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[ G.R. No. 143839. August 16, 2000]

SUKHOTHAI CUISINE RESTAURANT vs. CA, et al.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated AUG 16 2000.

G.R. No. 143839. (Sukhothai Cuisine Restaurant vs. Court of Appeals, et al.)

This petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure was filed on July 24, 2000, forty-seven (47) days from June 7, 2000, the date petitioner received the assailed Resolution of the Court of Appeals denying its Motion for Reconsideration. The petition seeks to annul the Resolution of the Court of Appeals dismissing the petition for certiorari filed by petitioner for failure to attach certified true copies of the assailed decision of the Department of Labor and Employment.

The Resolution of the Court of Appeals was a final resolution, considering that it finally disposed of the petition for certiorari. Petitioner's remedy therefrom should have been a petition for review under Rule 45, and not a petition for certiorari under Rule 65. Rule 45, Section 1 of the 1997 Rules of Civil Procedure states:

A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. (emphasis provided)

The petition for review should have been filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from (1997 Rules of Civil Procedure, Rule 45, Section 2). In the case at bar, petitioner should have filed its petition for review on or before June 22, 2000, or it could have filed a motion for extension. Instead, petitioner resorted to a petition for certiorari under Rule 65.

The special civil action of certiorari is not and cannot be a substitute for an appeal, where the latter remedy is available, as it was in this case. A special civil action under Rule 65 will not be a cure for failure to timely file a petition for review on certiorari under Rule 45. Rule 65 is an independent action that cannot be availed of as a substitute for the lost remedy of an ordinary appeal, including that under Rule 45, especially if such loss or lapse was occasioned by one's own neglect or error in the choice of remedies (National Irrigation Administration v. Court of Appeals, G.R. No. 129169, November 17, 1999).

ACCORDINGLY, the petition for certiorari is DISMISSED.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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