ROSA GONZALES VDA. DE PALANCA, SEVERINA G. PALANCA, ANTONIO G. PALANCA, MILAGROS PALANCA-FURER, LEONARDA PALANCA-ARENAS, CARLOS PALANCA, JR., MACARIO G. PALANCA, RAMON G. PALANC…

CONCURRING AND DISSENTING OPINION

BARREDO, J.:

I am in full accord with the view that “it is a matter of
common knowledge that there is a considerable number of cases of this kind
pending before our courts; that appeals therefrom
have only too often been resorted to for purposes of delay; and that such cases
and the, appeals therein taken contribute materially to the clog­ging of court
dockets and, hence, to the delay in the disposition of other cases deserving of
more attention.” (p. 5, Decision) I deeply regret, however, that I cannot
find my way to joining the majority’s conclusion that be­cause in desahucio cases, the judgments of inferior courts appealed
to the courts of first instance are not vacated, unlike in ordinary actions,
upon the perfection of the appeals, the order of dismissal of herein respond­ent’s
appeal from the decision of the City Court to the Court of First Instance of
Manila, for failure to prosecute the same, should have been affirmed by the
Court of Appeals.  Neither am I in a
position to agree that “con­siderations of public policy warrant that
greater dili­gence be demanded from defendants-appellants in forcible entry and
detainer cases to expedite the disposal there­of.”
My reasons are both legal and of policy also and I am submitting them humbly
and respectfully hereunder.

I must state at the outset that this task I am undertaking of
separating from the majority in this case is neither pleasant nor easy.  Being a new arrival in this venerable body,
the impulse of restraint in dissent seems humanly natural within me.  I do not want to give anyone the impression,
erroneous, and false, of course, in all respects, that I feel like an upstart
minor hunger­ing for an opportunity to show up my elders.  In truth, the very idea of having to point
out the flaws in the unanimous opinion of all my senior brethren is in itself
awesome.  When it is considered, further,
that the majority opinion is from the pen of no less than our very worthy Chief
Justice, my predicament and hesita­tion are necessarily augmented and become
almost insur­mountable, so much so, that if I were not thoroughly convinced of
my position and were less conscious of my responsibility in the premises, I
would have gladly given up this heavy burden. 
My only consolation is that, as I see it, this decision constitutes a
new rule as regards the prosecution of appeals from inferior courts to the
courts of first instance in forcible entry and unlawful detainer
cases and, therefore, it is, in my humble view, better perhaps that it is
subjected to more minute scru­tiny from all angles before it is finally
accepted as an established precept in remedial law.  May I add that there is here no pretense
whatsoever to any degree of unusual learning everything herein contained is
just the modest result of what I have gathered from repeated handling of cases
of this nature as a private practitioner and of constant discussion by me of
the subject at hand in the law school classes while trying to imbibe and
comprehend as much as I could the rules of procedure together with the students
of law, in which activities, I had the oppor­tunity to indulge for quite
sometime.  I am sure that, at least,
among those similarly, engaged in said activities as I have been, the
clarifications contained in the ma­jority opinion and, may be, in this separate
views of mine will be most welcome.

Coming now to the case before Us, in synthesis, the rule that the
majority is laying down is that, not­withstanding that an appeal by the
defendant in an unlaw­ful detainer case from an
unfavorable judgment of eject­ment of an inferior
court has already been transmitted by such inferior court to the proper court
of first in­stance and entered in the latter’s docket and proceedings in the
appealed case have already been started in the latter court, if subsequently,
none of the parties should move, for an unreasonably long time to have the case
tried and resolved by the court of first instance, the said court may, instead
of dismissing the complaint for failure of the plaintiff to prosecute his
action, dis­miss the appeal of the defendant, for failure of said defendant to
prosecute said appeal, despite the fact that said defendant-appellant has
seasonably filed the required supersedeas bond for
the payment of all accrued rentals and has been, furthermore, religiously
deposit­ing with the court, the current ones. 
Truth to tell, this is the first time I have come across a ruling of
this kind since I began practicing in the bar thirty-two years ago and I have
not found any similar one in any jurisprudence I have read to this day.  If for this rea­son alone, I hope that my
curiosity and the extensiveness of this opinion due to my eagerness to make it
as compre­hensive as I feel it should be will be pardoned by my learned
colleagues.

As I gather from the records, particularly, from petitioners’ own
brief, this case of unlawful detainer was began with
a complaint filed in the City Court of Manila on December 12, 1962; after due
hearing, the said City Court rendered judgment on May 28, 1963, ordering
defendant, now respondent, to vacate the premises in question and to pay the
sum of P1,600.00 as rental for the pe­riod from May, 1962 to December, 1962 and
the sum of P600.00 until said respondent vacates the premises, as the rea­sonable
rental for the same, considering the size and location of the place and to pay
the amount of P300.00, as attorney’s fees, plus the costs,^[1]
respondent appealed in due time and manner, and on June 24, 1963, (Petitioners’
Brief) the Court of First Instance of Manila to which the appeal was made
notified respondent that the docket entries together with all the original
papers and processes and the appeal bond had been received by said court in
accordance with section 5, Rule 40, of the old as well as the revised Rules of
Court (not Rule 46, section 47 as erroneously referred to by petitioners in
their brief, p. 3); pursuant to section 7 of the same Rule 40, on June 28,
1963, respondent filed his answer to the complaint which was considered as
reproduced (under the old Rules); on July 2, 1963, plaintiff^[2]
filed a Motion to Dismiss respond­ent’s counterclaim which was opposed by said
respondent on July 15, 1963; later, on August 16, 1963, petitioner filed a
motion to allow withdrawal of deposit, which was opposed by defendant on August
23, 1963; both motions were denied in the court’s orders of August 24 and 29,
1963 respective­ly; as neither party made any move, since the appeal was
entered, to have the case set for hearing, on October 20, 1964, the Court of
First Instance, Judge Arsenio Solidum,
presiding, entered an order dismissing the appeal of re­spondent for failure to
prosecute; his motion for reconsi­deration of the said order of dismissal
having been denied, respondent appealed to the Court of Appeals where, on June
36, 1966, the latter court rendered a decision, penned by Justice Salvador Esguerra, setting aside the dismissal and ordering the
remand of the case to the lower court for trial on the merits; reconsideration
of this decision on motion of petitioners was denied; and so, the case is now
before Us on appeal by said petitioners.

