PERFECTA CAVILI, PRIMITIVO CAVILI AND QUIRINO CAVILI, PETITIONERS, VS. HON. TEODORO N. FLORENDO, PRESIDING JUDGE, BRANCH XXXVI, REGIONAL TRIAL COURT OF NEGROS ORIENTAL, 7TH JUDI…

This is a petition to review and set aside two orders of the then
Court of First Instance of Negros Oriental,
namely:  (1) the order dated October 11,
1985, disqualifying Perfecta Cavili dela Cruz as a witness in Civil Case No. 6880 entitled
“Clarita Cavili, et al. v. Perfecta Cavili, Quirino Cavili, and Primitivo Cavili” and (2) the order dated November 26, 1985, refusing
to reconsider the previous orders of disqualification and resetting the
reception of evidence for the defendants to December 19 and 20, 1985 with a
warning that should defendants’ witnesses fail to appear in court on said date,
they will be deemed to have waived their right to be witnesses in this case.

The private respondents filed Civil Case No. 6880 with the Court
of First Instance of Negros Oriental against herein
petitioners for Partition, Accounting, and Damages.  After the case was raffled to Branch I
presided over by Judge Augusto S. Villarin,
summons was issued to the three petitioners, all at Bayawan,
Negros Oriental which was the address indicated in
the complaint.

After trying to effect service, the process server went back to
the court with the following return of service – – “served to Quirino and Primitivo Cavili not contacted, according to Perfecta Cavili, subject persons is (sic) staying in Kabangkalan, Negros
Occidental.”

Meanwhile, Atty. Jose P. Alamillo filed
a motion for extension to answer in behalf of the defendants, manifesting the
representation of his client Perfecta Cavili that she
will inform her brothers Primitivo and Quirino about the case.

The defendants, however, failed to file their answer within the
requested period and upon motion of the plaintiffs, the defendants were
declared in default, and on October 5, 1979, a judgment by default was
promulgated by Judge Augusto S. Villarin.

The records of the case, however, show that a Manifestation was
filed by Atty. Jose P. Alamillo informing the court
that since he never met Primitivo and Quirino Cavili, who are residents
of another province, he desisted from further appearing in the case in their
behalf.

On November 7, 1979,
Atty. Jose P. Alamillo received a copy of the
decision.  On December 7, 1979, he filed
a motion for new trial in behalf of the defendants on grounds of lack of
jurisdiction over the persons of Primitivo and Quirino Cavili who had not been
legally served with summons,
and, with a meritorious defense that the properties sought to be partitioned
have already been the subject of a written partition agreement between the direct heirs of the late Bernado
Cavili who are the predecessors of the parties
in this case.  In an order dated April 23, 1980, the court granted
said motion.

The plaintiffs filed a motion for reconsideration of the order
granting new trial and at the same time prayed that a writ of execution be
issued but only in so far as defendant Perfecta Cavili
was concerned.

In an order dated July 21, 1981, Judge Cipriano
Vamenta of Branch III of the Court of First Instance
of Negros Oriental, to whom the case had been
assigned after a re-raffle, set aside the order of April 23, 1980 and directed
the execution of the October 5, 1979 decision without qualification ruling that
the petitioners’ remedy should have been appeal rather than new trial.

Their motion for reconsideration having been denied on August 11, 1981, the defendants, now
petitioners, brought the case to this Court through a petition for certiorari,
G.R. No. 57771, entitled “Quirino Cavili, et al., Petitioners versus Hon. Cipriano
Vamenta, et al., Respondents.”

On May 31, 1982,
this Court rendered a decision, the dispositive
portion of which reads:

“WHEREFORE, Our resolution dismissing
the petition is hereby reconsidered; the petition is granted; and the order
dated July 21, 1981, is set
aside while that of April 23, 1980,
is revived.  No special pronouncement as to costs.” (Rollo, p. 21)

Thereafter, the pre-trial and trial of Civil case No. 6880 was
scheduled on October 9, 10, and 11, 1985 before Branch XXXVI of the Regional
Trial Court, presided by respondent Judge Teodoro N. Florendo.  The defendants, (now petitioners), presented Perfecta Cavili dela Cruz as their first
witness.  The respondents, through
counsel, moved for her disqualification as a witness on the ground that having
been declared in default, Perfecta Cavili has lost
her standing in court and she cannot be allowed to participate in all
proceedings therein, even as a witness. 
The court, through the respondent judge, sustained the respondents’
contention and disqualified her from testifying.

The petitioners, through counsel, moved for a reconsideration of
the ruling.

On November 26, 1985,
the lower court issued an order denying reconsideration of its Order dated October 11, 1985 disqualifying
Perfecta Cavili dela Cruz
as a witness in Civil Case No. 6880.

Hence, this petition.

