AMENDED AND SUPPLEMENTAL PLEADINGS /---!e-library! 6.

0 Philippines Copyright 2000 by Sony Valdez---\ METROPOLITAN BANK AND TRUST COMPANY, petitioner, vs. THE PRESIDING JUDGE, REGIONAL TRIAL COURT, Manila Branch 39, RAYCOR AIRCONTROL SYSTEM, INC. and COURT OF APPEALS * , respondent.1990 September 212nd DivisionG.R. No. 89909D E C I S I ON REGALADO, J.: Before the Court for review on certiorari is the decision of respondent Court of Appeals in CA-G.R. SP No. 17341, dated July 19, 1989, 1 dismissing petitioner's original action for certiorari and mandamus which seeks to set aside the order of the trial court dated June 2, 1988, allowing the intervention suit thereinto proceed, and its order of January 11, 1989, admitting the amended complaint in intervention. The proceedings in the court below from which this appeal arose, as found by respondent Court of Appeals, are as follows: "Petitioner Metropolitan Bank and Trust Co. (Metropolitan) in whose favor a deed of chattel mortgage was executed by Good Earth Emporium, Inc. (GEE) over certain air conditioning units installed in the GEE building, filed a complaint for replevin against Uniwide Sales, Inc. (Uniwide, for brevity) and the BPI Investment Corporation and several other banks collectively called BPI-Consortium, for the recovery of the possession of the air-conditioning units or in the event they may not be recovered, for the defendants which acquired the GEE building in an auction sale, (to) be required, jointly and severally, to pay the plaintiff the unpaid obligations on the units. "Per paragraph 3.11.3 of its complaint, plaintiff Metrobank alleged that the air-conditioning units were installed on a loan of P4,900,000.00 it extended to Good Earth Emporium & Supermarket, Inc. in its building located at Rizal Avenue, Sta. Cruz, Manila, after the land and building had been foreclosed and purchased on June 3, 1983 at public auction by the defendants, except Uniwide, and in order to secure repayment of the loan, a deed of chattel mortgage was constituted over the personal properties listed in the deed which included the airconditioning units. "It also alleged in par. 3.11.2 of the complaint, that '(T)he loan proceeds were used by GEE to finance the acquisition of airconditioning equipment from Reycor (sic) Air Control System, Inc. (amounting to P4,250,000.00 and installation costs of P650,000.00) under an Agreement of Sale dated 29 June 1984' (Annex A, Petition, id., pp. 23-24). "The defendants filed their Answer, Uniwide on July 25, 1986 (Annex B, Petition, id., pp. 32-48) and the defendants (presumably the rest of the defendants), on July 14, 1986 (Annex C, Petition, id., pp. 39-49). "On July 17, 1986, Raycor Air Control Systems, Inc. filed a motion for leave to intervene alleging 'it has a direct and immediate interest on the subject matter of the litigation such that it will either gain or lose by the direct legal operation and effect of the judgment' and attached the 'Intervention Complaint' (Annex D, Petition, id., pp. 49-52). There was no opposition to the motion and the intervention complaint was admitted by the lower court per its order dated August 8, 1986. Metrobank on November 19, 1986, filed its Answer To The Intervention Complaint (Annex E, Petition, id., pp. 53-59). "On August 3, 1987, the lower court set the case for trial on the merits on September 15, 1987 but before the date of the trial, on September 7, 1987, plaintiff Metrobank and the defendants Uniwide and BPI Consortium, filed a motion for postponement of the scheduled hearing on September 15, 1987 and asked for thirty (30) days from September 15 within which to submit a compromise agreement. On March 15, 1988, plaintiff Metrobank and defendants BPI Consortium filed a joint motion to dismiss the complaint and on March 18, 1988, the lower court issued the order dismissing the complaint with prejudice (Annex D to Comment of Raycor Air Control System, Inc., Rollo, p. 108). "On April 19, 1988, private respondent filed a motion for reconsideration of the order dismissing the complaint with prejudice, claiming it was not furnished with copy of the joint motion for dismissal and that it received the order of dismissal only on April 14, 1988. On June 2, 1988, the respondent court issued the order granting the motion for reconsideration filed by the intervenor (Annex I, Petition, id., p. 67) which order is now subject of present petition for certiorari. "On August 2, 1988, private respondent filed a motion to admit amended complaint (Annex F, Intervenor's Comment, id., p. 110) and attached the Amended Intervention Complaint (Annex J, Petition, id., pp. 68-73) to the motion. To this motion, plaintiff Metrobank filed an opposition (Annex K, Petition, id., pp. 71-76) and after the intervenor had filed their Reply (Annex L, Petition, id., pp. 77-81) and the plaintiff a Rejoinder (Annex M, Petition, id., pp. 82-87), on January 11, 1989, the respondent court issued the order admitting the amended complaint in intervention (Annex N, Petition, id., p. 88). This is the other order which is subject of the petition for certiorari. "On February 9, 1989, plaintiff Metrobank filed a motion for extension for 15 days or until February 24, 1988 within which to file its answer to the amended complaint in intervention and the intervenor on February 17, 1989 filed an opposition to Metrobank's motion and at the same time moved that Metrobank be declared in default on the amended complaint in intervention. The respondent court granted Metrobank's motion and on February 18, 1989, Metrobank filed its Answer to the Amended Complaint in Intervention with Counterclaim." 2 On April 14, 1989, petitioner filed a petition for certiorari and mandamus with respondent Court of Appeals contending that the lower court committed a grave abuse of discretion amounting to lack of jurisdiction in allowing, per its order of June 2, 1988, the intervention suit to survive despite the dismissal of the main action and also in admitting, per its order of January 11, 1989, the amended complaint in intervention. 3 As earlier stated, the Court of Appeals found no merit in the petition and dismissed the same on July 19, 1989. Petitioner is now before us raising the same issues and arguments. We agree with the Court of Appeals that the lower court was innocent of any grave abuse of discretion in issuing the orders complained of.

The contention of petitioner that the order of the lower court, dated June 2, 1988, has the effect of allowing the intervention suit to prosper despite the dismissal of the main action obviously cannot be upheld. There is here no final dismissal of the main case. The aforementioned order of the lower court has the effect not only of allowing the intervention suit to proceed but also of vacating its previous order of dismissal. The reinstatement of the case in order to try and determine the claims and rights of the intervenor is proper. The joint motion of therein plaintiff and the original defendants to dismiss the case, without notice to and consent of the intervenor, has the effect of putting to rest only the respective claims of the said original parties inter se, but the same cannot in any way affect the claim of private respondent which was allowed by the court to intervene without opposition from the original parties. A resum of pertinent rulings on the matter would be in order. Intervention is defined as "a proceeding in a suit or action by which a third person is permitted by the court to make himself a party, either joining plaintiff in claiming what is sought by the complaint, or uniting with defendant in resisting the claims of plaintiff, or demanding something adversely to both of them; the act or proceeding by which a third person becomes a party in a suit pending between others; the admission, by leave of court, of a person not an original party to pending legal proceedings, by which such person becomes a party thereto for the protection of some right of interest alleged by him to be affected by such proceedings." 4 Any person who has or claims an interest in the matter in litigation, in the success of either of the parties to an action, or against both, may intervene in such action, and when he has become a party thereto it is error for the court to dismiss the action, including the intervention suit on the basis of an agreement between the original parties to the action. Any settlement made by the plaintiff and the defendant is necessarily ineffective unless the intervenor is a party to it. 5 By the very definition of "intervention," the intervenor is a party to the action as the original parties and to make his right effectual he must necessarily have the same power as the original parties, subject to the authority of the court reasonably to control the proceedings in the case. 6 Having been permitted to become a party in order to better protect his interests, an intervenor is entitled to have the issues raised between him and the original parties tried and determined. 7 He had submitted himself and his cause of action to the jurisdiction of the court and was entitled to relief as though he were himself a party in the action. 8 After the intervenor has appeared in the action, the plaintiff has no absolute right to put the intervenor out of court by the dismissal of the action. The parties to the original suit have no power to waive or otherwise annul the substantial rights of the intervenor. When an intervening petition has been filed, a plaintiff may not dismiss the action in any respect to the prejudice of the intervenor. 9 It has even been held that the simple fact that the trial court properly dismissed plaintiffs action does not require dismissal of the action of the intervenor. 10 An intervenor has the right to claim the benefit of the original suit and to prosecute it to judgment. The right cannot be defeated by dismissal of the suit by the plaintiff after the filing of the petition and notice thereof to the other parties. A person who has an interest in the subject matter of the action has the right, on his own motion, to intervene and become a party to the suit, and even after the complaint has been dismissed, may proceed to have any actual controversy established by the pleadings determined in such action. The trial court's dismissal of plaintiff's action does not require dismissal of the action of the intervenor. 11 The intervenor in a pending case is entitled to be heard like any other party. 12 A claim in intervention that seeks affirmative relief prevents a plaintiff from taking a voluntary dismissal of the main action. 13 Where a complaint in intervention was filed before plaintiff's action had been expressly dismissed, the intervenor's complaint was not subject to dismissal on the ground that no action was pending, since dismissal of plaintiff's action did not affect the rights of the intervenor or affect the dismissal of intervenor's complaint. 14 An intervenor's petition showing it to be entitled to affirmative relief will be preserved and heard regardless of the disposition of the principal action. 15 As we ruled in Camacho vs. Hon. Court of Appeals, et al., 16 the rationale whereof is clearly applicable to the present controversy "There is no question that intervention is only collateral or ancillary to the main action. Hence, it was previously ruled that the final dismissal of the principal action results in the dismissal of said ancillary action. The main action having ceased to exist, there is no pending proceeding whereon the intervention may be based. In the case at bar, however, there was no such final or complete dismissal but rather an approval of a compromise agreement which was embodied in what was specifically designated as a 'Partial Decision' affecting only the interests of herein petitioner and the defendant in said case but not those of her co-plaintiff municipality and the intervenor. The clear intent of the court below in making the partial decision is to make a reservation to determine the rights of the intervenor and, presumably, the plaintiff municipality. There may be nothing much left to be done with respect to the main case but as far as the proceedings in the trial court are concerned, the controversy therein has not been fully settled and the disposition of the case is definitely incomplete." Moreover, to require private respondent to refile another case for the settlement of its claim will result in unnecessary delay and expenses and will entail multiplicity of suits and, therefore, defeat the very purpose of intervention which is to hear and determine at the same time all conflicting claims which may be made on the subject matter in litigation, and to expedite litigation and settle in one action and by a single judgment the whole controversy among the persons involved. 17 On the propriety of the order dated January 11, 1988, admitting private respondent's amended complaint in intervention, we sustain respondent Court of Appeals in upholding the same. Incidentally, it will be recalled that petitioner was granted the opportunity to file, as it did file, its answer to the amended complaint in intervention and it even interposed a counterclaim in the process. Now, the granting of leave to file an amended pleading is a matter particularly addressed to the sound discretion of the trial court and that discretion is broad, subject only to the limitations that the amendments should not substantially change the cause of action or alter the theory of the case or that it was made to delay the action. 18 Once exercised, that discretion will not be disturbed on appeal, except in case of abuse thereof. 19 In the case at bar, a reading of the amended complaint in intervention shows that it merely supplements an incomplete allegation of the cause of action stated in the original complaint so as to submit the real matter in dispute.

