G.R. No. 91958 January 24, 1991

WILFREDO D. LICUDAN and CRISTINA LICUDAN-CAMPOS,petitioners,vs.THE HONORABLE COURT OF APPEALS and ATTY. TEODORO O. DOMALANTA,respondents.Arnold V. Guerrero & Associates for petitioners.

Teodoro O. Domalanta for and on his behalf as private respondent.

GUTIERREZ, JR.,J.:pThe practice of law is a profession rather than trade. Courts must guard against the charging of unconscionable and excessive fees by lawyers for their services when engaged as counsel. Whether or not the award of attorney's fees in this case is reasonable, being in the nature of contingent fees, is the principal issue.

This petition for review oncertiorariassails:

1) The Decision of the public respondent dated September 12, 1989 which dismissed the petitioners' appeal thereby upholding the reasonableness of the respondent lawyer's lien as attorney's fees over the properties of his clients; and

2) The Resolution of the public respondent dated January 30, 1990 which denied the petitioners' motion for reconsideration.

The grounds relied upon by the petitioners are as follows:

The respondent Court, in upholding the entitlement of private respondent-attorney on the attorney's fees he claimed, decided the question in a manner not in accord with law or with the applicable decisions of this Honorable Tribunal.

The respondent Court, in refusing to review and determine the propriety, reasonableness and validity of the attorney's fees claimed by the private respondent-attorney, departed from the usual course of judicial proceedings.

The respondent Court, in failing to declare the attorney's fees claimed by the private respondent-attorney as unconscionable, excessive, unreasonable, immoral and unethical, decided the question in a way not in accord with law and with applicable decisions of this Honorable Tribunal. (Petition, pp. 12-13;Rollo, pp. 16-17)

The following are the antecedent facts pertinent to the case at bar:

The respondent lawyer was retained as counsel by his brother-in-law and sister, the now deceased petitioners' parents, spouses Aurelio and Felicidad Licudan. His services as counsel pertained to two related civil cases docketed as Civil Case No. Q-12254 for partition and Civil Case No. Q-28655 for a sum of money in connection with the redemption of the property subject matter of the two cases covered by Transfer Certificate of Title No. 818 of the Register of Deeds of Quezon City. In both cases, the respondent lawyer obtained a judgment in favor of his clients.

On August 13,1979, the respondent lawyer filed a Petition for Attorney's Lien with Notification to his Clients which substantially alleged that his clients executed two written contracts for professional services in his favor which provided that:

a) The undersigned counsel is entitled to own 97.5 square meters of the plaintiff's share of the lot in question.

b) The undersigned counsel shall have a usufructuary right for a period of ten (10) years of plaintiffs' share of the lot in question.

c) And that all damages accruing to plaintiffs to be paid by the defendant is for the undersigned counsel.(Annex "H" of the Petition,Rollo, p. 54)

On September 19, 1979, the trial court handling Civil Case No. Q-12254 ordered the annotation at the back of TCT No. 818 of the Register of Deeds of Quezon City of the respondent lawyer's Contract for Professional Services dated August 30, 1979 signed by petitioner Wilfredo Licudan and Aurelio Licudan on his own behalf and on behalf of his daughter, petitioner Cristina Licudan-Campos. The said trial court's Order, being one of two Orders being essentially challenged in this petition, is reproduced below:

Before the court for consideration is a Petition for Attorney's Lien filed by Atty. Teodoro D. Domalanta, counsel for the plaintiff, praying that his attorney's fees be annotated as a lien at the back of Transfer Certificate of Title No. 818 of the Register of Deeds of Quezon City, subject matter of this case.

For the protection of the plaintiffs, the court required the plaintiff Aurelio Licudan as well as his son to appear this morning. Plaintiff Aurelio Licudan together with his son Wilfredo Licudan, who appears to be intelligent and in fact he speaks (the) English language well, appeared. Both Aurelio and Wilfredo Licudan manifested that they have freely and voluntarily signed the Contract for Professional Services, dated August 30, 1979 and notarized before Notary Public Amado Garrovillas as Doc. No. 32, Page 8, Book No. XIX, Series of 1979.

