TAN CHING, PETITIONER AND APPELLEE, VS. THE HON. A. GERALDEZ, JUDGE OF THE MUNICIPAL COURT OF THE CITY OF MANILA, MACARIO OFILADA, SHERIFF OF MANILA AND LAO KONG HING, RESPONDEN…

On February 5, 1955, Lao Kong Hing filed an ejectment complaint against
petitioner Tan Ching, docketed as Civil Case No. 35882, Municipal Court
of Manila, which ordered, on March 22, 1955, said Tan Ching, to vacate
the subject premises, and to pay rentals of P450.00 per month, from
January, 1955, until the same is vacated. The decision became final and
executory, in spite of which complainant therein Lao Kong Hing did not
have it executed. Instead, defendant therein was allowed to remain in
the premises, and continued paying the rentals. On the same day (March
22, 1955), Lao Kong Hing subleased the same premises to one Li Seng Lip
(Exhs. K & K-1), who in turn executed another sublease contract
(Exhs. J & J-1) the following day (March 23, 1955), in favor of Tan
Ching. Nothing transpired between the parties, in spite of the
execution of these contracts.

On December 20, 1958, however,
almost four (4) years after the rendition of the ejectment judgment,
appellant Lao Kong Hing presented in the same case an Ex-Parte
Petition for Execution of the judgment, asking for the ejectment of Tan
Ching from the premises, without making any mention whatsoever
regarding the collection of accrued rentals. Two (2) days thereafter
(December 22), respondent Judge Ambrosio Geraldez, issued a Writ of
Execution (Exh. E), ordering the respondent Sheriff of Manila to eject
appellee Tan Ching from the premises. Under date of December 26, 1958,
Tan Ching presented a Motion to Quash Writ of Execution (Exh. F),
wherein he alleged that the same was improvidently issued, since it was
obtained without benefit of hearing and prior notice and the further
fact that subsequent and contemporaneous acts of the parties, had
impliedly novated the lease agreements. The denial of the Motion to
Quash on January 10, 1959, prompted appellee herein to move for a
reconsideration, reiterating his previous contention of novation, as
far as the decision of March 22, 1955 is concerned and further arguing
that the lease contract between Lao Kong Hing and the owner of the
building had already expired and had not been renewed; and that
appellee having entered into a contract with the owner of the building,
for the lease of the same premises (Exh. L), Lao Kong Hing had no
longer any right to eject petitioner-appellee. Respondent Judge
Geraldez denied the motion for Reconsideration and ordered the
immediate ejectment of Tan Ching from the premises.

A
Special Civil Action of Certiorari with Preliminary Injunction was
instituted by Tan Ching with the CFI of Manila, questioning the Orders
of respondent judge (Writ of Execution [Exh. E]; Denial of Motion to
Quash (Exh. G); and Denial of Motion for Reconsideration (Exh. 1), Upon
appellee’s posting of a P1,000.00 bond, a writ of preliminary
injunction was issued; and respondents-appellants were ordered to
refrain from enforcing the writ of execution issued on December 22,
1958, in Civil Case No. 35882. The CFI, on February 27, 1960, rendered
judgment, the pertinent portions of which are quoted below—

“The only question presented before the Court is whether or not the
judgment to vacate the premises in question rendered by the Municipal
Court on March 22, 1955 could still be enforced as late as December,
1958. * *. The Court believes with the petitioner. Many things have
happened between March 22, 1955 when the judgment was rendered and
December 1958, when the judgment was executed.

Tan Ching
had continued to stay in the premises for more than three years paying
the corresponding rentals, a fact which, in the mind of the Court, is
sufficient to re-establish the relationship of lessor and lessee
between Tan Ching; and Lao Kong Hing, so that the former could not be
ejected from the premises unless and until a new complaint should have
been filed.

It has also proved to the satisfaction of the Court that the contract
between Lao Kong Hing, the plaintiff in the ejectment case and one of
the respondents herein on one hand, and the owner of the premises on
the other, already expired sometime in October, 1958; so that in
December, 1958 Lao Kong Hing already lost his standing in Court as
sub-lessor, for which reason, he likewise would not have any right to
ask for the execution of the judgment rendered way back in March 22,
1955.

Furthermore, it has likewise bean proved to the satisfaction of the
Court that an independent contract had been entered into between Tan
Ching and the owner of the premises, whereby Tan Ching was recognized
as a lessee of the latter, another circumstance as basis to hold that
the judgment of March 22, 1955 could no longer be enforced as to him
for there has occurred a change substantial enough to render that
judgment unenforceable.

