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RULE 29 following, written interrogatories to Barreta,

which the latter received on May 9, 1967:

G.R. No. L-34897 July 15, 1975
RAUL ARELLANO, petitioner,
vs. Mr. Santiago Uy-Barreta
BARRETA, respondents. Sir:

Quijano and Arroyo for petitioner. In accordance with the provisions of Rule 25 of
the new Rules of Court, you are hereby served
Moises C. Kallos Law Office for respondents. the following interrogatories, to be answered by
you, separately and fully in writing, under oath.
The answers shall be signed by you, and copy
thereof served on the undersigned within fifteen
BARREDO, J.: (15) days from receipt of these interrogatories.

Petition for certiorari to annul and set aside the 1) Do you have a certificate of title registered in
orders of respondent court of March 31 and May your name over the property, subject of this
24, 1971 and January 12 and February 11, 1972 litigation?
in its Civil Case No. 2167, entitled Santiago Uy-
Barreta vs. Raul Arellano and Emilio B. Bayona, 2) If so, what is the number of the title?
which had the combined effect of allowing the
plaintiff to revive his action for reconveyance of 3) If not, under what title do you claim the
property and damages against the defendant property?
Arellano long after the same had been
repeatedly dismissed, per orders of August 19, Manila for Sorsogon, Sorsogon, May 5, 1967
1969, February 16, 1970 and February 23, (Page 30, Record.)
1971, for plaintiff's failure to comply with the
rules on discovery by never serving answers to Since Arellano had not received any answer to
interrogatories of said defendant received by the foregoing written interrogatories as of June
plaintiff as early as May 9, 1967, respondent 9, 1967, on this date, his counsel filed a motion
court holding that the ground of res adjudicata, praying thus:
invoked by Arellano, was untenable, since the
said orders of dismissal had no legal basis aside WHEREFORE, defendant respectfully prays.
from not being on the merits.
1) for leave that his Written Interrogatories be
I given due course and plaintiff be required to
send his answers thereto within five (5) days
The judicial controversy between petitioner Raul from receipt of the order;
Arellano (Arellano for short) and respondent
Santiago Uy-Barreta (Barreta for short) started 2) that plaintiff's complaint be dismissed if he
way back on February 4, 1967 when Barreta 1 fails to comply with the aforesaid order sought
filed aforementioned Civil Case No. 2167 with for;
respondent court against Arellano and a certain
Emilio B. Bayona for reconveyance, with 3) that hearing of defendant's Motion to Dismiss,
damages, of a certain parcel of land located in rescheduled for June 17th 1967, be postponed
Sorsogon, Sorsogon, alleging as cause of action to such date fixed by this Honorable Court if
that the defendants had successfully plaintiff shall send his Answers to defendant's
maneuvered in bad faith, thru a supposedly Written Interrogatories. (Pp. 31-32, Record.)
false extrajudicial partition, to secure the
issuance of certificate of title No. T-3670 which and setting the same for hearing on June 17,
enabled them to ultimately have the cancellation 1967. For reasons not appearing in the record,
thereof by Transfer Certificate of Title No. T- nothing happened relative to either the motion to
3739 in the name of Arellano. After being served dismiss of May 5, 1967 or the subsequent
with summons, Arellano filed on May 5, 1967, motion of June 9, 1967 until February 12, 1969,
instead of an answer, a motion to dismiss based over one and a half years later, when
on the ground of failure of the complaint to state respondent court motu proprio set both motions
a cause of action, inasmuch as on its face, said for hearing for February 28, 1969, on which
complaint seeks the setting aside of a torrens date, upon request of Barreta, the court gave
title by virtue of nothing more than a claim of him ten (10) days within which "to file the
ownership through continuous adverse corresponding opposition after which the said
possession for allegedly more than fifty-three motion will be deemed submitted for resolution."
(53) years. Simultaneously, pursuant to Rule 25 In an order dated March 25, 1969, the court
of the Rules of Court, Arellano dispatched the noted the failure of Barreta to comply with the
promise to file an opposition to the written
interrogatories within ten (10) days, and with 4. It is now five (5) days since that hearing and
reference to the motion to dismiss of May 5, up to now plaintiffs Answers which his counsel
1967, gave him another five (5) days from promised had either been served or will be
receipt of the order. As nothing again was heard served on defendant, have in fact not been
from Barreta as of April 7, 1969, on this date, served, contrary to plaintiff's representations in
Arellano filed a motion reiterating "his prayer for court.
the dismissal of plaintiff's complaint pursuant to
Section 5, Rule 29 and Section 3, Rule 17", 5. Plaintiff cannot ignore the provisions of the
alleging that Barreta had failed to serve answers Rules of Court on this matter. For such failure,
to the interrogatories sent to him despite the dismissal is proper (Rule 29, Section 5, Revised
periods previously given to him by the court. Rules of Court).1äwphï1.ñët
When this motion was heard on April 25, 1969,
once more Barreta asked for deferment and the WHEREFORE, defendant respectfully prays, for
court postponed its consideration "for new reasons set forth above, for the instant dismissal
assignment," which came on August 6, 1969, on of plaintiff's complaint. Defendant prays for such
which date, the following self-explanatory order other relief, just and equitable, in the premises.
was issued: (Pp. 44-45, Record.)