At the outset, it is to be importantly noted that at the time
Judge Solidum issued the order of dismissal of
respondent’s (then appellant, now appellee) appeal on
Octo­ber 20, 1964, all the steps necessary to complete appeal of said
respondent had long before been completed already, as evidenced by the notice
sent by the Court of First Instance to that effect on June 24, 1963, as
above-related.  Nothing, but nothing,
remained to be done by the respondent to enable the Court of First Instance to
assume jurisdiction over his appeal.  As
a matter of fact, and this is important too, the said court had by then al­ready
acted in two incidents properly within its jurisdic­tion, namely, the motion to
dismiss defendant’s counter­claim and plaintiff’s motion to withdraw deposit,
which were both opposed in due time formally and in writing by respondent, when
it entertained and subsequently denied both motions on August 24, 1963 and
August 29, 1963, re­spectively.  I
respectfully submit that upon these facts, the period during which the Court of
First Instance had the power to dismiss respondent’s appeal for failure of
appellant to prosecute the same had already passed, as it ended on June 24,
1963, the date when the court sent out the notice to defendant required by
Section 5 of Rule 40 and entered the appeal upon its docket (sec. 6, Rule 40).
Thereafter, according to the express edict of the Rules of Court, the case in
the Court of First Instance “stood (shall stand) for trial de novo upon
its merits in accord­ance with the regular procedure in that court, as though
the same had never been tried before and had been origi­nally there commenced.”
(sec.9, Rule 40) [Emphasis supplied] 
Accordingly, to my mind, at that juncture in which the case was, there
could be no consideration anymore of the prosecution of the appeal, for, if I
am not mistaken, it is clear from the quoted provision that by then, the
prosecution of the appeal had already been consummated, the whole process
thereof having been completed, and what was pending before the Court of First
Instance, was, in legal contemplation, no longer an appeal or review but,
rather, a case to be tried “upon its merits in accordance with the regular
procedure in that court, as though the same had never been tried before and had
been originally there commenced.” Please note that the provision speaks
emphatically of “trial … upon its (the complaint) merits”, thereby
excluding the idea of any possible consideration of the merits or demerits of
the appeal per se, in the light of the evidence before and the
judgment of the inferior court, or of its prosecution or non-prosecution.  Indeed, I cannot conceive of any language
more unmistakable than that used in this provision to express the in­tent of
the Rules as to the nature of the trial de novo in the Court of
First Instance in an appeal to it from an inferior court.  Verily, in such an appeal, the Court of First
Instance is not a reviewing court that merely affirms or reverses the judgment
of the inferior court; rather, it is a court of new trial or a court there the
case is to be tried anew and again, with the only qualifications that even if
the pleadings of the parties may be amended, no new causes of action or
defenses, much less, any matter beyond the inferior court’s jurisdiction may be
alleged therein, and the theories of the parties, as presented to the inferior
court, may not be substantially altered; in other words, the new trial is
conducted on the basis exclusively of the causes of action, defenses and
theories presented by the parties in the inferior courts, (Alonso v.
Municipality of Placer, 5 Phil. 71; Enriquez v. Watson & Co., 6 Phil. 114;
Evangelista ,v. Ta­bayuyong, 7 Phil. 607; Belzunce v. Fernandez, 10 Phil. 452; Roses v. Rebueno, 11 Phil. 300; Bernardo v. Genato,
11 Phil. 603; Yu Lay v. Galmez, 40 Phil. 651; Royal
Shirt Factory v. Co Bin Tic, 94 Phil. 994) but without regard to the proofs
presented in the inferior court or to the conclusions reached by the judge
thereof.  (Colegio
de San Jose v. Sison, per Justice Street, 56 Phil.
344; Ligo v. Carandang, 73
Phil. 649; Crisostomo v. Director of Prisons, 41
Phil. 368; see also Feria, Civil Procedure Annotated,
1967 ed. p. 824)

What is meant by the very self-explanatory clauses to the effect
that the new trial shall be “in accordance with the regular procedure in
that court (Court of First Instance), as though the same had never been tried
before and had been originally there commenced” has even been explained
further in, at least, four cases, in a manner per­tinent to our present
discussion.  In Marco v. Hashim, 40 Phil. 592, this Court held that where the
plaintiff in a case appealed to the Court of First Instance from an inferior
court failed to appear at the scheduled trial in the higher court and the case
is dismissed, such plain­tiff is not barred to file a new complaint for the
same cause, because the rule in the Court of First Instance (then)^[3]
is that the dismissal of an action by non-suit was without prejudice.  It is not the appeal that is dis­missed,
thereby causing the revival of the judgment of the inferior court, and finally
terminating the case; rather, it is the Court of First Instance case that is
dismissed, reserving to the plaintiff, by mandate of the rule, the right to refile the same in the inferior court.^[4]

In the other case of Smith v. Kapunan,
98 Phil. 406, in 1956, our esteemed senior colleague, Mr. Justice J.B.L. Reyes
had this to say:  “The previous
order of Judge Vicen­te Santiago, of the Court of First Instance, dismissing
defendants” appeal on the ground that they did not serve upon plaintiff a
copy of their answer within the reglemen­tary period
x x x was clearly erroneous
(since the proper procedure in case of failure to answer is to declare the
appealing defendant in default, hear the evidence for the plaintiff, and render
judgment in accordance therewith) x x x.” (p. 408) Indeed, earlier, in 1951, in the case of Quizan v. Arellano, et al., 90 Phil. 644, Mr. Justice Tua­son had spoken in similar vein, because the counsel for
defendant-appellant therein had appeared in the inferior court when the action
of forcible entry against said de­fendant-appellant was first called for
hearing, moved ver­bally, to dismiss the same and, when his motion to dismiss
was denied, left the courtroom and announced he would ap­peal any unfavorable
decision the court would render in the case, as, in fact, he did appeal when
the court ulti­mately rendered judgment adverse to his client, and, when the
case was already in the Court of First Instance, he filed a lengthy written
answer with denials, special de­nials, affirmative defenses and counterclaim,
whereupon, on motion of plaintiff, Judge Arellano of the Court of First
Instance, threw out the answer and dismissed the appeal, treating the
defendant, in effect, as though she had been in default.  Mr. Justice Tuason
admonished:

“In the Court of First Instance the appellant was not in
default any more than she had been in the justice of the peace court.  She had filed an answer in the former court,
and the mere fact that the answer was defective did not outlaw her from the
case.  Even if she had been in default
in the Court of First Instance the correct practice should have been not to
dismiss the appeal because the appeal had duly been taken, but to hear the
plaintiff’s evidence in the absence or without the intervention of the adverse
party and decide the case on the merits as the allegations and evidence
warranted.  Let it be noted that by
Section 9, Rule 40, an appeal vacates the justice of the peace’s judgment and
the case stands as if it had been originally commenced the Court of First
Instance.  This rule also provides
that ‘If the appeal is withdrawn, deemed revived and shall forthwith be remanded
to the justice of the peace or municipal court for execution.’ The
express mention in this Rule of withdrawal of the appeal as the cause of
revival of the justice of the peace’s judgment, excludes by implication failure
to answer as ground for executing the judgment.

We are therefore of the opinion that the respondent judge erred in
dismissing the appeal, and should proceed to hear the case after ordering the
exclusion from the answer of such allegations as are special or affirmative
defenses and counterclaims.” (At p. 648)

There is also the case of Quiogue v. Buenaventura referred to in our footnote (4).

I have no doubt whatsoever that these rulings are as valid today
as they were unassailable at the time they were rendered.  The law and the Rules relative to the point
under discussion have not been changed a bit in the direction pursued by the
majority.  As will be explained anon, the
development in the Civil Code and the revised Rules of Court has been, on the
contrary, along the posi­tion I have taken.

The majority argues, however, that in ejectment
cases, forcible entry and unlawful detainer, the
procedure is dif­ferent and that the trial de novo rule under
section 9, of Rule 40 does not apply in such cases, unmindful evidently of the
fact that the above case of Quizan decided by Mr.
Justice Tuason was actually one of forcible
entry.  Says the majority:

“Then again, the Court of Appeals acted upon the false premise
that the decision of a municipal court against the defend­ant in illegal detainer cases is vacated on appeal taken by said
defendant.  As early as January 23, 191
such precise had been explicitly rejected by this Court, in Torres v. Ocampo, in which it held that:

‘x x x judgment rendered by an inferior
court in forcible entry or illegal detainer is not
vacated by the appeal until after the rendition of judgment by the Court of
First Instance; but it continues in force and may be executed upon failure on
the part of the appellant to put up the supersedeas
bond and monthly deposits required by law, during the pendency
of the appeal.’

“Over twelve (12) years later, this was reite­rated in Acierto v. Laperal in the
following language:

‘The only issue posed in this petition is whether the appeal taken
by plaintiffs from the de­cision of the Municipal Court of, Manila to the court
of first in­stance had the effect of vacating said decision as is the case in
ordinary actions as provided for in Section 9, Rule 40, of the Rules of Court.

