs. Yatco," 80 Phil. 407, to avoid future litigations, we passed upon a petition for certiorari though the proper remedy was appeal. Indeed, as we held in "Ramos vs. Central Bank," 41 SCRA 584:t.hqw Nor would it serve the interest of justice to dismiss the case at this stage and let a new petition be filed in another court. In Bay View vs. Manila Hotel Worker's Union (L-21803, 17 December 1966), this Court, through Mr. Justice Conrado V. Sanchez, pointed out the evils attending split jurisdictions, saying:t.hqw "To draw a tenuous jurisdictional line is to undermine stability in... litigations. A piece meal resort to one Court and another gives rise to multiplicity of suits... The time to be lost, effort wasted, anxiety augmented, additional expense incurred...these are considerations which weigh heavily against split jurisdiction. Indeed, it is more in keeping with orderly administration of justice that all the causes of action here be cognizable and heard by only one court ... (Cas. cit., 18 SCRA 953)." The grounds cited by petitioners for the allowance of the writ of certiorari, justify the giving of due course to the petitions in these two cases, for ordinary appeal will not be adequate. As many memorial lot buyers are affected, and the very integrity of the torrens system is at stake, public interest is involved. We now address ourselves to the issue of whether respondent Judge committed grave abuse of discretion and/or excess of jurisdiction when he denied petitioner's motion for new trial, based on the evidence attached to the said motion and which we recited earlier in this decision. Under paragraph (b), Sec. 1, Rule 37 of the Rules of Court, the requisites for the grant of new trial based on:t.hqw Newly discovered evidence, which he could not, with reasonable diligence, have discovered, and produced at the trial, and which if presented would probably alter the result, are: (1) that such evidence has been discovered after the trial; (2) that even with the exercise of reasonable diligence, it could not have been discovered and produced at that trial; and (3) that such evidence is of such a nature as to alter the result of the case if admitted (People vs. Ventura, 5 SCRA 741).

This rule for the granting of a motion for new trial, as all other rules of procedure, should be liberally construed to assist the parties in obtaining a just and speedy determination of their rights. Court litigations are primarily for the search of truth, and a liberal interpretation of the rules by which both parties are given the fullest opportunity to adduce proofs is the best way to find out such truth. The dispensation of justice and vindication of legitimate grievances should not be barred by technicalities (Sec. 1, Rule 1, Revised Rules of Court; Talavera vs. Mangoba, L18373, August 31, 1963, 8 SCRA 837). Gauged by these standards, we find the evidence proposed to be presented by petitioner in a new trial are newly discovered evidence within the contemplation of the Rules of Court. The said evidence could not have been produced during the trial because the subject-matter of the trial was Lot No. 719. Petitioner correctly searched, discovered and presented during that trial, all documents pertaining to Lot No. 719 only. The evidence sought to be presented in a new trial by petitioner became pertinent and important only after trial, when judgment was rendered by respondent Judge that private respondents have a valid and subsisting title to Lot No. 719 on the basis of sheet 15 of OCT No. 614 (Exh. "A") which on its fact does not mention Lot No. 719. Based on the incomplete data appearing on Exh. "A", petitioner conducted a new search and discovered the evidence it now seeks to present in a new trial, indubitably showing that sheet 15 of OCT No. 614 refers to a title to Lot No. 640, and not to Lot No. 719 in the name of petitioner. If admitted in a new trial, these newly discovered evidence will probably alter the judgment of the trial court. In making the foregoing conclusions, we do not by any means intend to prejudge the effect of such evidence on the outcome of the case. We are confining ourselves to the conclusion that the evidence intended to be submitted, "would probably alter the result." We hold that respondent Judge committed grave abuse of discretion in denying the motion for new trial, having disregarded in a capricious and arbitrary manner, the newly discovered evidence (PAL vs. Salcedo, L-22110, Sept. 29, 1967; People vs. Halasa, L-21495, July 21, 1967; Palma vs. Q & S, Inc., 17 SCRA 100, People vs. Gutierrez, 26 SCRA 143). We rule, therefore, in favor of new trial. The grant of new trial necessarily vacates the judgment (See. 5, Rule 37, Revised Rules of Court; Knowles vs. Thompson, 65 P 468; Evansville vs. Cooksey, 112 NE 541) subject of the appeal which, consequently, becomes moot. WHEREFORE, PREMISES CONSIDERED, the petitions in L-38280 and L-39905 are granted, the orders of February 5, 1974 and July 8, 1974 are hereby declared null and void and set aside, and both cases are remanded to the trial court for new trial pursuant to the motion to that effect of both Banco Filipino and Memorial Park, dated June 30, 1973, which is hereby granted. Costs against private respondents. Makalintal, C.J., and Antonio, J., concur.

