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Bersabal vs. Hon. Judge Serafin Salvador [G.R. No. L-35910. July 21, 1978]

15 Aug

Ponente: MAKASIAR, J.

FACTS:

[P]etitioner Purita Bersabal seeks to annul the orders of respondent Judge 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. The second paragraph of Section 45 of R.A. No. 296, otherwise known as the Philippine Judiciary Act of 1948, as amended by R.A. No. 6031 provides, in part, as follows:

Courts of First Instance shall decide such appealed cases on the basis of the evidence and records transmitted from the city or municipal courts: Provided, That the parties may submit memoranda and/or brief with oral argument if so requested … . (Emphasis supplied).

A decision was rendered by said Court which decision was appealed by the petitioner to the respondent Court. The respondent Judge dismissed petition on August 4, 1971 upon failure of defendant–appellant to prosecute her appeal, with costs against her. Petitioner filed her memorandum. The respondent Court denied the motion for reconsideration on October 30, 1971. Petitioner filed a motion for leave to file second motion for reconsideration which was likewise denied by the respondent court on March 15, 1972.

ISSUE:

Whether or not, in the light of the provisions of the second paragraph of Section 45 of Republic Act No. 296, as amended by R.A. No. 6031, the mere failure of an appellant to submit on time the memorandum mentioned in the same paragraph would empower the Court of First Instance to dismiss the appeal on the ground of failure to Prosecute.

HELD:

NO. The challenged orders of Respondent Judge dated August 4, 1971, October 30, 1971, and March 15, 1972 are set aside as null and void.

RATIO:

The above cited provision is clear and leaves no room for doubt. It cannot be interpreted otherwise than that the submission of memoranda is optional on the part of the parties. Being optional on the part of the parties, the latter may so choose to waive submission of the memoranda. And as a logical concomitant of the choice given to the Parties, the Court cannot dismiss the appeal of the party waiving the submission of said memorandum the appellant so chooses not to submit the memorandum, the Court of First Instance is left with no alternative but to decide the case on the basis of the evidence and records transmitted from the city or municipal courts. In other words, the Court is not empowered by law to dismiss the appeal on the mere failure of an appellant to submit his memorandum, but rather it is the Court’s mandatory duty to decide the case on the basis of the available evidence and records transmitted to it.

As a general rule, the word “may” when used in a statute is permissive only and operates to confer discretion; while the word “shall” is imperative, operating to impose a duty which may be enforced (Dizon vs. Encarnacion, L-18615, Dec. 24, 1963, 9 SCRA 714, 716-717). The implication is that the Court is left with no choice but to decide the appealed case either on the basis of the evidence and records transmitted to it, or on the basis of the latter plus memoranda and/or brief with oral argument duly submitted and/or made on request.

 
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Posted by on August 15, 2012 in Case Digests, Statutory Construction

 

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