CIPRIANO P. MALIWANAG, PETITIONER, VS. HON. AMEURFINA MELENCIO HERRERA, PRESIDING JUDGE, BRANCH I, COURT OF FIRST INSTANCE OF QUEZON, AND CESAR V. BOLAÑOS, RESPONDENTS.

This is an action for mandamus with preliminary injunction
wherein the petitioner, Cipriano Maliwanag,
prays for a writ to issue, ordering the respondent judge of the Court of First Instance of Quezon
to give due course to his appeal from the order of the court a quo
in its Election Protest No.
7142, striking the counter-protest filed by the petitioner with his ans­wer.

The antecedent facts which disclose the law questions involved
are not disputed.

In the local election of November
14, 1967, peti­tioner Cipriano Maliwanag and respondent Cesar Bolaños
were the opposing candidates for the office of Mayor in the municipality
of Candelaria,
Quezon. Maliwanag was thereafter proclaimed elected by the Municipal Board of
Canvassers with a plurality of 36 votes. 
In due time, Cesar Bolaños filed a protest against the election of Maliwanag.

On December 4, 1967, Maliwanag was
served with the corresponding summons, together with a copy of the protest
filed by Bolaños. 
The former did not immediately file his answer.  He filed instead a motion seeking extension of tine within which to answer; and the
same was granted by the trial court which, in an order dated December 7, 1967,
fixed the time for filing the answer not later than December 22.  Before the expiration of the time granted          the court, he moved for further extension of time to
file his answer and, once again, the motion
was granted the trial court in
an order dated December 21, 1967, requiring Maliwanag
to subnit his responsive pleading on or before
January 6, 1968.  Maliwanag filed his answer within the time,
submitting therewith his counter-protest. 
On the other hand, it turned out that protestant Bolaños had also filed, in the
meantime, an amended pleading dated December 7, 1967, seeking to add new precincts to those embraced in his
original protest.

On January 16,
1968, the court a quo, motu proprio ordered both protestee
Cipriano Maliwanag and
protestant Cesar Bolaños to appear before it on
January 27, 1968, to show cause, orally or in writing, why latter’s supplemental
pleading of December 7, 1967,
and the former’s counter-protest filed on January 6,
1968, should not be stricken from the record of the case on the ground of lack
of jurisdiction – both pleadings having been filed, according to the order, after the lapse of the corresponding
statutory periods.  In obedience to the
said order of the court, the parties filed their res­pective memoranda.

On February 27, 1968,
both the protestant’s sup­plemental pleading dated December 7, 1967, and the protestee’s counter-protest filed on January 6, 1968, were ordered stricken from the record by the trial
court.  Maliwanag
moved for reconsideration of the order, re­iterating his contention in his previous memorandum that his counter-protest was not filed out of time because he has filed it within the time fixed by the respondent judge for the
filing of the answer.  The motion was de­nied
by the trial court in its order of April 5, 1968.

On April 10, 1968, Maliwanag filed a notice of appeal, manifesting to the
court below that he was appealing from the orders of February 27 and April 5,
1968, to the Supreme Court where he would raise only questions of law.  The respondent judge, however, re­fused to
give due course to the appeal in an order of April 24, 1968, which reads as
follows:

“The orders of February 27, 1968 and April 5, 1968 are
interlocutory.  They cannot be appealed
from but can be the subject of certiorari and/or mandamus proceedings.

WHEREFORE, protestee’s appeal from said
Orders is hereby disallowed.”

In a motion dated May 3,
1968, protestee Cipriano Maliwanag moved
for reconsideration of the order above quoted. 
But the same was denied by the respondent judge in an order of May 16, 1968. 
A second motion for reconsideration also proved futile; hence, the instant peti­tion for mandamus with
preliminary, injunction wherein herein petitioner Cipriano
Maliwanag prays, among other things, for a writ to
issue ordering the respondent judge of the Court of First Instance of Quezon to
allow his appeal from the questioned orders.