Contrary to petitioner's contention, it does not substantially change intervenor's cause of action or alter the theory of the case, hence its allowance is in order. As aptly stated by the Court of Appeals: "In both the Intervention Complaint and the Amended Complaint in Intervention, the private respondent seeks the payment to it of the amount of P150,000.00 which should have been paid to it from out of the P650,000.00 which the petitioner as plaintiff in CC 863618 had referred to in pars. 3.11.2 and 3.11.3 of its complaint as cost of installation of the airconditioning units under the agreement of sale (between plaintiff Metrobank and GEE Inc). dated June 29, 1984 and so basically, the Amended Complaint In Intervention did not really detract or depart from that basic claim." 20 In determining whether a different cause of action is introduced by amendments to the complaint, what is to be ascertained is whether the defendant shall be required to answer for a liability or legal obligation wholly different from that which was stated in the original complaint. An amendment will not be considered as stating a new cause of action if the facts alleged in the amended complaint show substantially the same wrong with respect to the same transaction, or if what are alleged refer to the same matter but are more fully and differently stated, or where averments which were implied are made in expressed terms, and the subject of the controversy or the liability sought to be enforced remains the same. 21 The courts should be liberal in allowing amendments to pleadings to avoid multiplicity of suits and in order that the real controversies between the parties are presented, their rights determined and the case decided on the merits without unnecessary delay. 22 This liberality is greatest in the early stages of a lawsuit, 23 especially in this case where the amendment to the complaint in intervention was made before trial of the case thereby giving petitioner all the time allowed by law to answer and to prepare for trial. On the issue regarding the propriety of the intervention, suffice it to state that petitioner's failure to interpose a timely objection when the motion for leave to intervene was filed by private respondent bars the former from belatedly questioning the validity of the same on appeal. In any event, the trial court duly considered the circumstances and granted the motion, which order was not seasonably questioned by petitioner thus evincing its approval of the court's action. WHEREFORE, finding no reversible error, the petition is DENIED and the judgment of respondent Court of Appeals is hereby AFFIRMED. SO ORDERED. Melencio-Herrera (Chairman) and Sarmiento, JJ., concur. Paras, J., is on leave. Padilla, J., took no part. Footnotes * The Court of Appeals was impleaded as a party respondent pursuant to the resolution of the Court dated October 2, 1989.

1. Penned by Justice Cezar D. Francisco, with the concurrence of Justices Reynato A. Puno and Jorge S. Imperial. 2. Rollo, 51-53. 3. Ibid., 31-49. 4. 33 C.J. 477, cited in Garcia, etc., et al. vs. David, et al., 67 Phil. 279 (1939); Government Service Insurance System vs. Court of Appeals, et al., 169 SCRA 244 (1989). 5. Progressive Design, Inc. vs. Olson Bros. Mfg. Co., 206 N.W. 2d 832. 6. 59 Am. Jur. 2d 615. 7. Poehlmann vs. Kennedy, 48 Cal. 201. 8. Schoniger, et al. vs. Logan, et al., 166 N.W. 266. 9. Patterson vs. Pollock, et al., 84 N.E. 2d 606; Elliot vs. Luers, 6 Nev. 287. 10. Gage vs. Cameron, 212 Ill. 146; 72 N.E. 204. 11. Seil and Seil vs. Board of Supervisors of Will County, 234 N.E. 2d 826. 12. 67A C.J.S. 852. 13. Steffens vs. Rowley, 10 Cal. App. 2d 628; 52 P2d 493. 14. Muirhead vs. Johnson, 232 Minn. 408, 46 N.W. 2d; In Scott vs. Van Sant, 193 Minn. 465, 258 N.W. 817. 15. Progressive Design, Inc. vs. Olson Bros. Mfg. Co., ante. 16. G.R. No. 79564, November 24, 1989. 17. 67A C.J.S. 794. 18. Uy vs. Uy, 2 SCRA 675 (1961). 19. Torres Vda. de Nery vs. Tomacruz, 49 Phil. 913 (1927). 20. Rollo, 53. 21. Shaffer vs. Palma, et al., 22 SCRA 934 (1968). 22. Shaffer vs. Palma, et al., supra; Demaronsing vs. Tandayag, etc, et al., 58 SCRA 484 (1974). 23. Torres Vda. de Nery vs. Tomacruz, ante. ~*~ /---!e-library! 6.0 Philippines Copyright 2000 by Sony Valdez---\ [1993V292] EMILIA O'LACO and HUCO LUNA, petitioners, vs. VALENTIN CO CHO CHIT, O LAY KIA and COURT OF APPEALS, respondents.1993 Mar 311st DivisionG.R. No. 58010D E C I S I O N BELLOSILLO, J.:

History is replete with cases of erstwhile close family relations put asunder by property disputes. This is one of them. It involves halfsisters each claiming ownership over a parcel of land. While petitioner Emilia O'Laco asserts that she merely left the certificate of title covering the property with private respondent O Lay Kia for safekeeping, the latter who is the former's older sister insists that the title was in her possession because she and her husband bought the property from their conjugal funds. To be resolved therefore is the issue of whether a resulting trust was intended by them in the acquisition of the property. The trial court declared that there was no trust relation of any sort between the sisters. 1 The Court of Appeals ruled otherwise. 2 Hence, the instant petition for review on certiorari of the decision of the appellate court together with its resolution denying reconsideration. 3 It appears that on 31 May 1943, the Philippine Sugar Estate Development Company, Ltd., sold a parcel of land, Lot No. 5, Block No. 10, Plan Psu-10038, situated at Oroquieta St., Sta. Cruz, Manila, with the Deed of Absolute Sale naming Emilia O'Laco as vendee; thereafter, Transfer Certificate of Title No. 66456 was issued in her name. On 17 May 1960, private respondent-spouses Valentin Co Cho Chit and O Lay Wa learned from the newspapers that Emilia O'Laco sold the same property to the Roman Catholic Archbishop of Manila for P230,000.00, with assumption of the real estate mortgage constituted thereon. 4 On 22 June 1960, respondent-spouses Valentin Co Cho Chit and O Lay Kia sued petitioner-spouses Emilia O'Laco and Hugo Luna to recover the purchase price of the land before the then Court of First Instance of Rizal, respondent-spouses asserting that petitioner Emilia O'Laco knew that they were the real vendees of the Oroquieta property sold in 1943 by Philippine Sugar Estate Development Company, Ltd., and that the legal title thereto was merely placed in her name. They contend that Emilia O'Laco breached the trust when she sold the land to the Roman Catholic Archbishop of Manila. Meanwhile, they asked the trial court to garnish all the amounts still due and payable to petitioner-spouses arising from the sale, which was granted on 30 June 1960. 5 Petitioner-spouses deny the existence of any form of trust relation. They aver that Emilia O'Laco actually bought the property with her own money; that she left the Deed of Absolute Sale and the corresponding title with respondent-spouses merely for safekeeping; that when she asked for the return of the documents evidencing her ownership, respondent-spouses told her that these were misplaced or lost; and, that in view of the loss, she filed a petition for issuance of a new title, and on 18 August 1944 the then Court of First Instance of Manila granted her petition. On 20 September 1976, finding no trust relation between the parties, the trial court dismissed the complaint together with the counterclaim. Petitioners and respondents appealed. On 9 April 1981, the Court of Appeals set aside the decision of the trial court thus ---". . . We set aside the decision of the lower court dated September 20, 1976 and the order of January 5, 1977 and another one is hereby entered ordering the defendants-appellees to pay plaintiffs-appellants jointly and severally the sum of P230,000.00 representing the value of the property subject of the sale with assumption of mortgage to the Roman Catholic Archbishop of Manila with legal interest from the filing of the complaint until fully paid, the sum of P10,000.00 as attorney's fees, plus costs." On 7 August 1981, the Court of Appeals denied reconsideration of its decision, prompting petitioners to come to this Court for relief. Petitioners contend that the present action should have been dismissed. They argue that the complaint fails to allege that earnest efforts toward a compromise were exerted considering that the suit is between members of the same family, and no trust relation exists between them. Even assuming ex argumenti that there is such a relation, petitioners further argue, respondents are already barred by laches. We are not persuaded. Admittedly, the present action is between members of the same family since petitioner Emilia O'Laco and respondent O Lay Kia are half-sisters. Consequently, there should be an averment in the complaint that earnest efforts toward a compromise have been made, pursuant to Art. 222 of the New Civil Code, 6 or a motion to dismiss could have been filed under Sec. 1, par. (j), Rule 16, of the Rules of Court. 7 For, it is well-settled that the attempt to compromise as well as the inability to succeed is a condition precedent to the filing of a suit between members of the same family. 8 Hence, the defect in the complaint is assailable at any stage of the proceedings, even on appeal, for lack of cause of action. 9 But, plaintiff may be allowed to amend his complaint to correct the defect if the amendment does not actually confer jurisdiction on the court in which the action is filed, i.e., if the cause of action was originally within that court's jurisdiction. 10 In such case, the amendment is only to cure the perceived defect in the complaint, thus may be allowed. In the case before Us, while respondent-spouses did not formally amend their complaint, they were nonetheless allowed to introduce evidence purporting to show that earnest efforts toward a compromise had been made, that is, respondent o Lay Kia importuned Emilia O'Laco and pressed her for the transfer of the title of the Oroquieta property in the name of spouses O Lay Kia and Valentin Co Cho Chit, just before Emilia's marriage to Hugo Luna. 11 But, instead of transferring the title as requested, Emilia sold the property to the Roman Catholic Archbishop of Manila. This testimony was not objected to by petitioner-spouses. Hence, the complaint was deemed accordingly amended to conform to the evidence, 12 pursuant to Sec. 5, Rule 10 of the Rules of Court which reads ---"Sec. 5. Amendment to conform to or authorize presentation of evidence. ---- When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects, as, if they had been raised in the pleadings . . ." mphasis supplied). Indeed, if the defendant permits evidence to be introduced without objection and which supplies the necessary allegations of a defective complaint, then the evidence is deemed to have the effect of curing the defects of the complaint. 13 The insufficiency of the allegations in the complaint is deemed ipso facto rectified. 14 But the more crucial issue before Us is whether there is a trust relation between the parties in contemplation of law. We find that there is. By definition, trust relations between parties may either be express or implied. 15 Express trusts are those which are created by the direct and positive acts of the parties, by some writing or deed, or will, or by words evincing an intention to create a trust. 16 Implied trusts are those which, without being express, are deducible from the nature of the transaction as matters