Considering the manifestation of plaintiff, Aurelio Licudan and Alfredo (sic) Licudan that they have entered freely and voluntarily in the said contract of professional services, let the same be annotated at the back of TCT 818 of the Register of Deeds of Quezon City, upon payment of the required legal fees. (CA Decision, pp. 7-8;Rollo, pp. 36-37)

The Contract for Professional Services dated August 30, 1979 differs from the earlier contractual provisions in that it entitled the respondent lawyer to one-third (1/3) of the subject property or 90.5 square meters and provided for usufructuary rights over the entire lot in question in favor of the respondent lawyer's son, Teodoro M. Domalanta, Jr. for an agreed consideration. (Annex "J" of the Petition;Rollo, p. 59)

On July 25, 1985, the respondent lawyer filed a motionex parteto amend the Order dated September 19, 1979 so as to conform with an additional professional fee covering 31 square meters more of the lot for services rendered in Civil Case No. Q-28655 as evidenced by a Deed of Absolute Sale dated May 1, 1983 executed by Aurelio Licudan in favor of the respondent lawyer.

On September 6, 1985, the trial court ordered the respondent lawyer to submit a subdivision plan in conformity with his attorney's fees contract under which one-third (1/3) of the property or 90.5 square meters was alloted to him.

On September 23, 1985, the respondent lawyer filed a motion for reconsideration praying for the amendment of the Order dated September 19, 1979 to conform with the Deed of Absolute Sale dated May 1, 1983 which was executed after the annotation of the original attorney's lien of 90.5 square meters.

On September 30, 1985, the trial court denied the motion on the ground that the respondent lawyer cannot collect attorney's fees for other cases in the action for partition.

On October 4, 1985, the respondent lawyer filed a second motion for reconsideration of the Order dated September 6, 1985 explaining that what he sought to be included in the Order dated September 19, 1979 is the additional attorney's fees for handling the redemption case which was but a mere offshoot of the partition case and further manifesting that the additional 31 square meters as compensation for the redemption case must be merged with the 90.5 square meters for the partition case to enable the said respondent lawyer to comply with the Order dated September 6,1985 which directed him to submit a subdivision plan as required.

On October 21, 1985, the trial court issued the second Order being assailed in this petition. The said Order reads:

Acting on the "Second Motion for Reconsideration" filed by Atty. Teodoro Domalanta and finding the same to be justified, let an attorney's lien be annotated in the title of the property for 31 square meters as attorney's fees of said Atty. Teodoro Domalanta in addition to the original 90.5 square meters. (CA Decision, p. 8;Rollo, p. 37)

On August 22, 1986, more than ten (10) months after the Orders of September 6, 1985 and October 21, 1985 had become final and executory, the petitioners as substituted heirs of the respondent lawyers' deceased clients filed a motion to set aside orders on the ground that the award of professional fees covering 121.5 square meters of the 271.5 square meter lot is unconscionable and excessive.

After the respondent lawyer filed his Opposition to the above petitioners' motion, the lower court, on August 29, 1986, finding that the petitioners as substituted plaintiffs are not in full agreement with the respondent lawyer's claim for attorney's fees, set aside its Orders dated September 6, 1985 and October 21, 1985.

On September 16, 1986, the respondent lawyer filed a motion for reconsideration stressing the fact that the payment of the professional services was pursuant to a contract which could no longer be disturbed or set aside because it has already been implemented and had since then become final. This motion was denied on October 3, 1986.

On November 15, 1986, the respondent lawyer filed a motion to set aside the orders dated August 29, 1986 and October 3, 1986 reiterating his position that the Orders of September 6, 1985 and October 21, 1985 have become final and are already implemented. The respondent lawyer further asked for the modification of the October 21, 1985 Order to reflect 60.32 square meters instead of 31 square meters only since the stipulation in the Additional Contract for Professional Services entitled him to 60.32 square meters.

After the petitioners' Opposition to the said motion was filed, the trial court, on February 26, 1987, rendered an Order with the following dispositive portion:

WHEREFORE, this Court has no alternative but to set aside its orders of 29 August 1986 and 3 October 1986 and declare its Orders of 19 September 1979 and 21 October 1985 irrevocably final and executory. (CA Decision, p. 5;Rollo, p. 34)

On Appeal, the Court of Appeals ruled in favor of the respondent lawyer by dismissing the appeal and the prayed for writ of preliminary injunction. Their subsequent motion for reconsideration having been denied', the petitioners filed the instant petition.

The petitioners fault the respondent Court for its failure to exercise its inherent power to review and determine the propriety of the stipulated attorney's fees in favor of the respondent lawyer and accuse the respondent lawyer of having committed an unfair advantage or legal fraud by virtue of the Contract for Professional Services devised by him after the trial court awarded him attorney's fees for P1,000.00 only instead of respecting the trust and confidence of the highest level reposed on him considering the close blood and affinal relationship between him and his clients.

