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FIRST DIVISION

[G.R. No. 120594. June 10, 1997]


ALFONSO TAN and ETERIA TEVES TAN, petitioner, vs. COURT OF APPEALS,
SPOUSES CELESTINO U. TAN and ROSARIO DY KUSHIN and SPOUSES
MAXIMO U. TAN and TERESITA SY TAN, respondents.
DECISION
KAPUNAN, J.:
This is a petition for review on certiorari of the Decision of the Court of Appeals in CAG.R. CV No. 37224 dated June 20, 1994 which reversed and set aside the decision of the
Regional Trial Court of Cebu City, Branch 10, the decretal portion of which reads:
WHEREFORE, in the light of all the foregoing, judgment is hereby rendered ordering the
defendants-spouses Celestino U. Tan and Rosario Dy, and Maximo U. Tan and Teresita Sy to
partition the house and lot covered by TCT No. 46249, deliver to plaintiff Eteria Teves Tan the
one-third share of plaintiffs-spouses Alfonso U. Tan and Eteria Teves Tan; to pay Eteria Teves
Tan P10,000.00 as attorneys fees; P5,000.00 as litigation expenses; and to pay the costs.
SO ORDERED.[1]
The antecedents are as follows:
On April 17, 1989, a case for partition and accounting was instituted by the spouses
Alfonso and Eteria Tan against herein private respondents who are the Alfonsos brothers,
Celestino and Maximo, and their respective wives, Rosario and Teresita. It was alleged in the
complaint that the parties are co-owners of a 906-square meter residential lot with
improvements thereon situated at Banaue, Cebu City acquired sometime in 1970. Pursuant
to the provisions of Article 494 of the New Civil Code, the spouses Alfonso and Eteria Tan,
being co-owners to the extent of one-third (1/3) portion of the aforesaid lot, sought partition
of the same. Anent the action for accounting, the spouses claimed that on August 15, 1963,
the brothers together with other siblings put up a business which they registered as Bel Air
Auto Supply Company and was engaged in the sale and distribution of auto spare
parts. They alleged that they are entitled to the fruits, proceeds and profits of the said family
business, so that, an accounting of the assets and liabilities of the partnership, as well as the
interests and participation of each member, is proper in the premises. [2]
On October 16, 1989, private respondents filed their answer alleging that an accounting
is not feasible because the company had long been dissolved by the partners on September
30, 1982 on account of financial losses and that whatever was due to each partner was
already given him. It was further alleged that Alfonso mismanaged the business during his
incumbency as manager and, as a consequence thereof, incurred advances and
indebtedness from the partnership in the amount of P130,000.00. Finally, private
respondents asserted that Alfonsos one-third (1/3) share of the subject property was
mortgaged by him to his sister, Lolita Tan-Go, in order to secure a loan he obtained from her.
[3]

On January 16, 1990, Alfonso U. Tan filed a Manifestation and Motion to Dismiss
contending that the case was filed only at the instance of his estranged wife, Eteria, and that
he had no claim whatsoever against his brothers insofar as the family business is
concerned. He prayed that the case be dismissed. [4] The trial court, in its Order dated July 4,
1990, denied Alfonsos motion but recognized his reluctance to prosecute. [5]
Eteria Teves Tan testified that she is married to Alfonso U. Tan but they were now living
separately by virtue of a decree of legal separation rendered by the then Juvenile and
Domestic Relations Court on August 31, 1977; [6] that during their marriage, they bought a
residential lot consisting of 906 square meters covered by Transfer Certificate of Title No.
46249[7] and that the funds used in the construction of the house standing thereon were
drawn from a loan she and her husband secured, although it was her husband and motherin-law who drew the loan.[8]
Celestino and Maximo Tan and their spouses, on their part, tried to establish the
following: (a) that the family business, Bel Air Auto Supply Company, was dissolved on
September 25, 1982 on account of mismanagement brought about by Alfonsos
incompetence; (b) that Alfonso had no more claim against the family business because he
borrowed heavily on his equity in the family business and from his brothers and sisters; (c)
that the subject property was inherited by them from their mother, Trinidad Uy; (d) that
Alfonso borrowed money from their sister, Lolita, and as a consequence thereof, mortgaged
his share of the disputed property to her; (e) that Alfonso failed to pay said loan; and (f) that
the house on the lot in question was constructed using funds from a loan contracted by their
mother from the Social Security System (SSS). [9] No documentary evidence, however was
submitted during the trial with respect to the allegation that the property was inherited from
their mother.
As above-stated, a Decision[10] dated July 12, 1991 was rendered after trial finding that
the 906-square meter lot with improvements was acquired by the three (3) brothers by sale
through installments and so it should be partitioned equally among them and their
respective wives.Consequently, since the lot was acquired during the marriage of petitioner
and Alfonso, the former could not be deprived of her share of the one-third portion which is
the conjugal property of the spouses. However, with respect to the business dealing in auto
spare parts, the same had been dissolved due to losses.
On September 19, 1991, private respondents filed a Motion for Reconsideration [11] of the
decision contending that the 906-square meter lot, together with other properties, was
actually inherited by the Tan brothers and their sisters from their mother who died intestate
on December 15, 1968 but said lot was adjudicated to the three (3) brothers in a notarized
"Extrajudicial Declaration of Heirs and Adjudication of Properties" executed by the heirs on
September 8, 1969, xerox copy of which was attached to the motion. [12] The lot was
described in the document as:
A parcel of land (lot 6448-C-5 of the subdivision plan (LRC) Psd-21849 being a portion of Lot
6448-C with an area of 906 sq. meters and described on Transfer Certificate of Title No.
38759. Tax declaration No. 022318. Assessed at P2,800.00.
The trial court denied the motion for reconsideration on the ground that the Extrajudicial
Declaration of Heirs which was the basis of private respondents' claim that they inherited
the lot in question from their mother was not presented as part of their evidence during the
trial.[13]