‘While in an ordinary action a perfected appeal shall operate to
vacate the judgment of the justice of the peace or the municipal court, and the
action when duly entered in the court of first instance shall stand de novo
upon its merits in accordance with the regular procedure in that court as
though the same had never been tried before and had been originally there com­menced
(Sec. 9, Rule 40), this rule only applies to ordinary actions, and not
to cases of ejectment which are ‘governed by
Sec.8, Rule 72.  This rule sets out a
particular procedure that may be deemed to be an exception, to the
provisions of Sec. 9, Rule 40 x x x
‘

“Indeed, the appeal taken by the defendant, in a forcible
entry or illegal detainer case from a decision
rendered against him, does not bar its execution during the pendency
of the appeal.  To stay execution
he must file a bond – which would be un­necessary if the decision had been
vacated, for there would then be nothing to execute, and, hence, nothing
to stay – and must deposit the amount due to the plaintiff ‘as found
by the judgment’ appealed from.  As a
consequence, the appealed judg­ment is thereby enforced or enforce­able one way
or the other – either by ordinary execution or by deposit of said amount,
coupled with a bond to stay said execution.”

I find it difficult to share the view that ” the Court of
Appeals acted upon the false premise that the decision of a municipal court
against the defendant in illegal detainer cases is
vacated on appeal taken by the said defendant.” Indeed, it is quite plain
to me that in relation to the issue herein involved, the “premise” of
the Court of Appeals is correct or, at the worst, nearest to what is
correct.  What is here in issue is the
procedure to be followed in the proceedings in the Court of First Instance
after the appeal is entered in its docket, not the procedure in the immediate
execution or execution pending appeal of the judgment of an in­ferior court
under section 8 of Rule 70 (Rule 72 then), to which the Torres decision
refers.  There is no ques­tion that in
the latter incident, the judgment appealed from is not vacated and I date say
that this legal fic­tion continues even when the Court of First Instance is
already conducting a trial de novo, but I hasten to add that it
continues for the sole and only purpose of enabling the court to order immediate
execution of the appealed judgment should the defendant-appellant fail to
comply with the requirement to be up-to-date in the pay­ment of the current
rentals, as fixed in the judgment or in the contract of lease or should the
said appellant withdraw his appeal.^[5]

I am afraid that the reliance reposed by the majority on the case
of Torres v. Ocampo, 80 Phil. 36, thanks to the
unwittingly misleading citation in petitioners’ brief, is misplaced.  My reason is simple, – that case was not one
of forcible entry and unlawful detainer., So said
this Court:

“If the action filed in the Municipal Court of Manila were an
action of forcible entry or illegal detainer, and the
damages claimed by the plaintiff against the defendant were either rents or
damages consisting in reasonable value of the use and occupation of the
premises by the defendant, there would be no question that the plaintiff is
entitled to the writ of mandamus prayed for in the petition filed in the
case.  But the action instituted by the
plaintiff against the defendant was neither of forcible entry nor of illegal detainer.  It is an
ordinary action for the recognition of the plaintiff’s preferred right to the
use and occupancy of the stalls in question in Sampaloc
Market, against the claim of the defendant, under the provisions of the Mar­ket
Code and administrative regulations in implementation thereof.  In ordinary actions the provisions of section
8, Rule 72, are not applicable, and upon the perfection of an appeal the
judgment of the municipal court is vacated, and the case is tried de novo
in the Court of First Instance in accordance with section 9, Rule 40.

“The action of the plaintiff against the defendant is not an
action of forcible entry, for the simple reason that it is not an action
instituted by a person who was in posses­sion of a land or building against a
person who has deprived him of the possession thereof by force, intimidation,
threat, strategy or stealth, within one year from such unlawful
deprivation.  Assuming, without deciding,
for the purpose of this decision that a market stall is a building or land
within the meaning of Rule 72, Rules of Court, whatever right the plaintiff may
have to occupy the market stall in question, originated from the alleged award
to plaintiff by the City Health Officer of Manila.  And nothing entered into possession under
that or lease of the market stall in dispute plaintiff had acquired no right in
the leased property in the nature of a right in rem,
which third persons were bound to respect or not to infringe.

“The action brought by the plaintiff against the defendant was
not an action of illegal detainer, because according
to section 1, Rule 72, this action is for the recovery of possession of any
land or building, instituted within one year from date of illegal possession,
by a person against whom the possession of any land or building is being
unlawfully withheld by another after the right of the latter to hold possession
by virtue of any contract, express or implied, with the plaintiff has expired or
terminated.  In the present case, there
was no contract whatsoever, express or implied, between plaintiff and defendant
for the possession of the market stall, and hence no expiration or termination
of the latter’s right to hold possession thereof under contract.” (80
Phil. 40)

It is true that in the penultimate paragraph of that decision,
the following appears:

“Payment of damages other than those described above such as
that which the plaintiff expect to obtain from his busi­ness to be located in
the premises, or for material injury caused to the premises, can not be claimed
in connection with or as incidental to an action of illegal de­tainer
or forcible entry, and for that rea­son in case of appeal by defendant, the
latter is not required to file a supersedeas bonds
and deposit every month, a cer­tain amount to answer for the payment of said
damages in order to stay the execution of a judgment during the pendency of the appeal. 
Because in actions other than for­cible entry or illegal detainer, the judg­ment of the inferior court appealed to
the Court of First Instance is vacated, and the action is tried de
novo in the latter court as if the action has been originally,
instituted therein, and no judgment of the inferior court may be executed, for
the latter is set aside by the appeal. 
While judgment rendered by an inferior court in forcible entry or
illegal detainer is not vacated by the appeal
until af­ter the rendition of judgment by the Court of First Instance; but it
conti­nues in force and may be executed upon failure on the part of the
appellant to put up the supersedeas bond and monthly
deposits required by law, during the pendency of the
appeal.” (80 Phil. 42) [Emphasis supplied]

It is easy to see, however, from a reading of the whole decision,
that apart from the fact that this por­tion just quoted is concededly obiter,
it is as evident too that what the Court meant in relation to the non?vacating
or non setting aside of the judgment in appeals from decisions of inferior
courts in desahucio cases was only the legal fiction
I have already referred to, for purposes of immediate execution.  This is clearly infer­able from the reference
to immediate execution in the portion I have underlined.^[6] I
have absolutely no doubt in my mind, as I know and remember it from actual prac­tice
not so long ago, that even when the inferior court’s judgment in such a case is
immediately executed, the appeal still proceeds taking its course and that
definitely, the procedure followed in such an appeal is that of trial de
novo, exactly the same procedure as in ordinary cases which is based on
the assumption that the judgment appealed from has been vacated.

Petitioners’ citation and the majority’s adoption of the case of Acierto v. Laperal, G.R.No. L-15966, April 29, 1960, are, I respectfully
submit, equally unfortunate.  To start
with, the ruling in said case is based on the above-discussed decision in
Torres v. Ocampo which I have shown to be far from
being controlling herein.  What happened
in the Acierto case was this:  Acierto brought an
action of consignation of rentals in the Municipal Court of Manila against the Laperals, the lessor of the
premises Acierto was occupying.  In their answer, the Laperals
alleged default of payment of such rentals by Acierto,
and claiming that the latter had been duly notified to vacate on account of
such default, prayed for ejectment, by way of
counterclaim.  To continue, now, in the
language of this Court:

“On April 11, 1959, after trial, the court rendered judgment
ordering plaintiffs to vacate the premises occupied by them and each to pay the
monthly rental at the rate there­in specified from December 1956 until they
shall have surrendered their possession to defendants.  In due time, plaintiffs appealed to the court
of first instance.

“The appeal having been given due course, the court set the
case for hearing on June 2, 1959, notice thereof having been received by
counsel for plaintiffs on May 26, 1959. 
On May 29, 1959, plaintiffs’ counsel filed a motion for postponement
alleging that he had a trial in Castillejos, Zambales on June 2 and 3, 1959, but due to the fact that
said motion was not set for hearing by movant and no
proof was presented of the allegations contained therein, the court denied the
mo­tion and declared the appeal abandoned. 
From this order, plaintiffs appealed to the Sup­reme Court.

