SPS. JUAN B. DULOS AND MARIA C. DULOS, PETITIONERS, VS. COURT OF APPEALS, SPS. MARIANO NOCOM AND ANACORETA NOCOM AND SPS. LORENZO ONG ENG CHONG AND CARMEN SOCO, AND DEPUTY SHERI…

By this special civil action of certiorari and
prohibition, the spouses Juan and Maria Dulos would have this Court nullify the
resolution of the respondent court dated April 27, 1989, denying their
application for a writ of preliminary injunction against the enforcement of the
decision of the Metropolitan Trial Court of Las Piñas dated October 4, 1988.

On June 24, 1988, the spouses Dulos were sued for forcible entry
by the spouses Mariano and Anacoreta Nocom, private respondents herein, in the
Metropolitan Trial Court of Las Piñas. The case was set for a pre-trial conference on August 18, 1988, with due
notice to both parties.

Earlier, on August 16, 1988, the petitioners had filed a
complaint against the private respondents for annulment of sale, reconveyance
of title, and various other reliefs plus a writ of preliminary injunction. This was docketed as Civil Case No. 88-1663
in the Regional Trial Court of Makati. On August 17, 1988, the petitioners filed a motion for the suspension of
the proceedings in the forcible entry case on the ground that there was a prejudicial question of ownership
involved in the annulment case. The
petitioners’ counsel, Atty. Pedro S. Ravelo, set August 18, 1988, for the
hearing of the motion at the pre-trial conference scheduled on the same date.

Neither petitioners nor their counsel appeared on that date. However, one Ananita Rectra manifested at
the hearing that she was duly authorized by virtue of a special power of
attorney to represent petitioner Juan Dulos, her brother, who was then confined
at the Manila Doctors Hospital after having undergone a femur operation. The petitioners were nonetheless declared in
default. Judge Alfredo R. Enriquez
denied the motion for the suspension of the proceedings, holding that the issue
of ownership was not a prejudicial question in the ejectment case. The evidence of the private respondents was
subsequently received in the absence of the petitioners.

On October 4, 1988, judgment was rendered in favor of the private
respondents, the dispositive portion reading as follows:

WHEREFORE, the Court finds the eviction of defendants to be
warranted and accordingly hereby renders judgment in favor of the plaintiffs,
ordering defendants as follows:

1.   and all persons claiming right under them to
vacate the portion of plaintiffs’ property covered by TCT No. S-55015 situated
at Bo. Ibayo, Las Piñas, MM and to remove structures and improvements thereon
and to restore to plaintiff peaceful possession thereof;

2.   ordering defendants to pay the sum of
P20,000.00 as reasonable compensation for the use of property beginning April
1988 and every month thereafter until defendants shall have completely vacated
the property;

3. ordering defendants to pay the plaintiffs the sum of P10,000.00; and

4. ordering defendants to pay the cost of the suit.

The petitioners received a copy of this decision on October 10,
1988. They filed a motion for
reconsideration on October 18, 1988, which was denied in an order dated
November 17, 1988.

Instead of taking an appeal, the petitioners filed on December 9,
1988, a special civil action for certiorari and prohibition with preliminary
injunction with the Regional Trial Court of Makati praying for the
nullification of the said judgment and the earlier order declaring them in
default.

On December 19, 1988, while that case was pending, the private
respondents moved for the immediate execution of the judgment of the
Metropolitan Trial Court on the ground that no appeal had been filed with the
proper court and the decision had become final and executory. The motion was granted, and the writ of
execution was issued on February 8, 1989.

On February 16, 1989, the petition for certiorari,
etc. was dismissed on the grounds that: (1) the petitioners had been properly declared in default for failure to
appear at the scheduled hearing; (2) the filing of the action for nullification
in the Regional Trial Court was not a valid reason for the suspension of the
hearing in the Metropolitan Trial Court; (3) the motion for reconsideration was
fatally defective because it was not verified and accompanied by an affidavit
of merit; and (4) the grant of the motion for suspension or postponement was
discretionary upon the court.^[1]

On March 20, 1989, on motion of the private respondents, the
Metropolitan Trial Court issued a writ
of demolition.

The petitioners then elevated the matter to the Court of Appeals
in a petition for certiorari and prohibition with preliminary
injunction. In its order dated April
27, 1989, the respondent court denied the application for preliminary injunction,^[2]
prompting the petitioners to come to this Court on certiorari.

Praying for a nullification of the said order and the proceedings
held before the MTC, they argue that:

(a) The pre-trial conference of August 18,
1988, was the first hearing set for the purpose and with the appearance of the
representative in the person of Mrs.
Rectra, duly armed with a notarized hospital certification attesting to
the confinement of petitioner Juan Dulos and a special power-of-attorney
authorizing her to appear as representative of petitioner Juan Dulos during the
conference, Judge Enriquez should not have outrightly declared petitioners in
default.

