G.R. No. L-6354. June 26, 1954

Epifanio Farrales has come to this court by way of certiorari
seeking to set aside the order issued on September 29, 1952 by
respondent Justice of the Peace dissolving the preliminary mandatory
injunction previously issued by him on the ground that said order is
illegal it having been issued without notice and hearing.

On February 16, 1952, Epif anio Farrales, petitioner herein, filed
an action for forcible entry before the Justice of the Peace Court of
San Narciso, Zambales, relative to certain lands situated in barrio
Paete of said municipality against Quirino Dumlao and several other
persons.

On February 26, 1952, petitioner filed a motion for the issuance of
a writ of preliminary mandatory injunction under article 539 of the new
Civil Code, which was granted after due notice and hearing, and as a
result, the sheriff placed petitioner in possession of the lands in
litigation.

In the meantime, the case was heard on May 3, 6, and 8, 1952, but
thereafter further proceedings were discontinued apparently for the
reason that respondent Justice of the Peace seldom came to his office
or ceased to act in San Narciso, Zambales. Then, suddenly, about five
months after the last hearing on the main case, respondent Justice of
the Peace issued an order on September 29, 1952 dissolving the
preliminary injunction issued by him on March 25, 1952.

Considering that this order is illegal because it was issued ex parte or
without giving petitioner an opportunity to be heard, he filed the
present petition imputing grave abuse of discretion to respondent
Justice of the Peace.

In his answer, respondent Justice of the Peace denies the imputation
that he committed certain irregularities in the performance of his
official duties and alleges that when he issued the order dissolving
the preliminary injunction he merely acted in accordance with the rules
of court considering the great damage that would be caused to the
defendants and the fact that petitioner can be fully compensated for
the damage he may suffer by the counterbond posted by the defendants.

The law governing the power of the court to dissolve a preliminary
injunction is section 6, Rule 60, of the Rules of Court. This rule
grants the court authority to dissolve a preliminary injunction if in
its opinion its continuance may cause great damage to the defendant
provided the latter posts a bond in an amount to be fixed by the court,
but is silent as to the procedure to be followed in granting the
relief. It does not say whether it may be granted ex parte,
or only after notice and hearing. Apparently, the rule gives to the
court ample discretion to act on the matter provided that in doing so
the substance of the rule is observed. That such is the case is
apparent in a number of cases decided by this court. Thus, it was held
that “* * * At any rate, as already stated, the respondent judge was
not even required to hear the parties, if the record convinced him that
the writ of preliminary injunction should be dissolved. (Ong Su Han vs.
Gutierrez David,^[1] 43 Off. Gaz., 95). Specifically, it has been held that, in dissolving an injunction already issued the court cannot be considered as having acted without jurisdiction or with excess of jurisdiction,
even if the dissolution has been made without previous notice to the
adverse party, and without a hearing” (Italics ours) (Caluya vs. Ramos,^[2]
45 Off. Gaz., No. 5, 2075.) And in case of Clarke vs. Phil. Ready Mix
Concrete Co. Inc., et al., 88 Phil., 460, this court made a summary of
the ruling on this matter:

“The issues in the present case may be briefly stated as follows:

“(1) May a writ of preliminary injunction granted by a trial court after a hearing, be dissolved upon an ex parte application by defendant?

* * * * * * *

“The
question involved in the first part has already been passed upon by
this court in the case of Caluya vs. Ramos, G. R. No. L-1307, 45 Off.
Gaz., No. 5, p. 2075, where we said:

* * * * * * *

” ‘* * * Specifically, it has been held that, in dissolving an injunction already issued the court cannot be considered as having acted without jurisdiction or with excess of jurisdiction, even if the dissolution has been made without previous notice to the adverse party, and without a hearing.’ (Italics ours.)”

“Again in the case of Cine Ligaya vs. the Court of First Instance of Laguna, et al., 66 Phil., 659, this court held:

* * * * * * *

“* * * Nevertheless, even if a previous notice were required and even if there had been no hearing on the petition to lift or dissolve the injunction granted, it cannot be said for that reason that the court dissolving the injunction thus issued, acted without or in excess of jurisdiction. * * * The failure to send a notice or to hold a hearing as required by section 169 aforecited of Act No. 190 is not in any way jurisdictional so as to invalidate the proceedings of the court on the ground of lack or excess of jurisdiction.’

* * * * * * *

“Also in the case of Jaranillo vs. Jacinto et al.,
43 Phil., 588, this court held that ‘failure to give such notice is
merely an irregularity in the proceedings which do not go to the
jurisdiction of the court and cannot be corrected by certiorari.’

“And,
in the case of So Chu et al. vs. Nepomuceno, Judge of the Court of
First Instance of Manila, 29 Phil., 208, it was held that ‘where court
has jurisdiction over the person and subject matter of the action, a
failure to give notice of subsequent steps in the action or proceeding
is not jurisdictional and does not render an order without notice void.”

It is thus seen that notice and hearing are not necessary in order
that the court may act on. a motion for dissolution of an injunction
previously issued. The court can act ex parte and if it does
so it cannot be deemed as having acted without or in excess of its
jurisdiction. Such is the predicament of respondent Justice of the
Peace. He acted substantially in accordance with the rules of court.
Nor can it be said that he acted with abuse of discretion because,
according to him, he dissolved the injunction after considering the
great damage that would be caused to defendants and the fact that
petitioner can be fully compensated for the damage he may suffer by the
counter-bond posted by defendants. This appears to be substantiated by
the record.

With regard to the claim of petitioner that respondents Justice of
the Peace has committed certain irregularities in the performance of
his official duties, aside from the fact that such imputation has been
denied, we are of the opinion that this is not the place where it
should be aired. The matter may be brought to the Judge of the Court of
First Instance who has supervision over the Justice of the Peace or to
the Secretary of Justice. (Sections 96-97, Judiciary Act of 1948.)

