THIRD DIVISION

GLICERIA SARMIENTO, G.R. No. 167471

Petitioner,
Present:

YNARES-SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ.

Promulgated:
EMERITA ZARATAN,
Respondent. February 5, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

This petition for Review on Certiorari under Rule 45 of the Rules of Court
seeks to nullify the Court of Appeals Decision[1] in CA-G.R. SP No. 79001
entitled, Emerita Zaratan v. Hon. Ramon A. Cruz, as Presiding Judge of
RTC, Quezon City, Branch 223, and Gliceria Sarmiento, dated 17 August
2004, which reversed and set side the Orders dated 19 June 2003 and 31 July
2003 of the Regional Trial Court (RTC) of Quezon City in Civil Case No.
Q-03-49437, dismissing respondents appeal for failure to file the
memorandum within the period provided for by law.

On 2 September 2002, petitioner Gliceria Sarmiento filed an ejectment

case[2] against respondent Emerita Zaratan, in the Metropolitan Trial Court
(MeTC) of Quezon City, Branch 36, docketed as Civil Case No. 29109.
On 31 March 2003, the MeTC rendered a decision in favor of petitioner, the
dispositive portion of which reads:

WHEREFORE, the Court finds that plaintiff has sufficiently established

her causes against the defendant and hereby order the defendant and all
persons claiming rights under her:

1. to pay plaintiff the monthly rentals of P3,500.00 for the said

premises from August 1, 2002 until defendant vacates the premises;

2. to pay plaintiff the sum of P20,000.00 plus P1,500.00 per

appearance of counsel in court, as and for attorneys fees; and
to pay the cost of suit.[3]

Respondent filed her notice of appeal.[4] Thereafter, the case was raffled to
the RTC of Quezon City, Branch 223, docketed as Civil Case No. Q-03-
49437.

In the Notice of Appealed Case,[5] the RTC directed respondent to submit

her memorandum in accordance with the provisions of Section 7(b) of Rule
40 of the Rules of Court and petitioner to file a reply memorandum within
15 days from receipt.

Respondents counsel having received the notice on 19 May 2003, he had

until 3 June 2003 within which to file the requisite memorandum. But on 3
June 2003, he filed a Motion for Extension of Time of five days due to his
failure to finish the draft of the said Memorandum. He cited as reasons for
the delay of filing his illness for one week, lack of staff to do the work due
to storm and flood compounded by the grounding of the computers because
the wirings got wet.[6] But the motion remained unacted.

On 9 June 2003, respondent filed her Memorandum. On 19 June 2003,

the RTC dismissed the appeal as follows:

Record shows that defendant-appellant received the Notice of

Appealed Case, through counsel, on May 19, 2003 (Registry Return
Receipt dated May 12, 2003, Record, back of p. 298). Thus, under Section
7(b), Rule 40 of the 1997 Rules of Civil Procedure, she had fifteen (15)
days or until June 3, 2003 within which to submit a memorandum on
 appeal. As further appears on record, however, the required Memorandum
was filed by defendant-appellant only on June 9, 2003 (Record, p. 623), or
six (6) days beyond the expiration of the aforesaid fifteen day period.

It should be stressed that while the rules should be liberally

construed, the provisions on reglemenatry periods are strictly applied as
they are deemed indispensable to the prevention of needless delays and
necessary to the orderly and speedy discharge of judicial business
(Legaspi-Santos vs. Court of Appeals, G.R. No. 60577, October 11, 1983)
and strict compliance therewith is mandatory and imperative (FJR
Garments Industries vs. Court of Appeals, G.R. No. L-49329, June 29,
1984). The same is true with respect to the rules on the manner and
periods for perfecting appeals (Gutierrez vs. Court of Appeals, L-25972,
November 26, 1968).

Premises considered, the instant appeal is hereby DISMISSED.

