G.R. No.

71537 September 17, 1987

EMILIO DE LA PAZ, JR., ENRIQE DE LA PAZ, MANELA DE LA PAZ, NA!I"IDAD
DE LA PAZ, MARGARI!A DE LA PAZ #$% ZENAIDA DE LA PAZ, petitioners,
vs.
&ON. IN!ERMEDIA!E APPELLA!E 'OR!, ADELAIDA S. !RINIDAD, 'ONRADO
P. SAN!OS, JR., 'ESAR P. SAN!OS, (ELI'I!AS S. DE LEON, PON'IANI!O P.
SAN!OS, SR., E"ANGELINE S. !ANSING'O, AN!ONIO P. SAN!OS, #$% JAIME P.
SAN!OS, respondents.

G!IERREZ, JR., J.:
The petitioners have lumped in one amended petition an original action for certiorari to
set aside the decision of the Regional Trial Court, Branch 71 at Antipolo, Rizal, in Civil
Case No. 16!A and a petition for revie" to nullif# the decision of the $ntermediate
Appellate Court in AC!%.R. &' No. ()7*.
The records sho" the follo"ing incidents "hich transpired prior to the filing of the instant
petition.
+n ,a# 1*, 1-./, 0oreto de la 'az filed a complaint against the petitioners "ith the
Regional Trial Court of Rizal for a 1udicial declaration of o"nership of a /,./( s2uare
meter parcel of land covered 3# +riginal Certificate of Title No. -(1 of the Register of
4eeds, Rizal in the name of 'onciano de la 'az "ith damages. The case "as doc5eted
as Civil Case No. 16!A.
0oreto alleged that the su31ect parcel of land "as among the properties ad1udicated to
her and her mother as a result of a partition su3mitted 3# the heirs of 'onciano de la
'az and approved 3# the court in Civil Case No. 1/-- of the Court of 6irst $nstance of
Rizal. The su31ect matter of Civil Case No. 1/-- "as 'onciano7s testate estate.
$n their ans"er, the petitioners denied that the disputed lot "as among the properties
ad1udicated to 0oreto and her mother. The# claimed that the parcel of land "as not
accounted for in the pro3ate proceedings 3ut is actuall# communit# propert# of the
parties.
The parties, e8cept for petitioner 9nri2ue de la 'az, "ere admittedl# compulsor# heirs
of 'onciano de la 'az "ho died in 1-16. 0oreto "as the onl# legitimate child of
'onciano "hile: 1; 9milio de la 'az, <r., is the son of 9milio, a recognized natural child
of 'onciano= *; ,anuela de la 'az is the recognized natural child of 'onciano= /;
Natividad de la 'az is the daughter of 9milio, recognized natural child of 'onciano= ;
,argarita de la 'az is the daughter of >enceslao, a recognized natural child of
'onciano= and ); ?enaida de la 'az, is the daughter of Augusto, another recognized
natural child of 'onciano. As regards petitioner 9nri2ue de la 'az, 0oreto denied his
claim that he is one of the heirs of 'onciano. The petitioners, ho"ever, allege that he is
also a compulsor# heir of 'onciano, he 3eing the son of 'onciano de la 'az, <r., the
eldest child of the decedent.
The parties failed to arrive at an amica3le settlement during pre!trial. @ence, trial on the
merits follo"ed.
0oreto too5 the "itness stand. &he finished her direct testimon# on ,arch 1*, 1--..
+n April *), 1-., the petitioners7 counsel 3egan his cross!e8amination of 0oreto. The
cross!e8amination "as, ho"ever, not completed. The petitioners7 counsel moved in
open court for the continuance of the cross!e8amination on the ground that he still had
to conduct a length# cross!e8amination. Ap. 17, Court of Appeals7 rollo;.
+n ,a# 1., 1-., 0oreto7s counsel filed a motion for Bcorrection of transcriptB due to
some errors in the transcript of stenographic notes ta5en during the direct testimon# of
0oreto. The motion "as granted.
This order granting the correction prompted the petitioners77 counsel to manifest that he
"ould not 3e a3le to underta5e the cross!e8amination of the "itness as scheduled. @e
as5ed for the postponement of the ,a# */, 1-. hearing. The trial court postponed the
trial of the case to ,a# /1, 1-. and later to <ul# ), and 11, 1-.. Ap. 16, Court of
Appeals7 rollo;
+n August 1/, 1-., trial resumed. The petitioners7 counsel, ho"ever, as5ed for still
another postponement of the cross!e8amination to give him a chance to go over the
stenographic notes. $n an order of the same date, the hearing "as again postponed. Ap.