The petition is dismissed, without pronouncement as to costs.

Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Jugo and Reyes, J. B. L., JJ., concur.

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^[1] 76 Phil., 546

^[2] 79 Phil., 640

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CONCURRING

 

CONCEPCION, J.:

Whenever a judicial power is granted, the assumption should be that
previous notice and hearing are due to the party who may be adversely
affected by its exercise. Otherwise, the action of the court, if taken
ex-parte, may constitute a denial of the due process guaranteed in the
Bill of Rights.

“No rule is better established under the
due-process-of-law provision of the organic law of the land, than the
one which requires notice and an opportunity to be heard before any
citizen of the state can be deprived of his rights. That is the rule,
whether the action is in personam or in rem, with
the exception that in an action in rent substituted service may be
had,” (Pennoyer vs. Noff., 9 U. S., 714; Kilbourn vs. Thompson, 103 U.
S., 168.) (Lopez vs Director of Lands, 47 Phil., 23, 32 [Constitution
of the Philippines by Tanada and Fernando, Rev. ed., p. 43.]

Said notice and hearing may be dispensed with, however, when a valid
act of Congress expressly or clearly so provides, or when otherwise
sanctioned by a practice long established under the Common Law, such as
that which obtains in connection with the issuance of writ of
attachment or preliminary injunction or of a warrant of arrest, or the
distrain of property in payment of taxes, or of the suspension of a
public officer pending investigation of administrative charges
preferred against him (Cornejo vs. Gabriel, 41 Phil., 188, 193-194). It
should be noted that, in all of these cases, the ex parte
action taken seeks, either to preserve the status quo, or to prevent
that the final judgment, later to be rendered, may be defeated by acts
performed, in the meantime, by the party concerned. Thus, the purpose
of the ex parte warrant of arrest is, apart from placing the
accused under the jurisdiction of the court, to prevent him from
evading its authority; that of a writ of attachment, o avoid that the
judgment, to be rendered in due time, be frustrated by the concealment
or fraudulent disposal of defendant’s properties; that of distrain of
personal property to insure the collection of taxes, by depriving the
taxpayer of the opportunity to place his assets beyond the reach of the
government; that of suspension of a public officer, pending
investigation of the charges against him, to preclude the use of the
power and influence of his office to intimidate or eliminate witnesses
and other evidence against him some of which may be in the files or
records of his own office, that obstructing said investigation or
nullifying its purpose and effect. As a consequence, when the
suspension is not preventive, but penal or disciplinary in nature, it
cannot be imposed or decreed without previous notice and hearing.

Pursuant to section 3 of Rule 60 of the Rules of Court, a writ of
preliminary injunction may be issued when, among other things, “the
commission or continuance of the act complained of during the
litigation would probably work injustice to the plaintiff,” or when
“the defendant is doing, threatens, or is about to do, or is procuring
or suffering to be done, some act probably in violation of the
plaintiffs rights respecting the subject of the action, and tending to
render the judgment ineffectual.” The dissolution of such writ of
preliminary injunction, would, therefore, give the defendant a free
hand to change the status quo and to commit or
continue the commission of Acts which would probably “work injustice to
the plaintiff” or “render ineffectual” the judgment he may secure in
his favor. Justice and equity demands, therefore, that the plaintiff be
given, prior thereto, an opportunity, at least, to show that such would
be the result of the lifting of the writ.

The necessity of a previous notice and hearing becomes more apparent
when we consider that the resulting injury to the plaintiff may not be
susceptible of pecuniary estimation or otherwise compensable in terms
of money. Besides, even if it were, the bond to be filed by the
defendant before the dissolution of the writ might not be sufficient to
fully indemnify the,plaintiff. Although the court may order or
require—generally, upon motion of the plaintiff, after the
issuance of the order of dissolution cf the writ—that another bond, for
a bigger amount and subject to such additional terms and conditions as
may be deemed proper to protect his interests, be filed, the
accomplishment of said purpose may then be impossible for, by that
time, an injury beyond repair may have already been inflicted, and/or
the defendant may no longer be willing or able to comply with said
order or to meet said requirement. Accordingly, it is doubtful whether
Congress or the Rules of Court could dispense with notice and hearing
before the issuance of said order of dissolution, consistently with the
due process clause of the Constitution,

At any rate, there is no provision of law or of the Rules of Court authorizing the ex parte
dissolution of a writ of preliminary injunction. What is more, when the
silence of the law on this point is contrasted with the specific grant
of power to issue said writ ex parte (Rule 60, section 5,
Rules of Court), the conclusion seems inevitable that such power was
not meant to be given in connection with the dissolution of the writ,
for expressio unios est exclusio alterious. Indeed, in order
that a writ of preliminary injunction could be dissolved, it must
appear that “the plaintiff can be fully compensated for such damage as
he may suffer.” (Section 6, Rule 60, Rules of Court.) This provision
indicates clearly, to ray mind, that plaintiff must first be given an
opportunity to demonstrate that said condition is not present in his
case. Accordingly, I find it difficult to subscribe, without
qualification, to the view that a writ of preliminary injunction may
freely be dissolved ex parte.

In the case at bar, however, the order complained of dissolved, not
a writ of preliminary injunction, but a preliminary mandatory
injunction, which, instead of preserving things in the condition in
which they were at the time of the commencement of the litigation,
sought to change the same. Conversely, the order dissolving
said preliminary mandatory injunction had the effect of restoring the
parties to their status qua at the time of the institution of the case.
Hence, the order dissolving the preliminary mandatory injunction played
the role of a writ of preliminary injunction, in that it tended to
maintain said status quo. For this reason, I concur in the result.