PAULINA MARGATE, HEIRS OF TARCELA MARGATE, NAMELY, RAYMUNDO VILLAMOR, FELIPE VILLAMOR, WINEFREDA VILLAMOR, HEIRS OF ANTONIA MARGATE, NAMELY, FRANCISCO IBAY, EUSTAQUIO IBAY, FELI…

Petition for review on certiorari of the Resolution of
respondent Court of Appeals, dated September 16, 1975, dismissing the appeal of
petitioners, and its subsequent Resolution, dated November 21, 1975, denying
the motion for reconsideration.

From the records, it appears that in an action for partition
filed by herein private respondents against petitioners, the Court of First
Instance of Zamboanga de Norte, Branch II, rendered a decision on October 10, 1974 in favor of private
respondents.  A copy of the decision was
undisputedly received by petitioners on October 14, 1974; that on October 25,
1974, petitioners filed their notice of appeal, serving copy of the same upon counsel for private respondents on
the same date; the appeal bond was filed on November 5, 1974, serving copy
thereof also upon counsel for private respondents; and the Record on Appeal was
filed on
November 3, 1974.  All the foregoing acts had, therefore, been
done within the reglementary period for perfecting appeal.

On January
17, 1975, the trial
court issued an order approving the Record on Appeal, without any opposition
from private respondents.  The case was
elevated to the Court of Appeals, and upon order of said court, petitioners
paid the sum of P53.00 as appellate docket fee and submitted typewritten copies
of the record on appeal, in lieu of printed record on appeal.  On August
8, 1975 private respondents filed a motion to dismiss appeal on the
ground that private respondents’ counsel was not furnished his copy of the
record on appeal within the period to appeal. 
Petitioners filed an opposition to the motion to dimiss
appeal on August 22, 1975.

On September 16, 1975,
respondent Court of Appeals issued the questioned Resolution dismissing
petitioners’ appeal on the ground that “having admittedly failed to serve
copy of the Record on Appeal into adverse party within the period to appeal,
and for the period of more than a month
beyond that, and having served by registered mail only after that, it is clear
that appeal by then had lapsed.”

Petitioners filed a
motion for reconsideration of said resolution, but the respondent appellate
court denied the motion in its Resolution of November 21, 1975. 
Hence, the present recourse, petitioners submitting the
following arguments:

1.     The appeal of petitioners was perfected in
the lower court because –

“(a).  The notice of appeal and appeal bond were
filed in court and furnished the adverse party within the reglementary
period; and

“(b). The record
on appeal was likewise submitted and filed in court within the period for
perfecting appeal, although the copy for respondent Talang’s
counsel was not received by him on time.”

2.     The Court of Appeals committed grave error
when it disturbed the order of the lower court in favor of allowing the appeal
in the absence of a showing that said lower court abused its discretion or acted
without jurisdiction in ordering the appeal to push through.

3.     When the Court of Appeals ordered the
petitioners to pay appellate docket fee and to print (mimeograph or typewritten
– accepted) the record on appeal within the period fixed of which the
petitioners have complied willingly without even asking for any extension this
circumstance, in itself, evinces an honest and earnest desire to pursue the
appeal, so that equity demands that the appeal ought not to be dismissed.

4.     No harm was caused to the adverse party
when a copy of the record on appeal, thru excusable negligence, did not reach
the hands of the counsel for respondents. 
Attempts were made to
contact him but he could not be found, and that in any case, the correctness of
the record of appeal has never been challenged and was thus readily approved by
the lower court.

5.     That the Margates
have a very meritorious defense sufficient to alter the judgment of the lower
court.

We find the present
petition meritorious.

Although the Court of
Appeals has discretion to dismiss or not to dismiss petitioners’ appeal, such
discretion must be a sound one, to be exercised in accordance with the tenets
of justice and fair play, having in mind the circumstances obtaining in both
case.^[1] In the case at bar, there is no showing that the rights of herein private
respondents were adversely affected when they failed to receive a copy of the
record on appeal on time.  Moreover, the
fact that petitioners timely filed
their notice of appeal, appeal bond and record on appeal and complied with
respondent appellate court’s requirements to submit twelve (12) copies of
record on appeal and to pay the appellate docket fee without even asking for
any extension of time, shows that the court of origin knew that petitioners had
no intention to delay the case, a fact which should have merited the leniency
of the respondent appellate court.  Thus,
when no substantial rights are affected, and there is no intention to delay, it
is sound judicial discretion for respondent appellate court to admit
petitioners’ appeal.  This is specially
true where the procedural lapse is only in furnishing the adverse party with a
copy of the Record on Appeal within the reglementary
period, considering that the filing of the Record on Appeal may be extended by
the court beyond the period prescribed by the rules.

Excusable imperfections of form and technicalities of procedures
and lapses in the literal or rigid observance of a procedural rule or
non-jurisdictional deadline provided therein should be overlooked and brushed
aside as trivial and indecisive in the interest of fair play and justice when
public policy is not involved, no prejudice has been caused the adverse party,
and the court has not been deprived of its authority or jurisdiction.^[2]
At any rate, the undeniable fact remains that private respondents’ counsel was
actually, although belatedly, furnished a copy of the record on appeal.

Moreover, it must be noted that the trial court had issued an
order on January 17, 1975,^[3]
approving the record on appeal without opposition from private respondents.  This Court, in a number of cases, has
consistently held that where the trial court finds and declares in its order of
approval a record on appeal that it was filed on time or within the reglementary period and the correctness, accuracy and
veracity of such findings are not impugned, questioned or disputed by the
adverse party, the order of approval of the record on appeal is for all intents
and purposes a finding of the timeliness of the appeal.^[4]
Respondent Court of Appeals, therefore, committed grave abuse of discretion
when it ruled that petitioners’ appeal had already lapsed because private
respondents’ counsel was not furnished a copy of the record on appeal within
the reglementary period.  What merits calling attention to is why it took
private respondents’ counsel so long to file a motion to dismiss appeal on
August 8, 1975, when the order affirming the Record on Appeal was issued on
January 17, 1975, an inaction clearly surpassing petitioners’ delay in
furnishing adverse
party with copy of the Record on
Appeal.

IN VIEW OF THE FOREGOING, the Resolution of respondent Court of
Appeals dated September 16, 1975
dismissing petitioners’ appeal and the Resolution of November 21, 1975 denying motion for reconsideration
are set aside, and the case is hereby remanded to said respondent Court for
proper proceedings and prompt disposition of the appeal on the merits.  No costs.

SO ORDERED.

Makasiar, (Chairman), Aquino, Concepcion, Jr.,
Guerrero, Abad Santos, and
Escolin, JJ., concur.

^[1]
Obut vs. Court of Appeals, 70 SCRA 546.

^[2]
Rabina vs. Court of Appeals, 70 SCRA 546.  Alonzo vs. Villamor,
16 Phil. 315.

^[3]
p. 22, Rollo.

^[4]
Manipol vs. Court of Appeals, 89 SCRA 513 and
cases cited therein; Pajarillo vs. Court of
Appeals, 74 SCRA 151; Trans World Airlines Inc. vs. Court of Appeals,
106 SCRA 566.