It is clear from the pleadings of the parties that from the circumstances above set forth, they simply want to force the
issue on whether or not the striking of herein petitioner’s
counter-protest, which is the error supposed to have been committed by the trial court, may he corrected by appeal or by
the use of the writ of cer­tiorari or mandamus – herein petitioner taking the posi­tion that appeal is the
plain, speedy and adequate remedy in the ordinary course of law, and the other contending that the said orders, being interlocutory, may not be appealed from but may only be questioned by certiorari or mandamus.  As
We view
the present controversy however, We see that the settlement alone of the procedural
question thus posed will not settle once and for all the
real problem that stands in the
way of the parties toward the
early disposition of the
election contest between
them.  We consider it idle, therefore, to discuss here whether one or the other remedy suggested would be more expedi­tious under the circumstances
not because We believe the procedural question is unimportant, but to
keep alive the fundamental principle underlying the trial of election cases
that technicalities and procedural barriers should not be allowed to stand if
the same would tend to defeat rather than
promote the interest of justice, (Ibasco vs. Ilao, et al., L-17512, December 29, 1960.) Rather, We
believe it to be our duty, here and now, to pass upon the more important
question whether or not it was right and legal for the respondent judge to order the striking out of herein
petitioner counter-protest on the ground that the same was filed out of time.

With this in mind We are inclined to
view the pre­sent application as one for certiorari, directed not only against
the order of the trial court disallowing herein petitioner’s appeal, but
principally against, the order of the respondent judge striking out the
counter-protest and the subsequent order denying reconsideration thereof.  The situation presented here is one that
needs prompt and immediate action.  And We fully realize that the value of the election contest
herein involved is becoming less with the passing of each day.  We note further that the protest filed in
this case has been pending before the respondent judge for a considerable
length of time now; yet it appears that the opening of the ballot boxes in the
precincts co­vered by the said protest, has not even been ordered by the trial
court for purposes of going into the merits of the case.  Worse still, herein petitioner, by design or
otherwise, insists that the trial court should be enjoined from opening the
said ballot boxes pending resolution of the question whether or not the trial
court was right in striking out his counter-protest.  And to be sure, to entertain his pleas –
limiting the issue as to whether his appeal blocked by the trial court
should be allowed, and ordering the respondent judge to refrain from holding
trial on the merits of the protest until such
time that the said appeal of his should be settled – would only prolong the determination
of the question as to who, between the par­ties here, had been legally chosen
by the electorate.  Under these
circumstances, the action of this Court in entertaining the present application
as a case of cer­tiorari will be conducive to the speedy disposition of the
case, will save the parties from further expense, and will not unnecessarily
extend and prolong the proceedings.  At
any rate, the allegations of the present petition may be considered sufficient
for the purpose.

Coming to the fundamental question involved, it was herein
respondent judge’s view that the extension of the period within which to answer
the protest in this case, did not carry with it the right on the part of the protestee to file a counter-protest within the same period;
that is why, when the counter-protest of herein petitioner was filed with his
answer within the extended period, said trial judge ruled that the counter­
protest was filed out of time.  Such view
is not well taken.  In Torres vs. Ribo, 83 Phil. 645, it
took a long time to dispose of a motion to dismiss filed by the pro­testee.  And only after the final
disposition of the said motion
to dismiss, did the protestee answer, filing
therewith a counter-protest.  The latter pleading was ordered stricken
from the record by the trial court; but on appeal, this
Court sustained the right of the pro­testee to file
the same, holding that the motion to
dis­miss had suspended the period for filing the answer, and the
counter-protest, having been filed within the period left after the suspension
was terminated, must be deemed filed within the statutory period.  In Valenzuela vs. Judge of the Court of First
Instance of Bulacan, 40 Phil. 163, it was, likewise,
held that a counter-protest is tantamount to a counter-claim in a civil action
and may be presented as a part of the answer
within the time the protestee is required to
answer the protest.  With these
authorities then, We really see no reason why the respondent judge in this case has
ordered the striking out of herein petitioner’s counter-protest, even after
herein petitioner had called her attention to such holdings of the Court.  Such act, to our mind, constitutes not merely a mistaken view of the law, but a
gross abuse of discret­ion neither governed by rule nor exercised under estab­lished
principles of law, which makes it
void.  It is not one which will withstand review by certiorari
and mandamus, and may be interfered with.

WHEREFORE, the order of the trial court striking out herein
petitioner’s counter-protest, together with the other orders complained
of in this proceeding are set aside.  Case remanded to the trial court for further
proceedings.

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