EMPERATRIZ VESTAL LOPEZ, FLORENCIO, MARVAL, FERMIN, ADOLFA, VICENTA, JOSE AND SEVERA, ALL SURNAMED LOPEZ, PETITIONERS, VS. HONORABLE COURT OF APPEALS, CRISOSTOMO ROSALES AND FOR…

In its resolution dated January 22, 1976, respondent Court of Appeals, motu proprio
dismissed the appeal of herein
petitioners in CA-G.R. No. UDK 2045-R, for their failure to pay on time the
corresponding docket fee in the total sum of P53.00.

Petitioners, who are represented by the Citizens Legal Assistance
Office (CLAO) of the Department of Justice, now seek a review on certiorari
the following resolutions of the respondent Court of Appeals:

1.       Resolution dated January
22, 1976, dismissing petitioners’ appeal from the Court of First Instance of
Davao in Civil Case No. 417, entitled “Crisostomo Rosales, et al.,
plaintiffs, versus Emperatriz Vestal Lopez, et al., defendants,” for the
reason that:

“Since January 8, 1976 was expiry date to pay docket fees but
motion was filed January 13, 1976 -­DENIED,
APPEAL DISMISSED.”

2.       Resolution dated
February 2, 1976, denying — for lack of
merit petitioners’ motion dated January 26, 1976 for reconsideration and to
admit the docket fee;

3.       Resolution dated
February 24, 1976, denying petitioners’ motion for reconsideration dated
February 17, 1976 on the ground that:

“The return card attached to p. 17 clearly shows that notice
to pay docket fee was received from Post Office on December 24, 1975; therefore
last day to pay was January 8, 1976;
and motion for extension to pay
was filed on January 13, 1976, when there was no more period
to extend;”

4.       Resolution dated
March 25, 1976, denying petitioners’ motion for reconsideration dated March 16, 1976, thus —

“As a preliminary point, movants have not shown that dismissal of appeal is not yet final and can still be reconsidered.  For this reason at least, reconsideration
should be denied, as it is hereby DENIED”; and

5.       Resolution of April
27, 1976, denying petitioners’ motion for leave to file second motion for
reconsideration to reinstate appeal, dated April 14, 1976.

Petitioners’ main
complaint is embodied in paragraph 7 of their undated petition for review on certiorari,
reproducing, among other things, their motion for reconsideration, dated March
16, 1976 (Annex H-Petition), as follows:

“3.     That she filed a
Motion for Extension of Time to Pay Docket (Fee) on January 13, 1976;

“4.     That she based
the computation of time within which to pay the docket on the date stamped on
the Motion to Pay Docket Fee which clearly show that the office received it on
December 29, 1975, which was already submitted to this Court for Appreciation;

“5.  That from December 30, 1975 to January 13,
1976, it will give us a total number of 15 days;

“6.     That the Motion
for Reconsideration of the herein appellant was denied for the reason that the
Registry Return Received from the Post Office showed that the office received
it on December 24, 1975.  However the Motion
to Pay Docket Fee clearly show that the office received the Notice to Pay
Docket Fee on December 29, 1975.  This
Motion which was stamped received on December 29, 1975, was the very notice and
communication indorsed to the undersigned for action.  There is no other date appearing on the
aforesaid letter indicating that it was received prior to the aforesaid date;

“7.     That in view of
the fore­going circumstance, undersigned most respectfully inform this Honorable
Court that she could not be expected to use the date appearing in the registry
return receipt as basis in the computation of the period considering that such
date, December 24, 1975 does not appear on the face of the Notice to Pay Docket
Fee and considering further that it is the Record Division of this Office which
received communica­tion; and that she could not be expected to know things
which does not appear in the record;

“8.     That the said
date December 24, 1975 might have been erroneously written by the messenger
considering that it is of judicial notice that December 24, 1975 is a busy day
being a Christmas Eve.  It is likewise of
judicial notice that the succeeding days after Christmas were declared as a
Special Holidays by the President of the Philippines and it was only on
December 29, 1975 when offices resume works; x x x.” (Pp. 4-5, Petition;
pp. 14-15, rec.).