“On August 1, 1959, defendants filed a petition for execution
of the judgment of the municipal court in view of plain they, it’s failure to
deposit the rentals which were sentenced to pay as required by the rules, which
petition was granted on August 20, 1959. 
And their motion for reconsideration having been denied, plaintiffs
interposed the pre­sent petition for certiorari alleg­ing that respondent judge
has acted without or in excess of his jurisdiction.”

It was upon these factual bases that this Court mounted the
ruling, quoted by the majority, thus:

“The only issue posed in this peti­tion is whether the appeal
taken by plaintiffs from the decision of the Municipal Court of Manila to the
court of first instance had the effect of vacating said decision as is the case
in ordinary actions as provided for in Section 9, Rule 40, of the Rules of
Court.

“While in an ordinary action a per­fected appeal shall operate
to vacate the judgment of the justice of the peace or the municipal court, and
the action when duly entered in the court of first instance shall stand (for
trial) de novo upon its merits in accordance with the regular
procedure in that court as though the same had never been tried before and had
been originally there commenced (sec. 9, Rule40), this rule only applies to or­dinary
actions, and not to cases of ejectment which are
governed by section 8, Rule 72.  This
rule sets out a particular procedure that may be deemed to be an exception to
the provision of section 9, Rule 40 (Torres v. Ocampo,
80 Phil. 36; Taguilimot v. Makalintal,
47 O.G. 2318)”

It is to be regretted that while this decision cites the cases of
Torres v. Ocampo, supra and Taguilimot v. Ma­kalintal, et
al., 85 Phil. 40, it goes much beyond the real import of said cases, without
any leg to stand on.  As I see it, the
sweeping ruling therein to the effect that “While in an ordinary action a
perfected appeal shall operate to vacate the judgment of the justice of the
peace court or the municipal court, and the action when duly entered in the
court of first instance shall stand (for trial) de novo upon its
merits in accordance with the re­gular procedure in that court as though the
same had never been tried before and had been originally there commenced
(section 9, Rule 40), this rule only applies to ordinary actions, and not to
cases of ejectment which are governed by section 8,
Rule 72; this rule sets out a particular procedure that may be deemed to be an
exception to the provision of section 9, Rule 40, “is, at best, only
one-third accurate.  It is, of course,
correct to say that the rule in ordinary cases that a perfected appeal shall
ope­rate to vacate the appealed judgment of an inferior court does not apply to
desahucio cases, but as I have already shown above,
this is true only for purposes of immediate execution, as a legal fiction, in
order to give way to such immediate execution if the circumstances justify
it.  At the most, what may be conceded,
in this connection, is that the perfection of such an appeal suspends the judg­ment
of the inferior court as opined by Prof. Feria.  No doubt, the later part of the ruling
implying that the rule of trial de novo is not also applicable to
ejectment cases is entirely unwarranted.  I am certain that neither Mr. Justice Feria who penned the Torres v. Ocampo
decision nor former Chief Justice Bengzon who wrote
the Taguilimot opinion, ever intended their views to
be so erroneously extended, for it is settled by the better reasoned decisions
I am citing in this opinion, that even in ejectment
cases, the procedure on appeal to the Court of First In­stance is trial de
novo, never a review, except when the case happens to be comprehended
within section 10 of Rule 40 in cases wherein there has been no trial on the
merits in the inferior court and such cases have been disposed of therein upon
a question of law.^[7]

At this point, for the reason that it is my humble view that the
decision of this Court in the case of Evan­gelista v. Soriano,
92 Phil. 190, decides the point I have discussed in a manner more in accord
with law and practice, and in many respects it is almost squarely on all fours
with the case now before Us, I shall take the liberty of quoting the said
decision in extenso:

“This is an action for, detainer and
collection of rentals due and unpaid. 
After trial judgment was rendered for the plaintiffs.  The defendant appealed filing a supersedeas bond.  In
the Court of First Instance, the defendant filed an answer setting up illegality
of the rentals sought to be collected and of the assessed value of the leased
premises upon which the increased rental was based, failure of the plaintiffs
to make plumbing repairs on the leased premises, a counterclaim for P128 claim­ed
to be an excess of the amount of rental authorized by law from February 1945 to
December 1946, both inclusive, and damages in the sum of P250.  On 21 January 1949 the attorneys for the
plaintiffs filed a motion praying for the dismissal of the case, payment to the
plaintiffs of the supersedeas bond in the sum of
P347.50 and withdrawal by them of the amount of P176 for rentals deposited by
the defendant, for the rea­son that the latter had vacated the pre­mises on 19
January, 1949 and because she and her attorney failed to appear at the
resumption of the trial of the case on 21 January, the plaintiffs waiving
payment of rentals for July, October, November and December 1948 and half of
January 1949, to put an end to the litigation, without costs.  On that date, after stating that the case was
partly tried on 1 July, the trial having been postponed due to the failure of
the clerk of the municipal court to forward the ex­hibits presented by the
parties, and that the resumption of the trial set for 24 August and 23
September was postponed again upon motion of the attorney for the defendant and
set for 21 January 1949, on which date the defendant and her attorney failed
to appear and the attorneys for the plaintiffs moved for the dismissal of the
case and prayed that the plaintiffs be allowed to withdraw the rentals
deposited in court by the defendant, the court en­tered an order holding that
‘her failure to appear and prosecute her appeal is tantamount to a withdrawal
of said appeal’ and that ‘the appeal is considered with­drawn, the judgment of
the Municipal Court is deemed revived and let the record of the case be
remanded to the Municipal Court in accordance with section 9, Rule 40 of the
Rules of Court, for the en­forcement of the judgment rendered by it in the case.’
On 24 January 1949 the attorney for the defendant filed a motion praying that
the proceedings be suspended until after the provisions of section 17, Rule 3,
shall have been complied with, in view of the fact that the defendant had died
on 9 January 1949, and explaining that his (attorney’s) failure to appear at
the presumption of the trial on 21 Jan­uary was due to the fact that there was
a proposal for an amicable settlement and that not having heard from the
defendant despite his letter to her sent on the 15th, he thought that the case
had been settled amicably.  On 29 January
1949 both motions for dismissal of the case filed on behalf of the plaintiffs
and for suspension of the proceedings filed in behalf of the de­fendant were
acted upon, the Court inviting attention to its order of 21 January 1949,
which, according to it, dispose of the two motions, and further holding that
the case was ‘within the jurisdiction of the Muni­cipal Court for the execution
of the judg­ment rendered by it in this case.’ On 18 May 1949, acting upon a
motion filed by the plaintiffs, the court authorized the attorneys for the
plaintiffs to withdraw the sum of P176 in cash for rentals deposit­ed and of
P347.50 filed as supersedeas bond, and further stated
that ‘this withdrawal is authorized in accordance with the judgment rendered in
this case on 21 January 1949.’ On 21 June 1949 attorney for the defendant moved
for reconsideration of the order of 18 May 1949, on the ground that it was
contrary to law and entered without jurisdic­tion.  This motion was denied.  A notice of appeal, an appeal bond and a
record on appeal were filed.  The appeal
was certified to this Court because only questions of law are raised and
involved.

“Section 9, Rule 40, provides: 
‘A per­fected appeal shall operate to vacate the judgment of the
municipal court and the action when duly entered in the Court t of First
Instance shall stand for trial de novo upon its merits in
accordance with the regu­lar procedure in that Court, as though the same had
never been tried before and had been originally there commenced.  If the appeal is withdrawn, the judgment
shall be deemed revived and shall forthwith be reman­ded to the … municipal
court for execution.’ The defendant filed her answer within the time provided
or in section 1, Rule 9, so she could not e deemed and declared in default
(section 3, Rule 7).  Even if she had
failed to file her answer within the time required and were declared in de­fault,
the plaintiffs were bound to present their evidence upon which judgment could
be rendered.  In accordance with the
above quoted provisions of section 9, Rule 40, the party who could withdraw the
appeal was the appellant, because such withdrawal would revive the judgment
against her rendered by the municipal court. 
Obviously, the appel­lees for whom judgment
was rendered could not ask for the withdrawal of the appeal.  They would not ask for the dismissal of the
case because the judgment secured by them would not be revived thereby and they
would be left without judgment which was vacated upon perfection of the appeal.