Aquino J., is on leave.

Separate Opinions BARREDO, J., concurring: I would like to make clear that my reason for concurring in the holding in the main opinion that certiorari is the proper remedy in relation to the trial court's denial of petitioners' motion for new trial notwithstanding that they had already filed their respective notices of appeal, appeal bonds and motions for extension to file their records on appeal is that such special civil action may be resorted to when it is patent from the nature of the purported newly discovered evidence that movant can more or less conclusively show that the factual issue to which such evidence relates would have to be decided differently if the same were to be admitted by the court. In such a situation, it is obvious to me that to give due course to the appeal and merely allow the denial of the motion for new trial to be assigned as an error in appellant's brief would only result in unnecessary delay of the final disposition of the controversy between the parties. Since it is more likely that the decision would have to be changed or modified after the new evidence is presented, I see no sense in leaving the question of its admission for resolution in the appeal, when after all the already evident ultimate result would be to return the case to the trial court for its reception. The other aspect of respondents' contention that the evidence involved in these cases is not newly discovered is to my mind secondary. Assuming there is some plausibility in respondents' pose in this respect, I am persuaded nevertheless that substantial justice would be better attained by admitting the preferred evidence, which as already observed, appears to be indubitable. The main opinion prefers to reserve judgment on this point, but I feel it is more honest to say that if new trial must be granted in these in spite of the fact that petitioners have already taken their appeal within the reglementary period, it is only because the facts anyone can infer or deduce from the evidence being offered, which is documentary and official, are apparently more proximate to the truth, in the light of common experience. As I see it, the net result of Our decision cannot prejudice the respondents. It is quite obvious that it is Lot 640 and not Lot 719 that belongs to them, and they do not pretend that they have acquired more than one lot in Piedad Estate, so as to entitle them to both Lots 640 and 719. The accident that caused the loss of their title, TCT 15694 is no reason at all for courts to unjustly enrich them by adjudicating to them Lot 719, when all they have to do is assert their right over Lot 640 which is the one that appears recorded in their name in the official records which up to now stand unchallenged, much less impugned. Fernando, J., concurs.

EMILIO TUASON, petitioner, vs. COURT OF APPEALS and MARIA VICTORIA L. TUASON, respondents. SYLLABUS 1. REMEDIAL LAW; CIVIL PROCEDURE; RELIEF FROM JUDGMENT; ALLOWED ONLY IN EXCEPTIONAL CASES WHERE THERE IS NO OTHER AVAILABLE OR ADEQUATE REMEDY. - A petition for relief from judgment is an equitable remedy; it is allowed only in exceptional cases where there is no other available or adequate remedy. When a party has another remedy available to him, which may be either a motion for new trial or appeal from an adverse decision of the trial court, and he was not prevented by fraud, accident, mistake or excusable negligence from filing such motion or taking such appeal, he cannot avail himself of this petition. Indeed, relief will not be granted to a party who seeks avoidance from the effects of the judgment when the loss of the remedy at law was due to his own negligence; otherwise the petition for relief can be used to revive the right to appeal which have been lost thru inexcusable negligence. ID.; ID.; ID.; WHEN AVAILED MUST BE BASED ON THE GROUND OF FRAUD, ACCIDENT, MISTAKE OR EXCUSABLE NEGLIGENCE AND THAT IT IS SHOWN THAT PETITIONER HAS A GOOD, SUBSTANTIAL AND MERITORIOUS DEFENSE OR CAUSE OF ACTION. - A petition for relief from judgment is governed by Rule 38, Section 2 of the Revised Rules of Court. A final and executory judgment or order of the Regional Trial Court may be set aside on the ground of fraud, accident, mistake or excusable negligence. In addition, the petitioner must assert facts showing that he has a good, substantial and meritorious defense or cause of action. If the petition is granted, the court shall proceed to hear and determine the case as if a timely motion for new trial had been granted therein. ID.; ID.; ID.; NOTICES SENT TO COUNSEL OF RECORD, BINDING UPON THE CLIENT. The failure of petitioners counsel to notify him on time of the adverse judgment to enable him to appeal therefrom is negligence which is not excusable. Notice sent to counsel of record is binding upon the client and the neglect or failure of counsel to inform him of an adverse judgment resulting in the loss of this right to appeal is not a ground for setting aside a judgment valid and regular on its face. ID.; ID.; ID.; COUNSEL REQUIRED TO INFORM THE TRIAL COURT THE REASON FOR HIS CLIENTS NON-APPEARANCE AT THE SCHEDULED HEARINGS. - Similarly inexcusable was the failure of his former counsel to inform the trial court of petitioners confinement and medical treatment as the reason for his non-appearance at the scheduled hearings. Petitioner has not given any reason why his former counsel, intentionally or unintentionally, did not inform the court of this fact. This led the trial court to order the case deemed submitted for decision on the basis of the evidence presented by the private respondent alone. To compound the negligence of petitioners counsel, the order of the trial court was never assailed via a motion for reconsideration.