Aggrieved by the ruling, private respondents, the spouses Celestino and Rosario Tan and
the spouses Maximo and Teresita Tan, interposed an appeal to the Court of Appeals which, in
turn, reversed and set aside the said judgment. Respondent court ruled that although the
subject property was acquired during the marriage of the spouses Eteria and Alfonso, it was
established by the Tan brothers that the same was inherited from their mother, hence, their
exclusive property.
We quote the pertinent portion of the decision:
x x x. It is true that under the New Civil Code, all properties of the marriage is presumed to
belong to the conjugal partnership unless it be proved that it pertains to the husband or to
the wife (Art. 160, NCC). The provision of law on presumption of the conjugal nature of the
property requires the party who invoked it to prove first that the property in controversy was
acquired during marriage. In other words, proof of acquisition during coverture is a
conditionsine qua non for the operation of the presumption in favor of conjugal ownership
(Cobb-Perez vs. Lantin, L-22300, May 22, 1960, 23 SCRA 637-644).
On the other hand, the herein appellants, thru Maximo Tan, insist that the property in
dispute was acquired by inheritance from their late mother Trinidad Uy Tan, who died on 15
November 1968 (pp. 17-17-a, TSN; Dec. 21, 1990). There is documentary proof to support
the testimony of Maximo Tan that indeed the property in dispute was inherited by Alfonso,
Celestino and Maximo from their late mother, Trinidad Uy Tan. We note that the 906-square
meter lot is registered in the name of: ALFONSO U. TAN, Filipino, of legal age, married to
Eteria Teves of Bulacao, Pardo, Cebu City; CELESTINO U. TAN, Filipino, of legal age, married
to Rosario Dy Kushin of Banawa, Hill No. 2; and MAXIMO U. TAN, Filipino, of legal age, single;
of Banawa, Hill No. 2, of Cebu City, Philippines, with equal shares. From the very wording of
the title, it can be deduced that 1/3 portion of the property solely belongs to Alfonso
Tan. The property is registered in the names of the three brothers as married to their
respective spouses. In this regard, the Supreme Court observed:
(H)ad the property been acquired by them (spouses) during coverture, it would have been
registered in the name not of Francisco Soriano, married to Tomasa Rodriguez' but the
spouses 'Francisco Soriano and Tomasa Rodriguez' (Ponce de Leon vs. R.F.C., 36 SCRA 289,
312).
The title further states that the property is subject to the 'liabilities imposed by Section 4,
Rule 74 of the Rules of Court, for a period of two (2) years, from January 9, 1970, against the
estate of the deceased Trinidad Uy'. (Exh. 'A') [underlines Ours]. This condition supports the
contention of the herein appellants that the lot was inherited by Alfonso, Celestino and
Maximo from their late mother. It shows that the 1/3 portion of the property belongs
exclusively to Alfonso U. Tan, and that it is not part of the conjugal partnership of gains. [14]
From this ruling, Eteria Teves Tan seeks a second assessment of the case in the present
petition for review raising the following errors, to wit:
1. That since respondent Court of Appeals had already ruled that 1/3 portion of the lot in
litigation was acquired by Alfonso Tan while said Alfonso Tan and his wife Eteria were still
living together, the presumption of conjugality remains and it is not petitioner but private
respondents who have the burden of proof to prove otherwise.