17, Court of Appeals7 rollo;
4uring the scheduled trial on &eptem3er 1, 1-., neither the petitioners, nor their
counsel appeared despite due notice. 0oreto7s counsel, therefore, filed a motion that
she 3e allo"ed to present evidence ex parte 3efore a commissioner. The motion "as
granted and 0oreto presented additional evidence ex parte in the afternoon of the same
da#. +n this same date, she finished the presentation of her evidence and su3mitted
her case for decision.
4espite this development, the petitioners upon their motion "ere allo"ed to cross!
e8amine 0oreto.
+n the scheduled hearing set on &eptem3er 1., 1-., the petitioners7 counsel failed to
appear, and the cross!e8amination of 0oreto "as deferred for the fourth Ath; time. Ap.
17, Court of Appeals7 rollo;
6inall#, on Novem3er 7, 1-., the petitioners7 counsel resumed his repeatedl#
postponed cross!e8amination of 0oreto. The cross!e8amination "as, ho"ever, cut short
and rescheduled again on motion of the petitioners7 counsel.
Cnfortunatel#, 0oreto died on 4ecem3er 1, 1-.. An amended complaint "as filed for
the purpose of su3stituting the respondents, herein, the# 3eing the children and heirs of
0oreto.
At the resumption of the trial on <anuar# *1, 1-.), the petitioners moved ver3all# to
stri5e off the record the entire testimon# of 0oreto. The motion "as denied. A ver3al
motion for reconsideration "as li5e"ise denied.
$n vie" of the petitioners7 manifestation that the# "ill appeal the ruling the appellate
court, the trial court issued on <anuar# *, 1-.) a more detailed order den#ing the
motion to stri5e off the record 0oreto7s testimon#. Ap. 17, Court of Appeals7 rollo;.
+n 6e3ruar# 11, 1-.), the trial court issued another order allo"ing, among other things,
the private respondents to present their e8hi3its. A controvers# as to the contents of this
6e3ruar# 11, 1-.) order "ill 3e discussed later.
+n 6e3ruar# 1., 1-.), the petitioners filed a petition "ith the $ntermediate Appellate
Court to annul the lo"er court7s orders dated <anuar# *, 1-.) and 6e3ruar# 11, 1-.)
and to prohi3it the court from further proceeding in Civil Case No. 16!A. The petition
for certiorari and prohi3ition "as doc5eted as AC!%.R. &'. No. ()7*.
This petition not"ithstanding, the lo"er court continued the proceedings in Civil Case
No. 16!A. Thus, on ,arch *-, 1-.), the lo"er court promulgated a decision in Civil
Case No. 16!A declaring the private respondents, the children and heirs of 0oreto, as
the true o"ners of the su31ect parcel of land. 4amages "ere also a"arded in favor of
the private respondents. The dispositive portion of the decision reads:
$N D$9> +6 T@9 6+R9%+$N%, <C4%,9NT is here3# rendered
Aa; 4eclaring plaintiffs as the true and la"ful o"ners of the parcel of land
covered 3# +riginal Certificate of Title No. -(1 of the Register of 4eeds of
Rizal=
A3; +rdering the defendants to surrender the o"ner7s duplicate cop# of
+riginal Certificate of Title No. -(1=
Ac; 4irecting the Register of 4eeds of Rizal, 'asig Branch to cancel
+riginal Certificate of Title No. -(1 and to issue a ne" one in the names of
the plaintiffs=
Ad; +rdering the defendants 1ointl# and severall# to pa# to the plaintiffs
6ive @undred Thousand 'esos A')((,(((.((; as actual damages, 6ive
@undred Thousand 'esos A')((,(((.((; as moral damages, 6ive
@undred Thousand 'esos A')((,(((.((; as e8emplar# or corrective
damages, 6ift# Thousand 'esos A')(,(((.((; as attorne#7s fees, plus the
costs= and
Ae; 4ismissing the defendants counterclaim. App. 1/!1, rollo;
+n <une *(, 1-.), the appellate court also rendered a decision in AC!%. R. &' No.
()7*. The petition "as denied due course and dismissed. A motion for reconsideration
"as denied for lac5 of merit.
$nitiall#, the petitioners filed onl# a petition to revie" on certiorari the appellate court7s
decision and resolution respectivel#.
Cpon motion of the petitioners, "e admitted the amended petition "hich no" see5s to
annul the decision of the lo"er court in Civil Case No. 16!A aside from setting aside
the appellate court7s decision and resolution in AC!%.R. &' No. ()7*.
