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[ G.R. No. 134384. July 28, 1999]
COSMELITO Q. CARLOS vs. FELIX OSORIO.
SECOND DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this court dated JUL 28, 1999.
G.R. No. 134384 (Cosmelito Q. Carlos vs. Felix Osorio.)
Cosmelito Q. Carlos filed a petition for review on certiorari which the Court denied on September 16, 1998 on the ground that the affidavit of service did not state the date when the petition was served on the respondents. Petitioner filed a motion for reconsideration but the motion was denied with finality on November 23, 1998 for lack of any compelling reason to reconsider the resolution of September 16, 1998.
What is before the Court is a motion by petitioner for leave to file a second motion for reconsideration and the second motion for reconsideration in which it is stated that "the failure to indicate the date of service was caused by an honest mistake" and that "given the chance to be heard, he can prove through his pleadings that the Honorable Court of Appeals, with all due respects, committed an error in deciding in favor of herein respondent." In addition, for resolution is a motion filed by Atty. Edwin P. Cerezo to withdraw as counsel for respondent. Required to comment, respondent opposes petitioner's motions, stating that after the Court denied with finality petitioner's first motion for reconsideration, no motion for leave to file a second motion for reconsideration may be filed pursuant to Rule 52, �2 of the 1997 Rules of Civil Procedure.
After due consideration of the matters before it, the Court RESOLVED to (1) DENY petitioner's motion for leave to file a second motion for reconsideration of the resolution of September 16, 1998 and NOTE WITHOUT ACTION petitioner's second motion for reconsideration in view of the denial of his motion for leave to file the same; (2) note respondent's comment on the aforesaid motions; and (3) GRANT the motion of Atty. Edwin P. Cerezo to withdraw from this case, it appearing that the same was filed with the conformity of respondent.
A statement of the date of service of a petition on the adverse party is actually required by the resolution, dated February 13, 1992, of the Court en banc. The following is the form of the affidavit of service which must accompany petitions in case of service by registered mail:
REPUBLIC OF THE PHILIPPINES)
City/Municipality)____________S.S.
Province of____________________)
AFFIDAVIT OF SERVICE
(Revised as of April 1, 1992)
I, __________________________, as _______________________of _____________________ with office address at ____________________________________, after being duly sworn, depose and say:
That on ______________________, 199___, I served a copy of the following pleading/paper:
NATURE OF PLEADING/PRAYER
______________________________
______________________________
______________________________
Case No. __________________________, entitled_______________________________ pursuant to Sections 3, 4, 5 and 10, Rule 13 of the Rules of Court, as follows:
By Registered Mail to
_______________________ [ ] By depositing a copy on _____________________,
_______________________ 199_____, in the post office at ________________,
as evidenced by Registry Receipt(s)
No(s). ________________________ hereto attached
and indicate after the name(s) of the
addressee(s), and with instructions to
the postmaster to return the mail to the
sender after ten (10) days if undelivered.
_________________________, 1999 ___, ________________________, Philippines.
______________________
Affiant
SUBSCRIBED AND SWORN to before me this ___________________ day of ____________________, 199________, Philippines, affiant exhibiting to me his/her Residence Certificate No. _______________________________ issued at ______________ on _______________________, 199__________.
Officer Administering the Oath
Doc. No._______;
Book No._______;
Page No._______;
Series of 199____;
The prescribed form of the affidavit of service thus requires a statement of both the date of mailing and the post office address. These particulars complement the provision of Rule 13 �12 of the Rules of Civil Procedure which requires that the affidavit of filing must state "the date and place of depositing the mail in the post office." (1 F.D. REGALADO, REMEDIAL LAW COMPENDIUM 211 (6th ed., 1997))
Strict compliance with the requirements of indicating in the affidavit of service of the date of service of the petition on the respondents must be insisted upon in order to facilitate the processing of pleadings, otherwise this purpose will be defeated (Temic Telefunken Microelectronics (Phils.), Inc. v. Hon. Laguesma, G.R. No. 135788, Second Division, Resolution, March 15, 1999). The right to appeal is a mere statutory privilege which may be exercised only in the manner prescribed by law (Calucag v. COMELEC, 274 SCRA 405 (1997)). The denial of the petition and the motion for reconsideration in this case was thus proper.
