G.R. No. L-28505. August 29, 1969

PHILIPPINE NATIONAL BANK, PLAINTIFF-APPELLEE, VS. ESTANISLAO PINEDA,  DEFENDANT-APPELLANT.

Decisions / Signed Resolutions August 29, 1969 SANCHEZ, J.:
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SANCHEZ, J.:


From a judgment of the City Court of Manila[1]
which reads: “WHEREFORE, judgment is hereby rendered ordering the
defendant to vacate the premises within six (6) months from receipt of this
Decision, provided he pays the rent in arrears in the sum of P149.60 as of
April 30, 1967, and updates the payment of rental within ten (10) days from
receipt of this Decision, provided, how­ever, that defendant shall not be
entitled to the said 6-month grace should he fail to make the above-stated
payments.  Attorney’s fees in the amount
of P50.00 and costs are assessed against defendant”, defendant appealed to
the Court of First Instance of Manila.[2]
Issues having been joined in the latter court, the case was
set for pre-trial.  After the case was
repeatedly called for the scheduled pre-trial on October 20, 1967, the last time at 9:05 a.m., defendant and his coun­sel failed to
appear.  The court dismissed the appeal
for failure to prosecute. Defendant’s
efforts at reopening were thwarted below. He came to this Court on appeal.

We vote to affirm. First. Defendant and his counsel’s failure to appear is a ground to authorize dismissal for failure to prosecute. The
judgment of the inferior court is thus revived.[3]
Defendant’s excuse for his failure to appear at the scheduled pre­trial was
that his counsel, Atty. Pompeyo L. Bautista, had with­drawn
from the case as his attorney. Correctly did the lower court state that this
excuse is “very flimsy.“[4]
With reason. 
The record does not bear out such withdrawal. Under the law, notices are
given to counsel.[5]
Second.  Defendant has not shown
any valid defense. It is conceded that he is a lessee without a fixed
term.  This explains the fact that the
City Court gave him time to vacate the premises.  Nor will his averment that he has a
residential house on the land advance his cause.  He may not, as he claims, require reimbursement of one-half of the value
thereof.  Because, the
option to acquire the improvements is on the owner of the land.
[6]
So that reopening of the case will be futile. [7]

Judgment affirmed.

Costs
against defendant-appellant.

SO ORDERED.

Concepcion, C.J., Dizon,
Makalintal, Zaldivar,
Castro, Fernando, Capistrano and Teehankee, JJ., concur.

Barredo, J., concur
in the result.  See separate opinion.

Reyes, J., is on official
leave.


[1]
Civil Case 153045, City Court of Manila, entitled “Philippine National
Bank, Plaintiff, versus Estanislao Pineda,
Defendant.”

[2]
Civil Case 69965, Court of First Instance of Manila, Branch V, entitled
“Philippine National Bank, Plaintiff, versus Estanislao
Pineda, Defendant.”

[3]
Section 9, Rule 40, Rules of Court; Vda.
de Palanca vs. Chua
Deng Klan (1969), 27 SCRA 356, 365.

[4]
Record on Appeal, p. 40.

[5]
Section 2, Rule 13, Rules of Court.

[6]
Article 1678, Civil Code of the Philippines. See: Lapeña vs. Morfe, 101 Phil. 997, 1001.

[7]
Cf. De la Cruz vs. Burgos,
G.R. No. L-28095, July 30, 1969


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CONCURRING OPINION

 BARREDO, J.:

I concur in the result.

To my mind, this case is quite different from
the case of Vda. de Palanca vs. Chua Keng
gian, 27 SCRA 356, wherein I dissented. In the Palanca case,
the Court of First Instance dismissed defendant’s appeal for failure to
prosecute only because he had not taken any move to
have the case
calendared even for pre-trial for an unreasonable length of time. In the case at bar, the re­cord shows that the same had been set
for pre-trial
se­veral times and the cause of the dismissal of
the appeal was precisely the failure of defendant-appellant to appear thereat.
Under 3 of Rule
20, “if at the pre­trial the court finds
that facts exist upon which
a
judg­ment on the
pleadings or a
summary judgment may
be made, it
may render judgment on the
pleadings or a summary judgment as justice may require.” I imagine
that while His Honor may not have actually held any pre-trial, His Honor must have gone somehow over the pleadings, and since, as explained in the main opinion, it is
obvious from the records
that
defendant-appellant
has no sub­stantial
defense on the merits, I would regard the here­in questioned order of dismissal of defendant-appellant’s
appeal as virtually a judgment on the pleadings,
consi­dering that its effect
is to revive the inferior
court’s
judgment against
the defendant-appellant. It is my be­lief that the rules an
pre-trial are broad
enough to
enable courts
to adopt any measure, conducive to the early and expeditious termination of any case, which is consistent with the purposes
of a pre-trial set forth in Section 1 of Rule 20 and not
expressly
prohibited by said
rule or any law or other provision of the rules of court.