$n another resolution dated <anuar# *(, 1-.6, "e gave due course to the petition and
considered the respondents7 comments as ans"er.
>e first revie" the challenged decision and order of the appellate court. The petitioners
contend that the appellate committed grave a3use of discretion "hen it sanctioned the
trial court7s orders "hich denied the stri5ing out of the testimon# of original plaintiff
0oreto de la 'az from the record.
A motion to stri5e off testimon# from the record is an interlocutor# order. >ell!settled is
the rule that interlocutor# orders ma# not 3e su31ects of a petition of certiorari unless
issued in patent a3use of discretion. A&ee Dillalon, <r. v. $ntermediate Appellate Court,
1 &CRA /= Bautista v. &armiento, 1/. &CRA ).7;.
>e see no grave a3use of discretion on the part of the trial court "hen it issued the
2uestioned order. True, "e have consistentl# ruled on the nature of the right of cross!
e8amination, to "it:
The right of a part# to confront and cross!e8amine opposing "itnesses in
a 1udicial litigation, 3e it criminal or civil in nature, or in proceedings 3efore
administrative tri3unals "ith 2uasi!1udicial po"ers, is a fundamental right
"hich is part of due process. A&avor# 0uncheonette v. 0a5as ng
,anggaga"ang 'ilipino, et al., 1-7), 6* &CRA *).;.
888 888 888
The right of a part# to cross!e8amine the "itness of his adversar# in
invalua3le as it is inviola3le in civil cases, no less than the right of the
accused in criminal cases. The e8press recognition of such right of the
accused in the Constitution does not render the right thereto of parties in
civil cases less constitutionall# 3ased, for it is an indispensa3le part of the
due process guaranteed 3# the fundamental la". ... Cntil such cross!
e8amination has 3een finished, the testimon# of the "itness cannot 3e
considered as complete and ma# not, therefore, 3e allo"ed to form part of
the evidence to 3e considered 3# the court in deciding the case. ABacrach
,otor Co., $nc., v. Court of $ndustrial Relations, .6 &CRA *7 citing &avor#
0uncheonette v. 0a5as ng ,anggaga"ang 'ilipino, et al., supra, +rtigas,
<r. vs. 0ufthansa %erman Airlines, 6 &CRA 61(;
But "e have also ruled that it is not an a3solute right "hich a part# can demand at all
times. This Court has stated that:
888 888 888
the right is a personal one "hich ma# 3e "aived e8pressl# or impliedl# 3#
conduct amounting to a renunciation of the right of cross!e8amination.
Thus, "here a part# has had the opportunit# to cross!e8amine a "itness
3ut failed to avail himself of it, he necessaril# forfeits the right to cross!
e8amine and the testimon# given on direct e8amination of the "itness "ill
3e received or allo"ed to remain in the record.
The conduct of a part# "hich ma# 3e construed as an implied "aiver of
the right to cross!e8amine ma# ta5e various forms. But the common 3asic
principle underl#ing the application of the rule on implied "aiver is that the
part# "as given the opportunit# to confront and cross!e8amine an
opposing "itness 3ut failed to ta5e advantage of it for reasons attri3uta3le
to himself alone.
888 888 888
The case of the herein petitioner, &avor# 0uncheonette, easil# falls "ithin
the confines of the 1urisprudence given a3ove. 'rivate respondents
through their counsel, Att#. Amante, "ere given not only one but five
opportunities to cross!e8amine the "itness, Att#. ,ora3e, 3ut despite the
"arnings and admonitions of respondent court for Att#. Amante to conduct
the cross!e8amination or else it "ill 3e deemed "aived, and despite the
readiness, "illingness and insistence of the "itness that he 3e cross!
e8amined, said counsel 3# his repeated a3sence andEor unpreparedness
failed to do so until death sealed the "itness7 lips forever. B# such
repeated a3sence and lac5 of preparation on the part of the counsel of
private respondents, the latter lost their right to e8amine the "itness, Att#.
,ora3e, and the# alone must suffer the conse2uences. The mere fact that
the "itness died after giving his direct testimon# is no ground in itself for
e8cluding his testimon# from the record so long as the adverse part# "as
afforded an ade2uate opportunit# for cross!e8amination 3ut through fault
of his o"n failed to cross!e8amine the "itness. A&avor# 0uncheonette v.
