[No. L-7424.
 August 31, 1954] petitioner, had not been dissolved and was still subsisting, and acting in bad faith,
LOURDES CAMUS DE LOPEZ, on her behalf and as guardian ad litem of the
minors, SALVADOR C. LOPEZ, JR., and LUIS CARLOS LOPEZ,
petitioners, vs. HON. CIRILO G. MACEREN, Judge of the Court of First
Instance of Davao, MARIA N. VDA. DE LOPEZ, ENRIQUE LOPEZ,
SALVADOR LOPEZ, JR., LEOPOLDO LOPEZ, RODOLFO LOPEZ and
754
754  PHILIPPINE REPORTS ANNOTATED  Lopez, Jr., and Luis Carlos Lopez were born in Manila on December 6, 1939, and
Lopez, etc., et al, vs. Maceren, etc., et al.
the guardian ad litem for the minor FLORDELIZ LOPEZ, respondents.
1. 1.DEPOSITIONS; JUDICIAL DISCRETION; LIMITATIONS ON; CASE
AT BAR.—While section 16 of Rule 18 of the Rules of Court vests
discretion in the court in allowing the taking of depositions, this discretion
is not unlimited. It must be exercised, not arbitrarily, capriciously or
oppressively, but in consonance with the spirit of the law, to the end that
its purpose may be attained. If, as in the case at bar, the order of the court
forbidding the taking of a deposition tends, in effect, to deprive one, not
only of his right under section 1. of Rule 18, but also of the opportunity to
prove his claim, and, consequently, of the due process guaranteed by the
Constitution, the said order should be set aside.
1. 2.ID.; OBJECTION AGAINST DEPOSITIONS NOT SUFFICIENT.—The
objection to the effect that if the depositions were taken the court could not
observe the behaviour of the deponents is untenable. Otherwise, no
deposition could ever be taken, said objection or handicap being common
to all depositions.
ORIGINAL ACTION in the Supreme Court. Certiorari.
The fact are stated in the opinion of the Court.
Soriano, Inton & Peña for petitioners.
Abella, Cavestany, Syyap & Estrellado for respondents.
CONCEPCION, J.:
Petitioner Lourdes Camus de Lopez, on her behalf and as guardian al litem of her
minor children, Salvador C. Lopez, Jr., and Luis Carlos Lopez, is the plaintiff in
Civil Case No. 1035 of the Court of First Instance of Davao. Respondents Maria N.
Vda. de Lopez, Enrique Lopez, Salvador Lopez, Jr., Leopoldo Lopez, Rodolfo Lopez
and Flordeliz Lopez are the defendants in said case No. 1035, the purpose of which
is to secure delivery of some property of the deceased Salvador Lopez, Sr., as alleged
share of the petitioner, who claims to be his widow. She contends that, although his
previous marriage with respondent Maria N. de Lopez, which was unknown to
and without advising petitioner of such first 
755
VOL. 95, AUGUST 31, 1954  755 
Lopez, etc., et al, vs. Maceren, etc., et al.
marriage, Salvador Lopez, Sr., wedded the latter in 1938, and, thereafter, lived as
husband and wife with her; and that, as a consequence of said union, Salvador C.
November 25, 1940, respectively, and then christened as legitimate children of
Salvador Lopez, Sr. and the petitioner, as set forth in their respective birth and
baptismal certificates. After the filing of the answer of said respondents, as
defendants in said Civil Case No. 1035, or on December 8, 1953, petitioner herein
through her counsel filed a "notice for the taking" of her deposition and that of one
Pilar Cristobal, at Room 202 of the Vasquez Building, 1865 Azcarraga Street,
Manila, on January 16, 1954, at 2:00 p.m. Acting, however, upon an urgent motion
of the defendants in said Civil Case No. 1035, respondent Hon. Cirilo C. Maceren, as
Judge of First Instance of Davao, issued an order, dated January 11, 1954,
prohibiting the taking of said deposition. Accordingly, petitioner instituted the
present case for the purpose of annulling said order of January 11, 1954, and of
having no restraint to the taking of the aforementioned deposition.
Petitioner maintains that respondent Judge committed a grave abuse of discretion
in forbidding the taking of said deposition, she being entitled thereto as a matter of
right, without leave of court, after the filing of the answer of the defendants in said
Civil Case No. 1035, for section 1. of Rule 18 of the Rules of Court provides:
"Deposition pending action, when may be taken.—By leave of court after jurisdiction
has been obtained over any defendant or over property which is the subject of the
action, or without such leave after an answer has been served, the testimony of any
person, whether a party or not, may be taken, at the instance of any party, by
deposition upon oral examination or written interrogatories. The attendance of
witnesses may be compelled by the use of subpoena as provided in Rule 29.
Deposition shall be taken only in accordance with these rules. The deposition of a
person confined in prison may be taken only by leave of court on such terms as the
court prescribes."
756
756  PHILIPPINE REPORTS ANNOTATED 
Lopez, etc., et al, vs. Maceren, etc., et al.
Under the other hand, respondents invoke, in their favor,section 16 of the same rule,
reading:
"Orders for the protection of parties and deponents.—After notice is served for
taking a deposition by oral examination, upon motion seasonably made by any party
or by the person to be examined and upon notice and for good cause shown, the court
in which the action is pending may make an order that the deposition shall not be
taken, or that it may be taken at some designated place other than that stated in the
notice, or that it may be taken only on written interrogatories, or that certain matters
1
shall not be inquired into, or that the scope of the examination shall be limited to
certain matters, or that the examination shall be held with no one present except the
parties to the action and their officers or counsel. or that after being sealed the
deposition shall be opened only by order of the court, or that secret processes,
developments or research need not be disclosed, or that the parties shall
simultaneously file specified documents or information enclosed in sealed envelopes
to be opened as directed by the court; or the court may make any other order which
justice requires to protect the party or witness from annoyance, embarrassment, or
oppression."
This provision explicitly vests in the court the power to "order that the deposition
shall not be taken" and, this grant connotes the authority to exercise discretion in
connection therewith (National Bondholders Corp. vsMcClintic, 1. Fed. Rules
Service, 388, 99 F. [2d] 595). It is well-settled, however, that the discretion conferred
by law is not unlimited; that it must be exercised, not arbitrarily, capriciously or
oppressively, but in a reasonable manner and in consonance with the spirit of the
law, to the end that its purpose may be attained. Referring to the objective of section
16 of Rule 18 of the Rules of Court, former Chief Justice Moran has the following to
say:
"The advisory committee of the United States Supreme Court said that this provision
is intended to be one of the safeguards for the protection of the parties and deponents
on account of the unrestricted right to discovery given by section 1. and 2. of this
Rule. A party may take the deposition of a witness who knows nothing about the
case, with the only purpose of annoying him or wasting the time of the other parties.
In such case, the court may, on motion, order that the deposition shall not be taken.
Or,
757
VOL. 95, AUGUST 31, 1954  757  deposition were taken, the court could not observe the behaviour of the deponents.
Lopez, etc., et al, vs. Maceren, etc., et al.
a party may designate a distinct place for the taking of a deposition, and the adverse
party may not have sufficient means to reach that place, because of poverty or
otherwise, in which case the court, on motion, may order that the deposition be taken
at another place, or that it be taken by written interrogatories. The party serving the
notice may wish to inquire into matters the disclosure of which may be oppressive or
embarrassing to the deponent, especially if the disclosure is to be made in the
presence of third persons, or, the party serving the notice may attempt to inquire into
matters which are absolutely private of the deponent, the disclosure of which may
affect his interests and is not absolutely essential to the determination of the issues
involved in the case. Under such circumstances, the court, on motion, may order 'that
certain matter shall not be Inquired into or that the scope of the examination shall be
limited to certain matters, or that the examination shall be held with no one present
except the parties to the action and their officers or counsel, or that after being sealed
the deposition shall be opened only by order of the court, or that secret processess,
developments, or research need not be disclosed, or that the parties shall
simultaneously file specific documents or informations enclosed in sealed envelopes
to be opened as directed by the court.' In other words, this provision affords the
adverse party, as well as the deponent, sufficient protection against abuses that may
be committed by a party in the exercise of his unlimited right to discovery. AS a
writer said: 'Any discovery involves a prying into another person's affairs—a prying
that is quite justified if it is to be a legitimate aid to litigation, but not justified if it is
not to be such an aid/ For this reason, courts are given ample powers to forbid
discovery which is intended not as an aid to litigation, but merely to annoy,
embarrass or oppress either the deponent or the adverse party, or both." (Comments
on the Rules of Court by Moran, Vol. I, pp. 435-6, 1952 ed.)
It is not claimed that the order complained of sought to avert any of the evils which
said section 16 was meant to prevent or arrest. Moreover, petitioner was permitted to
institute and maintain Civil Case No. 1035 as a pauper. As such, she can ill afford to
meet the expenses to make, with her witnesses, the trip or trips from Manila to
Davao, and to stay in said province for the time necessary for the hearing of the case,
which might not take place on the first date set therefor. Hence, the order in question 
758
758  PHILIPPINE REPORTS ANNOTATED 
Lopez, etc., et al, vs. Maceren, etc., et al.
tended, in effect, to deprive her, not only of her right, under section 1. of Rule 18, to
take the deposition in question, but also, of the opportunity to prove her claim and,
consequently, of the due process guaranteed by the Constitution. Upon the other
hand, the records indicate that the defendants in Civil case No. 1035—who are the
widow of Salvador Lopez, Sr. and their legitimate children—must be well-off
financially, for the estate of the deceased Salvador Lopez, Sr., which has already
been partitioned among them, appears to be worth approximately half a million
pesos. The main reason given in support of the contested order is that, if the
The insufficiency of this circumstance to justify the interdiction of the taking of a
depositon becomes apparent when we consider that, otherwise, no deposition could
ever be taken, said objection or handicap being common to all depositions alike. In
other words, the order of respondent Judge cannot be sustained without nullifying the
right to take depositions, and, therefore, without, in effect repealing section 1. of
Rule 18 of the Rules of Court, which, clearly, was not intended by the framers of
section 16 of the same rule.
It is, consequently, clear that a grave abuse of discretion was committed by
respondent Judge in issuing the aforesaid order of January 11, 1954, for which
reason the same should be, as it is hereby annulled and set aside, with cost against
the respondents, except the Hon. Cirilo C. Maceren.
So-ordered.
Parás, C. J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A. Jugo, Bautista
Angelo, Labrador and Reyes, J. B. L., JJ., concur.
Order set aside.
2
No. L-41154. January 29, 1988.*
SILVERIO VERAN, LUIS VERAN, CRISTINA VERAN, LEON VERAN,
GREGORIO SALAMEDA, and GENEROSA SALAMERA, petitioners, vs. The
HON. COURT OF APPEALS and PRIMITIVA VILLAREAL, respondents.
Civil Procedure; Depositions.—Considering that the deposition was taken
long after the answer had been filed and served, there was no need to seek the
approval of the trial court for the taking of the depositor, notice of such taking being
sufficient.
Same; Same; There is occasion for the Court to exercise its discretion, the
proper time being when the deposition is formally offered in evidence.—Leave of
court for taking depositions should, however, be distinguished from the approval of
the court for the use of the deposition. Under Section 4 of Rule 24 of the Revised
Rules of Court, which was already in force and effect when the deposition was
offered in evidence.
Same; Same; Court of Appeals did not commit a reversible error when it
decided to admit the deposition of Apolonia Glodoveza, a ninety year old woman.—
Further, as pointed out by respondent, before the deposition was formally offered,
respondent had already testified as to the age of deponent: x x x Apparently, this was
overlooked by the trial court when it denied admission of the deposition. In view of
the foregoing, it cannot be argued that the Court of Appeals committed a reversible
error when it decided to admit the deposition of Apolonia Glodoveza.
PETITION for certiorari to review the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
CORTES, J.:
This is a petition for review on certiorari of a decision of the Court of Appeals in
CA-G.R. No. 46367-R, entitled Silverio Veran, et. al. v. Primitiva Villareal,
reversing the trial court's decision declaring petitioners the owners pro-indiviso of
the property subject of the litigation.  Glodoveza received as her share in the
As found by the Court of Appeals in its Decision promulgated on May 27, 1975:  of Lot No. 1744, consisting of residential and
Plaintiffs brought this action to recover possession of a parcel of
land located in Atimonan, Quezon and registered in the name of a
Aleja Glodoveza, mother and grandmother of said plaintiffs,
against the defendant Primitiva Villareal, who died during the
pendency of this action and was subsitituted accordingly.
It is alleged in the complaint that plaintiffs only allowed the afore-
named defendant, being a cousin, to erect her house on a portion of
the and in dispute, which they inherited from Aleja Glodoveza,
who in turn received it as her share from her mother's estate. Said
defendant, however, refused to vacate the lot when demanded to do
so repeatedly, claiming co-ownership also by inheritance from
their common ancestor, the mother of Aleja Glodoveza. Thus, in
the amended answer, defendant interposed the following special
defenses: 
a. That the land particularly described in
paragraph No. 5 of the Complaint was originally
owned pro-indiviso and in common by the late
Leocadia Glodoveza, defendant's mother, the
deceased Aleja Glodoveza, plaintiffs'
predecessor, and the late Ladislawa Glodoveza,
all children of Cornelio Glodoveza and Filomena
Padilla, after whose death their children above-
mentioned orally partitioned said land, by virtue
of which the portion occupied by the defendant
was given and received by her from her
predecessor, and the other portion by the
plaintiffs and other co-heirs over said realty. 
a.1. That in the said oral extrajudicial
partition,the above-indicated Lot No. 1744 was
adjudicated to the three children of the late
spouses Cornelio Glodoveza and Filomena
Padilla above-named, for a special purpose, i.e.,
to enable each of them to own a land by the
roadside suited for residential purpose. 
a.2. That of all the real properties, left by the
aforenamed spouses, the plaintiffs' mother Aleja
extrajudicial partition of Lot No. 1742 a portion
rice land; and a part of Lot No. 1832, all of the
Atimonan Cadastre; whereas, the defendant's
mother Leocadia Glodoveza received only two
parcels of land.
b. That even if the plaintiffs have registered the
said land in whole as described in paragraph No.
5 of the cited Complaint, yet it is also a fact that
said registration was secured thru fraud, deceit,
representation and by illegal means to great
3
 damage of herein defendant and the heirs of
Ladislawa Glodoveza, and she and the latter have
filed their protest to the Director of Lands after
they learned that the plaintiffs through fraud,
deceit, misrepresentation, by illegal means and
irregularly obtained their free patent, as
evidenced by the aforedsaid protest together with
the two affidavits supporting it to be presented at
the trial of this case.  appellees to reconvey the portion of Lot No. 1744, designated in
Because of the pendency of the administrative case as mentioned
in the answer, the trial of the case was suspended indefinitely on
petition of both parties. However, when the plaintiffs changed their
counsel, the latter moved for the setting of the case for trial after
almost four years from Dec. 5, 1955 when the complaint was filed,
the motion was granted, but for failure of the defendants to appear
on the date set for hearing, plaintiffs were allowed to present their
evidence ex-parte, after which decision was rendered on Dec. 15,
1959 in favor of the plaintiff and against the defendant. Upon a
motion for reconsideration, the decision was set aside in order to
allow the defendant to present her evidence, after filing an
amended answer, on the advice of the trial court itself, so as to
include a prayer for the reconveyance of the disputed portion of the
lot, said lot, described as Lot 1744, having been already registered
in the name of Aleja Glodoveza, the predecessor of plaintiffs. 
Defendant offered as part of her evidence the deposition of
Apolonia Glodoveza, but it was denied admission by the trial court
on the ground that no proof was submitted to show that the witness
was so old and infirm as not to be able to come to court to testify,
as contended by plaintiffs in their opposition to the deposition-
taking. 
After trial, judgment was rendered the dispositive portion reading
as follows:  THE HONORABLE COURT OF APPEALS ERRED IN GIVING UNDUE
WHEREFORE, judgment is hereby rendered in
favor of the plaintiffs and against the defendant,
declaring the former owners pro indiviso of Lot
No. 1744, covered by Original Certificate of
Title No. P. 1589 of the Register of Deeds of
Quezon, and ordering the latter to vacate the
portion of the land occupied by her house, to pay
the plaintiff the sum of P300.00 as damages,
P200.00 as attorney's fees and the costs of this
suit. (pp. 1-4, Decision.) 
On appeal, the Court of Appeals reversed the decision of the trial court: 
WHEREFORE, the judgment appealed from should be as it is
hereby reversed, and the complaint is accordingly dismissed. On
the counterclaim, judgment is hereby rendered ordering the
the subdivision survey plan as Lot No. 1744-B to the appellant, as
substituted by her heirs. Costs against appellees in both instances.
(p. 11, Decision). 
As respondent court also denied petitioners' motion for reconsideration, the case was
elevated to this Court. After petitioner filed her comment, this Court, on November
5, 1975, resolved to give the petition due course. 
After petitioner and respondent filed their respective briefs, the case was submitted
for decision. 
Petitioners assign as errors the following. 
I 
THE HONORABLE COURT OF APPEALS ERRED IN FINDING THE
REJECTION BY THE COURT A QUO OF WITNESS APOLONIA
GLODOVEZA'S DEPOSITION AS ERRONEOUS, DESPITE THE FACT THAT
THE COURT A QUO'S CONCLUSION UNDER THE PREMISES WAS IN
ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THE RULES OF
COURT, 
II 
APPRECIATION TO THE MATTERS RELATED IN THE IRREGULARLY-
ACCEPTED DEPOSITION OF WITNESS APOLONIA GLODOVEZA WHEN
THE SAME MATTERS — STANDING ALONE — ARE HARDLY ADEQUATE
TO BELIE THE CONTRARY EVIDENCE PRESENTED BY PETITIONERS. 
III
THE HONORABLE COURT OF APPEALS ERRED IN CONCLUDING THAT
THE LETTER DATED FEBRUARY 25, 1921 OF FEDERICO VERAN,
4
HUSBAND OF PETITIONER'S PREDECESSOR-IN-INTEREST, ADDRESSED
TO PRIVATE RESPONDENT, SEEKING A P1.00 YEARLY CONTRIBUTION
FOR TAXES COULD GIVE RISE TO ANY PRESUMPTION THAT PRIVATE
RESPONDENT HAD BEEN IN POSSESSION OF THE DISPUTED PORTION OF
THE LAND IN QUESTION SINCE 1921. 
IV  served, there was therefore no need to seek the approval of the trial court for the
THE HONORABLE COURT OF APPEALS ERRED IN ATTACHING
MISPLACED SIGNIFICANCE ON EXHIBIT "4" — A SUBDIVISION SURVEY
PLAN OF THE LOT IN QUESTION-WHEN WHATEVER PROBATIVE VALUE
EXHIBIT "4" MAY HAVE ON THE MATTER IN ISSUE IS RENDERED
PRACTICALLY USELESS SINCE IT WAS PREPARED ALMOST ONE (1)
YEAR AFTER ALEJA GLODOVEZA — THE PETITIONERS' PREDECESSOR-
IN-INTEREST — HAD OBTAINED AN ORIGINAL CERTIFICATE OF TITLE
(NO. P-1589) WHICH ACTUALLY LAID TO REST ANY DOUBT AS TO THE
OWNERSHIP OF THE DISPUTED PORTION OF THE LOT IN QUESTION. 
V
THE HONORABLE COURT OF APPEALS ERRED IN CONCLUDING THAT
"NO EVIDENTIARY WORTH CAN, THEREFORE, BE ATTACHED TO WHAT
TRANSPIRED IN THE SAID ADMINISTRATIVE PROCEEDINGS (BEFORE
THE BUREAU OF LANDS)" WHEN SAID ADMINISTRATIVE PROCEEDINGS
HAD PRECISELY BEEN DESIGNED TO LAY AT REST WHATEVER
CONFLICTING CLAIMS THE CONTENDING PARTIES HAD OVER THE
PROPERTY IN QUESTION.  imprisonment;
without such leave after an answer has been served, the testimony
of any person, whether a party or not, may be taken, at the instance
of any party, by deposition upon oral examination or written
interrogatories. ... 
Considering that the deposition was taken long after the answer had been filed and
taking of the deposition, notice of such taking being sufficient. In the instant case, it
is not disputed that notice of the deposition-taking was received by petitioners well
before the intended date and that although petitioners filed an opposition, this was
not acted upon by the trial court before the taking of the deposition. 
Leave of court for taking depositions should, however, be distinguished from the
approval of the court for the use of the deposition Under Section 4 of Rule 24 of the
Revised Rules of Court, which was already in force and effect when the deposition
was offered in evidence: 
xxx xxx xxx
(c) The deposition of a witness, whether or not a party, may be
used by any party for any purpose if the court finds: 
xxx xxx xxx
(3) that the witness is unable to attend or testify
because of age, sickness, infirmity, or
 

VI  xxx xxx xxx

THE HONORABLE COURT OF APPEALS ERRED IN REVERSING THE Thus, with regard to the use of a deposition, there is occasion for the court to
DECISION OF THE COURT A QUO. (pp. 1-3, Brief for Petitioners).  exercise its discretion, the proper time being when the deposition is formally offered
in evidence. 
Save for the first and second, which are closely interrelated, the errors assigned by
petitioners shall be discussed separately.  In the instant case, the trial court did not admit the deposition when it was formally
offered, on the ground that petitioners were denied their right to cross-examine the
1. The deposition of Apolonia Glodoveza was taken on January 21, 1961. At that deponent. However, the Court of Appeals, in deciding to admit the deposition,
time the applicable rules of procedure were provided in the (old) Rules of Court, observed: 
Section I of Rule 18 of which states: 
The rejection of said deposition is assigned as one of the errors of
Section 1. Deposition pending action, when may be taken.-By the trial court. From the facts sufficiently disclosed by the records,
leave of court after jurisdiction has been obtained over any We find no irregularity in its execution. The reason for the taking
defendant or over property which is the subject of the action, or was disclosed not only in the notice, but also in the deposition
5
 itself. To reject such a deposition on the ground considered by the apportionment thereof among the said sisters was made by their
trial court smacks of a technicality which does not serve the ends eldest sister, Ruperta Glodoveza in 1905. (p. 7, Decision). 
of substantial justice. The counsel of the plaintiffs was notified
sufficiently in advance of the deposition-taking, and his opposition As found by the Court of Appeals, this conclusion is buttressed by the testimony of
was not acted upon favorably before the day set for the taking of Enrique Glodoveza (p. 6, Decision) and documentary evidence (p. 8, Decision). 
the deposition. If he failed to appear on that day, as he could have
done if he exerted diligent efforts, he did so at his own risk. (p. 7, This disposes then of petitioners' first two assignments of error. 
Decision). 
2. Petitioners argue that respondent court erred in concluding that the letter (Exhibit
The findings of fact supporting this conclusion of the Court of Appeals not being 2) dated February 25, 1921 of Francisco Veran addressed to private respondent,
disputed, We agree that, under the circumstance, petitioners' contention that they seeking a P1.00 yearly contribution for taxes gave rise to the presumption that
were denied their right to cross-examine the deponent is unfounded.  private respondent had been in possession of the disputed portion of the lot since
1921. 
Further, as pointed out by respondent, before the deposition was formally offered,
respondent had already testified as to the age of deponent.  The pertinent portion of Exhibit 2 reads as follows: 

ATTY. BALDEO:  At ang ikalawa, ay ang isang bagay na bakasakaling hindi na

itagubilin ng inyong ina bago siya yumaon. Ang bagay na ito ay
Q Do you know Apolonia Glodoveza?  natutukol sa kabuwisan ng kapirasong lupa na kalakip sa
declaracion sa aking pangalan, kaparis din ng sa ina mong Lawa
A Yes, sir.  (Ladislawa). Ang lugar na ito ay alam ninyo sapagkat kayo ang
naglinis at nag halaman doon. 
Q Where is she now, do you know? 
At dahil dito ay gosto kong inyong ipagpatuloy ang pagambag sa
A She is in Atimonan.  ka buwisan nito sa halagang peso (P1.00) sa taon-taon paris din ng
pagambag ng yumaon ninyong ina. 
Q Do you know how old she is now? 
At once it will be noticed that the letter does not specify which parcel of land is
A She is very old, more or less, ninety years, referred to. Respondent claims that it referred to the disputed lot and this view was
(tsn, pp. 13-14, May 30, 1963).  sustained by the Court of Appeals. Petitioners contend that the letter refers to a
different lot owned by Francisco Veran. As the facts relative to this matter are not
quite clear, this Court is inclined to respect the findings of the Court of Appeals: 
Apparently, this was overlooked by the trial court when it denied admission of the
deposition. 
Thus Exhibit 2 would seem to prove that as early as Feb. 25, 1921,
appellants were already in possession of the disputed portion of
In view of the foregoing, it cannot be argued that the Court of Appeals committed a Lot No. 1744, as by said exhibit, it is shown that on the date
reversible error when it decided to admit the deposition of Apolonia Glodoveza.  aforementioned, appellees' father, Francisco Veran, was asking Mr.
and Mrs. Celso Villacruel (nee Primitive Villareal) for a
As correctly observed by respondent court:  contribution of Pl.00 for payment of yearly tax on the property in
question. This document gives credence to Enrique Glodoveza's
With the admission of the deposition, a very significant fact gets testimony that it was since 1910 that appellant has occupied the lot
into the records which is that the assignment of the lot in question in dispute not only since 1950 as claimed by appellees. (p. 8,
was to the three sisters, not to Aleja alone, and the segregation or Decision). 

6
3. Contrary to petitioners' contention, the expiration of the one-year period from the
issuance of an Original Certificate of Title covering the disputed lot in favor of the
heirs of Aleja Glodoveza will not bar private respondent's action for reconveyance.
Private respondent's counterclaim for reconveyance was made in her amended
answer filed on March 4, 1961, some seven and a half years after the issuance of the
title in the name of the heirs of Aleja Glodoveza on December 3, 1953, but well
within the ten-year prescriptive period for bringing an action for reconveyance based
on an implied or constructive trust resulting from fraud in securing title (Diaz v.
Gorricho, 103 Phil. 261 [1958]; J.M. Tuazon & Co., Inc. v. Magdangal, G.R. No. L-
15539, January 30, l962, 4 SCRA 84; Alzona v. Capunitan, G.R. No. L-10228,
February 28, 1962, 4 SCRA 450). Thus, in Gonzales v. Jimenez, G.R. No. L-19073,
January 30, l965, 13 SCRA 80, the Court said: 

Since it appears that the land in question was obtained by

defendants thru fraudulent representations by means of which a
patent and a title were issued in their name, they are deemed to
hold it in trust for the benefit of the person prejudiced by it. Here
this person is the plaintiff. There being an implied trust in this
transaction, the action to recover the property prescribes after the
lapse of ten years. Here this period has not yet elapsed. 

Further, no error was committed by the Court of Appeals in appreciating the

significance of the subdivision survey plan of the disputed lot (Exhibit 4). The fact
that it was prepared a year after the title was issued in the name of the heirs of Aleja
Glodoveza does not per se render misplaced respondent court's reliance upon it. The
division in the subdivision survey plan of the disputed lot into three portions
assigned to Leocadia, Aleja and Ladislawa respectively, merely served to corroborate
testimony as to the lot's apportionment among the three sisters. 

4. Neither do We find error in respondent court's conclusion that no evidentiary

worth can be attached to what transpired in the administrative case pending before
the Bureau of Lands, considering that the decision rendered by said bureau was still
pending appeal before the Department of agriculture at the time the decision of the
trial court was rendered. Further, it is not disputed that the decision of the Bureau of
Lands was never offered in evidence, but was merely attached to petitioners' "Urgent
Ex-parte Petition to Render the Much Awaited and Long Overdue Judgment."
Section 35 of Rule 132 of the Revised Rules of Court is quite clear that "the court
shall consider no evidence which has not been formally offered." 

5. To conclude, no reversible error was committed by the Court of Appeals when it

reversed the decision of the lower court. 

WHEREFORE, the instant petition is DISMISSED for lack of merit. 

