FELICISIMA BALLECER AND JOSE S. AGAWIN, PETITIONERS, VS. JOSE BERNARDO, THE HON. JESUS P. MORFE, PRESIDING JUDGE, BRANCH XIII OF THE COURT OF FIRST INSTANCE OF MANILA, AND THE S…

This is an original action to set aside several orders of the Court
of First Instance of Manila, in Civil Case No. 43073 thereof, as well
as an alias writ of execution and a notice of sale issued in
connection therewith. Upon the filing of the petition and the
submission and approval of a bond in the sum of P1,000.00, on motion of
petitioners herein, we issued a writ of preliminary injunction
enjoining respondent Judge and the Sheriff of Manila from carrying out
the aforementioned writ of execution.

Petitioners herein are the spouses Jose S. Agawin and Felicisima
Ballecer. On May 4, 1960, they instituted said Civil Case No. 43073
against respondent Jose Bernardo, to recover damages allegedly caused
by him in consequence of the destruction and demolition of a portion of
a wall of the petitioners, along the common boundary line of their lot
and that of Bernardo, at Felix Huertas Street, Manila, as well as to
recover possession of a portion of petitioners’ aforementioned lot,
with an area of 0.80 square meters, which was allegedly encroached upon
by the wall subsequently erected by Bernardo in place of the one he had
destroyed.

In due course, Bernardo filed his answer denying petitioners’
averments, and alleging, in turn, that the demolition and destruction
made by him had taken place within the boundary of his own property. By
way of counterclaim, Bernardo set up two (2) causes of action, namely:
(1) that petitioners were the parties who had encroached upon and
occupied a portion of Bernardo’s property, with an area of about 3.70
square meters, without his consent and against his will, and (2) that
petitioners’ complaint is premature, uncalled for, capricious and
without any justifiable cause, for which reason Bernardo prayed that
they be sentenced to vacate his aforementioned portion of land
allegedly encroached upon by them and to turn it over to him, and to
pay damages aggregating P48,000.00.

On the last day of the reglementary period to answer the
counterclaim, or on June 6, 1960, petitioners filed an ex parte urgent
motion for extension of time therefor, but on June 11 the motion was
denied and ordered stricken off the record. Then, on June 13, the court
declared petitioners in default as to the counterclaim and ordered
Bernardo to present his evidence thereon before the Deputy Clerk of
Court on June 15, at 9:00 a.m., which Bernardo did. On June 20, the
court rendered a decision the dispositive part of which reads:

“WHEREFORE, the Court hereby renders judgment on the
counterclaim in favor of the defendant-counterclaimant and against the
plaintiffs, as follows:

“1. Ordering the plaintiffs and/or
their agents and representatives including all persons claiming under
them to deliver and restore the possession thereof to the defendant,
that portion of said defendant’s property consisting of 3.7 square
meters which is being encroached upon and occupied by or in possession
of the plaintiffs;

“2. Ordering plaintiffs to pay, jointly and severally, the defendant the following sums, to wit:

“(a)
P3,625.00 as compensatory damages which the defendant failed to realize
in the form of rentals from that portion of his property subject matter
of the counterclaim, corresponding to the period from May, 1948 to May,
1960, with interest thereon at the legal rate from the date of filing
of the answer with counterclaim until fully paid; plus the sum of
P25.00 for each month thereafter until the premises in question are
actually delivered to the possession and occupation of the defendant;

“(b) P541.00 as actual damages incurred by the defendant;
“(c) P10,000.00 as moral damages;
“(d) P2,000.00 as exemplary damages; and
“(e) P1,000.00 as attorney’s fees.

“With costs against the plaintiffs.”

On June 28, petitioners moved for a reconsideration of the orders of
June 11 and 13, but the motion was denied on July 1. Thereupon,
petitioners filed a petition for relief from judgment, with a prayer
for a writ of preliminary injunction, to restrain the Clerk of Court
from issuing a writ of execution. After denying this petition, the
Court, on petitioner’s motion for reconsideration, granted it on
January 18, 1961, only to deny it once more, on February 4, on motion
for reconsideration filed by Bernardo. Forthwith, or on February 8,
petitioners filed their notice of appeal. Soon thereafter, petitioners
sought an extension of time to file their appeal bond and their record
on appeal, but the motion was denied, on February 18, for lack of
merit. On March 18, the Court ordered the issuance of a writ of
execution, but, on April 11, the execution of the decision of June 20,
1960, was ordered stayed pending trial on the merits on petitioners’
complaint.

On motion of Bernardo, dated December 19, 1962, said order was, on
January 29, 1963, set aside and the issuance of a writ of execution
“only as to paragraph No. 1 and paragraph No. 2-a of the dispositive
part” of the aforementioned decision, was ordered. A reconsideration of
this order having been denied, the Clerk of Court issued an alias writ
of execution and, in pursuance thereof, the Sheriff of Manila caused to
be published a notice of sale at public auction of a property of
petitioners herein. Hence, the present case against Bernardo, the Judge
of the lower court and the Sheriff of Manila.