The petitioners contend that under the award for professional services, they may have won the case but would lose the entire property won in litigation to their uncle-lawyer. They would be totally deprived of their house and lot and the recovered damages considering that of the 271.5 square meters of the subject lot, the respondent lawyer is claiming 121.5 square meters and the remaining portion of 150 square meters would also go to attorney's fees since the said portion pertains to the lawyer's son by way of usufruct for ten (10) years.

The aforesaid submissions by the petitioners merit our consideration.

It is a well-entrenched rule that attorney's fees may be claimed in the very action in which the services in question have been rendered or as an incident of the main action. The fees may be properly adjudged after such litigation is terminated and the subject of recovery is at the disposition of the court. (seeCamacho v. Court of Appeals, 179 SCRA 604 [1989]; Quirante v. Intermediate Appellate Court, 169 SCRA 769 [1989]).

It is an equally deeply-rooted rule that contingent fees are notper seprohibited by law. They are sanctioned by Canon 13 of the Canons of Professional Ethics and Canon 20, Rule 20.01 of the recently promulgated Code of Professional Responsibility. However, as we have held in the case ofTanhueco v.De Dumo(172 SCRA 760 [1989]):

. . . When it is shown that a contract for a contingent fee was obtained by undue influence exercised by the attorney upon his client or by any fraud or imposition, or that the compensation is clearly excessive, the Court must and will protect the aggrieved party. (Ulanday v. Manila Railroad Co., 45 Phil. 540 [1923]; Grey v. Insular Lumber Co., 97 Phil. 833 [1955]).

In the case at bar, the respondent lawyer caused the annotation of his attorney's fees lien in the main action for partition docketed as Civil Case No. Q-12254 on the basis of a Contract for Professional Services dated August 30, 1979. We find reversible error in the Court of Appeals' holding that:

When the reasonableness of the appellee's lien as attorney's fees over the properties of his clients awarded to him by the trial court had not been questioned by the client, and the said orders had already become final and executory, the same could no longer be disturbed, not even by the court which rendered them (Taada v. Court of Appeals, 139 SCRA 419). (CA Decision p. 7;Rollo, p. 36)

On the contrary, we rule that the questioned Orders dated September 19, 1979 and October 21, 1985 cannot become final as they pertain to a contract for a contingent fee which is always subject to the supervision of the Court with regard to its reasonableness as unequivocally provided in Section 13 of the Canons of Professional Ethics which reads:

13. Contingent Fees.

A contract for a contingent fee, where sanctioned by law, should be reasonable under all the circumstances of the case including the risk and uncertainty of the compensation, but shouldalwaysbe subject to the supervision of a court, as to its reasonableness. (Emphasis supplied).

There is no dispute in the instant case that the attorney's fees claimed by the respondent lawyer are in the nature of a contingent fee. There is nothing irregular about the execution of a written contract for professional services even after the termination of a case as long as it is based on a previous agreement on contingent fees by the parties concerned and as long as the said contract does not contain stipulations which are contrary to law, good morals, good customs, public policy or public order.

Although the Contract for Professional Services dated August 30, 1979 was apparently voluntarily signed by the late Aurelio Licudan for himself and on behalf of his daughter, petitioner Cristina Licudan-Campos and by the petitioner Wilfredo Licudan who both manifested in open court that they gave their free and willing consent to the said contract we cannot allow the said contract to stand as the law between the parties involved considering that the rule that in the presence of a contract for professional services duly executed by the parties thereto, the same becomes the law between the said parties is not absolute but admits an exceptionthat the stipulations therein are not contrary to law, good morals, good customs, public policy or public order (seePhilippine American Life Insurance Company v. Pineda, 175 SCRA 416 [1989]; Syjuco v. Court of Appeals, 172 SCRA 111 [1989]).

Under Canon 20 of the Code of Professional Responsibility, a lawyer shall charge only fair and reasonable fees. In determining whether or not the lawyer fees are fair and reasonable, Rule 20-01 of the same Code enumerates the factors to be considered in resolving the said issue. They are as follows:

a) The time spent and the extent of the services rendered or required;

b) The novelty and difficulty of the questions involved;

c) The importance of the subject matter;

d) The skill demanded;

e) The probability of losing other employment as a result of acceptance of the proferred case;

f) The customary charges for similar services and the schedule of fees of the IBP Chapter to which he belongs;

g) The amount involved in the controversy and the benefits resulting to the client from the service;

h) The contingency or certainty of compensation;

i) The character of the employment, whether occasional or established; and

j) The professional standing of the lawyer.