(b) An affidavit of merit under the
circumstances was no longer necessary since the default order was anchored
upon petitioners’ failure to appear during the pre-trial (citing the case of
Lucero v. Dacayo, 22 SCRA 1004).

(c) Petitioners have been in actual physical
possession of the subject land from the time the said property was acquired in
1979 by petitioner Maria Dulos from her co-heirs by virtue of the sale of
hereditary rights until the same was assigned to Dulos Realty in 1973 long
before the execution of the simulated sale in favor of private respondents in
1977.

(d) As the August 18, 1988 Order was issued
without or in excess of jurisdiction, the same is null and void and all
proceedings subsequent thereto were also a nullity, there is no judgment to
speak of, hence there is nothing to appeal.

For their part, the private respondents assert that: (1) Rectra did not file her special power of
attorney with the Metropolitan Trial
Court; (2) the petitioners did not do anything to have the order of
default set aside; (3) the deed of sale sought to be nullified was executed way
back on July 1, 1977, and the complaint for nullification was filed only eleven
years and nine months later; (4) petitioner Maria Dulos could have appeared at the pre-trial hearing but
failed to do so without any explanation whatsoever; and (5) certiorari cannot be a substitute for the lost
right of appeal.

The Court gave due course to the petition and required the
parties to submit simultaneous memoranda. After considering the issues and their arguments in their respective
memoranda, we find the petition to be without merit.

First of all, it is clear that a case may be dismissed for failure of a party to appear at the
pre-trial conference, as authorized
by Rule 20, Section 2, of the Rules of Court, thus:

Sec. 2. A party who fails
to appear at a pre-trial conference may be non-suited or considered as in
default.

Rectra did appear at the scheduled hearing but did not present to
the court her power of attorney to represent Juan Dulos or even the medical
certificate of his operation. In their
memorandum, the petitioners say Maria Dulos did not appear for herself because
the spouses Dulos had long been separated. However, the Dulos lawyer did not show up either although it was he who
had asked that his motion to suspend proceedings be set on the date of the
pre-trial conference. The averment that
Atty. Ravelo was already 73 years old at the time is a flimsy excuse for
carelessness nor do we accept the explanation that he was then attending to
several detention prisoners. At any
rate, the petitioners could have availed themselves of other counsel if their
counsel then was unable to represent them at the conference.

Secondly, the denial of the application for preliminary
injunction was justified because the petitioners did not employ the proper
remedy prescribed by the Rules of Court. As enumerated in Lina v. Court of Appeals,^[3] the
remedies available to a defendant declared in default are:

1.   The defendant in default may, at any time
after discovery thereof and before judgment, file a motion under oath to set
aside the order of default on the ground that his failure to answer or appear
on the date set for pre-trial was due to fraud, accident, mistake or excusable
negligence, and that he has a meritorious defense;

2.   If the judgment has already been rendered
when the defendant discovered the default, but before the same has become final
and executory, he may file a petition for new trial under Sec. 1(a) of Rule 37;

3.   If the defendant discovered the default after
the judgment has become final and executory, he may file a petition
for relief under Sec. 2, Rule 38; and

4.   He may also appeal from the judgment rendered
against him as contrary to the evidence or the law, even if no petition to set
aside the order of default has been presented by him.

The petitioners did not avail themselves of any of the above
remedies. Instead, after taking no
action whatsoever for all of sixty days, they filed a motion for
reconsideration of the decision dated October 4, 1988, and, when this was
denied, went to the Regional Trial Court on certiorari and
prohibition. As we held in the Lina
case:

x
x x where the judgment rendered by the respondent court is the one
sought to be annulled, a petition for relief, under Rule 38, which is a remedy
in the ordinary course of law, could have been just as plain, adequate and
speedy as certiorari x x x.

No less significant is the fact that the judgment of the
metropolitan trial court had
already become final and executory because of the petitioners’ failure to
appeal therefrom on time. They were
served with notice of the judgment on October 10, 1988, and filed a motion for reconsideration on
October 18, 1988, which was denied on November 17, 1988. They therefore had until December 10, 1988,
within which to perfect their appeal. They did not.

Instead, they filed the petition for certiorari in the Regional Trial Court, which
correctly dismissed it. It is settled
that the special civil action of certiorari is not and cannot be made a
substitute for an appeal, where the latter remedy is available,^[4]
as in this case. The filing of the
petition for certiorari did not therefore suspend the period
for appeal or prevent the judgment from becoming final.