After hearing the argument of both counsels, the Finding the points raised in this motion to be
counsel for the plaintiff is hereby given ten days well-taken on August 19, 1969, the court
from today within which to file whatever pleading ordered:
he may desire to submit in connection with the
motion to dismiss and in answer to the argument Considering the motion dated August 11, 1969,
advanced by counsel for the defendant Raul filed by counsel for the defendant, Raul Arellano,
Arellano. Counsel for the defendant Raul alleging that the Written Interrogatories for the
Arellano is also given ten days from receipt of plaintiff to answer was sent by them to the
the pleading which counsel for the plaintiff may plaintiff on May 5, 1967, was received by the
submit in connection with the motion to dismiss, plaintiff on May 9, 1967, which according to the
after which the motion will be deemed submitted provision of Rule 25, Section 1, the plaintiff had
for resolution by the Court. (Page 43, Record.) up to May 4, 1967 within which to give his
answer or to file his opposition to the said
Five days later, however, Arellano filed another interrogatories before the Court and, therefore,
motion for "instant dismissal" thus: more than two years had already elapsed since
the said Written Interrogatories was sent to the
COMES NOW defendant Raul Arellano, by the plaintiff and in spite of the fact that, again the
undersigned counsel, to this Honorable Court said plaintiff asked to be given another five (5)
respectfully states: days from August 6, 1969, within which to file his
objection before this Court and since up to now
1. That under date of May 5th, 1967, defendant the said counsel for the plaintiff failed to file his
dispatched Written Interrogatories for plaintiff to objection to said. Written Interrogatories nor
answer. Since plaintiff received it on May 9th, answered the same, as prayed for by counsel
1967, he had up to May 19th, 1967 to object for the defendant, Raul Arellano, the complaint
thereto or up to May 24th, 1967 within which to is hereby dismissed as against the said
give his Answers. (Rule 25, Sections 3 & 2, defendant, Raul Arellano, without special
Revised Rules of Court). Plaintiff neither pronouncement as to costs. (page 46, Record.)
objected nor answered.
Copy of this order was served on Barreta on
2. Two (2) years later, when incidents in this August 20, 1969. Thus, the incident seemingly
case were set for hearing, herein defendant filed ended.
a Manifestation dated February 24th, 1969 and
a Motion dated April 7th, 1969 praying for the Almost three months later, however, or on
dismissal of plaintiffs complaint precisely for his December 16, 1969, Barreta filed a "Motion for
failure to submit his Answers to the Written Reinclusion of Raul Arellano as Indispensable
interrogatories. The latter Motion was set for Party Defendant" in which, significantly, he
hearing on August 6, 1969. maintained that Arellano is an indispensable
party and as such had to be reincluded as
3. On said date, defendant's counsel appeared defendant precisely because the "action against
and argued. Plaintiff's counsel, in open court, him was dismissed in view of plaintiff's failure to
stated that plaintiff's Answers have been served answer the written interrogatories which actually
on defendant's counsel in Manila to which and incidentally is not a ground for the dismissal
counsel replied that they have not received the of an action", adding that he, the plaintiff, "is
same. Plaintiffs counsel, however, said again in now ready with the copies of the documents
open court that such Answers must have been needed to answer the queries of Mr. Raul
served already by a certain Atty. Berenguer that Arellano in his quest for interrogatories."
very moment or if not, possibly the next day. Arellano opposed, and on February 16, 1970,
the motion was denied thus:
ORDER fruits of fraud. To begin with the questions
contained in the interrogatories dated May 5,
Considering the motion for re-inclusion of Raul 1967 sought to elicit facts clearly seen from the
Arellano as indispensable party-defendant, filed allegations of the complaint, more particularly
by counsel for the plaintiff, together with the pars. 2, 15 to 18, and 22 to 24. The
corresponding opposition thereto by telegram interrogatories were therefore frivolous and
filed by counsel for said Raul Arellano, it need not be answered. (Hogaboom v. Price, 53
appearing and as stated in the order of this Iowa 703, 6 NW 43) In Arellano's counsel's
Court dated August 19, 1969, dismissing the motion set June 17, 1967, he asked the Court
case as against the said Raul Arellano, for to:
failure on the part of counsel for the plaintiff to
answer or file an opposition to the written 1) for leave that his written interrogatories be
interrogatories submitted by counsel for Raul given due course and plaintiff be required to
Arellano within the reglementary period as send his answers thereto within five (5) days
provided in Rule 25, Section 1 of the Revised from receipt of the order;
Rules of Court in connection with Rule 29,
Section 5 of the same Revised Rules of Court 2) that plaintiff's complaint be dismissed if he
and considering, further the fact that the order of fails to comply with the aforesaid order sought
this court dismissing the case against Raul for;
Arellano dated August 19, 1969 was received by
counsel for the plaintiff on August 20, 1969 and This was not ruled upon then but the Court set
the motion for the re-inclusion of Raul Arellano the incident for consideration on February 28,
as indispensable party was filed only on 1969. His Honor even gave plaintiff's counsel 5
December 16, 1969, without even asking for the days from August 6, 1969 to file any objection to
reconsideration of the order of dismissal within the interrogatories. It was plain then that the
the reglementary period, the motion for re- propriety and need to answer the interrogatories
inclusion of Raul Arellano as indispensable party were brought before the Court for proper ruling,
in this case is hereby denied. (Pages, 52-53, plus the period for plaintiff to answer same. It
Record.) does not appear that defendant Arellano insisted
upon the Court to give due course to the
It turned out almost a year afterwards that even interrogatories and/or fix a period for plaintiff to
the foregoing order had not terminated the case. make the answer. The import of the order of
Under date of January 16, 1971, Barreta, August 19, 1969 does not indicate that the Court
represented this time by new counsel, filed a required plaintiff to answer the questions which
"Motion to Set Aside Orders Dismissing His Honor found proper. The mere failure of
Complaint against Defendant Raul Arellano", plaintiff's counsel to file an opposition does
which was set for hearing on February 4, 1971. not ipso facto create the legal obligation to
Pertinent portions of this motion read: . answer them or that they were proper because
Arellano himself so asked the Court to rule on
Preliminary Statement — them.

