SUPREME COURT DECISIONS

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^{SEPARATE OPINION}

BELLOSILLO, J.:

This case involves the proper application of Sec. 11, Rule 13, of the 1997 Rules of Civil Procedure, which took effect 1 July 1997.

Restating the facts, on 10 July 1997 petitioner herein filed against private respondents a Complaint (For: Recovery of Possession and Damages with Prayer for Writ of Replevin) in the Regional Trial court of Paraaque against private respondents. On 8 August 1997, after seeking an extension of ten (10) days from the expiration of its reglementary period to respond, private respondents filed their Answer (with Counterclaims) furnishing counsel for petitioner copy thereof by registered mail.

Alleging violation of Sec. 11, Rule 13, of the 1997 of Rules of Civil Procedure, petitioner filed a Motion to Expunge Answer with Counterclaim and Declare Defendants in Default for the reason that the Answer was not served personally on its counsel but only by registered mail.

On 8 September 1997 respondent Judge Helen Bautista Ricafort of RTC Br. 260, Paraaque City, denied the motion to expunge as well as to reconsider her denial for lack of merit, holding that under Sec. 11 of Rule 13 it is within the discretion of the Court whether to consider a pleading as filed or not.

Indeed, the trial court took too lightly Sec. 11, Rule 13, of the 1997 Rules of Civil Procedure which provides

Sec. 11.Priorities in modes of service and filing. - Whenever practicable, the service and filing of pleading 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.

I find it difficult to agree with respondent Judge that under the above provision it is solely within the discretion of the trial court whether to consider the pleading as filed or not. Section 11 requires that service and filing of pleadings and other papers shall be done personally, whenever practicable. In other words, when personal service is not done, the party who fails to comply with the requirement must explain why. This makes personal service and filing of pleadings mandatory, especially as the rule specifically uses the word shall, unless personal service and filing are shown to be impractical. At this stage, the exercise of discretion by the judge does not yet come into play.

In case personal service and filing are neither practical nor feasible then and only then- can the parties avail of other modes of service and filing, e.g., by registered mail. But resort to other modes must be accompanied by a written explanation why service and filing are not done personally. From that explanation, the judge will then determine whether personal service and filing are indeed impractical so that resort to other modes may be made. It is only at this stage when the judge may properly exercise his discretion and only upon the explanation given.

In the case before us, private respondents gave no explanation why they resorted to service by registered mail and not by personal service. Absent any explanation, respondent was without any hypothesis on which to anchor her finding and conclusion that personal service was not practicable. In such a situation, respondent judge could not exercise any discretion any discretion and, consequently, could not deny petitioners motion to expunge the answer for lack of merit. Respondent judge did not even cite a single reason why personal service was not availed of by private respondents. Consequently, the conclusion that the motion to strike out private respondents answer filed by petitioner should be denied for lack of merit, was without any basis, thus amounting to grave abuse of discretion on the part of respondent judge.

To emphasize, the courts discretion can only be exercised soundly if there exists some factual basis for it. The explanation required of the parties serves as the authority for the judges exercise of discretion. Without any explanation, the judge cannot wield any discretion, much less dismiss the motion to expunge by simply saying that it lacks merit.

Thus, speaking of discretionary power of a trial judge, I said as early as 2 October 1987 in Rayat Export Industries, Inc. v. Lorenzana¹ that

Where no explanation whatsoever was given justifying the absence of a party whose presence was required, hence, there was no factual milieu upon which discretion may be exercised, the discretionary power of the court to declare him non-suited or as in default becomes mandatory.

Stated differently, where no explanation is offered to justify resort to service of pleading by mal or other modes of service (and filing for that matter), in lieu of the preferred personal service, hence, no factual milieu is provided upon which judicial discretion may be brought into play, the discretionary power of the court to expunge the pleading, becomes mandatory and a disregard thereof constitutes grave abuse of discretion.

Section 11 of Rule 13 provides for priorities in the modes of service and filing of pleadings. By priority we mean an order of preference in the service thereof, such that the first alternative must be availed of, and only upon its non-availability may the second and succeeding options be resorted to. Admittedly, the offices of petitioner's counsel and that of private respondents are located just about two hundred (200) meters from each other the office of petitioners counsel at 235 Salcedo St., Legaspi Village, Makati City, and that of private respondents counsel at 132 Amorsolo St., Legaspi Village, Makati City. For lack of any explanation from private respondents, we cannot determine the reason why they served and filed their pleading by registered mail instead of personally serving and filing them.

Personal service and filing are obviously preferred so as to fast track the decongestion of court dockets. No less than our present Constitution mandates the promulgation of rules that shall provide a simplified and inexpensive procedure for the speedy disposition of cases.² In fact, the 1997 Rules of Civil Procedure is required to be construed to promote its objective of securing a just, expeditious and inexpensive disposition of every action and proceeding; hence, strict compliance with the rules is strongly favored. Taking judicial notice of the inadequacy of our postal service, it is to the advantage of both parties if they avail of personal service and filing of pleadings in order to resolve their case soonest.

Presiding from the foregoing, I cannot agree with the ponencia that the grant or denial of said motion (to expunge) nevertheless remains within the sound exercise of the trial courts discretion. Alonso v. Villasor³ upon which the ponencia is premised cannot be invoked. The issue in Alonso involved merely a defect in form, a defect which did not prejudice the substantial rights of the opposing party. In the instant case, the deviation is not merely formal. It involves non-compliance with the mandatory requirement of Sec. 11 of Rule 13.

I ask: Would it not have been more appropriate and proper for respondent judge to start by requiring compliance with Sec. 11, Rule 13, and grant the motion of petitioner to expunge the answer for obvious non-compliance therewith which requires personal service, and on a motion for reconsideration by private respondents explaining the non-observance of the rule, if such motion is filed, grant reconsideration in the exercise of the courts discretion? At least the message would have been clear that the rule should first and foremost be obeyed before the same may be relaxed upon exercise of discretion based on a reasonable explanation.

While I am constrained to yield for the moment to the majority pro hac vice in view of the recency of the rule concerned, I am afraid we might be sending the wrong signals to our trial judges that a rule of procedure, particularly Sec. 11, Rule 13, may be taken lightly, if not ignored completely, despite its mandatory character and its publication in a newspaper of general circulation that it was to take effect 1 July 1997 or a year ago. Observance of the 1997 Rules of Civil Procedure, I submit, was never meant to be a useless exercise, otherwise the dedicated efforts of its architects would be fruitless. Such a lackadaisical attitude in the proper observance of the rules of procedure, regretfully, is one of the culprits in docket congestion and delay.