PHILIPPINE BANKING CORPORATION, PETITIONER, VS. THE HON. INTERMEDIATE APPELLATE COURT, HON. ROQUE A. TAMAYO, JUDGE, REGIONAL TRIAL COURT, BRANCH CXXXII (132), NATIONAL CAPITAL J…

In this petition for review by way of certiorari, the
petitioner seeks –

(a)  to set aside and reverse
the Decision of respondent Intermediate Appellate Court in AC-G.R. SP No. 01919,
promulgated on December 15, 1983 dismissing petitioner’s Petition for Certiorari
and the Resolution dated January 24, 1984 denying the petitioner’s Motion for
Reconsideration;

(b)  to nullify and set aside
the Orders of respondent Judge Roque A. Tamayo, dated August 12, 1983, dismissing petitioner’s
complaint for sum of money (Civil Case No. 4058), discharging the writ of attachment therein issued and denying
the motion for reconsideration;

(c)  to admit petitioner’s
amended complaint and to proceed with the trial of Civil Case No. 4058 on the
merits, to reinstate and restore the Order of Attachment and Writ of Attachment dated June 22, 1983, together with the Notice of Levy of Attachment on the real and
personal properties of the herein private respondents, as contained in the Notice of Levy dated June
23, 1983.

The pertinent facts that gave rise to this petition are as
follows:

On May 26, 1983,
petitioner Philippine Banking Corporation filed a complaint against the private
respondents for a sum of money with prayer for preliminary attachment,
predicated allegedly on the latter’s refusal and failure to pay the stipulated
installments as provided for in the promissory note (Nos. 16-10418 and
16-10539) evidencing an outstanding obligation of P3,290,000.00
borrowed by the private respondent from the petitioner.  This was guaranteed by a continuing Surety Agreement whereby the private
respondents-spouses acted as surety for the above-mentioned loans, binding
themselves jointly and solidarily with the principal,
the Pennel Commercial Co., Inc.  The case was docketed as Civil Case No. 4058
of the Regional Trial Court of Makati, Metro Manila, Branch 13, presided over by respondent Judge Roque A. Tamayo.

On June 2, 1983, finding the verified complaint to be sufficient
in form and substance and considering that the petitioner is willing to put up
an attachment bond in the amount of P3,094,587.74
which is petitioner’s principal claim,          respondent
Judge Tamayo issued an Order:  “xxx let a writ of preliminary attachment be
issued against the properties of defendants, not exempt from execution xxx”
(Annex F, p. 27, Rollo).

On June 13, 1983,
the petitioner filed an attachment bond in the aforesaid amount so that on June 21, 1983, summonses were issued
to the defendants, now private respondents, which were received by the latter
on June 29, 1983.  By virtue of the
preliminary attachment issued on June
2, 1983, the real and personal properties of private respondents
were attached and the request for the corresponding annotation on their titles
was served upon the Register of Deeds for Antipolo, Rizal and Marikina,
Metro Manila.  Also, on July 1, 1983, Notices of Levy on
Execution /Attachment dated June 29,
1983 were served upon the Registrars of the Bureau of Land
Transportation of San Juan & Malabon Agencies,
requiring them to record in their respective books the motor vehicles mentioned
in the name of the said private respondents. 
The Deputy Sheriff filed his Report dated July 12, 1983 stating that on June 22, 1983 and July 1, 1983, levy was made on the real and personal
properties of the defendants and the summons with copy of the complaint and the
Writ of Attachment were served personally upon them at their given address thru
their Secretary Y. V. Borja.

On July 6, 1983,
the private respondents filed a Motion for Extension of Time to File
Answer.  On July 19, 1983, they (private respondents) filed a Motion
to Discharge Attachment alleging that the said writ was issued without basis
which is tantamount to lack of jurisdiction. 
On July 21, 1983, again private respondents filed a Motion for Another
Extension of Time within which to file Answer but on July 27, 1983, instead of
filing an answer as prayed for in their previous motions, filed a Motion to Dismiss
on the ground that the complaint states no cause of action which motion
petitioner received on July 20, 1983.

