MARTA VDA. DE DE LA CRUZ, PETITIONER, VS. HON. JUDGE GENARO TAN TORRES, JUDGE OF THE COURT OF FIRST INSTANCE OF NUEVA ECIJA, AND ROSALINDA Z. TIONGCO, RESPONDENTS.

In a complaint dated October 22, 1958, filed with the Court of First
Instance of Nueva Ecija and docketed therein as Civil Case No. 3016,
plaintiff Rosalinda Z. Tiongco alleged that she is the owner in fee
simple and in actual and material possession of Lot No. 1856 of the
Sta. Rosa Cadastre (therein described by metes and bounds); that she
has introduced improvements on the land, and has, in fact, ready for
harvest the palay she planted thereon; that on October 19, 1958,
defendant Marta de la Cruz, accompanied by her children and several
armed men, entered the said lot and destroyed plaintiff’s barbed wire
fences; that once in the land, they destroyed the house of the
plaintiff’s tenant erected thereon, and manifested that “they shall be
back and shall harvest the palay of the plaintiff thru force and
intimidation”; that again, in the morning of October 22, 1958,
defendant intimated that by noon of the same day, she would, with the
aid of armed men, enter upon the land and harvest the palay thru force;
and that, unless the defendant and other persons, acting for and in her
behalf, be enjoined from doing so, she (plaintiff) would suffer
irreparable injury and damage. Wherefore, plaintiff prayed that after
due hearing and the giving of a bond in the sum as the court may fix, a
writ of preliminary injunction be issued prohibiting the defendant and
her agents from entering the land and further molesting her in her
possession; that after trial on the merits, said restraining order be
made permanent; and finally, that defendant be ordered to pay to the
plaintiff the sum of P5,000.00 as damages and P2,000.00 as attorney’s
fees.

In its order of November 5, 1958, the lower court caused the
issuance of a writ of preliminary injunction; and as the instant
petition revolves on the propriety of this order, it is hereunder
quoted in full:

”When this case was called for hearing on October
28, 1958, in connection with the issuance of a writ of preliminary
injunction, Atty. Alfonso G. Espinosa appeared for the defendant, and
asked for five days within which to submit his opposition to the
petition foe the issuance of a writ of preliminary injunction, which
was granted. On November 4, 1958, when this case was called again for
hearing, Atty. Pedro Maldia, counsel for the plaintiff, and Atty.
Alfonso G. Espinosa, counsel for the defendant, appeared and asked the
court that they be given until today to file an amicable settlement
regarding the issuance of the writ of preliminary injunction. The Court
granted the said petition, and accordingly, a written manifestation,
dated November 4, 1958, signed by the attorney for the defendant was
filed wherein, among other things it is stated that the defendant is
agreeable to the issuance of the writ of preliminary injunction
provided that she be allowed to file a counter-bond in order to
preserve her possession and preservation of the palay in question.

WHEREFORE,
the Court orders the issuance of a writ of preliminary Injunction
against the defendant Marta Vda. de de la Cruz, her children, agents,
or any person acting in her behalf, from entering Lot No. 1856 of the
Sta. Rosa Cadastre, the land under litigation, and from harvesting the
palay growing thereon, until further orders of this Court. If and when
the defendant wants to lift the writ of preliminary injunction by
filing a counterbond or for any justifiable reason, she should file the
corresponding petition.

SO ORDERED.”

Against this order and from another order denying his motion to
dissolve the writ of preliminary injunction, the defendant filed the
present petition for certiorari and mandamus, wherein, contending that
the issuance of the said writ was improper, he urges (a) that injunction, being merely a provisional remedy, cannot stand alone as the main action; (b) that the allegations in the complaint are insufficient to warrant the issuance of the provisional writ; (c)
that the issuance thereof was improper in that there is no showing that
he was ever served a copy of plaintiff’s bond; and lastly, (d)
that the lower court should have considered his readiness to file a
counterbond for the purpose of quashing the writ already issued.

We find no merit in petitioner’s contentions. Section 1 of Rule 60
of the Rules of Court provides for two classes of injunction, to wit: (a) the preliminary injunction, and (b)
the final injunction. The first is essentially a provisional remedy
which may be granted at any stage of an action prior to final judgment,
while the second is the one included in the judgment as the relief
or part of the relief prayed for in the complaint. What may not stand
alone as an independent suit by itself is one which exclusively seeks
the issuance of a writ of preliminary injunction, a remedy that must be
ancillary to a principal case. There can be no serious question,
however, on the propriety of issuing such a provisional remedy in an
action for injunction, wherein the entirety of the relief sought
consists in restraining the commission or continuance of the acts
complained of, either for a limited period or perpetually. This, in
fact, is authorized under section 8, paragraph (a), of Rule 60 of the Rules (see also Calo vs. Roldan, 76 Phil., 445).

In this instance, the plaintiff-respondent alleges ownership and
peaceful possession over the parcel of land in dispute, but that the
defendant threatens to commit and, some time previously had actually
committed, acts of dispossession and destruction that have resulted,
and will continue to result, in serious and irreparable damage and
injury to the plaintiff unless the defendant is enjoined from further
carrying out her threats. Upon the foregoing bases, we are not prepared
to rule, in the absence of a contrary showing, that the lower court
abused its discretion in issuing the writ complained of.

As to the assertion that the defendant was not served with a copy of
the plaintiff’s bond, we believe that such fact is merely a formal
defect which does not adversely affect the writ already issued and is,
certainly, not a reversible error of the lower court. As held in
Rodolfa vs. Alfonso, et al., 76 Phil. 232, this formal defect
may be cured by subsequent notice to or knowledge of the defendant.
Indeed, it may be considered waived where, as in this case, the
defendant seeks to file a counterbond. At most, the defendant herein
may ask the court, if no notice has yet been given, to order the
plaintiff to serve her a copy of the bond.

Coming to the last question, it would appear that the writ of
preliminary injunction was issued mainly upon the manifestation of the
parties, which, among other things, expressed that “the defendant is
agreeable to the issuance of the writ * * * provided she be allowed to
file a counterbond”, so that, accordingly, the court stated that “if
and “when the defendant wants to lift the writ of preliminary
injunction by filing a counterbond or for any justifiable reason, she
should file the corresponding petition.” From this, petitioner
apparently concludes that the mere offer to file a counterbond is
sufficient to quash the writ complained of. This is erroneous. It is
incorrect and improper to assume that the manifestation of the parties
was the only factor that moved the court to grant the provisional
remedy. For one thing, the order itself requires that the necessary
petition be first filed, and for another, the lower court’s discretion
in that regard cannot be controlled by the mere agreement of the
parties. As already intimated, the writ may be granted or dissolved
only upon good and valid grounds, the determination and sufficiency of
which rest within the sound discretion of the court. It follows, also,
that, in the absence of grounds such as the insufficiency of the
allegations of the complaint or that the continuance of the writ
already granted would cause great damage to the defendant, while the
plaintiff may be fully compensated for such damages as he may suffer
(Sec. 6 Rule 60, Rules of Court), the mere offer of a counterbond does
not suffice to. warrant the dissolution of the preliminary writ of
injunction. Certainly, a threatened destruction of property may not be
countenanced even if the party against whom the writ is directed is
willing to pay for all damages he may cause thereby.

In passing, it may be noted that this petition should have been
addressed to the Court of Appeals, being a case involving a remedy in
aid of its appellate jurisdiction; but since no serious question of
fact is here involved, and in order to save time, we prefer to have it
disposed of here and now.

Wherefore, the petition is dismissed with costs against the petitioner.

Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Endencia, and Gutierrez David, JJ., concur.