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[ G.R. No. 139476. September 6, 1999]
EDILBERTO SAMONTE, et al. vs. CA, et al.
FIRST DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this court dated SEPT 6 1999.
G.R. No. 139476 (Edilberto Samonte and Agnes Caraig-Samonte vs. Honorable Court of Appeals and Maria Isabel Delfino et al., assisted by their Attorney-in-Fact Maria Gracia Delfino.)
The instant Petition for Certiorari filed under Rule 65 of the Rules of Court assails: (1) the Resolution of the Court of Appeals dated February 24, 1999 dismissing the petition for review filed by petitioners for having been filed beyond the extension granted by said Court; and (2) the Resolution of the Court of Appeals dated June 30, 1999 denying reconsideration of the February 24, 1999 Resolution. After deliberation, the Court Resolved to dismiss the petition on the following grounds:
(1) A petition for certiorari under Rule 65 of the Rules of Court is the wrong mode to question a final order or resolution of the Court of Appeals. Certiorari will lie only if there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law.1 [Building Care Corporation vs. National Labor Relations Commission, 268 SCRA 666 (1997).] In the case at bar, appeal by certiorari under Rule 45 is available to petitioners; thus, resort to a petition for certiorari under Rule 65 is unwarranted.
The Court cannot consider the petition as one filed under Rule 45 since the same was filed beyond the fifteen (15) day reglementary period. Petitioners allegedly received the Resolution dated June 30, 1999 on July 9, 1999. The present petition was filed on August 17, 1999 or more than a month thereafter. "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. The remedies of appeal and certiorari are mutually exclusive and not alternative or successive.2 [Bernardo vs. Court of Appeals (Special Sixth Division), 275 SCRA 413 (1997).]
(2) The petition does not indicate when the motion for reconsideration was filed, thus, failing to comply strictly with section 3, Rule 46 of the Rules of Court, as amended by the Resolution of the Court En Banc dated July 21, 1998. The second paragraph of said Section 3 provides:
In actions filed under Rule 65, the petition shall further indicate the material dates showing when notice of the judgment or final order or resolution subject thereof was received, when a motion for new trial or reconsideration , if any, was filed and when notice of the denial thereof was received. [Underscoring supplied.]
(3) Petitioners have failed to comply strictly with the fourth paragraph of Rule 46 of the Rules of Court, as amended, which provides:
The petitioner shall also submit together with the petition a sworn certification that he has not theretofore commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or proceeding, he must state the status of the same; and if he should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom. [Underscoring supplied.]
The "Verification/Certification"3 [Rollo, p. 7.] signed by petitioner Agnes C. Samonte states:
4. That I have not filed any other case before the Court of Appeals, tribunal or any agency of the government involving the same issues and the parties, and if there be one I am willing to have it dismissed with [sic] five (5) days after notice thereof.
The above certification does not contain an undertaking that petitioner shall "promptly inform the aforesaid courts and other tribunal or agency" should he learn of the filing or pendency of the same or similar action or proceedings.
(4) The petition lacks merit. The Resolution of February 24, 1999 states:
On their motion this Court granted petitioners an extension of 15 days only from December 17, 1998 within which to file their intended petition for review.
The petition for review was filed by mail only on January 15, 1999 and beyond the extension allowed which had expired after the first office day following January 1, 1999.
WHEREFORE, the belatedly filed petition for review is DENIED DUE COURSE and ordered DISMISSED outright. 4 [Id., at 46-47.]
In the resolution dated June 30, 1999, the Court of Appeals denied reconsideration of the above resolution holding:
Petitioners aver that their petition for review was already filed on January 15, 1999 which is within the period they have prayed for in their motion for an extension of thirty (30) days from December 17, 1998 or until January 15, 1999, when they received a copy of the resolution promulgated on January 20, 1999 granting them an extension of only fifteen (15) days.
Petitioners ought to have known that pursuant to Section 1, Rule 42 of the 1997 Rules of Civil Procedure, only an extension of fifteen 915) days can be granted and no further extension will be allowed except for the most compelling reason. There was no basis for assuming that the requested 30-day extension would be granted
WHEREFORE, the reconsideration sought by the petitioners in their Manifestation is DENIED and the resolution of February 24, 1999 STANDS. 5 [Id., at 50-51.]
The foregoing resolution are also in accord with Section 3, Rule 6 of the Revised Internal Rules of the Court of Appeals (As Amended):
Petitions for Review. - - Within the period to appeal, the petitioner shall file a verified petition in seven (7) legible copies and (1) one copy thereof shall be served on each of the respondents. Upon proper motion presented before the expiration of the original reglementary period, the Court may grant a non-extendible additional period of fifteen (15) days save in exceptionally meritorious cases within which to file the petition for review; Provided, however, that should there be no petition filed within the extended period, the case shall be dismissed. A petition filed after the period shall be denied due course outright. The Regional Trial Court shall be furnished a copy of the resolution to this effect. (As amended by S.Ct. Res., dated November 24, 1992)
In Videogram Regulatory Board vs. Court of Appeals 6 [265 SCRA 50 (1996).] this Court held that:
xxx respondent Court cannot be faulted for granting petitioner only fifteen days' extension, even if it prayed for thirty. Certainly, we can not attribute grave abuse of discretion to said Court for merely following its own internal rules which have been granted imprimatur by this Court.
Parties and counsel should not assume that courts are bound to grant the time they prayed for.7 [Orosa vs. Court of Appeals, 261 SCRA 376 (1996).]
IN VIEW OF THE FOREGOING, the instant petition is DISMISSED. DAVIDE, JR., C.J. and CHAIRMAN, is on official leave.
Very truly yours,
(Sgd.) VIRGINIA ANCHETA-SORIANO
Clerk of Court
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