2. The ruling of respondent Court of Appeals that the 1/3 portion of the lot in question
exclusively belongs to Alfonso Tan simply because the Certificate of Title states that the lot is
registered in the name of ALFONSO U. TAN, xxx married to Eteria Teves xxx; CELESTINO U.
TAN xxx married to Rosario Dy Kushin xxx and MAXIMO U. TAN is against well-settled
jurisprudence in our jurisdiction.[15]
The petition is not impressed with merit.
Article 160 of the New Civil Code provides that all property of the marriage is presumed
to belong to the conjugal partnership, unless it be proved that it pertains exclusively to the
husband or to the wife.[16] It is not necessary, to prove that the property was acquired with
funds of the partnership.[17] So that when an immovable was acquired by purchase during
the marriage, it is considered as conjugal property. [18] In fact, even when the manner in
which the property was acquired does not appear, the presumption applies and it will be
considered conjugal property.[19]
Said presumption is, however, rebuttable with strong clear, categorical, and convincing
evidence that the property belongs exclusively to one of the spouses and the burden of
proof rests upon the party asserting it.[20]
In the case at bar, conclusive evidence points to the fact that the undivided one-third
(1/3) of the parcel of land in question is not the conjugal partnership property of the spouses
Alfonso Tan and Eteria Teves Tan. It is the former's exclusive property which he had inherited
from his mother, Trinidad Uy, the original owner of the property. The property is registered in
the name of Alfonso U. Tan, married to Eteria Teves, Celestino U. Tan, married to Rosario Dy
Kuchin and Maximo U. Tan, single, under TCT No. 46249. It is clear from TCT No. 46249 that
the title was entered on January 9, 1970 and a transfer from TCT No. 38759, when the latter
covered the 906-square meter lot which was one of the properties left by the late Trinidad Uy
to her children when she died intestate and which property was adjudicated to her three
sons as appearing in the Extrajudicial Declaration of Heirs and Adjudication of
Properties. While this document was not admitted as evidence because it was submitted
only as an annex to private respondents' motion for reconsideration of the decision of the
trial court, the source of the property can be reasonably and materially inferred from TCT No.
46249 which contains a provision that the property is subject to the "liabilities imposed by
Section 4, Rule 74 of the Rules of Court for a period of two (2) years, from January 9, 1979
against the estate of the deceased Trinidad Uy." [21] Such imposition on property is for the
benefit of the heirs who may have been deprived of their lawful participation of the estate of
the decedent. The presence of the imposition in TCT No. 46249, which was carried over from
its predecessor TCT No. 38759 presupposes the existence of summary settlement of an
estate from where the property was derived, that of private respondents' deceased
mother. There can be no doubt then, that although acquired during Alfonso's marriage to
Eteria, the one-third portion of the property should be regarded as Alfonso's own exclusively,
as a matter of law pursuant to Article 148 of the Civil Code which provides that:
Article 148: The following shall be the exclusive property of each spouse:
x x x.
(2) That which each acquires, during the marriage, by lucrative title.

x x x.
In Villanueva v. Intermediate Appellate Court, [22] we ruled that the husband's acquisition
by succession of a parcel of land during his marriage to his wife simply means that the lot is
his exclusively property because it was acquired by him during the marriage by lucrative
title pursuant to the provisions of Article 148 of the Civil Code.
On the other hand, petitioner had adduced no evidence at all that the lot was acquired
by her and her husband with their funds. Neither was her allegation that the house was
constructed with the loan she and her husband obtained duly substantiated. From whom the
loan was obtained was not even revealed.
The foregoing disquisitions adequately answer the second issue raised by petitioner.
ACCORDINGLY, the petition is hereby DENIED and the decision of the Court of Appeals
dated June 20, 1994 is AFFIRMED.
SO ORDERED.
Bellosillo, Vitug, and Hermosisima, Jr., JJ., concur.
Padilla, (Chairman), J., on leave.

