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FIRST DIVISION

G.R. No. 132007. August 5, 1998

SOLAR TEAM ENTERTAINMENT, INC., Petitioner, v. HON. HELEN BAUTISTA RICAFORT,in her capacity as Presiding Judge of the Regional Trial Court of Paraaque, Metro Manila (Branch 260), TEAM IMAGE ENTERTAINMENT, INC., FELIX S. CO, JEFFREY C. CAL, and KING CUISIA, Respondents.

D E C I S I O N

DAVIDE, JR., J.:

At issue is whether respondent judge committed grave abuse of discretion amounting to lack or excess of jurisdiction in denying petitioners motion to expunge private respondents answer with counterclaims on the ground that said pleading was not served personally; moreover, there was no written explanation as to why personal service was not accomplished, as required by Section 11 of Rule 13 of the 1997 Rules of Civil Procedure.

The antecedents are not disputed.

On 10 July 1997, Petitioner, as plaintiff, filed before the Regional Trial Court (RTC) in Paraaque, Metro Manila, a complaint for recovery of possession and damages with prayer for a writ of replevin¹ against herein private respondents. The case was docketed as Civil Case No. 97-0304 and was assigned to Branch 260 of said court, presided over by public respondent Judge Helen Bautista-Ricafort.

Summonses and copies of the complaint were forthwith served on private respondents. On 25 July 1997, their counsel filed a notice of appearance with urgent ex-parte motion for extension of time to plead,² which the court granted in its order of 4 August 1997.³cräläwvirtualibräry

On 8 August 1997, private respondents, as defendants, filed their Answer (with Counterclaims).⁴ A copy thereof was furnished counsel for petitioner by registered mail; however, the pleading did not contain any written explanation as to why service was not made personally upon petitioner-plaintiff, as required by Section 11 of Rule 13 of the 1997 Rules of Civil Procedure.

On 11 August 1997, petitioner filed a motion to expunge the Answer (with Counterclaims) and to declare herein private respondents in default,⁵ alleging therein that the latter did not observe the mandate of the aforementioned Section 11, and that there was:

[A]bsolutely no valid reason why defendant[s] should not have personally served plaintiffs ... counsel with [a] copy of their answer [as] (t)he office of defendants (sic) counsel, Atty. Froilan Cabaltera, is just a stone [sic] throw away from the office of [petitioners] counsel, with an estimate (sic) distance of about 200 meters more or less.

Petitioner further alleged that the post office was about ten (10) times farther from the office of Atty. Cabaltera.

On 15 August 1997, private respondents filed their opposition⁶ to the above mentioned motion, alleging that petitioners rigid and inflexible reliance on the provisions of Section 11, Rule 13 ... is an adventitious resort to technicality and is contrary to Section 6 of Rule 3 ... which admonishes that said Rules shall be liberally construed in order to promote their objective in securing a just, speedy and inexpensive disposition of [e]very action and proceeding; and that Section 11, Rule 13 notwithstanding, private respondents religiously complied with [Section 5 of Rule 13] by personally present[ing] to the clerk of court their said Answer ... furnishing a copy thereof to the counsel for [petitioner] by way of registered mail.

On 8 September 1997, public respondent Judge Bautista-Ricafort issued an order⁷stating that under Section 11 of Rule 13 it is within the discretion of the [trial court] whether to consider the pleading as filed or not, and denying, for lack of merit, petitioners motion to expunge the Answer (with Counterclaims) and to declare private respondents in default.

Petitioner immediately moved for reconsideration⁸ of the order, but public respondent Judge Bautista-Ricafort denied this motion in her order⁹ of 17 November 1997. The order justified the denial in this wise:

Section 6 [of] Rule 1 of the 1997 Rules of Civil Procedure ordains that the Rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding.

Liberal construction of the rules and the pleading is the controlling principle to effect substantial justice.

