EMILIO DE LA PAZ, JR., ENRIQUE DE LA PAZ, MANUELA DE LA PAZ, NATIVIDAD DE LA PAZ, MARGARITA DE LA PAZ AND ZENAIDA DE LA PAZ, PETITIONERS, VS. HON. INTERMEDIATE APPELLATE COURT, …

The petitioners have
lumped in one amended petition an original action for certiorari
to set aside the
decision of the Regional Trial Court, Branch
71 at Antipolo, Rizal, in Civil Case No. 164-A and a petition for
review to nullify the decision of the Intermediate Appellate Court in AC-G.R. SP NO. 05472.

The records show the
following incidents which transpired prior to the filing of the instant petition.

On May 12, 1983, Loreto de la Paz filed a complaint against the
petitioners with the Regional Trial Court of Rizal
for a judicial declaration of
ownership of a 43,830 square meter parcel of land covered by Original
Certificate of Title No. 901 of the Register of Deeds, Rizal
in the name of Ponciano de la Paz with damages.  The case was docketed as Civil Case No.
164-A.

Loreto alleged that the subject parcel of land was among the
properties adjudicated to her and her mother as a result of a partition
submitted by the heirs of Ponciano de la Paz and
approved by the court in Civil Case No. 1399 of the Court of First Instance of Rizal.  The subject
matter of Civil Case No. 1399 was Ponciano’s testate
estate.

In their answer, the
petitioners denied that the disputed lot was among the properties adjudicated
to Loreto and her mother.  They claimed
that the parcel of land was not accounted for in the probate proceedings but is
actually community property of the parties.

The parties, except for petitioner Enrique de la Paz, were
admittedly compulsory heirs of Ponciano de la
Paz who died in 1916.  Loreto was the
only legitimate child of Ponciano while:  1) Emilio de la Paz, Jr., is the son of
Emilio, a recognized natural child of Ponciano; 2)
Manuela de la Paz is the recognized natural child of Ponciano; 3) Natividad de la Paz is the daughter of Emilio, recognized natural child of Ponciano; 4) Margarita de la Paz is the daughter of Wenceslao, a recognized natural child of Ponciano; and 5)
Zenaida de la Paz, is the daughter of Augusto, another recognized natural child of Ponciano.  As regards
petitioner Enrique de la Paz, Loreto denied his claim that he is one of the
heirs of Ponciano. 
The petitioners, however, allege that he is also a compulsory heir of Ponciano, he being the son of Ponciano
de la Paz, Jr., the eldest child of the decedent.

The parties failed to arrive at an amicable settlement during
pre-trial.  Hence, trial on the merits
followed.

Loreto took the witness
stand.  She finished her direct testimony
on March 12, 1984.

On April
25, 1984, the
petitioners’ counsel began his cross-examination of Loreto.  The cross-examination was, however, not
completed.  The petitioners’ counsel
moved in open court for the continuance of the cross-examination on the ground
that he still had to conduct a lengthy cross?examination.  (p. 17, Court of Appeals’ rollo).

On May 18, 1984,
Loreto’s counsel filed a motion for “correction of transcript” due to
some errors in the transcript of stenographic notes taken during the direct
testimony of Loreto.  The motion was
granted.

This order granting the correction prompted the petitioners’ counsel to manifest that he would not be able to undertake the
cross-examination of the witness as scheduled. 
He asked for the postponement of the May 23, 1984 hearing.  The trial court postponed the trial of the
case to May 31, 1984 and
later to July 5 and 11, 1984.  (p. 16,
Court of Appeals’ rollo)

On August 13, 1984,
trial resumed.  The petitioners’ counsel,
however, asked for still another postponement of the cross-examination to give
him a chance to go over the stenographic notes.  In an order of the same date, the hearing was
again postponed.  (p. 17, Court of
Appeals’ rollo)

During the scheduled
trial on September 14, 1984, neither the petitioners nor their counsel
appeared despite due notice.  Loreto’s
counsel, therefore, filed a motion that she be allowed to present evidence ex
parte before a commissioner.  The motion was granted and Loreto presented
additional evidence ex parte in the
afternoon of the same day.  On this same
date, she finished the presentation of her evidence and submitted her case for
decision.

Despite this development, the petitioners upon their motion were
allowed to cross-examine Loreto.

On the scheduled hearing set on September 18, 1984,
the petitioners’ counsel failed to appear, and the cross-examination of Loreto
was deferred for the fourth (4th)
time.  (p. 17, Court of Appeals’ rollo)

Finally, on November
7, 1984, the
petitioners’ counsel resumed his repeatedly postponed cross-examination of
Loreto.  The cross?examination was, however, cut short and re­scheduled
again on motion of the petitioners’ counsel.

