GERMAN MANAGEMENT & SERVICES, INC., PETITIONER, VS. HON. COURT OF APPEALS, HON. ARTEMON D. LUNA, RTC JUDGE, MANILA, BRANCH XXXII, HON. BENJAMIN C. TIONGSON, MTC JUDGE, MANILA, B…

This is a petition for
review of the decision of respondent Court of
Appeals dated February 27, 1987,
which dismissed the appeal by petitioner therein on the ground of tardy filing.

Originally, the case
arose from an unlawful detainer suit twice filed by petitioner German
Management and Services, Inc. (GERMAN, for short) against private respondent
Lessee Ruperto Eltanal.  The first one was filed before the then City
Court of Manila on February 21,
1972 docketed as
Civil Case No. 209946 which was
eventually dismissed.  On appeal
to the then Court of First Instance of
Manila, the lower court’s decision was affirmed.  Said decision became final and executory.  However,
on February 9, 1984 or
almost nine (9) years later, petitioner filed the second unlawful detainer case against private respondent invoking the very
grounds relied upon in the previous case. 
The Metropolitan Trial Court, on January 9, 1986 dismissed the case
holding that Batas Pambansa Blg.
877 prohibits the ejectment of lessee at the end of
each month; the case is barred by prior judgment; lessee did not sub-lease the
leased premises; and that the findings of the then City Court of Manila in
Civil Case No. 209946 apply to the present case.  On appeal to the Regional Trial Court, it
affirmed the appealed decision in toto.

Petitioner received copy of the aforementioned decision on April 26, 1986 and filed a motion for
reconsideration thereof on April 30,
1986, theorizing that the case is not within the ambit of Batas Pambansa Blg. 877 because a month-to-month lease is considered
to be for a definite or fixed period. 
But, the respondent court disagreed. 
On May 7, 1986, it
came out with its order denying subject motion for reconsideration.  Copy of
the order of denial was received for petitioner on May 19, 1986.  So,
what counsel for petitioner did next was to go before the then Intermediate
Appellate court on a petition for review.  Records show that the petition under
consideration was filed and docketed on June
3, 1986.

Petitioner maintains that the law relied upon by respondent
lessee, Batas Pambansa Blg.
877, is inapplicable to the lease sued
upon which is on a “month to month basis terminable at
the end of every month”; and, therefore, it can eject under Article 1673(1),
New Civil Code on the ground of expiration of the lease.

Petitioner submits that

“1. RESPONDENT COURT OF APPEALS ERRED IN HOLDING
THAT THE PETITION FOR REVIEW WAS TARDILY FILED; and

“2. RESPONDENT
COURT OF APPEALS ERRED IN NOT HOLDING THAT A LEASE CONTRACT ON A MONTH TO MONTH
BASIS IS FOR A DEFINITE PERIOD.”

(p. 11, Rollo)

The petition is devoid of merit.

As had already been held in the case of Lacsamana
vs. IAC, 143 SCRA 643:

“The final judgment
or order of a regional trial
court in an appeal from the final judgment or order of a metropolitan trial court, municipal trial court and municipal
circuit trial court, may be appealed to the Court of Appeals through a petition
for review in accordance with Section 22 of BP No. 129 and Section 22 (b) of
the Interim Rules, or to this Court through a petition for review on certiorari in accordance with
Rule 45 of the Rules of Court and
Section 25 of the Interim Rules.  The
reason for extending the period for the filing of a record on appeal is also
applicable to the filing of a petition
for review with the Court of Appeals.  The period for filing a petition for review is fifteen days.  If a motion for reconsideration is filed with and denied by a regional trial court, the movant has only remaining period within which to file a petition for review.  Hence, it may be
necessary to file a motion with the Court of Appeals for extension of time to file such petition for review.”

(pp. 5-6 Decision; pp.
22-23, Rollo)

The respondent court correctly ruled when it said that:

“xxx
the petition was tardily
presented.  It was filed beyond the
fifteen-day period to appeal, within which a petition for review is to be
brought, pursuant to CA en banc Resolution of August 12, 1971, the prevailing
rule at the time of the filing of the instant petition on June 3, 1986.  As aptly pointed out by respondents, from
April 26, 1986, when petitioner moved to reconsider said decision, four (4)
days had run; leaving only eleven (11) days of the reglementary
period for appealing or filing a petition for review.  In accordance with Section 3, Rule 41,
Revised Rules of Court, such motion for reconsideration interrupted the running
of the period to appeal but the same resumed to run on May 19, 1986, the date
of receipt for petitioner of the Order of May 7, 1986 denying its aforesaid
motion for reconsideration, so that petitioner had only until May 30, 1986 to bring its petition for review before
the then Intermediate Appellate Court. 
Unfortunately, as earlier stated, the petition under scrutiny was filed
only on June 3, 1986, at a
time when subject decision of the respondent court had already become final and
executory.”

(p. 5, Decision; p. 22, Rollo)

It appears that
petitioner never asked for an extension of time to file the petition in the
Court of Appeals.  Consequently, it was
no longer within the jurisdiction of the respondent court to review the final and executory
decision in question and to pass upon the merits of the petition.  (Garcia vs. Echiverri, G.R. No.
44455, October 23, 1984).

PREMISES CONSIDERED, the petition is hereby DENIED for utter lack of
merit.

SO ORDERED.

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