The main question for determination in this case is whether the
lower court has gravely abused its discretion in declaring the
petitioners in default and in rendering judgment against them on
Bernardo’s counterclaim after an ex parte hearing. It is obvious that the answer must be in the affirmative.

To begin with, a motion for extension of time to file an answer to
the counterclaim had been filed within the reglementary period and
plausible reasons were given in support thereof: counsel for
petitioners had been unable to contact them owing to a typhoon that had
just hit Manila, and the flood and inclement weather that had followed.

The main reason for the lower court’s adverse action thereon would
seem to be petitioners’ failure to set it for hearing as provided in
the Rules of Court. But, there are motions that may be heard and
granted ex parte, and petitioners’ aforementioned motion belongs to
such class. Thus in Moya v. Barton (76 Phil. 831, 833) it was held:

“With respect to the other ground, Section 2, of
Rule 27 provides that ‘every motion other than one which may be heard
ex-parte x x x x shall be filed with the court, and served upon the
parties affected thereby.’ Taking into consideration that the extension
of time applied for may be shorter than the time required to have a
motion set for hearing and acted on by the court, and that the court
has, as above stated, discretion to grant the petition, the motion for
extension filed in the present case may be considered as one which may
be heard ex-parte. x x x.”

What is more, Bernardo’s counterclaim was predicated upon
allegations of fact which are inconsistent with, and, hence,
controverted by, the allegations in petitioners’ complaint. In this
connection, it should be noted that Bernardo had, according to the
complaint, encroached upon petitioners’ property, whereas Bernardo
maintained the exact opposite in his counterclaim – not only that
petitioners’ allegation was not true, but, also, that they were the
ones encroaching upon the property of Bernardo. Certainly, this
contention, of Bernardo can not be decided without passing upon the
truth of the allegations in the complaint, which petitioners are
entitled to prove, whether they had answered Bernardo’s counterclaim or
not. In other words, the issues raised in the counterclaim were
inseparable from those posed in the complaint, and so it was not
absolutely necessary for the petitioners to file an answer to the
counterclaim (Arejola vs. Cayetano, L-6673, Sept. 8, 1954; Gomez vs.
Martinez, L-4473, Sept. 30, 1952). In the language of Mr. Justice Reyes
(J.B.L.), speaking for the Court in Navarro v. Bello (54 O.G. 6588):

“There was no need for petitioners to answer
respondents’ counterclaim, considering that plaintiffs, in their
complaint, claimed not only ownership of, but also the right to
possess, the parcels in question, alleging that sometime in May, 1954,
defendants, through force and intimidation, wrested possession thereof
from their tenants, and that it was upon a writ of possession issued by
the Court of First Instance of Pangasinan that they were placed back in
possession by the provincial sheriff. These averments were denied by
defendants in their answer, wherein they asserted ownership in
themselves and illegal deprivation of their possession by plaintiffs,
and as counterclaim, prayed for damages allegedly suffered because of
plaintiffs’ alleged usurpation of the premises.

“It thus
appears that the issues of the counterclaim are the very issues raised
in the complaint and in the answer, and said counterclaim is based on
the very defenses pleaded in the answer. To answer such counterclaim
would require plaintiffs to replead the same facts already alleged in
their complaint.

“But in any event, whether or not plaintiffs
have answered defendants’ counterclaim, they have the right to prove
the averments of their complaint, including their claim that it was by
court order that they secured possession of the parcels in question
from defendants. And if plaintiffs are able to prove such allegations,
then the court must dismiss defendants’ counterclaim for damages, since
the illegal usurpation of defendants’ possession allegedly committed by
plaintiffs, which is the basis of the counterclaim, would not have been
proved. In short, the issues of the counterclaim are so inseparable
from those of the complaint and the answer that such counterclaim
partakes of the nature of a special defense which, even if not
specifically challenged by plaintiffs in a reply, is deemed
controverted (Rule 11, Sec. 1, Rules of Court; Rosario v. J. Martinez,
L-4473, September 30, 1962; Lama v. Apacible, 79 Phil. 68). There was,
therefore, no occasion for plaintiffs’ default on defendants’
counterclaim, and the order of the court below declaring them in
default, as well as the judgment by default, is improper and void.”

The lower court committed, therefore, a grave abuse of discretion,
amounting to excess of jurisdiction, in declaring the petitioners in
default as regards the counterclaim, and in rendering a decision in
default against them on said counterclaim, and, as a consequence, said
decision is null and void, and so are the aforementioned writ of
execution, alias writ of execution, and notice of sale issued by the
Sheriff in pursuance thereof.

WHEREFORE, the orders complained of, as well as said writ of
execution and alias writ of execution, and the notice of sale adverted
to above, including the decision of June 20, 1960, are hereby annulled
and set aside, and the writ of preliminary injunction heretofore issued
by this Court is, accordingly, made permanent, with costs against
herein respondent Jose Bernardo.

IT IS SO ORDERED.

Reyes, J.B.L., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, and Ruiz Castro, JJ., concur.
Barrera, J., on leave.