G.R. No. L-48315. February 27, 1979
ATTY. DOMINADOR B. BORJE, PETITIONER, VS. HON. COURT OF FIRST INSTANCE OF MISAMIS OCCIDENTAL, BRANCH II, VIOLETA GALICINAO, MISAMIS OCCIDENTAL WATER DISTRICT, AND THE CHAIRMAN O…
GUERRERO, J.:
The cause for certiorari and/or mandamus brought to the attention
of this Court in this case is the alleged grave abuse of discretion amounting
to lack of jurisdiction of respondent Court of First Instance of Misamis
Occidental, Branch II, for dismissing the complaint for damages of petitioner
in Civil Case No. OZ 686, entitled “Atty. Dominador B. Borje vs. Violeta
Galicinao, et al.” without conducting any hearing despite the existence of
controverted facts that needed to be proved.
Petitioner alleged that he is the counsel of the water consuming
public of Ozamiz City who were indignant against the increase of water rates
imposed by respondent Misamis Occidental Water District and who thereby
resorted to court action for redress and/or remedy. After acceptance of the retainer as counsel plus the consequent
representation of the consumers also in debates and discussions in the air, he
allegedly received water bills from the Water District without indication of
the meter readings, the number of cubic meters consumed and the amounts to be
paid. So he refused to pay the
“blank bills.” For such failure, petitioner’s water service was cut
on February 6, 1978.
By reason of these acts of “harassment” of private
respondents resulting in his “humiliation” as well as unlawful
deprivation of a life’s necessity, petitioner brought Special Civil Case No. OZ
686, an action for damages with preliminary mandatory injunction, before
respondent Court.
Acting on the prayer incorporated therein for preliminary
mandatory injunction, respondent Court issued an order dated February 8, 1978
enjoining respondents from disconnecting the water service of petitioner. Upon learning that the same was already cut,
the Court issued another order dated February 9, 1978 requiring private
respondents to reconnect it immediately.
On February 15, 1978, private respondents filed a motion to
dismiss the complaint on two grounds, namely: (a) lack of jurisdiction of respondent Court allegedly because the
“main thrust of the subject and nature of the action or suit appearing in
the complaint is clearly within the field of special civil action or suit
action or special proceeding”[1]
and (b) there is another action pending between the same parties for the same
cause, referring to Special Civil Case No. 0390.
On February 27, 1978, petitioner filed an opposition thereto
stating that the issues raised are justiciable and a court of general
jurisdiction has the authority to try the case. He further contended that Special Civil Case No. 0390, which
questioned the increased water rates unilaterally imposed by the Misamis
Occidental Water District, the constitutionality of Presidential Decree No. 198
and the selection of the members of the Board of Directors, is entirely different
from Civil Case No. OZ-686, which is an action for damages due to the
harassment committed by private respondents on petitioner.
Surprisingly though, respondent Court, through Hon. Melecio A.
Genato, a temporary judge assigned thereat, issued an order dated March 9, 1978
dismissing the case not on the basis of the grounds alleged by private
respondents in their motion to dismiss but on the grounds that there was no
malice or bad faith in the severance of the water connection of petitioner and
that private respondents had already reconnected the same. The dispositive portion thereof states:
“WHEREFORE, the above entitled case is hereby dismissed for
being moot and academic without pronouncement as to costs.
SO ORDERED.”[2]
A motion for reconsideration was thus filed by petitioner where
he assailed the said order of dismissal for having been rendered in violation
of Section 1, Rule 36, Revised Rules of Court and for not being correct because
although his water service has been reconnected, he has suffered damages which
could be proved by him in an impartial proceeding. He also assailed the said order, denominating it as a
“midnight order” because on March 9, 1978, “the Clerk of Court
officially showed Hon. Melecio A. Genato the telegram of Hon. Bienvenido A.
Ebarle to schedule trials from March 10, 1978 to March 17, 1978 indicating that
he has already and previously taken his oath.”[3]
An opposition thereto was filed by private respondents disputing
only the claim of petitioner that the order dated March 9, 1978 was a midnight
order. Petitioner filed a
“rejoinder” reiterating that the order of dismissal is a midnight
order citing the cases of Siazon vs. Hon. Judge of CFI of Cotabato, Branch II, L-29354, January 27, 1969, 26
SCRA 664 and Li Siu Liat vs. Republic of the Philippines, L-25356,
November 25, 1967, 21 SCRA 1039. By
reason of the number of arguments on the issue of whether the order dated March
9, 1978 is a midnight order or not, the respondent Court, through Hon.
Bienvenido A. Ebarle, considered the motion for reconsideration as mainly
anchored on the lack of authority of Judge Genato. In denying the said motion, the Court held in an order dated
April 18, 1978, as follows:
“While it may be true that Judge Genato might not have the
authority anymore to issue the said order in view of the pertinent citations
made by plaintiff, the more important thing to consider is the intrinsic merit
of the complaint in relation to the order of dismissal. The Court has gone over the pleadings of
both parties, closely studied the issues involved, and weighed the preponderance
of their implication carefully.