7

G.R. No. 108119. January 19, 1994.*
FORTUNE CORPORATION, petitioner, vs. HON. COURT OF APPEALS and
INTER-MERCHANTS CORPORATION, respondents.
Remedial Law; Deposition; Rules providing for pre-trial discovery of
testimony, inspection of documentary evidence and other tangible things and the
examination of property and person were an important innovation in the rules of
procedure.—The rules providing for pre-trial discovery of testimony, pre-trial
inspection of documentary evidence 
_______________
*
 SECOND DIVISION.
356
356  SUPREME COURT REPORTS ANNOTATED  limitations inevitably arise when it can be shown that the examination is being
Fortune Corporation vs. Court of Appeals
and other tangible things, and the examination of property and person, were an
important innovation in the rules of procedure. The promulgation of this group of
rules satisfied the long-felt need for a legal machinery in the courts to supplement the
pleadings, for the purpose of disclosing the real points of dispute between the parties
and of affording an adequate factual basis in preparation for trial. The rules are not
grounded on the supposition that the pleadings are the only or chief basis of
preparation for trial. On the contrary, the limitations of the pleadings in this respect
are recognized.
Same; Same; Same; Experience had shown that the most effective legal
machinery for reducing and clarifying the issues was a preliminary examination.—
Thus the rules provide for simplicity and brevity in pleadings, which in most cases
will terminate with the answer; and at the same time adapt the old and familiar
deposition procedure to serve as a device for ascertaining before trial what facts are
really in dispute and need to be tried. Experience had shown that the most effective
legal machinery for reducing and clarifying the issues was a preliminary
examination, as broad in scope as the trial itself, of the evidence of both parties.
Same; Same; Section 16 of Rule 24 explicitly vests in the court the power to
order that the deposition shall not be taken and this grant connotes the authority to
exercise discretion in connection therewith.—This provision explicitly vests in the
court the power to order that the deposition shall not be taken and this grant connotes
the authority to exercise discretion in connection therewith. It is well settled,
however, that the discretion conferred by law is not unlimited; that it must be
exercised, not arbitrarily, capriciously, or oppressively, but in a reasonable manner
and in consonance with the spirit of the law, to the end that its purpose may be
attained.
Same; Same; Same; Certiorari will not lie to review or correct discovery
orders made prior to trial.—The rule is that certiorari will generally not lie to review
a discretionary action of any tribunal. Also, as a general proposition, a writ of
certiorari is available only to review final judgments or decrees, and will be refused
where there has been no final judgment or order and the proceeding for which the
writ is sought is still pending and undetermined in the lower tribunal. Pursuant to this
rule, it has been held that certiorari will not lie to review or correct discovery orders
made prior to trial. This is because, like other discovery orders, orders made under
Section 16, Rule 24 are interlocutory and not appealable, considering that they do not
finally dispose of the proceeding or of any independent offshoot of it.
357
VOL. 229, JANUARY 19, 1994  357 
Fortune Corporation vs. Court of Appeals
Same; Same; Same; There are limitations to discovery even when permitted to
be undertaken without leave of court and without judicial intervention.—But then,
there are concomitant limitations to discovery, even when permitted to be undertaken
without leave of court and without judicial intervention. As indicated by the Rules,
conducted in bad faith or in such a manner as to annoy, embarrass, or oppress the
person subject to the inquiry. Also, further limitations come into existence when the
inquiry touches upon the irrelevant or encroaches upon the recognized domains of
privilege.
Same; Same; Same; The rule clearly states that it is only upon notice and for
good cause shown that the court may order that the deposition shall not be taken.—
Section 16 of Rule 24 clearly states that it is only upon notice and for good cause
shown that the court may order that the deposition shall not be taken. The matter of
good cause is to be determined by the court in the exercise of judicial discretion.
Good cause means a substantial reason—one that affords a legal excuse. Whether or
not substantial reasons exist is for the court to determine, as there is no hard and fast
rule for determining the question as to what is meant by the term “for good cause
shown.”
Same; Same; Same; Same; Fact that a party has resorted to a particular
method of discovery will not bar subsequent use of other discovery devices.—It is
quite clear, therefore, and we so hold that under the present Rules the fact that a party
has resorted to a particular method of discovery will not bar subsequent use of other
discovery devices, as long as the party is not attempting to circumvent a ruling of the
court, or to harass or oppress the other party. As a matter of practice, it will often be
desirable to resort to both interrogatories and depositions in one or the other
sequence. Additional lines of inquiry may come to light after the deposition has been
taken, as to which written interrogatories probably would be adequate, and there is
no reason why the examining party should not be entitled to obtain all the relevant
information he desires if no substantial prejudice is done to the party from whom
discovery is sought.
Same; Same; Same; Same; Availability of the proposed deponent to testify in
court does not constitute good cause to justify the court’s order that his deposition
shall not be taken.—The availability of the proposed deponent to testify in court does
not constitute “good cause” to justify the court’s order that his deposition shall not be
8
taken. That the witness is unable to attend or testify is one of the grounds when the
deposition of a witness may be used in court during the trial. But the  respondent Inter-Merchants Corporation, docketed as Civil Case No. SP-3469,
358
358  SUPREME COURT REPORTS ANNOTATED  corporation had filed its Answer, petitioner served the former with written
Fortune Corporation vs. Court of Appeals
same reason cannot be successfully invoked to prohibit the taking of his
deposition.
Same; Same; Same; Same; Fact that the court could not observe the behavior
of the deponent does not justify the denial of the right to take deposition.—We are
also in conformity with petitioner’s submission that the mere fact that the court could
not thereby observe the behavior of the deponent does not justify the denial of the
right to take deposition.
Same; Same; Same; Same; Allegation that petitioner merely intended to
annoy, harass or oppress the proposed deponent cannot ably support the setting
aside of a notice to take deposition in the absence of proof.—Finally, in the absence
of proof, the allegation that petitioner merely intended to annoy, harrass or oppress
the proposed deponent cannot ably support the setting aside of a notice to take
deposition. Orders to protect the party or witness from annoyance, embarrassment or
oppression may be issued if the following requirements are complied with: (a) that
there is a motion made by any party or by the person to be examined; (b) that the
motion has been seasonably filed; (c) that there is good cause shown; and (d) that
notice of such motion has been served to the other party.
Same; Same; Same; Same; Inconvenience to the party whose deposition is to
be taken is not a valid objection to the taking of his deposition.—Inconvenience to
the party whose deposition is to be taken is not a valid objection to the taking of his
deposition. No doubt, private respondent and its representative who is to be
examined will be inconvenienced—as are all parties when required to submit to
examination—but this is no ground for denial of the deposition-discovery process.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
     Antonio L. Azores for petitioner.
     Estella and Virtudazo Law Firm for private respondent.
REGALADO, J.:
This petition impugns and seeks the review on certiorari of the decision1 of
respondent Court of Appeals, dated September 23, 1992, which affirmed the order of
the Regional Trial Court of San Pablo City disallowing the taking of the oral
deposition of Juanito S. Teope, Chairman of the Board of Directors of herein private
respondent Inter-Merchants Corporation.
An action for breach of contract was filed by petitioner Fortune Corporation against
before the Regional Trial Court of San Pablo City, Branch 30. After respondent
interrogatories pursuant to Rule 25 of the Rules of Court. The interrogatories were
answered by respondent corporation through its board chairman, Juanito A. Teope.
The pre-trial conference was thereafter scheduled for January 9, February 12 and
April 22, 1992.
On March 26, 1992, however, petitioner served upon private respondent a Notice to
Take Deposition Upon Oral Examination2 dated March 26, 1992, notifying the latter
that on April 7, 1992, at San Pablo City, herein petitioner would take the deposition
of said Juanito A. Teope, in accordance with Section 15, Rule 24.
Private respondent filed an Urgent Motion Not To Take Deposition/Vehement
Opposition to Plaintiff's Notice to Take Deposition Upon Oral Examination,3 dated
March 27, 1992, alleging inter alia that : (a) herein petitioner has previously availed
of one mode of discovery, that is, the written interrogatories which practically
covered all the claims, counterclaims and defenses in the case; (b) there is absolutely
no sound reason or justification advanced for the taking of the oral deposition; (c)
such taking would cause annoyance, embarrassment and oppression upon the
prospective deponent, Juanito A. Teope; (d) Mr. Teope has no intention of leaving
the country; and 
(e) the intended deponent is available to testify in open court if required during the
trial on the merits.
The trial court thereafter issued on April 3, 1992 an order4 that the requested
deposition shall not be taken for the following reasons:
. . . , the Court opines that the deposition of Juanito A. Teope set
on April 7, 1992, appears unwarranted since the proposed deponent
had earlier responded to the written interrogatories of the plaintiff
and has signified his availability to testify in court.
To allow the deposition will deprive the Court of the opportunity to
ask clarificatory questions, if any, on the proposed deponent who
appears to be a vital witness.
Its motion for reconsideration having been denied, petitioner filed an original action
for certiorari before the Supreme Court which was docketed as G.R. No. 101526.
However, in a resolution dated May 20, 1992, this Court referred the case to the
Court of Appeals for consideration and adjudication on the merits.
9
As earlier stated, respondent Court of Appeals promulgated a decision on September
23, 1992, dismissing the petition and holding that:
It cannot be gainsaid that the respondent court has jurisdiction to
direct, in its discretion, that a deposition shall not be taken, if there
are valid reasons for so ruling. This is provided for in Sections 16
and 18,  With the denial of petitioner's motion for reconsideration, the instant petition was
Rule 24 of the Rules of Court. Said sections imply that the right of
a party to take depositions as means of discovery is not absolute.
Thus, as held in the case of Caguiat vs. Torres, 30 SCRA 106,
110:
. . . sections 16 and 18 of Rule 24, (which) are
precisely designed to protect parties and their
witnesses, whenever in the opinion of the trial
court, the move to take their depositions under
the guise of discovery is actually intended to
only annoy, embarrass or oppress them. In such
instances, these provisions expressly authorize
the court to either prevent the taking of a
deposition or stop one that is already being
taken.
Moreover, the respondent court, in its assailed Order, has indicated
at least three (3) valid reasons for it not to order the deposition
taken: First, that the proposed deponent had earlier responded to
the written Interrogatories; Second, that the proposed deponent had
signified his availability to testify in court; and Third, that to allow
the deposition would deprive the trial court of the opportunity to
ask clarificatory questions, if any, on the proposed deponent who
appears to be a vital witness.
Finally, anent private respondent's contention that certiorari does
not lie in this case, it should be recalled that certiorari presupposes
either lack or excess of jurisdiction or grave abuse of discretion. In
the instant case, no question of jurisdiction is possible simply
because the respondent court undoubtly had jurisdiction over
petitioner's case. On the question of abuse of discretion, appeal and
not certiorariis the proper remedy for the correction of any error as
to the admission or rejection of a deposition being offered as
evidence since such a situation would involve an error of law
constituting a violation of rules of evidence. Hence, as held in the
case of Dearing vs. Fredwilson (sic) & Co., Inc., 98 SCRA 758,
764:
. . . . Thus, the jurisprudential rule is that the
admission or rejection of certain interrogatories
in the course of discovery procedure could be an
error of law but not an abuse of discretion, much
less a grave one. . . . 
filed, submitting the following issues for resolution:
1. Whether or not the conclusion of the Honorable Court of
Appeals, based on a gross misapprehension of facts, constitutes
reversible error;
2. Whether or not the said order, based on the three reasons stated
therein, is arbitrary or whimsical because it is contrary to reason,
logic or equity;
3. Whether or not mere allegation, without proof, that the
examination sought by petitioner was intended merely to annoy,
embarrass or oppress the proposed deponent is, as a matter of law,
"good cause" within the purview of Rule 24, Section 16, Rules of
Court; and
4. Whether or not, absent the requisite element of "good cause" as
mandated by Section 16 of Rule 24, Rules of Court, a trial court
has unbridled discretion to forbid the taking of deposition upon
oral examination as authorized under Rule 24, Section 15, Rules of
Court.
Rule 24 of the Rules of Court provides:
Sec. 1. Depositions pending action, when may be taken. — By
leave of court after jurisdiction has been obtained over any
defendant or property which is the subject of the action, or without
such leave after an answer has been served, the testimony of any
person, whether a party or not, may be taken, at the instance of any
party, by deposition upon oral examination or written
interrogatories. The attendance of witnesses may be compelled by
the use of a subpoena as provided in Rule 23. Depositions shall be
taken only in accordance with these rules. The deposition of a
person confined in prison may be taken only by leave of court on
such terms as the court prescribes.
10
The seeming unreceptive and negative attitude of lawyers and the courts towards
discovery procedures has heretofore been observed and discommended by the Court
in this wise:
. . . Now, it appears to the Court that among far too many lawyers
(and not a few judges), there is, if not a regrettable unfamiliarity
and even outright ignorance about the nature, purposes and
operations of the modes of discovery, at least a strong yet
unreasoned and unreasonable disinclination to resort to them —
which is a great pity for the intelligent and adequate use of the
deposition-discovery mechanism, coupled with pre-trial procedure,
could, as the experience of other jurisdictions convincingly
demonstrates, effectively shorten the period of litigation and speed
up adjudication. . . . .5
It would do well, therefore, to point out the finer attributes of these rules of
discovery, the availment of which, we are convinced, would contribute immensely to
the attainment of the judiciary's primordial goal of expediting the disposition of
cases.
The rules providing for pre-trial discovery of testimony, pre-trial inspection of
documentary evidence and other tangible things, and the examination of property and
person, were an important innovation in the rules of procedure. The promulgation of
this group of rules satisfied the long-felt need for a legal machinery in the courts to
supplement the pleadings, for the purpose of disclosing the real points of dispute
between the parties and of affording an adequate factual basis in preparation for trial.
The rules are not grounded on the supposition that the pleadings are the only or chief
basis of preparation for trial. On the contrary, the limitations of the pleadings in this
respect are recognized. In most cases under the rules the function of the pleadings
extends hardly beyond notification to the opposing parties of the general nature of a
party's claim or defense. It is recognized that pleadings have not been successful as
fact-sifting mechanisms and that attempts to force them to serve that purpose have
resulted only in making the pleadings increasingly complicated and technical,
without any corresponding disclosure of the issues which it will be necessary to
prove at the trial. Thus the rules provide for simplicity and brevity in pleadings,
which in most cases will terminate with the answer; and at the same time adapt the
old and familiar deposition procedure to serve as a device for ascertaining before
trial what facts are really in dispute and need to be tried. Experience had shown that
the most effective legal machinery for reducing and clarifying the issues was a
preliminary examination, as broad in scope as the trial itself, of the evidence of both
parties.6
Stated otherwise, the rules seek to make a trial less a game of blind man's buff and
more a fair contest with the basic issues and facts disclosed to the fullest practicable
extent.7
The elemental purpose of the discovery procedure was pithily explained by the
Court, speaking through now Chief Justice Andres R. Narvasa, in the recent case
of Republic vs. Sandiganbayan,8 which opinion, we feel, should be reiterated
through an extended reproduction, to wit:
The resolution of controversies is, as everyone knows, the 
raison d'etre of courts. This essential function is accomplished
by first, the ascertainment of all the material and relevant facts
from the pleadings and from the evidence adduced by the parties,
and second, after that determination of the facts has been
completed, by the application of the law thereto to the end that the
controversy may be settled authoritatively, definitely and finally.
It is for this reason that a substantial part of the adjective law in
this jurisdiction is occupied with assuring that all the facts are
indeed presented to the Court; for obviously, to the extent that
adjudication is made on the basis of incomplete facts, to that extent
there is faultiness in the approximation of objective justice. It is
thus the obligation of lawyers no less than of judges to see that this
objective is attained; that is to say, that there be no suppression,
obscuration, misrepresentation or distortion of the facts; and that
no party be unaware of any fact material and relevant to the action,
or surprised by any factual detail suddenly brought to his attention
during the trial.
Seventy-one years ago, in Alonzo vs. Villamor, this Court
described the nature and object of litigation and in the process laid
down the standards by which judicial contests are to be conducted
in this jurisdiction. It said:
A litigation is not a game of technicalities in
which one, more deeply schooled and skilled in
the subtle art of movement and position, entraps
and destroys the other. It is, rather a contest in
which each contending party fully and fairly lays
before the court the facts in issue and then
brushing aside as wholly trivial and indecisive
all imperfections of form and technicalities of
procedure, asks that justice be done on the
merits. Lawsuits, unlike duels, are not be won by
11
 a rapier's thrust. Technicality, when it deserts its
proper office as an aid to justice and becomes its
great hindrance and chief enemy, deserves scant
consideration from courts. There should be no
vested right in technicalities. . . . .
The message is plain. It is the duty of each contending party to lay
before the court the facts in issue — fully and fairly; i.e., to present
to the court all the material and relevant facts known to him,
suppressing or concealing nothing, nor preventing another party,
by clever and adroit manipulation of the technical rules of pleading
and evidence, from also presenting all the facts within his
knowledge.
Initially, that undertaking of laying the facts before the court is
accomplished by the pleadings filed by the parties; but that, only in
a very general way. Only "ultimate facts" are set forth in the
pleadings; hence, only the barest outline of the factual basis of a
party's claims or defenses is limned in his pleadings. The law says
that every pleading "shall contain in a methodical and logical form,
a plain, concise and direct statement of the ultimate facts on which
the party pleading relies for his claim or defense, as the case may
be, omitting the statement of mere evidentiary facts.
Parenthetically, if this requirement is not observed, i.e., the
ultimate facts are alleged too generally or "not averred with
sufficient definiteness or particularly to enable . . . (an adverse
party) properly to prepare his responsive pleading or to prepare for
trial," a bill of particulars seeking a "more definite statement" may
be ordered by the court on motion of a party. The office of a bill of
particulars is, however, limited to making more particular or
definite the ultimate facts in a pleading. It is not its office to supply
evidentiary matters. And the common perception is that said
evidentiary details are made known to the parties and the court
only during the trial, when proof is adduced on the issues of fact
arising from the pleadings.
The truth is that "evidentiary matters" may be inquired into and
learned by the parties before the trail. Indeed, it is the purpose and
the policy of the law that the parties — before the trial if not
indeed even before the pre-trial — should discover or inform
themselves of all the facts relevant to the action, not only those
known to them individually, but also those known to their
adversaries; in other words, the desideratum is that civil trials
should not be carried on in the dark; and the Rules of Court make
this ideal possible through the deposition-discovery mechanism set
forth in Rules 24 to 29. The experience in other jurisdictions has
been that ample discovery before trial, under proper regulation,
accomplished one of the most necessary ends of modern
procedure: It not only eliminates unessential issues from trial
thereby shortening them considerably, but also requires parties to
play the game with the cards on the table so that the possibility of
fair settlement before trial is measurably increased. . . . .
As just intimated, the deposition-discovery procedure was
designed to remedy the conceded inadequacy and cumbersomeness
of the pre-trial functions of notice-giving, issue-formulation and
fact revelation theretofore performed primarily by the pleadings.
The various modes or instruments of discovery are meant to serve
(1) as a device, along with the pre-trial hearing under Rule 20, to
narrow and clarify the basic issues between the parties, and (2) as a
device for ascertaining the facts relative to those issues. The
evident purpose is, to repeat, to enable the parties, consistent with
recognized privileges, to obtain the fullest possible knowledge of
the issues and facts before civil trials and thus prevent that said
trials are carried on in the dark.
To this end, the field of inquiry that may be covered by depositions
or interrogatories is as broad as when the interrogated party is
called as witness to testify orally at trial. The inquiry extends to all
facts which are relevant, whether they be ultimate or evidentiary,
expecting only those matters which are privileged. The objective is
as much to give every party the fullest possible information of all
the relevant facts before the trial as to obtain evidence for use upon
said trial. The principle is reflected in Sec. 2, Rule 24 (governing
depositions ) which generally allows the examination of a deponent
—
1) "regarding any matter, not privileged, which is relevant to the
subject of the pending action, whether relating to the claim or
defense of any other party,"
2) as well as:
(a) "the existence, description, nature, custody,
condition and location of any books, documents,
or other tangible things" and
12
 (b) "the identity and location of persons having
knowledge of relevant facts."
What is chiefly contemplated is the discovery of every bit of
information which may be useful in the preparation for trial, such
as the identity and location of persons having knowledge of
relevant facts; those relevant facts themselves; and the existence,
description, nature, custody, condition, and location of any books,
documents, or other tangible things. Hence, the deposition-
discovery rules are to be accorded a broad and liberal treatment.
No longer can the time-honored cry of fishing expedition serve to
preclude a party from inquiring into the facts underlying his
opponent's case. Mutual knowledge of all the relevant facts
gathered by both parties is essential to proper litigation. To that
end, either party may compel the other to disgorge whatever facts
he has in his possession. The deposition-discovery procedure
simply advances the stage at which the disclosure can be
compelled from the time of trial to the period preceding it, this
reducing the possibility of surprise. . . . . (Emphases in the original
text.)
The other principal benefits derivable from the availability and operation of a liberal
discovery procedure are the following:
1. It is of great assistance in ascertaining the truth and in checking
and preventing perjury. The reasons for this are:
(a) The witness (including a party) is examined
while his memory is fresh:
(b) The witness (including a party) is generally
not coached in preparation for a pre-trial oral
examination with the result that his testimony is
likely to be more spontaneous. Where the
examination is upon written interrogatories,
however, it appears that some lawyers furnish the
witness with copies of the interrogatories and
thereby enable him to prepare his answers in
advance.
(c) A party or witness whose deposition has been
taken at an early stage in the litigation cannot, at
a later date, readily manufacture testimony in
contradiction to his deposition;
(d) Testimony is preserved, so that if a witness
unexpectedly dies or becomes unavailable at the
trial, his deposition is available.
2. It is an effective means of detecting and exposing false,
fraudulent, and sham claims and defenses.
3. It makes available in a simple, convenient, and often
inexpensive way facts which otherwise could not have been
proved, except with great difficulty and sometimes not at all.
4. It educates the parties in advance of trial as to the real value of
their claims and defenses, thereby encouraging settlements out of
court.
5. It expediates the disposal of litigation, saves the time of the
courts, and clears the docket of many cases by settlements and
dismissals which otherwise would have to be tried.
6. It safeguards against surprise at the trial, prevents delays, and
narrows and simplifies the issues to be tried, thereby expediting the
trial.
7. It facilitates both the preparation and trial of the cases.9
We shall now proceed to resolve the issues raised by herein petitioner.
I. Petitioner avers that the decision of respondent court dismissing its petition on the
ground that appeal and not certiorari is the proper remedy in this case, is erroneous
for the reason that such ruling is based on facts which are not obtaining in the case at
bar, viz.: (a) that petitioner had already obtained a deposition, which it had not; (b)
that said deposition was offered as evidence, which was not done because there was
nothing yet to offer; and (c) that said offer was rejected, which did not happen
because there was nothing to reject as nothing was offered.
Petitioner claims that since the very purpose of Rule 24 of the Rules of Court is to
authorize the taking of a deposition in a pending action, either to make a discovery in
preparation for or to be used as evidence upon the trial of such action, the taking of
the deposition in the case at bar should be done and finished before trial. Hence, it
would be a grave abuse of discretion to compel petitioner to proceed with the trial of
the case without the proposed deposition being first undertaken. Appeal will be
utterly inadequate to remedy the situation because, in that case, the court shall have
rendered its decision without the petitioner having been afforded the opportunity to
13
make use of the answers that the deponent would have otherwise given as a result of
the deposition. Reversal on appeal of the said decision by the public respondent may
only entail retrial in the lower court and added expense, as well as unnecessary delay
in the case. By its very nature, the taking of the deposition in the case at bar should
be made and completed before trial, and the remedy of appeal to determine whether
or not the trial court committed grave abuse of discretion in denying the petitioner
thereof is neither proper, much less adequate.
We agree with petitioner.
Under Section 1, Rule 65 of the Rules of Court, the writ of certiorari lies if the
following requisites concur : (a) that it is directed against a tribunal, board or officer
exercising judicial functions; (b) that such tribunal, board or officer has acted
without or in excess of jurisdiction or with grave abuse of discretion; and (c) that
there is no appeal nor any plain, speedy and adequate remedy in the ordinary course
of law.
Section 16 of Rule 24 provides that after notice is served for taking a deposition by
oral examination, upon motion seasonably made by any party or by the person to be
examined and upon notice and for good cause shown, the court in which the action is
pending may, among others, make an order that the deposition shall not be taken.
This provision explicitly vests in the court the power to order that the deposition
shall not be taken and this grant connotes the authority to exercise discretion in
connection therewith. It is well settled, however, that the discretion conferred by law
is not unlimited: that it must be exercised, not arbitrarily, capriciously, or
oppressively, but in a reasonable manner and in consonance with the spirit of the
law, to the end that its purpose may be attained. Referring to the objective of Section
16 of then Rule 18 (now Rule 24) of the Rules of Court, former Chief Justice Manuel
V. Moran had these comments:
The advisory of the United States Supreme Court said that this
provision is intended to be one of the safeguards for the protection
of the parties and deponents on account of the unrestricted right to
discovery given by sections 1 and 2 of this Rule. A party may take
the deposition of a witness who knows nothing about the case, with
the only purpose of annoying him or wasting the time of the other
parties. In such case, the court may, on motion, order that the
deposition shall not be taken. Or, a party may designate a distinct
place for the taking of a deposition, and the adverse party may not
have sufficient means to reach that place, because of poverty or
otherwise, in which case the court, on motion, may order that the
deposition be taken at another place, or that it be taken by written
interrogatories. The party serving the notice may wish to inquire
into matters the disclosure of which may be oppressive or
embarrassing to the deponent, especially if the disclosure is to be
made in the presence of third persons, or, the party serving the
notice may attempt to inquire into matters which are absolutely
private of the deponent, the disclosure of which may affect his
interests and is not absolutely essential to the determination of the
issues involved in the case. Under such circumstances, the court,
on motion, may order "that certain matter shall not be inquired into
or that the scope of the examination shall be limited to certain
matters, or that the examination shall be held with no one present
except the parties to the action and their officers or counsel, or that
after being sealed the deposition shall be opened only by order of
the court, or that secret processes, developments, or research need
not be disclosed, or that the parties shall simultaneously file
specific documents or informations enclosed in sealed envelopes to
be opened as directed by the court." In other words, this provision
affords the adverse party, as well as the deponent, sufficient
protection against abuses that may be committed by a party in the
exercise of his unlimited right to discovery. As a writer said: "Any
discovery involves a prying into another person's affairs, a prying
that is quite justified if it is to be a legitimate aid to litigation, but
not justified if it is not to be such an aid." For this reason, courts
are given ample powers to forbid discovery which is intended not
as an aid to litigation, but merely to annoy, embarrass or oppress
either the deponent or the adverse party, or both." 10
The rule is that certiorari will generally not lie to review a discretionary action of
any tribunal. Also, as a general proposition, a writ of certiorari is available only to
review final judgments or decrees, and will be refused where there has been no final
judgment or order and the proceeding for which the writ is sought is still pending and
undetermined in the lower tribunal. Pursuant to this rule, it has been held
that certiorari will not lie to review or correct discovery orders made prior to
trial. 11 This is because, like other discovery orders, orders made under Section 16,
Rule 24 are interlocutory and not appealable, 12 considering that they do not finally
dispose of the proceeding or of any independent offshoot of it. 13
However, such rules are subject to the exception that discretionary acts will be
reviewed where the lower court or tribunal has acted without or in excess of its
jurisdiction, where an interlocutory order does not conform to essential requirements
of law and may reasonably cause material injury throughout subsequent proceedings
for which the remedy of appeal will be inadequate, or where there is a clear or
serious abuse of discretion. 14
14
It is our considered opinion that on the bases of circumstances obtaining in the case
at bar, and which will hereinavfter be discussed, certiorari may be availed of to
review the questioned order of the trial court.
II. Petitioner asseverates that the trial court gravely abused its discretion in ordering
that the deposition be not taken in the absence of good cause therefor. It asserts that
the reasons advanced by the trial court cannot be considered "good cause" within the
contemplation of the law, which reasons, to repeat, are: (a) that the proposed
deponent had earlier responded to written interrogatories; (b) that the proposed
deponent had signified his availability to testify in court; and (c) that to allow the
deposition would deprive the trial court of the opportunity to ask clarificatory
questions to the vital witness. It further claims that a mere allegation, without any
proof in support thereof, that petitioner intended to annoy, harass or oppress the
proposed deponent, and therefore acted in bad faith, is not sufficient justification to
order that the deposition shall not be taken.
It is true that to ensure that availment of the modes of discovery would be
untrammeled and efficacious, Rule 29 imposes serious sanctions on the party who
refuses to comply with or respond to the modes of discovery, such as dismissing his
action or proceeding or part thereof, or rendering judgment by default against the
disobedient party; contempt of court, or arrest of the party or agent of the party;
payment of the amount of reasonable expenses incurred in obtaining a court order to
compel discovery; taking the matters inquired into as established in accordance with
the claim of the party seeking discovery; refusal to allow the disobedient party to
support or oppose designated claims or defenses; striking out his pleadings or parts
thereof; or staying further proceedings.
But then, there are concomitant limitations to discovery, even when permitted to be
undertaken without leave of court and without judicial intervention. As indicated by
the Rules, limitations inevitably arise when it can be shown that the examination is
being conducted in bad faith or in such a manner as to annoy, embarrass, or oppress
the person subject to the inquiry. Also, further limitations come into existence when
the inquiry touches upon the irrelevant or encroaches upon the recognized domains
of privilege.
In fine, as we have earlier clarified, the liberty of a party to make discovery is well-
nigh unrestricted if the matters inquired into are otherwise relevant and not
privileged, and the inquiry is made in good faith and within the bounds of law.
Section 16 of Rule 24 clearly states that it is only upon notice and for good cause that
the court may order that the deposition shall not be taken. The matter of good cause
is to be determined by the court in the exercise of judicial discretion. Good cause
means a substantial reason — one that affords a legal excuse. Whether or not
substantial reasons exist is for the court to determine, as there is no hard and fast rule
for determining the question as to what is meant by the term "for good cause
shown." 15
The requirement, however, that good cause be shown for a protective order puts the
burden on the party seeking relief to show some plainly adequate reasons for the
order. A particular and specific demonstration of facts, as distinguished from
conclusory statements, is required to establish good cause for the issuance of a
protective order. 16 What constitutes good cause furthermore depends upon the kind
of protective order that is sought. 17
In light of the general philosophy of full discovery of relevant facts and the board
statement of scope in Rule 24, and in view of the power of the court under Sections
16 and 18 of said Rule to control the details of time, place, scope, and financing for
the protection of the deponents and parties, it is fairly rare that it will be ordered that
a deposition should not be taken at all. All motions under these subparagraphs of the
rule must be supported by "good cause" and a strong showing is required before a
party will be denied entirely the right to take a deposition. A mere allegation, without
proof, that the deposition is being taken in bad faith is not a sufficient ground for
such an order. Neither is an allegation that it will subject the party to a penalty or
forfeiture. The mere fact that the information sought by deposition has already been
obtained through a bill of particulars, interrogatories, or other depositions will not
suffice, although if it is entirely repetitious a deposition may be forbidden. The
allegation that the deponent knows nothing about the matters involved does not
justify prohibiting the taking of a deposition, nor that whatever the witness knows is
protected by the "work product doctrine," nor that privileged information or trade
secrets will be sought in the course of the examination, nor that all the transactions
were either conducted or confirmed in writing. 18
In the present case, private respondent failed to sufficiently establish that there is
good cause to support the order of the trial court that the deposition shall not be
taken, for several reasons.
1. We agree with petitioner's submission that the fact that petitioner had previously
availed of the mode of discovery, which is by written interrogatories supposedly
covering all claims, counterclaims and defenses in the case, cannot be considered
"good cause", because: (a) the fact that information similar to that sought had been
obtained by answers to interrogatories does not bar an examination before trial, and
is not a valid objection to the taking of a deposition where there is no duplication and
the examining party is not acting in bad faith; and (b) knowledge of the facts by the
petitioner concerning which the proposed deponent is to be examined does not justify
a refusal of such examination.
As a general rule, the scope of discovery is to be liberally construed so as to provide
the litigants with information essential to the expenditious and proper litigation of
15
each of the facts in dispute. Moreover, it cannot be disputed that the various methods
of discovery as provided for in the Rules are clearly intended to be cumulative, as
opposed to alternative or mutually exclusive. 19
The issue of whether a party who has resorted to a particular method of discovery
will be barred in subsequently using other discovery devices has been definitely
discussed and resolved as follows:
On the question of whether an oral deposition might be taken after
service of interrogatories, the courts took a relatively liberal view.
In Howard v. States Marine Corp., the first case in which this
question was raised, Judge Hilbert said that:
Where it develops that examination by
interrogatories has been inadequate, the court
unquestionably has, and in a proper case should
exercise, discretion to permit an oral
examination. But it should be made to clearly
appear that the relevant subject matter will not
involve the interrogation of the witness with
respect to those particulars upon which he was
examined by interrogatories.
In Canuso v. City of Niagara Falls, the fact that a bill of particulars
had previously been served and interrogatories answered was held
no objection to an oral examination since no duplication was
involved and bad faith had not been shown. And in Alfred Bell &
Co. v. Catalda Fine Arts, Inc., oral examination was allowed, even
though the individual had previously answered interrogatories,
except as to matters with respect to which he had "given
responsive and categorical testimony." 20
It is quite clear, therefore, and we so hold that under the present Rules the fact that a
party has resorted to a particular method of discovery will not bar subsequent use of
other discovery devices, as long as the party is not attempting to circumvent a ruling
of the court, or to harass or oppress the other party. As a matter of practice, it will
often be desirable to resort to both interrogatories and depositions in one or the other
sequence. Additional lines of inquiry may come to light after the deposition has been
taken, as to which written interrogatories probably would be adequate, and there is
no reason why the examining party should not be entitled to obtain all the relevant
information he desires if no substantial prejudice is done to the party from whom
discovery is sought. On the other hand, interrogatories may well be used as a
preliminary to the taking of depositions, in order to ascertain what individuals have
the information sought. And, of course, if the answers to interrogatories are evasive
and unsatisfactory, the interrogating party should be able to utilize the more effective
method of oral examination rather than have to reframe interrogatories. Ordinarily,
however, there will be no occasion for a party to use both methods at the same time,
