JAIME BALITE, PETITIONER, VS. THE HON. JUDGE DOMINGO CABANGON, DELFIN MACADANGDANG, ET AL., RESPONDENTS.

As alleged co-owners of a 15-hectares parcel of
land in Sta. Ines East, Sta. Ignacia
municipality, Tarlac, Delfin
Macadaeg and six others filed on June 3, 1963 a peti­tion for ejectment against the tenant, Jaime Balite,
in the Court of Agrarian Relations, third regional district.  Stated as ground therefor was their
desire and intention to till their own land, the tenant having allegedly agreed
to surrender it to them for this purpose.

Tenant Balite filed on May 26, 1964 his answer, re­sisting
the petition, stating that, per amicable settlement of another case, the petitioners-landowners
had agreed NOT to eject him.  Subsequently, on August 28,
1964, an amended petition was filed with substantially the same allegations.

On September 26, 1964,
at 10 a.m., pre-trial confer­ence was called as scheduled.  Neither the tenant nor his counsel was
present.  And thereupon the court
declared said tenant in default.

At around 11:25 a.m.
that same day, respondent te­nant’s
lawyer arrived and filed a motion to lift the de­fault order, stating
that he arrived late due to traffic delay.  Altho the lawyer was only an hour and 25 minutes late,
said motion was denied on October 3,
1964 on the ground it was not under oath as required by the
Rules of Court.  Respondent tenant’s
counsel received the denial order on October 9, 1964.

The next move of respondent tenant’s counsel was to file on October 21, 1964 a motion for leave to
amend the motion for reconsideration. 
This, too, was denied on October 29, 1964, the denial order
being served on November 20, 1964.  A motion for reconsideration of said denial order,
and of the first order dated October 3, 1964 maintaining
defendant in default, was further lodged on November 27, 1964.  It was denied on
December 16, 1964 and
service of the denial was made on December
21, 1964.

Finally,
therein respondent’s counsel filed in the same court a petition for
relief from the default order.  For the
reason that it was late, the same was denied on January
13, 1965.

On
February 3, 1965, respondent tenant filed herein the petition
at bar for prohibition, with prayer for preliminary mandatory injunction, asking that
respondent Judge be ordered to desist from receiving petitioner-landholders’
evidence below; to lift the default order; and to allow him to
present his evidence.  No preliminary
injunction was
granted by Us but respondents were required to
answer.  Submission of the case on May 19,
1965 followed
after said
answer was filed and the case was heard.

The Rules of Court provides that a petition for re­lief from
judgment or other proceeding must be filed “within sixty (60) days after
the petitioner learns of the judgment,
order, or other proceeding to be set aside, and not more than six (6)
months after such judgment or order
was entered, or such proceeding was taken” (Sec. 3, Rule 38, Rev. Rules of Court).

It is at once evident from the record that respon­dent Judge erred in finding that the
petition for relief was filed 83
days after receipt on October 9, 1964 of copy of the order sought to be set aside.  In reaching said conclusion, respondent Judge
said:  “From October 9, 1964 to November 27, 1964 [When a motion for reconsideration was filed], there has elapsed a period of 67 days.  The motion for
reconsideration was denied on December
16, 1964 and this order of denial… was served
upon the defendant, thru counsel on December
21 1964…. From December 21, 1964
to January 5, 1965 [when
petition for relief
was filed], there has lapsed a period of 16 days 67 days plus 16 days
equals 83 days.”  (Petition,
Annex M, p. 4.) Actually, however, from October 9, 1964
to November 27, 1964 is
only 49 days, not 67; from December 21, 1964 to January 5,
1965 is,
indeed, 16 days.  So 49
days plus 16 days equals 65 days in all.

The petition, therefore, was late for only five days, not for
twenty-three days.

Now the rulings of this
Court in regard to the 60?
day period requirement, is that a few days in excess there­of would not
be fatal, as long as the petition for relief is filed, as in this case, within six (6)
months from the date the order was issued (Prudential Bank v. Macadaeg, L-10454, May 25, 1959; Angala v. Tan, L-10562, Oct. 31,
1959).  Adding to this the fact that the
present case involves the Court of Agrarian
Relations which, altho governed by the Rules
of Court, is not bound by technicalities of procedure (Sec. 155, Agricultural Land Reform Code),
the dismissal of the said petition for being late constituted serious abuse of discretion
remediable by certiorari.  Altho the new Rules of Court provides for appeal from the
denial of a petition for relief (Sec. 2, Rule 44) said remedy would not have been sufficient or timely, especially because appeal does
not stay execution of a decision of
the Court of Agrarian Relations (Sec. 10, Rule 43, Rules of Court).

WHEREFORE, respondent Judge’s order dismissing the petition
for relief is hereby set aside and further proceedings on said petition for relief, in
accordance with Sections 4 to 7 of
Rule 38, Revised Rules of Court
are hereby ordered, staying in the meantime the proceedings in the petition for ejectment,
until the petition for re­lief is finally resolved.

SO ORDERED.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez, and Castro, JJ., concur.

Dizon, A.P. J., separate concurring
opinion.