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petitioner,
vs.
EMERITA
THIRD DIVISION.
247
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ance that the allegations of the petition have been made in good
faith, or are true and correct, not merely speculative. This
requirement is simply a condition affecting the form of pleadings
and noncompliance therewith does not necessarily render it
fatally defective. Perusal of the verification in question shows
there was sufficient compliance with the requirements of the
Rules and the alleged defects are not so material as to justify the
dismissal of the petition in the Court of Appeals. The defects are
mere typographical errors. There appears to be no intention to
circumvent the need for proper verification and certification,
which are intended to assure the truthfulness and correctness of
the allegations in the petition and to discourage forum shopping.
Same Same Motions Notice of motion is required where a
party has a right to resist the relief sought by the motion and
principles of natural justice demand that his right be not affected
without an opportunity to be heard The test is the presence of the
opportunity to be heard, as well as to have time to study the motion
and meaningfully oppose or controvert the grounds upon which it
is based.As a general rule, notice of motion is required where a
party has a right to resist the relief sought by the motion and
principles of natural justice demand that his right be not affected
without an opportunity to be heard. The threeday notice required
by law is intended not for the benefit of the movant but to avoid
surprises upon the adverse party and to give the latter time to
study and meet the arguments of the motion. Principles of natural
justice demand that the right of a party should not be affected
without giving it an opportunity to be heard. The test is the
presence of the opportunity to be heard, as well as to have time to
study the motion and meaningfully oppose or controvert the
grounds upon which it is based. Considering the circumstances of
the present case, we believe that procedural due process was
substantially complied with.
Motions It has been said that ex parte motions are frequently
permissible in procedural matters, and also in situations and
under circumstances of emergency, and an exception to a rule
requiring notice is sometimes made where notice or the resulting
delay might tend to defeat the objective of the motion.It has
been held that a motion for extension of time x x x is not a
litigated motion where notice to the adverse party is necessary to
afford the latter an opportunity to resist the application, but an ex
parte motion made to the
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tion that the judge will undertake his noble role to dispense
justice according to law and evidence and without fear and favor.
Same Same Same Same The fact alone that the Court of
Appeals decided the case within eight months does not in any way
indicate bias and partiality against a party.There is no factual
support to petitioners charge of bias and partiality. A perusal of
the records of the case fails to reveal that any bias or prejudice
motivated the Court of Appeals in granting respondents petition.
Neither did this Court find any questionable or suspicious
circumstances leading to the issuance of the questioned decision,
as suggested by petitioner. The fact alone that the Court of
Appeals decided the case within eight months does not in any way
indicate bias and partiality against petitioner. It is within the
constitutional mandate to decide the case within 12 months.
Same Same Same Same A judges appreciation or
misappreciation of the sufficiency of the evidence adduced by the
parties, without proof of malice on the part of said judge, is not
sufficient to show bias and partiality.As to petitioners
allegation that the Court of Appeals was selective in choosing
what issues to resolve, it bears to stress again that a judges
appreciation or misappreciation of the sufficiency of evidence x x x
adduced by the parties, x x x, without proof of malice on the part
of respondent judge, is not sufficient to show bias and partiality.
We also emphasized that repeated rulings against a litigant, no
matter how erroneously, vigorously and consistently expressed, do
not amount to bias and prejudice which can be bases for the
disqualification of a judge.
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CHICONAZARIO, J.:
This petition for Review on Certiorari under Rule 45 of the
Rules of1 Court seeks to nullify the Court of Appeals
Decision in CAG.R. SP No. 79001 entitled, Emerita
Zaratan v. Hon. Ramon A. Cruz, as Presiding Judge of
RTC, Quezon City, Branch 223, and Gliceria Sarmiento,
dated 17 August 2004, which reversed and set side the
Orders dated 19 June 2003 and 31 July 2003 of the
Regional Trial Court (RTC) of Quezon City in Civil Case
No. Q0349437, dismissing respondents appeal for failure
to file the memorandum within the period provided for by
law.
On 2 September 2002,2 petitioner Gliceria Sarmiento
filed an ejectment case against respondent Emerita
Zaratan, in the Metropolitan Trial Court (MeTC) of Quezon
City, Branch 36, docketed as Civil Case No. 29109.
On 31 March 2003, the MeTC rendered a decision in
favor of petitioner, the dispositive portion of which reads:
WHEREFORE, the Court finds that plaintiff has sufficiently
established her causes against the defendant and hereby order
the defendant and all persons claiming rights under her:
1. to pay plaintiff the monthly rentals of P3,500.00 for the
said premises from August 1, 2002 until defendant vacates
the premises
2. to pay plaintiff the sum of P20,000.00 plus P1,500.00 per
appearance of counsel in court,
as and for attorneys fees
3
and to pay the cost of suit.
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1
Justices
Portia
AlioHormachuelos
and
Aurora
SantiagoLagman,
Id., at p. 275.
252
252
Id., at p. 283.
Id., at p. 298.
Id., at p. 321.
253
253
xxx
_______________
Id., at p. 343.
Id., at p. 345.
Id., at p. 349.
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254
Moreover, parties and counsel should not assume that courts are
bound to grant the time they pray for. A motion that is not acted
upon in due time is deemed denied (Orosa vs. Court of Appeals,
261 SCRA 376 [1996]). Thus, defendantappellants appeal was
properly dismissed on account of her failure to file an appeal
memorandum within the fifteen (15) day period provided under
Section 7(b), Rule 40 of the 1997 Rules of Civil Procedure.
With regard to the Motion for Immediate Execution, dated
June 23, 2003, filed by plaintiffappellee, the rule is explicit that
the execution of a judgment in an ejectment case, must be sought
with the inferior court which rendered the same. The appellate
court which affirms a decision brought before it on appeal cannot
decree its execution in the guise of an execution of the affirming
decision. The only exception is when said appellate court grants
an execution pending appeal, which is not the case herein (City of
Manila vs. Court
of Appeals, 204 SCRA 362 Sy vs. Romero, 214
10
SCRA 187).
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259
Tan v. Court of Appeals, 356 Phil. 1058, 10671068 295 SCRA 755,
763 (1998).
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J.M. Tuason & Co., Inc. v. Magdangal, G.R. No. L15539, 30 January
22
260
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Sanchez v. Court of Appeals, 452 Phil. 665, 674 404 SCRA 540, 546
(2003).
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261
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29
809.
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262
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263
Gochan v. Gochan, 446 Phil. 433, 447 398 SCRA 323, 333 (2003).
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People v. Kho, G.R. No. 139381, 20 April 2001, 357 SCRA 290, 297.
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544, 555.
35
Id.
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265
SO ORDERED.
YnaresSantiago (Chairperson), AustriaMartinez
and Callejo, Sr., JJ., concur.
Petition denied, judgment and resolution affirmed.
Notes.The matter of voluntary inhibition is primarily
a matter of conscience and sound discretion on the part of
the judgeit is a subjective test the result of which the
reviewing tribunal will not disturb in the absence of any
manifest finding of arbitrariness and whimsicality.
(Gutang vs. Court of Appeals, 292 SCRA 76 [1998])
A partys mere allegation of partiality and bias without
the supporting facts is insufficient for a judge to be
required to decline from presiding over the subsequent
proceedings. (Silverio, Sr. vs. Court of Appeals, 304 SCRA
541 [1999])
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