A similar provision is contained under Section 24, Rule 138 of the Revised Rules of Court which partly states that:

Sec. 24. Compensation of attorneys;agreement as to fees. An attorney shall be entitled to have and recover from his client no more than a reasonable compensation for his services, with a view to the importance of the subject matter of the controversy, the extent of the services rendered, and the professional standing of the attorney. . . . A written contract for services shall control the amount to be paid therefor unless found by the court to be unconscionable or unreasonable.

All that the respondent lawyer handled for his deceased sister and brother-in-law was a simple case of partition which necessitated no special skill nor any unusual effort in its preparation. The subsequent case for redemption was admittedly but an offshot of the partition case. Considering the close blood and affinal relationship between the respondent lawyer and his clients, there is no doubt that Atty. Domalanta took advantage of the situation to promote his own personal interests instead of protecting the legal interests of his clients. A careful perusal of the provisions of the contract for professional services in question readily shows that what the petitioners won was a pyrrhic victory on account of the fact that despite the successful turnout of the partition case, they are now practically left with nothing of the whole subject lot won in the litigation. This is because aside from the 121.5 square meters awarded to Atty. Domalanta as attorney's fees, the said contract for professional services provides that the remaining portion shall pertain to the respondent lawyer's son by way of usufruct for ten (10) years. There should never be an instance where a lawyer gets as attorney's fees the entire property involved in the litigation. It is unconscionable for the victor in litigation to lose everything he won to the fees of his own lawyer.

The respondent lawyer's argument that it is not he but his son Teodoro M. Domalanta, Jr. who is claiming the usufructuary right over the remaining portion of the subject lot is inaccurate. The records show that the matter of usufruct is tied up with this case since the basis for the said usufructuary right is the contract for professional services the reasonableness of which is being questioned in this petition. We find the ten-year usufruct over the subject lot part and parcel of the attorney's fees being claimed by the respondent lawyer.

In resolving the issue of reasonableness of the attorney's fees, we uphold the time-honoured legal maxim that a lawyer shall at all times uphold the integrity and dignity of the legal profession so that his basic ideal becomes one of rendering service and securing justice, not money-making. For the worst scenario that can ever happen to a client is to lose the litigated property to his lawyer in whom an trust and confidence were bestowed at the very inception of the legal controversy. We find the Contract for Professional Services dated August 30, 1979, unconscionable and unreasonable. The amount of P20,000.00 as attorney's fees, in lieu of the 121.5 square meters awarded to the respondent lawyer and the ten-year usufructuary right over the remaining portion of 150 square meters by the respondent lawyer's son, is, in the opinion of this Court, commensurate to the services rendered by Atty. Domalanta.

WHEREFORE, IN VIEW OF THE FOREGOING, the instant petition is GRANTED. The Court of Appeals' decision of September 12, 1989 is hereby REVERSED and SET ASIDE. Atty. Domalanta is awarded reasonable attorney's fees in the amount of P20,000.00.

SO ORDERED.

G.R. No. L-24288 May 28, 1968LEONOR MANUEL CASTILLO UDAN,petitioner,vs.THE HON. MUNICIPAL JUDGE QUIRICO C. AMON, ETC., and BEATRIZ CASTANEDA,respondents.

Peralta and Cardenas for petitioner.Amado T. Evangelista for respondents.ZALDIVAR,J.:A petition forcertiorarito annul the order of respondent Judge issued on August 27, 1964 denying petitioner's motion for postponement of the hearing of Cadastral Case No. 12, LRC Cadastral Record No. 377 (Lots Nos. 9102 and 9103) of the Court of First Instance of Zambales, as well as his subsequent orders denying petitioner's motions for reconsideration.

The factual background of this petition is as follows: At the hearing of Cadastral Case No. 12 (LRC Cad. Rec. No. 377) of the Court of First Instance of Zambales on June 12, 1956, only respondent Beatriz Castaeda appeared, and so the court entered an order of general default, and said respondent was allowed to present evidence in support of her claim of possession and ownership over two parcels of lands known as Lots Nos. 9102 and 9103.

