BENJAMIN PANGANIBAN AND MARIA CASTOR, PLAINTIFFS-APPELLANTS, VS. ARACELI VDA. DE STA. MARIA AND FEDERICO STO. TOMAS, DEFENDANTS-APPELLEES.

The antecedent facts alleged in this appeal from an order of
dismissal of the Court of First Instance of Pam­panga,
are as follows:

On May 1, 1961,
Benjamin Panganiban and Maria Castor entered into a
Contract of Lease (Exh. “A” of the
Complaint) over a piece of land located in Dulong Ilog, Paligui, Candaba, Pampanga, containing
more or less 950,000 square meters.^[1]

By letter dated February 5, 1964^[2]
of the Acting Di­rector of Public Works, Panganiban
and Castor were in­formed that they were granted water rights on January 17,
1964 by the Secretary of Public Works, after due hearing and as recommended by
the Bureau of Public Works, enabling them to draw water from the Maasim River, otherwise known as the Bahay
Pare River, which is adjacent to the above mentioned property.  And for this purpose they were autho­rized to
construct the necessary structures, including an earth dam.^[3]
Pursuant to this authority, Panganiban and Castor
caused the construction of an earth dam across said river in order to impound
sufficient water to enable them to plant and irrigate the plants and crops in
said land.

On February 9, 1964,
Araceli Vda. de Sta. Maria
and Federico Sto. Tomas caused the construction of
another earth dam across the Maasim
River about a kilometer up­stream
from the dam constructed by Panganiban and Castor and
adjacent to the latter’s property.

Panganiban and Castor on September 8, 1964 filed a complaint
for actual, moral and exemplary damages, 6% in­terest thereon, and 20% of the
sum due as attorney’s fees, alleging that despite their repeated demands Sta.
Maria and Sto. Tomas refused and failed to remove
said erected dam nor to release any water from said river.  The alleged actual damages suffered by Panganiban total P28,984.00.^[4]

On September 28, 1964,
defendants filed a motion to dismiss, and after its denial, they filed their
answer with counterclaim on October
15, 1964.  Plaintiffs filed
their answer to the counterclaim on October
26, 1964.

On November 3, 1964,
plaintiffs filed a request for admission addressed to defendants thru the
latter’s coun­sel.  This was opposed by
defendants with general and un­specific denials on November 14, 1964.

The lower court on November
23, 1964 issued an order denying plaintiffs’ request for admission
and setting the case for hearing on December
29, 1964.  On December 8, 1964, plaintiffs filed a
motion for reconsideration of said order and for the postponement of the
scheduled hear­ing.

On December 14, 1964,
the lower court issued an order reconsidering its order of November 23, 1964, and decree­ing that the
request for admission and opposition thereto be retained in the record.

Plaintiffs on January
27, 1965 filed a motion for summary judgment.  This was opposed by defendants on Feb­ruary 5, 1965.

On March 16, 1965,
the lower court issued an order denying the plaintiffs’ motion for summary
judgment.  Plaintiffs moved to reconsider
this order on March 31, 1965,
but the lower court denied said motion on April 29, 1965 and set the case for hearing on the merits
on May 31, 1965.

Plaintiffs Panganiban and Castor
elevated the matter to this Court in a petition for certiorari and prohibition
with prayer for preliminary injunction. 
On May 31, 1965 We
dismissed the petition on the ground that appeal in due time was the proper remedy.^[5]
Plaintiffs’ motion for reconsideration in said case was likewise denied by Us.

On July 3, 1965,
plaintiffs’ counsel, with the con­formity of defendants’ counsel, moved for the
postponement of the hearing scheduled for July 7, 1965 on the ground that he was scheduled to leave
for abroad on July 3, 1965
and would not be back until July 10,
1965.

On July 7, 1965,
the lower court ordered the dismissal of the complaint as well as defendants’
counterclaim for failure to prosecute, without pronouncement as to costs, on
the ground that when the case was called in the morning of that date neither
the parties nor their respective coun­sel appeared, notwithstanding notice to
them.

Plaintiffs’ motion to reconsider on the above order was denied by
the lower court in its order of August
3, 1965.

Plaintiffs appealed. 
Appellants in their brief would raise two points:  (1) Did the lower court err in denying
plaintiffs’ motion for summary judgment? 
(2) Did the lower court err in dismissing the suit for failure to prosecute?

Appellants cannot properly raise the first point, for their
failure to state in their notice of appeal that they ere likewise appealing
from the order of March 16, 1965
denying their motion for summary judgment.

Section 4, Rule 41 of the Rules of Court provides that:  “The notice of appeal shall specify the
parties to the appeal; shall designate the judgment or, order or part,
thereof, appealed from, and shall specify the court to which appeal
is taken.” (Underscoring supplied) It is to be noted that the word shall
is used thrice, obviously to lend emphasis to the mandatory nature of the
provision.  And this is as it should
be.  For otherwise, if the party
appealing is free to question on appeal even orders not included in the notice
of appeal, the parties and the court a quo would be at a loss in
determining which orders are appealed and which are not, for purposes of
execution of orders not included in the appeal.

As to the other point, however, plaintiffs-appellants seasonably
filed a motion for postponement which was received by the clerk of the lower
court four (4) days before the scheduled hearing.  Defendants-appellees‘
counsel agreed to said postponement, as evidenced by his conforme
appearing at the foot of said motion.^[6] And
it was plaintiffs’ first motion exclusively for postponement, because their two
other motions for postponement, filed on December 8, 1964 and April 23, 1965,
were incidental to their request for admission and their motion for summary
judgment respectively.  Furthermore, said
motion for postpone­ment had an impelling reason, plaintiffs’ counsel had to
go, and did go abroad, in his professional capacity.  It was not filed to delay or gain time.

Moreover, it is not entirely the parties’ fault that the case was
not earlier set for hearing, because the lower court motu
proprio cancelled the hearing on January 29, 1965 in order to attend
the convention of all judges held in the City of Manila.  Besides, the plaintiffs-appellants had only
one counsel and therefore the absence of their lawyer left them without counsel
in the case.

It is true that the allowance or denial of petitions for
postponement and the setting aside of orders previous­ly issued, rest
principally upon the sound discretion of the judge to whom they are addressed,
but always predicated on the consideration that more than the mere convenience
of the courts or of the parties of the case, he ends of justice and fairness
would be served thereby.^[7]
When no substantial rights are affected and the intention to delay is not
manifest, the corresponding motion to transfer the hearing having been filed
accordingly, it is sound judicial discretion to allow them.^[8]

Defendants-appellees, through counsel,
having given their conformity to the postponement asked for by the ap­pellants,
it is safe to, assume that no damage or prejudice would be suffered by them
because of said postponement.  As a
matter of fact, neither they nor their counsel likewise appeared on the date
set for trial.

WHEREFORE, the order appealed from is hereby reversed and
set aside and the case is remanded to the court a quo for further
proceedings.  No pronouncement as to
costs.

SO ORDERED.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Ruiz Castro, Angeles, and Fernando, JJ., concur.

^[1]
Record on Appeal, pp. 18-21.

^[2]
Record on Appeal, pp. 21-23.

^[3]
Record on Appeal, p. 13.

^[4]
Record on Appeal, p. 17.

^[5]
Resolution in L-24567 (Panganiban v. Romero).

^[6]
Record on Appeal, p. 43.

^[7] Camara Vda. de Zubiri v. Zubiri, et al.,
L-16745, Decem­ber 17, 1966.

^[8] Rexwell Corporation v. Canlas,
L-16746, December 30, 1961.