This renders academic defendant-appellants application for a writ of
preliminary injunction.[7]

On the basis of the above-quoted Order, petitioner filed a Motion for

Immediate Execution,[8]while respondent moved for the
[9]
Reconsideration. Both motions were denied by the RTC on 31 July
2003. The Order in part reads:

In the main, defendant-appellants Motion for Reconsideration is

premised on the argument that she filed a timely Motion for Extension of
Time To File Memorandum, dated and filed on June 3, 2003, but that her
motion was not acted upon by this Court. She adds that her appeal
memorandum was filed well within the period sought by her in her Motion
for Extension of Time to File Memorandum so that her appeal should not
have been dismissed.

The argument is without merit. This Court did not take cognizance
of defendant-appellants Motion for Extension of Time to File
Memorandum, and rightly so, because it did not contain a notice of
hearing as required by Sections 4 and 5, Rule 15 of the Rules of Court, an
omission for which it could offer no explanation. As declared in the case
of Gozon, et al. v. court of Appeals (G.R. No. 105781, June 17, 1993);

xxx

It is well-entrenched in this jurisdiction that a

motion does not meet the requirements of Sections 4 and 5
of Rule 15 of the Rules of Court is considered a worthless
 piece of paper which the clerk has no right to receive, and
the court has no authority to act upon.

xxx

Moreover, parties and counsel should not assume that courts are
bound to grant the time they pray for. A motion that is not acted upon in
due time is deemed denied (Orosa vs. Court of Appeals, 261 SCRA 376
[1996]). Thus, defendant-appellants appeal was properly dismissed on
account of her failure to file an appeal memorandum within the fifteen
(15) day period provided under Section 7(b), Rule 40 of the 1997 Rules of
Civil Procedure.

With regard to the Motion for Immediate Execution, dated June 23,
2003, filed by plaintiff-appellee, the rule is explicit that the execution
of a judgment in an ejectment case, must be sought with the inferior court
which rendered the same. The appellate court which affirms a decision
brought before it on appeal cannot decree its execution in the guise of an
execution of the affirming decision. The only exception is when said
appellate court grants an execution pending appeal, which is not the case
herein (City of Manila vs. Court of Appeals, 204 SCRA 362; Sy vs.
Romero, 214 SCRA 187).[10]

Petitioner moved for reconsideration of the said Order, while

respondent sought clarification on whether the 31 July 2003 Order
dismissing the appeal was anchored on Section (b), Rule 40 or Section 7(c)
of the same Rule.

On 27 August 2003, the RTC reconsidered its previous Order by

granting petitioners motion for Immediate Execution, but denied respondents
Motion for Clarification, in this wise:

Section 21, Rule 70 of the Rules of Court provides that the

judgment of the Regional Trial Court against the defendant shall be
immediately executory, without prejudice to a further appeal that may be
taken therefrom. Pursuant to this Rule and taking into account the
arguments of the plaintiff in her Urgent Motion for Reconsideration, the
Court is inclined to grant the same. As further correctly argued by the
plaintiff, through counsel, during the hearing on her motion on August 15,
2003, the cases of City of Manila v. Court of Appeals (204 SCRA 362)
and Sy vs. Romero (214 SCRA 187) cited in the July 31, 2003 Order refer
to ejectment cases which has (sic) been decided with finality and hence,
inapplicable to this case where a further appeal is still available to the
 defendant. It should likewise be noted that while the Supreme Court ruled
in these cases that execution of a judgment in an ejectment case must be
sought with the inferior court which rendered the same, it likewise
provided that for an exception to this rule, that is, in cases where the
appellate court grants an execution pending appeal, as the case herein.

With regard to defendants Motion for Clarification, contained in

her Opposition, the Court notes that the issues raised therein have already
been squarely dealt with in the July 31, 2003 Order. The same must,
therefore, be denied.[11]

Aggrieved, respondent filed a Petition for Certiorari in the Court of

Appeals, which was granted in a decision dated 17 August 2004. The
appellate court nullified and set aside the 19 June 2003 and 31 July
2003 Orders of the RTC and ordered the reinstatement of respondents
appeal. Consequently, respondents appeal memorandum was admitted and
the case remanded to the RTC for further proceedings.[12]

Petitioner filed a motion for reconsideration[13] on 13 September 2004,

followed by a Motion for Inhibition[14] of the members of the Eighth
Division of the Court of Appeals on 20 September 2004. Both motions were
denied for lack of merit on 10 March 2005.[15]

Hence, this appeal by petitioner posing the following issues,[16] thus:

1. Whether respondents petition for certiorari should have been

dismissed in the first place;

2. Whether the trial court committed grave abuse of discretion in

denying respondents motion for extension;

3. Whether it is Section 19 of Rule 7 that applies, and not Section

21; and

4. Whether the Court of Appeals Justices should have inhibited

themselves from further proceeding with the subject case.