at least to obtain the same information. 21
It has long been recognized that there are far greater advantages in obtaining the facts
and circumstances involved in a confronting examination than in a written one.
Hence:
1. Examination by interrogatories is both more cumbersome and
less efficient than oral examination before trial. Where it develops
that examination by interrogatories has been inadequate, the court
unquestionably has, and in a proper case should exercise,
discretion to permit an oral examination. But it should be made to
clearly appear that the relevant subject matter will not involve the
interrogation of the witness with respect to those particulars upon
which he was examined by 
interrogatories. 22
2. In actual effectiveness, interrogatories are far inferior to the oral
examination. Their defects are quite obvious. In the first place,
they give the party to whom they are addressed more time to study
their effect, which furnishes a better opportunity to frame
protective answers which conceal or evade. In the next place, as a
means of forcing a specific, detailed and thorough disclosure from
a reluctant party, there is a tendency for the interrogatories to grow
in number, complexity and variety of form so as to call for as many
aspects of the proof as possible, with the result that they often
become difficult to administer. . . . .
In view of these limitations upon the effectiveness of written
interrogatories, it is evident that they are not well adapted for the
purpose of general examination. It is only when the facts sought
are few, formal and isolated, that this method can be satisfactorily
employed. So long as the discovery is restricted to the case of the
examiner, and he is not permitted to inquire into the case of his
adversary, the facts sought by discovery will usually be few,
formal and isolated, and written interrogatories will perhaps serve
reasonably well. For a small task, a feeble instrument may suffice.
But if discovery is to involve a thorough inquiry into the vital and
highly controversial phases of the case, resort must be had to an
oral examination. . . . .
16
. . . Where the facts to be elicited are relatively few and important,
whether ultimate facts or evidentiary facts, the legal machinery of
interrogatories is a very useful, expeditious and inexpensive
method; but where they are very numerous, . . . they tend to
become unduly burdensome, oppressive and vexatious to the
adverse party and difficult for the court to administer. . . . .
Furthermore, the procedure tends to be unnecessarily wasteful of
judicial time. The judicial ruling upon the interrogatories
themselves is not necessarily conclusive or even important in most
cases as determinative of the issues in the case. The purpose of the
interrogating party is to develop information or force admission;
but if the answers are not satisfactory or useful, the time spent in
considering them and the objections thereto is generally wasted,
because the answers do not become evidence in the case unless
voluntarily introduced by the interrogator as admissions against
interest on the part of the party interrogated.
. . . Where a more comprehensive examination of the adverse party
is desired it should ordinarily be done by taking his deposition. 23
3. The obvious advantage of interrogatories over a deposition is
that they are much less expensive. There is no significant expense
for the party sending the interrogatories except for the time spent in
preparing the questions. In addition, interrogatories are a much
simpler device. There are none of the details that must be taken
care of in arranging for a deposition, such as obtaining a court
reporter and fixing the time and place for the examination.
On the other hand, depositions are preferable if a searching
interrogation of the other party is desired. At a deposition, the
examining party has great flexibility and can frame his questions
on the basis of answers to previous questions. Moreover, the party
being examined does not have the opportunity to study the
questions in advance and to consult with his attorney before
answering, as he does if interrogatories are used. Attempts at
evasion, which might be met by a persistent oral examination,
cannot be easily dealt with by interrogatories. The flexibility and
the potency of oral depositions is in large part lacking in written
interrogatories. It is for these reasons that depositions are . . . by far
the most widely used of the discovery devices.
xxx xxx xxx
Furthermore, . . . written interrogatories are most valuable as a
device to compel admissions and the disclosure of major factual
matters not concerned with details; the deposition is the best device
suited to compel disclosure of detailed information. 24
2. The availability of the proposed deponent to testify in court does not constitute
"good cause" to justify the court's order that his deposition shall not be taken. That
the witness is unable to attend or testify is one of the grounds when the deposition of
a witness may be used in court during the trial. 25 But the same reason cannot be
successfully invoked to prohibit the taking of his deposition.
The right to take statements and the right to use them in court have been kept entirely
distinct. The utmost freedom is allowed in taking depositions; restrictions are
imposed upon their use. As a result, there is accorded the widest possible opportunity
for knowledge by both parties of all the facts before the trial. Such of this testimony
as may be appropriate for use as a substitute for viva voce examination may be
introduced at the trial; the remainder of the testimony, having served its purpose in
revealing the facts to the parties before trial, drops out of judicial picture. 26
Regardless of the development of devices for pre-trial fact investigation, our legal
system is now thoroughly committed to the notion that on trial itself the adducing of
facts by viva voce testimony of witnesses — whose demeanor and manner are
subject to the observation of the judge — is superior to the use of written statements
of the same witnesses. Preference for oral testimony has dictated most of the
limitations on the use of depositions as evidence. And since their use as evidence
was originally conceived as the sole function of depositions proper, the limitations
on their taking dovetailed with the limitations on their use. But under the concept
adopted by the new Rules, the deposition serves the double function of a method of
discovery — with use on trial not necessarily contemplated — and a method of
presenting testimony. Accordingly, no limitations other than relevancy and privilege
have been placed on the taking of depositions, while the use at the trial is subject to
circumscriptions looking toward the use of oral testimony wherever practicable. 27
3. We are also in conformity with petitioner's submission that the mere fact that the
court could not thereby observe the behavior of the deponent does not justify the
denial of the right to take deposition. As we have already explained:
The main reason given in support of the contested order is that, if
the deposition were taken, the court could not observe the behavior
of the deponents. The insufficiency of this circumstance to justify
the interdiction of the taking of the deposition becomes apparent
when we consider that, otherwise, no deposition could ever be
taken, said objection or handicap being common to all depositions
alike. In other words, the order of respondent Judge cannot be
17
 sustained without nullifying the right to take depositions, and
therefore, without, in effect repealing section 1 of Rule 18 (now
Rule 24) of the Rules of Court, which, clearly, was not intended by
the framers of section 16 of the same rule. 28
4. Finally, in the absence of proof, the allegation that petitioner merely intended to
annoy, harass or oppress the proposed deponent cannot ably support the setting aside
of a notice to take deposition.
Orders to protect the party or witness from annoyance, embarrassment or oppression
may be issued if the following requirements are complied with:  Civil Procedure; Modes of Discovery; Depositions; Deposition is allowed as
(a) that there is a motion made by any party or by the person to be examined;  a departure from the accepted and usual judicial proceedings of examining
(b) that the motion has been seasonably filed; (c) that there is good cause shown; and
(d) that notice of such motion has been served to the other party. 29
Once a party has requested discovery, the burden is on the party objecting to show
that the discovery requested is not relevant to the issues, 30 and to establish the
existence of any claimed privilege. 31 These, private respondent has failed to do so.
Consequently, its objection to the taking of the deposition cannot be sustained.
Furthermore, the fact that the deposition is to be taken in San Pablo City, whereas the
proposed deponent lives in Manila, is not sufficient to establish private respondent's
theory that the requested deposition was intended to annoy and harass the proposed
deponent.
Inconvenience to the party whose deposition is to be taken is not a valid objection to
the taking of his deposition. 32No doubt, private respondent and its representative
who is to be examined will be inconvenienced — as are all parties when required to
submit to examination — but this is no ground for denial of the deposition-discovery
process. 33 The mere fact that an officer of private respondent would be required to
attend the examination and thereby absent himself from some of his usual business
affairs during the taking of the deposition is utterly insufficient to justify the court in
ruling that he is being annoyed, embarrassed or oppressed, within the meaning of this
language. Something far beyond this is required in this connection to grant a party
relief. At any rate, petitioner has signified its willingness to select a suitable office in
Manila for the taking of the deposition in order to accommodate the proposed
deponent. 34
On the bases of the foregoing disquisitions, we find and so hold that the trial court
committed a grave abuse of discretion in issuing an order that the deposition shall not
be taken in this case, and that respondent court erred in affirming the same.
WHEREFORE, the petition is GRANTED. The questioned decision of respondent
Court of Appeals is hereby REVERSED and SET ASIDE, and judgment is hereby
rendered ORDERING the court a quo to allow herein petitioner to take the
deposition upon oral examination of Juanito S. Teope in and for purposes of Civil
Case No. SP-3469 pending before it.
SO ORDERED.
G.R. No. 147143. March 10, 2006.*
HYATT INDUSTRIAL MANUFACTURING CORP., and YU HE CHING,
petitioners, vs. LEY CONSTRUCTION AND DEVELOPMENT CORP., and
PRINCETON DEVELOPMENT CORP., respondents.
witnesses in open court where their demeanor could be observed by the trial judge,
consistent with the principle of promoting just, speedy and inexpensive disposition of
every action and proceeding, provided it is taken in accordance with the provisions
of the Rules of Court.—A deposition should be allowed, absent any showing that
taking it would prejudice any party. It is accorded a broad and liberal treatment and
the liberty of a party to make discovery is well-nigh unrestricted if the matters
inquired into are otherwise relevant and not privileged, and the inquiry is made in
good faith and within the bounds of law. It is allowed as a departure from the
accepted and usual judicial proceedings of examining witnesses in open court where
their demeanor could be observed by the trial judge, consistent with the principle of
promoting just, speedy and inexpensive disposition of every action and proceeding;
and provided it is taken in accordance with the provisions of the Rules of Court, i.e.,
with leave of court if summons have been served, and without such leave if an
answer has been submitted; and provided further that a circumstance for its
admissibility exists (Section 4, 
_______________
*
 FIRST DIVISION.
287
VOL. 484, MARCH 10, 2006  287 
Hyatt Industrial Manufacturing Corp. vs. Ley Construction and
Development Corp.
Rule 23, Rules of Court). The rules on discovery should not be unduly
restricted, otherwise, the advantage of a liberal discovery procedure in ascertaining
the truth and expediting the disposal of litigation would be defeated.
Same; Same; Same; The Supreme Court 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.—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,
18
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.
Same; Same; Same; The right to take statements and the right to use them in
court have been kept entirely distinct.—The argument that the taking of depositions
would cause unnecessary duplicity as the intended deponents shall also be called as
witnesses during trial, is also without merit. The case of Fortune Corp. v. Court of
Appeals, 229 SCRA 335 (1994), which already settled the matter, explained that: x x
x The right to take statements and the right to use them in court have been kept
entirely distinct. The utmost freedom is allowed in taking depositions; restrictions are
imposed upon their use. As a result, there is accorded the widest possible opportunity
for knowledge by both parties of all the facts before the trial. Such of this testimony
as may be appropriate for use as a substitute for viva voce examination may be
introduced at the trial; the remainder of the testimony, having served its purpose in
revealing the facts to the parties before trial, drops out of the judicial picture.
Same; Same; Same; Deposition is chiefly a mode of discovery, the primary
function of which is to supplement the pleadings.—
288
288  SUPREME COURT REPORTS ANNOTATED  (RCBC); and Elena Sy, Finance Officer of Hyatt. Hyatt also filed notice to take
Hyatt Industrial Manufacturing Corp. vs. Ley Construction and
Development Corp.
Deposition is chiefly a mode of discovery, the primary function of which is to
supplement the pleadings for the purpose of disclosing the real matters of dispute
between the parties and affording an adequate factual basis during the preparation for
trial.
PETITION for review on certiorari of the decision and resolution of the Court of
Appeals.
The facts are stated in the opinion of the Court.
     Alan A. Leynes for petitioners.
     Bienvenido Tan, Jr. for Princeton Development.
     Quisumbing, Torres for respondent Ley Construction.
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for review on certiorari seeking the nullification of the
Decision dated May 4, 2000 of the Court of Appeals’ (CA) then Seventh Division in
CA-G.R. CV No. 57119, which remanded Civil Case No. 94-1429 to the trial court
and directed the latter to allow the deposition-taking without delay;1 and the CA
Resolution dated February 13, 2001 which denied petitioners’ motion for
reconsideration.2
The facts are as follows:
On April 8, 1994, respondent Ley Construction and Development Corporation
(LCDC) filed a complaint for specific performance and damages with the Regional
Trial Court of Makati, Branch 62 (RTC), docketed as Civil Case No. 94-1429,
against petitioner Hyatt Industrial Manufacturing Corporation (Hyatt) claiming that
Hyatt reneged in its obligation to transfer 40% of the pro indiviso share of a real
property in Makati in favor of LCDC despite LCDC’s full payment of the purchase
price of P2,634,000.00; and that Hyatt failed to develop the said property in a joint
venture, despite LCDC’s payment of 40% of the pre-construction cost.3 On April 12,
1994, LCDC filed an amended complaint impleading Princeton Development
Corporation (Princeton) as additional defendant claiming that Hyatt sold the subject
property to Princeton on March 30, 1994 in fraud of LCDC.4 On September 21,
1994, LCDC filed a second amended complaint adding as defendant, Yu He Ching
(Yu), President of Hyatt, alleging that LCDC paid the purchase price
of P2,634,000.00 to Hyatt through Yu.5
Responsive pleadings were filed and LCDC filed notices to take the depositions of
Yu; Pacita Tan Go, Account Officer of Rizal Commercial Banking Corporation
deposition of Manuel Ley, President of LCDC, while Princeton filed notice to take
the depositions of Manuel and Janet Ley.6
On July 17, 1996, the RTC ordered the deposition-taking to proceed.7
At the scheduled deposition of Elena Sy on September 17, 1996, Hyatt and Yu
prayed that all settings for depositions be disregarded and pre-trial be set instead,
contending that the taking of depositions only delay the resolution of the case. The
RTC agreed and on the same day ordered all depositions cancelled and pre-trial to
take place on November 14, 1996.8
LCDC moved for reconsideration9 which the RTC denied in its October 14, 1996
Order, portion of which reads:
This Court has to deny the motion, because: 1) as already pointed out by this Court
in the questioned Order said depositions will only delay the early termination of this
case; 2) had this Court set this case for pre-trial conference and trial thereafter, this
case would have been terminated by this time; 3) after all, what the parties would
like to elicit from their deponents would probably be elicited at the pre-trial
conference; 4) no substantial rights of the parties would be prejudiced, if pre-trial
conference is held, instead of deposition.10
19
On November 14, 1996, the scheduled date of the pre-trial, LCDC filed an Urgent
Motion to Suspend Proceedings Due to Pendency of Petition for Certiorari in the
Court of Appeals.11 The petition, which sought to annul the Orders of the RTC dated
September 17, 1996 and October 14, 1996, was docketed as CA-G.R. SP No.
4251212 and assigned to the then Twelfth Division of the CA.
Meanwhile, pre-trial proceeded at the RTC as scheduled13 and with the refusal of
LCDC to enter into pre-trial, Hyatt, Yu and Princeton moved to declare LCDC non-
suited which the RTC granted in its Order dated December 3, 1996, thus:
On September 17, 1996, this Court noticing that this case was filed as early (as)
April 4, 199414 and has not reached the pre-trial stage because of several depositions
applied for by the parties, not to mention that the records of this case has reached two
(2) volumes, to avoid delay, upon motion, ordered the cancellation of the
depositions.
On September 24, 1996, plaintiff filed a motion for reconsideration, seeking to
reconsider and set aside the order dated September 17, 1996, which motion for
reconsideration was denied in an order dated October 14, 1996, ruling among others
that "after all, what the parties would like to elicit from these deponents would
probably be elicited at the pre-trial conference", and, reiterated the order setting this
case for pre-trial conference on November 14, 1996.
On the scheduled pre-trial conference on November 14, 1996, a petition
for certiorari was filed with the Court of Appeals, seeking to annul the Order of this
Court dated September 17, 1996 and October 14, 1996, furnishing this Court with a
copy on the same date.
At the scheduled pre-trial conference on November 14, 1996, plaintiff orally moved
the Court to suspend pre-trial conference alleging pendency of a petition with the
Court of Appeals and made it plain that it cannot proceed with the pre-trial because
the issue on whether or not plaintiff may apply for depositions before the pre-trial
conference is a prejudicial question. Defendants objected, alleging that even if the
petition is granted, pre-trial should proceed and that plaintiff could take deposition
after the pre-trial conference, insisting that defendants are ready to enter into a pre-
trial conference.
This Court denied plaintiff’s motion to suspend proceedings and ordered plaintiff to
enter into pre-trial conference. Plaintiff refused. Before this Court denied plaintiff’s
motion to suspend, this Court gave Plaintiff two (2) options: enter into a pre-trial
conference, advising plaintiff that what it would like to obtain at the deposition may
be obtained at the pre-trial conference, thus expediting early termination of this case;
and, terminate the pre-trial conference and apply for deposition later on. Plaintiff
insisted on suspension of the pre-trial conference alleging that it is not ready to enter
into pre-trial conference in view of the petition for certiorari with the Court of
Appeals. Defendants insisted that pre-trial conference proceed as scheduled,
manifesting their readiness to enter into a pre-trial conference.
When plaintiff made it clear that it is not entering into the pre-trial conference,
defendants prayed that plaintiff be declared non-suited. x x x
xxxx
In the light of the foregoing circumstances, this Court is compelled to dismiss
plaintiff’s complaint.
WHEREFORE, for failure of plaintiff to enter into pre-trial conference without any
valid reason, plaintiff’s complaint is dismissed. Defendants’ counterclaims are
likewise dismissed.
SO ORDERED.15
LCDC filed a motion for reconsideration16 which was denied however by the trial
court in its Order dated April 21, 1997.17 LCDC went to the CA on appeal which was
docketed as CA-G.R. CV No. 57119 and assigned to the then Seventh Division of
the CA.18
On July 24, 1997, the CA’s then Twelfth Division,19 in CA-G.R. SP No. 42512
denied LCDC’s petition for certiorarideclaring that the granting of the petition and
setting aside of the September 17, 1996 and October 14, 1996 Orders are manifestly
pointless considering that the complaint itself had already been dismissed and subject
of the appeal docketed as CA-G.R. CV No. 57119; that the reversal of the said
Orders would have practical effect only if the dismissal were also set aside and the
complaint reinstated; and that the dismissal of the complaint rendered the petition
for certiorari devoid of any practical value.20 LCDC’s motion for reconsideration of
the CA-G.R. SP No. 42512 decision was denied on March 4, 1998.21 LCDC then
filed with this Court, a petition for certiorari, docketed as G.R. No. 133145 which
this Court dismissed on August 29, 2000.22
On May 4, 2000, the CA’s then Seventh Division issued in CA-G.R. CV No. 57119
the herein assailed decision, the fallo of which reads:
WHEREFORE, premises considered, finding the appeal meritorious, this case is
remanded to the court a quo for further hearing and directing the latter to allow the
deposition taking without delay.
SO ORDERED.23
20
The CA reasoned that: LCDC complied with Section 1, Rule 23 of the 1997 Rules of
Civil Procedure which expressly sanctions depositions as a mode of discovery
without leave of court after the answer has been served; to unduly restrict the modes
of discovery during trial would defeat the very purpose for which it is intended
which is a pre-trial device, and at the time of the trial, the issues would already be
confined to matters defined during pre-trial; the alleged intention of expediting the
resolution of the case is not sufficient justification to recall the order to take
deposition as records show that the delay was brought about by postponement
interposed by both parties and other legal antecedents that are in no way imputable to
LCDC alone; deposition-taking, together with the other modes of discovery are
devised by the rules as a means to attain the objective of having all the facts
presented to the court; the trial court also erred in dismissing the complaint as LCDC
appeared during the pre-trial conference and notified it of the filing of a petition
before the CA; such is a legitimate justification to stall the pre-trial conference, as
the filing of the petition was made in good faith in their belief that the court a
quo erred in canceling the deposition scheduled for no apparent purpose.24
Hyatt and Princeton filed their respective motions for reconsideration which the CA
denied on February 13, 2001.25
Hyatt and Yu now come before the Court via a petition for review on certiorari, on
the following grounds:
I the discovery procedure is causing the undue delay of the case; it is only after LCDC
THE COURT OF APPEALS, SEVENTH DIVISION, COMMITTED GRAVE
ABUSE OF DISCRETION, ACTUALLY AMOUNTING TO LACK OF
JURISDICTION, IN HOLDING IN EFFECT INVALID THE ORDERS OF THE
LOWER COURT DATED SEPTEMBER 17, 1996 AND OCTOBER 14, 1996
WHICH ARE NOT RAISED OR PENDING BEFORE IT, BUT IN ANOTHER
CASE (CA-G.R. SP. No. 42512) PENDING BEFORE ANOTHER DIVISION OF
THE COURT OF APPEALS, TWELFTH DIVISION, AND WHICH CASE WAS
DISMISSED BY THE SAID DIVISION OF THE COURT OF APPEALS AND
FINALLY BY THE HONORABLE SUPREME COURT IN G.R. NO. 133145.
II
THE COURT OF APPEALS, SEVENTH DIVISION, COMMITTED GRAVE
ABUSE OF DISCRETION AND SERIOUS ERRORS OF LAW IN REVERSING
THE LOWER COURT’S ORDER DATED DECEMBER 3, 1996 AND APRIL 21,
1997 HOLDING RESPONDENT NON-SUITED FOR FAILURE TO ENTER INTO
PRE-TRIAL.26
Anent the first issue, petitioners claim that: the validity of the RTC Order dated
September 17, 1996 which set the case for pre-trial, as well as its Order dated
October 14, 1996 denying LCDC’s motion for partial reconsideration are not
involved in CA-G.R. CV No. 57119 but were the subject of CA-G.R. SP No. 42512,
assigned to the then Twelfth Division, which dismissed the same on July 24, 1997
and which dismissal was affirmed by this Court in G.R. No. 133145; in passing upon
the validity of the Orders dated September 17, 1996 and October 14, 1996, the CA’s
then Seventh Division in CA-G.R. CV No. 57119 exceeded its authority and
encroached on issues taken cognizance of by another Division.27
On the second issue, petitioners claim that: the CA’s then Seventh Division should
have outrightly dismissed the appeal of LCDC as the same did not involve any error
of fact or law but pertains to a matter of discretion which is properly a subject
of certiorari under Rule 65 of the Revised Rules of Court; conducting discovery thru
deposition is not a condition sine qua non to the holding of a pre-trial and the fact
that LCDC wanted to take the deposition of certain persons is not a valid ground to
suspend the holding of pre-trial and subsequently the trial on the merits; the persons
whose depositions were to be taken were listed as witnesses during the trial; to take
their depositions before the lower court and to present them as witnesses during the
trial on the merits would result in unnecessary duplicity; the fact that LCDC has a
pending petition for certiorari with the CA’s then Twelfth Division docketed as CA-
G.R. SP No. 42512 is not a ground to cancel or suspend the scheduled pre-trial on
November 14, 1996 as there was no restraining order issued; LCDC’s availment of
has filed its complaint that it started looking for evidence to support its allegations
thru modes of discovery and more than two years has already passed after the filing
of the complaint yet LCDC still has no documentary evidence to present before the
lower court to prove its allegations in the complaint.28
Petitioners then pray that the Decision dated May 4, 2000 and the Resolution dated
February 13, 2001 of the CA’s then Seventh Division in CA-G.R. CV No. 57119 be
annulled and set aside and the validity of the Orders dated December 3, 1996 and
April 21, 1997 of the RTC of Makati, Branch 62 in Civil Case No. 94-1429 be
sustained.29
In its Comment, LCDC argues that the petitioners erred in claiming that the CA’s
then Seventh Division overstepped its authority as this Court has ruled in G.R. No.
133145 that the issue of whether LCDC has been denied its right to discovery is
more appropriately addressed in the appeal before the then Seventh Division in CA-
G.R. CV No. 57119 below rather than by the then Twelfth Division in
the certiorari proceeding in CA-G.R. SP No. 42512; and while the appeal of the
final Order of the RTC dated December 3, 1996 also questioned the Orders dated
September 17, 1996 and October 14, 1996, it does not render the appeal improper as
this Court in G.R. No. 133145 held that the subsequent appeal constitutes an
21
appropriate remedy because it assails not only the Order dated December 3, 1996,
but also the two earlier orders.30
On the second issue, LCDC contends that: the mere fact that a deponent will be
called to the witness stand during trial is not a ground to deny LCDC the right to
discovery and does not cause "unnecessary duplicity", otherwise no deposition can
ever be taken; a deposition is for the purpose of "discovering" evidence while trial is
for the purpose of "presenting" evidence to the court; if petitioners’ concern was the
delay in the disposition of the case, the remedy is to expedite the taking of the
depositions, not terminate them altogether; petitioners have nothing to fear from
discovery unless they have in their possession damaging evidence; the parties should
be allowed to utilize the discovery process prior to conducting pre-trial since every
bit of relevant information unearthed through the discovery process will hasten
settlement, simplify the issues and determine the necessity of amending the
pleadings; the trial court erred in not suspending the pre-trial conference pending the
petition for certiorari before the then Twelfth Division of the CA since
considerations of orderly administration of justice demanded that the trial court
accord due deference to the CA; not only was LCDC’s petition for certiorari filed in
good faith, the CA found it meritorious, vindicating LCDC’s insistence that the pre-
trial be suspended; the undue delay in the disposition of the case was not attributable
to LCDC’s deposition-taking but to the flurry of pleadings filed by defendants below
to block LCDC’s depositions and prevent it from gaining access to critical evidence;
the critical evidence that LCDC needs to obtain through discovery is evidence that is
totally within the knowledge and possession of petitioners and defendant Princeton
and is not available elsewhere.31
On September 17, 2001, the Court required the parties to file their respective
memoranda.32 Hyatt and Yu on the one hand and LCDC on the other filed their
respective memoranda reiterating their positions.33
On January 2, 2002, Princeton filed a "Comment" which this Court considered as its
Memorandum in the Resolution dated January 30, 2002.34
In said memorandum, Princeton averred that: it is not true that Princeton failed to
comply with any discovery orders as all information requested of Princeton was duly
furnished LCDC and there are no pending discovery orders insofar as Princeton is
concerned; LCDC is seeking to dictate its procedural strategies on the RTC and the
opposing parties; LCDC was not deprived due process as it was given all the
opportunity to prepare for its case and to face its opponents before the court; LCDC
admits to the probability of forum shopping as it filed a petition for certiorari with
the then Twelfth Division of the CA and later an appeal with the then Seventh
Division of the CA; the RTC did not bar LCDC from presenting witnesses or
discovering any evidence, as all it did was to transfer the venue of the testimony and
discovery to the courtroom and get on with the case which LCDC did not want to do;
that discovery proceedings need not take place before pre-trial conference; trial court
judges are given discretion over the right of parties in the taking of depositions and
may deny the same for good reasons in order to prevent abuse; the trial court did not
err in not granting LCDC’s motion to suspend proceedings due to the pendency of a
petition for certiorari with the CA since there was no order from said court and there
was no merit in the petition for certiorari as shown by the dismissal thereof by the
then Twelfth Division; there was proper and legal ground for the trial court to declare
LCDC non-suited; appearance at the pre-trial is not enough; there is no evidence to
support LCDC’s claim that Hyatt surreptitiously transferred title to Princeton.35
The Court is in a quandary why Hyatt and Yu included Princeton as respondent in
the present petition when Princeton was their co-defendant below and the arguments
they raised herein pertain only to LCDC. With the failure of petitioners to raise any
ground against Princeton in any of its pleadings before this Court, we shall treat
Princeton’s inclusion as respondent in the present petition as mere inadvertence on
the part of petitioners. 
Now to the merits. The issues that need to be resolved in this case may be simplified
as follows: (1) Whether the CA’s then Seventh Division exceeded its authority in
ruling upon the validity of the Orders dated September 17, 1996 and November 14,
1996; and (2) Whether the CA erred in remanding the case to the trial court and order
the deposition-taking to proceed.
We answer both questions in the negative. 
Petitioners assert that the CA’s then Twelfth Division in CA-GR SP No. 42512 and
this Court in G.R. No. 133145 already ruled upon the validity of the Orders dated
September 17, 1996 and November 14, 1996, thus the CA’s then Seventh Division in
CA G.R. CV No. 57119 erred in ruling upon the same. 
A cursory reading of the decisions in CA-GR SP No. 42512 and G.R. No. 133145,
however, reveals otherwise. The CA’s then Twelfth Division in CA-G.R. SP No.
42512 was explicit in stating thus:
x x x Any decision of ours will not produce any practical legal effect. According to
the petitioner, if we annul the questioned Orders, the dismissal of its Complaint by
the trial [court] will have to be set aside in its pending appeal. That assumes that the
division handling the appeal will agree with Our decision. On the other hand, it may
not. Also other issues may be involved therein than the validity of the herein
questioned orders.
We cannot pre-empt the decision that might be rendered in such appeal. The division
to [which] it has been assigned should be left free to resolve the same. On the other
hand, it is better that this Court speak with one voice.36
22
This Court in G.R. No. 133145 also clearly stated that:  bounds of law.39 It is allowed as a departure from the accepted and usual judicial
x x x First, it should be stressed that the said Petition (CA-G.R. SP No. 42512)
sought to set aside only the two interlocutory RTC Orders, not the December 3, 1996
Resolution dismissing the Complaint. Verily, the Petition could not have assailed the
Resolution, which was issued after the filing of the former.
Under the circumstances, granting the Petition for Certiorari and setting aside the
two Orders are manifestly pointless, considering that the Complaint itself had already
been dismissed. Indeed, the reversal of the assailed Orders would have practical
effect only if the dismissal were also set aside and the Complaint reinstated. In other
words, the dismissal of the Complaint rendered the Petition for Certiorari devoid of
any practical value.
Second, the Petition for Certiorari was superseded by the filing, before the Court of
Appeals, of a subsequent appeal docketed as CA-G.R. CV No. 57119,
questioning the Resolution and the two Orders. In this light, there was no more
reason for the CA to resolve the Petition for Certiorari.
xxxx
In this case, the subsequent appeal constitutes an adequate remedy. In fact, it is the
appropriate remedy, because it assails not only the Resolution but also the two
Orders.
xxxx
WHEREFORE, the Petition is DENIED and the assailed Resolutions AFFIRMED. x
x x.37
With the pronouncements of the CA in CA-G.R. SP No. 42512 and by this Court in
G.R. No. 133145 that the subsequent appeal via CA-G.R. CV No. 57119 constitutes
as the adequate remedy to resolve the validity of the RTC Orders dated September
17, 1996 and November 14, 1996, the arguments of petitioners on this point clearly
have no leg to stand on and must therefore fail.  these Rules. The deposition of a person confined in prison may be taken only by
On the second issue, the Court finds that the CA was correct in remanding the case to
the RTC and ordering the deposition-taking to proceed.
A deposition should be allowed, absent any showing that taking it would prejudice
any party.38 It is accorded a broad and liberal treatment and the liberty of a party to
make discovery is well-nigh unrestricted if the matters inquired into are otherwise
relevant and not privileged, and the inquiry is made in good faith and within the
proceedings of examining witnesses in open court where their demeanor could be
observed by the trial judge, consistent with the principle of promoting just, speedy
and inexpensive disposition of every action and proceeding;40 and provided it is
taken in accordance with the provisions of the Rules of Court, i.e., with leave of
court if summons have been served, and without such leave if an answer has been
submitted; and provided further that a circumstance for its admissibility exists
(Section 4, Rule 23, Rules of Court).41 The rules on discovery should not be unduly
restricted, otherwise, the advantage of a liberal discovery procedure in ascertaining
the truth and expediting the disposal of litigation would be defeated.42
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.43
Since the pertinent incidents of the case took place prior to the effectivity of said
issuance, however, the depositions sought by LCDC shall be evaluated based on the
jurisprudence and rules then prevailing, particularly Sec. 1, Rule 23 of the 1997
Rules of Court which provides as follows:
SECTION 1. Depositions pending action, when may be taken.--- By leave of court
after jurisdiction has been obtained over any defendant or over property which
is the subject of the action, or without such leave after an answer has been
served, the testimony of any person, whether a party or not, may be taken, at
the instance of any party, by deposition upon oral examination or written
interrogatories. The attendance of witnesses may be compelled by the use of a
subpoena as provided in Rule 21. Depositions shall be taken only in accordance with
leave of court on such terms as the court prescribes. (Emphasis supplied).
As correctly observed by the CA, LCDC complied with the above quoted provision
as it made its notice to take depositions after the answers of the defendants have been
served. LCDC having complied with the rules then prevailing, the trial court erred in
canceling the previously scheduled depositions. 
23
While it is true that depositions may be disallowed by trial courts if the examination
is conducted in bad faith; or in such a manner as to annoy, embarrass, or oppress the
person who is the subject of the inquiry, or when the inquiry touches upon the
irrelevant or encroaches upon the recognized domains of privilege,44 such
circumstances, however are absent in the case at bar.  On this point, it is well to reiterate the Court’s pronouncement in Republic v.
The RTC cites the delay in the case as reason for canceling the scheduled
depositions. While speedy disposition of cases is important, such consideration
however should not outweigh a thorough and comprehensive evaluation of cases, for
the ends of justice are reached not only through the speedy disposal of cases but
more importantly, through a meticulous and comprehensive evaluation of the merits
of the case.45 Records also show that the delay of the case is not attributable to the
depositions sought by LCDC but was caused by the many pleadings filed by all the
parties including petitioners herein.  ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying
The argument that the taking of depositions would cause unnecessary duplicity as the
intended deponents shall also be called as witnesses during trial, is also without
merit.  procedure simply advances the stage at which the disclosure can be compelled from
The case of Fortune Corp. v. Court of Appeals46 which already settled the matter,
explained that:
The availability of the proposed deponent to testify in court does not constitute "good
cause" to justify the court’s order that his deposition shall not be taken. That the
witness is unable to attend or testify is one of the grounds when the deposition of a
witness may be used in court during the trial. But the same reason cannot be
successfully invoked to prohibit the taking of his deposition.
The right to take statements and the right to use them in court have been kept entirely
distinct. The utmost freedom is allowed in taking depositions; restrictions are
imposed upon their use. As a result, there is accorded the widest possible opportunity
for knowledge by both parties of all the facts before the trial. Such of this testimony
as may be appropriate for use as a substitute for viva voce examination may be
introduced at the trial; the remainder of the testimony, having served its purpose in
revealing the facts to the parties before trial, drops out of the judicial picture.
x x x [U]nder the concept adopted by the new Rules, the deposition serves the double
function of a method of discovery - with use on trial not necessarily contemplated -
and a method of presenting testimony. Accordingly, no limitations other than
relevancy and privilege have been placed on the taking of depositions, while the use
at the trial is subject to circumscriptions looking toward the use of oral testimony
wherever practicable.47
Petitioner also argues that LCDC has no evidence to support its claims and that it
was only after the filing of its Complaint that it started looking for evidence through
the modes of discovery.
Sandiganbayan48: 
What is chiefly contemplated is the discovery of every bit of information which may
be useful in the preparation for trial, such as the identity and location of persons
having knowledge of relevant facts; those relevant facts themselves; and the
existence, description, nature, custody, condition, and location of any books,
documents, or other tangible things. Hence, "the deposition-discovery rules are to be
accorded a broad and liberal treatment. No longer can the time-honored cry of
his opponent’s case. Mutual knowledge of all the relevant facts gathered by both
parties is essential to proper litigation. To that end, either party may compel the other
to disgorge whatever facts he has in his possession. The deposition-discovery
the time of trial to the period preceding it, thus reducing the possibility, of surprise.49
It also does not escape this Court’s attention that the trial court, before dismissing
LCDC’s complaint, gave LCDC two options: (a) enter into a pre-trial conference,
advising LCDC that what it would like to obtain at the deposition may be obtained at
the pre-trial conference, thus expediting early termination of the case; and (b)
terminate the pre-trial conference and apply for deposition later on. The trial court
erred in forcing LCDC to choose only from these options and in dismissing its
complaint upon LCDC’s refusal to choose either of the two.
The information LCDC seeks to obtain through the depositions of Elena Sy, the
Finance Officer of Hyatt and Pacita Tan Go, an Account Officer of RCBC, may not
be obtained at the pre-trial conference, as the said deponents are not parties to the
pre-trial conference. 
As also pointed out by the CA:
x x x To unduly restrict the modes of discovery during trial, would defeat the very
purpose for which it is intended, as a pre-trial device. By then, the issues would have
been confined only on matters defined during pre-trial. The importance of the modes
of discovery cannot be gainsaid in this case in view of the nature of the controversy
involved and the conflicting interest claimed by the parties.50
Deposition is chiefly a mode of discovery, the primary function of which is to
supplement the pleadings for the purpose of disclosing the real matters of dispute
24
between the parties and affording an adequate factual basis during the preparation for Costs against petitioner.
trial.51
SO ORDERED.
Further, in Republic v. Sandiganbayan52 the Court explained that:

The truth is that "evidentiary matters" may be inquired into and learned by the parties
before the trial. Indeed, it is the purpose and policy of the law that the parties -
before the trial if not indeed even before the pre-trial - should discover or
inform themselves of all the facts relevant to the action, not only those known to
them individually, but also those known to their adversaries; in other words,
the desideratum is that civil trials should not be carried on in the dark; and the
Rules of Court make this ideal possible through the deposition- discovery
mechanism set forth in Rules 24 to 29. The experience in other jurisdictions has been
the ample discovery before trial, under proper regulation, accomplished one of the
most necessary ends of modern procedure; it not only eliminates unessential issues
from trials thereby shortening them considerably, but also requires parties to play the
game with the cards on the table so that the possibility of fair settlement before trial
is measurably increased. 

As just intimated, the deposition-discovery procedure was designed to remedy the

conceded inadequacy and cumbersomeness of the pre-trial functions of notice-
giving, issue-formulation and fact revelation theretofore performed primarily by the
pleadings.

The various modes or instruments of discovery are meant to serve (1) as a device,
along with the pre-trial hearing under Rule 20, to narrow and clarify the basic issues
between the parties, and (2) as a device for ascertaining the facts relative to those
issues. The evident purpose is, to repeat, to enable the parties, consistent with
recognized privileges, to obtain the fullest possible knowledge of the issues and facts
before civil trials and thus prevent that said trials are carried on in the
dark.53 (emphasis supplied)

In this case, the information sought to be obtained through the depositions of Elena
and Pacita are necessary to fully equip LCDC in determining what issues will be
defined at the pre-trial. Without such information before pre-trial, LCDC will be
forced to prosecute its case in the dark --- the very situation which the rules of
discovery seek to prevent. Indeed, the rules on discovery seek to make trial less a
game of blind man’s bluff and more a fair contest with the basic issues and facts
disclosed to the fullest practicable extent. 54

Considering the foregoing, the Court finds that the CA was correct in remanding the
case to the trial court and ordering the depositions to proceed. 

WHEREFORE, the petition is denied for lack of merit. 

25

G.R. No. 145542. June 4, 2004.*
ELENA S. ONG, petitioner, vs. HON. FRANCISCO V. MAZO, as Presiding
Judge, Regional Trial Court, Guiuan, Eastern Samar, Branch 3, ELVIRA C.
LANUEVO and CHARITO A. TOMILLOSO, respondents.
Remedial Law; Certiorari; Court applied retroactively A.M. No. 00-2-03-SC
on a fresh 60-day period for the filing of certiorari petitions from notice of the denial
of the motion for reconsideration.—In Systems Factors Corporation v.
NLRC and Unity Fishing Development Corp. v. Court of Appeals this Court applied
retroactively the above-quoted amended rule on a fresh 60-day period for the filing
of certiorari petitions from notice of the denial of the motion for reconsideration.
Thus, a petition for certiorari admittedly filed past the 60-day period under Section 4,
Rule 65, as amended by Circular No. 39-98, but filed on time where considered
under the amendment in A.M. No. 00-2-03-SC, was held to be seasonably filed.
Same; Same; The extraordinary writ of certiorari is generally not available to
challenge an interlocutory order of a trial court, the proper remedy in such cases
being an ordinary appeal from an adverse judgment where incorporated in said
appeal are the grounds for assailing the inter-
_______________
*
 THIRD DIVISION.
57
VOL. 431, JUNE 4, 2004  57       Marlo V. Destura for private respondent.
Ong vs. Mazo
locutory order; If the assailed interlocutory order is patently erroneous, and
the remedy of appeal would not afford adequate and expeditious relief, certiorari
may be allowed as a mode of redress.—No doubt, the twin orders denying the
written interrogatories were interlocutory in nature for they leave something more to
be done on the merits of the case. And the extraordinary writ of certiorari is generally
not available to challenge an interlocutory order of a trial court, the proper remedy in
such cases being an ordinary appeal from an adverse judgment where incorporated in
said appeal are the grounds for assailing the interlocutory order. Nonetheless, this by
no means is an absolute rule. If the assailed interlocutory order is patently erroneous
and the remedy of appeal would not afford adequate and expeditious relief, certiorari
may be allowed as a mode of redress.
Same; Evidence; Court has long espoused the policy of encouraging the
availment of the various modes or instruments of discovery as embodied in Rules 24
to 29 of the Revised Rules of Court; The rationale behind the recognition accorded
the modes of discovery is that they enable a party to discover the evidence of the
adverse party and thus facilitate an amicable settlement or expedite the trial of the
case.—This Court has long espoused the policy of encouraging the availment of the
various modes or instruments of discovery as embodied in Rules 24 to 29 of the
Revised Rules of Court. The thrust of the Rules is to even make the availment of the
modes of discovery—depositions, interrogatories and requests for admissions—
without much court intervention since leave of court is not necessary to put into
motion such modes after an answer to the complaint has been served. The rationale
behind the recognition accorded the modes of discovery is that they enable a party to
discover the evidence of the adverse party and thus facilitate an amicable settlement
or expedite the trial of the case.
Same; Same; The time-honored cry of “fishing expedition” can no longer
provide a reason to prevent a party from inquiring into the facts underlying the
opposing party’s case through the discovery procedures.—Thus, to deny a party the
liberty to have his written interrogatories answered by his opponent, as what the trial
court did, on the premise that the interrogatories were a “fishing expedition,” is to
disregard the categorical pronouncement in aforementioned case of Republic vs.
Sandiganbayan that the time-honored cry of ‘fishing expedition’ can no longer
provide a reason to prevent a party from inquiring into the facts underlying the
opposing party’s case through the discovery procedures.
PETITION for review on certiorari of the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
58
58  SUPREME COURT REPORTS ANNOTATED 
Ong vs. Mazo
     Beltran & Reyes-Beltran for petitioner.
CARPIO MORALES, J.:
26
Assailed in the present petition for review is the Court of Appeals August 17, 2000
Resolution dismissing the petition for certiorari of petitioner Elena S. Ong and
October 10, 2000 Resolution denying her motion for reconsideration of the
dismissal.
The facts originative of the petition are as follows:
Respondents Elvira C. Lanuevo (Lanuevo) and Charito A. Tomilloso
(Tomilloso) filed a complaint for damages against petitioner along with
Iluminado J. Caramoan (Caramoan) before the Regional Trial Court (RTC)
of Guiuan, Eastern Samar,1 docketed as Civil Case No. 887. The complaint
which was raffled to Branch 3 of the RTC, arose from a vehicular accident
whereby a bus owned by petitioner and driven by Caramoan allegedly
bumped a jeep owned and driven by respondent Lanuevo, with respondent
Tomilloso as her passenger at the time.  dismissed.
After petitioner filed her Answer with Counterclaim,2 and later a motion to
dismiss3 the complaint, respondents filed a motion4 for leave of court to file an
amended complaint5 which was granted.6
On November 14, 1996, petitioner served written interrogatories7 upon respondents
and on November 21, 1996, she filed a "Manifestation and Omnibus
Motion"8 seeking, among other things, an order from the trial court directing
respondents to answer the interrogatories.  By Resolution of October 10, 2000, the appellate court denied petitioner’s motion for
To the motion bearing on the written interrogatories, respondents filed their
objection.9
By Order of May 6, 1999,10 the trial court denied the motion to compel respondents
to answer the interrogatories upon the ground that it constituted a "fishing
expedition" which would be more properly ventilated in a pre-trial conference.  To the present petition, respondents filed their Comment,20 explaining that the
Following petitioner’s receipt on May 26, 199911 of said May 6, 1999 Order, she
filed on July 19, 199912 a motion for reconsideration thereof where she also
manifested that her original answer to the complaint would serve as her answer to the
amended complaint. The motion for reconsideration was denied by Order of July 4,
2000.13
After her receipt on July 18, 200014 of the aforesaid July 4, 2000 Order, petitioner
filed on August 4, 2000 with the Court of Appeals a petition captioned as "Petition
for Certiorari"15 assailing the above twin orders of the trial court as having been
issued with grave abuse of discretion amounting to lack or excess of jurisdiction. 
By the now assailed Resolution of August 17, 2000,16 the appellate court dismissed
petitioner’s Petition for Certiorari on the ground that it was belatedly filed. Read the
Resolution:
An examination of the petition for certiorari shows that the assailed order
dated May 6, 1999 was received on May 26, 1999 and that petitioner filed
a motion for reconsideration on July 10, 1999, hence petitioner had
only 15 days left from receipt of the order denying the motion for
reconsideration on July 18, 2000 or until August 2, 2000 within which to
file the petition. When the instant petition was filed on August 4, 2000, the
same was late by two (2) days without any explanation being made by
petitioner. 
WHEREFORE, premises considered, the instant petition is hereby
 