It must be noted that the disputed orders It would thus appear that the order of August 19,
resulted in the dismissal of the complaint against 1969 dismissing the complaint for failure to file
Raul Arellano not under any of the grounds an opposition or to answer, in the absence of a
provided for under Rule 16, Section I of the Court directive to that effect violates the import
Revised Rules of Court, but from supposed of Rule 29, Section 1 and Section 3 of the Rules
failure and/or refusal of the plaintiff to answer of Court. Section 5 of Rule 29 clearly provides
interrogatories served under Rule 25 in relation that a dismissal is in order if "A PARTY
to Rule 29 of said Rules of Court. In like manner WILFULLY FAILS" to answer the interrogatories.
it must be taken into account that Raul Arellano There is no wilfull refusal to answer here
is a mere transferee of Emilio B. Bayona, who because Arellano himself thru counsel placed
already filed an answer to the complaint where the interrogatories within the ambit of the
said defendant claims that the transfer to his co- requirements of Rule 25, Sec. 3 of the Rules of
defendant is for value and in good faith. In other Court when he filed his motion dated June 9,
words, the issues had been joined and that 1967 and failed to get any ruling therein in his
there exist in this case a common cause of favor, for said section provides — "answers shall
action against the two defendants. (Rule 18, be deferred until the objections are determined
Sec. 4, Rules of Court) which shall be at as early a time as is
practicable." In fact in the United States from
The order of where the modes of discovery embodied in our
dismissal of August 19, 1969 is contrary Rules have been taken, the Court to protect
to law and violates due process. litigants usually require evidence on the
question of willfulness. (Millinockket Theatre Inc.
Modes of discovery provided for the Rules of vs. Kurson, U.S. Dist. Ct., S.D.N.Y. April 25,
Court are intended to and in the prompt 1941, cited in Moran's) .
administration of justice but can never be
resorted to or be used to secure benefits from
It is respectfully submitted that the steps defined Alternatively, there were also allegations
by Rule 25 and Rule 29 of the Rules of Court regarding grounds for relief on account of
preparatory to a penalty of dismissal upon supposed excusable neglect of former counsel
refusal to make discovery are part of the as follows:
guaranties to all litigants in order that due
process of law may be observed and secured to 1. That plaintiff immediately after learning of the
all. As defendant Arellano voluntarily placed the orders of dismissal became worried and
admissibility of his interrogatories before the thereafter saw new counsel upon advise of
Court and the fixing of the period within which to relatives to seek relief from concommitant
answer them in his motion dated June 9, 1967, effects thereof.
he cannot avoid complying with the Rules of
Court on the matter before any dismissal order 2. That last January 5, 1971, plaintiff was with
can be entered. Plaintiff had every right to his lawyer Atty. Amador and on the following day
during the conduct of his litigation. The order of he was furnished copy of the last pleading filed
dismissal of August 19, 1969, without a prior by Atty. Amador which the Court on January 8,
order for plaintiff to answer as the questions 1971 postponed to another day so that within
were proper and the expiration of the period sixty (60) days upon learning of the status of the
thus fixed for such answers by the Court, may case against Raul Arellano, plaintiff filed the
be said to be premature. Violative then of due instant motion to set aside.
process, the said order of August 19, 1969 and
the implementing order of February 16, 1976 are 3. That plaintiff after delivering the
annullable, if not void ab initiofor being entered Interrogatories to his lawyer Atty. Amador, had
without jurisdiction. been waiting for an express order from his
counsel as to what is to be done and was
The said orders of dismissal informed that the matter of propriety, of the
may hardly be blamed on interrogatory was subject of an incident before
plaintiff. the court and answer can only be made if so
ordered by the Court and within such period so
We incorporate what we said in the preceding fixed.
discussion as far as relevant herein. Plaintiff
upon receipt of the interrogatories delivered 4. That plaintiff relying on this felt that there was
them to his lawyer. As a party in the case, no necessity to make the answers until he was
plaintiff must rely on his counsel. As the matter notified of the existence of an order from the
of propriety of the questions was before the Court to the said effect.
Court, plaintiff had to wait for a directive to him
to submit his answer as envisioned by Rule 25, 5. That the order of dismissal of which plaintiff
Sec. 3 of the Rules of Court. His lawyer may learned of prior to conferring with Atty. Kallos
have been of the said impression. Why then took the plaintiff by surprise as he had not been
penalize the plaintiff for what had happened. If ordered by the Court to submit his answer to the
an error had been committed, certainly plaintiff interrogatories. (Pp. 58-59, Record.)
is not to blame.
Promptly opposed by Arellano on the oft-
There is no order of the Court which plaintiff repeated ground that the case had long ago
refused to comply with. As seen from the context been finally dismissed, on February 23, 1971,
of the disputed order of August 19, 1969 the court denied Barreta's motion thus: .
plaintiff's lawyer was given five days from
August 6, 1969 within which to file his objections Considering the motion to set aside order
to the interrogatories, which were then subject of dismissing complaint against defendant Raul
Arellano's motion for leave to be given due Arellano filed by the new counsel for the plaintiff,
course and for the Court to give plaintiff only 5 together with the opposition to the same filed by
days to answer (pls. see prayer, Motion of June counsel for defendant Raul Arellano, and the
9, 1967). True enough plaintiffs counsel failed to reply by the new counsel for the plaintiff, and
file the objections. His Honor should have ruled taking into account the fact that the dismissal of
therefore in favor of the movant by giving due the case as against the defendant Raul Arellano
course to the interrogatories and requiring was issued on August 19, 1969 and therefore
plaintiff to make his answer thereto within 5 the same is already final, the motion to set aside
days, so that Sec. 3 of Rule 25 of the Rules of order is hereby denied. (Page 63, Record.)
Court could be followed. Only by the existence
of such an order and a subsequent refusal of Undaunted by the repeated orders of dismissal
plaintiff to comply therewith can an order of and denial above set forth, and apparently
dismissal be justified as not violative of due possessed of an unexhaustible arsenal of
process. It would seem that the obligation to purported remedies to keep his case from being
answer the interrogatories had not yet considered finally terminated, hardly a month
commenced for the Court never ruled on their later, Barreta bounced back with apparent
propriety. (Pp. 55-58, Record.) success on March 22, 1971, when he filed a
"Motion for Admission of Amended Complaint",
since respondent court readily granted the same
on March 31, 1971 even before Arellano could the order of the Court dated May 24, 1971.
object to it or be heard. No elucidation of the (Pages 105-106, Record.)
reasons for the long belated amendment had to
be made by Barreta. All that his motion alleged On the other hand, the first order of denial
almost perfunctorily in this respect was: referred to, dated May 24, 1971, reads:

1. That after a mature consideration and study Before this Court are two motions: (1) motion for
of the facts of the case, there has arisen the reconsideration of the order of March 31, 1971
need of amending the complaint with the filed by counsel for the defendant Raul Arellano,
inclusion of new plaintiff and new defendants and (2) motion to dismiss filed by counsel for the
and alternative defendants. defendant Simplicio M. Bautista.