Unfortunately, Loreto died on December 1, 1984. 
An amended complaint was filed for the purpose of substituting the
respondents, herein, they being the children and heirs of Loreto.

At the resumption of the trial on January 21, 1985, the petitioners moved verbally to strike
off the record the entire testimony of Loreto. 
The motion was denied.  A verbal
motion for reconsideration was likewise denied.

In view of the petitioners’ manifestation that they will appeal
the ruling to the appellate court, the trial court issued on January 24, 1985 a more detailed
order denying the motion to strike off the record Loreto’s testimony.  (p. 17, Court of Appeals’ rollo).

On February 11, 1985,
the trial court issued another order allowing, among other things, the private respondents to present their exhibits. 
A controversy as to the contents
of this February
11, 1985 order will be discussed later.

On February 18, 1985, the
petitioners filed a petition
with the Intermediate Appellate Court to annul the lower court’s orders dated
January 24, 1985 and February 11, 1985 and to prohibit the court from further
proceeding in Civil Case No. 164-A.  The
petition for certiorari and prohibition was docketed as AC-G.R. SP No.
05472.

This petition
notwithstanding, the lower court continued the proceedings in Civil Case No.
164-A.  Thus, on March 29,
1985, the lower court promulgated a decision in
Civil Case No. 164-A declaring the private respondents, the children and heirs
of Loreto, as the true owners of the subject parcel of land.  Damages were also awarded in favor of the
private respondents.  The dispositive portion of the decision reads:

“IN VIEW OF THE FOREGOING, JUDGMENT is hereby rendered:

“(a)    Declaring
plaintiffs as the true and lawful owners of the parcel of land covered by
Original Certificate of Title No. 901 of the Register of Deeds of Rizal;

“(b)    Ordering the
defendants to surrender the owner’s duplicate copy of Original Certificate of
Title No. 901;

“(c)    Directing the
Register of Deeds of Rizal, Pasig
Branch to cancel Original Certificate of Title No. 901 and to issue a new one in the names of the
plaintiffs;

“(d)    Ordering the
defendants jointly and severally to
pay to the plaintiffs Five Hundred Thousand Pesos (P500,000.00) as actual
damages, Five Hundred Thousand Pesos (P500,000.00) as moral damages, Five
Hundred Thousand Pesos (P500,000.00) as exemplary or corrective damages, Fifty
Thousand Pesos (P50,000.00) as attorney’s fees, plus the costs; and

“(e)    Dismissing
the defendants’ counterclaim.” (pp. 13-14, Rollo)

On June 20, 1985,
the appellate court also rendered a decision in AC-G.R. SP No. 05472.  The petition was denied due course and
dismissed.  A motion for reconsideration
was denied for lack of merit.

Initially, the petitioners filed only a petition to review on certiorari
the appellate court’s decision and resolution respectively.

Upon motion of the petitioners, we admitted the amended petition
which now seeks to annul the decision of the lower court in Civil Case No.
164-A aside from setting aside the appellate court’s decision and resolution in
AC-G.R. SP No. 05472.

In another resolution dated January 20, 1986, we gave due course to the petition and
considered the respondents’ comments as answer.

We first review the challenged decision and order of the
appellate court.  The petitioners contend
that the appellate court committed grave abuse of discretion when it sanctioned
the trial court’s orders which denied the striking out of the testimony of original plaintiff Loreto
de la Paz from the record.

A motion to strike off testimony from the record is an
interlocutory order.  Well-settled is the
rule that interlocutory orders may not be subjects
of a petition for certiorari unless issued in patent abuse of
discretion.  (See Villalon, Jr. v. Intermediate Appellate Court, 144
SCRA 443; Bautista v. Sarmiento, 138 SCRA 587).

We see no grave abuse of
discretion on the part of the trial court when it issued the questioned
order.  True, we have consistently ruled on the nature of the right of cross-examination, to wit:

“The right of a party to confront and cross-examine opposing
witnesses in a judicial litigation, be it criminal or
civil in nature, or in proceedings before administrative tribunals with
quasi-judicial powers, is a fundamental right which is part of due
process.  (Savory
Luncheonette v. Lakas ng Manggagawang Pilipino, et al., 1975, 62 SCRA 258).”

x x
x                          x
x x                             x x x

“The right of a party to cross-examine the witness of his adversary
is invaluable as it is inviolable in civil cases, no less than the right of the
accused in criminal cases.  The express
recognition of such right of the accused in the Constitution does not render the right thereto of parties in
civil cases less constitutionally based, for it is an indispensable part of the
due process guaranteed by the fundamental law. 
x x x Until such
cross-examination has been
finished, the testimony of the witness cannot be considered as complete and may not, therefore, be allowed to
form part of the evidence to be considered by the court in deciding the
case.” (Bachrach Motor Co., Inc., v. Court of
Industrial Relations, 86 SCRA 27 citing Savory Luncheonette v. Lakas ng Manggagawang Pilipino, et al., supra, Ortigas, Jr. v. Lufthansa German Airlines, 64 SCRA 610)

But we have also ruled that it is not an
absolute right which a party can demand at all times.  This Court has stated that:

x x
x                          x
x x                             x x x

“the right is
a personal one which may be waived expressly or impliedly by conduct amounting
to a renunciation of the right of cross-examination.  Thus, where a party has had the opportunity
to cross?examine a witness but failed to avail himself of it, he
necessarily forfeits the right to cross-examine and the testimony given on
direct examination of the witness will be received or allowed to remain in the
record.