It is also noteworthy that the petitioners made no move to set
aside the order of default rendered by the Metropolitan Trial Court although
they were aware of it. Rectra was
present when the said order was dictated in open court on August 18, 1988. It is reasonable to assume she immediately
informed her brother, who had sent her there precisely to represent him at the
proceedings. Even so, the petitioners
did nothing until the judgment by default was rendered against them by Judge
Enriquez on October 4, 1988. All of forty-six days had
elapsed from the order of default when the judgment of default was rendered.

The petitioners now contend that they could not have taken any
action prior to the rendition of the judgment because they had never been furnished
with copies of the order declaring them in default. This is unacceptable. It
is obvious the petitioners have failed to take into account the following
pertinent provisions of the Rules of Court concerning notices in case a party is
declared in default:

Rule 18, Sec. 2. Effect
of order of default. – Except as provided in Section 9 of Rule 13, a party
declared in default shall not be
entitled to notice of subsequent proceedings,
nor to take part in the trial.

Rule 13, Sec. 9. Service
upon party in default. – No service of papers other than substantially
amended or supplemental pleadings and final orders or judgments shall be
necessary on a party in default unless he files a motion to set aside the order
of default in which event he shall be entitled to notice of all further
proceedings regardless of whether the order of default is set aside or not.

Rule 18, Sec. 3. Relief
from order of default. – A party declared in default may at any time after discovery
thereof and before judgment file a motion under oath to set aside the order of
default upon proper showing that his failure to answer was due to fraud,
accident, mistake or excusable neglect and that he has a meritorious defense. In such case the order of default may be set
aside on such terms and conditions as the judge may impose in the interest of
justice.

The term used in the last quoted section is discovery, not
notice. And this is so because
the defendant declared in default is not entitled to “notice of subsequent
proceedings” under the preceding rules.

In Suzara v. Caluag,^[5] this
Court held that a motion for reconsideration of a judgment of default may be
considered a petition for relief under Section 2 of Rule 38 only if the
following requisites are present: (1)
it must be verified; (2) it must be filed within 60 days from the time
petitioner learns of the decision but not more than 6 months from entry
thereof; and (3) in case of failure to file an answer, the motion must be
accompanied by affidavits of merit showing the fraud, accident, mistake and
excusable negligence relied upon.

We held in Yap v. Tañada^[6] that a motion for reconsideration may be
considered a motion for new trial under Sec. 2, Rule 37, if it is accompanied
by an affidavit of merit. Since
petitioners assert that their rights were impaired because they were prevented
from presenting evidence of their defenses, it was a fatal omission for them not to attach to their motion an
affidavit of merit, i.e., an affidavit showing the facts constituting the valid
defense which the movant may prove in case a new trial is granted. The requirement of such an affidavit is
essential because a new trial would be only a waste of the time of the court if
the complaint turns out to be groundless or the defense ineffective.

The motion for reconsideration filed by the petitioners on
October 18, 1988, with the Metropolitan Trial Court, and which is Annex
“H” of the petition, was not verified. It does not appear also that it was
accompanied by an affidavit of merit as required by the Rules.

While this Court did declare in Continental Leaf Tobacco v.
Intermediate Appellate Court,^[7]
“that judgments by default are not looked upon with favor,” the
default judgment in that case was set aside because there was excusable
neglect. Besides, the petitioners had a
meritorious defense which justified a relaxation of the procedural rules to
allow full hearing on the substantive issues raised. Such circumstances have not been clearly shown in the case before
us.

A little more familiarity with our rules of procedure could have
avoided the predicament in which the petitioners now find themselves. Unfortunately, the Court cannot give them
any relief. They have not justified a
relaxation of the said rules. While it
is true that a litigation is not a game of technicalities, it is equally true
that every case must be prosecuted in accordance with the prescribed procedure,
to insure an orderly administration of justice. It is this symbiosis between form and substance that guarantees
that desirable result.

WHEREFORE, the petition is DISMISSED, with costs against
the petitioner. It is so ordered.

Narvasa, (Chairman), Gancayco, Griño-Aquino, and Medialdea, JJ., concur.

^[1]
Annex “R,” Rollo, pp. 156-158.

^[2]
Annex “S,” Rollo, p. 159; Pronove, J., ponente, Melo and Benipayo, JJ.,
concurring.

^[3]
Lina v. Court of Appeals, 135 SCRA 637.

^[4]
D. D. Comendador Construction Corp. v.
Sayo, 118 SCRA 590; Sarmiento v. IAC, 153 SCRA 104; Acain v.
IAC, 155 SCRA 100; Limpot v. CA, 170 SCRA 367.

^[5]
4 SCRA 1060.

^[6]
163 SCRA 464.

^[7]
140 SCRA 269.