5.

ID.; EVIDENCE; CREDIBILITY OF WITNESSES; FACTUAL FINDINGS OF THE TRIAL COURT UPHELD ABSENT PROOF THAT THE WITNESSES TESTIMONIES ARE CLEARLY AND MANIFESTLY ERRONEOUS. - Suffice it to state that the finding of the trial court as to the existence or nonexistence of petitioners psychological incapacity at the time of the marriage is final and binding on us. Petitioner has not sufficiently shown that the trial courts factual findings and evaluation of the testimonies of private respondents witnesses vis-a-vis petitioners defenses are clearly and manifestly erroneous. CONSTITUTIONAL LAW; BILL OF RIGHTS; PROCEDURAL DUE PROCESS; NOT VIOLATED IF PETITIONER WAS GIVEN OPPORTUNITY TO BE HEARD. - Petitioner cannot now claim that he was deprived of due process. He may have lost his right to present evidence but he was not denied his day in court. As the records show, petitioner, through counsel, actively participated in the proceedings below. He filed his answer to the petition, cross-examined private respondents witnesses and even submitted his opposition to private respondents motion for dissolution of the conjugal partnership of gains. CIVIL LAW; FAMILY CODE; ANNULMENT, DECLARATION OF NULLITY AND LEGAL SEPARATION; PROSECUTING ATTORNEY OR FISCAL MAY BE ORDERED BY THE COURT TO INTERVENE ON BEHALF OF THE STATE TO PREVENT COLLUSION BETWEEN THE PARTIES. - A grant of annulment of marriage or legal separation by default is fraught with the danger of collusion. Hence, in all cases for annulment, declaration of nullity of marriage and legal separation, the prosecuting attorney or fiscal is ordered to appear on behalf of the state for the purpose of preventing any collusion between the parties and to take care that their evidence is not fabricated or suppressed. If the defendant spouse fails to answer the complaint, the court cannot declare him or her in default but instead, should order the prosecuting attorney to determine if collusion exists between the parties. The prosecuting attorney or fiscal may oppose the application for legal separation or annulment through the presentation of his own evidence, if in his opinion, the proof adduced is dubious and fabricated. ID.; ID.; ID.; NON-INTERFERENCE OF A PROSECUTING ATTORNEY IS NOT FATAL TO THE VALIDITY OF THE PROCEEDINGS IN THE TRIAL COURT IF PETITIONER VEHEMENTLY OPPOSED THE ANNULMENT OF THEIR MARRIAGE IN THE SAID COURT. - The role of the prosecuting attorney or fiscal in annulment of marriage and legal separation proceedings is to determine whether collusion exists between the parties and to take care that the evidence is not suppressed or fabricated. Petitioners vehement opposition to the annulment proceedings negates the conclusion that collusion existed between the parties. There is no allegation by the petitioner that evidence was suppressed or fabricated by any of the parties. Under these circumstances, we are convinced that the non-intervention of a prosecuting attorney to assure lack of collusion between the contending parties is not fatal to the validity of the proceedings in the trial court.

6.

2.

7.

3.

8.

4.