2. That the amended complaint is now attached With respect to the first motion, the Court finds
to this motion for corresponding admission by from the amended complaint filed by the plaintiff
the court. (page 64, Record.) the inclusion of new causes of action and new
parties who, under the allegations therein, are
And so, in due time, Arellano moved to set aside being sued together. However, although it is true
this order, but after it was opposed by Barreta, that the original complaint was already
the trial court issued an order of denial which dismissed by final order as against the
counsel for Arellano claims he has never defendant Raul Arellano, yet it appears in the
received, so much so that, unaware of such fourth cause of action in the amended complaint
denial, under date of October 5, 1971, he filed a that it seeks to nullify the very order of this Court
supplemental motion (to set aside). Again, dismissing the original complaint against said
Barreta opposed and on January 12, 1972, defendant on grounds of fraud and connivance.
respondent court issued the following order of It also appears in the amended complaint that
denial: the plaintiff questions the validity of the issuance
of Transfer Certificate of Title No. T-3573 issued
Counsel for defendant Raul Arellano filed a on October 19, 1966 for Lot 3383 without any
motion dated August 25, 1971, praying that Raul proper court order.
Arellano's "Motion to Set Aside Order Dated
March 31,1971" be resolved. A reading of the As to the second motion, movant Simplicio M.
records of this case shows that said motion was Bautista moves for the dismissal of the
specifically resolved and denied by the court in complaint on two grounds: that on July 19, 1958,
its order dated May 24, 1971 (page 138). It also the Court allegedly declared the sale in favor of
appears that a subsequent motion for Pedro Leynes as null and void and of res
reconsideration of said order was also denied by adjudicata due to the dismissal of the case
the Court on June 15, 1971(page 150). It still against the defendant Raul Arellano on August
appears in the records of the case that the 19, 1969.
allegations in the motion of counsel for Raul
Arellano dated August 25, 1971, praying that the During the oral arguments on these motions,
motion to set aside order dated March 31, 1971 counsel for the plaintiff produced a copy of the
be resolved, is not well-founded considering that order of July 19, 1958, which order has not in
as above stated the same has already been effect declared the nullity of any sale. Neither
resolved by this Court and it is final. can the Court consider for the present the
ground of res adjudicata because the fourth
The manifestations of counsel for defendant cause of action does not involve defendant
Raul Arellano in its supplemental motion is not Simplicio M. Bautista. In the opinion of the
supported by law and jurisprudence considering Court, it would seem better for all the parties
that the order of dismissal of the Court of the impleaded in the amended complaint to join
case against defendant Raul Arellano dated issues so that after trial on the merit the
August 19, 1969 (page 60) does not respective contentions of all of them could be
constitute res judicata within the meaning of the passed upon with justice and fairness
Rules of Court so as to bar the filing of the considering the fact that up to now plaintiff
amended complaint admitted by the Court and Santiago Uy-Barreta is in actual possession of
including defendant Raul Arellano as party the portion of the land described in the
defendant, said order of dismissal not being a complaint and has his own house on the same.
decision on the merits.
WHEREFORE, the Court hereby denies both
Premises considered, the motion dated August motions filed by counsel for the defendants Raul
25, 1971, praying that the order of the Court Arellano and Simplicio M. Bautista without
dated December 30, 1971, be resolved is prejudice to the defendant's raising the previous
hereby denied. However, in the interest of order of dismissal and for the Court to consider
justice, defendant Raul Arellano is hereby given the same. The Court therefore, hereby directs
fifteen (15) days from receipt of this order to file the defendant Raul Arellano to file a responsive
a responsive pleading to the amended pleading to the amended complaint if he so
complaint, if he so desires, as already stated in desires. (Page 83, Record.).1äwphï1.ñët
Insisting however that the case insofar as he whatever pleadings he may desire to submit in
was concerned had long been terminated and connection with the motion to dismiss and in
could no longer be revived, much less indirectly answer to the argument advanced by counsel
thru the subterfuge of an amended complaint, for the defendant Raul Arellano.
Arellano filed on February 4, 1972 a motion for
the reconsideration of the order of January 12, PREMISES CONSIDERED, the order of
1972. On February 9, 1972, Barreta filed a dismissal of the court dated August 19, 1969,
comment on said motion and on February 11, cannot, therefore, be considered as one of those
1972, respondent court issued the last falling under the provision of Section 3 of Rule
impugned order thus: 17 of the New Rules of Court and to constitute
an adjudication upon the merits, since the same
Considering the motion for reconsideration was not founded on either a failure to appear at
dated February 4, 1972, filed by the counsel for the time of the trial, or to prosecute this action
Raul Arellano, the Court finds to be well founded for an unreasonable length of time, or to comply
the allegation therein that counsel for Raul with the rules of court or any of the court. The
Arellano never received a copy of the order of motion for reconsideration is therefore denied.
the Court dated May 24, 1971, as well as June
15, 1971, which orders denied the motion to set Considering also the urgent motion dated
aside the order of the Court dated March 31, February 4, 1972, defendant Raul Arellano is
1971 admitting plaintiffs amended complaint. hereby given thirty (30) days from receipt of this
However, the Court cannot reconsider its order order to file his responsive pleading to plaintiff's
dated January 12, 1972 based on said ground, amended complaint. (Pp. 113-115, Record.)
considering that counsel had been consequently
informed of said orders and given an opportunity II
to argue his original motion, and for the reason
stated in the second paragraph of the order of The problem posed by the foregoing extended
the Court dated January 12, 1972, specifically recital of the proceedings below is not as
that the dismissal of the Court of the case complicated as it would seem to be at first
against defendant Raul Arellano dated August glance. The root issue here is whether or not the
19, 1969 does not constitute res judicata. The order of August 19, 1969, aforequoted, providing
Court further reiterates its ruling that said order for the dismissal of the subject action (Civil Case
of dismissal dated August 19, 1969, does not No. 2167) as against Arellano was legally issued
constitute res judicataconsidering that from the and not having been set aside by any superior
records of the case, it appears that the written court within the reglementary period has already
interrogratories sent to the plaintiff was done become final. In the affirmative, it should follow
without leave of Court and in violation of Section as a matter of course that all the four (4) orders
1, Rule 24 of the New Rules of Court which of respondent court questioned herein which
prescribes that leave of Court is required for combinedly admit or give due course to the
said written interrogatories after jurisdiction has amended complaint of Barreta rejoining Arellano
been obtained over any defendant or over as defendant in the same case, Civil Case No.
property which is the subject of the action. 2167, are illegal and should be set aside. After a
careful review of the record, We are fully
The urgent motion filed by counsel for the convinced that the petition asking for such
defendant Raul Arellano dated April 19, 1967, nullification should be granted.
specifically manifests that defendant received
copy of plaintiffs complaint on April 6, 1967. A
Thus, at the time and date the written
interrogatories to the plaintiff was sent, (which While the reason for the evident turtle pace of
