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Before the Court is a petition for review on certiorari seeking to reverse and set aside the Resolution^[1] dated November 29, 2002 of the Court of Appeals (CA) in CA-G.R. SP No. 71658.  In the said resolution, the appellate court dismissed the petition for certiorari filed therewith for failure to file a motion for reconsideration with the court a quo.  Likewise sought to be reversed is the appellate court’s Resolution dated August 27, 2003 denying the reconsideration of its earlier resolution.

The case stemmed from the following facts:

On May 23, 2001, Spouses Yolanda Quijano and Ambrocio Tria, Spouses Epifania Quijano and Raphael Villanueva, Spouses Napoleon and Pilar Quijano (respondents herein), represented by their attorney-in-fact Engr. Julius F. Villanueva, filed with the Regional Trial Court (RTC) of Muntinlupa an amended complaint against Spouses Jesulito and Vilma Acance, Spouses Nestor and Lynne Acance, and Spouses Manuel and Guia Acance (petitioners herein).  The case was docketed as Civil Case No. 01-122 and raffled to Branch 276 of the RTC of Muntinlupa City.

The amended complaint sought to annul the Extra-Judicial Settlement of the Estate of Deceased Jesus P. Acance and Waiver of Rights dated February 10, 1997, executed by Jesulito, Manuel and Nestor, all surnamed Acance, and their mother Angela.  The estate covered by the said extra-judicial settlement included two parcels of land with a total area of 1,044 square meters under    Transfer Certificates of Titles (TCT) Nos. 239998 and 242993 and the improvements thereon consisting of a 9-door apartment units, situated in Muntinlupa City.  Following the execution of the extra-judicial settlement, TCT Nos. 239998 and 242993, which were in the names of Jesus and Angela Acance, were cancelled and, in their stead, TCT Nos. 4365 and 4366 were issued in the names of the Acance siblings.

The amended complaint alleged that the siblings Yolanda, Epifania and Napoleon were the legitimate children of Angela Paglicawan and Vernier Quijano.  The couple, however, became estranged after the birth of their youngest child.  Upon their separation, Vernier continued to reside in Looc, Occidental Mindoro while Angela went to Manila to work as a nurse at the National Mental Hospital in Muntinlupa City.  While working thereat, Angela met Jesus Acance.  They lived together as common law husband and wife and bore the siblings Jesulito, Manuel and Nestor.

Some time in 1966, Angela went to the United States to work as a nurse.  With the savings she earned therefrom, she acquired the subject parcels of land in Muntinlupa and had the subject 9-door apartment units constructed    thereon.  Jesus Acance lived with Angela in the United States.  After Vernier passed away in 1989, Jesus and Angela got married in 1990.  Jesus died in 1996 in the United States.

In seeking to nullify the extra-judicial settlement of estate executed by the Acance siblings and their TCT Nos. 4365 and 4366, the Quijano siblings alleged that the subject real properties are conjugal properties of Angela and Vernier because these were acquired by Angela during the subsistence of her first marriage with Vernier.  As such, they (the Quijano siblings) have a valid right to succeed over the said properties as the lawful and compulsory heirs of Angela and Vernier.

The Quijano siblings impugned the validity of the extra-judicial settlement claiming that the signature of Angela thereon was a forgery or that she affixed the same without her free volition because at the time of its execution, she was already senile.  In any case, Angela’s purported waiver of her rights over the subject properties in favor of her children with Jesus (Acance siblings) and excluding her children with Vernier (Quijano siblings) is against the law.  Consequently, TCT Nos. 4365 and 4366 of the Acance siblings are allegedly also void as they emanated from the forged deed of extra-judicial settlement.

On April 26, 2002, upon motion of the respondents (the Quijano siblings and their spouses), as plaintiffs therein, the court a quo issued an order declaring the petitioners (the Acance siblings and their spouses), as defendants therein, in default for their failure to file an answer to the amended complaint.

On May 13, 2002, petitioner Rosalino Acance, as attorney-in-fact and administrator of the subject properties, filed with the court a quo a Motion to Lift/Set Aside Order of Default.  In his affidavit of merit attached to the said motion, petitioner Rosalino alleged that the Acance siblings had appointed him as their private prosecutor in a criminal case    involving the subject real properties.  On January 25, 2002, upon learning about Civil Case No. 01-122, he filed therein a Motion to Represent Defendants and set the same for hearing on February 5, 2002.  On the said date, however, petitioner Rosalino found out that his motion was not included in the court calendar for that day.  Since there was no action on his motion, he had the impression    that the court a quo needed time to determine other jurisdictional requirements considering that the petitioners are American citizens and non-residents of the Philippines.