SO ORDERED. (Emphasis supplied)
Petitioner moved to reconsider the appellate court’s dismissal of her petition, arguing
that what was filed was a special civil action for certiorari under Rule 65 of the Rules
of Court, not an appeal, which special civil action was timely brought within the 60-
day reglementary period.17
reconsideration.18
Hence, the present petition, petitioner insisting that the appellate court erred in
treating her petition as an ordinary appeal to thus lead it to conclude that it was
belatedly filed.19
appellate court considered petitioner’s petition thereat as an appeal because it found
the assailed orders of the trial court as not warranting the remedy of the special civil
action of certiorari. 
On the denial by the trial court of petitioner’s motion to direct respondents to answer
the written interrogatories, respondents justified the same, it contending that the trial
court had jurisdiction to pass upon the propriety of such mode of discovery under
Section 3, Rule 26 of the Rules of Court and that the remedy of certiorari is
unavailing since what is traversed is an error of law or fact that is properly the
subject of an appeal. 
27
Insisting that the trial court erred in refusing to compel respondents to answer her
written interrogatories, petitioner, in her Reply21 to respondents’ Comment, invokes
this Court’s plenary power to resolve not only the issue of the appellate court’s
dismissal of her petition but also the question of whether the trial court gravely
abused its discretion in disallowing the written interrogatories.  than sixty (60) days from notice of the judgment, order or resolution. In
In their respective memoranda,22 both parties raise the issue of the propriety of
availment of written interrogatories.  notice of the denial of said motion. (Emphasis supplied)
Meanwhile, on February 28, 2001, the trial court suspended indefinitely the
proceedings in the initiatory civil case between the parties in light of petitioner’s
appeal before this Court.23
The appeal is impressed with merit.
On August 4, 2000, when petitioner filed her petition for certiorari before the
appellate court, Section 4 of Rule 65, as amended by Circular No. 39-98 read:
SEC. 4. Where petition filed. — The petition may be filed not later than
sixty (60) days from notice of the judgment, order or resolution sought to be
assailed in the Supreme Court or, if it relates to the acts or omissions of a
lower court or of a corporation, board, officer or person in the Regional
Trial Court exercising jurisdiction over the territorial area as defined by the
Supreme Court. It may also be filed in the Court of Appeals whether or not
the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it
is in aid of its appellate jurisdiction. If it involves the acts or omissions of a
quasi-judicial agency, and unless otherwise provided by law or these rules,
the petition shall be filed in and cognizable only by the Court of Appeals.
If the petitioner had filed a motion for new trial or reconsideration in due
time after notice of said judgment, order or resolution, the period herein
fixed shall be interrupted. If the motion is denied, the aggrieved party may
file the petition within the remaining period, but which shall not be less than
five (5) days in any event, reckoned from such notice of denial. No
extension of time to file the petition shall be granted except for the most
compelling reason and in no case to exceed fifteen (15) days. (Underscoring
supplied)  availing of her written interrogatories as a mode of discovery, instead of remanding
Under the foregoing rule, when petitioner’s counsel received on July 18, 2000 the
trial court’s order of July 4, 2000 denying her motion for reconsideration of the
Order of May 6, 1999, she still had 15 days left of the 60-day period to file the
petition for certiorari.
Section 4 of Rule 65 was subsequently further amended, however, by A.M. No. 00-
2-03-SC which took effect on September 1, 2000 as follows:
SEC. 4. When and where petition filed. – The petition shall be filed not later
case a motion for reconsideration or new trial is timely filed, whether such
motion is required or not, the sixty (60) day period shall be counted from
In Systems Factors Corporation v. NLRC24 and Unity Fishing Development Corp. v.
Court of Appeals,25 this Court applied retroactively the above-quoted amended rule
on a fresh 60-day period for the filing of certiorari petitions from notice of the denial
of the motion for reconsideration. Thus, a petition for certiorari admittedly filed past
the 60-day period under Section 4, Rule 65, as amended by Circular No. 39-98, but
filed on time where considered under the amendment in A.M. No. 00-2-03-SC, was
held to be seasonably filed. 
Applying retroactively too Sec. 4 of Rule 65, as amended by A.M. No. 00-2-03-SC,
since petitioner’s petition for certiorari was filed with the appellate court on August
4, 2000, after receipt on July 18, 2000 by petitioner of the order of the trial court
denying her motion for reconsideration from which latter date the 60-day period
should be reckoned, the petition was seasonably filed. It was thus error for the trial
court to dismiss the same. 
Contrary then to petitioner’s protestation that the appellate court erred in treating her
petition for certiorari as an appeal which was filed beyond the 15-day reglementary
period, as reflected above, the 15-day period left for petitioner to file the petition
referred to the remaining number of days left after computation of the 60-day period
in Section 4 of Rule 65 of the Rules of Court, as then amended by Circular No. 39-
98 
With the setting aside of the appellate court’s questioned orders, the resolution of the
present petition should have been accomplished. Nonetheless, considering that the
relatively simple case for damages, which was instituted by respondents against
petitioner way back in 1996 or eight long years ago, had virtually come to a halt due
to the lingering legal issue respecting the trial court’s order stopping petitioner from
this case to the appellate court as anyway both parties have advanced and argued the
sole issue which is purely one of law, in the overriding interest of justice, this Court
shall now resolve the issue as if it had been raised via a special civil action for
certiorari with this Court.26
No doubt, the twin orders denying the written interrogatories were interlocutory in
nature for they leave something more to be done on the merits of the case.27 And the
28
extraordinary writ of certiorari is generally not available to challenge an
interlocutory order of a trial court, the proper remedy in such cases being an ordinary
appeal from an adverse judgment where incorporated in said appeal are the grounds
for assailing the interlocutory order.28Nonetheless, this by no means is an absolute
rule. If the assailed interlocutory order is patently erroneous and the remedy of
appeal would not afford adequate and expeditious relief, certiorari may be allowed as
a mode of redress.29
This Court finds that the orders disallowing petitioner’s written interrogatories are
patently erroneous, hence, the resort to certiorari is warranted. In denying petitioner’s
availment of interrogatories, the trial court was of the view that —  their answers to petitioner’s written interrogatories and to proceed with dispatch the
. . . in as much that the written interrogatories is (sic) a sort of fishing
expedition, said questions and answer would be properly ventilated in a pre-
trial conference for which this court direct the defendant Elena Ong to file
her answer to the amended complaint anent thereto, both parties are
required to file their respective pre-trial briefs after which this case will be
calendared for pre-trial conference.30
This Court has long espoused the policy of encouraging the availment of the various
modes or instruments of discovery as embodied in Rules 24 to 29 of the Revised
Rules of Court. Thus, in Republic v. Sandiganbayan,31 it held:
. . . Indeed it is the purpose and policy of the law that the parties – before
the trial if not indeed even before the pre-trial – should discover or inform
themselves of all the facts relevant to the action, not only those known to
them individually, but also those known to their adversaries; in other words,
the desideratum is that civil trials should not be carried on in the dark; and
the Rules of Court make this ideal possible through the deposition-
discovery mechanism set forth in Rules 24 to 29.
The thrust of the Rules is to even make the availment of the modes of discovery –
depositions, interrogatories and requests for admissions – without much court
intervention since leave of court is not necessary to put into motion such modes after
an answer to the complaint has been served.32 The rationale behind the recognition
accorded the modes of discovery is that they enable a party to discover the evidence
of the adverse party and thus facilitate an amicable settlement or expedite the trial of
the case.33
Thus, to deny a party the liberty to have his written interrogatories answered by his
opponent, as what the trial court did, on the premise that the interrogatories were a
"fishing expedition," is to disregard the categorical pronouncement in
aforementioned case of Republic vs. Sandiganbayan that the time-honored cry of
‘fishing expedition’ can no longer provide a reason to prevent a party from inquiring
into the facts underlying the opposing party’s case through the discovery
procedures.34
The trial court’s orders, not being in accordance with law and jurisprudential dictum,
are therefore correctible by writ of certiorari.
WHEREFORE, the Resolutions of the Court of Appeals dated August 17, 2000 and
October 10, 2000 are hereby SET ASIDE as are the orders of Branch 3 of the
Regional Trial Court of Guiuan, Eastern Samar in Civil Case No. 887. The Presiding
Judge of said branch of the court is ORDERED to REQUIRE respondents to serve
disposition of said case.
SO ORDERED.
G.R. No. 101682.December 14, 1992.*
SALVADOR D. BRIBONERIA, petitioner, vs. THE HONORABLE COURT OF
APPEALS, GERTRUDES B. MAG-ISA, married to and assisted by PEDRO
MAG-ISA, respondents.
Pleadings and Practice; Admissions by adverse party; Request for
admission; Party should not be compelled to admit facts already admitted by his
pleadings.—To begin with, a cursory reading of the petitioner’s complaint and his
request for admission clearly shows, as found by respondent appellate court, that “the
material matters and documents set forth in the request for admission are the same as
those set forth in the complaint which private respondents either admitted or denied
in their answer.” The respondent court therefore correctly held that this case falls
under the rule laid down in Po vs. Court of Appeals, wherein this Court held: “A
party should not be compelled to admit matters of fact already admitted by his
pleading and concerning which there is no issue (Sherr vs. East, 71 A2d, 752, Terry
260, cited in 27 C.J.S. 91), nor should he be required to make a second denial of
those already denied in his answer to the complaint. A request for admission is not
intended to merely reproduce or reiterate the allegations of the requesting party’s
pleading but should set forth relevant evidentiary matters of fact, or documents
described in and exhibited with the request, whose purpose is to establish said party’s
cause of action or defense. x x x.”
Same; Same; Same; Request should be served upon the party, not upon
counsel.—In the present case, it will be noted that the request for admission was not
29
served upon the private respondent Mag-isa but upon her counsel, Atty. Alfredo A.
Alto. Private respondent Mag-isa, therefore, cannot be deemed to have admitted the
facts and documents subject of the request for admission for having failed to file her
answer thereto within the period fixed in the request.
PETITION for review on certiorari of the decision of the Court of Appeals.
Marigomen, J.
The facts are stated in the opinion of the Court.
     Pedro R. Lazo for petitioner. 
_______________
*
 FIRST DIVISION.
608
608  SUPREME COURT REPORTS ANNOTATED  3. The abovementioned parcel of land was acquired and the
Briboneria vs. Court of Appeals
     Alfredo AU A. Alto for respondents.
PADILLA, J.:
On 17 October 1991, the petitioner filed with this Court a petition
for review on certiorari of the decision of the Court of Appeals, Eleventh
Division, * in CA-G.R. SP No. 20114 dated 13 August 1990 as well as its resolution
dated 9 September 1991 denying the petitioner's for reconsideration.
Acting upon the petition, the Court required the private respondents to comment
thereon. After the private respondents had filed their comment, the Court resolved to
consider the comment as answer and to give due course to the petition and the case
was deemed submitted for decision. 1
The antecedents are as follows:
On 23 May 1988, petitioner Salvador D. Briboneria, as plaintiff, filed a
complaint 2 for Annulment of Document and Damages, with prayer for preliminary
injunction and/or temporary restraining order against private respondent Gertrudes B.
Mag-isa, with the Regional Trial Court of Pasig, docketed therein as Civil Case No.
55961, alleginginter alia that:
xxx xxx xxx
2. Plaintiff, together with his wife Nonita A. Briboneria, are the
registered owners (of) a parcel of land located at 59 Amsterdam
Street Provident Village, J. de la Peña, Marikina, Metro-Manila,
covered under Transfer Certificate of Title No. N-29859 (Copy
attached herewith as Annex A) more particularly described as
follows:
A parcel of land . . . situated in the Municipality
of Marikina, Province of Rizal, Island of
Luzon . . . containing an area of THREE
HUNDRED (300) SQUARE METERS, more or
less, . . .
Among the improvements on this parcel of land is plaintiff's
residential house where his wife and children used to stay until
they migrated to the United States.
residential house was constructed through plaintiff's hard-earned
salaries and benefits from his employment abroad.
4. Plaintiff, as the duly registered owner, has declared the above-
described parcel of land and residential house for tax purposes
under P.D. No. 464, copies of Declaration of Real Property
attached herewith as Annexes B and B-1.
5. Of late, plaintiff was surprised to learn that his wife Nonita A.
Briboneria sold to defendant Gertrudis B. Mag-isa by means of a
Deed of Absolute Sale, copy attached herewith as Annex C, the
abovementioned house and lot.
6. Plaintiff, as the duly registered owner, never authorized or
empowered Nonita A. Briboneria or anybody for or on his behalf,
stead or representation to enter into any transaction regarding the
sale, transfer or conveyance of the abovedescribed house and lot.
7. Plaintiff had all along been expecting that the house and lot shall
be for his family, particularly his children.
8. As a result of the unauthorized sale, plaintiff was denied the use
and enjoyment of his properties since defendant Gertrudis B. Mag-
isa had even leased the premises to another who in turn had
prohibited plaintiff from entering the premises.
9. By reason of the unlawful deprivation from him of his
properties, plaintiff suffered serious anxiety, fright, mental anguish
30
 and wounded feelings and further subjected him to social
humiliation and embarassment, particularly considering that the
abovementioned properties came from his hard-earned salaries and
emoluments from his employment abroad, for which defendants
Mag-isa must be adjudged liable for moral damages in an amount
not less than ONE MILLION PESOS (P1,000,000.00) or as may
be equitably determined by this Honorable Court.
10. In order to serve as an example or correction for the public
good, defendants Mag-isa should likewise be adjudged liable for
examplary damages in an amount not less than ONE HUNDRED
THOUSAND PESOS (P100,000.00) or as may be equitably
determined by this Honorable Court.
11. Plaintiff, in protection of his legitimate right and interests
prejudiced by defendants — Mag-isa, was constrained to engage
the services of undersigned counsel for P50,000.00, exclusive of
appearance fees and expenses.
Plaintiff adopts the foregoing.
12. The next move of defendants — Mag-isa is to consolidate
ownership over the properties by means of the Deed of Absolute
Sale (Annex C herein) which is inceptually void.
13. Defendant Register of Deeds of Marikina would have no other
alternative but to give due course to the consolidation of ownership
over the properties in the name of defendants — Mag-isa which
eventually causes grave and irreparable injury, untold injustice and
undue prejudice to plaintiff unless — a Writ of Preliminary
Injunction, or at least a Temporary Restraining Order is
immediately issued by this Honorable Court enjoining or
restraining defendant Register of Deeds of Marikina, Metro-Manila
or any person acting on his behalf from consolidating ownership of
the house and lot covered under TCT No. N-29895 of the Registry
of Deeds for the province of Rizal in the name of defendants —
Mag-isa or their heirs or successor-in-interest.
14. Plaintiff is ready and willing to post a bond in such amount as
this Honorable Court may equitable determine subject to such
conditions and terms as may be appropriately imposed thereon.
In due time, private respondent Gertrudes B. Mag-isa, as defendant, filed her
answer 3 alleging as follows:
1. Defendants admit their circumstances as alleged in paragraph 1,
the age of plaintiff but denies the rest of the allegations therein for
lack of knowledge and/or information sufficient to form a
judgment as to the truths thereof.
2. Defendants admit the allegations in paragraph 2 that pursuant to
Transfer Certificate of Title No. N-29859 (Annex "A"), plaintiff
together with his wife appears to be the registered owners of the
subject parcel of land but that is more apparent and (sic) real
considering that defendants have admittedly bought the land and
the improvements thereon and defendants were purchasers in good
faith and for value.
3. Defendants deny the allegations in paragraph 3 for lack of
knowledge and information to form a judgment as to the truths,
and granting arguendo that the acquisition of the land and the
construction of the house came from the salaries and benefits of the
plaintiff, said salaries and benefits are considered conjugal.
4. Defendants deny the allegations in paragraph 4 for lack of
knowledge and information sufficient to form a judgment as to the
truth thereof although it may be of judicial notice that the Office of
the Provincial/Municipal Assessor motu proprio accomplishes
(sic) Annexes "B" and "B-1" and all tax declarations for that matter
based on existing records in said office.
5. Defendants admit the allegations in paragraph 5 in so far as the
transaction of absolute sale between them and defendant's
(plaintiff's) wife who acted not only in her behalf but also as
attorney-in-fact of her husband, plaintiff in the instant case, which
transaction was actually known by and with the consent of or
should at least have been known to and with the consent of
plaintiff as evidenced by a letter of plaintiff to his wife, a xerox
copy of which is attached hereto as Annex "1" and made an
integral part hereof.
6. Defendants deny the allegation in paragraph 6, the truth and fact
being that plaintiff's wife was duly authorized by a Special Power
of Attorney to transact on and sell the subject house and lot, a
xerox copy of which marked Annex "2" is hereto attached and
made an integral part hereof.
31
 7. Defendants deny the allegations in paragraph 7 for lack of
knowledge and information sufficiento (sic) form a judgment as to
the truths thereof.
8. Defendants deny the allegations in paragraph 8 to the effect that
he was denied the use and enjoyment of his properties for the
reason that as the owners of the property, defendants have the
absolute rights of use and enjoyment over said properties with the
prerogative to lease the same to any party of their choice, the lessee
with the right to exclude others from the use and enjoyment of the
premises.
9. Defendants deny the allegations in paragraphs 9, 10 and 11 not
only for lack of knowledge and information to form a judgment as
to the truths thereof but also because said allegations have no
factual and legal basis.
10. Defendants admit the allegations in paragraph 12 in so far as
the prospective registration of Annex "C" is concerned but deny
the rest of the allegations for reasons stated earlier to the effect that
Annex "C" is a valid and binding sale, with defendants as the
purchasers in good faith and for value.
11. Defendants admit the allegations in paragraph 13 in so far as
the ministerial functions of defendant Register of Deeds but deny
the rest of the allegations the same being without any factual and
legal basis for reasons essayed earlier.
12. Defendants deny the allegations in paragraph 14 for lack of
knowledge and information sufficient to form a judgment as to the
truths thereof aside from the fact that plaintiff's alleged readiness
and willingness to post a bond will simply be exercises in futility.
On 13 September 1988, after issues in the case had been joined, petitioner served on
the private respondent Mag-isa a request for admission 4 reading as follows:
ATTY. ALFREDO A. ALTO
Counsel for Defendant Mag-isa
Balaga-Luna Building
Malolos, Bulacan
Greeting:
Plaintiff, through counsel, respectfully requests your admission
within ten (10) days from service hereof pursuant to Rule 26, Rules
of Court of the following:
The Material facts
1. That plaintiff, together with his wife Nonita A. Briboneria, are
the registered owners of a parcel of land together with the
improvements thereon covered under Transfer Certificate of Title
No. N-29895 (Annex A-Complaint) located at 59 Amsterdam
Street, Provident Village, Marikina, Metro-Manila.
2. That plaintiff, as the duly registered owner had declared for the
year 1988 the parcel of land and residential house for tax purposes
under P.D. 464.
3. That plaintiff's family used to live at the said residential house.
4. That defendant Mag-isa actually lives near the location address
of plaintiff's properties.
5. That defendant Mag-isa knows that plaintiff works abroad but he
(plaintiff) regularly comes home and stays with his family at their
residential house abovementioned.
6. That the abovementioned house and lot were acquired through
plaintiff's hard-earned salaries and benefits from his employment
abroad.
7. That plaintiff has reserved the house and lot as a place to stay to
(sic) with his family upon his retirement from his employment.
8. That plaintiff had never authorized his wife or anybody for that
matter to sell or to dispose of the property covered under TCT No.
N-29895.
9. That plaintiff never executed the alleged Special Power of
Attorney dated November 14, 1984 appended as Annex 2 —
Answer.
10. That the alleged Special Power of Attorney mentions "Transfer
Certificate of Title No. N-29995 issued by the Register of Deeds of
Rizal."
32
 11. That plaintiff never personally appeared before Notary Public
Jose Constantino upon whom the acknowledgment of said Special
Power of Attorney was made.
12. That plaintiff never sold or disposed of, and never consented to
the sale or disposition of properties covered under TCT No. N-
29995.
13. That plaintiff never received the consideration of the alleged
sale, and he never benefited therefrom in any manner.
14. That defendant Mag-isa never confirmed with plaintiff
notwithstanding their being neighbors, the authenticity of the
alleged Special Power of Attorney and the validity of the alleged
Deed of Absolute Sale particularly considering that the subject
matter thereof involves plaintiff's properties.
15. That plaintiff was denied the use and enjoyment of his
properties since defendant Mag-isa had even leased the premises to
another who in turn had prohibited plaintiff from entering the
premises.
The Material Documents
1. Transfer Certificate of Title No. N-29895 of the Register of
Deeds of Rizal, copy attached to the Complaint as Annex A.
2. The Declarations of Real Property filed by Salvador D.
Briboneria pursuant to P.D. 464 for the year 1988, copies attached
to the Complaint as Annexes B and B-1.
On 10 November 1988, the private respondents filed with the court a quo their
Answer to Request for Admission, 5alleging that most if not all the matters subject of
petitioner's request for admission had been admitted, denied and/or clarified in their
verified answer dated 20 June 1988, and that the other matters not admitted, denied
and/or clarified were either irrelevant or improper.
On 18 November 1988, petitioner filed a Motion for summary
Judgment, 6 claiming that the Answer to Request for Admission was filed by private
respondents beyond the ten (10) day period fixed in the request and that the answer
was not under oath; that, consequently the private respondents are deemed to have
admitted the material facts and documents subject of the request for admission,
pursuant to Section 2, Rule 26 of the Rules of Court. The private respondents filed an
opposition 7 to the motion for summary judgment, while the petitioner filed a
reply 8 to said opposition.
On 28 December 1988, the trial court issued an order 9 denying
the petitioner's motion for summary judgment. Petitioner moved for
reconsideration 10 which the court granted in its order dated 20 July 1989, setting
aside the order of 28 December 1988. 11 The private respondents, in turn, filed a
Motion for Clarification and Reconsideration, to which the petitioner filed an
opposition. 12 On 1 February 1989, the trial court issued another order 13 this time
setting aside its order of 20 July 1989 and set the pre-trial conference on 22 February
1989.
The petitioner thereupon filed with the Court of Appeals a petition for certiorari,
prohibition and mandamus to annul and set aside the order dated 1 February 1989 of
the court a quo, alleging that the said order was issued with grave abuse of discretion
amounting to lack of jurisdiction. On 13 August 1990, the Court of Appeals rendered
a decision, 14 dismissing the petition. Petitioner's motion for reconsideration having
been likewise denied, 15 he is now before us in the present petition.
Petitioner assails the respondent appellate court in holding that the matters of fact
and the documents requested to be admitted are mere reiterations and/or
reproductions of those alleged in the complaint. He claims that the material facts and
documents described in the request for admission are relevant evidentiary matters
supportive of his cause of action. He further argues that the private respondents have
impliedly admitted the material facts and documents subject of the request for
admission on account of their failure to answer the request for admission within the
period fixed therein, and for said answer not being under oath.
The petition can not be upheld; the petitioner's contentions are devoid of merit.
To begin with, a cursory reading of the petitioner's complaint and his request for
admission clearly shows, as found by respondent appellate court, that "the material
matters and documents set forth in the request for admission are the same as those set
forth in the complaint which private respondents either admitted or denied in their
answer." 16The respondent court therefore correctly held that this case falls under the
rule laid down in Po vs. Court of Appeals. 17 wherein this Court held:
A party should not be compelled to admit matters of fact already
admitted by his pleading and concerning which there is no issue
(Sherr vs. East, 71 A2d, 752, terry 260, cited in 27 C.J.S. 91), nor
should he be required to make a second denial of those already
denied in his answer to the complaint. A request for admission is
not intended to merely reproduce or reiterate the allegations of the
requesting party's pleading but should set forth relevant evidentiary
33
 matters of fact, or documents described in and exhibited with the
request, whose purpose is to establish said party's cause of action
or defense. . . .
Moreover, under Section 1, Rule 26 of the Rules of Court, 18 the request for
admission must be served directly upon the party; otherwise, the party to whom the
request is directed cannot be deemed to have admitted the genuineness of any
relevant document in and exhibited with the request or relevant matters of fact set
forth therein, on account of failure to answer the request for admission. 19
In one case, namely, CA-G.R. No. 20561-R, entitled "Jose Ledesma, Jr., Plaintiff-
Appellee, versus Guillermo Locsin, Defendant-Appellant", 20 the Court of Appeals in
favorably resolving the defendant-appellant's motion for reconsideration of its earlier
decision (wherein it affirmed the summary judgment of the Court of First Instance of
Negros Occidental in favor of plaintiff Jose Ledesma, Jr. upon failure of defendant
Guillermo Locsin to answer a request for admission served upon his counsel by the
plaintiff) held in its Resolution dated 1 June 1963, as follows:
The issue raised by the first two assigned errors is whether or not a
request for admission must be served directly on a party, and not
his counsel, in order that said request can be considered as validly
served. In our decision which is sought to be reconsidered, we held
that a request for admission may be validly served upon party's
counsel. After a further review of the facts of the case and the
circumstances surrounding the same, we are now fully convinced
that it should not be so.
The general rule as provided for under Section 2 of Rule 27 (now
Section 2, Rule 13) of the Rules of Court is that all notices must be
served upon counsel and not upon party. This is so because the
attorney of a party is the agent of the party and is the one
responsible for the conduct of the case in all its procedural aspects;
hence, notice to counsel is notice to party. The purpose of the rule
is obviously to maintain a uniform procedure calculated to place in
competent hands the orderly prosecution of a party's case
(Chainani v. Judge Tancinco, G.R. No. L-4782, Feb. 29, 1952;
Capili v. Badelles, G.R. No. L-17786, Sept. 29, 1962). However,
the general rule cannot apply where the law expressly provides that
notice must be served upon a definite person. In such cases, service
must be made directly upon the person mentioned in the law and
upon no other in order that the notice be valid.
Whenever notice is necessary, it must appear that
it was served on the proper person, and there
must be strict compliance with a statute requiring
service on a particular person, so that service on
another person is not sufficient.
In general, service of notice of a modal or formal
step in a proceeding on the attorney of record is
sufficient, if not otherwise specifically provided
by statute or rule of court. (66 C.J.S. 658)
Thus, we see that section 7 of Rule 40, with regard to notice of
pendency of an appeal from an inferior court to a Court of First
Instance, provides that "it shall be the duty of the clerk of the court
to notify the parties of that fact by registered mail", and the
Supreme Court construing said section held, in Ortiz v.Mania, G.R.
No. L-5147, June 2, 1953, that the notice of the pendency of the
appeal must be served upon the parties for said section being
express and specific cannot be interpreted to mean that the notice
can be given to the lawyer alone.
Similarly, section 1 of Rule 20 (now Section 1, Rule 25) provides
that "any party may serve upon any adverse party written
interrogatories", and Chief Justice Moran commenting on this rule
states that "the written interrogatories referred to in the instant
provision should be delivered directly to the adverse party." We
see no valid reason why a different rule should govern request for
admission inasmuch as written interrogatories and request for
admissions are both modes of discovery.
Section 1 of Rule 23 (now Section 1, Rule 26) of the Rules of
Court which expressly states that "a party may serve upon any
other party a written request" should receive no other construction
than that the request for admission must be served directly on the
party and not on his counsel. Section 2 of Rule 27 (now Section 2,
Rule 13) of the Rules of Court does not control the mode of service
of request for admission. It should be observed that the orders,
motions and other papers mentioned in said section have this
property in common: they have to be filed with the court. A request
for admission, on the other hand, need not be filed with the court; it
was intended to operate extra-judicially and courts are not
burdened with the duty to determine the propriety or impropriety
of the request for admission (I Moran's Comments on the Rules of
Court, 1957 ed., 372-73; I Francisco's Rules of Court, Part 2, p.
282).
34
 . . . Permission of the court is not required to
make such a request or demand, or to file it, or
serve it on the adverse party; but service must be
made in the manner specified by the statute or
rule. (27 C.J.C. 277)

And the answer to the request for admission is likewise not a

matter of record and would require another step in procedure to
bring it on record (Seranton Lackawanna Trust Co. vs.
McDermont, 1 Pa. Dist. & Co. 2nd 539, 55 Lack. Jur. 265, cited in
27 C.J.S. 277, fn 19). Section 2 of Rule 27 governs only those
papers that have to be filed in court and does not govern papers
which, by the rules of procedure, do not have to be filed in court.

In view of the foregoing, it is our considered opinion that the

request for admission made by plaintiff was not validly served and
that, therefore, defendant cannot be deemed to have admitted the
truth of the matters upon which admissions were requested and,
consequently, the summary judgment rendered by the court a
quo has no legal basis to support it. This conclusion renders it
unnecessary to discuss the other assigned errors.

The plaintiff-appellee Jose Ledesma, Jr. filed with this Court a petition for review
on certiorari of the aforesaid resolution, docketed as G.R. No.
L-21715. On 2 October 1963, this Court denied the petition, thus —

After a consideration of the allegations of the petition filed in case

L-21715 (Jose Ledesma, Jr. vs. Guillermo Locsin), for review of
the decision of the Court of Appeals referred to therein, THE
COURT RESOLVED to dismiss the petition for lack of merit.

In the present case, it will be noted that the request for admission was not served
upon the private respondent Mag-isa but upon her counsel, Atty. Alfredo A. Alto.
Private respondent Mag-isa, therefore, cannot be deemed to have admitted the facts
and documents subject of the request for admission for having failed to file her
answer thereto within the period fixed in the request.
No. L-71388. September 23, 1986.*
WHEREFORE, the petition should be, as it is hereby, DENIED. The decision of the MARIA MONSERRAT R. KOH, petitioner, vs.HONORABLE
Court of Appeals dated 13 August 1990 is AFFIRMED. INTERMEDIATE APPELLATE COURT, HON. JOB. B. MADAYAG in his
capacity as the Presiding Judge, of Branch CXLV, Regional Trial Court of
Makati, et al., respondents.
SO ORDERED.
Actions; Judgments; The court should not dismiss a case for failure to heed a
“Notice of Case Status” issued by a court officer in charge where answer was
already filed and defendant admits liability. Res judicata does not apply in such

35
case.—Petitioner has appealed by certiorari to this Court. We are constrained to
affirm. Indeed, with the admission in petitioner’s Answer of the allegations in the
Complaint that due to computer error there was an overpayment to her of the amount
of US-$8,000.00, coupled with her offer to pay respondent Bank the amount of the
overpayment in installments of $100.00 a month, we cannot find any justification for
ruling that the order dismissing the first complaint operated as an adjudication on the
merits or constituted a bar to the secpnd complaint. In fact, the trial court could have,
on motion, rendered a judgment on the pleadings in the first case in favor of
respondent Bank.
Same; Same; Attorneys; Negligence of counsel to respond to a “notice of case
status” made by a court officer is not fatal to party’s cause as case dismissed for
disregard of such notice is irregular.—True it is that respondent Bank’s counsel
should have taken the precaution of complying with the instructions contained in the
“NOTICE OF CASE STATUS” if only to avoid the consequent delay resulting from
non-compliance; that respondent Bank’s counsel was negligent in not seeking a
reconsideration or clarification of the order of dismissal, or appealing therefrom. But,
fortunately for respondent Bank, the omissions of its counsel are not fatal to its cause
in view of the defective procedure which culminated in the dismissal of the first
complaint.
Same; Evidence; Purpose of rules on discovery. If a party does not want to
avail of discovery procedures, case should be set for pretrial, not dismissed.—The
rules on discovery (Rules 24, 25, 26, 27, 28 and 29 of the Revised Rules of Court)
are intended to enable a party 
_______________
*
 SECOND DIVISION.
260
260  SUPREME COURT REPORTS ANNOTATED  Neither could respondent Bank be considered to have failed to prosecute its action
Koh vs. Intermediate Appellate Court
to obtain knowledge of material facts within the knowledge of the adverse
party or of third parties through depositions; to obtain knowledge of material facts or
admissions from the adverse party through written interrogatories; to obtain
admissions from the adverse party regarding the genuineness of relevant documents
or relevant matters of fact through requests for admission; to inspect relevant
documents or objects and lands or other property in the possession or control of the
adverse party; and to determine the physical or mental condition of a party when
such is in controversy. This mutual discovery enables a party to discover the
evidence of the adverse party and thus facilitates an amicable settlement or expedites
the trial of the case. All the parties are required to lay their cards on the table so that
justice can be rendered on the merits of the case. Trial judges should, therefore,
encourage the proper utilization of the rules on discovery. However, recourse to
discovery procedures is not mandatory. If the parties do not choose to resort to such
procedures, the pre-trial conference should be set pursuant to the mandatory
provisions of Section 1 of Rule 20.
Same; Pre-trial; Where a counterclaim need not require an answer being
compulsory, clerk of the court is duty-bound to immediately set the case for pre-trial.
—Petitioner argues that respondent Judge was wrong in stating that a pre-trial order
should have been issued since the last pleading had been filed, because the “notice of
case status” was issued on August 19, 1983, while the last pleading or the answer to
petitioner’s counterclaim was filed much later. Although, ordinarily, the last pleading
which has to be filed before the court shall set the case for pre-trial under Section 1
of Rule 20 is the answer to the counterclaim (Itchon vs. Baligod, 17 SCRA 268;
Pioneer Insurance & Surety Corp. vs. Hontanosas, 78 SCRA 447), in the case at bar,
petitioner’s counterclaim for damages resulting from the filing of the complaint did
not require an answer (Navarro vs. Bello, 102 Phil. 1019; Gojo vs. Goyola, 35 SCRA
557). Since the counterclaim was the last pleading, the court should have issued a
pre-trial order after its submission and it was the duty of the clerk of court to place
the case in the pre-trial calendar under Section 5 of Rule 20.
Same; Judgments; A “notice of case status” signed by a court personnel-in-
charge is not a court order. Disregard thereof does not warrant dismissal of case.—
This provision is not applicable to the case at bar. As the appellate court correctly
held, the “notice of case status” was not an order of the court. It was signed by Mr.
E.R. Be-
261
VOL. 144, SEPTEMBER 23, 1986  261 
Koh vs. Intermediate Appellate Court
len, officer-in-charge. Even the warning in the notice (that if no such
manifestation has been filed after 30 days from receipt the case shall be archived or
dismissed as the case may be) was ambiguous. The failure of the parties to heed the
warning did not constitute disobedience of a lawful order of the court. Consequently,
the order of dismissal could not have the effect of an adjudication upon the merits.
for an unreasonable length of time, inasmuch as petitioner’s Answer was dated
August 17, 1983 and the order of dismissal was dated November 29, 1983.
Same; Same; There is no rule authorizing a court personnel or branch clerk to
issue a “notice of case status”, unlike in summons, execution, and the like.—
Petitioner further contends that if the ruling of the appellate court regarding the
legality of the notice signed by the officer-in-charge were sustained, then court
processes such as summons, notices of pre-trial, writs of execution and the like can
be merely disregarded by lawyers. This contention is without merit. Section 1 of
Rule 14 expressly provides that upon the filing of the complaint, the clerk of court
shall forthwith issue the corresponding summons to the defendant. Sections 1 and 5
of Rule 20 authorize the clerk of court to issue the notice of the date of the pre-trial
and Section 2 of Rule 22 authorizes the clerk of court to issue the notice of the date
of the trial. A writ of execution may be issued by the clerk of court pursuant to an
order of execution signed by the judge. There is no rule authorizing the issuance of
the “notice of case status” in question signed by an officer-in-charge.
36
PETITION to review the decision of the Intermediate Appellate Court
The facts are stated in the opinion of the Court.
     Bito, Misa & Lozada Law Office for petitioner.
     Fernandez, Oliva, Umali & Associates and Vicente C Ramirez, Jr. for
respondents.
FERIA, J.:
The Court affirms the decision of the Intermediate Appellate Court (now renamed
Court of Appeals) which dismissed the petition for certiorari filed by petitioner
against respondent Judge Job B. Madayag of the Regional Trial Court of Makati and
respondent First Interstate Bank of California. Petitioner sought to annul and set
aside the order of respondent Judge denying her motion to dismiss the complaint
based on res adjudicata.  be deemed to have waived resort thereto, and, unless for good
On June 15, 1983, respondent Bank filed a Complaint against petitioner to recover
the sum of US-$7,434.90 or its equivalent in Philippine Currency which, due to a
computer error, it had overpaid to her on October 8, 1981. The Complaint alleged
that on September 30, 1981, petitioner's father sent her US-$500.00 through the
Metropolitan Bank & Trust Company which was the remitting bank of respondent
Bank. But due to computer mistake, respondent Bank's Los Angeles Office
erroneously overstated the amount to US-$8,500.00 instead of US-$500.00, and as a
consequence respondent Bank issued and delivered to petitioner Cashier Check No.
1217681 amounting to US-$8,500.00 dated October 8, 1981 which petitioner
deposited to her account and subsequently withdrew. 
In her Answer dated August 17, 1983, petitioner admitted the above-stated
allegations in the Complaint and alleged that immediately after receipt of a formal
demand letter to return the overpayment, she offered to pay respondent Bank through
its lawyer in installments of $100.00 a month but the offer was unreasonably
rejected.  (SGD.) E.R. BELEN
It is significant to note that no copy of said Answer was attached to the petition for
certiorari filed by petitioner with the Intermediate Appellate Court, nor was any copy
thereof attached to the petition for review on certiorari filed with this Court. It was
only in the Comment of respondents' counsel filed with this Court that a copy of said
Answer was attached thereto. 
On August 19, 1983, Mr. E.R. Belen, Officer-in-Charge of the Regional Trial Court
of Makati, Branch 141, sent the following "NOTICE OF CASE STATUS" to the
parties through their respective lawyers. 
G R E E T I N G S: 
Please take notice that cases where issues have been joined will be
scheduled for pre-trial conference only after Rules 24, 25, 26, 27,
28, and 29-where applicable, necessary and or feasible have been
resorted to by the parties. 
If a party believes that those modes of discovery are not applicable,
necessary or feasible with respect to him, he shall file a
manifestation to that effect. 
The pre-trial conference, shall be scheduled as soon as the
respective manifestations of having resorted to, or of dispensing
with, those modes of discovery have been filed by the parties. 
The party, who has dispensed with those modes of discovery shall
cause shown, motion to resort thereto, after termination of the pre-
trial, shall not be grantee. The costs entailed the waiving party in
presenting evidence during trial that could have been obtained
through any of those modes of discovery which were waived, shall
not be assessed against the adverse party nor awarded as part of the
litigation expenses. 
If, after 30 days from receipt of this notice, no such manifestation
has been filed, the case shall be archived or dismissed as the case
may be. 
Upon Order of the Court, this 19th day of August 1983. 
Makati, Metro Manila. 
Officer-in-Charge 
No manifestation was filed by the parties' lawyers. On November 29, 1983, the
presiding Judge (not respondent Judge), issued the following order: 
For non-compliance with the Order (Notice of Case Status) dated
August 19, 1983, more particularly the last paragraph thereof, this
case is hereby dismissed. 
This order was received by respondent Bank's counsel on December 28, 1983. 
37
On July 4, 1984, respondent Bank, through a new counsel, refiled its complaint parties to heed the warning was not tantamount to disobedience of
which was assigned to Branch 143 of the Regional Trial Court of Makati presided a lawful order of the court, for the 'officer-in-charge' was not the
over by respondent Judge. Petitioner filed a motion to dismiss the complaint on the court or judge. 
ground of res adjudicata, as well as a supplement thereto, which was opposed by
respondent Bank. Since the order of dismissal was null and void, it did not have the
force of a judgment. It did not constitute a bar to the refiling of the
On August 27, 1984, respondent Judge denied the motion to dismiss and on bank's complaint. Respondent Judge did not err, or abuse his
November 27, 1984, he denied petitioner's motion for reconsideration, on the discretion, in denying petitioner's motion to dismiss Civil Case No.
following grounds:  7765. (pp. 35-36, Record) 