written interrogatories is dated May 5, 1967) the the proceedings below does not appear in the
court had already acquired jurisdiction over the record and none of the parties have so far
person of the defendant, and consequently, volunteered any explanation thereof, it is a fact
leave of court was necessary, before said that Barreta had all the one and a half years
written interrogatories could be sent to the after he was served the written interrogatories of
plaintiff (Section 1, Rule 25 in connection with Arellano until the first step was taken to make
Section 1 Rule 24). The order of the court dated him serve his answers to the same in the form of
August 19, 1969 dismissing the case as against a motion that the case be dismissed as against
the defendant Raul Arellano shows that said Arellano for such failure to serve said answers.
order of dismissal was issued based on the Nevertheless, upon his request, respondent
erroneous assumption that the written court, by its order of February 28, 1969, still
interrogatories for the plaintiff sent by the gave him ten (10) days to file his opposition. And
defendant Raul Arellano was proper even the ten days passed, but he did not file any
without previous leave of court. It is to be noted opposition. In its order of March 25, 1969, the
further that there is nothing in the records to court noted that as of then, no such opposition
show that the court had granted leave to file the had yet been filed. Even when Arellano
written interrogatories, there being only an order reiterated in his motion of April 7, 1969 his
of the court dated August 6, 1969, giving prayer for dismissal of the action against him,
counsel for the plaintiff ten (10) days to file invoking not only Section 5 of Rule 29 but also
Section 3 of Rule 17, he remained nonchalant. court is simply unwarranted and constitutes, to
At the hearing of said motion on April 25, 1969, say the least, grave abuse of discretion. The
he succeeded in securing a postponement of its resulting injury to the administration of justice in
consideration to "new assignment." And when consequence of the tactics of private
the "new assignment" came on August 6, 1969, respondents and/or their counsel and the
he was once more granted, after being heard in indifferent attitude of the court towards them are
oral argument, "ten days from today within so deplorable, specially in these times when it is
which to file whatever pleading he may desire to imperative that the people need to be convinced
submit in connection with the motion to dismiss that the courts will not brook any unnecessary
(presumably of June 9, 1967, reiterated April 7, delay in the conduct of its judicial business, that
1969) and in answer to the argument advanced a repitition by any of those concerned will
by counsel for the defendant Raul Arellano." certainly merit drastic action on the part of this
But, what is worse, as recounted in Arellano's Court. (Private respondents are so unconcerned
motion of August 11, 1569, quoted above, about their obligation to the Court that after
Barreta's counsel had stated at said hearing of asking for extension to file their answer they did
August 6th that "plaintiff's answers (to the not file any and have not had the courtesy to
interrogatories) have been served on explain why.). (at page 177.)
defendant's counsel in Manila to which counsel
replied they have not received the same. To be sure, We can uphold the order of
Plaintiff's counsel, however, said again in open dismissal in question on the strength of the
court that such answers must have been served basic principles of discovery procedure, more
already by a certain Atty. Berenguer that very specifically, for failure of Barreta to serve any
moment or if not, possibly the next day", all of answer to Arellano's interrogatories. The
which representations have turned out to be contention of respondent that it was erroneous
untrue. Neither the promised opposition nor the for the trial court to dismiss the action without
expected answers ever came. Hence, the first ordering Barreta to answer the
reiterative prayer in said motion for "instant interrogatories of Arellano and waiting for his
dismissal of plaintiff's complaint." failure to do so has no merit. Neither is there
merit in the claim that the sending of the
Upon these premises, We cannot perceive how interrogatories in question had not yet been
the order of dismissal of August 19, 1969 could given due course by the court. "Leave of court is
be faulted as baseless and illegal. On the not necessary before written interrogatories may
contrary, had the order been otherwise, We be served upon a party." (2 Moran 90, 1970 ed.)
would not have hesitated to consider such In any event, if Section 1 of Rule 25 could be
negative action a grave abuse of discretion and susceptible of the construction suggested by
order by mandamus the dismissal prayed for. counsel for Barreta, it is to Us a sufficient basis
The seeming cocksureness of Barreta that he for the discovery procedure of written
could secure a delay of the proceedings, as in interrogatories in this case to have proceeded in
fact he successfully got almost interminable motion after plaintiff had been given a period to
postponements and extensions from the trial oppose and had failed to do so. Besides, the
court cannot but strike our attention. The record repeatedly unfulfilled promises of counsel to
reveals that for no reason at all, plaintiff held the produce the answers of his client render such
consideration of the incident regarding the objection academic. Withal, the order of
interrogatories of defendant for all the time he or dismissal of August 19, 1969, which counsel
his counsel wanted. The forbearing attitude of referred to in his motion of December 16, 1969,
the trial court in this respect was unwarranted. as having been issued "in view of plaintiff's
There was absolutely nothing complicated in the failure to answer the written interrogatories" was
questions involved, and for the matter to have virtually accepted as final in said motion, so
been left unacted upon definitely from May, much so that the artifice of moving for the
1967 to August, 1969 is beyond any justifiable reinclusion of Arellano as an indispensable party
explanation. In fact, none has been shown to was conceived. In brief, there is here a case
Us. More than a year ago, in Sacdalan vs. where the party served with written
Bautista, 56 SCRA 175, We expressed interrogatories has four unexplained reasons
Ourselves clearly in regard to a similar situation failed altogether to comply with the requirements
this wise: of Section 2 of Rule 25 that they be answered.
Under these circumstances, the assailed
We do not hesitate to grant the petition. The dismissal finds justification in Section 5 of Rule
manifestly unpardonable negligence of private 29 which provides:
respondents, displayed in the record, throughout
all stages of these proceedings, is matched only Failure of party to attend or serve answers. — If
by the inexplicable liberality extended by a party or an officer or managing agent of a
respondent judge to them. The Court cannot but party willfully fails to appear before the officer
express its annoyance in the premises. Under who is to take his deposition, after being served
the circumstances extant in the petition and its with a proper notice, or fails to serve answers to
annexes, the disposition of respondent judge to interrogatories submitted under Rule 25, after
further give private respondents another chance proper service of such interrogatories, the court
to repeat their inattention and disrespect to the on motion and notice, may strike out all or any
part of any pleading of that party, or dismiss the judgment by default against the disobedient
action or proceeding or any part thereof, or enter party.
a judgment by default against that party, and in
its discretion, order him to pay reasonable What these provisions refer to is a situation
expenses incurred by the other, including where a particular question in the set of written
attorney's fees. interrogatories served upon a party is
concerned, but where the whole set of written
The provision cited by counsel, which is Section interrogatories is ignored and none of the
1 of the same rule together with its Section 3(c), questions is answered the sanction is found in
is not applicable here. The said provisions are: Section 5 above.