Petitioner Rosalino further alleged that he had not received a copy of the complaint filed in Civil Case No. 01-122.  The only pleading he received pertaining to the case was that of the motion to declare the petitioners in default and setting the hearing thereon on April 26, 2002.  At the said hearing, the respondents’ motion was granted and the petitioners were declared in default.

The affidavit of merit likewise alleged that the petitioners have a valid and meritorious defense including that the subject real properties were acquired by their parents, Jesus and Angela, with both their earnings during the period that they lived together.  They denied that these were paraphernal properties of Angela or conjugal properties of Angela and Vernier.  The petitioners further claimed that the extra-judicial settlement was duly executed by them and Angela’s waiver of her rights over the subject properties in their favor was validly made.  To prove that Angela really intended to transfer the properties to them, the petitioners presented her Last Will and Testament executed in the United States on December 6, 1996 in which she bequeathed to them all her properties, real and personal, wherever situated.

In its Order dated June 27, 2002, the court a quo denied the motion to lift the order of default.  It explained that the petitioners are all residing abroad but the real properties subject of the complaint are situated in Muntinlupa City.  Accordingly, upon motion, they were deemed served with the summons and the amended complaint through publication thereof in a newspaper of general circulation in Muntinlupa City, where the properties are located, and nationwide on October 20, 2001.  The petitioners had sixty (60) days from the last publication or until December 2, 2001 within which to file their answer.  However, they failed to do so.

More than a month later, or on January 25, 2002, petitioner Rosalino filed the motion to represent the petitioners and asked for sixty (60) days to file an answer.  According to the court a quo, since the motion was not an adversarial pleading it was no longer included in the court calendar.  It stressed that at the time said counsel entered his appearance, the period to file an answer had long expired.  Further, the 60 days extension prayed for was not denied.  However, the petitioners still failed to file their answer within the extension period prayed for.

The court a quo faulted petitioner Rosalino, as counsel, for erroneously assuming that since it failed to rule on his entry of appearance, the period to file an answer was suspended.  It pointed out that the fact that the counsel may be allowed to represent a party-litigant or not does not toll the running of the period to file the responsive pleading to the complaint.

Forthwith, the petitioners filed with the Court of Appeals a petition for certiorari alleging grave abuse of discretion on the part of the court a quo in denying their motion to lift the default order.  Preliminarily, they averred that they dispensed with the filing of a motion for reconsideration with the court a quo because of the urgency of the matter as well as the fact that they raised jurisdictional issues in their motion to lift the default order.

They contended that, in denying their motion to lift the order of default, the court a quo adopted a rigid, strict and technical stance.  Further, petitioner Rosalino, as their counsel, was of the honest belief that when the court a quo did not act on his motion to represent the petitioners, it was still determining whether all the requirements for a valid extraterritorial service was made on them.  They, likewise, harped on the fact that the court a quo’s order denying their motion to lift order of default had been promulgated before they even filed their reply to the respondents’ opposition.  They maintained that the court a quo did not acquire jurisdiction over the petitioners because no valid extraterritorial service of summons was made on them.

On November 29, 2002, the appellate court rendered the assailed Resolution dismissing outright the petition for certiorari for failure of the petitioners to file a motion for reconsideration with the court a quo.  In so doing, it applied the general rule that the filing of a motion for reconsideration of the disputed order is a condition sine qua non in order that certiorari will lie.  The petitioners moved for the reconsideration of the said resolution but it was denied in the assailed Resolution dated August 27, 2003.  Hence, the recourse to this Court by the petitioners.

It is contended by the petitioners that the appellate court committed reversible error in dismissing their petition for certiorari for failure to file a motion for reconsideration with the court a quo.  They posit that such omission is not fatal.  They maintain that they have a meritorious defense in Civil Case No. 01-122 and that grave injuries and injustice would be inflicted on them unless they are afforded the full opportunity to protect their interests.  On the other hand, no undue prejudice would be caused the respondents in the event that the order of default is lifted and the action in the court a quo is heard on the merits.

According to the petitioners, the non-filing of a motion for reconsideration was justified because the need for relief was extremely urgent and a motion for reconsideration was not a plain and adequate remedy under the circumstances of the case.  Moreover, the questions raised before the appellate court were the same as those which have been raised in the motion to lift order of default and already passed upon by the court a quo.  Finally, the failure to file a responsive pleading to the respondents’ amended complaint was due to the excusable negligence of the petitioners’ counsel.

