[G.R. No. 143391. July 19, 2000]

TRAKCITY AUTOCORP, et al vs. CA, et al.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUL 19 2000.

G.R. No. 143391 (Trakcity Autocorp, et al. vs. Court of Appeals, et al.)

Private respondent Jose F. Sosa was the prevailing party in a case for a sum of money and damages before the Metropolitan Trial Court. On appeal by petitioners Trakcity Autocorp, Romy Mesina, and Edward Young, Jr., the Regional Trial Court affirmed the decision with some modifications of the award of damages. Private respondent filed a petition for review in the Court of Appeals, but his petition was dismissed because of his failure to submit a written explanation why copies of the petition were not served by personal service as required by Rule 13, �11 of the Rules of Civil Procedure. Private respondent moved for a reconsideration. However, his motion was denied by the Court of Appeals. He again moved for a reconsideration. This time, his motion was granted by the court "in the interest of justice." Petitioners in turn asked for a reconsideration, contending that the written explanation required by Rule 13, �11 was mandatory and that the appellate court had no discretion but to dismiss the appeal. Their motion was denied. Hence, this petition for certiorari under Rule 65, �1.

Petitioners contend that private respondent's failure to comply with Rule 13, �11 is fatal and requires outright dismissal of an appeal. The contention has no merit. The Court of Appeals had discretion, in the interest of justice, to overlook a party's failure to file the written explanation. After all, petitioners were in fact served a copy of private respondent's petition for review. As later explained by private respondent, his failure to serve a copy of his petition was due to "the mental lapse committed by the secretary of undersigned counsel and which undersigned counsel failed to notice as he was then in a hurry to accomplish and file the instant Petition for Review in order to meet the deadline in the filing of the said Petition."

Strict compliance with the requirement to give a written explanation why no personal service was made on the adverse party is indeed the rule. Thus, Rule 13, �11, provides:

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. (Underscoring supplied)

There are, indeed, instances when, in the interest of justice, the request may be waived. In those instances, courts are given discretion to waive the request, and so long as it is not shown that they have e not committed grave abuse in the exercise of that discretion, certiorari will not lie.

Indeed, private respondent's cause is buttressed by the fact that (1) petitioners admit they have received the pleading sent to them by registered mail and (2) private respondent is the winning party in both the Metropolitan Trial Court and Regional Trial Court and only complaint is that the Regional Trial Court deleted some items of damages initially awarded him.

For the foregoing reasons, the petition is DISMISSED for lick of showing that the Court of Appeals committed a grave abuse of discretion.

Very truly yours,

(Sgd.) TOMASITA B. MAGAY-DRIS

Clerk of Court


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