NARCISO KHO, PETITIONER, VS. MANUEL CAMACHO, SHERIFF OF QUEZON CITY, AND HONOR­ABLE OSCAR LEVISTE, RE­GIONAL TRIAL COURT OF QUEZON CITY, BRANCH 97, RESPONDENTS.

The issue in this petition for certiorari is whether
respondent Judge Oscar L.
Leviste of the Regional Trial Court of Quezon City, Branch 97, grossly abused
his discretion when he issued the questioned order of March 29, 1988 which
cancelled his previous order approving a notice of appeal.

The facts are as follows:

In payment of attorney’s fees
resolved against him, petitioner Narciso Kho, a businessman, issued in
favor of private respondent Atty. Manuel Camacho six (6) postdated Manila Bank
checks in the total sum of P57,349.00. One of the checks, in the amount of P10,000.00, was lost by Atty.
Camacho who promptly notified petitioner. When the other five (5) checks were negotiated by Camacho with the
Philippine Amanah Bank, the same were returned uncleared because Manila Bank
had been ordered closed by the Central Bank.

Because of petitioner’s refusal to replace the Manila Bank checks
or pay his obligation, Camacho instituted an action for a sum of money against
petitioner before respondent trial court.^[1]

In his answer, petitioner alleged that he was
under no obligation to replace the lost check for P10,000.00, arguing that
Camacho should have executed a sworn statement that he lost the check issued to
him and furnished both the drawer and the bank with said statement so that the
bank could place on the check “under alarmed”, instead of merely
informing petitioner.

Petitioner also refused to issue new checks maintaining that the
closure of Manila Bank (in which he had an outstanding deposit of P581,571.84
which was more than enough to cover the cost of the five checks) was beyond his
control and therefore he was in no financial position to pay Camacho unless and
until his money in that beleaguered bank was released.

Contending that petitioner’s answer failed to tender a genuine
issue, Camacho moved for a judgment on the pleadings which respondent Judge
Leviste granted in his order of February 12, 1988. In said order, respondent Judge directed petitioner to pay
Camacho P57,349.00 “minus the P10,000.00 pertaining to the lost check, or
a total of P47,349.00 with interest at the legal rate of 6% from June 2, 1987,
until fully paid, with costs or attorney’s fees.”^[2]

On February 25, 1988, petitioner seasonably filed a notice of
appeal stating that he was appealing the February 12, 1988 order to the Court
of Appeals. Respondent Judge duly
approved said notice in his order of February
29, 1988.

On the other hand, despite the reduced money judgment, Camacho
made no move to contest the award. Instead, he filed a motion/manifestation praying that petitioner’s
notice of appeal be stricken off the record as a mere scrap of paper.

Acting on the aforesaid motion, respondent Judge issued the
assailed order of March 29, 1988 setting aside the previously approved notice
of appeal and adopting Camacho’s view that the proper remedy from a judgment on
the pleadings was a petition for certiorari to the Supreme Court. Said order reads:

“In view of the
Motion/Manifestation dated March 1, 1988, which this Court finds with merit, x
x x, this Court believing that
only questions of law are
involved, hence the proper remedy should be a petition for certiorari, there being on question of fact presented by the pleadings and the order in Summary Judgment, the order of this Court approving the notice of
appeal is hereby cancelled and a new order is hereby made that said notice of appeal is disapproved.”^[3]

Hence this petition for certiorari.

The Court has readily
observed two very glaring errors committed by
respondent Judge Leviste. First, he
listened to Camacho who could not even distinguish between a petition for certiorari
and a petition for review on certiorari. Secondly, he pre-empted a prerogative that legally pertains to
the Court of Appeals when he disapproved petitioner’s notice of appeal
“believing that only questions of law are involved.”

In E. Razon, Inc. vs. Judge Moya, No. L-31693, February 24, 1981, 103 SCRA 41,
the Court, through Justice Melencio-Herrera, held:

“Concededly, issues that involve pure questions of law are
within the exclusive jurisdiction of this Court. However, Rule 41 of
the Rules of Court does not authorize the Trial Court to disallow an appeal on the ground that there is no question of fact, but only a question of law, involved.”^[4]

The Court was no less
explicit and emphatic when it declared in the subsequent case of PNB vs. Romillo, Jr., G. R. No. 70681, October
16, 1985, 139 SCRA 320, 325-326, that:

“We hold the view that whether an appeal involves only
question of law or both questions of fact and law, this question should be left
for the determination of an appellate court and not by the court which rendered
the subject decision appealed from. x x x. Respondent Judge erred in dismissing said appeal on his
misconception that the same involves only a question of law and based on this
reasoning, disallowed petitioner’s appeal because it was not made to the
Supreme Court. x x x.

“By dismissing the appeal on the ground that it was
misdirected because the case was resolved by it on a pure question of law, the
trial court committed a grave error. Respondent Judge should have allowed the Intermediate Appellate Court to
decide whether or not the petitioner’s appeal involves only a question of law
and not arrogate unto himself the determination of this question. His error in dismissing petitioner bank’s
appeal becomes even more obvious considering the provisions of Section 3 of
Rule 50 of the Rules of Court, wherein it is specifically provided that ‘where
the appealed case has been erroneously brought to the Court of Appeals, it shall not dismiss the appeal but shall
certify the case to the proper court, with a specific and clear statement of
the grounds therefor.’”

Thus, following the above pronouncements, what respondent Judge
should have done under the circumstances was to sustain his approval of the
notice of appeal and leave it to the Court of Appeals to certify the case to
the proper tribunal if warranted. Indeed, Judge Leviste had absolutely no authority to disapprove the
notice of appeal. Under the present
rules, his role is to approve or disapprove the record on appeal (when
required) and the appeal bond, but not a notice of appeal. A notice of appeal does not require the
approval of the trial court.^[5]

Nonetheless, although a procedural error was committed by
respondent Judge in disapproving petitioner’s notice of appeal, to require him
to give due course to the appeal and then elevate the records of Civil Case No.
Q-52014 to the Appellate Court will serve no useful purpose and will only delay
the resolution of an otherwise open-and-shut case. The records before us are sufficient to enable us to rule on the
propriety of the judgment on the pleadings and to terminate this case once and
for all.

The obligation to pay P57,349.00 in attorney’s fees is
admitted. The appropriate checks in
payment therefor have been issued. However, one check was misplaced through the creditor’s fault while the
other five were dishonored because the drawee bank has ceased to operate.

A perusal of petitioner’s answer convinces us that the judgment
on the pleadings was proper. In that
pleading, petitioner disavowed any obligation to replace the useless checks and
gratuitously advanced the reason that the bank where he had deposited his
lifetime savings had been closed through no fault of his. In effect, what petitioner was saying was that Camacho should
wait until he (petitioner) was in a position to pay. This is not a sufficient controversion of the material
allegations in the complaint.

Finding no reversible error in the judgment on the pleadings
rendered by respondent Judge Leviste, the Court considers the same as the final
adjudication on the respective rights of the parties.

WHEREFORE, in view of the foregoing, certiorari
is hereby DENIED. No costs.

SO ORDERED.

Gutierrez, Jr., Bidin, Davide, Jr., and Romero, JJ., concur.

^[1]
Civil Case No. Q-52014.

^[2]
Annex E, Rollo, p. 23.

^[3]
Annex J, Rollo, p. 33; Emphasis supplied.

^[4]
Emphasis supplied.

^[5]
Aquino vs. Judge Santiago, G.R. No. 56362, May 28, 1988, 161 SCRA 570.