“It is contended that section 9, Rule 40, is not applicable
to appeals in detainer cases because the appeal does not
vacate the judgment but suspends only, as may be inferred from the authority of
the court to which the case has been appealed to order execution of the
judgment during the pendency of the appeal upon
failure of the appellant to pay to the prevailing party or to deposit in court
the stipulated rentals or the reasonable compensation, for the preceding month
on or before the tenth day of each month, for the use or occupation of the
premises, as found by the judgment of the municipal or justice of the peace
court.  This authority to direct
Execution expressly provided forth section 8, Rule 72, in no way alters the
provisions of section 9, Rule 40, on the effect of an appear upon a judgment
rendered by a municipal or justice of the peace court.  And proof of this is the provision in the
same section that ‘such execution shall not be a bar to the appeal taking its
course until the final disposition thereof on its merits.’ When the de­fendant
or her attorney failed to appear at the resumption of the trial on 21 January
1949, the court could not dismiss the appeal because it was not authorized to
do so, but was in duty bound to hear the evidence of the plaintiffs and render
judgment thereon unless for good reasons it deemed it justified to postpone the
hearing of the case.  Nor could it
dismiss the case and grant the remedy prayed for, such the payment of rentals,
even if the defendant had vacated already the premises, with a finding that
such rental were really due and unpaid, for a dismissal of the case, if ranted
would leave the prevailing ties in the municipal court bereft of or without a
judgment.  The failure of the de­fendant
or her attorney to appear at the re­sumption of the trial of the case on 21 Jan­uary
1949 could not be deemed a withdrawal of her appeal.  And as there are no findings of facts upon
which a judgment may be based and rendered, the order of 21 January 1949 is not
and cannot be deemed a judgment of the case on the merits.  (section 12, Arti­cle VIII, of the
Constitution).

“As to the substitution of the defendant, her attorney should
prove the fact of her death and the court shall order, upon proper notice, the
legal representative of the de­ceased to appear for her within 30 days or such
time as may be granted, as provided for in section 17, Rule 3.  The court could not order the legal
representative of the de­ceased to appear for her, because it consi­dered the
order of 21 January 1949 as judg­ment entered in the case and notice of the
defendants death was given it three days later or on 24 January 1949.

“The trial court seems to be of the be­lief and opinion that
the order of 21 Jan­uary 1949 is a judgment, where it held that failure of the
defendant or her attorney to appear at the resumption of the hearing of the
case on that date was tantamount to a withdrawal of the appeal, that the
judgment of the Municipal Court w s revived, and hat for that reason it
directed the record of the case to be remanded to the municipal court for
execution.  For the reasons above set
forth this is an error, because as the appellant did not withdraw the appeal
there was no withdrawal thereof.  On the
other already, as already stated, the appellees could
not ask for the withdrawal of the appeal because it was not their appeal and
would not ask for the dismissal of the case because, if granted, they would
have been left without a judgment.

“The orders of 29 January and 18 May 1949, being predicated
upon an erroneous opinion that the order of 21 January 1949 is a judg­ment,
which is not and is a nullity, are set aside and the case remanded to the court
be­low for further proceedings in accordance with law, without costs.” (92
Phil. 191-195) [Underlining supplied]

It is my considered opinion that it is this decision in
Evangelista v. Soriano that should bind Us as a precedent
in the case now before Us, rather than the cases cited by the majority.  The facts of the Evangelista case are the
ones that appear to me to be almost parallel to the one at bar.  Both are actions of unlawful detainer; in both cases, there were judgments of the
inferior courts adverse to the defend­ants-tenants or lessees; in both of them,
there were appeals; in both of them there was no withdrawal of the appeal; and
in both instances; the appeals were dismissed by the court without any motion
of the plaintiffs and appellees.^[8]
Under these circumstances, I cannot find any reason why Our rul­ing now should
be different.  Since in the Evangelista
case, this Court held that judgment of inferior courts even in ejectment cases are not vacated for purposes of the appeal therefrom to the court of first instance, which is exactly
the practice now going on in all our courts of first in­stance, why should this
Court prefer to follow, in the present case, and further sanction, by
reiteration, the pa­tently incorrect view expressed in the case of Acierto v. Laperal?  Inasmuch as in the Evangelista case, this
Court ruled that the failure of the defendant to appear at the trial,
repeatedly, at that, did not constitute default, much less a withdrawal of the
appeal, why are We going to insist now, in this case before Us, that the
respondent has failed to prosecute his appeal in the court of first instance,
just because neither he nor the petitioners had moved for a hearing of the case
in said court, although respondent had been religiously complying with the
require­ments of filing a supersedeas bond and paying
the current rentals or rental value of the property in question which,
incidentally, the City Court of Manila increased to P600.00 a month from the
P200.00 fixed in the contract of lease?

Coming now to the reasons of public policy advanced by the
majority, I happen, again to have a different view.  As I have stated at the very outset of this
opinion, fully agree that there should be a more speedy disposition of appeals
of ejectment cases and, for that matter, of all cases
in this Court, so as not to prejudice the numerous litigants waiting for our
decision in their respective cases which might be more important, but I am
unable to give my conformity to the proposition that, assuming that neither
appellant nor appellee takes a move to advance the
progress of an ejectment case appealed to the court
of first instance from, an inferior court by the defendant, We have the
discretion to choose whether to dismiss the complaint or to dismiss the appeal
at, what is more, that, as a matter of public policy, the better choice is the
latter.  I am thoroughly convinced We
have no such choice, for it is clear to me that in such a case, the only course
of action We can take is plainly set out and fixed in the laws both procedural
(Rules of Court) end riot so procedural (the pertinent provisions of the Civil
Code), namely, to dismiss the complaint of the plaintiff.  Again, I humbly and respectfully submit my
reasons for this conclusion.

I believe I can begin by stating that nowhere is there in the
Rules of Court any provision expressly and directly authorizing the dismissal
of an appeal from an inferior court to the Court of First Instance for the fail­ure
of the appellant to prosecute the same. 
This pausity is in contrast to the express
provision of Section 1(c) of Rule 50 governing appeals from the Court of First
Instance to the Court of Appeals which says that an appeal “may be
dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following ground(s) …  (c) Failure of the appellant to prosecute his
appeal under Sec. 3 of Rule 46.” And Sec. 3 of Rule 46 provides that
should the Clerk of Court fail to transmit the record on appeal to the Court of
Appeals within thirty (30) days from its approval, the appellee
may move the Court of Appeals “to declare the appeal abandoned for failure
to prosecute.”

It may be pointed out, in answer to my contention, that under
revised version of Section 9 of Rule 40 in the 1964 Rules of Court, which reads
thus:

“Sec. 9.  Effect of Appeals.-
A perfected appeal shall operate to vacate the judgment of the justice of the
peace or the municipal court, and the action when duly docketed in the Court of
First Instance shall stand for the trial de novo upon its Merits
in accordance with the regular procedure in that court, as though the same had
never been tried before and had been originally there commenced.  If the appeal is withdrawn, or dismissed
for failure to prosecute, the judgment shall be deemed revived and shall
forth­with be remanded to the justice of the peace or municipal court for
execution.” [Underscoring Mine]

mention is now made of the appeal from an
inferior court to the Court of First Instance being “dismissed for failure
to prosecute”, unlike in the corresponding provision of the Rules of
1940.  While the majority opinion does
not refer at all to this quite relevant innovation in the rule under scrutiny,
I will take it that the same had been considered by my able colleagues.  Still, I am at a loss as to how this
amendment can support their conclusion.