0a5as ng ,anggaga"ang 'ilipino, supra; at pp. *6/!*67;
$n the case at 3ar, the petitioners7 failure to cross!e8amine 0oreto "as through no fault
of the respondents. As can 3e gleaned from the record, 0oreto "as availa3le for cross!
e8amination from the time she finished her direct testimon# on ,arch 1*, 1-. to
Novem3er 7, 1-., the last scheduled hearing of the case 3efore her death on
4ecem3er 1, 1-.. The petitioners not onl# 5ept on postponing the cross!e8amination
3ut at times failed to appear during scheduled hearings. The postponement of the trial
on ,a# */, 1-. to a later date duet o the correction of the stenographic notes of
0oreto7s testimon# ma# 3e 1ustified, 3ut the same cannot 3e said for the su3se2uent
posponements re2uested 3# the petitioners. The scheduled trials 3efore Novem3er 7,
1-., did not push through, 3ecause of the petitioners7 fault. $t ma# also 3e recalled that
at the scheduled hearing on &eptem3er 1, 1-. neither the petitioners nor their
counsel appeared leading to the presentation of evidence ex parte. And also during the
scheduled hearing on &eptem3er 1., 1-., "hen the petitioners "ere allo"ed to cross!
e8amine 0oreto despite the fact that the case "as alread# deemed su3mitted for
decision, the petitioners again failed to appear.
Cnder these circumstances, "e rule that the petitioners had "aived their right to cross!
e8amine 0oreto. Through their o"n fault, the# lost their right to cross!e8amine 0oreto.
@er testimon# stands.
As regards the petition to set aside the trial court7s decision, the pivotal issue hinges on
the contents of the 6e3ruar# 11, 1-.) order. The petitioners argue that 'residing <udge
Benedicto Bar3itraril# and "himsicall# changed "ithout notice to either part#, the tenor of
the order it dictated in open court, apart from in1ecting facts that did not and could not
have transpired on 6e3ruar# 11, 1-.), acts apparentl# calculated to deprive petitioners,
as in fact the# "ere deprived petitioners, as in fact the# "ere deprived of their right to
present evidence in their 3ehalf.B Ap. /., Rollo;.
According to the petitioners, the trial court issued t"o conflicting versions of the
6e3ruar# 11, 1-.) order. The order dictated in open court on 6e3ruar# 11, 1-.) states:
$n vie" of the manifestation of the counsel for the plaintiff that he is
formall# re!offering in evidence all documentar# e8hi3its and testimonial
evidence presented and it appearing that the transcript ta5en during the
e8!parte hearing is alread# availa3le and availed of 3# counsel for the
defendant, he is here3# given ten A1(; da#s from toda# to file his
o31ections after "hich this case "ill 3e deemed su3mitted for resolution. $n
vie" of the fact that he "ill appeal the order of this court den#ing his
motion to stri5e out from the record, the testimon# of the plaintiff, 0oreto
de la 'az, the presentation of the evidence of the defendants is here3#
held in a3e#ance. Ap. *-, Court of Appeals7 rollo;
"hile the signed order dated 6e3ruar# 11, 1-.) states, to "it:
$n vie" of the manifestation of the counsel for the plaintiff that he is
formall# re!offering in the evidence all documentar# e8hi3its and
testimonial evidence presented and after their admission he "ill rest his
case and it appearing that the transcript ta5en during the e8!parte hearing
has 3een long availa3le and availed of 3# counsel for the defendants, he
is here3# given ten A1(; da#s from toda# to file his o31ections thereto after
"hich action "ill 3e ta5en on the admission of said e8hi3its. The said
period having lapsed "ithout defendants7 counsel filing his comments on
the admission of the e8hi3its A to ? and the su3!mar5ed e8hi3its are
admitted in evidence for 'laintiffs, 4efendants7 counsel forth"ith
manifested that he "ill appeal to the $ntermediate Court of Appeals Asic;
the ruling of this Court den#ing his ,otion to &tri5e off from the records the
entire testimon# of 'laintiff 0oreto de la 'az "ho "as partl# cross!
e8amined alread# 3ut "ho died thus his cross e8amination could not 3e
completed. &aid counsel then refused to present evidence in 3ehalf of
defendants on the ground that he intended to appeal as alread# alluded
a3ove the +rder of this court den#ing the ,otion in 2uestion. The court
has ruled in its +rder of <anuar# *1, 1-./ that inspite of the attitude of
Counsel the trial shall proceed as scheduled.
Thus, at the hearing toda# said Counsel failed to proceed "ith the trial to
present his evidence. This case shall 3e deemed su3mitted for Resolution.