FIRST DIVISION
[G.R. No. 130314. September 22, 1998]
ANNIE

TAN, petitioner, vs. COURT OF APPEALS


MANUFACTURING, INC., respondents.

and

BLOOMBERRY

EXPORT

DECISION
PANGANIBAN, J.:
Before a trial court, a motion for reconsideration that does not contain the
requisite notice of hearing does not toll the running of the period of appeal. It is a mere
scrap of paper which the trial court and the opposite party may ignore.
The Case

Petitioner seeks to set aside the August 22, 1997 Decision of the Court of Appeals [1] in
CA-GR SP No. 43293, the dispositive portion of which reads: [2]

WHEREFORE, [i]n view of all the foregoing considerations, the petition for certiorari and
prohibition is granted. The Order dated October 4, 1996, of public respondent is hereby SET
ASIDE and public respondent is ordered to desist from further proceeding with the hearing
of the Motion for Reconsideration. The Decision dated July 18, 1996, of public respondent is
declared final and executory.
The Facts

Petitioner Annie Tan, doing business under the name and style AJ & T Trading, leased a
portion of the ground floor of her building, more specifically described as Stall No. 623,
Carvajal Street, Binondo, Manila, in favor of Bloomberry Export Manufacturing, Inc. The lease
was for a period of five years starting on February 17, 1995 and ending on February 17,
2000, at a monthly rental of P20,000 for the first three years.[3] For several alleged violations
of the lease contract, petitioners filed against private respondent a complaint for ejectment,
docketed as Civil Case No. 148798-CV. [4] As its rental payment was refused by petitioner,
private respondent instituted on July 13, 1995 a case for consignation, docketed as Civil
Case No. 148814-CV.[5]
The two cases were consolidated. In due course, the Metropolitan Trial Court (MTC) of
Manila, Branch I, rendered on February 1, 1996 a Decision[6]which disposed as follows:[7]
WHEREFORE, in Civil Case No. 148798-CV for [b]reach of [c]ontract, failure to pay rentals on
time, encroachment on the adjacent premises without the consent of [petitioner], [she]
failed to substantiate her case with that degree of proof required by law. For this reason,
except for the costs of suit, this Court hereby orders the dismissal of the complaint of
[petitioner]. The counterclaim and damages sought by [private respondent are] likewise
ordered dismissed.The case for consignation in Civil Case No. 148814-CV has become moot
and academic for failure of [petitioner] to appeal the decision of the Metropolitan [Trial]
Court, Branch 15, Manila, allowing the [private respondent] to consign rental payments to
the Court of Manila. Besides, the [c]omplaint for consignation being in conformity with law,
[private respondent] is allowed to continue consigning with this Court all rentals that [may
be] due.
On appeal, the Regional Trial Court (RTC) of Manila, Branch 2, in its Decision dated July
18, 1996, affirmed the aforementioned MTC Decision thus:
WHEREFORE, finding no cogent reasons to disturb the joint decision dated February 1, 1996
of the Metropolitan Trial Court of Manila, Branch 1, the Court sustains and affirms in toto the
said decision.
Respondent Court related the incidents that ensued, as follows: [8]
xxx [F]rom the Decision of the [RTC] dated July 18, 1996, [petitioner] filed a Motion for
Reconsideration of the aforesaid decision. The Motion for Reconsideration did not contain
any notice of hearing as required under Section 5, Rule 15 of the Revised Rules of Court.
On August 23, 1996, [private respondent] filed an ex-parte Motion for Entry of Judgment
upon the ground that said motion for reconsideration is a mere scrap of paper which should
not merit the attention of the [RTC] and in support thereof, cited the case of Traders Royal
Bank vs. Court of Appeals, 208 SCRA 199. [Private respondent] contends that since the

Motion for Reconsideration is a mere scrap of paper aside from being pro forma, said Motion
for Reconsideration did not toll the period of appeal[;] hence, the Decision dated July 18,
1996, had become final and executory.
"On September 3, 1996, [petitioner] filed a Motion to Set for Hearing the Motion for
Reconsideration which was vehemently opposed by [private respondent] on September 23,
1996.
On October 4, 1996, [the RTC] issued an Order granting the motion to set for hearing
[petitioners] Motion for Reconsideration and set[ting] the hearing [for] October 21, 1996, at
8:30 oclock in the morning. On October 20, 1996, [private respondent] filed a Motion for
Reconsideration of the Order dated October 4, 1996, which was set for hearing on October
25, 1996.
On November 11, 1996, [the RTC] issued an Order denying [private respondents] Motion for
Reconsideration. Hence, the Petition for Certiorari and Prohibition. xxx.
In the assailed Decision, Respondent Court of Appeals reversed the trial courts Order
setting for hearing petitioners Motion for Reconsideration.
The Ruling of the Court of Appeals