“The conduct of a party which may be construed as an implied
waiver of the right to cross-examine may take various forms.  But the common basic principle underlying the
application of the rule on implied waiver is that the party was given the
opportunity to confront and cross-examine an opposing witness but failed to
take advantage of it for reasons attributable to himself
alone.

x x
x                          x
x x                             x x x

“The case of the herein petitioner, Savory Luncheonette,
easily falls within the confines of the jurisprudence given above.  Private respondents through their counsel,
Atty. Amante, were given not only one but five opportunities to cross-examine the witness, Atty. Morabe, but despite the warnings and admonitions of
respondent court for Atty. Amante to conduct the
cross-examination or else it will be deemed waived, and despite the readiness,
willingness, and insistence of the witness that he be cross-examined, said
counsel by his repeated absence and/or unpreparedness
failed to do so until death sealed the witness’ lips forever.  By such repeated absence and lack of
preparation on the part of the counsel of private respondents, the latter lost
their right to examine the witness, Atty. Morabe, and
they alone must suffer the consequences. 
The mere fact that the witness died after giving his direct testimony is
no ground in itself for excluding his testimony from the record so long as the
adverse party was afforded an adequate opportunity for cross-examination but
through fault of his own failed to cross-examine the witness.” (Savory
Luncheonette v. Lakas ng Manggagawang Pilipino, supra; at pp.
263-267)

In the case at bar, the
petitioners’ failure to cross-examine Loreto was through no fault of the
respondents.  As can be gleaned from the
record, Loreto was available for cross-examination from the time she finished
her direct testimony on March 12, 1984 to November 7, 1984, the last scheduled hearing of the case
before her death on December 1, 1984.  The
petitioners not only kept on postponing the cross-examination but at times
failed to appear during scheduled hearings. 
The postponement of the trial on May 23, 1984 to a later date due to the correction of the
stenographic notes of Loreto’s testimony may be justified, but the same cannot
be said for the subsequent postponements requested by the
petitioners.  The scheduled trials before
November 7, 1984, did not push
through, because of the petitioners’
fault.  It may also be recalled that at
the scheduled hearing on September 14, 1984 neither the petitioners nor their counsel
appeared leading to the presentation of evidence ex parte.  And also during the scheduled hearing on September
18, 1984, when the
petitioners were allowed to cross-examine Loreto despite the fact that the case
was already deemed submitted for decision, the petitioners again failed to
appear.

Under these
circumstances, we rule that the petitioners had waived their right to
cross-examine Loreto.  Through
their own fault, they lost their right
to cross-examine Loreto.  Her testimony
stands.

As regards the petition to set aside the trial
court’s decision, the pivotal issue hinges on the contents of the February 11, 1985 order.  The peti­tioners argue that Presiding Judge Benedicto “arb­itrarily and whimsically changed
without notice to either party, the tenor of the order it dictated in open
court, apart from injecting facts that did not and could not have transpired on
February 11, 1985, acts apparently calculated to deprive petitioners, as in
fact they were deprived of their right to present evidence in their
behalf.” (p. 38, Rollo).

According
to the petitioners, the trial court issued two conflicting versions of the February 11, 1985 order.  The order dictated in open court on February 11, 1985 states:

“In view of the
manifestation of the counsel for the plaintiff that he is formally re-offering
in evidence all documentary exhibits and testimonial evidence presented
and it appearing that the transcript taken during the ex-parte
hearing is already available and availed of by counsel for the defendant, he is
hereby given ten (10) days from today to file his objections after which this
case will be deemed submitted for resolution. 
In view of the fact that he will appeal the order of this court denying
his motion to strike out from the record, the testimony of the plaintiff,
Loreto de la Paz, the presentation of the evidence of the defendants is hereby
held in abeyance.” (p. 29, Court of Appeals’ rollo)

while the signed order dated February 11, 1985 states, to wit:

“In view of the manifestation of the counsel for the plaintiff that he is formally
re-offering in the evidence all documentary exhibits and testimonial evidence presented and after their admission he
will rest his case and it appearing that the transcript taken during the
ex-parte hearing has been long available and availed
of by counsel for the defendants, he is hereby given ten (10) days from today
to file his objections thereto after which action will be taken on the
admission of said exhibits.  The said
period having lapsed without defendants’ counsel filing his comments on the
admission of the exhibits A to Z and the sub-marked exhibits are admitted in
evidence for Plaintiffs, Defendants’ counsel forthwith manifested that he will
appeal to the Intermediate Court of Appeals (sic) the ruling of this Court
denying his Motion to Strike off from the records the entire testimony of
Plaintiff Loreto de la Paz who was partly cross-examined already but who died
thus his cross examination could not be
completed.  Said counsel then
refused to present evidence in behalf of defendants on the ground that he
intended to appeal as already alluded above the Order of this court denying the
Motion in question.  The court has ruled
in its Order of January 21, 1983
that inspite of the attitude of Counsel the trial
shall pro­ceed as scheduled.

“Thus, at the hearing today said Counsel failed to proceed
with the trial to present his evidence. 
This case shall be deemed submitted for Resolution.” (p. 31, Court
of Appeals’ rollo)

It is to be noted that in
the dictated version of the February 11, 1985 order, the petitioners were given
ten (10) days from February 11, 1985 to file their objections after which the
case will be submitted for resolution and that the presentation of evidence for
the petitioners was held in abeyance.

However, in the other
version, the case was declared as already deemed submitted for resolution.

It is this second version of the February 11, 1985 order which
the trial court used as justification for its promulgation of the March 29,
1985 decision in Civil Case No. 164-A.

The record clearly shows that this second version of the February 11, 1985 order was issued
without the knowledge of the parties.  In
fact, on March 14, 1985, the respondents filed an urgent motion to consider the
case submitted for decision with the following allegations:  1) that in the hearing of February 11, 1985,
the petitioners were required to submit their comment or objection to respondents’ offer of evidence and they were
given ten (10) days from said date within which to do so, and thereafter to
present their evidence; and 2) that notwithstanding the lapse of more than
thirty (30) days, the respondents have not submitted their comment or objection
to petitioners’ offer of evidence much less have they taken any move to present
their evidence.  (pp. 32-33, Court of Appeals’ rollo).  The
respondents would not have filed this motion if the case was already deemed
submitted for decision pursuant to the second version of the February 11, 1985 order.  Furthermore, the respondents do not rebut
these allegations.

The trial court committed a grave abuse of discretion in issuing
the order dated February 11, 1985,
the contents of which conflict with another order of the same date dictated in open court dur­ing the hearing of the case on February 11, 1985.

The issuance of
this second version of the February 11, 1985 order
prejudiced the petitioners’ cause.  They
were deprived of their right to present evidence in their behalf.

Consequently, the decision of the trial court in Civil Case No. 164-A must be
declared null and void.

Another issue raised by the petitioners centers on whether or not
the trial court committed grave abuse of
discretion in rendering judgment in Civil Case No. 164-A despite the pendency
of the petition which sought to inhibit it from further proceeding with the
case.

The appellate court did
not restrain the trial court until April 22, 1985 after the
petitioners presented the certified copy of the February 11, 1985 order.  (p. 35, Court of Appeals rollo).  The trial court did not abuse
its discretion or commit reversible error.  It is within its sound discretion to either
proceed with the case in the absence of the prayed-for restraining order or refrain from acting on the case until the
higher court decides the matter elevated to it. 
The circumstances of each case dictate what action shall be taken.

The final issue raised by
the petitioners is with regard to the damages awarded the respondents by
the trial court.

In their complaint, the respondents asked for the following
damages:  1) at least P150,000.00 as actual damages; 2) P200,000.00 as moral damages;
and 3) P50,000.00 as attorney’s fees plus exemplary damages which may be deemed just and equitable in
the premises.  The trial court awarded to the respondents the following: 
P500,000.00 as actual damages; P500,000.00 as moral damages; P500,000.00 as exemplary
damages; P50,000.00 as attorney’s fees and costs.

The questioned decision, however, is silent as to how the court
arrived at these damages.  Nowhere in the
decision did the trial court discuss the merit of the damages prayed for by the
petitioners.  There should be clear
factual and legal bases for any award of considerable damages.  (See Rubio v. Court of
Appeals, 141 SCRA 488).

WHEREFORE, the amended petition is partly DENIED in
that the questioned decision and resolution of the Intermediate Appellate
Court, now Court of Appeals in AC-G.R. SP No. 05472 are AFFIRMED.  The petition is GRANTED in part.  The questioned decision of the then Court of
First Instance of Rizal in Civil Case No. 164-A is
SET ASIDE as null and void.  The
successor Regional Trial Court is directed to conduct further
proceedings and to receive the evidence of the petitioners in Civil Case No.
164-A.

SO ORDERED.

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