Sec. 1. Refusal to answer. — If a party or other B

deponent refuses to answer any question
propounded upon oral examination, the There is, however, a more solid basis for the
examination shall be completed on other impugned dismissal order. It is Section 3 of Rule
matters or adjourned, as the proponent of the 17, also invoked even in the court below by
question may prefer. Thereafter, on reasonable petitioner, which provides:
notice to all persons affected thereby, he may
apply to the court of the province where the Sec. 3. Failure to prosecute. — If plaintiff fails to
deposition is taken for an order compelling an appear at the time of the trial, or to prosecute his
answer. Upon the refusal of a witness to answer action for an unreasonable length of time, or to
interrogatory submitted under sections 25 and comply with these rules or any order of the
26 of Rule 24 or upon the refusal of a party to court, the action may be dismissed upon motion
answer any interrogatory submitted under Rule of the defendant or upon the court's own motion.
25, the proponent of the question may on like This dismissal shall have the effect of an
notice make like application for such an order. If adjudication upon.
the motion is granted, the court shall require the
refusing party or deponent to answer the To begin with, instead of seeing to it that every
question or interrogatory and if it also finds that step is expeditiously taken so that his complaint
the refusal was without substantial justification, it may be placed in the Calendar for trial, by his
may further require the refusing party or own transparent dilatory moves, plaintiff in this
deponent or the attorney advising the refusal, or case contributed actively to the unreasonable
both of them to pay to the examining party the and unexplained delay of the preliminary
amount of the reasonable expenses incurred in incidents. His excuses in relation to the written
obtaining the order, including reasonable interrogatories are flimsy and groundless. As
attorney's fees. If the motion is denied and if the can be seen, the interrogatories are proper,
court finds that the motion was made without contrary, to the observations of plaintiff that they
substantial justification, it shall require the deal with "facts clearly seen from the allegations
examining party or the attorney advising the of the complaint ... (hence)frivolous and need
motion or both of them to pay to the refusing not be answered." The interrogatories sought
party or deponent the amount of the reasonable specific details of the title relied upon by plaintiff,
expenses incurred in opposing the motion, which is certainly proper, there being no mention
including reasonable attorney's fees. of any title of the plaintiff in the complaint. In
other words, it can be said that somehow
xxx xxx xxx plaintiff was guilty of failure to prosecute his
case for an unreasonable length of time by
Sec. 3. Other consequences. — If any party or failing to keep the progress thereof in motion for
an officer or managing agent of a party refuses almost two years. Under the rules, it is the duty
to obey an order made under section 1 of this of a plaintiff to always take the initiative in
rule requiring him to answer designated keeping the proceedings active and going until it
questions, or an order under Rule 27 to produce is terminated, otherwise his case may be
any document or other thing for inspection, dismissed either upon motion of his adversary of
copying, or photographing or to permit it to be the court itself.
done, or to permit entry upon land or other
property, or an order made under Rule 28 What made the dismissal of Barreta's complaint
requiring him to submit to a physical or mental more justified is that his inaction was manifested
examination, the court may make such orders in by paying no heed at all to various periods given
regard to the refusal as are just, and among to him by the court to file his opposition or
others the following: "whatever pleading he may desire" to enable the
court to act on the incidents pending before it.
xxx xxx xxx All practitioners must know that when the court
gives a party a period to file any pleading or
(c) An order striking out pleadings or parts paper, it is because such pleading or paper is
thereof, or staying further proceedings until the needed to enable it to act justly and fairly. No
order is obeyed, or dismissing the action or party may regard such periods as
proceeding or any part thereof, or rendering a inconsequential and, therefore, treat them with
nonchalance and indifference, without sacrificing
the public interest, considering that other cases needing disposition. Only parties
understandably their observance is who are diligent in the prosecution of their rights
indispensable to the proper administration of and who do not obstruct the even flow of the
justice. Failure to comply with them must, course of judicial proceedings with unwarranted
therefore, be satisfactorily explained to be impositions on the time of the court are entitled
excusable. Accordingly, the repeated to an actual decision on the merits. In the
unexplained failure of plaintiff herein to comply interest of expediting the termination of cases in
with the orders of the trial court is definitely a the courts, sanctions are imperative against any
valid and legal ground for the dismissal of his form of obstruction or delay. Indeed, We have
case, for failure to prosecute. repeatedly held that "the dismissal of an action
for failure of the plaintiff to prosecute the same
III rests upon the sound discretion of the trial court
and will not be reversed on appeal in the
In view of the foregoing discussion and absence of abuse. The burden of showing
conclusions, the only question remaining for our abuse of judicial discretion is upon appellant
resolution is whether or not the dismissal of since every presumption is in favor of the
Barreta's complaint as against Arrelano by virtue correctness of the court's action." (1 Moran pp.
of the trial court's order of August 19, 1969 has 528-529, 1970 ed. and the cases therein cited.)
the attributes of res adjudicata, on which case And in the case at bar, if there is any abuse of
Barreta's amended complaint admitted by the discretion evident, it is the seemingly endless
same trial court thru its impugned order of tolerance of the trial court to all continuous and
March 31, 1971 should be barred. Petitioner repeated impositions of respondent Barreta. But
maintains the affirmative, invoking Sections 3 of all these is not to say that dismissal under
Rule 17, already quoted above. On the other Section 5 of Rule 29 does not constitute res
hand, respondent posits it could not be so adjudicata a point We do not here decide, albeit
because the trial court has not yet passed on the writer of this opinion feels that such should
the merits of his claim of ownership of the land be the construction, considering that failure to
in dispute, which he believes are clearly with answer interrogatories constitutes such a
him. Besides, according to respondent the subversion of the objective of the rules on
amended complaint admitted by the trial court discovery designed precisely to obviate
attacks directly the validity of the said order of technical and lengthy proceedings in the
dismissal on the ground of its having been determination of the substantial rights of the
secured allegedly thru fraud, hence, the defense parties. The purpose of discovery procedures is
of res adjudicata is unavaling. to provide means by which both parties in an
action may acquire, without waiting for the trial,
Petitioner is correct. As explained above, knowledge of material facts and evidence which
although the order itself of August 19, 1969 does otherwise would be peculiarly within the
not say so expressly, the dismissal ordered knowledge only of the other. In that way,
thereby should be deemed to be for failure to surprises and deceptions are avoided and the
prosecute. In effect, said order resolved not only litigants must have to depend no longer on the
Arellano's motion of August 11, 1967 therein techniques and tactics of trial lawyers but must
specifically mentioned but also those of June 9, win or lose on the basis of the bare facts
1967 and April 7, 1969 which were to the same constituting their causes. It is thus important that
end and still unacted upon. The motion of April the rules on discovery should be duly observed
7, 1969 invoked Section 3 of Rule 17. Reading and violations thereof, correspondingly dealt
all said motions together in the light of the with.
relevant circumstances We have emphasized
earlier, there can be no question that they had Of course, Section 3 of Rule 17 may not be
the dual thrust of complaining not only against invoked in instances of innocuous and
Barreta's failure to answer the interrogatories inconsequential infractions of the rules or
but more importantly his disregard of the periods inattention to or violation of unimportant orders
given him by the trial court to manifest his of the court, without prejudice to their being
position. considered as contempt and punished
accordingly, but when the rule violated is one
Upon these premises, the result is inexorable. intended to hasten judicial action and to bring
The very text of Section 3 of Rule 17 enjoins about as just a decision as is humanly possible
categorically that such a dismissal as that to do in the most simple manner, or the order
ordered by the trial court on August 19, 1969 disobeyed precisely purports to enable the court
"shall have the effect of an adjudication upon the to perform its functions properly, it is the better
merits, unless otherwise provided by court." policy not to tolerate deviations, unless clearly
These words are incapable of being justifiable. In the case before Us now, no
misunderstood or misconstrued. Indeed, it would justification whatsoever has been alleged for the
not be of any advantage to the speedy gross disregard by plaintiff of the orders of the
administration of justice for the courts to dismiss trial court.
actions only to keep the door open for them to
be easily refiled to reoccupy again the attention Anent the contention that the amended
of the court which could be better devoted to complaint seeks in its fourth cause of action to
have the order of dismissal of August 19, 1969 December 16, 1969, it was alleged in Atty. Vigor
nullified for having been supposedly secured Ja. Amador's motion of that date, complaining
thru fraud, to begin with, We are not inclined to against said order of dismissal, that "(P)laintiff is
give our assent to the procedure adopted by now ready with copies of documents needed to
counsel of trying to revive the very complaint answer the queries of Mr. Raul Arellano in his
that has been dismissed by simply amending it quest for interrogatories," which clearly implies
with the addition of an allegation that the that somehow client and counsel were in touch
previous dismissal was illegal and void. The with each other relative to the matter in dispute
dismissal of a case may be set aside within the — the interrogatories, the orders of the court
same proceeding only thru a motion for new trial and the expected answers to said
under Rule 37 or a petition for relief under interrogatories. And from the circumstances
Section 2 of Rule 38, upon compliance with the extant in the record, We are not prepared to
conditions prescribed in said rules. It is rather accept the suggestion that Barreta has been the
incongruous that after a complaint has been victim of the perfidy of his counsel.
dismissed and without the remedies just
mentioned being availed of and without any We are saying all these not because they are
explanation for such omission, We would allow necessarily within the issues before Us now,
that the same complaint, with some considering the nature of the present
amendments, be the very pleading utilized to proceedings, but more because of the Court's
annul the very order that dismissed it. After a desire to put an end to this litigation the only
decision terminating a case has become final, it way We are convinced it should terminate. Were
may be set aside on the ground of fraud only by We to leave the issue of the propriety of the
means of a justified petition for relief, if filed allegations of fraud in the amended complaint
within the period fixed in Section 3 of Rule 38, We are disallowing by this decision, the
and after said period; but within four years, only erroneous thought might be left lingering that the
by another action for the purpose. Court has priced technicality above the essence
of Barreta's claim of ownership, which is not
In the instant case, however, it is quite obvious correct. For the long and short of this opinion is
that even if the fourth cause of action alleged by that what the Court perceives in the record are
Barreta were in a new complaint, We would say not only flagrant violations of the rules and utter
that it could not prosper. Prescinding already disregard of court orders but lack of absolute
from the point that the particulars of the candor on the part of private respondents. If
supposed fraud are not sufficiently averred, indeed they have actually lost a rightful claim of
contrary to the requirement of Section 5 of Rule ownership over the land in question, they have
8, We note that according to Paragraph 3 of the only themselves to blame.
"Fourth Cause of Action" referred to, "(P)laintiffs
are informed and so believe that there has been It was clearly erroneous on the part of
connivance of the herein defendants and the respondent court to have admitted the amended
two, Richard Doe and John Doe, etc." Surely, for complaint of private respondent. And it being
obvious reasons, allegations of fraud intended to apparent that the said amended complaint is
induce the court to set aside or annul a final validly barred by res adjudicata insofar as
order or decision regular on its face cannot be petitioner is concerned, the said admission
made on information and belief, even if the constitutes grave abuse of discretion.
pleading is verified. Moreover, going over the
records and comparing the allegations in the IN VIEW OF ALL THE FOREGOING, the
said "Fourth Cause of Action" with those in the petition is granted and the above-mentioned
"Alternative Motion for Relief" incorporated by orders of respondent court of March 31, 1971,
counsel in his motion of January 16, 1971 to set May 24, 1971, January 12, 1972 and February
aside order of August 19, 1969, We cannot say 11, 1972 are hereby annulled and set aside, the
that they are entirely consistent with each other. order of dismissal of August 19, 1969 having
Indeed, why was the supposed fraud alleged in been properly and legally issued and become
the amended complaint not mentioned at all in definitely final and conclusive. Costs against
the motion of January 16, 1971? Further still, a private respondent.
petition for relief against an order of dismissal
once filed must be pursued to its logical Fernando (Chairman), Antonio, Aquino and
conclusion, including an immediate appeal, if it Concepcion Jr., JJ., concur.
is denied, and it cannot, therefore, be
abandoned in favor of an action for annulment
on the same basic ground. In other words, after
a petition for relief is denied, and no appeal is G.R. No. 172175 October 9, 2006
taken against such denial, an action for
annulment of the questioned order or decision SPS. EXPEDITO ZEPEDA AND ALICE D.
based on the same fundamental grounds ZEPEDA, petitioners,
alleged in the petition is barred. What is worse, vs.
We feel that the allegation that Barreta came to CHINA BANKING
know of the order of dismissal only in December, CORPORATION, respondent.
1970 does not ring true, for as early as
defenses in its Order dated October 22, 2004
and directed the Clerk of Court to set the pre-
DECISION trial conference for the marking of the parties’
documentary evidence.