APPEARANCES OF COUNSEL

Seguion Reyna, Montecillo & Ongsiako for petitioner. Salonga, Hernandez & Allado for private respondent. DECISION
PUNO, J.: This petition for review on certiorari seeks to annul and set aside the decision dated July 29, 1994 of the Court of Appeals in CA-G.R. CV No. 37925 denying petitioners appeal from an order of the Regional Trial Court, Branch 149, Makati in Civil Case No. 3769. This case arose from the following facts: In 1989, private respondent Maria Victoria Lopez Tuason filed with the Regional Trial Court, Branch 149, Makati a petition for annulment or declaration of nullity of her marriage to petitioner Emilio R. Tuason. In her complaint, private respondent alleged that she and petitioner were married on June 3, 1972 and from this union, begot two children; that at the time of the marriage, petitioner was already psychologically incapacitated to comply with his essential marital obligations which became manifest afterward and resulted in violent fights between husband and wife; that in one of their fights, petitioner inflicted physical injuries on private respondent which impelled her to file a criminal case for physical injuries against him; that petitioner used prohibited drugs, was apprehended by the authorities and sentenced to a one-year suspended penalty and has not been rehabilitated; that petitioner was a womanizer, and in 1984, he left the conjugal home and cohabited with three women in succession, one of whom he presented to the public as his wife; that after he left the conjugal dwelling, petitioner gave minimal support to the family and even refused to pay for the tuition fees of their children compelling private respondent to accept donations and dole-outs from her family and friends; that petitioner likewise became a spendthrift and abused his administration of the conjugal partnership by alienating some of their assets and incurring large obligations with banks, credit card companies and other financial institutions, without private respondents consent; that attempts at reconciliation were made but they all failed because of petitioners refusal to reform. In addition to her prayer for annulment of marriage, private respondent prayed for powers of administration to save the conjugal properties from further dissipation.[1] Petitioner answered denying the imputations against him. As affirmative defense, he claimed that he and private respondent were a normal married couple during the first ten years of their marriage and actually begot two children during this period; that it was only in 1982 that they began to have serious personal differences when his wife did not accord the respect and dignity due him as a husband but treated him like a persona non grata; that due to the extreme animosities between them, he temporarily left the conjugal home for a cooling-off period in 1984; that it is private respondent who had been taking prohibited drugs and had a serious affair with another man; that petitioners work as owner and operator of a radio and television station exposed him to malicious gossip linking him

to various women in media and the entertainment world; and that since 1984, he experienced financial reverses in his business and was compelled, with the knowledge of his wife, to dispose of some of the conjugal shares in exclusive golf and country clubs. Petitioner petitioned the court to allow him to return to the conjugal home and continue his administration of the conjugal partnership. After the issues were joined, trial commenced on March 30, 1990. Private respondent presented four witnesses, namely, herself; Dr. Samuel Wiley, a Canon Law expert and marriage counselor of both private respondent and petitioner; Ms. Adelita Prieto, a close friend of the spouses, and Any. Jose F. Racela IV, private respondents counsel. Private respondent likewise submitted documentary evidence consisting of newspaper articles of her husbands relationship with other women, his apprehension by the authorities for illegal possession of drugs; and copies of a prior church annulment decree.[2] The parties marriage was clerically annulled by the Tribunal Metropolitanum Matrimoniale which was affirmed by the National Appellate Matrimonial Tribunal in 1986.[3] During presentation of private respondents evidence, petitioner, on April 18, 1990, filed his Opposition to private respondents petition for appointment as administratrix of the conjugal partnership of gains. After private respondent rested her case, the trial court scheduled the reception of petitioners evidence on May 11, 1990. On May 8, 1990, two days before the scheduled hearing, a counsel for petitioner moved for a postponement on the ground that the principal counsel was out of the country and due to return on the first week of June.[4] The court granted the motion and reset the hearing to June 8, 1990.[5] On June 8, 1990, petitioner failed to appear. On oral motion of private respondent, the court declared petitioner to have waived his right to present evidence and deemed the case submitted for decision on the basis of the evidence presented. On June 29, 1990, the trial court rendered judgment declaring the nullity of private respondents marriage to petitioner and awarding custody of the children to private respondent. The court ruled: WHEREFORE, in view of the foregoing, the marriage contracted by Ma. Victoria L. Tuason and Emilio R. Tuason on June 3, 1972 is declared null and void oh initio on the ground of psychological incapacity on the part of the defendant under Sec. 36 of the Family Code. Let herein judgment of annulment be recorded in the registry of Mandaluyong, Metro Manila where the marriage was contracted and in the registry of Makati, Metro Manila where the marriage is annulled. The custody of the two (2) legitimate children of the plaintiff and the defendant is hereby awarded to the plaintiff. The foregoing judgment is without prejudice to the application of the other effects of annulment as provided for under Arts. 50 and 51 of the Family Code of the

