Case Digest: PURITA BERSABAL VS HON JUDGE SERFIN SALVADOR

PURITA BERSABAL VS HON JUDGE SERFIN SALVADOR

Subject: Statutory Construction

FACTS

On March 23, 1972, petitioner Purita Bersabal seeks to annul the orders of respondent Judge of August 4, 1971, October 30, 1971, and March 15, 1972 and to compel said respondent Judge to decide petitioner's perfected appeal on the basis of the evidence and records of the case submitted by the City Court of Caloocan City plus the memorandum already submitted by the petitioner and respondents.

Tan That and Ong Pin Tee filed an ejectment suit against Bersabal in Caloocan City. The rendered decision on November 25, 1970, was appealed by Bersabal. During the pendency of the appeal, the respondent court (of Hon. Salvador) issued an order which required the Clerk of Court to transmit within 15 days of receipt the transcripts of stenographic notes and for the counsels of both parties to file their respective memoranda within 30 days upon receipt. Afterwhich, the case shall be deemed submitted for decision.

Bersabal received the order on April 17, 1971. The transcript of stenographic notes not yet been submitted, Bersabal then filed on May 5, 1971, an EX-PARTE MOTION TO SUBMIT MEMORANDUM WITHIN 30 DAYS FROM RECEIPT OF NOTICE OF SUBMISSION which was granted on May 7, 1971. However, before Bersabal received the notice, Salvador issued an August 4, 1971, order stating that the defendant-appellant (Bersabal) failed top rosecute her appeal

ISSUE

WON the respondent court can dismiss the case on the mere failure of the petitioner to file her memorandum.

RULING

NO. RA 296 states that the parties may submit memoranda if requested. With the use of the word “may”, the party has an option not to submit the needed memorandum since the word is not mandatory but rather, discretionary. However, the Court pointed out that the respondent court should not dismiss the appeal due to the failure of the petitioner to submit a memorandum but dismiss the petition based on facts available to it. Thus, the Court set aside the decision of the respondent court and ordered it to decide the case base on the merits of the case.