It must be remembered that the appeal, here in ques­tion, from
the City Court to the Court of First Instance of Manila was perfected sometime
between May 28, 1963, the date of the judgment of the inferior court, and June
24, 1963, when the clerk of the Court of First Instance noti­fied the parties
that the appeal had already been entered in his docket,^[9]
that is, more than six months before the Revised Rules of Court went into
effect on January 1, 1964.  To be more
accurate, therefore, what was actually pending at the time the new rules went
in effect was not the process of appeal of respondent but the case itself of ejectment already docketed in the court of first instance.  Such being the situation, it is to me
extremely doubtful if the provision of Section 9, Rule 40 regarding fail­ure to
prosecute an appeal can be invoked against re­spondent.

Besides, by express provision of Rule 144 of the current Rules,
these rules shall govern proceedings in cases pending on January 1, 1964,
“except to the extent that in the opinion of the court their application
would not be feasible or would work injustice in which event the former
procedure shall apply.” I am not persuaded that the order of dismissal of
Judge Solidum of October 20, 1964, herein in
question, would not work injustice to the appellee,
who, for all We know did not even have any inkling at that time, like many
lawyers and judges, of the change in the rule, hence my reluctance in applying
the revised version, above-quoted, of section 9, Rule 40 to this case.

Furthermore, I consider the reference in sec. 9 of Rule 40 to the
dismissal of an appeal from an inferior court to the court of first instance
for failure of the appellant to prosecute the same as a dangling provision
which by itself alone cannot serve, as basis for such a dismissal and,
consequently, may be considered as non?existent.  Notice that the provision says, “if
the appeal is dismissed for failure to prosecute”, thereby implying
necessarily that there is another provision authorizing such a dismissal, but
where is that provision?  The answer is,
there is none; albeit, by contrast, as I have already stated, there is one such
rule for appeals from the Court of First Instance to the Court of Appeals or
the Supreme Court.  On the other hand,
assuming for the sake of argument, that such a provision should not be
considered as a dangling one, and We have to give it some signifi­cance in
obedience to the rule of statutory construction that all parts of a statute
should be given effect, or that the rule in the courts of first instance should
be followed by analogy, the inevitable result would be that said phrase
“failure to prosecute” should be construed as conveying the
significance of the same phrase it is used in the above-mentioned section 1 (c)
of Rule 50.  Under said provision, as
already demonstrated, what is considered failure of the appellant to prosecute
his appeal is none other than his failure to urge the clerk of court of the
court of first instance to transmit the record on appeal within the period
referred to in sec. 3 of Rule 46, and because of which, said transmittal is
delayed.  In other words, there being a
provision section 5 of Rule 40, requiring the municipal judge concerned to
transmit to the clerk o court of fir instance, “all the papers, process
and bond in the appealed case within five (5) days after the perfection of the
appeal, “failure to prosecute” an appeal to the court of first
instance should be understood as referring only and only to the failure of the
appellant to see to it that the said “papers, process and bond”, are
transmitted within the required period of fie(5) days and the said transmittal
is, in fact, delayed.  There is no such failure
nor delay in the case now at bar.

In a way, this innovation en sec. 9 of Rule 40 fills a void that
existed under the old Rules.  It will be
noted that, as shown above, upon the perfection of the appeal, by the
seasonable filing by the appellant in the inferior court of the notice of
appeal, appeal bond and certifi­cate of deposit of the docket fees in the court
of first instance, the judgment of the inferior court is automati­cally vacated
as if everything that happened therein did not exist.  On the other hand, it is only upon the entry
of the appeal in the docket in the court of first instance that the latter
court may assume jurisdiction over the case as if it were originally filed
therewith and all the pleadings filed in the inferior court are considered as
automatically reproduced therein.  In
between such perfection of the appeal, on the one hand, and the entry thereof
in the docket of the court of first instance, on the other, there would seem to
be an empty zone where there are neither pleadings nor judgment, hence, the
duty imposed upon appellant to ascertain that the correspond­ing records are
immediately or speedily transmitted to the appellate court.  Accordingly, it may be said that as the rules
now appear, the duty to press action in a case in an inferior court while the
same is pending there devolves upon the plaintiff, under pain of his being
non-suited.  (sec. 11, Rule 5).  After an appeal is perfected, assuming one is
made, but before the entry of such appeal in the court of first instance, such
duty devolves upon the appellant, whether he be plaintiff or defendant.  After the appeal is entered in the docket in
the court of first instance, such duty would already devolve upon the plain­tiff
again because the procedure in the court of first instance is the same as if
the complaint had been originally filed therewith (sec. 3, Rule 17) In other
words, as already intimated earlier in this opinion, after the appeal is timely
docketed in the court of first instance, there is no more occasion to speak of
failure to prose­cute the appeal because the same had already been completely,
prosecuted and the case takes already the nature of a new one to be governed
exclusively by the rules for the court of first instance, as if the same had
never been originally there commenced and as though it had never been tried
before, and what should be inquired into already is whether or not the
plaintiff is duly prosecuting his act­ion in the court of first instance, for
which, it is un­deniable that there are definite governing rules.

As to the desire of the majority that appeals be speedily
disposed of, I wholeheartedly join my brethren, but I fail to see any logic in
their holding that “considerations of public policy warrant that greater
diligence be demanded from appellants in forcible entry and detain­er
cases to expedite the disposal thereof.”

As I understand it, the principle behind the rules ordaining the
dismissal of any case for failure to prose­cute is that if the party who would
be prejudiced by the inaction of the court is not interested in hastening the
progress of his suit, the court should declare that it has less interest in
entertaining the same by terminat­ing it forthwith.  This is true as to actions in inferior courts
as well as to those in superior courts. 
This prin­ciple is also true as to appeals from one superior court to
another superior court, which appeal is by review, be­cause if the party who
wants a review of the lower court’s action does not press for such review, why
should the court entertain the request for review any longer?  Besides, in such appeal, the appellant is
prejudiced by the delay because, as the judgment stands until reversed, there
is that sword of Damocles over him, and there are even instances when it may be
executed.  This is not true with appeals
from inferior courts, where the judgments appealed from are vacated upon the
perfection of the appeal and the plaintiff has to prove his case all over again
in the appellate court “as though it had been originally there commenced.”
As regards ejectment cases, in particular, the
appellant is not prejudiced but, on the contrary, favored by the pendency of the appeal, since he can continue in possession
of the property in question, even if he has to be up-to-date in the payments of
rentals therefor.

My point, therefore, is that it is precisely in ejectment cases that the one who stands to be juridi­cally and materially prejudiced by the prolongation
of the appeal is the plaintiff who is continuously being de­prived of
possession of the property in question and not the defendant, who is allegedly
in illegal occupation thereof.  Under the
above principle that he who is pre­judiced by inaction in a case is the one on
whom the rules impose the obligation to see to it that the suit progresses
speedily to its termination, the inescapable conclusion is that in an ejectment case, it is the plaintiff who must be diligent in
the prosecution of the action.  I cannot
imagine a case being dismissed because the defendant has failed to ask for a hearing
thereof.  Indeed, from the very nature of
things, a de­fendant cannot be expected to hurry a case because no sanction can
be applied to him, if he should not coope­rate; he cannot be declared in
default; he cannot be adjudged liable; not even a summary judgment or a judg­ment
on the pleadings may be rendered against him, on account of his inaction.  Why should his situation change in an ejectment case already appealed to the court of first
instance wherein the action is deemed to be originally commenced therein
without regard to the evidence and the judgment of the inferior court,” as
though the same had never been tried before”, and where, consequently, the
plaintiff has to prove his case in order to win?

