FELIX MORADA, PETITIONER, VS. THE HONORABLE HERMOGENES CALUAG, JUDGE, COURT OF FIRST INSTANCE, QUEZON CITY AND J. M. TUASON, CO., INC., RESPONDENTS.

Petition for mandamus with preliminary injunction filed by Felix Morada
against J. M. Tuason, Co., Inc. and the Hon. Hermogenes Caluag, Judge of the
Court of First Instance of Quezon City, to compel the latter to allow the filing
of a third-party complaint in Civil Case No. 4473 of said court, and to restrain
him from continuing with the trial of said case until final determination of the
instant petition.

On May 21, 1959, J. M. Tuason Co., Inc. filed an action in the Court of First
Instance of Quezon City presided by the respondent judge to recover from
petitioner the possession of a parcel of land (Civil Case No. Q-4473). The
complaint alleged that the plaintiff was the registered owner of a parcel of
land known as the Santa Mesa Heights Subdivision, situated in Quezon City,
covered by Transfer Certificate of Title No. 1267 (37686-Rizal) of the Registry
of Deeds of Quezon City, and that on or about May 26, 1957, petitioner, by means
of force, strategy and stealth, unlawfully took possession of a portion thereof
with an area of 1,000 square meters, more or less, and constructed his house
thereon. Upon these facts the plaintiff prayed that judgment be rendered
ordering petitioner to vacate the said land, to remove his house and other
constructions thereon, and to pay damages.

In his answer to the complaint, petitioner alleged that he was the owner of
the land in question, his wife having acquired it in 1946 from its owner, Roman
Mendoza, and alleged further that the property was part of a bigger parcel which
had been authorized for expropriation by the government.

On December 8, 1959, petitioner filed a motion to suspend the trial of the
case under Republic Act 1162, as amended by Republic Act 2342 and Republic Act
2616. On January 15, 1960, the court denied the motion and set the case for
trial on February 17, 1960. On that date, petitioner filed a motion for
reconsideration of the last mentioned order, but the same was denied. However,
the trial of the case was reset for June 30, 1960.

On June 20, 1960, petitioner filed a motion for leave to file a third-party
complaint against Roman Mendoza—the party who allegedly sold the property to his
wife. Five days thereafter, respondent judge denied said motion as “it appears
from defendant’s answer that it was his wife and not he who bought this lot from
the proposed third-party defendant, and since she is not a party in this case,
the third-party complaint should not be allowed, because the wife alone has the
right to enforce the warranty of eviction.”

Upon petitioner’s motion for a clarification of the order of denial, the
respondent judge, on January 7, 1961, issued an order explaining that under
Article 1559 of the New Civil Code the period for a defendant-vendee to file a
third-party complaint against his vendor for his warranty against eviction is
within the time fixed in the Rules of Court for answering the complaint and that
said period had long expired in the present case.

The undisputed facts of this case make it obvious that, as between
petitioner—who wanted to file a third party complaint against Roman Mendoza—on
the one hand, and the latter, on the other, there is no privity of contract in
relation to the property in litigation. It was petitioner’s wife—who allegedly
purchased said property from Mendoza—who had the right to sue the latter to
enforce his warranty against eviction. It seems clear, therefore, that
respondent judge committed no error in denying petitioner’s motion for leave to
file a third-party complaint against Mendoza. To allow or not to allow the
filing of a third-party complaint is a matter that rests within the sound
discretion of the court (Section 1, Rule 12, Rules of Court). On the other hand,
the writ of mandamus cannot be issued to control the discretion of a judge or to
compel him to decide a motion pending before him in a particular way (Dy Cay vs.
Crossfield 38 Phil. 521). To all these we must add that, for a party to be
entitled to the writ of mandamus, he must show that he has a clear legal right
to the performance of the act to be required of the respondent—which herein
petitioner cannot do, having alleged in his answer that it was his wife who had
purchased the property in question from the would be third party defendant. What
should have been done before the filing of the motion denied by respondent judge
was to have petitioner’s wife intervene in the action. Once admitted as an
intervenor, she could have been allowed to file a third party complaint against
her alleged vendor.

Having arrived at the above conclusion, we find it unnecessary to decide
whether, under Article 1559 of the New Civil Code, the filing by a
defendant-vendee of a third party complaint against his vendor to enforce his
warranty against eviction must necessarily be filed within the time fixed in the
Rules of Court for answering the complaint.

Wherefore, the writ prayed for is denied, and the writ of preliminary
injunction issued heretofore is hereby dissolved. With costs against
petitioner.

Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Concepcion, Barrera,
Paredes, Regala, and Makalintal, JJ., concur.