On August 3, 1983,
petitioner filed an Opposition to the Motion to Dismiss with a Motion to
Declare Defendants in Default.

On August 12, 1983,
respondent Judge Tamayo issued an Order, the dispositive portion of which reads –

“WHEREFORE, premises considered:

“1)     The Motion to Declare
Defendants in Default incorporated in the Opposition to the Motion to Dismiss
is denied for lack of merit.

“2)     The Motion to Dismiss
is hereby granted and this case, ordered dismissed without pronouncement as to
costs.

“3)     Consequently, the
Motion to Discharge Attachment filed by defendants is hereby granted, and the
order of attachment is set aside and the Writ of Attachment issued by this
Court on June 22, 1983,
discharged and declared of no further force and effect.  The Sheriff is ordered to return to the
plaintiff all the properties levied by him in this case.  The Notice of Levy of Attachment issued by the
Sheriff to the Register of Deeds of Rizal is also
recalled and the said Register of Deeds is hereby ordered to cancel the notice
of levy on attachment on the real properties of defendant as contained
in the Notice of Levy dated June 23, 1983.” (p. 103, Rollo)

A certified true copy
of the said Order was received by petitioner on September 14, 1983.

Meanwhile, on September
5, 1983, the petitioner filed an Urgent Motion to Admit Amended
Complaint together with a copy of the Amended Complaint.  This was opposed by the private respondents
on September 8, 1983.  Petitioner claims that its Motion to Admit
Amended Complaint has not yet been resolved by the lower court.

Likewise, petitioner filed a Motion to Reconsider the August 12, 1983 Order but the same
was denied.  Consequently, petitioner
went to the Court of Appeals on a petition for certiorari (AC-GR SP No.
01919) chaIlenging the validity of the August 12,
1983 Order dismissing the complaint and discharging the writ of attachment as
well as the September 29, 1983 Order denying the Motion for Reconsideration,
pointing out that the same were issued with grave or serious abuse of
discretion.

The Court of Appeals dismissed the petition ruling in part as
follows:

“We resolved to deny due course to the petition.

“From the facts, it is clear that the proper remedy available
to the herein petitioner is ordinary appeal to this Court and not by way of the
present petition for certiorari.  The
challenged Order of August 12, 1983, sustaining the motion to dismiss filed by
the herein private respondents on the ground of lack of cause of action is a
final disposition of the case insofar as the respondent Court is
concerned.  Since there is the remedy of
appeal, this bars the filing of any petition for certiorari for
the reason that one of the requisites for said remedy is that there is no appeal,
nor any adequate and speedy remedy in the ordinary course of law (Sec. 1, Rule
65, Rules of Court; Silvestre v. Torres, 57 Phil. 885).

“Moreover, we find that respondent Judge did
not commit a grave abuse of discretion in dismissing the complaint.  In the disputed order, the respondent Judge
explained his reasons for dismissing the complaint, to wit:

‘On the Motion to
Dismiss, the ground relied upon the defendants is that the complaint states no
cause of action considering that Annex C and, the promissory notes sued upon, have due dates of December 31, 1985, Annex C
and December 30, 1984, Annex D.  These
facts were not stated in the complaint, and neither was it alleged that said
notes have become due and
payable by reason of defendants’ default in the payment of several installments
due on the notes, which fact was only mentioned in the opposition to the motion
to dismiss.

‘It could not, therefore,
be true that defendants have failed and refused and still refuse and fail
without justifiable cause to pay their
obligation despite repeated demands from the plaintiff, because mere demand on
defendants for the payment of
obligations that are not yet due does not constitute a cause of action, there
being no showing on the face of
the complaint that the obligations were to be paid in installments which would
make the acceleration clause on Annex D, the Continuing Surety Agreement, come
into play in order to make the whole obligation due and payable even before
their due dates as reflected in the promissory notes, Annexes C and D.’

