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[ G.R. No. 138061. June 14, 1999]

PANABO PUBLIC MARKET VENDORS vs. COURT OF APPEALS.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 14, 1999.

G.R. No. 138061 (Panabo Public Market Vendors vs. Court of Appeals.)

Petitioner seeks to annul the decision of the Court of Appeals annulling the decision of the Regional Trial Court. Page 6 of the Petition1 [Rollo, p. 9.] (Rollo, p. 9) states:

This is a Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure. It is filed within the period allowed in Sec. 4, Rule 65 of said Rules, the order denying petitioner's motion for reconsideration having been received on January 27, 1999 and the last day would fall on a Sunday, March 28, 1999. (Underscoring supplied.)

The petition for certiorari under Rule 65 of the Rules of Court is the wrong mode to question the decision of the Court of Appeals, a petition for review under Rule 45 being more appropriate.

�1, Rule 65 of the Rules of Court provides:

SECTION 1. Petition for certiorari. - When any tribunal, board, or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

x x x. (Underscoring supplied).

In this case, appeal by certiorari under Rule 45 is available to petitioner. Thus, resort to petition for certiorari under Rule 65 is unwarranted. Certiorari will lie only if there is no appeal or any other plain speedy and adequate remedy in the ordinary course of law.2 [Building Care Corporation vs. National Labor Relations Commission, 268 SCRA 666 (1997).] Certiorari cannot be allowed when a party to a case fails to appeal a judgment despite the availability of that remedy, certiorari not being a substitute for lost appeal.3 [Bernardo vs. Court of Appeals (Special Sixth Division), 275 SCRA 413 (1997).] The remedies of appeal and certiorari are mutually exclusive and not alternative or successive.4 [Id.]

IN VIEW OF THE FOREGOING, the petition is hereby DISMISSED.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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