CONCORDIA T. ARONG, PETITIONER, VS. CONRADA SENO, MOISES BINGHAY AND JOSE C. BORROMEO, JUDGE, FOURTH BRANCH, COURT OF FIRST INSTANCE OF CEBU, RESPONDENTS.

Petition for a writ of certiorari to annul certain orders of
Honorable Jose C. Borromeo, as Judge of the Court of First Instance of Cebu,
denying a motion of petitioner Concordia T. Arong for the admission of an
amended answer in Case No. R-6279 of said Court.

The facts are not disputed. 
On August 17, 1959, the es­pouses Conrada Seno and Moises Binghay –
hereinafter referred to collectively as the Binghays – commenced said Case No.
R-6279, against the spouses Salome M. Ceniza and Nicasio Tuñacao – hereinafter
referred to collectively as the Tuñacaos – ­for the foreclosure of a real
estate mortgage constituted by the latter. 
Upon being summoned, the Tuñacaos filed, on Septem­ber 1, 1959, their
answer with a counterclaim.  On November
17, 1963, sometime after the Binghays had began presenting their evidence, Mrs.
Tuñacao died.  Notice thereof was, on
December 2, 1963, filed with the lower court, which, accord­ingly, ordered her
heirs to appear, within thirty (30) days, in substitution of the deceased, as
one of the defendants in the case.  Soon,
thereafter, or on May 27, 1964, the daughters of Mrs. Tuñacao – namely, Macaria
T. Agcang, Concordia T. Arong, Cornelia T. Rotea and Esperanza T. Rodriguez –
and Mr. Tuñacao filed a motion praying that the Binghays be or­dered to amend
their complaint by naming them as defendants, in lieu of the deceased, but no
action appears to have been taken thereon.

On October 22, 1964, one of said movants, namely Con­cordia T.
Arong – hereinafter referred to as the petitioner – filed an answer with a
counterclaim.  On motion of the Binghays,
this pleading was, on March 12, 1965, ordered stricken out.  Presently, or on April 21, 1965, petitioner
and her aforemen­tioned sisters, filed a motion to admit the amended answer
attached thereto.  The Binghays objected
thereto, and this object­ion was sustained by the lower court, presided by
respondent Judge Borromeo, in an order dated August 16, 1965.  A recon­sideration of this order having been
denied, on October 21, 1965, petitioner instituted the present action for
certiorari, against the Binghays and Judge Borromeo, alleging that the latter
had committed a palpable abuse of discretion and acted “without and/or in
excess of jurisdiction” in issuing said order of Aug­ust 16, 1965.  On petitioner’s motion, and upon the posting
of a bond in the sum of P1,000, we issued a writ of preliminary injunction
restraining respondent Judge from taking further proceedings and/or action in
said case.

Petitioner maintains that, as one of the defendants in case No.
R-6279, she has “a right to defend” herself in the lower court
“for all purposes, until final judgment;” that she was the real
debtor in the obligation guaranteed by the real estate mort­gage, sought to be
foreclosed by the Binghays; that, as such debtor, she had made several payments
to the Binghays; and that, such payments gave her the right to file a
counterclaim of a compulsory nature, which would be barred unless set up in
said case.

It should be noted, however, that petitioner is merely one of the
substitutes for her deceased mother, as a defendant in that case, who had filed
her own answer therein.  Inasmuch as the
case had already been set for hearing, and, in fact, the same had actually
begun, with the presentation of evidence for the Binghays, said answer can be
amended “only upon leave of court,” which “may be refused”
– pursuant to Section 3 of Rule 10 of the Rules of Court – “if it appears
to the court x x that the x x defense is substantially altered.” Such is
the nature of the “amended answer” sought to be filed by petitioner
herein, for, in said pleading, she set up the defense of “usury,”
which is not alleged in the answer of her deceased mother.  Hence, respondent Judge did not err, much
less commit an abuse of discretion or exceed his jurisdiction, in denying
petitioner’s motion for the admission of her amended answer.^[1]

It is not true that, unless said “amended answer” be ad­mitted,
petitioner would be barred from deducting the payments allegedly made by her
from the sum claimed by the Binghays. 
The answer of Mrs. Tuñacao alleges that she was merely “an accommodation
party” for petitioner herein.  Upon
the other hand, the Binghays alleged in their complaint that the sum of P23,110
is still due to them under the loan guaranteed by said mortgage.  Consequently, petitioner may, under the
answer of Mrs. Tuñacao, endeavor to establish that the amount due to the
Binghays is less than said sum, by introducing evidence of the payments
allegedly made by the former, as the accommo­dated party mentioned in said
answer.

WHEREFORE, the petition herein is dismissed, the writ
prayed for denied, and the writ of preliminary injunction issued by this Court
on January 6, 1966 hereby dissolved, with costs against petitioner, Concordia
T. Arong.

IT IS SO ORDERED.

Reyes, Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles, and Fernando, JJ., concur.

^[1]
Lerma v. Reyes, 103 Phil. 1027, 1031-1032; Torres v. Toma­cruz,
49 Phil. 913; Alvarez v. Commonwealth, 65 Phil. 302; Uy Hoo & Co. v.
Tan, 56 O.G. 4093; Avecilla v. Yatco, 54 O.G. 6415.