IO

Republic of the Philippines

Court of Appeals
Manila

EIGHTH DIVISION

HEIRS OF RITA GALANG, CA-G.R. CV No. 108373

Represented by REYNALDO
GALANG, ET AL., Members:
Plaintiffs-Appellees, BATO, JR., CHAIRPERSON,
CRUZ, R., &
MARTIN, JJ.
- versus -
Promulgated:

FAUSTINA R. DOMINGO, ET
18 JANUARY 2019
AL.,
Defendants-Appellants. ____________________

DECISION

MARTIN, J.:*

This is an ordinary appeal1 from the Orders dated 26 December 20132

and 6 September 20163 of the Regional Trial Court, Third Judicial Region,
Branch 83, Malolos City, Bulacan (RTC Br. 83) in Civil Case No. 841-M-
2003. The Order dated 26 December 20134 dismissed the case for failure to
prosecute for an unreasonable length of time. Appellants' Motion for
Reconsideration5 was denied in an Order dated 6 September 2016.6

This case was submitted for Decision on 8 August 2018.7

*
This case was re-assigned to the new Ponente only on 3 July 2018 pursuant to Office Order No. 299-
18-RFB dated 27 June 2018, as part of his Initial Case Load.
1
Records, Notice of Appeal dated 4 October 2016, pp. 231-232.
2
Records, Order dated 26 December 2013, p. 209.
3
Records, Order dated 6 September 2016, pp. 227-228.
4
Supra at Note 2.
5
Records, Motion for Reconsideration, pp. 214-216.
6
Supra at Note 3.
7
Rollo, p. 41.
CA-G.R. CV No. 108373 Page 2 of 8
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THE FACTS

On 12 November 2003, the Heirs of Rita Galang, represented by

Reynaldo Galang, Florentina De Belen, Ana Pagdanganan and Elsie Galang
(appellants, collectively) filed a Complaint8 for Partition alleging that a
Decision rendered on 16 January 1995 by the Regional Trial Court, Third
Judicial Region, Branch 16, Malolos, Bulacan (RTC Br. 16) in Civil Case
No. 680-M-92 made the following disposition:

“WHEREFORE, premises considered, judgment is hereby

rendered, as follows:

1. Declaring the “Pagmamana sa Labas ng Hukuman (Exh. C)

and the Tax Declaration No. 12134 (Exh. D) as null and void;

2. Ordering the Municipal Assessor of the Municipality of

Calumpit, Bulacan to CANCEL aforesaid Tax Declaration No. 12134
and to RESTORE Tax Declaration No. 4122;

3. Ordering the defendants Faustina Regalado Domingo and

Juan Santos to pay plaintiffs, jointly and severally, the sum of
P10,000.00 as compensatory damages, and the sum of P5,000.00 as
attorney's fee; plus costs.

SO ORDERED.”9 (emphasis not ours)

In the Complaint, appellants prayed for judgment ordering the

partition of a lot covered by Tax Declaration No. 4122 located at Iba Este,
Calumpit, Bulacan (subject property).

On 12 November 2008, RTC Br. 83 issued an Order10 granting a

summary judgment for the partition of the subject property, the dispositive
portion of which reads:

“WHEREFORE, finding the prayer for summary judgment to be

meritorious, the same is GRANTED.

The parties as co-owners of the subject lot are entitled to one-sixth

(1/6) share each.

Further, the parties are directed to submit a mode of partition

acceptable to all of them, and in case of failure of the parties to agree on
the partition, the court shall appoint a committee composed of three (3) to
effect the partition of the subject lot.
8
Rollo, Complaint, pp. 3-8.
9
Id, p. 4.
10
Records, pp. 81-85.
CA-G.R. CV No. 108373 Page 3 of 8
DECISION
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Furthermore, let a clarificatory hearing be set on February 3, 2009

for the purpose of determining the exact boundaries of the subject property
sought to be partitioned.

Let copies of this Order be furnished the parties and counsels by

registered mail.

SO ORDERED.”11

The RTC Br. 83 issued three separate Orders dated 28 June 2011,12 29
June 2012,13 and 28 January 201314 ordering the parties to file their Joint
Manifestation relative to the name and address of their common Geodetic
Engineer.