As pointed out by the Supreme Court in Alonso vs. Villamor, 16 Phil. 315, "the error in this case is purely technical. To take advantage of it for other purposes than to cure it, does not appeal a fair sense of justice. Its presentation as fatal to plaintiff a [sic] case smacks of skill rather than right. A litigation is not a game of technicalities in which one, more deeply schooled and skilled in the subtle art of movement and position, entraps and destroys the other. It is rather, a contest in which each contending party fully and fairly lays before the Court the facts in issue and then, brushing aside as wholly trivial and indecisive all imperfections or form of technicalities of procedure, asks that justice be done upon the merits. Lawsuits, unlike duels, are not to be won by a rapier's thrust."

While it is desirable that the above Rules be faithfully and even meticulously observed, courts should not strict about procedural lapses that do not really impair the proper administration of justice. Furthermore, it is well settled that litigations should, as much as possible be decided on their merits and not on technicalities.

Petitioner thus filed the instant special civil action of certiorari, contending that public respondent Judge Bautista-Ricafort committed grave abuse of discretion amounting to lack or excess of jurisdiction when she admitted private respondents' "Answer (with Counterclaims)" notwithstanding private respondents' clear, admitted and inexcusable violation of Section 11, Rule 13 of the 1997 Rules of Civil Procedure, in that: (a) the "Answer (with Counterclaims)" was not served personally upon petitioners counsel despite the undisputed fact that the offices of private respondents counsel and that of petitioners counsel are only about 200 meters away from each other; and (b) the Answer did not contain any explanation as to why the answer was not served personally.

In their Comment, filed in compliance with the resolution of 2 February 1998, and to which petitioner filed a Reply, private respondents aver that public respondent Judge Bautista-Ricafort correctly admitted private respondents Answer (with Counterclaims) in light of Section 6, Rule 1 of the 1997 Rules of Civil Procedure; that Section 11 of Rule 13 begins with the phrase whenever practicable, thereby suggesting that service by mail may still be effected depending on the relative priority of the pleading sought to be filed; and when service is not done personally, it is more prudent and judicious for the courts to require a written explanation rather than to expunge the pleading outright or consider the same as not being filed.

In view of the importance of the issue raised, which is, undoubtedly, one of the first impression, the Court resolved to give due course to the petition and consider it submitted for decision on the basis of the pleadings filed by the parties.

Section 5, Rule 13 of the 1997 Rules of Civil Procedure prescribes two modes of service of pleadings, motions, notices, orders, judgments and other papers, namely: (1) personal service; and (2) service by mail. The first is governed by Section 6, while the second, by Section 7 of said Rule. If service cannot be done either personally or by mail, substituted service may be resorted to under Section 8 thereof.

Pursuant, however, to Section 11 of Rule 13, service and filing of pleadings and other papers must, whenever practicable, be done personally; and if made through other modes, the party concerned must provide a written explanation as to why the service or filing was not done personally. The section reads:

SEC. 11. Priorities in modes of service and filing. -- Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to consider the paper as not filed.(n)

Note that Section 11 refers to both service of pleadings and other papers on the adverse party or his counsel as provided for in Sections 6, 7 and 8; and to the filing of pleadings and other papers in court.

Personal service and filing are preferred for obvious reasons. Plainly, such should expedite action or resolution on a pleading, motion or other paper; and conversely, minimize, if not eliminate, delays likely to be incurred if service or filing is done by mail, considering the inefficiency of the postal service. Likewise, personal service will do away with the practice of some lawyers who, wanting to appear clever, resort to the following less than ethical practices: (1) serving or filing pleadings by mail to catch opposing counsel off-guard, thus leaving the latter with little or no time to prepare, for instance, responsive pleadings or an opposition; or (2) upon receiving notice from the post office that the registered parcel containing the pleading of or other paper from the adverse party may be claimed, unduly procrastinating before claiming the parcel, or, worse, not claiming it at all, thereby causing undue delay in the disposition of such pleading or other papers.

If only to underscore the mandatory nature of this innovation to our set of adjective rules requiring personal service whenever practicable, Section 11 of Rule 13 then gives the court the discretion to consider a pleading or paper as not filed if the other modes of service or filing were resorted to and no written explanation was made as to why personal service was not done in the first place. The exercise of discretion must, necessarily, consider the practicability of personal service, for Section 11 itself begins with the clause whenever practicable.