Stated otherwise, the main issue for resolution is whether the Court of
Appeals committed a reversible error of law in granting the Writ
of Certiorari. In granting the petition, the Court of Appeals ruled that the
RTC erred in dismissing respondents appeal for failure to file the required
Memorandum within the period provided by law and in granting petitioners
Motion for Immediate Execution of the MeTC decision.

Before resolving the substantive issues raised by petitioner, the Court

will first address the procedural infirmities ascribed by petitioner. Petitioner
assails the correctness and propriety of the remedy resorted to by respondent
by filing a Petition for Certiorari in the Court of Appeals. According to
petitioner, certiorari is not appropriate and unavailing as the proper remedy
is an appeal.

It must be noted that respondents appeal in the RTC was dismissed for
failure to file the required memorandum within the period allowed by law, as
the Motion for Extension of Time to file Memorandum was not acted upon
for failure to attach a notice of hearing. From the said dismissal, respondent
filed a Petition for Certiorari in the Court of Appeals.

Respondent correctly filed said petition pursuant to Section 41 of the

Rules of Court, which provides:

Section 1. Subject of appeal. An appeal may be taken from a

judgment or final order that completely disposes of the case, or of a
particular matter therein when declared by these Rules to be appealable.
No appeal may be taken:

xxxx

(d) An order disallowing or dismissing an appeal;

xxxx

In all the above instances where the judgment or final order is

not appealable, the aggrieved party may file an appropriate civil
action under Rule 65. (Underscoring supplied.)
 Petitioner also contends that the Petition for Certiorari filed in the
Court of Appeals should be dismissed as the certification of non-forum
shopping was defective. The verification in part reads:

I, EMERITA ZARATAN, of legal age, after having been duly

sworn to, according to law, depose and say:

That I, Emerita Zaratan is one of the respondent (sic) in the above

entitled case, hereby declare, that I have caused the preparation and
filing of the foregoing Comment on the Petition; that I have read
all the allegations therein, which are true and correct to the best of
my own knowledge.

That as respondent, I further certify that I have not commenced any

other action or proceeding involving the same issues in the
foregoing Petition in the Court of Appeals, the Supreme Court, or
different Divisions thereof, respectively, or any tribunal, or
agency; and should it be known that a similar action or proceeding
has been filed or is pending in any of the abovementioned Courts
or different Divisions thereof, the petitioner shall notify the
Honorable Court to which this certification is filed, within five (5)
days from such notice. (Underscoring ours.)

Petitioner avers that respondent by stating in the above-quoted

certification that she was the respondent, while in truth she was the
petitioner and by stating that respondent caused the preparation of the
comment on the petition, instead of the petition itself, indicate that
respondent did not understand what she was signing. The defect of the
verification all renders the petition in the Court of Appeals without legal
effect and constitutes ground for its dismissal.

The contention is baseless.

The purpose of requiring a verification is to secure an assurance that

the allegations of the petition have been made in good faith, or are true and
correct, not merely speculative. This requirement is simply a condition
affecting the form of pleadings and non-compliance therewith does not
necessarily render it fatally defective.[17] Perusal of the verification in
question shows there was sufficient compliance with the requirements of the
Rules and the alleged defects are not so material as to justify the dismissal of
the petition in the Court of Appeals. The defects are mere typographical
errors. There appears to be no intention to circumvent the need for proper
verification and certification, which are intended to assure the truthfulness
and correctness of the allegations in the petition and to discourage forum
shopping.[18]

Now, the substantial issues.

Corollary to the dismissal of the appeal by the RTC is the question of

whether the lack of notice of hearing in the Motion for Extension of Time to
file Memorandum on Appeal is fatal, such that the filing of the motion is a
worthless piece of paper.