of intent, or which are superinduced on the transaction by operation of law as matters of equity, independently of the particular intention of the parties. 17 Implied trusts may either be resulting or constructive trusts, both coming into being by operation of law. 18 Resulting trusts are based on the equitable doctrine that valuable consideration and not legal title determines the equitable title or interest 19 and are presumed always to have been contemplated by the parties. They arise from the nature or circumstances of the consideration involved in a transaction whereby one person thereby becomes invested with legal title but is obligated in equity to hold his legal title for the benefit of another. 20 On the other hand, constructive trusts are created by the construction of equity in order to satisfy the demands of justice 21 and prevent unjust enrichment. They arise contrary to intention against one who, by fraud, duress or abuse of confidence, obtains or holds the legal right to property which he ought not, in equity and good conscience, to hold. 22 Specific examples of resulting trusts may be found in the Civil Code, particularly Arts. 1448, 1449, 1451,1452 and 1453, 23 while constructive trusts are illustrated in Arts. 1450, 1454, 1455 and 1456. 24 Unlike express trusts concerning immovables or any interest therein which cannot be proved by parol evidence, 25 implied trusts may be established by oral evidence. 26 However, in order to establish an implied trust in real property by parol evidence, the proof should be as fully convincing as if the acts giving rise to the trust obligation were proven by an authentic document. 27 It cannot be established upon vague and inconclusive proof. 28 After a thorough review of the evidence on record, We hold that a resulting trust was indeed intended by the parties under Art. 1448 of the New Civil Code which states ---"Art. 1448. There is an implied trust when property is sold, and the legal estate is granted to one party but the price is paid by another for the purpose of having the beneficial interest of the property. The former is the trustee, while the latter is the beneficiary . . ." mphasis supplied). First. As stipulated by the parties, the document of sale, the owner's duplicate copy of the certificate of title, insurance policies, receipt of initial premium of insurance coverage and real estate tax receipts ware all in the possession of respondent spouses which they offered in evidence. As emphatically asserted by respondent O Lay Kia, the reason why these documents of ownership remained with her is that the land in question belonged to her. 29 Indeed, there can be no persuasive rationalization for the possession of these documents of ownership by respondent-spouses for seventeen (17) years after the Oroquieta property was purchased in 1943 than that of precluding its possible sale, alienation or conveyance by Emilia O'Laco, absent any machination or fraud. This continued possession of the documents, together with other corroborating evidence spread on record, strongly suggests that Emilia O'Laco merely held the Oroquieta property in trust for respondent-spouses. Second. It may be worth to mention that before buying the Oroquieta property, respondent-spouses purchased another property situated in Kusang-Loob, Sta. Cruz, Manila, where the certificate of title was placed in the name of Ambrosio O'Laco, older brother of Emilia, under similar or identical circumstances. The testimony of former counsel for respondent-spouses, then Associate Justice Antonio G. Lucero of the Court of Appeals, is enlightening ---"Q In the same conversation he told you how he would buy the property (referring to the Oroquieta property), he and his wife? "A Yes, Sir, he did. "Q What did he say? xxx xxx xxx

"A He said he and his wife has (sic) already acquired by purchase a certain property located at Kusang-Loob, Sta. Cruz, Manila. He told me he would like to place the Oroquieta Maternity Hospital in case the negotiation materialize(s) in the name of a sister of his wife (O'Laco)" mphasis supplied). 30 On the part of respondent-spouses, they explained that the reason why they did not place these Oroquieta and Kusang-Loob properties in their name was that being Chinese nationals at the time of the purchase they did not want to execute the required affidavit to the effect that they were allies of the Japanese. 31 Since O Lay Kia took care of Emilia who was still young when her mother died, 32 respondent-spouses did not hesitate to place the title of the Oroquieta property in Emilia's name. Quite significantly, respondent-spouses also instituted an action for reconveyance against Ambrosio O'Laco when the latter claimed the Kusang-Loob property as his own. A similar stipulation of facts was likewise entered, i.e., respondent-spouses had in their possession documents showing ownership of the Kusang-Loob property which they offered in evidence. In that case, the decision of the trial court, now final and executory, declared respondent-spouses as owners of the Kusang-Loob property and ordered Ambrosio O'Laco to reconvey it to them. 33 Incidentally, Ambrosio O'Laco thus charged respondent spouses Valentin Co Cho Cit and O Lay Kia before the Anti-Dummy Board, docketed as Case No. 2424, for their acquisition of the Kusang-Loob and Oroquieta properties. 34 He claimed that respondentspouses utilized his name in buying the Kusang-Loob property while that of petitioner O'Laco was used in the purchase of the Oroquieta property. In effect, there was an implied admission by Ambrosio that his sister Emilia, like him, was merely used as a dummy. However, the Anti-Dummy Board exonerated respondent-spouses since the purchases were made in 1943, or during World War II, when the Anti-Dummy Law was not enforceable. Third. The circumstances by which Emilia O'Laco obtained a new title by reason of the alleged loss of the old title then in the possession of respondent-spouses cast serious doubt on the veracity of her ownership. The petitions respectively filed by Emilia O'Laco and Ambrosio O'Laco for the Oroquieta and the Kusang-Loob properties were both granted on the same day, 18 August 1944, by the then Court of First Instance of Manila. These orders were recorded in the Primary Entry Book of the Register of Deeds of Manila at the same time, 2:35 o'clock in the afternoon of 1 September 1944, in consecutive entries, Entries Nos. 246117-18. 35 This