Aggrieved, respondent bank filed a petition for

YNARES-SANTIAGO, J.: certiorari under Rule 65 which was granted by
the Court of Appeals. It held that the trial court
This petition for review under Rule 45 of the gravely abused its discretion in issuing the two
Rules of Court assails the January 24, 2006 assailed Orders. It ruled that compelling reasons
Decision1 of the Court of Appeals in CA-G.R. SP warrant the dismissal of petitioners’ complaint
No. 89148 granting respondent China Banking because they acted in bad faith when they
Corporation’s (Chinabank) petition to annul the ignored the hearings set by the trial court to
Orders dated April 1, 2004 2 and October 22, determine the veracity of Chinabank’s
20043 of the Regional Trial Court of San Jose, affirmative defenses; they failed to answer
Camarines Sur, Branch 30,4 in Civil Case No. T- Chinabank’s written interrogatories; and the
947. Also assailed is the March 31, 2006 complaint states no cause of action.
Resolution5 denying petitioners’ motion for
reconsideration. On March 31, 2006, petitioners’ motion for
reconsideration was denied hence, the instant
The facts are as follows. petition raising the following issues:

On February 18, 2003, spouses Expedito and I. THE HONORABLE COURT OF APPEALS
Alice Zepeda filed a complaint for nullification of COMMITTED REVERSIBLE ERROR WHEN IT
foreclosure proceedings and loan documents ISSUED THE ASSAILED DECISION
with damages6 against respondent Chinabank DECLARING THAT THE PETITIONER[S’]
before the Regional Trial Court of San Jose, COMPLAINT DATED 12 FEBRUARY 2003 HAS
Camarines Sur, which was docketed as Civil NO CAUSE OF ACTION.
Case No. T-947 and raffled to Branch 30. They
alleged that on June 28, 1995, they obtained a II. CAUSE OF ACTION HAS BEEN
loan in the amount of P5,800,000.00 from SUFFICIENTLY ESTABLISHED IN THE
respondent secured by a Real Estate Mortgage COMPLAINT AND THE GROUND RELIED
over a parcel of land covered by Transfer UPON BY THE PRIVATE RESPONDENT BANK
Certificate of Title (TCT) No. T-23136. ARE MERE EVIDENTIARY MATTERS.7

Petitioners subsequently encountered difficulties The issues for resolution are: a) whether the
in paying their loan obligations hence they complaint states a cause of action and b)
requested for restructuring which was allegedly whether the complaint should be dismissed for
granted by Chinabank. Hence, they were failure of petitioners to answer respondent’s
surprised when respondent bank extrajudicially written interrogatories as provided for in Section
foreclosed the subject property on October 9, 3(c), Rule 29 of the Rules of Court.
2001 where it emerged as the highest bidder.
Respondent bank was issued a Provisional The petition is meritorious.
Certificate of Sale and upon petitioners’ failure
to redeem the property, ownership was Anent the first issue, the Court of Appeals ruled
consolidated in its favor. that the complaint failed to state a cause of
action because petitioners admitted that they
According to petitioners, the foreclosure failed to redeem the property and that ownership
proceedings should be annulled for failure to of the same was consolidated in the name of
comply with the posting and publication Chinabank.
requirements. They also claimed that they
signed the Real Estate Mortgage and A cause of action is a formal statement of the
Promissory Note in blank and were not given a operative facts that give rise to a remedial right.
copy and the interest rates thereon were The question of whether the complaint states a
unilaterally fixed by the respondent. cause of action is determined by its averments
regarding the acts committed by the defendant.
Respondent bank’s motion to dismiss was Thus it "must contain a concise statement of the
denied, hence it filed an answer with special ultimate or essential facts constituting the
affirmative defenses and counterclaim. It also plaintiff’s cause of action." Failure to make a
filed a set of written interrogatories with 20 sufficient allegation of a cause of action in the
questions. complaint "warrants its dismissal."8