“The cause of action as admitted by plaintiff is the alleged
arbitrary disconnection by defendants of plaintiff’s water pipes. However, it appears that plaintiff was not
singled out in the matter of water pipes disconnection, for aside from him,
there were three other consumers whose connections were ordered cut and in
fact disconnected about the same time and/or occasion, an official act of
defendants indicating absence of malice.”[4]
In assailing the order of dismissal dated March 9, 1978 which was
affirmed in the order dated April 18, 1978, petitioner contends in this instant
petition for certiorari and/or mandamus with this Court that said dismissal
cannot be on lack of cause of action because the complaint alleged sufficient
facts to show that his rights have been seriously violated by private
respondents. He also argues that it cannot
be a judgment on the pleadings because the facts are controverted. He thereby concludes that respondent Court
has gravely abused its discretion amounting to lack or excess of jurisdiction
when it dismissed the case without any evidence presented by both parties in
support of their respective positions considering that the allegations of the
pleadings controvert each other. He
likewise contends that he has no appeal nor any plain, speedy and adequate
remedy in the ordinary course of law, except this present petition.
Indeed, respondent Court acted with grave abuse of discretion if
not in excess of its jurisdiction in dismissing the case. Firstly, the said order of dismissal dated
March 9, 1978 is not premised on lack of jurisdiction or on the pendency of
another case between the same parties for the same cause – the grounds alleged
by private respondents in their motion to dismiss. On this score, it has been held in the case of Malig, et al.
vs. Bush,[5]
that dismissal of actions on grounds not alleged in the motion to dismiss is
improper for in so doing, a court in effect dismisses an action motu proprio
without giving the plaintiffs a chance to argue the point and without
receiving any arguments or evidence on the question.
But while in the aforecited Malig case, the order of
dismissal is based on one of the grounds enumerated in Section 1 of Rule 16,
Revised Rules of Court, namely: prescription,
the order herein brought to Us for review is not based on any of them. In a rather summary fashion, respondent
Court made a finding on the basis merely of the pleadings filed and without
conducting any hearing, that there is no malice or bad faith on the part of
private respondents in their act of severing petitioner’s water supply. Respondent court also noted the fact that
private respondents had reconnected the water pipes or water service of
petitioner and erroneously concluded that the case has become moot and
academic.
To all intents and purposes, respondent Court decreed the
dismissal on its own initiative as in the case of Manila Herald Publishing
Co., Inc. vs. Ramos, et al.[6]
where neither a motion to dismiss nor an answer had been made when the decision
was handed down. In granting the writ
of certiorari, this Court ruled therein that: “Section 1 of Rule 8 (now Section 1 of Rule 16) enumerates the
grounds upon which an action may be dismissed, and it specifically ordains that
a motion to this end be filed. In the
light of this express requirement we do not believe that the court had power to
dismiss the case without the requisite motion duly presented. x x x The only instance in which, according
to said Rules, the court may dismiss upon the court’s own motion an action is,
when the ‘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 the Rules or
any order of the court’.”
The real cause for concern, though, is not so much the dismissal
of the case for lack of presentation of the requisite motion but rather the
dismissal thereof without affording petitioner an opportunity to be heard
despite the presence of factual issues that needed to be proved.
In the case at bar, respondents premised their right to cut off
the water service connection on the violation of petitioner’s water service
contract[7]
which is the contract signed by petitioner with the National Waterworks and
Sewerage Authority on September 16, 1958 to which private respondent Misamis
Occidental Water District claims it has been subrogated. The said contract provides the following:
“3. To pay
monthly the NWSA for the water service furnished upon presentation of the bill
or within thirty (30) days from its presentation.”
“6. That the
NWSA may disconnect the service upon violation of the term of the
contract.”
In addition to the said contract, private respondents also
presented their “Notice to the Public”[8]
where the water consumers were likewise informed that upon failure to settle
their bills within the collection period, their water service will be shut
off. Thirdly, they annexed to their
comment on this petition a facsimile copy of the monthly bill[9]
furnished each water consumer wherein it is stated” that “service may
be disconnected immediately if payment of the bill is not made to the field
collector after due date.”
Indeed, all these empower the private respondents to disconnect the
water service of the consumers upon failure to pay. But the question posed by petitioner is whether or not there is
really failure to pay on his part. It
is his contention that there is no failure as he was sent water bills that did
not indicate the meter readings, the number of cubic meters consumed and the
amount to be paid.