* * * * * * *

In view of the foregoing, judgment is hereby rendered in favor of the
plaintiff and against the defendants whereby the writ of execution
issued by the respondent Judge A. Geraldez of the Municipal Court is hereby set side, and the writ of preliminary injunction herein before issued made permanent.”

On March 28, 1960, Lao Kong Hing presented a “Motion for
Reconsideration and New Trial, claiming that the decision is not
supported by the evidence of record, and not in accordance with law. On
May 24,1960, the CFI of Manila denied the Motion for Reconsideration
and New Trial, for lack of merit.

On June 6, 1960, respondent Lao Kong Hing filed a Notice of Appeal,
attaching an Appeal Bond of P60.00. The appeal was directed against the
Decision of February 11, 1960, the Order of March 16, 1960 and the
Order of May 24, 1960.

Appellee objected to the approval of the Record on Appeal on two
grounds: (1) a Record on Appeal is not necessary in Certiorari
proceedings, since it is the original record that is transmitted to the
Court; and (2) the appeal was perfected out of time (6 days late).

On June 11, 1960, respondent-appellant Lao Kong Hing, thru counsel,
presented a Reply to the objection, claiming that the failure to
perfect the appeal within the reglementary period, was due to excusable
negligence, mistake or accident. On June 13, 1960, the CFI denied the
appeal for not having been perfected within the reglementary period. On
August 12, 1960, the motion for reconsideration against the order, was
likewise denied.

A petition for Relief from Judgment was supposedly presented, although
it does not appear in the Record on Appeal, We rather from the reply of
appellee, however, that the petition was based upon fraud, accident,
mistake and excusable negligence (sec. 2, Rule 38). On October 15,
1960, the CFI, denied the Petition for Relief, for lack of merit. The
motion .to reconsider this Order, having been denied, Lao Kong Hing
appealed directly to this Court on a single issue, to wit: the
propriety of the order of denial of said motion for relief.

Appellant admits that he was six (6) days late in perfecting his
.appeal from the judgment in the certiorari case. The petition for
relief is anchored on an alleged excusable negligence, which consisted
in the failure of respondent-appellant to see his lawyer, before the
expiration of the period to appeal, notwithstanding the fact, according
to said lawyer, that shortly after May 25, 1960, he sent a letter to
said respondent-appellant Lao Kong Hing, asking the latter to bring to
his office money with which to pay the expenses incident to the appeal.
Respondent Lao Kong Hing reasoning out his failure, stated that about
the last week of May, 1960, his wife was confined in the San Juan de
Dios Hospital on a case if laborious parturition; that inasmuch as the
delivery was long overdue, she was subjected to an operation. Because
of this, he (plaintiff) was preoccupied and his funds exhausted, that
he failed to see his lawyer and give him the necessary amount for the
appeal.

The lower court did not consider the explanation offered by respondent
satisfactory, so as to bring the failure to perfect the appeal on time,
within the pale of excusable negligence. There was no plausible reason
why he could not have gotten in touch with counsel, or vice versa.
Client and attorney fully knew each other’s address. When respondent
failed to come to counsel’s office for the payment of the expenses,
counsel could have made proper representations in the lower court and
asked that an extension be given to him. While, as alleged by counsel,
advancing appeal fees or any fee for that matter, to save the right of
his client to appeal is, normally, not a good husbandry, all efforts
should have been mustered to save such right, knowing the right
predicament in which his client was found, if such did really exist.
The fact, however, is that .when lawyer and client had finally woke up
from their lethargy, the right to perfect the appeal was already lost.

“Perfection of an appeal in the manner and within the period laid down
by law is not only mandatory but jurisdictional, and failure to perfect
an appeal as legally required has the effect of rendering final and
executory the judgment of the court below and deprives the appellate
court of jurisdiction to entertain the appeal.” (Caisip, et al. vs. Cabangon, 109 Phil., 150, and cases cited therein).

* * * * * * *

In fine, strict, not substantial, compliance therewith is required.” (Alvaro vs. De la Rosa, 76 Phil. 428)

Respondent, in trying to strengthen his position, discussed the merits
of the case. This is not necessary for the proper determination of the
issues raised in the present proceeding. Withal, a panoramic view of
the decision of the respondent court, on the merits of the case, shows
that the decision is not altogether without any legal basis.

WHEREFORE, the order appealed from is hereby affirmed. Costs taxed against respondent-appellant Lao Kong Hing, in both instances.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Dizon, and Makalintal, JJ., concur.