coincidence lends credence to the position of respondent-spouses that there was in fact a conspiracy between the siblings Ambrosio and Emilia to defraud and deprive respondents of their title to the Oroquieta and Kusang-Loob properties. Fourth. Until the sale of the Oroquieta property to the Roman Catholic Archbishop of Manila, petitioner Emilia O'Laco actually recognized the trust. Specifically, when respondent spouses learned that Emilia was getting married to Hugo, O Lay Kia asked her to have the title to the property already transferred to her and her husband Valentin, and Emilia assured her that "would be arranged (maaayos na)" after her wedding. 36 Her answer was an express recognition of the trust, otherwise, she would have refused the request outright. Petitioners never objected to this evidence; nor did they attempt to controvert it. Fifth. The trial court itself determined that "Valentin Co Cho Chit and O Lay Kia had some money with which they could buy the property." 37 In fact, Valentin was the Chief Mechanic of the Paniqui Sugar Mills, was engaged in the buy and sell business, operated a gasoline station, and owned an auto supply store as well as a ten-door apartment in Caloocan City. 38 In contrast, Emilia O'Laco failed to convince the Court that she was financially capable of purchasing the Oroquieta property. In fact, she opened a bank account only in 1946 and likewise began filing income tax returns that same year, 39 while the property in question was bought in 1943. Respondent-spouses even helped Emilia and her brothers in their expenses and livelihood. Emilia could only give a vague account on how she raised the money for the purchase of the property. Her narration of the transaction of sale abounds with "I don't know" and "I don't remember." 40 Having established a resulting trust between the parties, the next question is whether prescription has set in. As differentiated from constructive trusts, where the settled rule is that prescription may supervene, in resulting trust, the rule of imprescriptibility may apply for as long as the trustee has not repudiated the trust. 41 Once the resulting trust is repudiated, however, it is converted into a constructive trust and is subject to prescription. A resulting trust is repudiated if the following requisites concur: (a) the trustee has performed unequivocal acts of repudiation amounting to an ouster of the cestui qui trust; (b) such positive acts of repudiation have been made known to the cestui qui trust; and, (c) the evidence thereon is clear and convincing. 42 In Tale v. Court of Appeals 43 the Court categorically ruled that an action for reconveyance based on an implied or constructive trust must perforce prescribe in ten (10) years, and not otherwise, thereby modifying previous decisions holding that the prescriptive period was four (4) years. Neither the registration of the Oroquieta property in the name of petitioner Emilia O'Laco nor the issuance of a new Torrens title in 1944 in her name in lieu of the alleged loss of the original may be made the basis for the commencement of the prescriptive period. For, the issuance of the Torrens title in the name of Emilia O'Laco could not be considered adverse, much less fraudulent. Precisely, although the property was bought by respondent-spouses, the legal title was placed in the name of Emilia O'Laco. The transfer of the Torrens title in her name was only in consonance with the deed of sale in her favor. Consequently, there was no cause for any alarm on the part of respondent-spouses. As late as 1959, or just before she got married, Emilia continued to recognize the ownership of respondent-spouses over the Oroquieta property. Thus, until that point, respondent-spouses were not aware of any act of Emilia which would convey to them the idea that she was repudiating the resulting trust. The second requisite is therefore absent. Hence, prescription did not begin to run until the sale of the Oroquieta property, which was clearly an act of repudiation. But immediately after Emilia sold the Oroquieta property which is obviously a disavowal of the resulting trust, respondent-spouses instituted the present suit for breach of trust. Correspondingly, laches cannot lie against them. After all, so long as the trustee recognizes the trust, the beneficiary may rely upon the recognition, and ordinarily will not be in fault for omitting to bring an action to enforce his rights. 44 There is no running of the prescriptive period if the trustee expressly recognizes the resulting trust. 45 Since the complaint for breach of trust was filed by respondent-spouses two (2) months after acquiring knowledge of the sale, the action therefore has not yet prescribed. WHEREFORE, the Petition for Review on Certiorari is DENIED. The Decision of the Court of Appeals of 9 April 1981, which reversed the trial court, is AFFIRMED. Costs against petitioners. SO ORDERED. Cruz (Chairman), Grio-Aquino and Quiason, JJ., concur. --------------Footnotes 1. Penned by Judge Guardson R. Lood, Court of First Instance of Rizal, Br. VI, stationed in Pasig. 2. Penned by Justice Mariano A. Zosa, concurred in by Justices Venicio Escolin and Edgardo L. Paras; Annex "A", Petition; Rollo, pp. 53-72. 3. Annex "B", Petition; Rollo, pp. 73-75. 4. Record on Appeal of Defendant-Appellee, p. 15. 5. Id., pp. 12-18. 6. Art. 222. No suit shall be filed or maintained between members of the same family unless it should appear that earnest efforts toward a compromise have been made, but that the same have failed, subject to the limitations in article 2035. 7. The Family Code took effect on 4 August 1988 and does not apply to the present petition. Nonetheless, Art. 151 of the Family Code provides that suits between members of the same family must be dismissal if it is not shown that earnest efforts toward a compromise have been made. 8. Mendoza v. Court of Appeals, No. L-23102, 24 April 1967, 19 SCRA 756. 9. Id., p. 759. 10. Versoza v. Versoza, No. L-25609, 27 November 1968, 26 SCRA 78. 11. TSN, 15 January 1968, pp. 12-14. 12. Metropolitan Waterworks and Sewerage System v. Court of Appeals, No. L-54526, 26 August 1986, 143 SCRA 623. 13. Pascua v. Court of Appeals, G.R. No. 76851,19 March 1990,

14. See City of Manila v. Bucay, Nos. L-19358-60, 31 March 1964, 10 SCRA 629. 15. Art. 1441, New Civil Code. 16. Ramos v. Ramos, No. L-19872, 3 December 1974, 61 SCRA 284 citing 89 C.J.S. 722. 17. 89 C.J.S. 724. 18. Salao v. Salao, No. L-26699, 16 March 1976, 70 SCRA 65. 19. Tolle v. Sawtelle, Civ. App., 246 S.W. 2d 916. 20. 76 Am Jar 2d 429. 21. 89 C.J.S. 726-27. 22. 76 Am Jur 2d 446. 23. Art. 1448. There is an implied trust when property is sold, and the legal estate is granted to one party but the price is paid by another for the purpose of having the beneficial interest of the property. The former is the trustee, while the latter is the beneficiary. However, if the person to whom the title is conveyed is a child, legitimate or illegitimate, of the one paying the price of the sale, no trust is implied by law, it being disputably presumed that there is a gift in favor of the child. Art. 1449. There is also an implied trust when a donation is made to a person but it appears that although the legal estate is transmitted to the donee, he nevertheless is either to have no beneficial interest or only a part thereof. Art. 1451. When land passes by succession to any person and he causes the legal title to be put in the name of another, a trust is established by implication of law for the benefit of the true owner. Art. 1452. If two or more persons agree to purchase property and by common consent the legal title is taken in the name of one of them for the benefit of all, a trust is created by force of law in favor of the others in proportion to the interest of each. Art. 1453. When property is conveyed to a person in reliance upon his declared intention to hold it for, or transfer it to another or the grantor, there is an implied trust in favor of the person whose benefit is contemplated. 24. Art. 1450. If the price of a sale of property is loaned or paid by one person for the benefit of another and the conveyance is made to the lender or payor to secure the payment of the debt, a trust arises by operation of law in favor of the person to whom the money is loaned or for whom it is paid. The latter may redeem the property and compel a conveyance thereof to him. Art. 1454. If an absolute conveyance of property is made in order to secure the performance of an obligation of the grantor toward the grantee, a trust by virtue of law is established. If the fulfillment of the obligation is offered by the grantor when it becomes due, he may demand the reconveyance of the property to him. Art. 1455. When any trustee, guardian or other person holding a fiduciary relationship uses trust funds for the purchase of property and causes the conveyance to be made to him or to a third person, a trust is established by operation of law in favor of the person to whom the funds belong. Art. 1456. If property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes. 25. Art. 1443, New Civil Cede. 26. Art. 1457, id. 27. Santa Juana v. Del Rosario, 50 Phil. 110 (1927). 28. Suarez v. Tirambulo, 59 Phil. 303 (1933). 29. Motion for New Trial, p.4, citing TSN. 29 June 1967, pp. 22-25. 30. TSN, 23 April 1971, pp. 12-13. 31. TSN, 15 January 1968, pp. 4-8. 32. Motion for New Trial, p. 20, citing TSN, 29 June 1967, pp. 7-9. 33. Exhibit "S", Memorandum of Exhibits for Plaintiff. 34. Exhibit "R", id. 35. Exhibit "L", id. 36. See Note 11. 37. Decision, Court of First Instance of Pasig, p. 9; Record on Appeal, p. 270. 38. TSN, 29 September 1970, p. 50; TSN, 29 April 1975, pp. 13-15. 39. Exhibits "13" and "15", Memorandum of Exhibits for Defendants. 40. TSN, 13 October 1971, pp. 71-82. 41. Heirs of Candelaria v. Romero, 109 Phil. 500 (1960). 42. Ramos v. Ramos, supra. 43. G.R. No. 101028, 23 April 1992, 208 SCRA 266. 44. Crawley v. Crawley, 72 N.H. 241; Lufkin v. Jakeman, 188 Mass 528, 74 N.E. 933. 45. Miller v. Saxton, 75 S.C. 237, 55 S.E. 310; Kohl v. Noble, 63 Tex 432; Segura v. Segura, No. L-29320, 19 September 1988, 165 SCRA 369. ~*~ /---!e-library! 6.0 Philippines Copyright 2000 by Sony Valdez---\ PHILIPPINE BANKING CORPORATION, petitioner, vs. THE HON. INTERMEDIATE APPELLATE COURT, HON. ROQUE A. TAMAYO, Judge, Regional Trial Court, Branch CXXXII (132), National Capital Judicial Region, PENNELL COMMERCIAL CO., INC. and the SPOUSES ALFREDO and ZENAIDA GLORIA, respondents.1990 July 06En BancG.R. No. 66510D E C I S I O N PARAS, J.: In this petition for review by way of certiorari, the petitioner seeks