Ap. /1, Court of Appeals7 rollo;
$t is to 3e noted that in the dictated version of the 6e3ruar# 11, 1-.) order, the
petitioners "ere given ten A1(; da#s from 6e3ruar# 11, 1-.) to file their o31ections after
"hich the case "ill 3e su3mitted for resolution and that the presentation of evidence for
the petitioners "as held in a3e#ance.
@o"ever, in the other version, the case "as declared as alread# deemed su3mitted for
resolution.
$t is this second version of the 6e3ruar# 11, 1-.) order "hich the trial court used as
1ustification for its promulgation of the ,arch *-, 1-.) decision in Civil Case No. 16!A.
The record clearl# sho"s that this second version of the 6e3ruar# 11. 1-.) order "as
issued "ithout the 5no"ledge of the parties. $n fact, on ,arch 1, 1-.), the
respondents filed an urgent motion to consider the case su3mitted for decision "ith the
follo"ing allegations: 1; that in the hearing of 6e3ruar# 11, 1-.), the petitioners "ere
re2uired to su3mit their comment or o31ection to respondents7 offer of evidence and the#
"ere given ten A1(; da#s from the said date "ithin "hich to do so, and thereafter to
present their evidence= and *; that not"ithstanding the lapse of more than thirt# A/(;
da#s, the respondents have not su3mitted their comment or o31ection to petitioners7
offer of evidence much less have the# ta5e an# move to present their evidence. App.
/*(//, Court of Appeals7 rollo;. the respondents "ould not have filed this motion if the
case "as alread# deemed su3mitted for decision pursuant to the second version of the
6e3ruar# 1, 1-.) order. 6urthermore, the respondents do not re3ut these allegations.
The trial court committed a grave a3use of discretion in issuing the order dated
6e3ruar# 11, 1-.), the contents of "hich conflict "ith another order of the same date
dictated in open court during the hearing of the case on 6e3ruar# 11, 1-.).
The issuance of this second version of the 6e3ruar# 11, 1-.) order pre1udiced the
petitioners7 cause. The# "ere deprived of their right to present evidence in their 3ehalf.
Conse2uentl#, the decision of the trial court in Civil Case No. 16!A must 3e declared
null and void,
Another issue raised 3# the petitioners centers on "hether or not the trial court
committed grave a3use of discretion in rendering 1udgment in Civil Case No. 16!A
despite the pendenc# of the petition "hich sought to inhi3it it from further proceeding
"ith the case.
The appellate court did not restrain the trial court until April **, 1-.) after the petitioners
presented the certified cop# of the 6e3ruar# 11, 1-.) order. Ap. /), Court of Appeals
rollo;. The trial court did not a3use its discretion or commit reversi3le error. $t is "ithin its
sound discretion to either proceed "ith the case in the a3sence of the pra#ed!for
restraining order to refrain from acting on the case until the higher court decides the
matter elevated. to it. the circumstances of each case dictate "hat action shall 3e ta5e.
The final issue raised 3# the petitioners is "ith regard to the damages a"arded the
respondents 3# the trial court.
$n their complaint, the respondents as5ed for the follo"ing damages: 1; at least
'1)(,(((.(( as actual damages= *; '*((,(((.(( as moral damages= and /;
')(,(((.(( as attorne#7s fees plus e8emplar# damages "hich ma# 3e deemed 1ust and
e2uita3le in the premises. The trial court a"arded to the respondents the follo"ing:
')((,(((.(( as actual damages= ')((,(((.(( as moral damages= ')((,(((.(( as
e8emplar# damages= ')(,(((.(( as attorne#7s fees and costs.
The 2uestioned decision, ho"ever, is silent as to ho" the court arrived at these
damages. No"here in the decision did the trial court discuss the merit of the damages
pra#ed for 3# the petitioners. There should 3e clear factual and legal 3ases for an#
a"ard of considera3le damages. A&ee Ru3io v. Court of Appeals, 11 &CRA ..;.
>@9R96+R9, the amended petition is partl# 49N$94 in that the 2uestioned decision
and resolution of the $ntermediate Appellate Court, no" court of Appeals in AC!%. R. &'
No. ()7* are A66$R,94. The petition is %RANT94 in part. The 2uestioned decision
of the then Court of 6irst $nstance of Rizal in Civil Case No. 16!A is &9T A&$49 as null
and void. The successor Regional Trial Court is directed to conduct further proceedings
and to receive the evidence of the petitioners in Civil Case No. 16!A.
&+ +R49R94.