Header Ads

Ello vs. Court of Appeals Case Digest

The requirement under Section 11, Rule 13 is mandatory. Any violation of this Rule may be cause for the court to consider the paper as not filed. However, such discretionary power of the court must be exercised properly and reasonably, taking into account the following factors: (1) "the practicability of personal service;" (2) "the importance of the subject matter of the case or the issues involved therein;" and (3) "the prima facie merit of the pleading sought to be expunged for violation of Section 11".

* * * * * * * * 


Respondents filed with the MTCC a complaint against the petitioners for forcible entry. The MTCC dismissed the complaint for failure of the respondents to establish that they have brought the instant case within one year from entry of petitioners.

On appeal, the RTC reversed the MTCC decision and ordered the petitioners to vacate the lots and deliver the same to the respondents.

Petitioners filed with the CA a petition for review. The petition was dismissed outright on the ground that it does not contain the affidavit of service required by Section 11 of Rule 13.

Petitioners promptly filed a motion for reconsideration attaching therewith the affidavit of service executed by Gabriel M. Manasan. In their motion for reconsideration, petitioners averred that they failed to append to their petition the affidavit of service due to an excusable oversight considering the time constraint in filing the petition with voluminous annexes and that there would be a denial of substantial justice if their petition would be dismissed merely by reason of technicality. Still unconvinced, the CA denied petitioners motion for reconsideration.


Whether the Court of Appeals gravely abused its discretion when it dismissed outright petitioners’ petition for review on the sole technical ground that it does not contain the affidavit of service as required by Section 11 in relation to Section 13, Rule 13 of the 1997 Rules of Civil Procedure, as amended.


Under Section 11, Rule 13, personal service and filing is the general rule, and resort to other modes of service and filing, the exception. Henceforth, whenever personal service or filing is practicable, in light of the circumstances of time, place and person, personal service or filing is mandatory. Only when personal service or filing is not practicable may resort to other modes be had, which must then be accompanied by written explanation as to why personal service or filing was not practicable to begin with. In adjudging the plausibility of an explanation, a court shall likewise consider the importance of the subject matter of the case or the issues involved therein, and the prima facie merit of the pleading sought to be expunged for violation of Section 11.

In the present case, there is no question that petitioners violated Section 11 of Rule 13 by failing to append the affidavit of service to their petition for review filed with the CA. The SC note, though that petitioners, upon receipt of the CA’s challenged Resolution dismissing outright their petition due to such omission, promptly filed a motion for reconsideration, readily acknowledging their procedural lapse and attaching therewith the required affidavit of service. Significantly, the affidavit of service shows that the petition for review was filed with the CA thru Registered mail. This mode of filing is permitted under Section 11 Rule 13 since it is obviously impractical for petitioners and their counsel, who are all residents of Cagayan de Oro City, to personally file their petition in Manila. Clearly, the affidavit of service is a substantive compliance with the requirement under Section 11.

It bears stressing that petitioners’ procedural lapse in not appending such affidavit to their petition did not in any way thwart the laudable objective of Section 11, i.e., to quell the lawyers’ unethical practice of deliberately resorting to delays in the filing and service of pleadings, motions and other papers. Indeed, the evil sought to be prevented by the new rule is absent here. Also, there is absolutely no indication from petitioners’ omission that they demonstrated their contempt for the Rules.

Rules of procedure must be faithfully followed except only when for persuasive reasons, they may be relaxed to relieve a litigant of an injustice not commensurate with his failure to comply with the prescribed procedure," which exception is present here. (Ello vs. CA, 460 SCRA 406, G.R. No. 141255, June 21, 2005)

No comments

Powered by Blogger.