I also believe that my position in this case, al­beit lonesome
because the majority are inclined other­wise, is in accordance with the spirit
and objective of Art. 1674 of the Civil Code. 
This article provides:

“ART. 1674.  In ejectment cases where an appeal is taken, the remedy
granted in article 539,^[10]
second paragraph, shall also apply, if the higher court is satisfied that the
lessees appeal is frivolous or dilatory, or that the lessor’s
appeal is prima facie merito­rious.  The period of ten days referred to in said
article shall be counted from the time the appeal is perfected.”

“A prossessor deprived of his possession
through forcible entry may within ten days from the filing of the complaint
present a motion to secure from the competent court, in the action for forcible
entry, a writ of preliminary mandatory injunction to restore him in his
possession.  The court shall decide the
motion within thirty(30) days from the filing thereof.”

By this provision, the plaintiff in an ejectment case is given the right not only to secure his
rentals by the application of sec. 8, Rule 70, containing the conditions sine
qua non for the non-execution of the judgment pend­ing the
appeal, but also the right to immediately take back the possession of his
property, without regard to said section 8 of Rule 70, provided that his motion
to such effect is filed within ten (10) days from the docketing of the appeal
in the court of first instance.  (Sycip v. Judge Soriano, et al.,
[CA] 52 O. G., 1474).  Should plaintiff
not avail of this right, he must be deemed to have preferred that the
possession of the pro­perty involved remain with the defendant until after the
trial on the merits.  That is exactly the
situation in which petitioners were at the time Judge Solidum
issued the questioned dismissal order. 
For this Court to inject into such presumption of the law and situation
of peti­tioners the idea of the respondent being obligated in these premises to
have moved so that this case could be terminated earlier and thereby probably
lose the posses­sion which he had is absurd. 
In a sense, for this Court to do such a thing is to lay it open to the
charge of be­ing more popish than the Pope, to use a trite expression.

I have no quarrel with the proposition that actions for recovery
of possession of lands or buildings, denomi­nated as actions of forcible entry
and unlawful detainer, have been made purposely
summary in nature so that there may be a peaceful, speedy and expeditious means
of preventing an alleged illegal possessor of property from un­justly
continuing his possession for a long time, there­by insuring they maintenance
of peace and order in the community, as, otherwise, the party illegally
deprived of possession might feel the despair of long waiting and decide, as a
measure of self-protection, to take the law in his hands and seize the same by
force and violence.  I agree that all our
decisions should follow this line and I will never be the last member of this
Court to condemn acts of the defendant amounting directly or indirectly to
dilatory tactics.  What seems to me,
however, to be a reversal of the natural order of things is the thinking of the
majority that the defendant should go out of his way and be the one to urge the
court to earlier termi­nate the case which might result in his ouster from the
premises he is actually possessing.  To
expect a person to hasten his own possible defeat is to demand the un­reasonable;
it can even be oppressive.  Worse, by so
do­ing, We relieve the party who should be most interested in the early
recovery of his property of the to be diligent and active in the prosecution of
his suit.

Incidentally, before I close and in the interest of accuracy, I
might just as well invite attention to the fact that respondent cannot be
charged with inaction from June 28, 1963, when he filed his answer.  It should be, recalled that the answer
contained a counterclaim and that on July 2, 1963 plaintiff (then) Ozaeta filed a motion to dismiss said counterclaim.  It was only on August 29,1963 that Judge Solidum denied this motion. 
Thereafter, plain­tiff had still to answer the counterclaim, and it was
only after the filing of said answer that the case stood ready for trial.  By reasonable calculation, this must have
been around the middle of September, 1963 already, so that when Judge Solidum ordered the dismissal of the appeal on Octo­ber 20,
1964, scarcely one year and a few days only of in­action had passed.  With this clarification, it is not, in my
humble opinion, safe to hold that the cases cited by the majority are good
precedents for the case at bar, be­cause in (1) Chuan v. de la Fuente, 90 Phil., 813, what happened was this:  “Al siguiente dia los recurridos
pre­sentaron su contestacion.  Desde el 26 de febrero de 1949 estaba disponible la causa para vista; pero el recurrente dejo transcurrir un año, cuatro meses,
y cuatro dias sin gestionar la vista carrespondiente,
y se trataba, no de una causa ordinaria, sino de un remedio
especial urgente” so “esta tiempo transcurrido
es un tiempo irrasonable de falta de gestion por parte
del recurrente para que el Juz­gado motu proprio quede justificado en sobreseer la deman­da,        x x x” (at p. 815); in (2) Villanueva v. Secretary of
Public Works, 16 SCRA-422, an action for injunction, there was also a
preliminary injunction issued in favor of plaintiff and no move was made by
said plaintiff to have a hearing from June 11, 1960, when issues were joined,
to May 10, 1962 or almost two years, indeed an unreasonable inaction,
considering there was a preliminary injunction; and in (3) Insurance Company of
North America v. Republic, 21 SCRA-887, the inaction was for one year, three
months and twenty-one days.  In all said
cases, the period was considerably longer and there were preliminary
injunctions in two of them.  In language
which seems to be echoed in the decision of Justice Esguerra
We are now reviewing, Messrs Justices Tuason and Alex
Reyes, expressed their dissent from the ruling in Chuan v. de la Fuente, supra thus:

“Neither law nor the Rules of Court provides that the
plaintiff shall move for the trial of his case, and much less do they say that
the court may dismiss an action when the plaintiff neglects to make such
motion.  In reality the practice has been
and is for the courts to prepare their calen­dars of trial in the manner
suitable to their convenience with or without promp­tings by the parties.  Indeed where the parties do request for
inclusion of their cases in the calendar, they more often than not meet with
deaf ears or are told to wait, generally for the reason that there are older or
more ur­gent cases.

“In courts burdened with clogged dockets, where litigants who
are really anxious to have their cases terminated have to put up with
exasperating delays notwithstanding repeated pleas for in­clusion of such cases
in the calendar, are the parties to be blamed and punish­ed for not doing what
the plaintiff at bar is said to have neglected?

“Section 3 of Rule 30 cited in the majority decision should be
construed to mean, in the light of the circum­stances above stated, unjustified
fail­ure to be present when the case is call­ed for trial, or to take such
steps as may have been ordered by the court or required by procedure and
without which the courts could not proceed with the hearing to its final
termination.

“That at least is the norm by which legal practitioners
have been guided; and if section 3 of Rule 30 means as this Court holds the
attorneys’ wrong notion should at least be first, corrected and they should be
warned that penalty of dismissal or non-suit, it or after each indefinite is
decreed, to call the attention of the court to the pendency
of their cases lest these be forgotten.

“The opinion of this Court that the present action was
unmeritorious and that the delay suited the plaintiff’s interest, has no place
in the decision.  But if the Court’s
belief be well found­ed and material, this circumstance should have placed on
the defendant greater responsibility than on the plaintiff to see that the case
was disposed of promptly.  In that case
the defendant would be as deserving, if not more, as the plaintiff of
condemnation for lack of diligence.” [Underscoring Mine]

Taking all other relevant circumstances I
have discussed above into account and judged by the above opinion, even if only
dissenting, of two of the most respected former members of this Court, I am
constrained to regard the one year inaction of respondent herein, if he could
be blamed for it, as not too long as to have given Judge Solidum
sufficient basis for declaring respondent’s appeal abandoned.  Ordinary considerations of equity alone
should have enjoined the court to instruct the clerk of court to put the case
in the next calendar, if it could not slap the dismissal on the plaintiff
(then) for not taking enough interest in prosecuting his suit.