(a) to set aside and reverse the Decision of respondent Intermediate Appellate Court in AC-G.R. SP No. 01919, promulgated on December 15, 1983 dismissing petitioner's Petition for Certiorari and the Resolution dated January 24, 1984 denying the petitioner's Motion for Reconsideration; (b) to nullify and set aside the Orders of respondent Judge Roque A. Tamayo, dated August 12, 1983, dismissing petitioner's complaint for sum of money (Civil Case No. 4058), discharging the writ of attachment therein issued and denying the motion for reconsideration; (c) to admit petitioner's amended complaint and to proceed with the trial of Civil Case No. 4058 on the merits, to reinstate and restore the Order of Attachment and Writ of Attachment dated June 22, 1983, together with the Notice of Levy of Attachment on the real and personal properties of the herein private respondents, as contained in the Notice of Levy dated June 23, 1983. The pertinent facts that gave rise to this petition are as follows: On May 26, 1983, petitioner Philippine Banking Corporation filed a complaint against the private respondents for a sum of money with prayer for preliminary attachment, predicated allegedly on the latter's refusal and failure to pay the stipulated installments as provided for in the promissory note (Nos. 16-10418 and 16-10539) evidencing an outstanding obligation of P3,290,000.00 borrowed by the private respondent from the petitioner. This was guaranteed by a continuing Surety Agreement whereby the private respondents-spouses acted as surety for the above-mentioned loans, binding themselves jointly and solidarily with the principal, the Pennel Commercial Co., Inc. The case was docketed as Civil Case No. 4058 of the Regional Trial Court of Makati, Metro Manila, Branch 13, presided over by respondent Judge Roque A. Tamayo. On June 2, 1983, finding the verified complaint to be sufficient in form and substance and considering that the petitioner is willing to put up an attachment bond in the amount of P3,094,587.74 which is petitioner's principal claim, respondent Judge Tamayo issued an Order: ". . . let a writ of preliminary attachment be issued against the properties of defendants, not exempt from execution . . ." (Annex, F. p. 27, Rollo). On June 13, 1983, the petitioner filed an attachment bond in the aforesaid amount so that on June 21, 1983, summonses were issued to the defendants, now private respondents, which were received by the latter on June 29, 1983. By virtue of the preliminary attachment issued on June 2, 1983, the real and personal properties of private respondents were attached and the request for the corresponding annotation on their titles was served upon the Register of Deeds for Antipolo, Rizal and Marikina, Metro Manila. Also, on July 1, 1983, Notices of Levy on Execution/Attachment dated June 29, 1983 were served upon the Registrars of the Bureau of Land Transportation of San Juan & Malabon Agencies, requiring them to record in their respective books the motor vehicles mentioned in the name of the said private respondents. The Deputy Sheriff filed his Report dated July 12, 1983 stating that on June 22, 1983 and July 1, 1983, levy was made on the real and personal properties of the defendants and the summons with copy of the complaint and the Writ of Attachment were served personally upon them at their given address thru their Secretary Y.V. Borja. On July 6, 1983, the private respondents filed a Motion for Extension of Time to File Answer. On July 19, 1983, they (private respondents) filed a Motion to Discharge Attachment alleging that the said writ was issued without basis which is tantamount to lack of jurisdiction. On July 21, 1983, again private respondents filed a Motion for Another Extension of Time within which to file Answer but on July 27, 1983, instead of filing an answer as prayed for in their previous motions, filed a Motion to Dismiss on the ground that the complaint states no cause of action which motion petitioner received on July 20, 1983. On August 3, 1983, petitioner filed an Opposition to the Motion to Dismiss with a Motion to Declare Defendants in Default. On August 12, 1983, respondent Judge Tamayo issued an Order, the dispositive portion of which reads "WHEREFORE, premises considered: "1) The Motion to Declare Defendants in Default incorporated in the Opposition to the Motion to Dismiss is denied for lack of merit. "2) The Motion to Dismiss is hereby granted and this case, ordered dismissed without pronouncement as to costs. "3) Consequently, the Motion to Discharge Attachment filed by defendants is hereby granted, and the order of attachment is set aside and the Writ of Attachment issued by this Court on June 22, 1983, discharged and declared of no further force and effect. The Sheriff is ordered to return to the plaintiff all the properties levied by him in this case. The Notice of Levy of Attachment issued by the Sheriff to the Register of Deeds of Rizal is also recalled and the said Register of Deeds is hereby ordered to cancel the notice of levy on attachment on the real properties of defendant as contained in the Notice of Levy dated June 23, 1983." (p. 103, Rollo) A certified true copy of the said Order was received by petitioner on September 14, 1983. Meanwhile, on September 5, 1983, the petitioner filed an Urgent Motion to Admit Amended Complaint together with a copy of the Amended Complaint. This was opposed by the private respondents on September 8, 1983. Petitioner claims that its Motion to Admit Amended Complaint has not yet been resolved by the lower court. Likewise, petitioner filed a Motion to Reconsider the August 12, 1983 Order but the same was denied. Consequently, petitioner went to the Court of Appeals on a petition for certiorari (AC-GR SP No. 01919) challenging the validity of the August 12, 1983 Order dismissing the complaint and discharging the writ of attachment as well as the September 29, 1983 Order denying the Motion for Reconsideration, pointing out that the same were issued with grave or serious abuse of discretion. The Court of Appeals dismissed the petition ruling in part as follows:

"We resolved to deny due course to the petition. "From the facts, it is clear that the proper remedy available to the herein petitioner is ordinary appeal to this Court and not by way of the present petition for certiorari. The challenged Order of August 12, 1983, sustaining the motion to dismiss filed by the herein private respondents on the ground of lack of cause of action is a final disposition of the case insofar as the respondent Court is concerned. Since there is the remedy of appeal, this bars the filing of any petition for certiorari for the reason that one of the requisites for said remedy is that there is no appeal, nor any adequate and speedy remedy in the ordinary course of law (Sec. 1, Rule 65, Rules of Court; Silvestre v. Torres, 57 Phil. 885). "Moreover, we find that respondent Judge did not commit a grave abuse of discretion in dismissing the complaint. In the disputed order, the respondent Judge explained his reasons for dismissing the complaint, to wit: 'On the Motion to Dismiss, the ground relied upon the defendants is that the complaint states no cause of action considering that Annex C and, the promissory notes sued upon, have due dates of December 31, 1985, Annex C and December 30, 1984, Annex D. These facts were not stated in the complaint, and neither was it alleged that said notes have become due and payable by reason of defendants' default in the payment of several installments due on the notes, which fact was only mentioned in the opposition to the motion to dismiss. 'It could not, therefore, be true that defendants have failed and refused and still refuse and fail without justifiable cause to pay their obligation despite repeated demands from the plaintiff, because mere demand on defendants for the payment of obligations that are not yet due does not constitute a cause of action, there being no showing on the face of the complaint that the obligations were to be paid in installments which would make the acceleration clause on Annex D, the Continuing Surety Agreement, come into play in order to make the whole obligation due and payable even before their due dates as reflected in the promissory notes, Annexes C and D.' "From the foregoing, It cannot be gainfully said therefore that the exercise of discretion or judgment by the respondent Judge was capricious or whimsical amounting to lack of jurisdiction." (pp. 104-105, Rollo) Hence, the present recourse. Petitioner claims that there was grave abuse of discretion on the part of the lower court in dismissing the complaint and in failing to resolve its motion to admit amended complaint. Thus, resort to the extraordinary remedy of certiorari is proper. A perusal, however, of the said motion and a consideration of the stage of the proceedings during which said motion was filed yield a finding contrary to that asserted by petitioner. As a general policy, liberality in allowing amendments is greatest in the early stages of a lawsuit, decreases as it progresses, and changes at times to a strictness, amounting to a prohibition. (Torres v. Tomacruz, 49 Phil. 413, cited in Garcia Jr. v. Ranada, Jr. 166 SCRA 9) This is further restricted by the condition that the amendment should not prejudice the adverse party or place him at a disadvantage. (Shaffer v. Palma, 22 SCRA 934, also cited in Garcia, Jr. v. Ranada, supra) There is no denying that an amendment could be introduced during the pendency of a Motion to Dismiss. Petitioner's insistence on this point is not controverted. But this is not the situation obtaining in the case at bar. Records show that when petitioner filed on September 15, 1983 its Motion to Admit Amended Complaint, the original complaint sought to be amended had already been dismissed on August 12, 1983. Therefore, there was no more complaint to be amended. In other words, the original complaint no longer exists, it has lost its standing and could not be amended unless its status is restored. Moreover, an amendment at this stage of the proceeding, when the complaint had already been dismissed, the writ of attachment discharged and declared of no further force and effect will definitely work to the prejudice and disadvantage of the private respondent. It has been ruled that amendment will not be allowed when the same will prejudice the adverse party or place him at a disadvantage. (Shaffer v. Palma, supra) In this regard, We find no grave abuse of discretion on the part of the lower court in not granting and/or in failing to act on petitioner's motion to admit amended complaint. "On the issue of whether the lower court's wisdom in allowing or disallowing amendments may be the subject of a special civil action for certiorari, We held in Philippine Surety and Insurance Co. v. Jacale, et al. that where the issue or question involved affects the wisdom or legal soundness of the decision, not the jurisdiction of the court to render said decision or its validity, the same is beyond the province of a special civil action for certiorari. For it is too well-settled that the office of the writ of certiorari has been reduced to the correction of defects of jurisdiction solely and cannot legally be used for any other purpose. It is truly an extraordinary remedy and, in this jurisdiction, its use is restricted only to extraordinary cases cases in which the action of the inferior court is wholly void; where any further steps in the case would result in a waste of time and money and would produce no result whatever, where the parties, or their privies would be utterly deceived; where a final judgment or decree would be naught but a snare and delusion, deciding nothing, protecting nobody, a judicial pretension, a recorded falsehood, a standing menace." (Garcia, Jr. v. Ranada, Jr. supra) It also bears stressing that, as correctly ruled by the respondent Court of Appeals, the proper remedy available to herein petitioner from the order dismissing the complaint is appeal, not a petition for certiorari. And when the remedy of appeal is available, the extra ordinary remedy of certiorari cannot be resorted to because the availability of appeal proscribes recourse to the special civil action of certiorari. (Del Pozo v. Penaco, 167 SCRA 577, 589). Accordingly, the respondent Court of Appeals was correct in dismissing the special civil action of certiorari filed by the petitioner. WHEREFORE, the petition is hereby DENIED and the questioned decision of the Court of Appeals is AFFIRMED. SO ORDERED. Melencio-Herrera (Chairman), Padilla, Sarmiento and Regalado, JJ., concur. ~*~ /---!e-library! 6.0 Philippines Copyright 2000 by Sony Valdez---\