For their part, the respondents urge the Court to deny the petition for review.  They are of the view that the appellate court correctly applied the general rule that the filing of a motion for reconsideration is a condition sine qua non in order that certiorari will lie.

The threshold issue that needs to be resolved is whether the CA committed reversible error in dismissing the petition for certiorari for failure of the petitioners to file a motion for reconsideration with the court a quo.

The Court rules in the affirmative.

The rule is well settled that the filing of a motion for reconsideration is an indispensable condition to the filing of a special civil action for certiorari.^[2]  However, this rule admits of exceptions including:

1. where the order is a patent nullity, as where the court a quo has no jurisdiction;
2. where the questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court;
3. where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the action is perishable;
4. where, under the circumstances, a motion for reconsideration would be useless;
5. where petitioner was deprived of due process and there is extreme urgency for relief;
6. where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable;
7. where the proceedings in the lower court are a nullity for lack of due process;
8. where the proceedings was ex parte or in which the petitioner had no opportunity to object; and
9. where the issue raised is one purely of law or public interest is involved.^[3] 

A perusal of the petition for certiorari filed with the CA shows that the petitioners expressly stated therein that they dispensed with the filing of a motion for reconsideration with the court a quo because they raised questions of jurisdiction in the motion to set aside the default order filed therewith.  It was further averred that there was an urgent necessity for relief as the court a quo seemed to act with precipitate haste.  It was, likewise, pointed out that the court a quo allowed the respondents to present their evidence ex parte on April 30, 2002 (a Tuesday), just two office days after the default order was issued on April 26, 2002 (a Friday).

It appears that the CA committed reversible error in dismissing outright the petition for certiorari for failure of the petitioners to move for a reconsideration of the default order when it had been sufficiently shown that the need for relief was extremely urgent. The procedural requirement that a motion for reconsideration must first be filed before resorting to the special civil action of certiorari may be glossed over to prevent a miscarriage of justice and, among other recognized instances, when the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.^[4]  Among other remedies, a petition for certiorari to declare the nullity of a judgment by default is available if the trial court improperly declared a party in default, or even if the trial court properly declared a party in default, if grave abuse of discretion attended such declaration.^[5]

In this case, the court a quo acted with grave abuse of discretion in declaring the petitioners in default without showing that there was full compliance with the requirements for extraterritorial service of summons under Section 15, Rule 14 of the Rules of Court.  The said provision reads:

Sec. 15. Extraterritorial service. – When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under Section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient.  Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer.

The petitioners are citizens of the United States and residents thereof.  Further, the suit against them involves real property wherein the petitioners, as defendants therein, have an interest.  These facts clearly warranted extraterritorial service of summons in accordance with Section 15, Rule 14 of the Rules of Court.  The rationale for service of summons on a nonresident defendant is explained, thus:

We repeat, service of summons on a nonresident defendant who is not found in the country is required, not for purposes of physically acquiring jurisdiction over his person but simply in pursuance of the requirements of fair play, so that he may be informed of the pendency of the action against him and the possibility that the property in the Philippines belonging to him or in which he has an interest may be subjected to a judgment in favor of a resident, and that he may thereby be accorded an opportunity to defend in the action, if he be so minded.  The only relief that may be granted in such an action against such a nonresident defendant, who does not choose to submit himself to the jurisdiction of the Philippine court, is limited to the res.^[6]

In its Order dated April 26, 2002, the court a quo declared the petitioners in default in this wise:

Since the last publication of this case more than 60 days ago, no answer has been filed by any of the Defendants, the MOTION TO DECLARE THE DEFENDANTS IN DEFAULT is, therefore, granted; hence Defendants, SPS. JESULITO P. ACANCE & VILMA ACANCE, SPS. MANUEL P. ACANCE & GUIA ACANCE, and SPS. NESTOR P. ACANCE & LYNNE ACANCE are defaulted.

Evidence for Plaintiffs may be received ex-parte before the Clerk of Court.^[7]

However, as will be shown shortly, the service of summons in this case is defective.  There was no showing that copies of the summons and the amended complaint were duly served at the petitioners’ last known correct address by registered mail, as a complement to the publication pursuant to Section 15, Rule 14 of the Rules of Court^[8] and in compliance with the court a quo’s Order dated July 1, 2001 granting the respondents’ motion for leave to serve summons by publication.