Respondent Court held that the trial court acted with grave abuse of discretion in setting
for hearing petitioners Motion for Reconsideration, notwithstanding the fact that said Motion
contained no notice of hearing.
Citing a litany of cases, it ruled that petitioners failure to comply with the mandatory
provisions of Sections 4 and 5, Rule 15 of the Rules of Court, reduced her motion to a mere
scrap of paper which did not merit the attention of the court. Respondent Court also held
that those cases in which the Court allowed a motion for reconsideration that had not been
set for hearing -- Galvez v. Court of Appeals,[9] Tamargo v. Court of Appeals[10] and Que v.
Intermediate Appellate Court[11]-- were inapplicable.
Respondent Court held that the facts in Galvez drastically differ from those in the
present case. Galvez involved a motion to withdraw the information -- not a motion for
reconsideration -- that was filed ex parte before the arraignment of the accused. In that
case, the Court held that there was no imperative need of notice and hearing because, first,
the withdrawal of an information rests on the discretion of the trial court; and, second, the
accused was not placed in jeopardy. On the other hand, the subject of the present
controversy is a motion for reconsideration directed against the Decision of the RTC; thus,
the motion affects the period to perfect an appeal.
Que is not applicable, either. In said case, the trial court set the Motion for
Reconsideration (MR) for hearing, which was actually attended by the counsel for the
adverse party. This was not so in the case at bar; petitioners MR was set for hearing,
because she belatedly moved for it upon the filing of private respondents Motion for Entry of
Judgment. Likewise, the present case differs from Tamargo, wherein the application of the
aforesaid mandatory provisions was suspended. The Court did so in order to give substantial
justice to the petitioner and in view of the nature of the issues raised which were found to be
highly meritorious.

Hence, this petition.[12]


The Issue

In her Memorandum,[13] petitioner presents a fairly accurate statement of the main issue
to be resolved:[14]
Whether xxx the omission [through] inadvertence of a notice of hearing of a motion
for reconsideration filed with the trial court xxx is a fatal defect which did not stop
the running of the period to appeal[,] thus rendering the assailed decision final
[and] executory.
The Courts Ruling

The petition is devoid of merit.


Sole Issue:

Omission of Notice of Hearing Fatal

Petitioner admits the categorical and mandatory character of the directives in Sections 4
and 5 of Rule 15 of the Rules of Court, which read: [15]
SEC. 4. Hearing of motion.Except for motions which the court may act upon without
prejudicing the rights of the adverse party, every written motion shall be set for hearing by
the applicant.
Every written motion required to be heard and the notice of the hearing thereof shall be
served in such a manner as to ensure its receipt by the other party at least three (3) days
before the date of hearing, unless the court for good cause sets the hearing on shorter
notice.(4a)
SEC. 5. Notice of hearing.The notice of hearing shall be addressed to all parties concerned,
and shall specify the time and date of the hearing which must not be later than ten (10)
days after the filing of the motion.(5a)
In De la Pea v. De la Pea,[16] the Court presented a resume of earlier decisions regarding
the necessity of the notice of hearing in motions for reconsideration:
In Pojas v. Gozo-Dadole,[17] we had occasion to rule on the issue of whether a motion for
reconsideration without any notice of hearing tolls the running of the prescriptive
period. In Pojas, petitioner received copy of the decision in Civil Case No. 3430 of the
Regional Trial Court of Tagbilaran on 15 April 1986. The decision being adverse to him
petitioner filed a motion for reconsideration. For failing to mention the date when the motion
was to be resolved as required in Sec. 5, Rule 15, of the Rules of Court, the motion for
reconsideration was denied. A second motion for reconsideration met the same fate. On 2
July 1986 petitioner filed a notice of appeal but the same was denied for being filed out of
time as the motion for reconsideration which the Court ruled aspro forma did not stop the
running of the 15-day period to appeal.[18]