“From the foregoing, it cannot be gainfully said therefore
that the exercise of discretion or judgment by the respondent Judge was
capricious or whimsical amounting to lack of jurisdiction.” (pp. 104-105, Rollo)

Hence, the present recourse.

Petitioner claims that there was grave abuse of discretion on the
part of the lower court in dismissing the complaint and in failing to resolve
its motion to admit amended complaint. 
Thus, resort to the extraordinary remedy of certiorari is proper.

A perusal, however, of the said motion and a consideration of the
stage of the proceedings during which said motion was filed yield a finding contrary
to that asserted by petitioner.

As a general policy, liberality in allowing amendments is
greatest in the early stages of a lawsuit, decreases as it progresses, and
changes at times to a strictness, amounting to a
prohibition.  (Torres v. Tomacruz, 49 Phil. 413, cited in Garcia Jr. v. Ranada, Jr. 166 SCRA 9) This is further restricted by the
condition that the amendment should not prejudice the adverse party or place
him at a disadvantage.  (Shaffer v. Palma,
22 SCRA 934, also cited in Garcia, Jr. v. Ranada,
supra)

There is no denying that an amendment could be introduced during
the pendency of a Motion to Dismiss.  Petitioner’s insistence on this point is not controverted.  But
this is not the situation obtaining in the case at bar.  Records show that when petitioner filed on September 15, 1983 its Motion to
Admit Amended Complaint, the original complaint sought to be amended had
already been dismissed on August 12,
1983.  Therefore, there was
no more complaint to be amended.  In
other words, the original complaint no longer exists,
it has lost its standing and could not be amended unless its status is
restored.  Moreover, an amendment at this
stage of the proceeding, when the complaint
had already been dismissed, the writ of attachment discharged and
declared of no further force and effect will definitely work to the prejudice
and disadvantage of the private respondent. 
It has been ruled that amendment will not be allowed when the same will
prejudice the adverse party or place him at a disadvantage.  (Shaffer v. Palma,
supra)

In this regard, We find no grave abuse
of discretion on the part of the lower court in not granting and/or in failing
to act on petitioner’s motion to admit amended complaint.

“On the issue of whether the lower court’s wisdom in allowing
or disallowing amendments may be the subject of a special civil action for certiorari,
We held in Philippine Surety and Insurance Co. v. Jacale,
et al. that where the issue or question involved affects the wisdom or legal
soundness of the decision, not the jurisdiction of the court to render said
decision or its validity, the same is beyond the province of a special civil
action for certiorari.  For it is
too well-settled that the office of the writ of certiorari has been
reduced to the correction of defects of jurisdiction solely and cannot legally be used for any other
purpose.  It is truly an extraordinary
remedy and, in this jurisdiction, its use is restricted only to extraordinary
cases–cases in which the action of the inferior court is wholly void; where
any further steps in the case would result in a waste of time and money and
would produce no result whatever, where the parties, or their privies would be
utterly deceived; where a final judgment or decree would be naught but a snare
and delusion, deciding nothing, protecting nobody, a judicial pretension, a
recorded falsehood, a standing menace.” (Garcia, Jr. v. Ranada, Jr. supra)

It also bears stressing that, as correctly ruled by the
respondent Court of Appeals, the proper remedy available to herein petitioner
from the order dismissing the complaint is appeal, not a petition for certiorari.  And when the remedy of appeal is available,
the extra ordinary remedy of certiorari cannot be resorted to because
the availability of appeal proscribes recourse to the special civil action of certiorari.  (Del Pozo v. Penaco, 167 SCRA 577, 589)

Accordingly, the respondent Court of Appeals was correct in
dismissing the special civil action of certiorari filed by the
petitioner.

WHEREFORE, the petition is hereby DENIED and the
questioned decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

Melencio-Herrera, (Chairman),
Padilla, Sarmiento, and
Regalado, JJ., concur.