Copy of the undated
petition was received by counsel for private respondents on July 26, 1976, who
eventually filed his COMMENT thereon on November 20, 1976 (received by this Court
on December 2, 1976), only after he received the Court’s resolution of October
2, 1976 on November 10, 1976, requiring him to SHOW CAUSE why he should not be
disciplinarily dealt with for his failure to file his comment within the period
which expired August 16, 1976.  In their
comment, private respondents, while adopting the stand of the Court of Appeals
in dismissing petitioners’ appeal, added that:

“The Court of Appeals have (sic) more knowledge on the facts
surrounding the dismissal of the appeal. 
The herein respondents have no other recourse but to adopt the stand of
the Court of Appeals and its finding on the facts surrounding the dismissal of
the appeal.  For the herein respondents
have no way of verifying the facts alleged by the herein petitioners by reason
of the distance between this Honorable Court, where the records of the case
are, and the office of the undersigned counsel which is at Tagum, Davao.”

After considering the
circumstances obtaining in the case and the prevailing atmosphere of liberality
which has swept this Court in similar matters since the case of Berkenkotter
vs. Court of Appeals (L-36629, Sept. 28, 1973, 53 SCRA 228), followed by
Pimentel, et al. vs. Court of Appeals (L-39423 & L-39684, June 27, 1975, 64
SCRA 476) and lately by Maqui and Maqui vs. Court of Appeals, et al. (L-41609,
Feb. 24, 1976), WE vote to grant the petition.

Section 1, Rule 50 of the
Revised Rules of Court, on dismissal of appeal, provides:

“SECTION 1.  Grounds for
dismissal of appeal.  – An appeal may be
dismissed by the Court of Appeals, on its own motion or on that of the
appellee, on the following grounds:

“xx     xx         xx         xx

“(d)  Failure of the appellant to pay the docketing
fee as provided in section 5 of Rule 46; x x.”

It was grave abuse of
judicial discretion on the part of respondent Court of Appeals to dismiss
petitioners’ appeal for the latter’s alleged failure to file a motion for
extension of time to pay the appeal docket fee on or before January 8, 1976,
the expiry date to pay the docket fee, if the notice to pay such fee was
actually delivered on December 24, 1975 by the postal employee to the Records
Division of the CLAO, as claimed by respondent Court of Appeals.  But there is evidence to show that CLAO
actually received the same notice on December 29,
1975.  Since the counsel assigned by the
CLAO to handle the appeal of petitioners had every reason to rely on
“December 29, 1975” as the date of receipt of the notice to pay, We
find merit in her contention that under the circumstances she could not be
expected to know “January 8, 1976” as the expiry date, because
fifteen days from December 29, 1975 would be January 13, 1976.

Hence, to dismiss
appellants’ appeal, as the Court of Appeals did, and to deny the various
subsequent motions for reconsideration filed thereafter would be unjust and
unwarranted.

Not only this.  There is the undeniable fact that December 24
is traditionally a very busy day for everyone. 
In the Supreme Court itself, the employees are dismissed after noon of
December 24th to enable them to go home and avoid the Christmas rush and
traffic.  Added to this is the fact that
the three days after Christmas day in 1975 were all non-work days, Friday,
December 26, having been declared a special public holiday by the President of
the Philippines.  And it was only on
December 29 that work in the government, including the CLAO, counsel for petitioners,
was resumed.  Thereafter, four more
non-work days followed until January 5, 1976, when work in public and private
offices returned to normal.  To these
incontrovertible facts, We cannot close Our eyes.

Again, there is no
dispute that the appeal docket fee was eventually paid (Annex B-Petition, p.
27, rec.).  The payment of the appeal
docket fee is not a requirement for the protection of the prevailing party, and
non-compliance therewith within the time prescribed causes no substantial
prejudice to anyone.  It is patent that
the delay in the payment was not due to laches or to a desire to delay
or defeat the ends of justice.  To apply
to petitioners the legal requirements strictly, would not only tend to block
the right of review to which a party is entitled under the law, but also would
amount to a complete departure from what We said in the cases of Philippine
National Bank vs. Philippine Milling Co., Inc., et al. (26 SCRA 712, 715) and
reiterated in Maqui & Maqui vs. Court of Appeals, et al. (L-41609, Feb. 24,
1976) that the provision of Section 1, Rule 50 of the Revised Rules of
Court, which provides specific grounds for dismissal of appeal “manifestly
confers a power and does not impose a duty. 
What is more, it is directory, not mandatory.” Hence,
it should be exercised with a great deal of circumspection, considering all the
attendant circumstances.

WHEREFORE, THE RESPONDENT COURT OF APPEALS’ RESOLUTIONS
HEREINABOVE ENUMERATED ARE ALL SET ASIDE, AND THE APPEAL FILED BY PETITIONERS
IN CA-G.R. NO. UDK 2045-R IS ORDERED REINSTATED.  NO COSTS.

Muñoz Palma, Concepcion, Jr., and
Martin, JJ., concur.

Teehankee, J., (Chairman), files
a separate opinion.