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CONCURRING OPINION

MELO, J.:

The ponencia so ably written by Mr. Justice Jose C. Vitug readily invites concurrence. I feel constrained, however, to make several observations which I believe will clarify the conclusion arrived at in this particular case.

The questions involved in this case are backdropped by the following antecedent facts:

In a complaint filed with the Regional Trial Court of Quezon City, petitioners Gumabon, et al. sought the return of a certificate of title covering a piece of land located in Pangdara, Candaba, Pampanga from respondent Aquilino T. Larin, on the ground that they had already more than paid the repurchase price thereof under a Deed of Sale with Right to Repurchase, but that despite said payment, respondent the vendee a retro refused to hand over said certificate.

Respondent filed an answer with counterclaim, claiming that the Gumabons had not paid the repurchase price and that the right to repurchase had already prescribed. However, respondents counterclaim was dismissed, upon motion of petitioners, on the ground that the same did not have a certificate of non-forum shopping.

For failure of respondent and his counsel to submit a pre-trial brief, as well as to attend the pre-trial, petitioners were allowed by the court to present their evidence ex-parte. Respondent then filed a demurrer to evidence and moved for the dismissal of the complaint. The trial court denied the demurrer to evidence and instead gave petitioners thirty (30) days within which to submit their memorandum. Respondent filed a motion for reconsideration and also moved for the inhibition of the trial judge, The Honorable Thelma A. Ponferrada from further hearing the case. Instead of resolving the motion for reconsideration, Judge Ponferrada voluntarily inhibited herself.

The case was thereafter raffled off to Branch 82 of the Regional Trial Court of Quezon City, presided over by Judge Salvador C. Ceguera, who forthwith set the motion for reconsideration for hearing. Thereafter, Judge Ceguera issued the questioned order dismissing the complaint on the ground that the same was a real action which should have been filed with the Regional Trial Court of Pampanga where the property is located, not with the Regional Trial Court of Quezon City.

Aggrieved, petitioners now come to this Court seeking the reversal of said order.

Undisputedly, the action filed by petitioners is a real action, involving as it does the title to or possession of the Pangdara, Candaba parcel of land. Petitioners are, thus, guilty of improper venue when they filed their complaint with the Regional Trial Court of Quezon City rather than with the Regional Trial Court of Pampanga where the property is located. However, the core issue for this Courts determination remains whether or not the trial court can motu proprio dismiss the action for improper venue.

The answer is in the negative.

Section 2, Rule 9 (Effect of Pleadings) of the old Rules of Court provided that:

Sec. 2. Defenses and objections not pleaded deemed waived Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived; except the failure to state a cause of action which may be alleged in a later pleading, if one is permitted, or by motion for judgment on the pleadings, or at the trial on the merits; but in the last instance, the motion shall be disposed of as provided in Section 5, Rule 10 in the light of any evidence which may have been received. Whenever it appears that the court has no jurisdiction over the subject matter, it shall dismiss the action.

(Italics supplied)

Section 3, Rule 17 (Dismissal of Actions) of the old Rules of Court likewise provided:

Sec. 3. Failure to prosecute- If plaintiffs fail to appear at the time of the trial, or to prosecute his action for an unreasonable length of time, or to comply with these rules or any other order of the court, the action may be dismissed upon the motion of the defendant or upon the courts own motion. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise provided by the court.

(Italics supplied)

Thus, under the old rules, the only instances when the court may motu proprio dismiss a case are:

1. whenever it appears that the court has no jurisdiction over the subject matter;

2. failure of the plaintiff to appear at the time of the trial;

3. failure of the plaintiff to prosecute his action for an unreasonable length of time;

4. failure to comply with the Rules;

5. failure to comply with any other order of the court.

As pointed out in Hontiveros vs. RTC (Br. 25) Iloilo City (309 SCRA 340 [1999]):

The court cannot dismiss a case motu proprio without violating plaintiffs right to be heard, except in the following instances: if the plaintiff fails to appear at the time of the trial; if he fails to prosecute his action for an unreasonable length of time; or if he fails to comply with the rules or any order of the court; or if the court finds that it has no jurisdiction over the subject matter of the suit.

While the Revised Rules of Court were superseded on July 1, 1997 by the 1997 Rules of Civil Procedure, no radical change was effected therein regarding motu proprio dismissals by the court. Thus, Section 3, Rule 17 of the 1997 Rules of Civil Procedure now provides:

Sec. 3. Dismissal due to fault of plaintiff If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the courts own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court.

As can be seen, the 1997 rules only slightly modified failure of the plaintiff to appear at the time of trial as a ground for motu proprio dismissal by changing the same to If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief.

On the other hand, Section 1, Rule 9 of the 1997 Rules of Civil Procedure modified Section 2, Rule 9 of the old Rules by expanding the instances when the court may motu proprio dismiss the claim, as follows:

Sec. 1. Defenses and objections pleaded. Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim.

Thus, the 1997 Rules of Civil Procedure now provide that the court may motu proprio dismiss the claim when it appears from the pleadings or evidence on the record that:

1. the court has no jurisdiction over the subject matter;

2. there is another cause of action pending between the same parties for the same cause; or

3. where the action is barred by a prior judgment or by statute of limitations.

From the foregoing, it is clear that a court may not motu proprio dismiss a case for improper venue, this ground not being among those mentioned where the court is authorized to do so.

In fact, the applicable rule would be Section 1, Rule 9 of the 1997 Rules of Civil Procedure providing that defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. Furthermore, Section 6, Rule 16 of the 1997 Rules now provides that if no motion to dismiss has been filed, any of the grounds for dismissal provided in this Rule which includes the ground that venue is improperly laid (Section 1[c]) may be pleaded as an affirmative defense in the answer, and in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss has been filed. Respondent not having raised improper venue in a motion to dismiss or in his answer, he is deemed to have waived the same. Well-known is the basic legal principle that venue is waivable. Failure of any party to object to the impropriety of venue is deemed a waiver of his right to do so (Langkaan Realty Development Inc. vs. UCPB, G.R. No. 139437, December 8, 2000).

I, therefore, vote to GRANT the instant petition and to SET ASIDE the challenged order of the trial court dismissing plaintiffs complaint for improper venue.