In an Order dated April 1, 2004, the trial court As defined in Section 2, Rule 2 of the Rules of
denied Chinabank’s affirmative defenses for lack Court, a cause of action is the act or omission
of merit as well as its motion to expunge the by which a party violates the right of another. Its
complaint for being premature. The trial court essential elements are as follows:
reiterated its denial of Chinabank’s affirmative
1. A right in favor of the plaintiff by whatever Anent the second issue, we do not agree with
means and under whatever law it arises or is the Court of Appeals’ ruling that the complaint
created; should be dismissed for failure of petitioners to
answer respondent bank’s written
2. An obligation on the part of the named interrogatories.
defendant to respect or not to violate such right;
and It should be noted that respondent bank filed a
motion to expunge the complaint based on
3. Act or omission on the part of such defendant Section 3(c) of Rule 29 which states:
in violation of the right of the plaintiff or
constituting a breach of the obligation of the SEC. 3. Other consequences. – If any party or
defendant to the plaintiff for which the latter may an officer or managing agent of a party refuses
maintain an action for recovery of damages or to obey an order made under section 1 12 of this
other appropriate relief. Rule requiring him to answer designated
questions, or an order under Rule 27 to produce
It is, thus, only upon the occurrence of the last any document or other thing for inspection,
element that a cause of action arises, giving the copying, or photographing or to permit it to be
plaintiff the right to maintain an action in court done, or to permit entry upon land or other
for recovery of damages or other appropriate property, or an order made under Rule 28
relief.9 In determining whether an initiatory requiring him to submit to a physical or mental
pleading states a cause of action, "the test is as examination, the court may make such orders in
follows: admitting the truth of the facts alleged, regard to the refusal as are just, and among
can the court render a valid judgment in others the following:
accordance with the prayer?" To be taken into
account are only the material allegations in the xxxx
complaint; extraneous facts and circumstances
or other matters aliunde are not considered. The (c) An order striking out pleadings or parts
court may consider in addition to the complaint thereof, or staying further proceedings until the
the appended annexes or documents, other order is obeyed, or dismissing the action or
pleadings of the plaintiff, or admissions in the proceeding or any part thereof, or rendering a
records.10 judgment by default against the disobedient
party; and
In the instant case, petitioners specifically
alleged that respondent bank acted in bad faith x x x x.13
when it extrajudicially foreclosed the mortgaged
property notwithstanding the approval of the As we have explained in Arellano v. Court of
restructuring of their loan obligation. They First Instance of Sorsogon,14 the consequences
claimed that with such approval, respondent enumerated in Section 3(c) of Rule 29 would
bank made them believe that foreclosure would only apply where the party upon whom the
be held in abeyance. They also alleged that the written interrogatories is served, refuses to
proceeding was conducted without complying answer a particular question in the set of written
with the posting and publication requirements. interrogatories and despite an order compelling
him to answer the particular question, still
Assuming these allegations to be true, refuses to obey the order.
petitioners can validly seek the nullification of
the foreclosure since the alleged restructuring of In the instant case, petitioners refused to answer
their debt would effectively modify the terms of the whole set of written interrogatories, not just a
the original loan obligations and accordingly particular question. Clearly then, respondent
supersede the original mortgage thus making bank should have filed a motion based on
the subsequent foreclosure void. Similarly, the Section 5 and not Section 3(c) of Rule 29.
allegation of lack of notice if subsequently Section 5 of Rule 29 reads:
proven renders the foreclosure a nullity in line
with prevailing jurisprudence.11 SEC. 5. Failure of party to attend or serve
answers. – If a party or an officer or managing
We find the allegations in the complaint agent of a party willfully fails to appear before
sufficient to establish a cause of action for the officer who is to take his deposition, after
nullifying the foreclosure of the mortgaged being served with a proper notice, or fails to
property. The fact that petitioners admitted that serve answers to interrogatories submitted
they failed to redeem the property and that the under Rule 25 after proper service of such
title was consolidated in respondent bank’s interrogatories, the court on motion and notice,
name did not preclude them from seeking to may strike out all or any part of any pleading of
nullify the extrajudicial foreclosure. Precisely, that party, or dismiss the action or proceeding or
petitioners seek to nullify the proceedings based any part thereof, or enter a judgment by default
on circumstances obtaining prior to and during against that party, and in its discretion, order him
the foreclosure which render it void. to pay reasonable expenses incurred by the
other, including attorney’s fees.
Due to respondent bank’s filing of an erroneous SO ORDERED.
motion, the trial court cannot be faulted for ruling
that the motion to expunge was premature for
lack of a prior application to compel compliance
based on Section 3.

This Court has long encouraged the availment

of the various modes or instruments of discovery
as embodied in Rules 24 to 29 of the Rules of
Court.15 In the case of Hyatt Industrial
Manufacturing Corporation v. Ley Construction
and Development Corporation,16 we declared:

Indeed, the importance of discovery procedures

is well recognized by the Court. It approved A.M.
No. 03-1-09-SC on July 13, 2004 which
provided for the guidelines to be observed by
trial court judges and clerks of court in the
conduct of pre-trial and use of deposition-
discovery measures. Under A.M. No. 03-1-09-
SC, trial courts are directed to issue orders
requiring parties to avail of interrogatories to
parties under Rule 45 and request for admission
of adverse party under Rule 26 or at their
discretion make use of depositions under Rule
23 or other measures under Rule 27 and 28
within 5 days from the filing of the answer. The
parties are likewise required to submit, at least 3
days before the pre-trial, pre-trial briefs,
containing among others a manifestation of the
parties of their having availed or their intention
to avail themselves of discovery procedures or
referral to commissioners.

The imposition of sanctions under Section 5 is

within the sound discretion of the trial court.
Thus, in Insular Life Assurance Co., Ltd. v.
Court of Appeals,17 we held:

The matter of how, and when, the above

sanctions should be applied is one that primarily
rests on the sound discretion of the court where
the case pends, having always in mind the
paramount and overriding interest of justice. For
while the modes of discovery are intended to
attain the resolution of litigations with great
expediency, they are not contemplated,
however, to be ultimate causes of injustice. It
behooves trial courts to examine well the
circumstances of each case and to make their
considered determination thereafter. x x x

WHEREFORE, the petition is GRANTED. The

January 24, 2006 Decision and the March 31,
2006 Resolution of the Court of Appeals in CA-
G.R. SP No. 89148, which granted respondent
China Banking Corporation’s petition to annul
the April 1, 2004 and October 22, 2004 Orders
of the Regional Trial Court of San Jose,
Camarines Sur, Branch 30 denying respondent
bank’s affirmative defenses without a hearing as
well as its motion to expunge the complaint
because of petitioners’ failure to answer the
written interrogatories are REVERSED and SET
ASIDE. The instant case is REMANDED to the
Regional Trial Court of San Jose, Camarines
Sur, Branch 30, for further proceedings.