On the following day, June 13, 1956, Tomas Manuel, grandfather of petitioner Leonor Manuel Castillo Udan, who was then a minor, filed in behalf of said petitioner an answer (opposition) claiming ownership and possession of the two lots. Thereafter, said Tomas Manuel, again in behalf of petitioner, filed a motion to set aside the hearing and/or order of default alleging that respondent Castaeda misrepresented that the two lots were in her possession although she fully knew that the lots were in the possession of petitioner and had been in the possession of her predecessor-in-interest since 1936, publicly, continuously, and peacefully; and that respondent was fully aware that those lots were sold by Maria Fontillas to Visitacion Aglibot, who in turn sold them to petitioner's mother, because in the morning of June 12, 1956, the day of the hearing, respondent Castaeda was with Tomas Manuel in the office of petitioner's counsel and was shown the deed of sale of said lots in favor of petitioner's mother. Acting on the motion of Tomas Manuel, the trial court issued an order, dated September 28, 1956, lifting the order of default an admitting the answer of petitioner.

Thereafter, respondent Castaeda filed motions to set the case for hearing, but the record does not show that the case was ever heard. On December 10, 1956, said respondent filed a motion to dismiss the opposition or answer of petitioner, which motion was granted by the trial court in its order of October 15, 1957, and thereupon the two lots were adjudicated to respondent. Contending that the lower court erred in entering the aforementioned order adjudicating the lots in question to respondent Castaeda without giving petitioner an opportunity to be heard or present her evidence, petitioner brought an appeal to this Court, which was docketed as G.R. No. L-18372. On November 29, 1962, this Court rendered a decision, the dispositive portion of which reads:

On the whole, we believe that the interests of justice will be subserved if this case is remanded to the courta quofor further proceedings, giving appellant Castillo the opportunity to present her evidence of alleged ownership of the lots in question.1After the case was remanded to the Court of First Instance of Zambales, the district Judge, pursuant to Section 88 of Republic Act 296, issued Administrative Order No. 1 designating respondent Municipal Judge Quirico C. Amon of San Narciso, Zambales, to try the case. Thereupon, respondent Judge set the case for hearing on August 27, 1964, and notice of said hearing was received by petitioner's counsel on August 12, 1964.

On the day of the scheduled hearing, petitioner personally submitted to respondent Judge her counsel's motion (dated August 26, 1964) to postpone the hearing to the following day, based on the ground that he had to appear before the Court of First Instance of Olongapo, Zambales in the hearing of Civil Case No. 1684 and Cad. Case No. 14. This motion was forthwith denied by respondent Judge in his order issued on the same day, as follows:

The Court noted that there is a motion for postponement attached to the record of the case, which motion was only received today. This fact was made known to Atty. Evangelista, counsel for claimant Beatriz Castaeda, and he manifested likewise that he only received a copy of the said motion at 9:00 a.m., today. Atty. Evangelista argued against the said motion for postponement contending, among others, that the said motion is not in conformity with the provisions of Rule 26, Rules of Court, in that the required three days notice was not complied with; that counsel for movant, (Atty. Dolojan) should not have presumed that his motion will be granted; and, that if said counsel, Atty. Gregorio Dolojan, wanted to postpone this case, he should have taken steps toward this end since it appears that he received notice since August 12, 1964, in order to spare the claimants unnecessary delay and expenses in coming all the way from Manila to this Court.

Considering that this case has been pending for already a long time, and finding that the vigorous opposition of counsel for claimant Beatriz Castaeda to be well taken and meritorious and for an overriding consideration that any lawyer has no reason to assume that this Court would grant his motion for postponement (Montelibano, et al. vs. Benares, G.R. No. L-10824) the Court is constrained to deny the motion for postponement.

IN VIEW OF THE FOREGOING, the previous order of this court adjudicating the property in question in favor of the claimant Beatriz Castaeda stands undisturbed.

On September 1, 1964, petitioner filed her motion for reconsideration, but the same was denied for lack of merit. On October 24, 1964, petitioner filed her second motion for reconsideration, and this was again denied by respondent Judge in his order of December 4, 1964 for beingpro formaand for non-compliance with the rules. When her third motion for reconsideration was also denied by respondent Judge, petitioner filed, on March 11, 1965, the instant petition for certiorari before this Court, imputing abuse of discretion on the part of respondent Judge in denying her motion for postponement and her subsequent motions for reconsideration.

The issue before this Court now is whether, or not, respondent Judge had abused his discretion in issuing his order of August 27, 1964 denying petitioner's motion for postponement of the hearing and forthwith reviving the previous order of the court adjudicating the property in question in favor of respondent Beatriz Castaeda, and in denying later the subsequent motions for reconsideration that were filed by petitioner.