In conclusion, I humbly submit that the holding of the majority
that in ejectment cases, the rule as regards vacating
of judgments and trial de novo in appeals from inferior courts to
the courts of first instance does not apply to ejectment
cases is based on previous decisions of this Court that are either not
controlling herein or are “clearly erroneous”, to borrow the language
of Mr. Justice J. B.L. Reyes in Smith v. Kapunan, supra;
that the duty to have the action speedily determined does not devolve upon the
defendant-appellant in such appeals, after the same have been completed upon
entry thereof in the docket of the court of first instance, because in such
circumstance, it is the plaintiff-appellee who must
be called upon to prosecute the case in accordance with section 3 of Rule 17,
the rule for the courts of first instance, since the case already stands
therein “for trial de novo upon its merits in accordance
with the regular procedure in that court, as though the same had never been
tried before and had been originally there commenced.”; that should there
be an unreasonably long inaction of both parties and the court after the
completion of such an appeal, the com­plaint of the plaintiff, not the appeal
of the defendant should be the one dismissed; that under Article 1674 of the
Civil Code, if the plaintiff-appellee does not seek a
preliminary mandatory injunction to recover possession of his property because
of the dilatory or unmeritorious appeal of defendant-appellant, it is not for
the court to be more popish than the Pope and punish the defendant-appellant
who religiously keeps on paying the rentals fix­ed by the court, rather, it
should consider the plaintiff-appellee as having
preferred to allow the defendant-appel­lant to continue in possession until the
termination of the case on the merits; that the rule on immediate execu­tion
under sec. 8 of Rule 70, relative to ejectment cases,
is independent of and has nothing to do with the rule of trial de novo in
appeals from inferior courts to the court of first instance; that the inaction
in dispute in the pre­sent case is, to be exact, only of barely one year and
not more than one year and three months, as the majority seems to believe, and
which has been found unreasonably long in the cases of Chuan, Evangelista &
Insurance Company of North America, cited by the majority, (because there were
inactions in all three of them of more than one year and three months, with the
first two named cases having preliminary injunctions against defendant, as special
circumstance de­manding urgency,) hence said cases are not controlling herein;
that, viewed in proper light, the above-quoted remarks of Mr. Justice Tuason in the Chuan case may well guide Us in determining
whether or not, in this case, the Court of First Instance of Manila acted
within’ sound dis­cretion or within the law in issuing the order of dismissal
herein in question; consequently, We should hold that Judge Solidum
was unduly strict, under the circumstances, in dismissing outright the appeal
of respondent without giving him an opportunity to show cause why he should not
be the one adjudged as lacking in diligence; that, by and large, even if there
should be any doubt, which I do not entertain, as to the proper interpretation
of the applicable provision of the Rules of Court, sec. 9, Rule 40, to this
case, I feel very strongly that the equities of this case are in favor of the
respondent, for the reasons.  I have
extensively discussed herein; and that the require­ment of public policy that
cases should be disposed of more speedily may better be enforced by dismissing
the complaint rather than the appeal of the defendant, since it is fundamental
that Our idea of public policy cannot supplant that announced already in the
existing provisions of law and the Rules. 
Regarding the desire of the majo­rity that a new policy be enunciated
demanding more dili­gence from defendants-appellants in forcible entry and detainer cases so that their appeals may be more expedi­tiously
disposed of, I hold that the most We can do is to make it plain to them that We
are not going to tolerate any dilatory tactics on their part, even as We
continue to hold plaintiffs-appellees to their
natural role of be­ing the ones responsible for the continuous progress of
their suits, under pain of the same being dismissed if they are not prosecuted
within a reasonable time.

I have no alternative but to vote to affirm the decision of the
Court of Appeals, specially because it does not order the dismissal of the
complaint but only requires the trial court to try the case on the merits, a
solution not as hard on the petitioners as the dismissal of their complaint,
which could properly be done, with the amendment that the trial court be
instructed to give this case the preference that its nature and present status
deserve, as against those of the other cases pending before said court, without
costs.

^[1]
The rental stipulated in the contract of lease was P200.00 a month.  (Record on Appeal, p. 3)

^[2]
The original plaintiff in this case was Roman Ozaeta,
as executor of the estate of Don Caslos Palanca.  The present
plaintiff-petitioners are the heirs of said Don Carlos Palanca
who were substituted in place of Ozaeta while this
case was pending in the Court of Appeals.

^[3]
Under the Rubs of Court, both of 1940 and 1964, dis­missals by non-suit are
with prejudice unless other­wise ordered by the court.

^[4]
In Quiogue v. Buenaventura, 64 Phil. 718,
Chief Justice Avanceña ruled in a unanimous decision
that if in an appeal from an inferior court to the Court of First Instance, the
case is dismissed by the latter court for failure to prosecute, the judgment of
the inferior court cannot be executed because it has been set aside by the
perfection of the appeal.

^[5]
Section 8 of Rule 72 of the Rules of 1940 (which is the same as Section 8 of
Rule 70 of the 1964 Rules, with some minor changes) provided:

SEC. 8 Immediate execution of
judgment.  How to stay same.- If judgment
is rendered against the defendant, execution shall issue immediately, unless an
appeal has been perfected and the de­fendant to stay execution files a
sufficient bond approved by the justice of the peace or muni­cipal court and
executed to the plaintiff to enter the action in the Court of First Instance,
and to pay the rents, damages, and costs down to the time of the final judgment
in the action, and unless, during the pendency of the
appeal, he pays to the plaintiff or to the Court of First Instance the ‘amount
of rent due from time to time under the contract, if any, as found by the
judgment of the justice of the peace or municipal court to exist, or, in the
absence of a contract, he pays to the plaintiff or into the court, on or before
the tenth day of each calendar month, the reasonable value of the use and
occupation of the premises for the pre­ceding month at the rate determined by
the judgment. All moneys so paid to the Court of First Instance shall be
deposited in the provincial treasury, or in the City of Manila
in the Insular Treasury, and shall be held there until the final disposition of
the appeal.  Should the defendant fail
to make the payments above prescribed the pendency of
the appeal, the Court of First In­stance, upon motion of the plaintiff of which
the defendant shall have notice and upon proof of such failure shall order the
execution of the judgment appealed from, but such execution shall not be a bar
to the appeal taking its course until the final disposition thereof on its
merits.  If the case is tried on its
merits in the Court of First Instance, any money paid into court by the
defendant for the purposes of stay of execution shall be disposed of in
accordance with the provisions of the judgment of the Court of First Instance,
and in any case wherein it appears that the defendant has been de­prived of the
lawful possession of land or building pending the appeal by virtue of the
execution of the judgment of the justice of the peace or municipal court,
damages for such deprivation of possession may be allowed the defendant in the
judgment of the Court of First Instance disposing of the appeal.  The bond above referred to shall be trans­mitted
by the justice of the peace or municipal court, with the other papers, to the
clerk of Court of First Instance to which the action is appealed.

^[6]
Professor Jose Feria has the following interpretation
of the decision in Torres v. Ocampo:

“This means that the judgment
is set aside.  The only exception is in
forcible entry and detainer cases, in which the
judgment of the inferior court is only suspended until the rendered and
supersedes the former.  It is suspended
and not vacated because it may be executed upon failure of the defendant?appellant
to put up a supersedeas bond to cover the rents or
damages already due and to pay or deposit the rents or damages to become due,
as determined in the judgment of the inferior court.  (Sec. 8 of Rule 70.  See the case of Torres v. Ocampo, et al., Phil. 36)” [Feria,
Civil Procedure 4 stated, 1967 ed. p. 826]

^[7]
In his brief, respondent already invited our attention to the fact in the case
of Roxas et. al. v. Juan Ismael
& Co., Inc., 97 Phil. 594, the trial de novo rule was applied
in a case of illegal detainer.

^[8]
In the Evangelista case, the plaintiff asked for the dismissal of the case, not
the appeal.

^[9]
The record on appeal fails to show the exact date.

^[10] Art.
539 of the Civil Code provides:

“ART. 539.  Every possessor has a right to be respected
in his possession; and should he be disturbed therein he shall be protected in
or restored to said possession by the means established by the laws and the Rules
of Court.

“A possessor deprived of his
posses­sion through forcible entry may within ten days from the filing of the
complaint present a motion to secure from the com­petent court, in the action
for forcible entry, a writ of preliminary mandatory injunction to restore him
in his posses­sion.