The respondents alleged that they had “caused copies of the Amended Complaint and Summons and the 1 July 2001 Order to be sent on November 13, 2001 by registered mail to the Acances’ known addresses in the United States.”  In their Compliance dated January 31, 2002 filed with the court a quo, the respondents averred that “a copy of the summons and order of the court together with a copy of the amended complaint had been sent to each of the three (3) defendants in their respective addresses by registered mail, as evidenced by Registry Receipt No. 26832 for Nestor P. Acance dated November 13, 2001; Registry receipt No. 26833 for Jesulito P. Acance dated November 13, 2001 and Registry Receipt No. 26834 for Manuel P. Acance dated November 13, 2001, all sent from the Makati City Branch Post Office.”^[9] However, except for this bare allegation, the corresponding registry receipts or copies thereof were not presented to show compliance with the rules.

Further, there was likewise non-compliance with Section 19, Rule 15 of the Rules of Court relating to the proof of service by publication.  The said provision reads:

Sec. 19. Proof of service by publication. – If the service has been made by publication, service may be proved by the affidavit of the printer, his foreman, or principal clerk, or of the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached, and by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address.

While the respondents claimed that they had complied with the service of summons by publication in a newspaper of general circulation,^[10] it does not appear that they had presented to the court a quo the “affidavit of the printer, his foreman, or principal clerk, or of the editor, business or advertising manager” of the “Remate,” where the publication was allegedly made, to prove such service by publication.   Neither did they present an affidavit showing the deposit of a copy of the summons and order of publication in the post office, postage prepaid, directed to the petitioners by registered mail to their last known addresses.

The failure to strictly comply correctly with the requirements of the rules regarding the mailing of copies of the summons and the order for its publication is a fatal defect in the service of summons.^[11] As held by this Court:

It is the duty of the court to require the fullest compliance with all the requirements of the statute permitting service by publication.  Where service is obtained by publication, the entire proceeding should be closely scrutinized by the courts and a strict compliance with every condition of law should be exacted.  Otherwise great abuses may occur, and the rights of persons and property may be made to depend upon the elastic conscience of interested parties rather than the enlightened judgment of the court or judge.^[12]

Even granting arguendo that the respondents had fully complied with the requirements for extraterritorial service of summons and the court a quo correctly declared them in default; still, it should not have been too rash in dismissing the petitioners’ motion to lift the default order.  Well-settled is the rule that courts should be liberal in setting aside orders of default for default judgments are frowned upon, unless in cases where it clearly appears that the reopening of the case is intended for delay.  The issuance of the orders of default should be the exception rather than the rule, to be allowed only in clear cases of obstinate refusal by the defendant to comply with the orders of the trial court.^[13] In this case, there is no showing that the petitioners’ failure to file an answer was due to an apparent scheme to delay the proceedings or to flagrantly transgress the rules.

Under the circumstances, the setting aside of the order of default is in order.  The petitioners should be afforded the opportunity to present evidence on their behalf in order that substantial justice is achieved. After all, court litigations are primarily for the search of truth, and a liberal interpretation of the rules by which both parties are given the fullest opportunity to adduce proofs is the best way to ferret out such truth.^[14] By conducting a full-blown trial, both parties will be able to present their evidence, thus, affording them the opportunity to enforce and protect their respective rights.

WHEREFORE, the petition is GRANTED. The assailed Resolutions dated November 29, 2002 and August 27, 2003 of the Court of Appeals in CA-G.R. SP No. 71658 are REVERSED AND SET ASIDE.  The case is REMANDED to the court a quo, which is DIRECTED to allow the petitioners to file their answer to the amended complaint, and thereafter to conduct the proper proceedings in Civil Case No. 01-122.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.

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^[1] Penned by Associate Justice Regalado E. Maambong, with Associate Justices Delilah Vidallon-Magtolis and Andres B. Reyes, Jr., concurring.

^[2] Metro Transit Organization, Inc. v. Court of Appeals, 392 SCRA 229 (2002).

^[3] Id. at 236.

^[4] ABS-CBN Broadcasting Corp. v. Commission on Elections, 323 SCRA 811 (2000).

^[5] Cerezo v. Tuazon, 426 SCRA 167 (2004).

^[6] Sahagun v. Court of Appeals, 198 SCRA 44 (1991).

^[7] Rollo, p. 66.

^[8] Sahagun v. Court of Appeals, supra at 55.

^[9] CA Rollo, p. 26.

^[10] Ibid.

^[11] Id. at 55-56.

^[12] Dulap v. Court of Appeals, 42 SCRA 537 (1971).

^[13] Samartino v. Raon, 383 SCRA 664 (2002).

^[14] Go v. Tan, 412 SCRA 123 (2003).