Inasmuch as private respondents deny these allegations of
petitioner, an issue of fact exists that requires presentation of proof. If the allegations of petitioner are true, private
respondents are not at all authorized to cut off his water service as the
collection period as to him would not have even started yet. For an obligation to become due, there must
be a demand.[10]
Default generally begins from the moment the creditor demands the performance
of the obligation. Without such demand,
judicial or extrajudicial, the effects of default will not arise.
It is to be noted that private respondents attached to their
comment on this petition only a facsimile copy of the water bill issued to
consumers while they presented to this Court a xerox copy of the contract
between NWSA and the petitioner, and a xerox copy of the final notice, not just
facsimiles thereof. Although the issue
of the effectivity of the denial of private respondents as to the alleged
sending of blank bills is not for this Court to determine, it would not be
amiss to state that private respondents could have easily annexed also a xerox
copy of the water bill sent to petitioner, if only to belie the latter’s claims.
At any rate, private respondents also argue that petitioner could
have paid his account when the final notice[11]
to pay was sent him since he was then already certain of the amount of the
bill. This final notice is the notice
of disconnection, served on the day the service was cut off.
Petitioner, however, contends that this was the first time he
ever came to know of the sum due from him and besides, he claims that only the
total amount due for the months of November and December, 1977 was stated. There is no specification of the amount due
for each month, the meter readings and the number of cubic meters consumed,
thus, leaving him uncertain as to how the amount was arrived at. Assuming the truth of these allegations,
private respondents would not have been entitled still to cut off petitioner’s
water supply at the time they cut it off as the demand did not contain the
requisite details and hence, improper. And even if the sufficiency of the demand is conceded, petitioner has
still thirty days from date of such knowledge within which to pay the same in
accordance with the contract and the avowed policy of the water district.
Verily, the above discussion shows the need of presentation of
proof for the respective allegations of the parties. For the respondent Court to make a summary finding of lack of
malice or bad faith on the part of private respondents from those controverted
facts and then decree the dismissal of the case is, therefore, violative of due
process. In view of the doubtful
question of facts presented herein, respondent court, in the exercise of sound
discretion, should have refused to consider and decide in a summary manner and
should have allowed the parties to present proof in support of their respective
stand. This is because the right to a
hearing, which is the right of the parties interested or affected to present
their respective cases and submit evidence in support thereof, is one of the
primary cardinal rights of litigants.
The importance of this right has been underscored in several
cases of this nature decided by this Court. In one of such cases, De Leon vs. Henson,[12]
this Court ruled that the dismissal of an action upon a motion to dismiss constitutes
a denial of due process, if, from a consideration of the pleadings, it appears
that there are issues of fact which cannot be decided without a trial of the
case on the merits. Similarly, in Constantino
vs. Estenzo,[13]
citing Garanciang, et al. vs. Garanciang, et al.[14]
and Boñaga vs. Soler,[15]
it is Court held as follows:
“x x x Summary or outright dismissals of actions are not
proper where there are factual matters in dispute which need presentation and
appreciation of evidence. The demands
of a fair, impartial and wise administration of justice call for a faithful
adherence to legal precepts on procedure which ensure to litigants the
opportunity to present their evidence and secure a ruling on all the issues
presented in their respective pleadings. ‘Short cuts’ in judicial processes are to be avoided where they impede
rather than promote a judicious dispensation of justice.”
WHEREFORE, the petition for certiorari and/or mandamus is
hereby GRANTED, the Orders dated March 9, 1978 and April 18, 1978 dismissing
the complaint of petitioner for damages and denying the motion for reconsideration
thereof, respectively, are set aside for being null and void, and respondent
Court of First Instance of Misamis Occidental, Branch II is hereby ordered to
try the case on the merits after conducting a pre-trial conference.
SO ORDERED.
Teehankee, (Chairman), Makasiar, Fernandez, De Castro, and Melencio-Herrera, JJ., concur.
[1]
Annex “B”, Petition, p. 15, Rollo.
[2]
Annex “D”, Petition, p. 20, Rollo.
[3]
Annex “E”, Petition, p. 21, Rollo.
[4]
Annex “H”, Petition, pp. 27-28, Rollo.
[5]
G.R. No. L-22761, May 31, 1969, 28 SCRA 449.
[6]
88 Phil. 94.
[7]
Annex “4-a”, Respondents’ Comment, p. 57, Rollo.
[8]
Annex “4-k”, Respondents’ Comment, p. 67, Rollo.
[9]
Annex “4-l”, Respondents’ Comment, p. 69, Rollo.
[10]
Art. 1169, New Civil Code.
[11]
Annex “4-N”, Respondents’ Comment, p. 72, Rollo.
[12]
L-11639, April 29, 1961, 1 SCRA 1171.
[13]
L-40403, July 31, 1975, 65 SCRA 675.
[14]
L-22351, May 21, 1969, 28 SCRA 229.
[15]
L-15717, June 30, 1961, 2 SCRA 755.