Petitioner avers that, because of the failure of respondent to include a

Notice of Hearing in her Motion for Extension of Time to file Memorandum
on Appeal in the RTC, the latters motion is a worthless piece of paper with
no legal effect.
It is not disputed that respondent perfected her appeal on 4 April
2003 with the filing of her Notice of Appeal and payment of the required
docket fees. However, before the expiration of time to file the
Memorandum, she filed a Motion for Extension of Time seeking an
additional period of five days within which to file her Memorandum, which
motion lacked the Notice of Hearing required by Section 4, Rule 15 of the
1997 Rules of Court which provides:

SEC. 4. Hearing of Motion. - Except for motions which the court may act
upon without prejudicing the rights of the adverse party, every written
motion shall be set for hearing by the applicant.

Every written motion required to be heard and the notice of the hearing
thereof shall be served in such a manner as to ensure its receipt by the
other party at least three (3) days before the date of hearing, unless the
court for good cause sets the hearing on shorter notice.
 As may be gleaned above and as held time and again, the notice
requirement in a motion is mandatory. As a rule, a motion without a Notice
of Hearing is considered pro forma and does not affect the reglementary
period for the appeal or the filing of the requisite pleading.[19]

As a general rule, notice of motion is required where a party has a

right to resist the relief sought by the motion and principles of natural justice
demand that his right be not affected without an opportunity to be
heard.[20] The three-day notice required by law is intended not for the benefit
of the movant but to avoid surprises upon the adverse party and to give the
latter time to study and meet the arguments of the motion.[21] Principles of
natural justice demand that the right of a party should not be affected
without giving it an opportunity to be heard.[22]
The test is the presence of the opportunity to be heard, as well as to
have time to study the motion and meaningfully oppose or controvert the
grounds upon which it is based.[23] Considering the circumstances of the
present case, we believe that procedural due process was substantially
complied with.
There are, indeed, reasons which would warrant the suspension of the
Rules: (a) the existence of special or compelling circumstances, b) the merits
of the case, (c) a cause not entirely attributable to the fault or negligence of
the party favored by the suspension of rules, (d) a lack of any showing that
the review sought is merely frivolous and dilatory, and (e) the other party
will not be unjustly prejudiced thereby.[24] Elements or circumstances (c), (d)
and (e) exist in the present case.

The suspension of the Rules is warranted in this case. The motion in

question does not affect the substantive rights of petitioner as it merely seeks
to extend the period to file Memorandum. The required extension was due to
respondents counsels illness, lack of staff to do the work due to storm and
flood, compounded by the grounding of the computers. There is no claim
likewise that said motion was interposed to delay the appeal.[25] As it
appears, respondent sought extension prior to the expiration of the time to do
so and the memorandum was subsequently filed within the requested
extended period. Under the circumstances, substantial justice requires that
we go into the merits of the case to resolve the issue of who is entitled to
the possession of the land in question.

Further, it has been held that a motion for extension of time x x x is

not a litigated motion where notice to the adverse party is necessary to afford
the latter an opportunity to resist the application, but an ex
parte motion made to the court in behalf of one or the other of the parties to
the action, in the absence and usually without the knowledge of the other
party or parties. As a general rule, notice of motion is required where a party
has a right to resist the relief sought by the motion and principles of natural
justice demand that his rights be not affected without an opportunity to be
heard. It has been said that ex parte motions are frequently permissible in
procedural matters, and also in situations and under circumstances of
emergency; and an exception to a rule requiring notice is sometimes made
where notice or the resulting delay might tend to defeat the objective of the
motion.[26]

It is well to remember that this Court, in not a few cases, has

consistently held that cases shall be determined on the merits, after full
opportunity to all parties for ventilation of their causes and defense, rather
than on technicality or some procedural imperfections. In so doing, the ends
of justice would be better served.[27] Furthermore, this Court emphasized its
policy that technical rules should accede to the demands of substantial
justice because there is no vested right in technicalities. Litigations, should,
as much as possible, be decided on their merits and not on
technicality. Dismissal of appeals purely on technical grounds is frowned
upon, and the rules of procedure ought not to be applied in a very rigid,
technical sense, for they are adopted to help secure, not override, substantial
justice, and thereby defeat their very aims. As has been the constant rulings
of this Court, every party-litigant should be afforded the amplest opportunity
for the proper and just disposition of his cause, free from constraints of
technicalities.[28] Indeed, rules of procedure are mere tools designed to
expedite the resolution of cases and other matters pending in court. A strict
and rigid application of the rules that would result in technicalities that tend
to frustrate rather than promote justice must be avoided.[29]
 The visible emerging trend is to afford every party-litigant the amplest
opportunity for the proper and just determination of his cause, free from
constraints and technicalities.

