PRIMA TANDOC, PETITIONER, VS. HONORABLE RICARDO TENSUAN IN HIS CAPACITY AS PRESIDING JUDGE OF THE COURT OF FIRST INSTANCE OF RIZAL, QUEZON CITY, AND ELEUTERIO PAGTAKHAN AND JIMM…

The dismissal orders issued by respondent judge are set aside for
having been issued with grave abuse of discretion.  There was no failure on petitioner’s part to
prosecute her just suit for an unreasonable length of time as to warrant
dismissal thereof by respondent judge motu proprio.  The
procedural rules are addressed to the sound judicial discretion of the courts
which must be exercised wisely and prudently, never capriciously, with a view
to rendering substantial justice.

In a Joint Order covering three separate civil cases dated
December 29, 1978, respondent judge, simply stating that “it appearing
that the parties … have failed to take the necessary steps to terminate the
same notwithstanding the length of time that has already elapsed, the Court
considers such inaction as lack of interest,” ordered the dismissal of the
cases “for failure to prosecute.”

Among the cases so dismissed was the complaint filed some eight
months earlier on April 12, 1978 by herein petitioner as plaintiff against
private respondents Eleuterio Pagtakhan
and Jimmy Morales as defendants.^[1]
In her complaint, petitioner, a widow and low-salaried employee earning some
P460.00 monthly, seeks the recovery of P17,500.00 as actual, moral and
exemplary damages and attorney’s fees for serious injuries inflicted on her
while crossing the street be Betts taxicab owned and operated by respondent Pagtakhan and recklessly driven by respondent Morales as
driver.

Summons was issued and served on respondent Pagtakhan
on April 25, 1978 but
respondent Morales could not be served with summons at his residence and he has
remained at large.  On February 2, 1979, her efforts to locate and have
the summons served on Morales having failed, petitioner filed a motion to
declare respondent Pagtakhan in default.

It was only subsequent thereto on February 5, 1979 that peti­tioner’s counsel received
respondent judge’s above-mentioned dismissal order dated December 29, 1978.  Petitioner forthwith filed on the next day
her motion for reconsideration, but under date of March 14, 1979 respondent
judge summarily denied reconsideration as well as petitioner’s motion to
declare respondent Pagtakhan in default, stating that
the other respondent-defendant Morales had not yet been served with summons and
“until now [petitioner] has not taken any step to have the summons
served” and that the motion for default was filed only after the case was
dismissed for her failure to prosecute.

Hence the petition at bar. 
The Court finding patent merit therein has dispensed with the filing of
briefs or memoranda and sets aside the questioned orders for having been issued
arbitrarily and with grave abuse of discretion.

1. The reasons summarily given by respondent judge for denying
petitioner’s pleas in her motion for reconsideration to reinstate the case
“in the interest of justice and equity” do not find support in the record.  Petitioner’s counsel had disclaimed therein
the lack of interest attributed to her, invoking the “necessary
diligence” exerted to locate Morales and that “this representation
has and is endeavoring its best to ascertain the place where defendant Morales
could be served with summons.  In fact,
there is a pending criminal case against defendant Jimmy Morales for physical
injuries, where the complaining witness is the same plaintiff in this instant
case before the City Court of Quezon City, Branch IX,
entitled People vs. Jimmy Morales, Criminal Case No. 13876911, wherein said
accused is still at-large, as he is not yet arrested and has not yet filed his
bond.” The fact that petitioner through counsel immediately filed a motion
for reconsideration of the dismissal order on the day following its receipt
speaks against respondent judge’s unfounded assumption of her “lack of
interest” for as stated in her motion “her complaint shows a good
cause of action against defendants and her evidence, if given the necessary
opportunity to present them in court, is strong enough to prove her case
against herein defendants.” The record further shows that contrary to
respondent judge’s statement, petitioner had filed her motion to declare
respondent Pagtakhan in default on February 2, 1979 – three days before she
received on February 5, 1979
notice and copy of the dismissal order dated December 29, 1978. 
It should be noted in this regard that as late as February 15, 1979 when
respondent Pagtakhan filed his opposition to the
motion for default, claiming that the sum­mons had not been received by him, he
was as yet seemingly unaware and had not been served with copy of the dismissal
order (attributable apparently to the notoriously poor mail service in Quezon City or to some other reasons not necessary to
fathom here).

