[ G.R. No. 144106. August 30, 2000]

LIM CHING KUAN vs. SEBASTIAN TOLANG, et al.

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated AUG 30 2000.

G.R. No. 144106 (Lim Ching Kuan vs. Sebastian Tolang, et al.)

Petitioner assails the decision of the Court of Appeals dismissing his petition on the ground of non-compliance with the technical requisites prescribed by the Rules on Civil Procedure and for failure to file a motion for reconsideration at the regional trial court.

The present controversy stemmed from the proceedings in the execution of judgment in a case for annulment of deed of extra judicial partition filed by private respondent against a certain heir of Margate involving, among others property Lot 1104, a portion of which is possessed by petitioner as its owner.

Petitioner alleged that it was only sometime in 1999, when he learned that the said lot was the subject of the abovementioned execution proceedings. In order to protect his interest, petitioner filed an Opposition/Motion for Intervention which was denied, as well as the subsequent motion for reconsideration.

On November 23, 1999, petitioner filed another motion, this time praying for the exclusion from the order of demolition of the portion of Lot 1104 occupied by him. But the same was likewise denied.

On January 10, 2000, private respondents filed an Urgent Ex-parte Motion for Issuance of a Writ of Demolition which was schedule to be heard by the trial court on February 9, 2000.

Fearful that the writ of demolition would be issued and, in view of the fact that petitioner was not allowed to intervene in the execution proceeding, he filed a petition for certiorari with the Court of Appeals on February 8, 2000. Petitioner included in his petition an application for preliminary injunction and proper for the issuance of a temporary restraining order. Due to the pendency of the said petition and application, respondent regional trial court suspended the execution proceedings until after the matter has been finally resolved.

On February 11, 2000, the Court of Appeals dismissed the petition on the following grounds: (a) that the affidavit of service was not accompanied by a written explanation why the preferred personal mode of service was not availed of in violation of Section 11 of Rule 13 of the 1997 Rules of Civil Procedure; (b) failure to file a motion for reconsideration; (c) failure to attach a copy of the complaint and answer as well as the decision of the Court of Appeals and the resolution of the Supreme Court resolving Civil Case No. 1848.

Thus, the instant petition which we find to be unavailing.

Initially, the Court notes that the written explanation required under Section 11, Rule 15 of the 1997 Rules on Civil Procedure does not refer to the service by registered mail of the instant petition but to the service of a motion for extension of time to file a memorandum. This, the Court considers to be a fatal lapse which could cause the outright dismissal of the petition.

But at any rate the Court finds no error committed by the Court of Appeals in dismissing the petition filed before it. The special civil action for certiorari will not lie unless the aggrieved party has no other plain, speedy and adequate remedy in the ordinary course of law, such as by filing a motion for reconsideration (Tan, Jr. vs. Sandiganbayan, 292 SCRA 452 [1998]). Time and again the Court has ruled that strict compliance with the rules of procedure as the filing of a motion for reconsideration is both mandatory and imperative (Lamsam Trading, Inc. vs. Leogardo Jr., 144 SCRA 578 [1986]).

Moreover, it has long been recognized that strict compliance with the rules and circulars is indispensable for the prevention of needless delays and for the orderly and expeditious dispatch of judicial business. For a party to seek exception for its failure to comply strictly with the statutory requirements for perfecting its appeal, strong and compelling reasons such as serving the ends of justice and preventing a grave miscarriage thereof must shown, in order to warrant the Court's suspension of the rules. Otherwise, the rules must strictly apply (Villanueva vs. Court of Appeals, 205 SCRA 537 [1992]).

WHEREFORE, petition is denied due course.

SO ORDERED.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court


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