Petitioner Perfecta Cavili’s competence
as a witness is put in issue by the private respondents.

Section 18, Rule 130 of the Revised Rules of Court states who are
qualified to be witnesses.  It provides:

“Section 18.  Witnesses; their
qualifications.  – Except
as provided in the next succeeding section, all persons who, having organs of
sense, can perceive, and perceiving, can make known their perception to others,
may be witnesses.  Neither parties nor
other persons interested in the outcome of a case shall be excluded; nor those
who have been convicted of crime; nor any person on account of his opinion on
matters of religious belief.”

The generosity with which the Rule allows people to testify is
apparent.  Interest in the outcome of a
case, conviction of a crime unless otherwise provided by law, and religious
belief are not grounds for disqualification.

Sections 19 and 20 of Rule 130 provide for specific
disqualifications.  Section 19
disqualifies those who are mentally incapacitated and children whose tender age
or immaturity renders them incapable of being witnesses.  Section 20 provides for disqualification
based on conflicts of interest or on relationship.  Section 21 provides for disqualifications
based on privileged communications. 
Section 15 of Rule 132 may not be a rule on disqualification of
witnesses but it states the grounds when a witness may be impeached by the
party against whom he was called.

There is no provision of the Rules disqualifying parties declared
in default from taking the witness stand for non-disqualified parties.  The law does not provide default as an
exception.  The specific enumeration of
disqualified witnesses excludes the operation of causes of disability other
than those mentioned in the Rules.  It is
a maxim of recognized utility and merit in the construction of statutes that an
express exception, exemption, or saving clause excludes other exceptions.  (In Re Estate of Enriquez, 29 Phil. 167) As a
general rule, where there are express exceptions these comprise the only
limitations on the operation of a statute and no other exception will be
implied.  (Sutherland on Statutory
Construction, Fourth Edition, Vol. 2A, p. 90) The Rules should not be
interpreted to include an exception not embodied therein.

The respondents, however, cite Section 2, Rule 18 on Defaults, to
wit:

“Section 2.  Effect of order
of default.  –
Except as provided in section 9 of Rule 13, a party declared in default shall not be entitled to notice of subsequent
proceedings nor to take part in the trial.”

They advance the argument that to allow
Perfecta Cavili to stand as witness would be to
permit a party in default “to take part in the trial.”

An explanation of the Rule is in order.

Loss of standing in court is the consequence of an order of
default.  Thus, a party declared in
default is considered out of court and cannot appear therein, adduce evidence,
and be heard and for that reason he is not entitled to notice.  (Rule 18, Rules of Court;
Lim Toco v. Go Fay, 80 Phil. 166) However,
“loss of standing” must be understood to mean only the forfeiture of
one’s rights as a party litigant, contestant or legal adversary.  A party in default loses his right to present
his defense, control the proceedings, and examine or cross-examine
witnesses.  He has no right to expect
that his pleadings would be acted upon by the court
nor may he object to or refute evidence or motions filed against him.  There is nothing in the rule, however, which
contemplates a disqualification to be a witness or a deponent in a case.  Default does not make him an incompetent.

As opposed to a party litigant, a witness is merely a beholder, a
spectator or onlooker, called upon to testify to what he has seen, heard, or
observed.  As such, he takes no active
part in the contest of rights between the parties.  Cast in the limited role of witness, a party
in default cannot be considered as “taking part in the trial”.  He remains suffering the effects of an order
of default.

A party in default may thus be cited as a witness by his
co-defendants who have the standing and the right to present evidence which the
former may provide.  The incidental
benefit giving the party in default the opportunity to present evidence which
may eventually redound to his advantage or bring about a desired result,
through his co-defendants, is of minor consequence.

Of greater concern or importance in allowing the presence of
Perfecta Cavili as a witness in the case at bar, is
the preservation of the right of petitioners Quirino
and Primitivo Cavili to
secure the attendance of witnesses and the production of evidence in their
behalf.  To reject Perfecta Cavili’s presentation of testimonial evidence would be to
treat Primitivo and Quirino
as if they too were in default.  There is
no reason why the latter should also be made to bear the consequences of
Perfecta’s omission.  Moreover, we cannot
deprive Quirino and Primitivo
of the only instrument of proof available to them, as Perfecta alone has been
in possession and administration of the property in question and more than
anybody else she can provide vital evidence to buttress their claim.

WHEREFORE, in view of the foregoing, the petition is
hereby GRANTED.  The order of the
respondent court disqualifying Perfecta Cavili dela Cruz as a witness in Civil Case No. 6880 is hereby SET
ASIDE.  The case is remanded to the court
a quo for further proceedings.  The
temporary restraining order issued on January
6, 1986 is LIFTED.

SO ORDERED.

Fernan, (Chairman), Feliciano, Bidin, and Cortes, JJ., concur.