Philippines.[6] Counsel for petitioner received a copy of this decision on August 24, 1990. No appeal was taken from the decision. On September 24, 1990, private respondent filed a Motion for Dissolution of Conjugal Partnership of Gains and Adjudication to Plaintiff of the Conjugal Properties.[7] Petitioner opposed the motion on October 17, 1990[8] Also on the same day, October 17, 1990, petitioner, through new counsel, filed with the trial court a petition for relief from judgment of the June 29, 1990 decision. The trial court denied the petition on August 8, 1991.[9] Petitioner appealed before the Court of Appeals the order of the trial court denying his petition for relief from judgment. On July 29, 1994, the Court of Appeals dismissed the appeal and affirmed the order of the trial court.[10] Hence this petition. The threshold issue is whether a petition for relief from judgment is warranted under the circumstances of the case. We rule in the negative. A petition for relief from judgment is governed by Rule 38, Section 2 of the Revised Rules of Court which provides: Section 2. Petition to Court of First Instance for relief from judgment or other proceedings thereof. - When a judgment or order is entered, or any other proceeding is taken, against a party in a court of first instance through fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in the same cause praying that the judgment, order or proceeding be set aside. Under the rules, a final and executory judgment or order of the Regional Trial Court may be set aside on the ground of fraud, accident, mistake or excusable negligence. In addition, the petitioner must assert facts showing that he has a good, substantial and meritorious defense or cause of action.[11] If the petition is granted, the court shall proceed to hear and determine the case as if a timely motion for new trial had been granted therein.[12] In the case at bar, the decision annulling petitioners marriage to private respondent had already become final and executory when petitioner failed to appeal during the reglementary period. Petitioner however claims that the decision of the trial court was null and void for violation of his right to due process. He contends he was denied due process when, after failing to appear on two scheduled hearings, the trial court deemed him to have waived his right to present evidence and rendered judgment on the basis of the evidence for private respondent. Petitioner justifies his absence at the hearings on the ground that he was then confined for medical and/or rehabilitation reasons.[13] In his affidavit of merit before the trial court, he

attached a certification by Lt. Col. Plaridel F. Vidal, Director of the Narcotics Command, Drug Rehabilitation Center which states that on March 27, 1990 petitioner was admitted for treatment of drug dependency at the Drug Rehabilitation Center at Camp Bagong Diwa, Bicutan, Taguig, Metro Manila of the Philippine ConstabularyIntegrated National Police.[14] The records, however, show that the former counsel of petitioner did not inform the trial court of this confinement. And when the court rendered its decision, the same counsel was out of the country for which reason the decision became final and executory as no appeal was taken therefrom.[15] The failure of petitioners counsel to notify him on time of the adverse judgment to enable him to appeal therefrom is negligence which is not excusable. Notice sent to counsel of record is binding upon the client and the neglect or failure of counsel to inform him of an adverse judgment resulting in the loss of his right to appeal is not a ground for setting aside a judgment valid and regular on its face.[16] Similarly inexcusable was the failure of his former counsel to inform the trial court of petitioners confinement and medical treatment as the reason for his nonappearance at the scheduled hearings. Petitioner has not given any reason why his former counsel, intentionally or unintentionally, did not inform the court of this fact. This led the trial court to order the case deemed submitted for decision on the basis of the evidence presented by the private respondent alone. To compound the negligence of petitioners counsel, the order of the trial court was never assailed via a motion for reconsideration. Clearly, petitioner cannot now claim that he was deprived of due process. He may have lost his right to present evidence but he was not denied his day in court. As the records show, petitioner, through counsel, actively participated in the proceedings below. He filed his answer to the petition, cross-examined private respondents witnesses and even submitted his opposition to private respondents motion for dissolution of the conjugal partnership of gains.[17] A petition for relief from judgment is an equitable remedy; it is allowed only in exceptional cases where there is no other available or adequate remedy. When a party has another remedy available to him, which may be either a motion for new trial or appeal from an adverse decision of the trial court, and he was not prevented by fraud, accident, mistake or excusable negligence from filing such motion or taking such appeal, he cannot avail himself of this petition.[18] Indeed, relief will not be granted to a party who seeks avoidance from the effects of the judgment when the loss of the remedy at law was due to his own negligence; otherwise the petition for relief can be used to revive the right to appeal which had been lost thru inexcusable negligence.[19] Petitioner also insists that he has a valid and meritorious defense. He cites the Family Code which provides that in actions for annulment of marriage or legal separation, the prosecuting officer should intervene for the state because the law looks with disfavor upon the haphazard declaration of annulment of marriages by default. He contends that when he failed to appear at the scheduled hearings, the trial court should have ordered the prosecuting officer to intervene for the state and inquire as to the reason for his non-appearance.[20]