Parenthetically, it must be noted also that when the appeal was

dismissed on 19 June 2003, the memorandum was already filed in court on 9
June 2003.

On the issue of immediate execution of judgment.

The applicable provision is Section 19, Rule 70 of the Rules of Court,

which reads:

SEC. 19. Immediate Execution of judgment; how to stay the same.-

If judgment is rendered against the defendant, execution shall issue
immediately upon motion, unless an appeal has been perfected and the
defendant to stay execution files a sufficient supersedeas bond, approved
by the Municipal Trial Court and executed in favor of the plaintiff to pay
the rents, damages, and costs accruing down to the time of the judgment
appealed from, and unless, during the pendency of the appeal, he deposits
with the appellate court the amount of rent due from time to time under the
contract, if any, as determined by the judgment of the Municipal Trial
Court. x x x.

To stay the immediate execution of judgment in ejectment

proceedings, Section 19 requires that the defendant-appellant must (a)
perfect his appeal, (b) file a supersedeas bond, and (c) periodically deposit
the rentals falling due during the pendency of the appeal.

As correctly observed by the Court of Appeals, execution pending

appeal was premature as respondent had already filed a supersedeas bond
and the monthly rental for the current month of the premises in question.[30]

The invocation of petitioner of the provisions of Section 21, Rule 70

of the Rules of Court, which runs:

Sec. 21. Immediate execution on appeal to Court of Appeals or

Supreme Court.- The judgment of the Regional Trial Court against the
 defendant shall be immediately executory, without prejudice to a further
appeal that may be taken therefrom.

to justify the issuance of the writ of execution pending appeal in this case is
misplaced.

A closer examination of the above-quoted provision reveals that said

provision applies to decision of the RTC rendered in its appellate
jurisdiction, affirming the decision of the MeTC. In the case at bar, the RTC
order was an order dismissing respondents appeal based on technicality. It
did not resolve substantive matters delving on the merits of the parties claim
in the ejectment case. Thus, the case brought to the Court of Appeals was the
dismissal of the appeal for failure to file the required memorandum within
the period provided by law, and not on the merits of the ejectment case.

Lastly, petitioner posited the view that the Court of Appeals justices
should have inhibited themselves because of bias and partiality for deciding
the case within eight months and for being very selective in discussing the
issues.

We reject the proposition.

Inhibition must be for just and valid causes. The mere imputation of
bias and partiality is not enough ground for judges to inhibit, especially
when the charge is without basis. This Court has to be shown acts or conduct
clearly indicative of arbitrariness or prejudice before it can brand them with
the stigma of bias and partiality.[31] This Court has invariably held that for
bias and prejudice to be considered valid reasons for the voluntary inhibition
of judges, mere suspicion is not enough. Bare allegations of their partiality
will not suffice in the absence of clear and convincing evidence to overcome
the presumption that the judge will undertake his noble role to dispense
justice according to law and evidence and without fear and favor.[32]

There is no factual support to petitioners charge of bias and partiality.

A perusal of the records of the case fails to reveal that any bias or prejudice
motivated the Court of Appeals in granting respondents petition. Neither did
this Court find any questionable or suspicious circumstances leading to the
issuance of the questioned decision, as suggested by petitioner.