In resolving the issue of whether there was grave abuse of discretion in denying petitioners
notice of appeal, this Court ruled
Section 4 of Rule 15 of the Rules of Court requires that notice of motion be served by the
movant on all parties concerned at least three (3) days before its hearing. Section 5 of the
same Rule provides that the notice shall be directed to the parties concerned, and shall state
the time and place for the hearing of the motion. A motion which does not meet the
requirements of Section 4 and 5 of Rule 15 of the Rules of Court is considered a worthless
piece of paper which the clerk has no right to receive and the court has no authority to act
upon. Service of copy of a motion containing notice of the time and place of hearing of said
motion is a mandatory requirement and the failure of the movant to comply with said
requirements renders his motion fatally defective.[19]
In New Japan Motors, Inc. v. Perucho,[20] defendant filed a motion for reconsideration which
did not contain any notice of hearing. In a petition for certiorari, we affirmed the lower court
in ruling that a motion for reconsideration that did not contain a notice of hearing was a
useless scrap of paper. We held further
Under Sections 4 and 5 of Rule 15 of the Rules of Court, xxx a motion is required to be
accompanied by a notice of hearing which must be served by the applicant on all parties
concerned at least three (3) days before the hearing thereof. Section 6 of the same rule
commands that (n)o motion shall be acted upon by the Court, without proof of service of the
notice thereof xxx. It is therefore patent that the motion for reconsideration in question is
fatally defective for it did not contain any notice of hearing. We have already consistently
held in a number of cases that the requirements of Sections 4, 5 and 6 of Rules 15 of the
Rules of Court are mandatory and that failure to comply with the same is fatal to movants
cause.[21]
In Sembrano v. Ramirez,[22] we declared that
(A) motion without notice of hearing is a mere scrap of paper. It does not toll the running of
the period of appeal. This requirement of notice of hearing equally applies to a motion for
reconsideration. Without such notice, the motion is pro forma. And a pro forma motion for
reconsideration does not suspend the running of the period to appeal.
In In re Almacen,[23] defendant lost his case in the lower court. His counsel then filed a
motion for reconsideration but did not notify the adverse counsel of the time and place of
hearing of said motion. The Court of Appeals dismissed the motion for the reason that the
motion for reconsideration dated July 5, 1966 does not contain a notice of time and place of
hearing thereof and is, therefore a useless piece of paper which did not interrupt the running
of the period to appeal, and, consequently, the appeal was perfected out of time. When the
case was brought to us, we reminded counsel for the defendant that
As a law practitioner who was admitted to the bar as far back as 1941, Atty. Almacen knew
or ought to have known that [for] a motion for reconsideration to stay the running of the
period of appeal, the movant must not only serve a copy of the motion upon the adverse
party x x x but also notify the adverse party of the time and place of hearing x x x.
Also, in Manila Surety and Fidelity Co., Inc. v. Bath Construction and Company, [24] we ruled--

The written notice referred to evidently is that prescribed for motions in general by Rule 15,
Sections 4 and 5 (formerly Rule 26), which provide that such notice shall state the time and
place of hearing and shall be served upon all the parties concerned at least three days in
advance. And according to Section 6 of the same Rule no motion shall be acted upon by the
court without proof of such notice. Indeed, it has been held that in such a case the motion is
nothing but a useless piece of paper. The reason is obvious; unless the movant sets the time
and place of hearing the court would have no way to determine whether that party agrees to
or objects to the motion, and if he objects, to hear him on his objection, since the Rules
themselves do not fix any period within [which] he may file his reply or opposition.' [25]
In fine, the abovecited cases confirm that the requirements laid down in Sec. 5 of Rule 15 of
the Rules of Court that the notice shall be directed to the parties concerned, and shall state
the time and place for the hearing of the motion, are mandatory. If not religiously complied
with, they render the motion pro forma. As such the motion is a useless piece of paper that
will not toll the running of the prescriptive period.
For failing to attach a notice of hearing to the Motion for Reconsideration,
petitioner proffers the following excuses: (1) her former counsels messenger, due to an
honest mistake, inadvertently omitted the fourth page of the motion containing the crucial
Notice of Hearing; and (2) because of the pressure of work, her former counsel was unable
to follow up such motion until the day said counsel requested the setting of a hearing. [26]
We are not in the least convinced. First, it is unfair to place the blame for such omission
on the messenger. The burden of preparing a complete pleading falls on counsels shoulders,
not on the messengers. The counsel is ultimately responsible for the acts or omissions of his
agents. Hence, the messengers conduct can neither justify the counsels mistake nor warrant
a departure from the mandate of the aforesaid procedural rules.
Second, it is incredible that the fourth page containing the Notice of Hearing was left
behind due to honest mistake. In fact, there was no such page.Petitioners claim is belied by
the following pertinent portions of the subject Motion for Reconsideration: [27]
WHEREFORE, premises considered, it is respectfully prayed that the Honorable Court cause
a further REVIEW and RECONSIDERATION of its decision on the above-captioned
consolidated cases.
Quezon City for Manila, August 12, 1996.
(Sgd.)ANGELINA ARANDIA-VILLANUEVA
Counsel for Plaintiff-Appellant
39-L T. Morato Avenue, Quezon City
IBP No. 407450 6-26-96
PTR No. 227013 1-5-96 Manila
Copy furnished:

Atty. Arnel Zaragoza Dolendo


Counsel for Defendant
Rm 408, 413 First United Bldg.
Escolta, Manila
The normal practice is to note, at the end of the pleading, that a copy was furnished to
the adverse party. Thus, petitioners motion ended exactly at the bottom of the third page as
evidenced by the copy-furnished notation. It is safe to conclude that there was no accidental
or excusable neglect in not including a fourth page in this case. In other words, petitioners
counsel simply failed to include a notice of hearing.
Finally, the fact that petitioners former counsel calendared the motion for hearing for
August 23, 1996[28] belies the excuse that an alleged fourth page had been left behind. In the
first place, if a notice of hearing had been included in the Motion for Reconsideration, there
would have been no need for petitioner to file the Motion to set the time and date of
hearing. What is clear is that said counsel filed the latter Motion, only after private
respondent had submitted its Motion for Entry of Judgment [29] -- with copy furnished
petitioners counsel[30]-- on the ground that petitioners Motion for Reconsideration was a mere
scrap of paper that did not stop the period for appeal.
Petitioner pleads for liberal construction of the rule on notice of hearing,
citing Tamargo, Galvez and Que. In rebuttal, we adopt by reference the CAs excellent
disquisition, cited earlier, on why these cases are inapplicable.
Petitioner further alleges that, first, the nonadmission of her Motion for Reconsideration
would result in a miscarriage of justice, as the main case (ejectment), which was tried under
summary procedure, had been unnecessarily prolonged; and, second, the tenant lessee
would be occupying the premises without paying rentals. She also relies on People v.
Leviste,[31] in which the Court held:
While it is true that any motion that does not comply with the requirements of Rule 15, Rules
of Court should not be accepted for filing and, if filed, is not entitled to judicial cognizance,
the Supreme Court has likewise held that where rigid application of the rule will result in
manifest failure or miscarriage of justice, technicalities may be disregarded in order to
resolve the case.
Liberal construction of this rule has been allowed by this Court in the following cases: (1)
where a rigid application will result in a manifest failure or miscarriage of justice,
[32]
especially if a party successfully shows that the alleged defect in the questioned final and
executory judgment is not apparent on its face or from the recitals contained therein; [33] (2)
where the interest of substantial justice will be served; [34] (3) where the resolution of the
motion is addressed solely to the sound and judicious discretion of the court; [35] and (4)
where the injustice to the adverse party is not commensurate with the degree of his
thoughtlessness in not complying with the procedure prescribed. [36] Petitioner has failed to
demonstrate that the case at bar falls under any of these exceptions.

Finally, petitioner claims that she will be deprived of property without due process, as
private respondent has accumulated P348,800 in unpaid rentals and accrued interests.
We disagree. Petitioner can obtain proper payment of rentals through a motion for
execution in the case below. The MTC may have dismissed her ejectment case, but it did not
exculpate private respondent from its liabilities. Petitioner is, therefore, not being deprived
of her property without due process.
Indeed, there is no miscarriage of justice to speak of. Having failed to observe very
elementary rules of procedure which are mandatory, petitioner caused her own
predicament. To exculpate her from the compulsory coverage of such rules is to undermine
the stability of the judicial process, as the bench and bar will be confounded by such
irritating uncertainties as when to obey and when to ignore the Rules. We have to draw the
line somewhere.[37]
WHEREFORE, the petition is hereby
AFFIRMED. Costs against the petitioner.

DENIED and

the

assailed

SO ORDERED.
Davide, Jr. (Chairman), Bellosillo, Vitug and Quisumbing, JJ., concur.

Decision

is