Articles 48 and 60 of the Family Code read as follows: Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecution attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment. xxx xxx xxx

conclusion that collusion existed between the parties. There is no allegation by the petitioner that evidence was suppressed or fabricated by any of the parties. Under these circumstances, we are convinced that the non-intervention of a prosecuting attorney to assure lack of collusion between the contending parties is not fatal to the validity of the proceedings in the trial court. Petitioner also refutes the testimonies of private respondents witnesses, particularly Dr. Samuel Wiley and Ms. Adelita Prieto, as biased, incredible and hearsay. Petitioner alleges that if he were able to present his evidence, he could have testified that he was not psychologically incapacitated at the time of the marriage as indicated by the fact that during their first ten years, he and private respondent lived together with their children as one normal and happy family, that he continued supporting his family even after he left the conjugal dwelling and that his work as owner and operator of a radio and television corporation places him in the public eye and makes him a good subject for malicious gossip linking him with various women. These facts, according to petitioner, should disprove the ground for annulment of his marriage to petitioner. Suffice it to state that the finding of the trial court as to the existence or nonexistence of petitioners psychological incapacity at the time of the marriage is final and binding on us.[26] Petitioner has not sufficiently shown that the trial courts factual findings and evaluation of the testimonies of private respondents witnesses vis-a-vis petitioners defenses are clearly and manifestly erroneous.[27] IN VIEW WHEREOF, the petition is denied and the decision dated July 29, 1994 of the Court of Appeals in CA-G.R. CV No. 37925 is affirmed. SO ORDERED.

Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment. In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed.[21] A grant of annulment of marriage or legal separation by default is fraught with the danger of collusion.[22] Hence, in all cases for annulment, declaration of nullity of marriage and legal separation, the prosecuting attorney or fiscal is ordered to appear on behalf of the state for the purpose of preventing any collusion between the parties and to take care that their evidence is not fabricated or suppressed. If the defendant spouse fails to answer the complaint, the court cannot declare him or her in default but instead, should order the prosecuting attorney to determine if collusion exists between the parties.[23] The prosecuting attorney or fiscal may oppose the application for legal separation or annulment through the presentation of his own evidence, if in his opinion, the proof adduced is dubious and fabricated.[24] Our Constitution is committed to the policy of strengthening the family as a basic social institution.[25] Our family law is based on the policy that marriage is not a mere contract, but a social institution in which the state is vitally interested. The state can find no stronger anchor than on good, solid and happy families. The break up of families weakens our social and moral fabric and, hence, their preservation is not the concern alone of the family members. The facts in the case at bar do not call for the strict application of Articles 48 and 60 of the Family Code. For one, petitioner was not declared in default by the trial court for failure to answer. Petitioner filed his answer to the complaint and contested the cause of action alleged by private respondent. He actively participated in the proceedings below by filing several pleadings and cross-examining the witnesses of private respondent. It is crystal clear that every stage of the litigation was characterized by a no-holds barred contest and not by collusion. The role of the prosecuting attorney or fiscal in annulment of marriage and legal separation proceedings is to determine whether collusion exists between the parties and to take care that the evidence is not suppressed or fabricated. Petitioners vehement opposition to the annulment proceedings negates the

Regalado (Chairman), Romero, and Mendoza, JJ., concur. Torres, Jr., J., on leave.