[ G.R. No. L-6354. June 26, 1954 ] G.R. No. L-6354
[ G.R. No. L-6354. June 26, 1954 ]
EPIFANIO FARRALES, PETITIONER VS. ANTONIO FUENTECILLA, JUSTICE OF THE PEACE OF SAN NARCISO, ZAMBALES, QUIRINO DUMLAO AND JESUS AMON, EX OFICIO PROVINCIAL SHERIFF OF ZAMBALES, RESPONDENTS. D E C I S I O N
BAUTISTA ANGELO, J.:
Epifanio Farrales has come to this court by way of certiorari seeking to set aside the order issued on September 29, 1952 by respondent Justice of the Peace dissolving the preliminary mandatory injunction previously issued by him on the ground that said order is illegal it having been issued without notice and hearing.
On February 16, 1952, Epif anio Farrales, petitioner herein, filed an action for forcible entry before the Justice of the Peace Court of San Narciso, Zambales, relative to certain lands situated in barrio Paete of said municipality against Quirino Dumlao and several other persons.
On February 26, 1952, petitioner filed a motion for the issuance of a writ of preliminary mandatory injunction under article 539 of the new Civil Code, which was granted after due notice and hearing, and as a result, the sheriff placed petitioner in possession of the lands in litigation.
In the meantime, the case was heard on May 3, 6, and 8, 1952, but thereafter further proceedings were discontinued apparently for the reason that respondent Justice of the Peace seldom came to his office or ceased to act in San Narciso, Zambales. Then, suddenly, about five months after the last hearing on the main case, respondent Justice of the Peace issued an order on September 29, 1952 dissolving the preliminary injunction issued by him on March 25, 1952.
Considering that this order is illegal because it was issued ex parte or without giving petitioner an opportunity to be heard, he filed the present petition imputing grave abuse of discretion to respondent Justice of the Peace.
In his answer, respondent Justice of the Peace denies the imputation that he committed certain irregularities in the performance of his official duties and alleges that when he issued the order dissolving the preliminary injunction he merely acted in accordance with the rules of court considering the great damage that would be caused to the defendants and the fact that petitioner can be fully compensated for the damage he may suffer by the counterbond posted by the defendants.
The law governing the power of the court to dissolve a preliminary injunction is section 6, Rule 60, of the Rules of Court. This rule grants the court authority to dissolve a preliminary injunction if in its opinion its continuance may cause great damage to the defendant provided the latter posts a bond in an amount to be fixed by the court, but is silent as to the procedure to be followed in granting the relief. It does not say whether it may be granted ex parte, or only after notice and hearing. Apparently, the rule gives to the court ample discretion to act on the matter provided that in doing so the substance of the rule is observed. That such is the case is apparent in a number of cases decided by this court. Thus, it was held that “* * * At any rate, as already stated, the respondent judge was not even required to hear the parties, if the record convinced him that the writ of preliminary injunction should be dissolved. (Ong Su Han vs. Gutierrez David,[1] 43 Off. Gaz., 95). Specifically, it has been held that, in dissolving an injunction already issued the court cannot be considered as having acted without jurisdiction or with excess of jurisdiction, even if the dissolution has been made without previous notice to the adverse party, and without a hearing” (Italics ours) (Caluya vs. Ramos,[2] 45 Off. Gaz., No. 5, 2075.) And in case of Clarke vs. Phil. Ready Mix Concrete Co. Inc., et al., 88 Phil., 460, this court made a summary of the ruling on this matter:
“The issues in the present case may be briefly stated as follows:
“(1) May a writ of preliminary injunction granted by a trial court after a hearing, be dissolved upon an ex parte application by defendant?
“The question involved in the first part has already been passed upon by this court in the case of Caluya vs. Ramos, G. R. No. L-1307, 45 Off. Gaz., No. 5, p. 2075, where we said:
" ‘* * * Specifically, it has been held that, in dissolving an injunction already issued the court cannot be considered as having acted without jurisdiction or with excess of jurisdiction, even if the dissolution has been made without previous notice to the adverse party, and without a hearing.’ (Italics ours.)”
“Again in the case of Cine Ligaya vs. the Court of First Instance of Laguna, et al., 66 Phil., 659, this court held:
“* * * Nevertheless, even if a previous notice were required and even if there had been no hearing on the petition to lift or dissolve the injunction granted, it cannot be said for that reason that the court dissolving the injunction thus issued, acted without or in excess of jurisdiction. * * * The failure to send a notice or to hold a hearing as required by section 169 aforecited of Act No. 190 is not in any way jurisdictional so as to invalidate the proceedings of the court on the ground of lack or excess of jurisdiction.’
“Also in the case of Jaranillo vs. Jacinto et al., 43 Phil., 588, this court held that ‘failure to give such notice is merely an irregularity in the proceedings which do not go to the jurisdiction of the court and cannot be corrected by certiorari.’
“And, in the case of So Chu et al. vs. Nepomuceno, Judge of the Court of First Instance of Manila, 29 Phil., 208, it was held that ‘where court has jurisdiction over the person and subject matter of the action, a failure to give notice of subsequent steps in the action or proceeding is not jurisdictional and does not render an order without notice void.”
It is thus seen that notice and hearing are not necessary in order that the court may act on. a motion for dissolution of an injunction previously issued. The court can act ex parte and if it does so it cannot be deemed as having acted without or in excess of its jurisdiction. Such is the predicament of respondent Justice of the Peace. He acted substantially in accordance with the rules of court. Nor can it be said that he acted with abuse of discretion because, according to him, he dissolved the injunction after considering the great damage that would be caused to defendants and the fact that petitioner can be fully compensated for the damage he may suffer by the counter-bond posted by defendants. This appears to be substantiated by the record.
With regard to the claim of petitioner that respondents Justice of the Peace has committed certain irregularities in the performance of his official duties, aside from the fact that such imputation has been denied, we are of the opinion that this is not the place where it should be aired. The matter may be brought to the Judge of the Court of First Instance who has supervision over the Justice of the Peace or to the Secretary of Justice. (Sections 96-97, Judiciary Act of 1948.)
The petition is dismissed, without pronouncement as to costs.
Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Jugo and Reyes, J. B. L., JJ., concur.