[ G.R. No. 135986. February 15, 1999]

SPS. AURORA & AVELINO VIRAY et al. vs. CA, et al.



Quoted hereunder, for your information, is a resolution of this Court dated FEB 15, 1999.

G.R. No. 135986. (Spouses Aurora Viray and Avelino Viray, Adelina Dabu and Leonardo Timbang, vs. Court of Appeals, Carmencita Rodriguez, and all persons claiming under her.)

Assailed in this Petitioner for Certiorari and Prohibition are the resolutions of the Court of Appeals, denying the Motion to Dismiss Appeal filed by herein petitioners, the spouses Aurora Viray and Avelino Viray, Adelina Dabu, and Leonardo Timbang, and the subsequent Motion for Reconsideration, dated 03 September 1998 and 22 October 1998, respectively.

It would appear that Carmencita Rodriguez (private respondent) and Rosario-Reyes (Reyes) inherited two parcels of land, with the improvements thereon, bounded by Luisa Street and P. Noval Street in Sampaloc Manila. In 1963, the sisters terminated their co-ownership. One-half of the subject property, particularly that portion whereon a residential stood, was registered in the name of private respondent, while the other half, with a commercial building, was registered in the name of Reyes. Later, the latter sold the area allotted to her, including the commercial building thereon, to herein petitioners.

In 1980, after a resurvey of the subject property, petitioners discovered that a portion of private respondent's house was encroaching on at least 51.44 sq. m. of their property. Petitioners communicated this matter to private respondent, who admitted the encroachment and informed petitioners that she had already sought the City Engineer's permission to have the said portion of the house demolished.1 [Rollo, p. 30.]

The failure of private respondent to effect the demolition spurred the filling of a complaint for Recovery of Possession against her by petitioners with Brach 22 of the Regional Trial Court of Manila (RTC). The RTC in its 27th May 1997 decision ruled in favor of petitioners, ordering the demolition of private respondent's house to the extent that it encroached upon the property of petitioner.

Private respondent filed a Notice of Appeal with the RTC on 21 July 1997. The trial court, on even date, ordered private respondent to submit proof of payment of the appellate court docket and other fees to which she complied.

On 02 October 1997, petitioners filed with the RTC a Motion to Dismiss Appeal moored on the ground that private respondent had failed to pay the proper docket fees in contravention of the provisions of the 1997 Rules of Court. The motion was denied on 29 December 1997.

Undaunted, petitioners filed a Motion to Dismiss Appeal with the Court of Appeals which the appellate court denied. A subsequent Motion for Reconsideration was likewise denied. Hence, the instant Petition for Certiorari.

Petitioners asseverates that the Court of Appeals gravely abused its discretion in denying their Motion to Dismiss Appeal, as well as the subsequent Motion for Reconsideration, and argue that private respondent's failure to pay the proper docket fees within the required period has caused the assailed decision to lapse into finality.

Private respondent, when required to comment on the petition, averred that she was poised to pay docket fees on 01 July 1997 but the RTC clerk of court informed her that said office was not yet then accepting payments for lack of pertinent guidelines from this Court in regard to the proper implementation of Section 4, Rule 41, of the 1997 Rules of Court. It was only in September 1997 that she was able to pay the docket fees.

No grave abuse of discretion can be ascribed to the Court of Appeals in denying petitioner's Motion to Dismiss Appeal. The failure to pay docket fees within the reglementary period vests a discretionary power to dismiss an appeal which must be exercised sparingly and in accordance with the tenets of substantial justice and fair play. While the Court is not unmindful that jurisprudence enjoining strict compliance with the timely payment of appeal fees abound, the modification introduced by the 1997 Rules of Court,2 [Sec. 4, Rule 41.] however, constitutes a peculiar circumstances that behooves in this instance the relaxation of the rule on dismissal for non- payment of docket fees. Verily, the payment of appellate court docket fee is not a requirement for the protection of the prevailing party and non-compliance therewith within the reglementary period would cause no substantial prejudice to such party.3 [NAWASA vs. Sec. Of Public Works and Communications, 16 SCRA 536, 539; Favis vs. Municipality of Sabangan, 27 SCRA 92, 97; Lopez vs. Court of Appeals, 75 SCRA 401, 405-406; Panes vs. Court of Appeals, 120 SCRA 509; Margate vs. Court of Appeals, 57 SCRA 396, 401-402; San Andres vs. Court of Appeals, 212 SCRA 1, 7; Santos vs. Court of Appeals, 253 SCRA 632, 638-639.]

WHEREFORE, the instant petition is dismissed .

Very truly yours,


Clerk of Court

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