[1992V135] PHILIPPINE NATIONAL BANK, petitioner, vs. THE HON. TEODORO N. FLORENDO, Judge of the Court of Agrarian Relations, 12th Regional District, Branch IV, Dumaguete City; VIVIENNE B. VILORIA, SOCORRO MISA, GERMELIN ESTORCO, PABLO BENDOLO, REWEL CABUAL, BONIFACIO VALEROSO, ET. AL., respondents.1992 Feb 263rd DivisionG.R. No. 62082D E C I S I O N BIDIN, J.: This is a petition for certiorari with preliminary injunction seeking to annul and set aside the: (a) order of the respondent judge dated may 31, 1982 admitting private respondents' "First Amended Complaint" in CAR Case No. 532 entitled "Vivienne B. Viloria, et al. vs. Philippine National Bank, et al" for declaration of nullify of the foreclosure proceedings in violation of P.D. Nos. 27 and 946; (b) order dated June 3, 1982 denying PNB's opposition to the first amended complaint; and (c) order dated June 28, 1982 denying PNB's motion for reconsideration. The undisputed facts are as follow: Plaintiffs are tenants of four (4) parcels of land located in the Municipality of Mabinay, Negros Oriental, whose previous owner Ricardo Valeroso, mortgaged the same to the Philippine National Bank (PNB, for short). In 1971, said parcels of land were brought by spouses Agripino and Soledad Viloria who assumed the mortgage with PNB (Rollo, Comment, p. 90). In 1974, defendant PNB requested defendant Provincial Sheriff of Negros Oriental to foreclose the mortgage on the aforesaid parcels of land after the failure of the owners thereof to pay certain amortization and the same was sold at public auction to the defendant bank as the highest bidder (Rollo, Brief for Private Respondents, p. 147; Annex "2", p. 3). Notwithstanding the fact that said lands were already brought under the Land Reform Program of the government, the PNB caused the titles to said parcels of land transferred in its name to the prejudice of plaintiffs (Rollo, Ibid.). On September 8, 1981, plaintiffs Vivienne B. Viloria, et al. filed a complaint for "Declaration of Nullity of the Foreclosure Proceedings in Violation of P.D. Nos. 27 and 946" against the defendants PNB. et al. in the Court of Agrarian Relations, 12th Judicial District, Branch IV, Dumaguete City. On October 7, 1981, defendant PNB answered the complaint with counterclaim for damages. Plaintiffs, in turn, filed their reply to the counterclaim dated October 10, 1981. Defendant PNB then moved for leave of court to file third party complaint dated October 20, 1981, against the registered owners-mortgagors of the subject parcels of land. Plaintiffs Vivienne Viloria, et al. moved for the amendment of their complaint to implead the heirs of the deceased plaintiff-Agripino Viloria which respondent Judge admitted in an order dated February 26, 1982. On May 28, 1982, private respondents Vivienne Viloria, et al. moved to further amend their amended complaint. Notable amendment introduced in the First Amended Complaint is the inclusion of another parcel of land as subject matter thereof, described as follows: "E Transfer Certificate of Title No. 42836, a parcel of land (Lot 787-B-2-A of the subdivision plan, Psd-54375, being a portion of Lot 7887-B-2 described on plan Psd-956, L.R.C. Record No. 9465), with all improvements thereon situated at Cebu City. Bounded on NE., along line 1-2 by lot 785, Cebu Cadastre; on the SE., along line 2-3, by lot 787-A, Cebu Cadastre; on the SW., along line 3-4, by Lot 787-B-S-B of the subdivision plan; and on the NW., along line 4-1 by lots 788-A-1 and 788-A-2 of plan Psd-17436. Containing an area of TWO HUNDRED NINETY-FOUR square meters (294) more or less." Said property belongs to the spouses Agripino and Soledad Viloria and mortgaged also with PNB. It is further alleged that: "While letter "E" is the property located in Cebu City and mortgaged with defendant Bank should be considered as one and indivisible with the mortgage executed upon the four (4) parcels of land situated at Mabinay (Negros Oriental) and were put under Land Reform by virtue of the real estate mortgage executed and signed by the spouses land owner Agripino and Soledad Viloria which portion of the Real Estate Mortgage document specifically paragraph No. 2 which states "That for and in consideration of certain loans, overdrafts and other credit accommodations obtained from the mortgage, which is hereby fixed at P115,449.61 Philippine Currency, and to secure the payment of the same and those others that the mortgage may extend to the mortgagor including interest and expenses and other obligations owing by the mortgagor to the mortgagee whether direct or indirect or secondary . . ." (Rollo, Petition, p. 5). PNB opposed the admission of the aforesaid private respondents' First Amended Complaint on the grounds that there was no proper notice of hearing as required by the Uniform CAR rules of procedure, the impropriety of including TCT No. 42836 a residential land situated in Cebu City as subject matter of the complaint and the failure of private respondents to attach a copy of the real estate mortgage contract upon which the action was based (Rollo, Annex "I", pp. 37-38). In an order dated May 31, 1982, respondent Judge Florendo granted private respondents' Viloria, et al. motion and thus, admitted the First amended Complaint. Said order states among others: "Acting on the 'Motion to Amend Amended Complaint' dated may 28, 1982, filed by Ma. Corazon C. Locsin, counsel for plaintiffs, wherein the First Amended Complaint (pp. 285 to 290 inclusive) of the records was attached thereto, and it appearing that Atty. Norberto Denura, counsel for the defendant PNB, has received a copy of aforestated motion and also a copy of the First Amend Complaint thereto attached, the 'Motion To Amended Complaint' is hereby GRANTED and the First Amended Complaint is likewise hereby ADMITTED." Petitioner PNB's motion for reconsideration of the above order was denied by respondent Judge Florendo in an order dated June 28, 1981. Hence, the petition. As prayed for in the petition, a temporary restraining order was issued by this Court pursuant to its resolution dated October 25, 1982 enjoining the respondent Judge from proceeding with the hearing of the case.

The First Division of this Court resolved to give due course to the petition in the resolution of March 16, 1983. The principal issue in the instant case is whether or not the respondent Judge exceeded his jurisdiction in admitting the First Amended Complaint which adds another parcel of land not within the coverage of Operation Land Transfer pursuant to P.D. 27. The petition is impressed with merit. Upon the abolition of the Court of Agrarian Relations by BP 129 enacted on August 10, 1981 and fully implemented on February 14, 1983, jurisdiction over agrarian disputes is now vested in the appropriate Regional Court pursuant to the provisions of Sec. 19 (7) of the said law (Locsin v. Valenzuela, 173 SCRA 454 [1989]; Enrique v. Fortuna Mariculture Corporation, 158 SCRA 651 [1988]). In view of such supervening event, it is now the appropriate Branch of the Regional Trial Court of Negros Oriental that has jurisdiction over the case. Be that as it may, the same law provides that whenever a Regional Trial Court takes cognizance of agrarian cases, the special rules of procedures applicable under the present laws to such shall continue to be applied, unless amended by law or by rules of court promulgated by the Supreme Court (Sec. 24, BP 129). Coming back to the case at bar, petitioner contends that Lot No. 787-B-2-A (formerly covered by TCT No. 42836, now TCT No. 75805PNB) being a residential/commercial and non-agricultural land situated at Cebu City is not within the coverage of the Operation Land Transfer, thus not within the jurisdiction of the Court of Agrarian Relations. Jurisdiction, in general, is either one over the nature of the action, over the subject matter, over the person of the defendants or over the issue framed in the pleadings (Balais v. Balais, 159 SCRA 37 [1988]). Jurisdiction over the subject matter, on the other hand, is "conferred by law and does not depend on the consent or objection or the acts or omissions of the parties or any one of them (Republic v. Sangaland, 159 SCRA 515 [1988]). The law which conferred jurisdiction on the Court of Agrarian Relations, now transferred to the appropriate Branch of the Regional Trial Court, concerning agricultural lands, is P.D. 946 which provides, among others: "Sec. 12. Jurisdiction Over Subject Matter The Court of Agrarian Relations shall have original and exclusive jurisdiction over:

a) Cases involving the rights and obligations of persons in the cultivation and use of agricultural land . . .; b) Questions involving rights granted and obligations imposed by laws, presidential decrees, Orders, Instructions, Rules and Regulations issued and promulgated in relation to the agrarian reform program; xxx xxx xxx

e) Cases involving the sale, alienation, mortgage, foreclosure, pre-emption and redemption of tenanted agricultural land; mphasis supplied). xxx xxx xxx"