(1) The dismissal was too drastic and was tantamount to depriving the plaintiff of its Petitioner has appealed by certiorari to this Court. We are constrained to affirm
day in court.  Indeed, with the admission in petitioner's Answer of the allegations in the Complaint
that due to computer error there was an overpayment to her of the amount of US-
(2) Notwithstanding the failure of the parties in said case to comply with said notice $8,000.00, coupled with her offer to pay respondent Bank the amount of the
of case status (above quoted), the court (Branch 141) should have set the case for overpayment in installments of $100.00 a month, we cannot find any justification for
pre-trial conference since the last pleading had been filed and there are no other ruling that the order dismissing the first complaint operated as an adjudication on the
conditions to be complied with before any case is calendared for pre-trial under merits or constituted a bar to the second complaint. In fact, the trial court could have,
Section 1 of Rule 20.  on motion, rendered a judgment on the pleadings in the first case in favor of
respondent Bank.
(3) It would be better for the defendant to have a definite and clear-cut decision as to
her liability or non-liability, instead of winning a case on a technicality.  True it is that respondent Bank's counsel should have taken the precaution of
complying with the instructions contained in the "NOTICE OF CASE STATUS" if
On May 8, 1985, petitioner filed a petition for certiorari with the Intermediate only to avoid the consequent delay resulting from non-compliance; that respondent
Appellate Court praying that the orders denying the motion to dismiss and the Bank's counsel was negligent in not seeking a reconsideration or clarification of the
motion for reconsideration be set aside as null and void and that the complaint be order of dismissal or appealing therefrom. But, fortunately for respondent Bank, the
ordered dismissed. On May 21, 1985, the appellate court, finding no merit to the omissions of its counsel are not fatal to its cause in view of the defective procedure
petition, resolved not to give it due course. In its decision, the appellate court ruled as which culminated in the dismissal of the first complaint.
follows: 
The rules on discovery (Rules 24, 25, 26, 27, 28 and 29 of the Revised Rules of
We concur with the above reasoning of respondent Judge. We Court) are intended to enable a party to obtain knowledge of material facts within the
should add to that our observation that the order of dismissal of knowledge of the adverse party or of third parties through depositions to obtain
Judge Elbiñas in Civil Case No. 4272 (Annex F) was null and void knowledge of material facts or admissions from the adverse party through written
for lack of legal basis. The 'notice of case status' (Annex D) was interrogatories; to obtain admissions from the adverse party regarding the
not an order' of the court. I t was, as its title indicated, only a genuineness of relevant documents or relevant matters of fact through requests for
'notice,' not an order. The warning in the last paragraph of the admission; to inspect relevant documents or objects and lands or other property in
notice advising the parties that-  the possession or control of the adverse party; and to determine the physical or
mental condition of a party when such is in controversy. This mutual discovery
enables a party to discover the evidence of the adverse party and thus facilitates an
'If, after 30 days from receipt of this notice, no such manifestation amicable settlement or expedites the trial of the case. All the parties are required to
has been filed, the case shall be archived or dismiss as the case lay their cards on the table so that justice can be rendered on the merits of the case.
may be.' 
Trial judges should, therefore, encourage the proper utilization of the rules on
was not an order of the court. It was a warning emanating from discovery. However, recourse to discovery procedures is not mandatory. If the
E.R. Belen, the officer-in-charge (of civil cases). The failure of the

38
parties do not choose to resort to such procedures, the pre-trial conference should be
set pursuant to the mandatory provisions of Section 1 of Rule 20.  legality of the notice signed by the officer-in-charge were sustained, then court
Petitioner argues that respondent Judge was wrong in stating that a pre-trial order
should have been issued since the last pleading had been filed, because the "notice of
case status" was issued on August 19, 1983, while the last pleading or the answer to
petitioner's counterclaim was filed much later. Although, ordinarily, the last pleading
which has to be filed before the court shall set the case for pre-trial under Section 1
of Rule 20 is the answer to the counterclaim (Itchon vs. Baligod, 17 SCRA 268;
Pioneer Insurance & Surety Corp. vs. Hontanosas, 78 SCRA 447), in the case at bar,
petitioner's counterclaim for damages resulting from the filing of the complaint did
not require an answer (Navarro vs. Bello, 102 Phil. 1019; Gojo vs. Goyola, 35 SCRA
557). Since the counterclaim was the last pleading, the court should have issued a
pre-trial order after its submission and it was the duty of the clerk of court to place
the case in the pre-trial calendar under Section 5 of Rule 20. 
Petitioner invokes the provisions of Section 3 of Rule 17 which reads as follows: 
Petitioner further contends that if the ruling of the appellate court regarding the
processes such as summons, notices of pre-trial, writs of execution and the like can
be merely disregarded by lawyers. This contention is without merit. Section 1 of
Rule 14 expressly provides that upon the filing of the complaint, the clerk of court
shall forthwith issue the corresponding summons to the defendant. Sections 1 and 5
of Rule 20 authorize the clerk of court to issue the notice of the date of the pre-trial
and Section 2 of Rule 22 authorizes the clerk of court to issue the notice of the date
of the trial. A writ of execution may be issued by the clerk of court pursuant to an
order of execution signed by the judge. There is no rule authorizing the issuance of
the "notice of case status" in question signed by an officer-in-charge. 
WHEREFORE, the decision of the appellate court is affirmed, with costs against
petitioner. This decision is immediately executory.
SO ORDERED.

Failure to prosecute.-If plaintiff fails to appear at the time of the trial, or to prosecute
his action for an unreasonable length of time, or to comply with these rules or any
order of the court, the action may be dismissed upon motion of the defendant or upon
the court's own motion. This dismissal shall have the effect of an adjudication upon
the merits, unless otherwise provided by court. 

This provision is not applicable to the case at bar. As the appellate court correctly
held, the "notice of case status" was not an order of the court. It was signed by Mr.
E.R. Belen, officer-in-charge. Even the warning in the notice (that if no such
manifestation has been filed after 30 days from receipt the case shall be archived or
dismissed as the case may be) was ambiguous. The failure of the parties to heed the
warning did not constitute disobedience of a lawful order of the court. Consequently,
the order of dismissal could not have the effect of an adjudication upon the merits.
Neither could respondent Bank be considered to have failed to prosecute its action
for an unreasonable length of time, inasmuch as petitioner's Answer was dated
August 17, 1983 and the order of dismissal was dated November 29, 1983. 

Petitioner cites the case of Arellano vs. Court of First Instance of Sorsogon (65
SCRA 45) in support of her stand. However, in said case, the Court upheld the order
of dismissal for failure of respondent Barreta to serve any answer to petitioner
Arellano's interrogatories. The dismissal was based on Section 5 of Rule 29 which
provides that if a party fails to serve answers to interrogatories submitted under Rule
25, after proper service of such interrogatories, the Court on motion and notice may
dismiss the action or render judgment by default. 

39
 The facts are stated in the opinion of the Court.
     Lozano Law Office & Associates for plaintiff-appellant.
     Gregorio A. Palabrica for defendant-appellee.

REYES, J.B.L., J.:p

Appeal from an order of the Court of First Instance of Davao City, Branch II (Judge
Alfredo I. Gonzalez presiding), rendered in its Civil Case No. 4018, dismissing
plaintiff's action for lack of prosecution. 

The case originally started in the City Court of Davao, Branch II, where appellant
therein had filed suit to recover from defendant Emilio Mapayo the sum of P2,800,
representing the unpaid balance of the purchase price of a Gray Marine Engine sold
by the plaintiff to the defendant, plus attorney's fees. The answer admitted the
transaction and the balance due but contended that by reason of hidden defects of the
article sold, the defendant had been forced to spend P2,800 for repairs and labor,
wherefore plaintiff had agreed to waive the balance due on the price of the engine,
and counterclaimed for damages and attorneys' fees. The City Court, after trial,
disallowed the defenses and ordered the defendant to pay plaintiff P2,500.00 and
costs (Record on Appeal, pages 9-16). 

Defendant Mapayo appealed to the Court of First Instance, filing an answer therein
that was a virtual reproduction of his original defenses in the City Court. When, after
several continuances, the case was called for hearing on 13 March 1968, the
defendant, as well as his counsel, failed to appear and the court scheduled the case
for hearing ex parte on the same day. The Court ordered plaintiff to present his
evidence, and from the unchallenged stenographic notes quoted in appellant's brief,
pages 11-14 (Transcript, pages 4-7), the following transpired: 

ATTY. LOZANO: 
No. L-29742. March 29, 1972.
VICENTE Yu, plaintiff-appellant, vs. EMILIO MAPAYO, defendant-appellee. If your Honor please, before I present my
Remedial Law; Judicial admissions, proof not required.—Under section 2 of witness I should like to present the issue because
Rule 129 of the Rules of Court, “admissions made by the parties in the pleadings, or all the allegations of the complaint are
in the course of the trial or other proceedings do not require proof and cannot be admitted and I am going to specify by the
contradicted unless previously shown to have been made through palpable mistake.” answer, your Honor. (Emphasis supplied) 
Same; When plaintiff may insist defendant present his evidence first.—Where
the answer of the defendant admitted the obligation stated in the complaint, although
COURT: 
special defenses were pleaded, the plaintiff has every right to insist that it was for the
defendant to come forward with evidence in support of his special defenses.
The issue is void on the hidden
APPEAL from an order of the Court of First Instance of Davao City, Branch II. defect. 
Gonzales, J.
ATTY. LOZANO: 

40
That is why, if your Honor please, the point if The attorney does not answer
your Honor please, is I do not have to prove that the question of the Court. 
there is a gasoline engine that was taken by the
defendant from the plaintiff for an agreed Answer the question, are you going to present
amount of P6,800.00 because the allegation in evidence OR NOT AND SUBMIT THE CASE
paragraph 1, No. 2 and No. 3, is admitted in the ON THE PLEADINGS. (Capitals supplied) 
answer. 
ATTY. LOZANO: 
In other words, if your Honor please, the
promissory note in the amount of P2,800.00 ... Would you please allow me, your Honor,
(interrupted by court).  because in the answer of the defendant ...
(interrupted by court) 
COURT: 
COURT: 
Wait a minute, are you going
to present evidence or not? I do not need discussion; I
want you to answer the
ATTY. LOZANO:  question of the Court. 

Will you please give me a chance, if your Honor ATTY. LOZANO: 

please, because my purpose is, it will turn out
that it will be the defendant to present evidence I am not going to present my evidence yet
to prove that there is hidden defect. He admitted because this moment I am submitting my
the allegation, he admitted that there is a balance evidence on the pleading until after the
of P2,800.00; it is not paid by him but at the defendant will present evidence and I reserve my
same time he said that there is a hidden defect.  right to present rebuttal evidence. (Emphasis
supplied) 
In other words, if your Honor please, it should be
the defendant to present the evidence ... COURT: 
(interrupted by court). 
Make it of record that the attorney refuses to
COURT:  present evidence either oral or documentary
when required by the Court. 
Are you going to present evidence, substantial,
oral, or not? Answer the question of the Court.  ATTY. LOZANO: 

ATTY. LOZANO:  Motion for reconsideration, if your Honor please,

that is not what I said, if your Honor please, I
If your Honor please, on the complaint, on the manifested that it should be the defendant to
allegation of the complaint, all are admitted by prove first, to present evidence and we reserve
the defendant ... (interrupted by court).  our right to present rebuttal evidence, if your
Honor please. (Emphasis supplied). 
COURT: 
41
 COURT:  Court to disregard its lawful command and a violation of the order
of trial provided in the Rules of Court. 
All right, denied. 
This is an appealed case from the Municipal Court elevated to this
Submit the case for the Court on 18 May 1963 and from that time several postponement
consideration of the Court. were granted at the instance of the parties which cause delay and is
detrimental to the interest of justice.
The court then issued an order on the same day in the following terms (Record on
Appeal, page 24):  IN VIEW WHEREOF, let this case be dismissed for failure to
prosecute on the part of counsel for the plaintiff without
O R D E R  pronouncement as to costs.

Make it of record that the attorney for the plaintiff refuses to
present evidence, either oral or documentary, when required by the
Court. 
Submit the case for the consideration of the Court. 
SO ORDERED.
A motion for reconsideration having been filed by counsel for plaintiff, it was denied
by the court by an order of 21 March, and the case was dismissed for lack of
prosecution (Record on Appeal, pages 34-35), the trial judge reasoning that —  special defenses. Section 2 of Revised Rule of Court 129 plainly supports appellant:
Finding defendant's counterclaim not meritorious, same is also
dismissed.
SO ORDERED.
Further motions to reconsider having proved futile, the plaintiff appealed.
We find for plaintiff-appellant. Since the answer admitted defendant's obligation as
stated in the complaint, albeit special defenses were pleaded, plaintiff had every right
to insist that it was for defendant to come forward with evidence in support of his
 

When the case is called for trial on 19 March 1968, defendants
counsel asked again for another postponement of the trial on the
ground that defendant and his witnesses were not able to come for
lack of transportation, notwithstanding a stern warning by the
Court, per its order of 9 March 1968 that it would not entertain
further motion for continuation of trial. Counsel for the plaintiff
vehemently objected to such motion and insisted in presenting his
evidence which the Court grants inspite of another civil case and
one miscellaneous case which were ready for hearing at the same
time.  continual interrupting of the explanations of counsel, in violation of the rules of
Court ordered the plaintiff to present his evidence. Plaintiff's
counsel refused to comply with said order. Instead of calling his
witnesses, he moved the Court to present them after the defendant
had presented their evidence. The court asked said counsel twice
whether he would present his evidence for the plaintiff, but said
counsel refused to do so and sticked to his demand that he would
introduce his witnesses only in rebuttal. This is dictation to the
Sec. 2. Judicial admissions.— Admissions made by the parties in
the pleadings, or in the course of the trial or other proceedings do
not require proof and can not be contradicted unless previously
shown to have been made through palpable mistake.
While this appeal is not a complaint against the presiding judge, We can not refrain
from observing that the trial judge's despotic and outrageous insistence that plaintiff
should present proof in support of allegations that were not denied but admitted by
the adverse party was totally unwarranted, and was made worse by the trial judge's
Judicial Ethics.
Defendant not having supported his special defenses, the dismissal of the case was
manifestly untenable and contrary to law.
WHEREFORE, the appealed order of dismissal is hereby revoked and set aside, and
the court below is directed to enter judgment in favor of plaintiff and against the
defendant for the sum of P2,800.00, plus attorney's fees which this Court considers

42
just and reasonable (Civil Code, Article 2208, paragraph 11). Costs against
defendant-appellee.
Let a copy of this decision be furnished the Honorable, the Secretary of Justice, for
his information and action.
No. L-20089. December 26, 1964.
BEATRIZ P. WASSMER, plaintiff-appellee, vs.FRANCISCO X. VELEZ,
defendant-appellant.
Damages; Breach of promise to marry; When actionable wrong.—Ordinarily,
a mere breach of promise to marry is not an actionable wrong. But to formally set a
wedding and go through all the necessary preparations and publicity, only to walk
out of it when the matrimony is about to be solemnized, is quite different. This is
palpably and unjustifiably contrary to good customs, for which the erring promissor
must be held answerable in damages in accordance with Article 21 of the New Civil
Code.
649
VOL. 12, DECEMBER 26, 1964  649 
Wassmer vs. Velez
Same; Same; Same; Moral and exemplary damages may be awarded in an
actionable breach of promise suit.—When a breach of promise to marry is actionable
under Article 21 of the Civil Code, moral damages may be awarded under Article
2219(10) of ,the said Code. Exemplary damages may also be awarded under Article
2232 of said Code where it is proven that the defendant clearly acted in a wanton,
reckless and oppressive manner.
Pleading and practice; Affidavits; Affidavit of merits in petition for relief must
state facts constituting defense.—An affidavit of merits supporting a petition for
relief from judgment must state facts constituting a valid defense. Where such an
affidavit merely states conclusions or opinions, it is not valid.
Same; Trial by commissioner; Clerk of court may he validly designated.—The
procedure of designating the clerk of court as commissioner to receive evidence is
sanctioned by Rule 34 (now Rule 33) of the Rules of Court.
Same; Same; Same; Defendant’s consent to designation of commissioner not
necessary where he is in default.—The defendant’s consent to the designation of the
clerk of court as commissioner to receive evidence is not necessary where he was
declared in default and thus had no standing in Court.
APPEAL from a judgment of the Court of First Instance of Rizal (Quezon City
Branch). Caluag, J.
The facts are stated in the opinion of the Court.
     Jalandoni & Jamir for defendant-appellant.
     Samson S. Alcantara for plaintiff-appellee.
BENGZON, J.P., J.:
The facts that culminated in this case started with dreams and hopes, followed by
appropriate planning and serious endeavors, but terminated in frustration and, what is
worse, complete public humiliation. 
Francisco X. Velez and Beatriz P. Wassmer, following their mutual promise of love,
decided to get married and set September 4, 1954 as the big day. On September 2,
1954 Velez left this note for his bride-to-be:
Dear Bet —
Will have to postpone wedding — My mother opposes it. Am
leaving on the Convair today. 
Please do not ask too many people about the reason why — That
would only create a scandal. 
Paquing
But the next day, September 3, he sent her the following telegram:
NOTHING CHANGED REST ASSURED RETURNING VERY
SOON APOLOGIZE MAMA PAPA LOVE .
PAKING
Thereafter Velez did not appear nor was he heard from again. 
Sued by Beatriz for damages, Velez filed no answer and was declared in default.
Plaintiff adduced evidence before the clerk of court as commissioner, and on April
29, 1955, judgment was rendered ordering defendant to pay plaintiff P2,000.00 as
actual damages; P25,000.00 as moral and exemplary damages; P2,500.00 as
attorney's fees; and the costs. 
On June 21, 1955 defendant filed a "petition for relief from orders, judgment and
proceedings and motion for new trial and reconsideration." Plaintiff moved to strike
it cut. But the court, on August 2, 1955, ordered the parties and their attorneys to
appear before it on August 23, 1955 "to explore at this stage of the proceedings the
possibility of arriving at an amicable settlement." It added that should any of them
fail to appear "the petition for relief and the opposition thereto will be deemed
submitted for resolution."
43
On August 23, 1955 defendant failed to appear before court. Instead, on the
following day his counsel filed a motion to defer for two weeks the resolution on
defendants petition for relief. The counsel stated that he would confer with defendant
in Cagayan de Oro City — the latter's residence — on the possibility of an amicable
element. The court granted two weeks counted from August 25, 1955. 
Plaintiff manifested on June 15, 1956 that the two weeks given by the court had
expired on September 8, 1955 but that defendant and his counsel had failed to
appear.  that is contrary to morals, good customs or public policy shall compensate the latter
Another chance for amicable settlement was given by the court in its order of July 6,
1956 calling the parties and their attorneys to appear on July 13, 1956. This time.
however, defendant's counsel informed the court that chances of settling the case
amicably were nil.  wedding was set for September 4, 1954. Invitations were printed and distributed to
On July 20, 1956 the court issued an order denying defendant's aforesaid petition.
Defendant has appealed to this Court. In his petition of June 21, 1955 in the court a
quo defendant alleged excusable negligence as ground to set aside the judgment by
default. Specifically, it was stated that defendant filed no answer in the belief that an
amicable settlement was being negotiated.  was then 28 years old,: simply left a note for plaintiff stating: "Will have to postpone
A petition for relief from judgment on grounds of fraud, accident, mistake or
excusable negligence, must be duly supported by an affidavit of merits stating facts
constituting a valid defense. (Sec. 3, Rule 38, Rules of Court.) Defendant's affidavit
of merits attached to his petition of June 21, 1955 stated: "That he has a good and
valid defense against plaintiff's cause of action, his failure to marry the plaintiff as
scheduled having been due to fortuitous event and/or circumstances beyond his
control." An affidavit of merits like this stating mere conclusions or opinions
instead of facts is not valid. (Cortes vs. Co Bun Kim, L-3926, Oct. 10, 1951;
Vaswani vs. P. Tarrachand Bros., L-15800, December 29, 1960.)
Defendant, however, would contend that the affidavit of merits was in fact
unnecessary, or a mere surplusage, because the judgment sought to be set aside was
null and void, it having been based on evidence adduced before the clerk of court. In
Province of Pangasinan vs. Palisoc, L-16519, October 30, 1962, this Court pointed
out that the procedure of designating the clerk of court as commissioner to receive
evidence is sanctioned by Rule 34 (now Rule 33) of the Rules of Court. Now as to
defendant's consent to said procedure, the same did not have to be obtained for he
was declared in default and thus had no standing in court (Velez vs. Ramas, 40 Phil.
787; Alano vs. Court of First Instance, L-14557, October 30, 1959).  because under Article 2232 of the New Civil Code the condition precedent is that
In support of his "motion for new trial and reconsideration," defendant asserts that
the judgment is contrary to law. The reason given is that "there is no provision of the
Civil Code authorizing" an action for breach of promise to marry. Indeed, our ruling
in Hermosisima vs. Court of Appeals (L-14628, Sept. 30, 1960), as reiterated
in Estopa vs. Biansay (L-14733, Sept. 30, 1960), is that "mere breach of a promise to
marry" is not an actionable wrong. We pointed out that Congress deliberately
eliminated from the draft of the new Civil Code the provisions that would have it so. 
It must not be overlooked, however, that the extent to which acts not contrary to law
may be perpetrated with impunity, is not limitless for Article 21 of said Code
provides that "any person who wilfully causes loss or injury to another in a manner
for the damage."
The record reveals that on August 23, 1954 plaintiff and defendant applied for a
license to contract marriage, which was subsequently issued (Exhs. A, A-1). Their
relatives, friends and acquaintances (Tsn., 5; Exh. C). The bride-to-be's trousseau,
party drsrses and other apparel for the important occasion were purchased (Tsn., 7-
8). Dresses for the maid of honor and the flower girl were prepared. A matrimonial
bed, with accessories, was bought. Bridal showers were given and gifts received
(Tsn., 6; Exh. E). And then, with but two days before the wedding, defendant, who
wedding — My mother opposes it ... " He enplaned to his home city in Mindanao,
and the next day, the day before the wedding, he wired plaintiff: "Nothing changed
rest assured returning soon." But he never returned and was never heard from again. 
Surely this is not a case of mere breach of promise to marry. As stated, mere breach
of promise to marry is not an actionable wrong. But to formally set a wedding and go
through all the above-described preparation and publicity, only to walk out of it
when the matrimony is about to be solemnized, is quite different. This is palpably
and unjustifiably contrary to good customs for which defendant must be held
answerable in damages in accordance with Article 21 aforesaid. 
Defendant urges in his afore-stated petition that the damages awarded were
excessive. No question is raised as to the award of actual damages. What defendant
would really assert hereunder is that the award of moral and exemplary damages, in
the amount of P25,000.00, should be totally eliminated. 
Per express provision of Article 2219 (10) of the New Civil Code, moral damages
are recoverable in the cases mentioned in Article 21 of said Code. As to exemplary
damages, defendant contends that the same could not be adjudged against him
"the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent
manner." The argument is devoid of merit as under the above-narrated circumstances
of this case defendant clearly acted in a "wanton ... , reckless [and] oppressive
manner." This Court's opinion, however, is that considering the particular
44
circumstances of this case, P15,000.00 as moral and exemplary damages is deemed
to be a reasonable award. 

PREMISES CONSIDERED, with the above-indicated modification, the lower

court's judgment is hereby affirmed, with costs. 

No. L-17721. October 16, 1961.

GREGORIO APELARIO, doing business under the style “GREGORIO
TRADING,” plaintiff-appellee, vs. INES CHAVEZ & COMPANY,LTD., doing
business under the style “FIDELITY MOTOR SUPPLY COMPANY,LTD., and
INES CHAVEZ, defendants-appellants.
Judgment on the pleadings; Failure of defendant to raise material issues in the
answer; Case at bar.—The defendants-appellants admitted all the material
allegations of the complaint concerning the existence of the debt and its non-
payment. They pleaded excuse, that they had requested plaintiff to wait because
appellants’ many accounts receivable had not yet been collected, is no defense, for a
debtor can not delay payment due just to suit its convenience, and the creditor is not
an underwriter of his debtor’s business unless so stipulated. The denial of the
averment concerning the stipulated fees of plaintiff’s attorney tendered no genuine
issue, for even without such allegation, it was discretionary in the court to allow
reasonable attorney’s fees by way of damages, if it found it just and equitable to
allow their recovery (Civil Code, Article 2208). Nor does the denial of the
complaint’s averment concerning the fraudulent removal and disposition of
defendant’s property constitute a bar to a judgment on the pleadings since the
defendant neither claimed nor asked for any damages on account of the 
227
VOL. 3, OCTOBER 16, 1961  227 
Apelario vs. Ines Chavez & Company, Ltd. 
issuance and levy of the writ of attachment. Under the circumstances,
judgment on the pleadings was proper.

APPEAL form a judgment of the Court of First Instance of Manila.

The facts are stated in the opinion of the Court.

     Egnacio M. Orendain for plaintiff-appellee.
     Mariano H. de Joya for defendants-appellants.