On 26 December 2013, the RTC Br. 83 issued an Order15 dismissing

the case for failure to prosecute for an unreasonable length of time, the
relevant portion of which reads:

“Records disclose that per court's order dated January 28, 2013, the
parties, through their respective counsels were given the last opportunity
to submit the name and address of their common Geodetic Engineer to
implement the partition as well as view and examine the subject properties
and hear the parties in accordance with the pertinent provisions of Rule 69
of the Revised Rules of Court within a period of ten (10) days from receipt
of the said order. However, despite receipt of the court's order and despite
lapse of a considerable period and even up to the present time, the
plaintiffs have not initiated any action to prosecute their case. Such
inaction on the part of the plaintiffs and their counsel could only be
construed as an apparent lack of interest to further prosecute the instant
case. Thus, the dismissal of the instant case is in order on the ground of
failure to prosecute for an unreasonable length of time pursuant to the
provision of Section 3 of Rule 17 of the 1997 Rules of Civil Procedure.

WHEREFORE, premises considered, let this case be, as it is

hereby DISMISSED without prejudice for failure to prosecute for an
unreasonable length of time.

Let copies of this order be furnished the parties and counsel by

registered mail.

SO ORDERED.”16

11
Id, p. 85.
12
Records, p. 200.
13
Records, p. 201.
14
Records, p. 208.
15
Supra at Note 2.
16
Id.
CA-G.R. CV No. 108373 Page 4 of 8
DECISION
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The RTC Br. 83 denied appellants' Motion for Reconsideration17 in its

Order18 dated 6 September 2016.

Hence, this Appeal.19

ASSIGNMENT OF ERROR

Appellants alleged that the RTC erred in dismissing the case and in
not reconsidering its dismissal.20

Appellants argue that they had been communicating with the

appellees who are actually their relatives, to effect the partition but the latter
refused to have the stone monuments placed in each of the six (6) lots.
Appellants argue that the delay could not be ascribed to them, but on the
appellees who refused to effect the partition. Finally, appellants also contend
that the RTC Br. 83 should not have dismissed their case outright when it
could have ordered the creation of a committee to effect the partition of the
subject lot.21

Appellees did not file any Appellees' Brief.22

THE COURT’S RULING

No failure to prosecute on the

part of appellants

In Laurel v. Vardeleon,23 the Supreme Court discussed the

circumstances on when a case may be dismissed for failure to prosecute:

“This Court has said that "[t]he fundamental test for non
prosequitur is whether, under the circumstances, the plaintiff is chargeable
with want of due diligence in failing to proceed with reasonable
promptitude. There must be unwillingness on the part of the plaintiff to
prosecute."

17
Supra at Note 5.
18
Supra at Note 3.
19
Supra at Note 1.
20
Rollo, Appellants' Brief, p. 29.
21
Id, p. 30.
22
Rollo, p. 41.
23
G.R. No. 202967, 5 August 2015.
CA-G.R. CV No. 108373 Page 5 of 8
DECISION
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To constitute failure to prosecute, his non-

appearance must be equated with unwillingness to proceed
with the trial as when both plaintiff and counsel made no
appearance at all, or with the assumption that plaintiff has
already lost interest in prosecuting his action, in the same
way that should the ground for dismissal be delay, this
delay or failure to proceed must be for an unreasonable
length of time beyond the reasonable allowance which by
judicial leniency a litigant is normally entitled. 28

Likewise —

While a court can dismiss a case on the ground of

non prosequitur, the real test of such power is whether,
under the circumstances, plaintiff is chargeable with want
of due diligence in failing to proceed with reasonable
promptitude. In the absence of a pattern or a scheme to
delay the disposition of the case or a wanton failure to
observe the mandatory requirement of the rules on the part
of the plaintiff, . . . courts should decide to dispense rather
than wield their authority to dismiss.

Finally, in Padua v. Hon. Ericta, the following pronouncement was

made:

. . . (T)rial courts have . . . the duty to dispose of

controversies after trial on the merits whenever possible.
It is deemed an abuse of discretion for them, on their
own motion, to enter a dismissal which is not warranted
by the circumstances of the case' (Municipality of
Dingras v. Bonoan, 85 Phil. 458-59 [1950]). While it is
true that the dismissal of an action on grounds specified
under Section 3, Rule 17 of the Revised Rules of Court is
addressed to their discretion (Flores v. Phil. Alien
Property Administrator, 107 Phil. 778 (1960]; Montelibano
v. Benares, 103 Phil. 110 [1958]; Adorable v. Bonifacio,
105 Phil. 1269 [1959]; Inter-Island Gas Service, Inc. v. De
la Gerna, L-17631, October 19, 1966, 18 SCRA 390), such
discretion must be exercised soundly with a view to the
circumstances surrounding each particular case (Vernus-
Sanciangco v. Sanciangco, L-12619, April 28, 1962, 4
SCRA 1209). If facts obtain that serve as mitigating
circumstances for the delay, the same should be considered
and dismissal denied or set aside (Rudd v. Rogerson, 15
ALR 2d 672; Cervi v. Greenwood, 147 Colo 190, 362 P. 2d
1050 [1961]), especially where the suit appears to be
meritorious and the plaintiff was not culpably negligent
and no injury results to defendant (27 C.J.S. 235-36; 15
ALR 3rd 680). (Abinales vs. Court of First Instance of
Zamboanga City, Br. I, 70 SCRA 590, 595).”(emphasis
supplied)
CA-G.R. CV No. 108373 Page 6 of 8
DECISION
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Evidently, the RTC Br. 83 erred in dismissing Civil Case No. 841-M-
2003.