2. Under the circumstances, respondent judge acted with grave abuse
of discretion in not granting reconsideration and reinstating the
complaint.  Assuming that petitioner’s
counsel erred in waiting for eight months before seeking a default judgment
against respondent Pagtakhan, because their hopes to
locate the other respondent Morales proved to be in vain, it was not fair to
visit this error of counsel on the poor petitioner-litigant (who depended only
on her counsel’s advice and judgment) and inflict upon her just suit the
capital penalty of dismissal.  Rule 17,
section 3^[2]
permits such dismissal which has “the effect of an adjudication on the
merits” only if plaintiff “fails to prosecute (her) action for an unreasonable
length of time” and under the environmental circumstances of this case, as
duly explained by counsel, petitioner could not be adjudged guilty of failure
to prosecute for an unreasonable length of time.

3. It cannot be overstressed that the application of the procedural
rules on dismissal of actions (as well as on defaults) rests upon the sound
judicial discretion of the trial courts and such discretion “must be
exercised wisely and prudently, never capriciously, with a view to substantial
justice,”^[3]
in the light of the Rules’ express mandate that they be “liberally
construed in order to promote their object and to assist the parties in
obtaining just, speedy and inexpensive determination of every action and
proceeding.”

In another case, Gerian vs. Boncaros,^[4]
decided also this month, the Court struck down a default order precipitately
issued and a second order wrongfully denying the motion to lift the same, with
the injunction that the trial courts address themselves to their clear duty of
trying and deciding cases on their merits instead of issuing peremptory orders
of default (or dismissal as in this case) which serve but to clog the dockets
of the appellate courts who invariably remand the cases back to the trial
courts for proper disposition.  What the
Court enjoined in Cucio vs. Court of
Appeals and People^[5]
(involving a wrongful dismissal by the appellate court of a pending appeal), mutatis
mutandis, may well he applied herein and as a guideline for all courts,
thus:  ”A more receptive attitude and
circumspect consideration by the appellate court of the merits of petitioner’s
motion for reconsideration and for reinstate­ment of his appeal … rather than
the arbitrary and inflexible denial thereof would have meant one case less in
the Court’s full docket and served to save its time and attention from
unproductive matters such as this and leave it [free] for the study and
determination of meritorious and truly controversial cases.”^[6]

ACCORDINGLY, the questioned dismissal orders are set aside
and the case is ordered remanded to respondent judge for prompt hearing and
determination on the merits.  This
decision shall be immediately executory upon
promulgation.

Makasiar, Fernandez, Guerrero, De
Castro, and Melencio-Herrera,
JJ., concur.

^[1]
Civil Case No. Q-25015 of the CFI of Rizal at Quezon City.

^[2]
The text reads:  “SEC. 3.  – Failure to prosecute.  – If plaintiff fails to appear at the time of
the trial, or to prosecute his action for an unreasonable length of time, or to
comply with these rules or any order of the court, the action may be dis­missed
upon motion of the defendant or upon the court’s own motion.  This dismissal shall have the effect of an
adjudication upon the merits, unless otherwise provided by court.” (Rule
17).

^[3]
Piedad vs. Batuyong,
55 SCRA 763 (1974).

^[4]
L-48723

^[5]
57 SCRA 64, 69 (1974).

^[6]
See also Mintu vs. Court of Appeals, 53 SCRA
114 (1973) and cases therein cited; Mun. of Tiwi vs. Cirujales, 54
SCRA 390 (1973).