45
REYES, J.B.L., J.:
Appeal from a judgment on the pleadings rendered by the Court of First Instance of
Manila on June 8, 1959 in its Case No. 39822, and certified by the Court of Appeals
to this Court on the ground that only questions of law are involved.
The record shows that on April 8, 1959, plaintiff Gregorio Apelario filed a complaint
against Ines Chavez & Company, Ltd., a limited partnership, and its general partner,
Ines Chavez. It was therein averred, in substance, that on or about October 28, 1958,
the defendant partnership had purchased on credit from plaintiff ten sets of axle
assemblies for the sum of P2,400.00 (par. 3); that on December 6, 1958, defendant
delivered in payment to the plaintiff two postdated cash checks for P1,200.00 each,
drawn against the Philippine Bank of Commerce (par. 4); that when the checks were
presented for payment, they were dishonored for lack of funds, whereupon the
defendant took back the checks and replaced them with two other checks, also
postdated, for the same amount as before (par. 5); that these checks were also
dishonored (par. 6); that the plaintiff, on February 23, 1959, demanded payment in
cash, but defendant refused to pay (par. 7); that because of such malicious and wilfull
refusal, plaintiff had to engage the services of counsel for an agreed fee of P750.00
(par. 8); that defendant was about to remove and dispose of its properties with intent
to defraud the plaintiff, wherefore a writ of attachment became necessary (par. 9);
and prayer was made for judgment in favor of plaintiff and against the defendant for
the sum of P2,400.00, with legal interest from the filing of the complaint, and for
P750.00 attorney's fees, with expenses and costs. Plaintiff also moved and duly
obtained a writ of attachment.
Defendants obtained the lifting of the attachment by filing a counterbond on April
14, 1959; and on May 7, 1959, they filed an answer admitting the allegations of
paragraphs 1 and 6 of the complaint, admitting that plaintiff had demanded payment
of P2,400, but pleaded that —
defendants could not pay the plaintiff, because they have so many accounts
receivable which have not yet been paid to them, of which fact the
defendant was duly informed by the plaintiff and thereby requested to wait a
while. (R. App. p. 27)
Defendants further averred having no knowledge or information of the allegations of
paragraph 8 of the complaint concerning the attorneys' fees; denied having
performed any act of removal or disposal of its property, branding plaintiff's
allegations in paragraph 9 to be false and malicious; and prayed for dismissal of the
complaint.
Upon motion of the plaintiff, and over the objection of defendants, the trial court
rendered judgment on the pleadings, sentencing defendants to pay P2,400, plus legal
interest from the filing of the complaint; and P500 attorney's fees.
Defendants appealed, and now claim that it was error for the lower court to have
rendered judgment on the pleadings, because the answer raised material issues.
We find no merit in the appeal. As pointed out in the judgment complained of the
defendants-appellants had admitted all the material allegations of the complaint
concerning the existence of the debt and its non-payment. The pleaded excuse, that
they had requested plaintiff to wait because appellants' many accounts receivable had
not yet been collected, is clearly no defense, for a debtor can not delay payment due
just to suit its convenience, and the creditor is not an underwriter of his debtor's
business unless so stipulated.
The denial of the averment concerning the stipulated fees of plaintiff's attorney
tendered no genuine issue, for even without such allegations, it was discretionary in
the court to allow reasonable attorneys' fees by way of damages, if it found just and
equitable to allow their recovery (Civ. Code, Art. 2208). In this case, allowance of
such fees was justified since defendant admitted having issued to the creditor checks
without funds, not once but twice. It is well to note the P750 attorney's fees claimed
by plaintiff were reduced to P500 only.
Nor does the denial of the complaint's averments concerning the fraudulent removal
and disposition of defendant's property constitute a bar to a judgment on the
pleadings, since the defendant neither claimed nor asked for any damages on account
of the issuance and levy of the writ of attachment.
WHEREFORE, the appealed judgment of the Court of First Instance is affirmed.
Costs against appellants.
46
 CAPITOL MOTORS CORPORATIONS, plaintiff-appellee, vs. NEMESIO I.
YABUT, defendant-appellant
Remedial law; Civil actions; Allegations in pleadings; Specific denial; Modes
of specific denial.—Section 10, Rule 8 of the Revised Rules of Court recognizes
three modes of specific denial, namely: (1) by specifying each material allegation of
fact in the complaint the truth of which the defendant does not admit, and, whenever
practicable, setting forth the substance of the matters which he will rely upon to
support his denial or (2) by specifying so much of an averment in the complaint as is
true and material and denying only the remainder or (3) by stating that the defendant
is without knowledge or information sufficient to form a belief as to the truth of a
material averment in the complaint, which has the effect of a denial
Same; Same; Same; Same; When averment that defendant is without
knowledge or information sufficient to form a belief as to the truth of a material
averment in the complaint, does not constitute a specific denial under Sec. 10, Rule
8.—The rule authorizing an answer to the effect that the defendant has no knowledge
or information sufficient to form a belief as to the truth of an averment and giving
such answer the affect of a denial, does not apply where the fact as to which want of
knowledge is asserted, is so plainly and necessarily within the defendant’s
knowledge that his averment of ignorance must be palpably untrue.
Same; Same; Same; Same; Same; Where action is founded upon a written
instrument attached to the complaint.—Where the suit is one where a copy of the
promissory note sued upon was attached to the complaint, it would be easy for the
defendant to specifically allege in his answer whether or not he had executed the
alleged instrument. Whether such fact was or was not true could not be unknown to
the defendant.
Same; Same; Same; Same; Mere allegation of ignorance of facts alleged in
the complaint is insufficient to raise an issue.—A mere allegation of ignorance of the
facts alleged in the complaint, is insufficient to raise an issue; the defendant must
aver positively or state how it is that he is ignorant of the facts so alleged.
2
2  SUPREME COURT REPORTS ANNOTATED 
Capitol Motors Corporations vs. Yabut
Same; Same; Same; Action based on document; Where the genuineness and
due execution of document is deemed admitted -Where the action is founded upon a
written instrument atached to the complaint, and the defendant failed to deny under
ath the genuineness and due execution of the instrument; the same are deemed
admitted.
Same; Same; Judgment on the pleadings; Effect of failure to oppose motion
for judgment on the pleadings filed by plaintiff.—Where the defendant neither
opposed the motion for judgment on the pleadings filed by the plaintiff nor filed a
motion for reconsideration of the order of the court which deemed the case submitted
for decision on the pleadings, or of the decision of the same court which rendered
judgment based on the allegations and prayer of the complaint, the defendant is
No. L-28140. March 19, 1970.

47
deemed to have admitted the allegations of the complaint, so that there is no
necessity for the plaintiff to submit evidence of his claim.
APPEAL from a judgment of the Court of First Instance of Rizal.
The facts are stated in the opinion of the Court.
     Jose A. David, Jr. for plaintiff-appellee.
     R. Correa for defendant-appellant
VILLAMOR, J.:
Appeal on a question of law from the judgment of tbe Court of First Instance of Rizal
in its Civil Case No. Q-9869.
On March 1, 1966, Capitol Motors Corporations filed a complaint against
Nemesio I. Yabut. It was therein averred that on April 24, 1965, the defendant
executed in favor of the plaintiff a promissory note (copy of which was attached to
the complaint) for the sum of P30,134.25, payable in eighteen (18) equal monthly
installments with interest at 12% per annum, the first installment to become due on
June 10, 1965, that it was stipulated in the promissory note that should the defendant
fail to pay two (2) successive installments, the principal sum remain ing unpaid
would immediately become due and demandable and the defendant would, by way of
attorney’s fees and 
3
VOL. 32, MARCH 19, 1970  3  complaint, which has the effect of a denial, and he has adopted the third mode of
Capitol Motors Corporations vs. Yabut
costs of collection, be obligated to the plaintiff for an additional sum equivalent to
25% of the principal and interest due; that as of February 23, 1966, the sum
remaining unpaid on the promissory note was P30,754.79, including accrued interest;
that the defendant defaulted in the payment of two (2) successive installments, and
likewise failed to pay the interest due on the promissory note; and that m spite of
demands by the plaintiff, the defendant failed and refused to pay the said principal
sum and interest due. Prayer was made that the defendant be ordered to pay the
plaintiff the sum of P30,754.79, as well as the interest due thereon from February 23,
1966, and an additional sum equivalent to 25% of the amount due, plus costs.
On April 27, 1966, and within the reglementary period, the defendant, through
his counsel, filed an answer which reads:
“DEFENDANT through counsel alleges:
1. “1.Paragraph 1 of the complaint is admitted.
2. “2.Paragraphs 2, 3, 4, 5, 6 and 7 of the complaint are specifically denied for
lack of knowledge sufficient to form a belief as to the truth thereof.
“WHEREFORE, it is respectfully prayed that the Complaint be dismissed with
costs against the plaintiff.”
On June 16, 1966, the plaintiff filed a motion for judgment on the pleadings, on the
ground that the defendant, not having set forth in his answer the substance of the
matters relied upon by him to support his denial, had failed to deny specifically the
material allegations of fee complaint, hence, must be deemed to have admitted them.
The defendant did not file an opposition to the motion. On September 13, 1966, after
hearing on the motion, the court issued an order granting the said motion and
considering the case submitted for decision on the basis of the pleadings; and on
January 9, 1967, the court rendered judgment granting in toto the plaintiffs prayer in
its complaint. 
4
4  SUPREME COURT REPORTS ANNOTATED 
Capitol Motors Corporations vs. Yabut
In this appeal, defendant-appellant contends that the court a quo erred in considering
him as having failed to deny specifically the material allegations of the complaint,
and, consequently, in tlseidiog the case on the basis of the pleadings. Citing Moran,
Comment on the Rules of Court, Vol I, 1963 EdM p. 281, he argues that since Section
10, Rule 8 of the Revised Rules of Court, recognises three (3) modes of specific
denial, namely: (1) by specifying each material allegation of fact in the complaint the
truth of which the defendant does not admit, and, whenever practicable, setting forth
the substance of the matters which he will rely upon to support his denial or (2) by
specifying so much of an averment in the complaint as is true and material and
denying only the remainder or (3) by stating that the defendant is without knowledge
or information sufficient to form a belief as to the truth of a material averment in the
specific denial, his answer tendered an issue, and, consequently, the court a
quo could not render a valid judgment on the pleadings.
This appeal is without merit.
We agree with defendant-appellant that one of the modes of specific denial
contemplated in Section 10, Rule 8, is a denial by stating that the defendant is
without knowledge or information sufficient to form a belief as to the truth of a
material averment in the complaint. The question, however, is whether paragraph 2
of defendant-appellant’s answer constitutes a specific denial under the said rule. We
do not think so. In Warner Barnes & Co., Ltd. vs. Reyes, et al, G.R. No. L-9531,
May 14, 1958 (103 Phil, 662), this Court said that the rule authorizing an answer to
the effect that the defendant has no knowledge or information sufficient to form a
belief as to the truth of an averment smd giving such answer the effect of a denial,
does not apply where the fact as to which want of knowledge is asserted, is so plainly
and necessarily within the defendant’s knowledge that his 
5
VOL. 32, MARCH 19, 1970  5 
Capitol Motors Corporations vs. Yabut
averment of ignorance must be palpably untrue. In said case the suit was one for
foreclosure of mortgage, and a copy of the deed of mortgage was attached to the
complaint; thus, according to this Court, it would have been easy for the defendants
48
to specifically allege in their answer whether or not they had executed the alleged
mortgage. The same thing can be said in the presecat case, where a copy of the
promissory note sued upon was attached to the complaint. The doctrine in Warner
Barnes & Co., Ltd. was reiterated in J. P. Juan & Sons, Inc. vs. Lianga Industries,
Inc., G.K. No. L-25137, July 28, 1969 (28 SCRA 807). And in Sy-quia vs.
Marsman, G.R. No. L-23426, March 1, 1968 (22 SCRA 927), this Court said:
“With regard to the plea of lack of knowledge or information set up in paragraph 8 of
the answer, this Court’s decision in Warner Barnes vs. Reyes, 103 Phil. 662, 665, is
authority for the proposition that this form of denial must be availed of with sincerity
and good faith, not for the purpose of confusing the other party, nor for purposes of
delay. Yet, so lacking in sincerity and good faith is this part of the answer that
defendants-appellants go to the limit of denying knowledge or information as to
whether they (defendants) were in the premises (Marsman Bldg.) on January 4, 1961,
as averred in paragraph 4 of the complaint. Yet whether such a fact was or was not
true cenld not be untaown to these defendants.”
In National Marketing Corporation vs. De Castro, 106 Phil. 803 (1959), this Court
held:
“Furthermore, in his answer to the appellee’s complaint, he merely alleged that ‘he
has no knowledge or information sufficient to form a belief as to the truth of the
matters contained in paragraphs 3, 4, 5 and 6 so much so that he denies specifically
said allegations.’ A denial is not specific simply because it is so qualified, (Sections
6 and 7, Rule 9; El Hogar Filipino vs. Santos Investments, Inc., 74 Phil. 79; Baetamo
vs. Amador, 74 Phil. 735; Dacanay vs. Lucero, 76 Phil. 139; Lagrimas vs.
Lagrimas, 95 Phil. 113). Material averments in a complaint, other than those as to the
amount of damage, are deemed admitted when not specifically denied. (Section 8,
Rule 9,) The court may render judgment upon the pleadings if material averments in
the complaint are admitted. (Section 10, Rule 35; Baetamo vs.
Amador, supra, Lichauco vs. Guash, 76 Phil 5; Lati vs. Valmores, G.R. No. L-6877,
30 March 1954.)”
6 PREMISES CONSIDERED, the judgment appealed from is affirmed, with costs
6  SUPREME COURT REPORTS ANNOTATED       Concepcion,
Capitol Motors Corporations vs. Yabut
It becomes evident from all the above doctrines that a mere allegation of ignorance
of the facts alleged in the complaint, is insufficient to raise an issue; the defendant
must aver positively or state how it is that he is ignorant of the facts so alleged.
(Francisco, The Revised Rules of Court in the Philippines, Vol. I, p. 417,
citing Wood vs. Staniels, 3 Code Rep. 152 and Vassalt vs. Austin, 32 Cal. 597.)
Thus, in at least two (2) cases where this Court ruled that judgment on the
pleadings was not proper, it will be seen that the reason was that in each case the
defendants did something more than merely alleging lack of knowledge or
information sufficient to form a belief. In Arrojo vs. Caldoza, et al., G.R. No. L-
17454, July 31, 1963 (8 SCRA 547), the defendants, in their answer to the complaint
for recovery of possession of a parcel of land, did not merely allege that they had no
knowledge or information sufficient to form a belief as to the truth of the material
allegations in the complaint, but added the following: “The truth of the matter is that
the defendants have not occupied or taken any property belonging to the plaintiff.
They took possession said ownership only of the land belonging to them, which
properties were possessed and owned originally by their predecessors-in-interest,
who were the parents of the defendants x x x.” In Benavides vs. Alabastro, G.R. No.
L-19762, December 23, 1964 (12 SCRA 553), the defendant’s answer did not only
deny the material allegations of the complaint but also set up certain special and
affirmative defenses the nature of which called for presentation of evidence.
There are two other reasons why the present appeal must fail. First. The present
action is founded upon a written instrument attached to the complaint, but defendant-
appellant failed to deny under oath the genuineness and due execution of the
instrument; hence, the same are deemed admitted. (Section 8, Rule 8 of the Revised
Rules of Court; Songo vs. Sellner, 37 Phil. 254; Philippine Commercial & Industrial
Bank vs. ELRO Development 
7
VOL. 32, MARCH 20, 1970  7 
Ilaya Textile Market, Inc. vs. Felix Ocampo, Inc.
Corporation, et al., G.R. No. L-30830, August 22, 1969 [29 SCRA 38]; J. P. Juan &
Sons, Inc. vs. Lianga Industries, Inc, supra.) Second. Defendant-appellant did not
oppose the motion for judgment on the pleadings filed by plaintiff-appellee; neither
has he filed a motion for reconsideration of the order of September 13, 1966, which
deemed the case submitted for decision on the pleadings, or of the decision rendered
on January 9, 1967. In Santiago vs. Basilan Lumber Company, G.R. No, L-15532,
October 31, 1963 (9 SCRA 349), this Court said:
“It appears that when the plaintiff moved to have the case decided on the pleadings,
the defendant interposed no objection and has practically assented thereto. The
defendant, therefore, is deemed to have admitted the allegations of the complaint, so
that there was no necessity for the plaintiff to submit evidence of his claim.”
against defendant-appellant.
C.J., Reyes,
J.B.L., Dizon, Makalintal,Zaldivar, Castro, Fernando, Teehankee and Barredo,
JJ.,concur.
Judgment affirmed.
Notes.—(a) Lack of sufficient knowledge, when sufficient and when insufficient
as denial.—An allegation in an answer that defendant lacks “definite idea or
knowledge of the exact amount yet owing and due the plaintiff,” while not a special
defense, may be interpreted as a denial of knowledge and information sufficient to
form a belief, precluding judgment on the pleadings but not the granting of the
motion for summary judgment in favor of plaintiff supported by adequate proofs as
to the amount due (Philippine Bank of Communication vs. Guitar Match Mfg. Co., L-
9139, Sept 27, 1957).
49

[No. L-10884. 31 March 1959]
PHILIPPINE NATIONAL BANK, plaintiff and appellee, vs. PHILIPPINE
LEATHER Co. INC., ET AL., defendants and appellants.
PLEADING AND PRACTICE; SUMMARY JUDGMENT; WHEN
MOVING PARTY ENTERED TO JUDGMENT; CASE AT BAR.—In their
answer, the defendants admit the plaintiff's averments except as to the
correctness of the amounts due, the correctness of which they were still checking,
and for that reason lacking sufficient knowledge or information to form a belief
as to the truth and veracity of the amounts due, they deny the amounts claimed
by the plaintiff to be due them. Held: The defendants' answer did not tender a
genuine issue. Hence, plaintiff is entitled to summary judgment.
APPEAL from a judgment of the Court of First Instance of Manila. Macadaeg, J.
The facts are stated in the opinion of the Court.
Castaño & Ampil for appellants.
Ramon B. de los Reyes for appellee.
PADILLA, J.:
In its complaint filed in the Court of First Instance of Manila, the plaintiff alleges
that on 1 September 1952 the defendant Philippine Leather Co., Inc. applied for a
commercial letter of credit in the sum of $14,814.80, U. S. currency, under the terms
and conditions set forth in an application filed by the defendants in favor of the
Turner Tanning Machinery Co. of Peabody, Massachusetts, U. S. A. to cover the full
invoice value of certain machineries and their accessories; that on 3 October 1952
the plaintiff approved the application "subject to 30% deposit and the joint and
several signatures of Mr. Isidoro Tinoco and Mrs. Soledad L. Basa" which conditions
were complied with; that on 8 October 1952, the plaintiff issued Letter  merchandise imported by the defendants under Letter of Credit No. 53753; and the
401
VOL. 105, MARCH 31, 1959  401  a writ of attachment be issued commanding the Sheriff of the City of Manila to levy
PNB vs. Phil. Leather Co., Inc., et al.
of Credit No. 51469 in favor of the Turner Tanning Machinery Company; that on 15
November 1952 the Turner Tanning Machinery Co., drew upon the letter of credit
the sum of $14,549.17, U. S. currency; that upon arrival in the Philippines of the
machineries and their accessories imported by the defendants, the plaintiff released
them to the defendants under a trust receipt, that on 23 January 1953 the plaintiff
presented to the defendants for payment the draft drawn by the Turner Tanning
Machinery Co., upon Letter of Credit No. 51469 which was accepted by them; that
after the draft had matured on 23 April 1953 the plaintiff made numerous demands
upon the defendants to pay the amount of the draft and the charges due thereon but
the defendants failed and refused to pay; and that as of 15 October 1953, the
outstanding balance of the defendants on the draft is P22,787.79, Philippine
currency, plus interest thereon at the rate of P4.89135 daily until fully paid. It alleges
further that on 30 January 1953 the defendant Philippine Leather Co., Inc., applied
for a commercial letter of credit in the sum of $2,587.50, U. S. currency, under the
terms and conditions set forth in an application filed by the defendants in favor of
Bay State Chemical Co., of Boston, Massachusetts, U. S. A., to pay for the
importation of color dye; that the plaintiff approved the application "subject to 30%
deposit and the joint and several signatures of Mr. Isidoro Tinoco and Mrs. Soledad
L. Basa," which conditions were complied with; that thereafter the plaintiff issued
Letter of Credit No. 53753 in favor of the Bay State Chemical Co., that on 12 March
1953 the Bay State Chemical Co., drew upon the letter of credit the sum of
$2,482.40, U. S. currency; that the draft drawn by the Bay State Chemical Co., was
presented by the plaintiff to the defendants for payment; that the defendants failed
and refused to pay the amount of the draft and the charges due thereon; that because
of the failure and refusal of the defendants to pay their obligation, the plaintiff
delivered the documents of the shipment to the 
402
402  PHILIPPINE REPORTS ANNOTATED 
PNB vs. Phil. Leather Co., Inc., et al.
Luzon Brokerage Co., and requested it to claim and store the shipment in its bonded
warehouse, for which service and storage the defendants are liable to the Luzon
Brokerage Co.; that as of 15 October 1953; the outstanding balance of the defendants
on the draft is P4,503.05, Philippine currency, plus interest thereon at the rate of
P.083569 daily until f ully paid.
The plaintiff prays that after hearing judgment be rendered ordering the
defendants to pay it the sum of P22,787.79, with daily interest thereon at the rate of
P4.89135 from 15 October 1953 until fully paid; 10% of the said amount as
attorney's fee; P4,503.05, with daily interest thereon at the rate of P0.83569 from 15
October 1953 until fully paid; the amount of storage and other charges that the Luzon
Brokerage Co., would charge the plaintiff for the handling and storage of the
costs of the suit. The plaintiff further prays that pending hearing and final judgment,
upon attachment on the properties of the defendants as security for the satisfaction of
any judgment that it may secure against them.
In their answer filed on 28 December 1953 the defendants admit the plaintiff's
averments except as to the correctness of the amounts due on the two drafts, the
50
correctness of which they were still checking, and for that reason lacking sufficient
knowledge or information to form a belief as to the truth and veracity of the amounts
due on the two drafts, they deny the amounts claimed by the plaintiff to be due f rom
them.
On 25 June 1954 the plaintiff filed .a motion f or summary judgment on the
ground that since the defendants had admitted the material averments of its
complaint except as to the correctness of the amounts due, the defendants' answer did
not tender a genuine issue. The plaintiff attached to its motion an affidavit subscribed
and sworn to by Ceferino Saavedra, Manager of the Special Assets Department  deny the allegations therein stated;
403
VOL. 105, MARCH 31, 1959  403 
PNB vs. Phil. Leather Co., Inc., et al.
of the plaintiff, in charge of all outstanding accounts of its debtors, stating the
payments made by the defendants on their account and the exact total amount due f
rom them.
On 7 October 1954 the Court granted the plaintiff s motion and rendered
judgment ordering the defendants, jointly and severally, to pay—
* * * the plaintiff in the first cause of action, the amount of P22,787.79, with a daily
interest of P4.89135 from October 15, 1953 up to full payment thereof; and 10% of
the amount due for attorney's fees. On the second cause of action, defendants shall
pay, jointly and severally, the sum of P4,503.05, with a daily interest of P0.83569
from October 15, 1953 until full payment thereof.
Defendants shall also pay the costs.
The defendants appealed to the Court of Appeals. The latter certified the case to
this Court for the reason that only questions of law are raised.
Rule 36 provides:
Section 1. Summary judgment for claimant.—A party seeking to recover upon a
claim, counterclaim, or crossclaim or to obtain a declaratory relief may, at any time
after the pleading in answer thereto has been served, move with affidavits for a
summary judgment in his favor upon all or any part thereof.
SEC. 3. Motion and proceedings thereon.—The motion shall be served at least
ten days before the time specified for the hearing. The adverse party prior to the day
of hearing may serve opposing affidavits. The judgment sought shall be rendered
forthwith if the pleadings, depositions, and admissions or file, together with the
affidavits, show that, except as to the amount of damages, there is no genuine issue
as to any of the material fact and that the moving party is entitled to a judgment as a
matter of law.
SEC. 5. Form of affidavits.—Supporting and opposing affidavits shall be made
on personal knowledge, shall set forth such facts as would be admissible in evidence,
and shall show affirmatively that the affiant is competent to testify to the matters
stated therein. Sworn or certified copies of all papers of parts thereof referred to in an
affidavit shall be attached thereto or served therewith.
The defendants' answer that as to the first cause of action they—
* * * are still checking on the correctness of the alleged balance outstanding against
them and in favor of the plaintiff; consequently,
404
404  PHILIPPINE REPORTS ANNOTATED 
Bachoco vs. Esperancilla, et al.
for lack of knowledge or information sufficient to form a beliefas to the truth and
veracity of the averments embodied in paragraph7 thereof, they hereby specifically
and that as to the second cause of action they—
* * * are checking on the veracity and correctness of the balance allegedly
outstanding in favor of the plaintiff manifested in paragraph 6 of the same, they, by
virtue thereof, specifically deny it for lack of knowledge and belief as to the truth of
the allegations embodied in the aforestated paragraph.
does not tender a genuine issue. In fact they admit that they are indebted to the
plaintiff. As the affidavit subscribed and sworn to by the Manager of the Special
Assets Department of the plaintiff, in charge of all outstanding accounts of its
debtors, attached to the motion for summary judgment, furnishes the Court with the
payments made by the defendants on their account and the amount due from them,
which they failed to oppose by counter affidavits, the plaintiff is entitled to summary
judgment.1
The judgment appealed from is affirmed, with costs against the appellants.
to the plaintiff. As the affidavit subscribed and sworn to by the Manager of the
Special Assets Department of the plaintiff, in charge of all outstanding accounts of
its debtors, attached to the motion f or summary judgment, furnishes the Court with
the payments made by the defendants on their account and the amount due from
them, which they failed to oppose by counter affidavits, the plaintiff is entitled to
summary judgment.1
The judgment appealed from is affirmed, with costs against the appellants.
Parás, C. J., Bengzon,  Montemayor,  Reyes  A.,  Bautista Angelo,  Labrador,  Concepción,  Reyes  J. B. L., and Endencia JJ., concur.
Judgment affirmed.
G.R. No. 49668. November 14, 1989.*
POLICARPIO, LUCIO, JULIAN, CATALINO, BONIFACIO, CONRADA,
DOMINGO, PAQUITA, AND LILIA, ALL SURNAMED GALICIA,
petitioners, vs. THE HON. WENCESLAO M. POLO, in his capacity as
Presiding Judge, CFI, Branch V, Samar (Calbayog City), ZOSIMA PALAJOS,
51
TITING LISTOJAS, ALFREDO PALAJOS, MANUELITO ROSIALDA,
respondents.
Civil Procedure; Summary Judgment; Summary judgment not proper where
pleadings tender vital issues the resolution of which call for the presentation of
evidence.—The Rules of Court authorizes the rendition of summary judgment if the
pleadings, depositions and admissions on file together with the affidavits, show that,
except as to the amount of damages, there is no issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law (Sec. 3, Rule 34).
Conversely, summary judgment is not proper where the pleadings tender vital issues
the resolution of which call for the presentation of evidence (Villanueva v.
NAMARCO, 28 SCRA 729 [1969]; Guevarra, et al. v. CA, et al., 124 SCRA 297
[1983]).
Same; Appeals, Issues not raised in the lower court cannot be raised on
appeal.—Neither can the issue of the validity of the execution sale help petitioners’
cause. Well-settled in this jurisdiction, is the rule that issues not raised and/or
ventilated in the lower court cannot be raised for the first time on appeal (Rebodos v.
WCC, 6 SCRA 717 [1962]; DBP v. CA, 116 SCRA 636 and a long line of cases). A
review of the records of the case shows that petitioners failed to directly assail and
raise as issue, the validity of the aforementioned auction sale in their complaint. It
was only when the respondent judge noted such omission in his decision dismissing
Civil Case No. 758-CC dated August 11, 1978 (Rollo, p. 48-53) that petitioners later
filed a separate action for Annulment of Auction Sale and Damages on October 4,
1978 (Civil Case No. 837-CC; Rollo, p. 31-35). The validity of the execution sale not
having been raised and/or litigated in the case subject of the present appeal, the
Court, at this stage, cannot pass upon the same for the purpose of determining the
propriety of the summary judgment. Objections to the execution sale cannot be
considered in the Supreme Court inasmuch as it was not raised in the lower court
(Ramiro v.  alleged that defendants (petitioners herein) forcibly entered the northeastern portion
________________
*
 THIRD DIVISION.
372
372  SUPREME COURT REPORTS ANNOTATED  defendants nor counsel appeared. Accordingly, the court granted a trial ex parte on
Galicia vs. Polo
Graño, 54 Phil. 744 [1930]; citing Tan Machan v. de la Trinidad, 3 Phil. 684
[1904] and U.S. v. Inductivo, 40 Phil. 84 [1919]).
PETITION for certiorari to review the judgment of the then Court of First Instance of
Samar, Br. V. Polo, J.
The facts are stated in the opinion of the Court.
     Mateo M. Leanda for petitioners.
     Zosimo Santiago for private respondents.
BIDIN, J.:
This is a petition for review on certiorari seeking to set aside the summary judgment
entered by the then Court of First Instance of Samar, Br. V in Civil Case No. 758-CC
entitled, "Policarpio, Lucio, Julian, Catalino, Bonifacio, Conrada, Domingo,
Paquita and Lilia, all surnamed Galicia v. Zosima Palajos, Titing Listojas, Alfredo
Palajos and Manuelito Rosialda" and to order the trial court to try the above-cited
case on the merits. 
The facts are undisputed.
On December 15, 1973. a complaint for forcible entry (Civil Case No. 56)
entitled "Amancio Palajos v. Policarpio, Perfecto, Victorio Julian and Eduardo, all
surnamed Galicia," was filed in the Municipal Court of Almagro, Samar, alleging
that Amancio Palajos is the owner and in actual possession of a parcel of land
located at Bacjao, Almagro, Samar, more particularly described as follows:
A parcel of land with an area of about 4-88-00 hectares, more or
less, assessed at P 360.00 as per Tax Declaration No. 8547 in the
name of Juan Palajos, it is, however, 14.2860 hectares as per
approved survey plan, the boundaries of which are: N — Pedro
Galicia and the Poblacion of Barrio Bacjao; S — Emilio Carpon,
Magno Suico and Teresa Subito; and W — Bernardo Ballarante
and Cenon S. Aguilar.
which he acquired by way of donation from his father, Juan Palajos. It is further
of the said property covering an area of about 1 1/2 hectares. 
The trial of the case was set several times but was postponed at the instance of
defendants (petitioners herein). For the fifth time, i.e., on July 19, 1974, neither the
motion of plaintiffs counsel (Rollo, p. 24). 
Subsequently, the municipal trial court rendered judgment against defendants
(petitioners herein), the dispositive portion of which reads:
WHEREFORE, this Court hereby renders judgment ordering
defendants Policarpio Galicia, Perfecto Galicia, Victorio Galicia,
Julian Galicia and Eduarda Galicia to restore to plaintiff Amancio
Palajos the portion of land described in par. 4 of the plaintiffs
complaint consisting of one and one-half hectares and which is the
northeastern portion of land under Tax Dec. No. 8547 as described
52
 in paragraph 2 thereof, ordering the defendants to pay to plaintiff a
monthly rental in the amount of FIFTY PESOS (P 50.00) on the
premises in question for its use and occupation from September,
1973, up to the time when said premises is finally restored to the
plaintiff, and to pay the costs.  take possession of the land described in the complaint by virtue of the decision and
SO ORDERED.
On September 28, 1974, defendants filed a motion for reconsideration and to grant a
new trial but was denied in an Order dated October 24, 1974 (Rollo, p. 28).  sale in favor of respondents' predecessor-in-interest, Juan Palajos.
On November 12, 1974, defendants filed a notice of appeal but the same was
likewise denied by the trial court on the ground that it was filed beyond the
reglementary period of fifteen (15) days to perfect an appeal.  time within which to file a motion for summary judgment which was granted by
For failure of the defendants to pay the rentals adjudged in the forcible entry case
(CC No. 56), a writ of execution was issued and after levy, the deputy sheriff of
Calbayog City, on August 4, 1976, sold at public auction the real property owned by
petitioners' deceased father adjoining the land subject of the forcible entry case more
particularly described as follows:
A piece of real estate consisting of coconut and cornland situated at
Bo. Bacjao, Almagro, Samar, Philippines, bounded on the
NORTH, by Isabelo Palajos; on the SOUTH, by Narciso Pajalino;
and on the WEST, by Seashore, containing an area of 2-60-00
hectares, more or less assessed at P180.00, under Tax Declaration
No. 12048, in the name of Pedro Galicia (deceased); (Rollo, p. 30).
On October 10, 1977, or over 14 months after the execution sale, petitioners filed a
complaint for Ownership and Damages against herein respondents in the then Court
of First Instance of Samar, 13th Judicial District, Br. V, docketed as Civil Case No.
758-CC, alleging that they are co-owners of a certain parcel of agricultural land
(subject of the auction sale) which they inherited from their deceased father, Pedro
Galicia, more particularly described as follows:
A parcel of coconut and corn land located at Bacjao, Almagro,
Samar, Philippines, with an area of 26,000 sq. m. and bounded on
the NORTH, by Isabelo Palajos; SOUTH, by Narciso Pauline;
EAST, by Benedicto Paulino and WEST, by Seashore covered by
Tax Declaration No. 12048 in the name of Pedro Galicia.
The complaint further alleged that pursuant to Civil Case No. 56 (forcible entry
case), respondents were able to take possession of the land in question as said case
was heard ex-parte; and that a decision was rendered in respondents' favor and said
decision was executed sometime in 1976 (Rollo, p. 36-37).
In their Answer, respondents (defendants below) countered that they were able to
later, execution of the decision in the forcible entry case, which, by petitioners'
(plaintiffs below) averment in their complaint is an admission of an existing
judgment that would constitute res judicata; that they are the lawful owners of the
disputed land the same having been subjected to levy and execution in 1975 thru a
 