It should be noted that there are two stages in every action for
partition under Rule 69 of the Rules of Court. The first stage is the
determination of whether or not a co-ownership in fact exists and a partition
is proper (i.e., not otherwise legally proscribed) and may be made by
voluntary agreement of all the parties interested in the property. The second
stage commences when it appears that the parties are unable to agree upon
the partition directed by the court. When that happens, partition shall be
done for the parties by the court with the assistance of not more than three
(3) commissioners.24

There are, thus, two ways in which a partition can take place under
Rule 69: by agreement under Section 2, and through commissioners when
such agreement cannot be reached under Sections 3 to 6.

Sections 2 and 3 of Rule 69 provide:

“SECTION 2. Order for partition, and partition by agreement thereunder.

If after the trial the court finds that the plaintiff has the right thereto, it
shall order the partition of the real estate among all the parties in interest.
Thereupon the parties may, if they are able to agree, make the partition
among themselves by proper instruments of conveyance, and the court
shall confirm the partition so agreed upon by all the parties, and such
partition, together with the order of the court confirming the same, shall be
recorded in the registry of deeds of the place in which the property is
situated. (2a)

xxx

SECTION 3. Commissioners to make partition when parties fail to agree.

If the parties are unable to agree upon the partition, the court shall appoint
not more than three (3) competent and disinterested persons as
commissioners to make the partition, commanding them to set off to the
plaintiff and to each party in interest such part and proportion of the
property as the court shall direct. (3a)” (emphasis supplied)

A careful study of the records of this case reveals that the RTC Br. 83
departed from the foregoing procedure mandated by Rule 69.

When the parties failed to elect their common geodetic engineer

despite being ordered to do so, the RTC should have ordered the
appointment of commissioners to make the partition as mandated by Section
24
Dadizon v. Bernadas, G.R. No. 172367, 5 June 2009.
 CA-G.R. CV No. 108373 Page 7 of 8
DECISION
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3, Rule 69. In partition proceedings, reference to commissioners is required

as a procedural step in the action and is not discretionary on the part of the
court.25

Thus, the RTC Br. 83 should not have dismissed the case on the
ground of failure to prosecute. Instead, it should have referred the case to the
commissioners as the parties were unable to agree on the partition. In any
case, it bears stressing that the RTC Br. 83 in its Order dated 28 January
2013, ordered the parties to submit within a period of ten (10) days from
receipt of the Order, the name and address of their common geodetic
engineer, otherwise “the court will appoint not more the (sic) three (3)
Commissioners to make partition, view and examine the subject properties
and hear the parties in accordance with the pertinent provisions of Rule 69
of the Revised Rules of Court.”

Moreover, if the Court were to sustain the RTC Br. 83's Order
dismissing the case without prejudice, the result would only prove circuitous
as appellants would have to file another case for the partition of the subject
property. Thus, it would be more judicious to grant the appeal and order the
remanding of the case back to the RTC Br. 83 for further proceedings.

WHEREFORE, the appeal is GRANTED. The Orders of the RTC

Br. 83 dated 26 December 2013 and 6 September 2016 are REVERSED
and SET ASIDE. Let this case be REMANDED to the RTC Br. 83 for
further proceedings.

SO ORDERED.

RONALDO ROBERTO B. MARTIN

Associate Justice
WE CONCUR:

RAMON M. BATO, JR. RAMON A. CRUZ

Associate Justice Associate Justice

25
Id, cting REGALADO, REMEDIAL LAW COMPENDIUM, VOL. I, 849 (2005).
CA-G.R. CV No. 108373 Page 8 of 8
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CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, 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
Court.

RAMON M. BATO, JR.

Associate Justice
CHAIRPERSON, EIGHTH DIVISION