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[G.R. No. 139669. October 4, 1999]

JOSE A. BERSALES vs. HON. CA, et al.

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated OCT 4, 1999.

G.R. No. 139669 (Jose A. Bersales vs. Hon. Court of Appeals, Hon. Judge, Regional Trial Court, 9 TH Judicial Region, Pagadian City, Branch 18, and Spouses Gualberto Fadri and Erlinda Fabri.)

Petitioner assails the decision of the Court of Appeals affirming the order of the regional trial court which denied petitioner's motion to dismiss the complaint. The Court of Appeals' main ground for dismissing the petition then before it is that the trial court's order which denied petitioner's motion to dismiss is interlocutory. Additionally, the petition was dismissed for failure to pay the exact docket fee as required by Section 3, Rule 46 of the 1997 Rules of Civil Procedure.

The present controversy sprung from an action against petitioner for recovery of possession, surrender or annulment of transfer certificate of title filed by private respondents who are alleged to be among those squatting in the disputed property.

Petitioner moved to dismiss the complaint, alleging that the regional trial court had no jurisdiction over the subject matter or that the complaint lacked a cause of action as the action is anchored on an unenforceable claim under the statute of frauds. The motion was, however, denied and the Court of Appeals, as mentioned above, dismissed a petition for certiorari subsequently filed thereat.

Certiorari generally lies when there is no appeal or any other plain, speedy, or adequate remedy available to petitioner (Heirs of Placido Miranda vs. CA, 255 SCRA 368 [1996]). In the case at bar, after the denial of the motion to dismiss, petitioner should have filed an Answer and proceeded with the trial and if an adverse decision be thereafter rendered against him, he may reiterate the issue on appeal from the final judgment of the court a quo.

The Court finds no error committed by the Court of Appeals because although a special civil action for certiorari may be availed of by a party should there be grave abuse of discretion or lack of jurisdiction on the part the trial court, the vitiating error is indubitably not present in the case at bar (Espa�o, Sr. vs. CA, 268 SCRA 511).

WHEREFORE, petition is denied due course.

SO ORDERED.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court

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