We thus take this opportunity to clarify that under Section 11, Rule 13 of the 1997 Rules of Civil Procedure, personal service and filing is the general rule, and resort to other modes of service and filing, the exception. Henceforth, whenever personal service or filing is practicable, in light of the circumstances of time, place and person, personal service or filing is mandatory. Only when personal service or filing is not practicable may resort to other modes be had, which must then be accompanied by a written explanation as to why personal service or filing was not practicable to begin with. In adjudging the plausibility of an explanation, a court shall likewise consider the importance of the subject matter of the case or the issues involved therein, and the prima facie merit of the pleading sought to be expunged for violation of Section 11. This Court cannot rule otherwise, lest we allow circumvention of the innovation introduced by the 1997 Rules in order to obviate delay in the administration of justice.

Here, the proximity between the offices of opposing counsel was established; moreover, that the office of private respondents counsel was ten times farther from the post office than the distance separating the offices of opposing counsel. Of course, proximity would seem to make personal service most practicable, but exceptions may nonetheless apply. For instance, where the adverse party or opposing counsel to be served with a pleading seldom reports to office and no employee is regularly present to receive pleadings, or where service is done on the last day of the reglementary period and the office of the adverse party or opposing counsel to be served is closed, for whatever reason.

Returning, however, to the merits of this case, in view of the proximity between the offices of opposing counsel and the absence of any attendant explanation as to why personal service of the answer was not effected, indubitably, private respondents counsel violated Section 11 of Rule 13 and the motion to expunge was prima facie meritorious. However, the grant or denial of said motion nevertheless remained within the sound exercise of the trial courts discretion. Thus, as guided by Section 6, Rule 1 of the 1997 Rules of Civil Procedure, which ordains that the Rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action or proceeding, as well as by the dictum laid down in Alonso v. Villamor, 16 Phil. 315 [1910], the trial court opted to exercise its discretion in favor of admitting the Answer (with Counterclaims), instead of expunging it from the record.

To our mind, if motions to expunge or strike out pleadings for violation of Section 11 of Rule 13 were to be indiscriminately resolved under Section 6 of Rule 1 or Alonzo v. Villamor and other analogous cases, then Section 11 would become meaningless and its sound purpose negated. Nevertheless, we sustain the challenged ruling of the trial court, but for reasons other than those provided for in the challenged order.

The 1997 Rules of Civil Procedure took effect only on 1 July 1997, while the questioned Answer (with Counterclaims) was filed only on 8 August 1997, or on the 39^th day following the effectivity of the 1997 Rules. Hence, private respondents counsel may not have been fully aware of the requirements and ramifications of Section 11, Rule 13. In fact, as pointed out by petitioners counsel, in another case where private respondents counsel was likewise opposing counsel, the latter similarly failed to comply with Section 11.

It has been several months since the 1997 Rules of Civil Procedure took effect. In the interim, this Court has generally accommodated parties and counsel who failed to comply with the requirement of a written explanation whenever personal service or filing was not practicable, guided, in the exercise of our discretion, by the primary objective of Section 11, the importance of the subject matter of the case, the issues involved and the prima facie merit of the challenged pleading. However, as we have in the past, for the guidance of the Bench and Bar, strictest compliance with Section 11 of Rule 13 is mandated one month from promulgation of this Decision.

WHEREFORE, the instant petition is DISMISSED considering that while the justification for the denial of the motion to expunge the Answer (with Counterclaims) may not necessarily be correct, yet, for the reasons above stated, the violation of Section 11 of Rule 13 may be condoned.

No pronouncement as to costs.

SO ORDERED.

Vitug, Panganiban and Quisumbing, JJ., concur.

Bellosillo, J., separate opinion.

Endnotes:

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¹ Rollo, 21-27.

² Id. , 36-37.

³ Id. , 38.

⁴ Id. , 39-48.

⁵ Id. , 50-52.

⁶ Rollo, 53-55.

⁷ Id. , 17-18.

⁸ Id. , 56-59.

⁹ Id., 19-20.