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[A.C. No. 3912.August 20, 2001]

PALACIO vs. MASWENG

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated AUG 20 2001.

A.C. No. 3912(Juanita Palacio vs. Atty. Rufino S. Masweng.)

Complainant Juanita Palacio filed this case on 22 September 1992 alleging that respondent Atty. Rufino S. Masweng with whom she cohabited from 1986 to 1988 has not been giving support to their offspring Florencio Masweng.

After respondent filed his comment in 1998, we referred this case to the Integrated Bar of the Philippines (IBP) on 22 January 1999 for investigation, report and recommendation within ninety (90) days from notice.

The IBP set the case for initial hearing on 5 May 2000. However, respondent failed to appear despite due notice as shown by the registry return receipt attached to the records. The notice sent to complainant was returned unserved with notation "Moved."

The case was again set for hearing on 30 June 2000. Once again, respondent failed to appear despite due notice, while complainant on the other hand never bothered to claim her mail despite three (3) notices sent to her by the Central Post Office. It was thus returned "Unclaimed."

On 4 August 2000 complainant appeared but was not able to present evidence since both the respondent and the Investigating Commissioner, Victor C. Fernandez, were absent.

On 29 September 2000, both complainant and respondent failed to appear, prompting Commissioner Fernandez to issue an Order submitting the case for resolution.

On the basis of the foregoing antecedents, and the fact that complainant allegedly failed to respond to the Order dated 29 September 2000, Commissioner Fernandez submitted his Report and Recommendation dated 7 February 2001 recommending that the case be dismissed for "failure to prosecute and there being no compelling reason to proceed with the investigation." The IBP Board of Governors adopted the recommendation in its Resolution No. XIV-2001-74.

We do not agree that there was indeed failure to prosecute on the part of complainant. Based on the antecedents, complainant may be considered as having failed to attend only one hearing, i.e., that set on 30 June 2000. She cannot be considered as having been duly notified of the scheduled hearing on 29 September 2000. A careful perusal of the Registry Return Receipt, 1 See Rollo, but no pagination. shows that it was nowhere indicated therein that complainant ever received the notice of her scheduled hearing. Both the spaces for "date of delivery" and "signature of addressee" were left blank.

With respect to the Order of 29 September 2000 which considered the case submitted for resolution, there was likewise no showing that a copy thereof was received by complainant. Per Central Post Office certification, copy of the Order was received by a certain Rafael Sorosoro on 23 October 2000 who, however, did not indicate therein the capacity by which he was purportedly receiving the notice for the complainant.

Aside from the fact that failure to prosecute must be for an unreasonable length of time to justify dismissal of the case, it is moreover worthy to note that respondent lawyer vis-a-vis complainant never attended any of the four (4) hearings of which he had due notice. Considering the foregoing, it is quite unfair to precipitately dismiss this case on an alleged failure to prosecute.

It may be noted that the complaint was filed as early as 22 September 1992 or nine (9) years ago, and yet no positive action appears to have been taken by the IBP.

ACCORDINGLY, let this case be immediately REFERRED BACK to the Integrated Bar of the Philippines (IBP) for a more serious attention to this case, and to conduct a thorough investigation thereon, and submit its report and recommendation within sixty (60) days from notice hereof. This case has apparently been given a perfunctory treatment by the IBP, with indifference to its bounden duty to dispose of this case justly and well and within a reasonable time.

SO ORDERED.

Very truly yours,

(Sgd.) TOMASITA B. MAGAY-DRIS
Clerk of Court


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