The issues having been enjoined, the case was set for pre-trial by respondent judge
Hon. Wenceslao M. Polo. At the pre-trial, counsel for private respondents moved for
respondent judge in his order dated June 28, 1978. 
Defendants' (private respondents herein) motion for summary judgment was filed on
July 7, 1978 (Rollo, p. 43) alleging that no genuine issue exists in the case at bar
after the pre-trial was conducted and admission of facts were had (Rollo, p. 44),
while plaintiffs (petitioners herein) filed their opposition to the motion for summary
judgment dated July 17, 1978 alleging among others, that genuine issues exist
(Rollo, pp. 45-47). 
On August 11, 1978, the court a quo rendered the assailed summary judgment
dismissing petitioners' complaint (Rollo, p. 48-53), the pertinent portion of which
reads:
As demonstrated by the parties, there is no question that the land in
dispute is that parcel described in paragraph 3 of the complaint, a
portion of which was a subject in a forcible entry case before the
Municipal Trial Court of Almagro Samar (Exhibit 1, 2 and 3) with
the defendants now as sucessors-in-interest of the plaintiff, and
most of the herein plaintiffs as defendants. 
The pleadings also show that upon the death of the primitive
owner, Pedro Galicia, the plaintiffs as children and grandchildren
possessed and owned this land pro-indiviso, until the possession of
said portion was transferred to the defendants when the decision in
that forcible entry case was executed in 1976 (Exhibit 7) such
being the case, therefore, with respect to this portion of the land in
dispute, the possession is settled, which would constitute as a bar
to this action.
xxx xxx xxx
53
 With respect to the other portion of the land in dispute, the
plaintiffs admit that possession was transferred to the defendant by
virtue of a sale executed by the sheriff; the one year period having
elapsed without exercising their right of redemption, as a result a
final deed of sale was issued. The legality of the sale not having
been assailed by them, for all intents and purposes, ownership on
this land have been vested on the defendants as heirs of Juan
Palajos.  Sheriff was null and void and would have merited a trial on the merits. Moreover, it
WHEREFORE, premises above considered, judgment is hereby
rendered ordering the dismissal of the plaintiffs' complaint, without
pronouncement as to cost."
A motion to re-open the case for trial on the merits was filed by plaintiffs but was
denied in an order dated November 27, 1978 (Rollo, p. 62). Hence, this instant
petition.  The Rules of Court authorizes the rendition of summary judgment if the pleadings,
Petitioners contend that the trial court erred when it decided Civil Case No. 758-CC
by summary judgment when there are several genuine issues involved therein which
require a trial of these issues on the merits, such as:
(A) WAS THE EXECUTION SALE CONDUCTED BY DEPUTY
PROVINCIAL SHERIFF EUFROCINO T. OLIFERNES OF LOT
NO. 1363 OF THE LATE PEDRO GALICIA, PETITIONERS'
FATHER, VALID TO CONFER UPON THE DEFENDANTS IN
SAID CASE A JUST TITLE OVER SAID REALTY?
(B) WERE THE UNDIVIDED SHARES AND
PARTICIPATIONS OF JULIAN GALICIA AND CATALINO
GALICIA WHO WERE TWO OF THE LEGITIMATE
CHILDREN OF PEDRO GALICIA NOT IMPLEADED AS
PARTIES IN CIVIL CASE NO. 56 IN THE MUNICIPAL
COURT OF ALMAGRO OVER LOT NO. 1363, AFFECTED BY
THAT EXECUTION SALE?
(C) WERE THE UNDIVIDED SHARES AND
PARTICIPATIONS OF EDUARDA GALICIA AND PERFECTO
GALICIA OVER LOT NO. 1363, BUT WHO WERE NOT
IMPLEADED AS PARTIES IN CIVIL CASE NO. 758-CC OF
THE COURT OF FIRST INSTANCE OF SAMAR (CALBAYOG
CITY) AFFECTED BY THE DECISION OF THE LATTER
COURT OF SUMMARY JUDGMENT? (Rollo, p. 10).
The crucial issue in this case is whether or not the trial court erred when it decided
Civil Case No. 758-CC by summary judgment.
It is the contention of petitioners that the trial court erred in deciding their complaint
(CC No. 758-CC) by summary judgment when there are several genuine issues
involved therein which require a full trial on the merits. Among other things,
petitioners contend that the execution sale conducted by the Deputy Provincial
is further contended that as between Civil Case No. 56 and Civil Case No. 758-CC,
there can be no res judicata, considering that there is no Identity of parties, cause of
action and subject matter between the two actions.
After a thorough review of the records, the Court finds no cogent reason to disturb
the summary judgment rendered by respondent judge.
depositions and admissions on file together with the affidavits, show that, except as
to the amount of damages, there is no issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law (Sec. 3, Rule 34).
Conversely, summary judgment is not proper where the pleadings tender vital issues
the resolution of which call for the presentation of evidence (Villanueva v.
NAMARCO, 28 SCRA 729 [1969]; Guevarra, et al., v. CA, et al., 124 SCRA 297
[1983]). 
Summary judgment "is a device for weeding out sham claims or defenses at an early
stage of the litigation, thereby avoiding the expense and loss of time involved in a
trial. The very object is 'to separate what is formal or pretended in denial or averment
from what is genuine and substantial, so that only the latter may subject a suitor to
the burden of trial.' The test, therefore, of a motion for summary judgment is-whether
the pleadings, affidavits, and exhibits in support of the motion are sufficient to
overcome the opposing papers and to justify a finding as a matter of law that there is
no defense to the action or the claim is clearly meritorious" (Estrada v. Hon.
Consolacion, et al., 71 SCRA 523 [1976]).
In addition, summary judgment is one of the methods sanctioned in the present Rules
of Court for a prompt disposition of civil actions wherein there exists no serious
controversy. The procedure may be availed of not only by claimants, but also by
defending parties who may be the object of unfounded claims. A motion for
summary judgment assumes that scrutinizing the facts will disclose that the issues
presented by the pleadings need not be tried because they are so patently
unsubstantial as not to be genuine issues, or that there is no genuine issue as to any
material facts or where the facts appear undisputed and certain from the pleadings,
depositions, admissions and affidavits (Singleton v. Philippine Trust Co., 99 Phil, 91
[1956], cited in Bayang v. CA, 148 SCRA 91 [1987]).
54
Examining petitioners' complaint, the Court finds that the disputed property is the
same parcel of land, which adjoins private respondents' lot which was the subject of
the forcible entry case and from which petitioners were ordered to vacate. When
petitioners (then defendants), failed to satisfy the rentals adjudged in the forcible
entry case, said adjoining parcel of land was sold at public auction to Juan Palajos
(respondents' predecessor-in-interest) as the higher bidder in the execution sale to
satisfy the monetary judgment rendered therein. The property so described in
petitioners' complaint (Rollo, p. 36) squarely fits what has been levied upon and sold
at public auction (Rollo, p. 30), the owners of which are now private respondents
upon the demise of their predecessor-in-interest.
There is thus no question that issue of ownership of the disputed land subject of the
present petition has long been foreclosed in the forcible entry case which culminated
in the public auction sale of the parcel of land now sought to be recovered. Having
failed to redeem the property sold at the public auction sale within the reglementary
period of twelve (12) months (Sec. 30, Rule 39 of the Rules of Court), petitioners
cannot now claim that they still own said property. Petitioners' complaint for
Ownership and Damages is but a belated and disguised attempt to revive a judgment
debtors' right of redemption which has long expired. There being no issue as to any
material fact raised in the pleadings, summary judgment may be rendered.  inextricably intertwined with the other parties’ that his legal presence as a party to
Neither can the issue of the validity of the execution sale help petitioners' cause.
Well-settled in this jurisdiction, is the rule that issues not raised and/or ventilated in
the lower court cannot be raised for the first time on appeal (Rebodos v. WCC, 6
SCRA 717 [1962]; DBP v. CA, 116 SCRA 636 and a long line of cases). A review of
the records of the case shows that petitioners failed to directly assail and raise as
issue, the validity of the aforementioned auction sale in their complaint. It was only
when the respondent judge noted such omission in his decision dismissing Civil Case
No. 758-CC dated August 11, 1978 (Rollo, p. 48-53) that petitioners later filed a
separate action for Annulment of Auction Sale and Damages on October 4, 1978
(Civil Case No. 837-CC; Rollo, p. 31-35). The validity of the execution sale not
having been raised and/or litigated in the case subject of the present appeal, the
Court, at this stage, cannot pass upon the same for the purpose of determining the
propriety of the summary judgment. Objections to the execution sale cannot be
considered in the Supreme Court inasmuch as it was not raised in the lower court
(Ramiro v. Grano 54 Phil. 744 [1930]; citing Tan Machan v. de la Trinidad, 3 Phil.
684 [1904] and U.S. v. Inductive, 40 Phil. 84 [1919]).  his presence would merely permit complete relief between him and those already
WHEREFORE, the instant petition is hereby DENIED for lack of merit. Costs
against petitioners.
G.R. No. 106436. December 8, 1994.*
VIRGILIO D. IMSON, petitioner, vs. HON. COURT OF APPEALS, HOLIDAY
HILLS STOCK AND BREEDING FARM CORPORATION, FNCB FINANCE
CORPORATION, respondents.
Actions; Parties; Requisites before the case of Lim Tanhu v. Ramolete, 66
SCRA 425 (1975), may apply.— For Lim Tanhu to apply to the case at bench, it must
be established that: (1) petitioner has a common cause of action against private
respondents and the other defendants in Civil Case No. 248-R; and (2) all the
defendants are indispensable parties to the case.
Same; Same;  Words and Phrases;  “Cause of Action,” Defined .—Cause of
action has a fixed meaning in this jurisdiction. It is the delict or wrong by which the
right of the plaintiff is violated by the defendant. The question as to whether a
plaintiff has a cause of action is determined by the averments in the pleadings
pertaining to the acts of the defendant. Whether such acts give him a right of action
is determined by substantive law.
Same; Same; Same; “Indispensable Party,” Defined. —But this is not all.
Defendants in Civil Case No. 248-R are not all indispensable parties. An
indispensable party is one whose interest will be affected by the court’s action in the
litigation, and without whom no final determination of the case can be had. The
party’s interest in the subject matter of the suit and in the relief sought are so
the proceeding is an absolute necessity. In his absence there cannot be a resolution of
the dispute of the parties before the court which is effective, complete, or equitable.
Same; Same; Same; A party is not indispensable to the suit if his interest in
the controversy or subject matter is distinct and divisible from the interest of the
other parties and will not necessarily be prejudiced by a judgment which does
complete justice to the parties in court.—Conversely, a party is not indispensable to
the suit if his interest in the controversy or subject matter is distinct and divisible
from the interest of the other parties and will not necessarily be prejudiced by a
judgment 
________________
* SECOND DIVISION.
59
VOL. 239, DECEMBER 8, 1994  59 
Imson vs. Court of Appeals
which does complete justice to the parties in court. He is not indispensable if
parties to the action, or will simply avoid multiple litigation.
Same; Same; Same; “Proper Party,” Defined; Insurance; In a case arising
from a vehicular collision where the driver, the registered owners, the beneficial
owners, and the insurer were sued, a compromise agreement entered into between
the plaintiff and the insurer resulting in the dismissal of the case as against the
insurer did not redound to the benefit of the other defendants.—It is true that all of
petitioner’s claims in Civil Case No. 248-R is premised on the wrong committed by
55
defendant truck driver. Concededly, the truck driver is an indispensable party to the
suit. The other defendants, however, cannot be categorized as indispensable parties.
They are merely proper parties to the case. Proper parties have been described as
parties whose presence is necessary in order to adjudicate the whole controversy, but
whose interests are so far separable that a final decree can be made in their absence
without affecting them. It is easy to see that if any of them had not been impleaded as
defendant, the case would still proceed without prejudicing the party not impleaded.
Thus, if petitioner did not sue Western Guaranty Corporation, the omission would
not cause the dismissal of the suit against the other defendants. Even without the
insurer, the trial court would not lose its competency to act completely and validly on
the damage suit. The insurer, clearly, is not an indispensable party in Civil Case No.
248-R.
PETITION for review of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
     Polotan Law Office for petitioner.
     Felix R. Solomon for private respondents.
PUNO, J.:
The case at bench arose from a vehicular collision on December 11, 1983, involving
petitioner's Toyota Corolla and a Hino diesel truck registered under the names of
private respondents FNCB Finance Corporation and Holiday Hills Stock and
Breeding Farm Corporation. The collision seriously injured petitioner and totally
wrecked his car.
On January 6, 1984, petitioner filed with the RTC Baguio City1 a Complaint for
Damages2 Sued were private respondents as registered owners of the truck; truck
driver Felix B. Calip, Jr.; the beneficial owners of the truck, Gorgonio Co Adarme,
Felisa T. Co (also known as Felisa Tan), and Cirilia Chua Siok Bieng, and the truck
insurer, Western Guaranty Corporation.
The Complaint prayed that defendants be ordered to pay, jointly and severally, two
hundred seventy thousand pesos (P270,000.00) as compensatory damages, fifty
thousand pesos (P50,000.00) each as moral and exemplary damages, and attorney's
fees, litigation expenses, and cost of suit.8
Defendants driver and beneficial owners failed to answer and were declared in
default.4 On May 29, 1987, however, petitioner and defendant insurer, entered into a
compromise agreement which provided, inter alia:
1. Defendant Western Guaranty Corporation (Western Guaranty
for short) admits that its total liability under the laws and the
insurance contract sued upon is P70,000.00; 
2. In full settlement of its liability under the laws and the said
insurance contract, defendant Western Guaranty shall pay plaintiff
(herein petitioner) the amount of P70,000.00 upon the signing of
this compromise agreement;
3. This compromise agreement shall in no way waive nor prejudice
plaintiffs (herein petitioner's) rights to proceed against the other
defendants with respect the remainder of his claims;
4. This compromise agreement shall be a full and final settlement
of the issues between plaintiff (herein petitioner) and defendant
Western Guaranty in their complaint and answer and, from now
on, they shall have no more right against one another except the
enforcement of this compromise agreement.
In consequence of the compromise agreement, the trial court dismissed the
Complaint for Damages against Western Guaranty Corporation on June 16, 1987.8 A
copy of the Order of dismissal was received by private respondent Holiday Hills
Stock and Breeding Farm Corporation on July 13, 1987. Nearly eighteen (18) months
later, said private respondent moved to dismiss the case against all the other
defendants. It argued that since they are all indispensable parties under a common
cause of action, the dismissal of the case against defendant insurer must result in the
dismissal of the suit against all of them. The trial court denied the motion.
Private respondent Holiday Hills Stock and Breeding Farm Corporation assailed the
denial order through a Petition for Certiorari, Prohibition and Mandamus With
Restraining Order filed with respondent Court of Appeals. The Petition was docketed
as CA-G.R. SP No. 17651. On July 10, 1992, the Court of Appeals,7 through its
Special Sixth Division,8 reversed the trial court, as it ruled:
The petitioner (herein private respondent Holiday Hills Stock and Breeding Farm
Corporation) cites the doctrine laid down in Lim Tanhu v. Hon. Ramolete, 66 SCRA
425, as applied later in Co v. Acosta, 134 SCRA 185, to support its averment that the
court a quo gravely abused its discretion in refusing to dismiss the case.
Essentially, the doctrine adverted to essays that in a common cause of action where
all the defendants are indispensable parties, the court's power to act is integral and
cannot be split, such that it cannot relieve any of them and at the same time render
judgment against the rest.
56
We find applicability of the doctrine to the case at bar.
A cursory reading of the complaint . . . reveals that the cause of action was the
alleged bad faith and gross negligence of the defendants resulting in the injuries
complained of and for which the action for damages was filed. The inclusion of
Western Guaranty Corporation was vital to the claim, it being the insurer of the
diesel truck without which, the claim could be set for naught. Stated otherwise, it is
an indispensable party as the petitioner (herein private respondent stock and breeding
farm corporation) . . . . Private respondent's (herein petitioner's argument that the said
insurance company was sued on a different cause of action, i.e., its bounden duty
under the insurance law to pay or settle claims arising under its policy coverage, is
untenable, for the cited law perceives the existence of a just cause, and according to
the answer filed by the Western Guaranty Corporation . . . the proximate cause of the
accident was the fault of the plaintiff (herein petitioner), hence it was not liable for
damages. There is in fact a congruence of affirmative defense among the answering
defendants.
Moreover, it is undisputed that the injury caused is covered by the insurance
company concerned. Thus, when the said insurer settled its liability with the private
respondent (petitioner herein) . . . , the other defendants, as the insured and
indispensable parties to a common cause of action, necessarily benefited from such
settlement including the defaulted defendants, for as stated in the aforecited cases, it
is deemed that anything done by or for the answering defendant is done by or for the
ones in default since it is implicit in the rule that default is in essence a mere
formality that deprives them of no more than to take part in the trial, but if the
complaint is dismissed as to the answering defendant, it should also be dismissed as
to them.9 (Citations omitted.)
Petitioner now comes to this Court with the following assignments of error:
A.
RESPONDENT COURT OF APPEALS COMMITTED A
REVERSIBLE ERROR IN RULING THAT THE DEFENDANTS
IN CIVIL CASE NO. 248-R ARE INDISPENSABLE PARTIES;
B.
RESPONDENT COURT OF APPEALS COMMITTED A
REVERSIBLE ERROR IN RULING THAT IN CIVIL CASE NO.
248-R THERE IS A COMMON CAUSE OF ACTION AGAINST
THE DEFENDANTS THEREIN;
C.
RESPONDENT COURT OF APPEALS COMMITTED A
REVERSIBLE ERROR IN RULING THAT IN CIVIL CASE NO.
248-R THE RULING OF THIS HONORABLE COURT IN LIM
TAN HU VS. RAMOLETE IS APPLICABLE;
D.
RESPONDENT COURT OF APPEALS COMMITTED A
REVERSIBLE ERROR IN RULING THAT THE DOCTRINE OF
ESTOPPEL AND LACHES ON MATTERS OF JURISDICTION
IS NOT APPLICABLE IN CIVIL CASE NO. 248-R.
There is merit to the petition,.
In the case of Lim Tanhu v. Ramolete, 66 SCRA 425, 458-459 (1975) this court held
that:
. . . (I)n all instances where a common cause of action is alleged
against several defendants, some of whom answer and the others
do not, the latter or those in default acquire a vested right not only
to own the defense interposed in the answer of their co-defendant
or co-defendants not in default but also to expect a result of the
litigation totally common with them in kind and in amount whether
favorable or unfavorable. The substantive unity of the plaintiffs
cause against all the defendants is carried through to its adjective
phase as ineluctably demanded by the homogeneity and
indivisibility of justice itself. . . . The integrity of the common
cause of action against all the defendants and the indispensability
of all of them in the proceedings do not permit any possibility of
waiver of the plaintiffs right only as to one or some of them,
without including all of them, and so, as a rule, withdrawal must be
deemed to be a confession of weakness as to all. . . . . Where all the
defendants are indispensable parties, for which reason the absence
of any of them in the case would result in the court losing its
competency to act validly, any compromise that the plaintiff might
wish to make with any of them must, as a matter of correct
procedure, have to await until after the rendition of the judgment,
at which stage the plaintiff may then treat the matter of its
execution and the satisfaction of his claim as variably as he might
please. Accordingly, in the case now before Us together with the
dismissal of the complaint against the non-defaulted defendants,
57
 the court should have ordered also the dismissal thereof as to
petitioner (referring to the defaulting defendants in the case).
In sum, Lim Tanhu states that where a complaint alleges a common cause of action
against defendants who are all indispensable parties to the case, its dismissal against
any of them by virtue of a compromise agreement with the plaintiff necessarily
results in the dismissal of the case against the other defendants, including those in
default. The ruling is rooted on the rationale that the court's power to act in a case
involving a common cause of action against indispensable parties "is integral and
cannot be split such that it cannot relieve any of them and at the same time render
judgment against the rest. 10
For Lim Tanhu to apply to the case at bench, it must be established that: (1)
petitioner has common cause of action against private respondents and the other
defendants in Civil Case No. 248-R; and (2) all the defendants are indispensable
parties to the case.
Cause of action has a fixed meaning in this jurisdiction. It is the delict or wrong by
which the right of the plaintiff is violated by the defendant. 11 The question as to
whether a plaintiff has a cause of action is determined by the averments in the
pleadings pertaining to the acts of the defendant. Whether such acts give him a right
of action is determined by substantive law. 12
In the case at bench, it is clear that petitioner has different and separate causes of
action against the defendants in the case. The allegations in the Complaint show that
petitioner seeks to recover from the truck driver for his wrong which caused injury to
petitioner and his car. The cause of action against him is based on quasi-delict under
Article 2176 of the New Civil Code. Quasi-delict, too, is the basis of the cause of
action against defendants beneficial and registered owners. But in their case, it is
Article 2180 of the same Code which governs the rights of the parties.
However, with respect to defendant Western Guaranty Corporation, petitioner's
cause of action is based on contract. He seeks to recover from the insurer on the basis
of the third party liability clause of its insurance contract with the owners of the
truck. This is acknowledged by the second paragraph of the compromise agreement
between petitioner and defendant insurer, thus:
2. In full settlement of its liability under the laws and the said
insurance contract, defendant Western Guaranty shall pay plaintiff
(herein petitioner) the amount of P70,000.00 upon the signing of
this compromise agreement.
Quite clearly then, Lim Tanhu will not apply to the case at bench for there is
no showing that petitioner has a common cause of action against the
defendants in Civil Case No. 248-R.
But this is not all. Defendants in Civil Case No. 248-R are not all indispensable
parties. An indispensable party is one whose interest will be affected by the court's
action in the litigation, and without whom no final determination of the case can be
had. The party's interest in the subject matter of the suit and in the relief sought are
so inextricably intertwined with the other parties' that his legal presence as a party to
the proceeding is an absolute necessity. 13 In his absence there cannot be a resolution
of the dispute of the parties before the court which is effective, complete, or
equitable.14
Conversely, a party is not indispensable to the suit if his interest in the controversy or
subject matter is distinct and divisible from the interest of the other parties and will
not necessarily be prejudiced by a judgment which does complete justice to the
parties in court.15 He is not indispensable if his presence would merely permit
complete relief between him and those already parties to the action, or will simply
avoid multiple litigation.16
It is true that all of petitioner's claims in Civil Case No. 248-R is premised on the
wrong committed by defendant truck driver. Concededly, the truck driver is an
indispensable party to the suit. The other defendants, however, cannot be categorized
as indispensable parties. They are merely proper parties to the case. Proper parties
have been described as parties whose presence is necessary in order to adjudicate the
whole controversy, but whose interests are so far separable that a final decree can be
made in their absence without affecting them.17 It is easy to see that if any of them
had not been impleaded as defendant, the case would still proceed without
prejudicing the party not impleaded. Thus, if petitioner did not sue Western Guaranty
Corporation, the omission would not cause the dismissal of the suit against the other
defendants. Even without the insurer, the trial court would not lose its competency to
act completely and validly on the damage suit. The insurer, clearly, is not an
indispensable party in Civil Case No. 248-R.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision, dated July
10, 1992, of the Court of Appeals in CA-G.R. SP No. 17651 is REVERSED AND
SET ASIDE. The Complaint in Civil Case No. 248-R is REINSTATED and
REMANDED to the trial court for further proceedings. No costs.
SO ORDERED.
58