Accordingly, the Court of Agrarian Relations (now RTC sitting as an agrarian court) could only entertain disputes over lands that are the subject of agrarian cases. Corollarily, lands that are not the subject of agrarian disputes should not be brought before it as an agrarian court. It has been the legislative policy to confine to the CAR exclusive jurisdiction over agrarian cases as well as their incidents (Depositario v. Hervias, 121 SCRA 756 [1983]). The following factors indisputably established that the questioned land is beyond CAR's jurisdiction: First, private respondents' Viloria, et al. admission in their Comment dated November 19, 1982 (Rollo, pp. 90-97) that Lot No. 787-B2-A is a residential lot located at Cebu City. Second, the certification by the Agrarian Reform Team No. 215 to the effect that subject lot is not within the coverage of the Operation Land Transfer pursuant to P.D. 27 (Annex "N", Rollo, p. 54). Such "official certification can be considered as correct, if only because of the presumption of regularity that is stamped on it as an official document" (San Mauricio Mining Co. v. Ancheta, 105 SCRA 371 [1981]). Indeed, amendment to pleadings are generally favored and should be liberally construed (PNB v. CA, 159 SCRA 433 [1988]), however, where the court has no jurisdiction over the subject matter of the case (Lot 787-B-2-A being a residential lot not covered by Operation Land Transfer under PD 27), it is evident that the amendment of the complaint could not be allowed so as to confer jurisdiction upon the court over said property. It being apparent that the Court of Agrarian Relations has no jurisdiction over Lot No. 787-B-2-A aside from the fact that said court has already been abolished by BP 129, the issue as to its territorial jurisdiction has become moot and academic. The propriety of the petition for certiorari is beyond question. The order of the respondent Judge admitting the First Amended Complaint including therein said questioned Lot 787-B-2-A which is a residential lot not falling within the ambit of PD 27, hence, beyond CAR's jurisdiction, was issued in excess of jurisdiction. The term excess of jurisdiction signifies that the court, board or officer has jurisdiction over a case but oversteps such jurisdiction while acting thereon (Alhambra Cigar and Cigarette Manufacturing Co., Inc. v. Caleda, et al., 122 Phil. 355 [1965]). Verily, the writ of certiorari is granted "to keep an inferior court within the bounds of its jurisdiction . . . ." (Aguilar v. Tan, 31 SCRA 205 [1970]. It is the proper remedy "where it clearly appears that the trial court is proceeding in excess or outside of its jurisdiction . . ." (Baloria v. Abalos, 32 SCRA 368 [1970]; Time, Inc. Reyes, 39 SCRA 303 [1971]; Ablan, Sr. v. Madarang, 41 SCRA 213 [1971]). Since the "office of the writ of certiorari has been reduced to the correction of defects of jurisdiction solely and cannot be legally used for any other purpose" (Albert

v. CFI of Manila, Br. VI, 23 SCRA 948 [1968]), said remedy is available in the instant case to keep the trial court from proceeding in the case in excess of its jurisdiction. The private respondents Viloria, et al.'s contention that the petition for certiorari is premature since the order of the respondent judge could have simply been assigned as an error in the appeal by the petitioner in case of adverse judgment is not persuasive. Even when appeal is available and is the proper remedy, this court has allowed a writ of certiorari when the orders of the lower court were issued either in excess of or without jurisdiction (Aguilar v. Tan, supra). WHEREFORE, the petition for certiorari is GRANTED and the orders dated May 31, June 28, 1982 are hereby ANNULLED and SET ASIDE. The trial of CAR Case No. 532 on the merits is hereby ordered to be conducted in the appropriate Branch of the Regional Trial Court of Negros Oriental in view of the abolition of the Court of Agrarian Relations by BP 129 and the temporary restraining order issued by this Court dated October 25, 1982 enjoining the hearing of CAR Case No. 532 with respect to Lot No. 787-B-2-A (formerly covered by T.C.T. No. 43836 covering a parcel of land situated in Cebu City) is made PERMANENT. SO ORDERED. Gutierrez, Jr., Feliciano, Davide, Jr. and Romero, JJ., concur. \---!e-library! 6.0 Philippines Copyright 2000 by Sony Valdez---/ ([1992V135] PHILIPPINE NATIONAL BANK, petitioner, vs. THE HON. TEODORO N. FLORENDO, Judge of the Court of Agrarian Relations, 12th Regional District, Branch IV, Dumaguete City; VIVIENNE B. VILORIA, SOCORRO MISA, GERMELIN ESTORCO, PABLO BENDOLO, REWEL CABUAL, BONIFACIO VALEROSO, ET. AL., respondents., G.R. No. 62082, 1992 Feb 26, 3rd Division)

~*~ /---!e-library! 6.0 Philippines Copyright 2000 by Sony Valdez---\ SHOEMART, INC., petitioner, vs. THE HONORABLE COURT OF APPEALS and ANSON EMPORIUM CORPORATION, respondents.1990 October 013rd DivisionG.R. No. 86956D E C I S I O N BIDIN, J.: This is a petition for review on certiorari of the decision * of the Court of Appeals promulgated on November 2, 1988 in CA-GR SP No. 13346, reinstating with modification the decision ** of the Regional Trial Court of Makati, Branch 61, in Civil Case No. 14163 entitled Shoemart, Inc. v. Anson Emporium Corporation. The facts, as found by respondent court, are as follows: "On August 1, 1971, Anson Emporium Corporation (Anson) leased from Shoemart, Inc. (Shoemart) a portion of the building known as the Makati Arcade consisting of 374 square meters of store area at its ground floor and 678 square meters at its second floor, for a period of two (2) years starting said date at a monthly rental of P18,842.00. It was stipulated in the lease that "after termination of the lease for any reason whatsoever, if the Owner shall permit the tenant to remain in possession of the leased premises, it is expressly understood and agreed that the lease shall be on a month to month basis in the absence of a written agreement to the contrary." "Anson remained in possession after the two year period but on an increased rental of P34,622.00. Four years later, or on August 1, 1977, Shoemart terminated the month to month lease and gave notice to Anson to vacate not later than August 31, 1977. Notwithstanding the notice and demand, Anson continued to stay on, thus the complaint for ejectment filed with the then Municipal Court of Makati, Civil Case No. 16896. "In its answer, Anson raised the defenses that (1) the lease did not express the true intention and real agreement of the parties, the true one being that its stay was guaranteed by Shoemart for a maximum period of twenty-four (24) years and (2) assuming that the lease had expired, it still cannot be ejected until a longer term is fixed in accordance with Article 1673 in relation to Article 1687 of the Civil Code. "After proceedings (sic) were on their way, Shoemart asked for and was granted leave to file supplemental complaint which alleged that the rental of all the tenants of the premises had been increased effective January 1, 1979 to P45,142.00 which Anson refused to pay. The supplemental complaint became an issue in a petition for certiorari in the Court of First Instance of Rizal which upheld the admission, then in the Intermediate Appellate Court which sustained the Court of First Instance and finally in the Supreme Court where the matter was laid to rest with the High Court giving the final imprimatur to the admission. "In its answer to the supplemental complaint, Anson raised the defenses that Shoemart's claim for increased rentals has been barred by estoppel, novation, statute of frauds/limitations, condonation, release and/or laches and in any event, the increase was inequitable, unconscionable and arbitrary. "The trial court ruled for Anson and dismissed the complaint in a decision dated January 2, 1987. The decision was appealed to the Regional Trial Court of Makati as Civil Case No. 16530, where respondent Judge entered a judgment of reversal (dated October 2, 1987) with this dispositive tenor 'WHEREFORE, premises above considered, the decision of the Metropolitan Trial Court of January 2, 1987 dismissing the case is hereby REVERSED AND SET ASIDE in this appeal and a new judgment in its stead is hereby rendered for plaintiff/appellant SHOEMART as against defendant appellee ANSON, which is hereby ORDERED, as follows:

'1. To vacate the premises situated at the 1st and 2nd Floors (Store No. 12, 13, 14 and 15) MAKATI ARCADE, Makati, Metro Manila together with all persons claiming rights under it and to turn over its possession to plaintiff-appellant SHOEMART; '2. To pay SHOEMART damages in the form of reasonable compensation for the use and occupation of the subject premises during the period of unlawful detainer in the amount of P34,622.00 a month from September 1, 1977 up to and including December 31, 1978; and then the amount of P45,142.00 a month from January 1, 1979 until defendant/appellee ANSON finally vacates the subject premises and turn over its possession to plaintiff/appellant SHOEMART; the amount of damages shall bear interest at the rate of one percent (1%) a month starting October 1, 1977 until fully paid; '3. To reimburse to SHOEMART the amount of P313,493.25 representing cost of electricity as of March 1986 and such amount representing electricity consumed by ANSON computed monthly as based on electrical billings from April 1986 and every month thereafter up to the time ANSON finally vacates the subject premises; '4. To pay the amount of P5,000.00 for and as attorney's fees; and '5. To pay the costs of the proceedings.'" (Rollo, pp. 35-37) Petitioner filed a motion for reconsideration on the ground that the amount of damages awarded in the form of reasonable compensation for the use and occupation of the subject premises is less than what is really due. Private respondent likewise filed its motion for reconsideration seeking the affirmance of the court a quo's appealed decision. On November 10, 1987, the Regional Trial Court issued an Order denying private respondent's motion for reconsideration but petitioner's motion was granted and the decision dated October 2, 1987 was amended to read as follows: "xxx xxx xxx