Respondent is correct in arguing that the filing of a second motion for reconsideration is prohibited by Rule 52, �2 in relation to Rule 56, �4 of the Rules of Civil Procedure. Hence, petitioner's motion for leave to file the same should, likewise, be denied.
In any event, the Court finds the petition to be without merit. It appears that petitioner and respondent entered into a contract of partnership for the operation of a fishpond, with the former as the capitalist partner while the latter as the industrial partner. Upon the dissolution of the partnership, respondent asked for the reimbursement pf expenses used for the repair and reconstruction of the dikes, and the cost of the fingerlings amounting to P1,041,914.70 but petitioner paid him P150,498.40 only. For this reason, respondent retained the possession of the fishpond, petitioner filed an action for recovery of possession in the Regional Trial Court of Malolos, Bulacan but the case was dismissed for lack of jurisdiction. The court ruled that the remedy should be an action for unlawful detainer. Petitioner filed a complaint for forcible entry in the Municipal Trial Court of Maycauayan, Bulacan but the same was again dismissed on the ground that petitioner' proper remedy was to bring an action for unlawful detainer. Petitioner filed a complaint for forcible entry in the Municipal Trial Court of Meycauayan, Bulacan but the same was again dismissed on the ground that petitioner' proper remedy was to bring an action for unlawful detainer. Petitioner then filed in the same court an action for unlawful detainer. Petitioner then filed in the same court an action for unlawful detainer which ruled in his favor and ordered the ejectment of respondent. On appeal to the Regional Trial Court of Malolos, Bulacan, the said decision was affirmed. On motion of petitioner, the said court ordered the execution of its decision pending appeal.
Respondent then brought the matter to the Court of Appeals which reversed the decision of the lower courts for lack of jurisdiction on the ground that the action for unlawful detainer was filed after more than one year from the date of the alleged unlawful dispossession by the respondent. The decision of the Court of Appeals became final and executory in view of the absence of any appeal therefrom and accordingly, entry of judgment was made on November 5, 1997.
On December 4, 1997, respondent filed in the Court of Appeals an ex parte motion for clarification of the decision alleging that since it was held that the lower courts had no jurisdiction over the action for unlawful detainer, all processes issued by them were void, including the writ of execution pending appeal issued by the Regional Trial Court of Bulacan on June 22, 1995 which resulted in the transfer of possession of the fishpond to petitioner. Consequently, acting on the said motion, the Court of Appeals amended its decision of April 22, 1997 by ordering the Regional Trial Court of Bulacan to restore possession of the fishpond to respondent. Hence, this petition for review. Petitioner contends that the amended decision amounts to a "brand new decision," not a mere clarification, which grants a relief not previously allowed.
The contention is without merit. Rule 39, �5 provides that "where the judgment executed is reversed totally or partially on appeal, the trial court, on motion, after the case is remanded to it, may issue such orders of restitution as equity and justice may warrant under the circumstances." In Aranda v. Court of Appeals, 186 SCRA 456 (1990), this Court held that when a judgment is executed pending appeal but on appeal it is reversed, the party who moved for immediate execution should be required to make restitution of the subject property to the prevailing party. The restitution of possession of the subject fishpond to respondent, as the prevailing party, was what the Court of Appeals ordered in its amended decision. The fact that its original decision is already final and executory does not bar the said court from amending the same since it is settled that such amendment is allowed where there is ambiguity caused by an omission or mistake in the dispositive portion of the decision (Presbiterio v. Court of Appeals, 129 SCRA 443 (1987)). Hence, no reversible error was committed by the Court of Appeals in amending its original decision.
Very truly yours,
(Sgd.) TOMASITA M. DRIS
Clerk of Court
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