The fact alone that the Court of Appeals decided the case within eight
months does not in any way indicate bias and partiality against petitioner. It
is within the constitutional mandate to decide the case within 12 months.[33]

As to petitioners allegation that the Court of Appeals was selective in

choosing what issues to resolve, it bears to stress again that a judges
appreciation or misappreciation of the sufficiency of evidence x x x adduced
by the parties, x x x, without proof of malice on the part of respondent judge,
is not sufficient to show bias and partiality.[34] We also emphasized that
repeated rulings against a litigant, no matter how erroneously, vigorously
and consistently expressed, do not amount to bias and prejudice which can
be bases for the disqualification of a judge.[35]

IN ALL, petitioner utterly failed to show that the appellate court erred
in issuing the assailed decision. On the contrary, it acted prudently in
accordance with law and jurisprudence.
WHEREFORE, the instant petition is hereby DENIED for lack of
merit. The Decision dated 17 August 2004 and the Resolution dated 10
March 2005 of the Court of Appeals in CA-G.R. SP No. 79001 are
hereby AFFIRMED. No costs.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:
 CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.

Associate Justice Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in

consultation before the case was assigned to the writer of the opinion of the
Courts Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and the Division

Chairpersons Attestation, it is hereby certified that the conclusions in the
above Decision were reached in consultation before the case was assigned to
the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice
[1]
Penned by Associate Justice Rebecca De Guia-Salvador with Associate Justices Portia Alio-
Hormachuelos and Aurora Santiago-Lagman, concurring. Rollo, pp. 231-238.
[2]
Records, Vol. I, pp. 2-4.
[3]
Id. at 275.
[4]
Id. at 283.
[5]
Id. at 298.
[6]
Id. at 321.
[7]
Id. at 343.
[8]
Id. at 345.
[9]
Id. at 349.
[10]
Id. at 387-388.
[11]
Id. at 406-407.
[12]
Rollo, pp. 108-115.
[13]
Id. at 116-121.
[14]
Id. at 122-123.
[15]
Id. at 126-129.
[16]
Id. at 10-11.
[17]
Torres v. Specialized Packaging Development Corporation, G.R. No. 149634, 6 July 2004, 433 SCRA
455, 463-464.
[18]
Pilipinas Shell Petroleum v. John Boardman Ltd. of Iloilo, Inc., G.R. No. 159831, 14 October 2005, 473
SCRA 151, 162.
[19]
Tan v. Court of Appeals, 356 Phil. 1058, 1067-1068 (1998).
[20]
Commercial Union Assurance Company Limited v. Lepanto Consolidated Mining Company, G.R. No.
L-43342, 30 October 1978, 86 SCRA 79, 96; citing Amante v. Judge Suga, 159-A Phil. 476
(1975); Pimentel v. Court of Appeals, 159-A Phil. 728 (1975).
[21]
J.M. Tuason & Co., Inc. v. Magdangal, G.R. No. L-15539, 30 January 1962, 4 SCRA 84, 86.
[22]
Gonzales v. Balikatan Kilusang Bayan sa Pananalapi, Inc., G.R. No. 150859, 28 March 2005, 454
SCRA 111, 117.
[23]
Jehan Shipping Corporation v. National Food Authority, G.R. No. 159750, 14 December 2005, 477
SCRA 781, 789.
[24]
Sanchez v. Court of Appeals, 452 Phil. 665, 674 (2003).
[25]
Records, Vol. 1, p. 321.
[26]
Amante v. Judge Suga, supra note 20 at 477.
[27]
Durban Apartments Corporation v. Catacutan, G.R. No. 167136, 14 December 2005, 477 SCRA 801,
809.
[28]
Fonseca v. Court of Appeals, G.R. No. L-36035, 30 August 1988, 165 SCRA 40, 46.
[29]
Durban Apartments Corporation v. Catacutan, supra note 27 at 809.
[30]
CA Decision, p. 7; rollo, p. 114.
[31]
Gochan v. Gochan, 446 Phil. 433, 447 (2003).
[32]
People v. Kho, G.R. No. 139381, 20 April 2001, 357 SCRA 290, 297.
[33]
Section 15, Article 8 of the 1987 Constitution. All cases or matters filed after the effectivity of this
Constitution must be decided or resolved within x x x twelve months for all lower collegiate
courts x x x.
[34]
Republic v. Evangelista, G.R. No. 156015, 11 August 2005, 466 SCRA 544, 555.
[35]
Id.