"the award of damages in No. 2 of the dispositive portion of the Decision of October 2, 1987 is hereby adjusted accordingly to include the computation of increases from 1980 to 1985 and should read as follows: '2. To pay SHOEMART damages in the form of reasonable compensation for the use and occupation of the subject premises during the period of unlawful detainer, minus payments made by ANSON, as follows: 'For the period from September 1, 1977 to December 1978 covering 16 months at the rate of P34,622.00 per month; 'For the period from January, 1979 to September, 1980 covering 11 months at the rate of P45,142.00 per month; 'For the period from October, 1980 to February 15, 1983 covering 18 months and 15 days at the rate of P59,402 per month; 'For the period from February 16, 1983 to February 28, 1985 covering 24 months and 15 days at the rate of P74,340.00 per month; 'For the period from March, 1985 to present November, 1987 covering 33 months at the rate of P99,120 per month. and the sum of P99,120 a month starting December, 1987 until defendant fully vacates the premises. "It is understood that the above amount shall bear interest at the rate of one (1%) percent a month starting October 1, 1977 until fully paid." (Rollo, pp. 134-135) On appeal, respondent court issued the assailed judgment dated November 2, 1988, which while affirming the ejectment of private respondent from the premises, reduced the amount of damages awarded as reasonable compensation for the use and occupation of the premises. The decretal portion of the said decision reads: "IN VIEW OF THE FOREGOING CONSIDERATIONS, the decision dated October 2, 1987 is reinstated except for the portion (1) awarding SHOEMART interests of one (1 %) percent a month starting October 1, 1987 and (2) awarding SHOEMART for reimbursement for cost of electricity, REVERSING and SETTING ASIDE in the process the order dated November 10, 1987 insofar as it increased the award for reasonable compensation for the use and occupation of the premises, insofar as it awarded interest and insofar as items therein that are inconsistent with this decision." (Rollo, p. 46) Both parties filed their respective motions for reconsideration. Private respondent sought the correction of the clerical error regarding date of the effectivity of the one (1%) percent interest from October 1, 1987, to October 1, 1977. Said motion was granted by respondent court. Petitioner's motion for reconsideration seeking the reinstatement of the Regional Trial Court's decision dated November 10, 1987 was denied. Hence, this instant petition. Petitioner assigns the following errors: "1. THE HONORABLE COURT OF APPEALS ERRED AS A MATTER OF LAW IN LIMITING ANSON TO PAY ONLY THE SUM OF P45,142.00 MONTHLY STARTING JANUARY 1, 1979 UNTIL IT VACATES THE PREMISES DESPITE THE FACT THAT THERE WERE FOUR (4) RENTAL INCREASES EFFECTED ON THE SUBJECT PREMISES DURING THE UNLAWFUL DETAINER PERIOD AND DURING PENDENCY OF THE INSTANT CASE WHICH INCREASES WERE PROVEN DURING THE TRIAL. "2. THE HONORABLE COURT OF APPEALS ERRED IN AS A MATTER OF LAW IN ELIMINATING THE ONE (1%) PERCENT INTEREST ON THE UNPAID DAMAGES EFFECTIVE OCTOBER 1, 1977. "3. THE HONORABLE COURT OF APPEALS ERRED AS A MATTER OF LAW IN ELIMINATING THE AWARD FOR REIMBURSEMENT FOR COST OF ELECTRICITY CONSUMED BY ANSON ON THE SUBJECT PREMISES." (Rollo, pp. 14-15). In support of its first assignment of error, petitioner contends that there were four rental increases effected during the period of unlawful detainer and during the pendency of the case, which increases were duly proven during the trial. However, according to

respondent court, petitioner failed to present evidence on other approved and accepted rental increases and since the supplemental complaint limited itself only to P45,142.00, the award of damages cannot go beyond the said amount. We note, however, that respondent court conceded the existence of other evidence showing that other tenants of petitioner occupying the Makati Arcade paid rentals over and above the last figure or rental increase subject of the supplemental complaint. Nevertheless, it held that the imposition of higher damages cannot be made because of the limit set by petitioner's supplemental complaint and the absence of evidence regarding the rental increases approved by its board of directors and their acceptance by private respondent (Rollo, p. 48). Contrary to the conclusion of respondent court, petitioner's recovery is not limited by the amount of P45,142.00 prayed for in the supplemental complaint as increased rental effective January 1, 1979. This is not a case of a complaint subsequently amended, the effect of which is to render the original complaint abandoned or inexistent and let the amendment take form as the sole substitute upon which the case stands for trial. On the other hand, a supplemental complaint or pleading supplies deficiencies in aid of an original pleading, not to entirely substitute the latter. A perusal of the original complaint shows that it prayed, among others, that the defendant (private respondent) be ordered to pay plaintiff (petitioner) the monthly rental of P34,622.00 "and all other rentals and charges that may be due until such time that defendant . . . shall have vacated the premises" (Rollo, p. 52). Petitioner, therefore, did not foreclose its right to demand increased rentals that may be recovered expressed in terms of the fair rental value or the reasonable compensation for the use and occupation of the real property (Felisilda v. Villanueva, 139 SCRA 431 [1985]; citing Sparrevohn v. Fisher, 2 Phil. 676; Castuares v. Bayona, 106 Phil. 340). This is so because, unlike in an amended complaint, the original complaint exists side by side with the supplemental complaint. In the case at bar, the supplemental pleading merely served to aver supervening facts which were then not ripe for judicial relief when the original pleading was filed. As aforesaid, supplemental pleadings are meant to supply deficiencies in aid of the original pleading, and not to dispense with the latter (Pasay City Government v. CFI of Manila, Br. X, 132 SCRA 156 [1984]; British Traders' Insurance Co., Ltd. v. Commissioner of Internal Revenue, 13 SCRA 719 [1965]). Furthermore, failure of petitioner in the case at bar to amend its complaint or file additional supplemental pleadings to allege subsequent rental increases is of no moment. Records indicate that during the trial, petitioner presented evidence, without objection of private respondent, showing that during the pendency of this case, there were four (4) rental increases effected on the subject premises as follows: 1. The sum of P45,142.00 a month from January 1979 to September 1980 (Exh. "F-1"); 2. The sum of P59,402.00 a month from October 1980 to February 15, 1983 (Exh. "F-2"); 3. The sum of P74.340.00 a month from February 16, 1983 to February 28, 1985 (Exh. "F-3"); and 4. The sum of P99,040.00 a month from March, 1985 to the present (Exh. "F-4"). Actually, up to January 31, 1989 when private respondent vacated the leased premises. In view of the failure of private respondent to object to the presentation of evidence showing that there were four (4) rental increases on the subject premises although three (3) of said increases are not alleged in the pleadings, judgment may be rendered validly as regards the said increases or issues which shall be considered as if they have been raised in the pleadings (I Moran, p. 377, 1979 ed.). Thus, section 5, Rule 10 provides: "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects, as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. . . ." Private respondent contends, however, that since petitioner failed to present any resolution of its board of directors authorizing the imposition of higher rentals over the premises and their acceptance by private respondent, the award of damages was properly limited by respondent court to P45,142.00 monthly rental. The argument is untenable. An examination of respondent's answer to the complaint made no reference to the alleged board resolution which is now being insisted upon to escape the payment of the increased rentals. Having failed to raise the board resolution as a defense before the trial court, private respondent is deemed likewise to have waived the same (Sec. 2, Rule 9). But this is not all. As found by the Regional Trial Court, private respondent did not controvert the evidence submitted by petitioner in determining the fair rental value of the premises including those imposed on all other tenants of petitioner occupying the Makati Arcade (Rollo, p. 133). It is only when the rental demanded is clearly exorbitant would the courts interfere as a matter of equity. If, indeed, the rental increases were unconscionable, respondent should have at least presented evidence to substantiate its claim. This is because the burden of proof to show that the rental demanded is unconscionable or exorbitant rests upon private respondent as the lessee (Vda. de Roxas v. CA, 63 SCRA 302 [1975]). Private respondent failed to discharge its burden when it omitted to present any evidence at all on what it considers is the fair rental value other than what were submitted by petitioner. As a matter of fact, all the other tenants of petitioner in the Makati Arcade did not question the reasonableness of the rental increases and paid the same. As regards the imposition of one (1 %) percent interest on unpaid rentals, respondent court committed no error in eliminating the same not only because it was not prayed for in the complaint but also because Art. 1956 (Civil Code) so provides "(n)o interest shall be due unless it has been expressly stipulated in writing". While the one (1%) percent interest on delayed payment of rentals may have been provided in the original written contract of lease, it must be noted that said contract has already been terminated as of August 1, 1973. By the time petitioner filed its complaint for ejectment in 1977, there was no longer any written contract to speak of, much less a written stipulation on payment of interest. Finally, petitioner Shoemart assails the decision of the Court of Appeals excluding the award of cost of electricity consumed in the premises on the ground that the claim for reimbursement may be filed in another action before the proper forum. In Felisilda vs. Villanueva (139 SCRA 431 [1985]), we have repeatedly held that the only damage that can be recovered in an ejectment suit is the fair rental value or the reasonable compensation for the use and occupation of the real property. Other damages must be claimed in an ordinary action.

WHEREFORE, the decision of the Court of Appeals dated November 2, 1988 is REVERSED and SET ASIDE. The decision of the Regional Trial Court dated November 10, 1987 is Reinstated with the modification that the award of 1% interest starting October 1, 1977 and the reimbursement of cost of electrical consumption is excluded without prejudice to the institution of the proper collection case to enforce recovery and/or reimbursement of such cost for electrical consumption. SO ORDERED. Gutierrez, Jr., Feliciano and Cortes, JJ., concur. Footnotes * ** Penned by Camilon, J., with Pronove, Jr. and Cacdac, Jr., concurring. Penned by Judge Fernando V. Gorospe, Jr. ~*~END~*~