Motions for postponement are addressed to the sound discretion of the courts. That discretion must be exercised wisely, considering the peculiar circumstances obtaining in each case and with a view to doing substantial justice.2In the case at bar, it is not denied that on the day of the hearing petitioner herself submitted to the court her counsel's motion for postponement of the hearing because the counsel had to attend to other trials in the Court of First Instance at Olongapo, Zambales on the same day. The fact that counsel for petitioner requested that the hearing be postponed even to the following day shows that his purpose was not to delay the proceedings. The record shows that that was the first time that the case was set for hearing after it was remanded from the Supreme Court, and that was also the first time that petitioner asked for postponement. Considering that the case was remanded by the Supreme Court precisely for the purpose of giving the petitioner the opportunity to present her evidence, We believe that respondent Judge should have granted the motion.

In the case ofCrisologo, et al. v. Duran, L-19885, July 31, 1965, one of the plaintiffs therein, at the scheduled hearing on June 28, 1961, delivered to the court personally the telegram of their counsel asking for postponement of the trial. The court denied the motion and upon appeal this Court set aside the order of denial, and held:

There seems to be no question that motions for continuance are addressed to the sound discretion of the court. However, it has been repeatedly held that the said discretion must be exercised wisely (Capital Subdiv. v. Prov. of Neg. Occ., L-6204, July 31, 1956). It is evident from the records, that appellants were not neglectful of their duties and obligations towards the court. One of the plaintiffs (Eufrasia Capiao) was present during the hearing of June 28, 1961, and she was the one who presented the telegram of their counsel to the court. A delay in the adjudication of a case occasioned by a reasonably justified continuance of the hearing, to afford a party (here the plaintiffs) the opportunity to present his evidence would not materially prejudice the defendant. On the contrary, one more postponement in the instant case, would be in consonance with fair play and justice (Ty v. Fil. Cia. de Seguros, et al., L-15928-33, Sept. 3, 1960). In a case of recent vintage, We have made the following pronouncements:

Viewed from the strictly legal perspective, it appears that the petition was presented outside the reglementary period of sixty (60) days from notice of the judgment. Nevertheless, due to the very peculiar circumstances obtaining in the premises, We consider that the rule was substantially complied with and the petition for relief from judgment was seasonably filed. The rules should receive liberal interpretation in order to promote their object and to assist the parties in obtaining a just, speedy and inexpensive determination of every action. Procedural technicality, should not be made a bar to the vindication of a legitimate grievance. When such technicality "deserts from being an aid to justice", the Courts are justified in excepting from its operation a particular case.... (PHHC v. Tiongco, et al., L-18891, Nov. 28, 1964.)

In the case ofAurora Camara Vda. de Zubiri v. Zubiri, et al., L-16745, December 17, 1966, this Court said:

Although the allowance or denial of petitions for postponement and the setting aside of previous duly issued orders rest principally upon the sound discretion of the magistrate to whom they are addressed (Tell v. Tell, 48 Phil. 70; Macke v. Camps, 5 Phil. 185; Salva v. Palacio, et al., G.R. No. L-4247, January 30, 1952), the exercise of this power, however, ought to be prudent and just. It should always be predicated on the consideration that more than the convenience of the courts or of the parties of the case, the ends of justice and fairness would be served thereby. In the case at bar, this consideration seems to have been incompletely observed.

In the first place, the motion for postponement under consideration was the very first filed by the counsel for the appellant. Its ground was not unreasonable and hardly flimsy since it is not denied that then, the counsel for the appellant was under some contractual commitments from which he needed time to be released. Under these circumstances, it does seem that the denial of the motion prevented rather than serve the ends of justice.1vvphi1.ntThis Court has held that in incidents of this nature before the trial court two circumstances should be taken into consideration, namely, (1) the reasonableness of the postponement and (2) the merits of the case of the movant.3While the filing of the motion for postponement in the instant case may not be timely because it was done only on the day of the hearing, the circumstance, however, was that counsel for petitioner had a trial commitment in another court. As We have adverted to, the motion for postponement could not have been intended for delay as counsel for petitioner asked that the hearing be postponed to the next day.

The record shows that on the day of the hearing, on August 27, 1964, the petitioner was in possession of the two lots in question.4Possession is an attribute of ownership. This Court in remanding this case to the court below, as ordered in the decision in G.R. No. L-18372, November 29, 1962, was precisely impressed by the merit of the claim of ownership of petitioner.

We are of the considered view that under the circumstances obtaining in this case in the court below respondent Judge gravely abused his discretion when he issued the order of August 27, 1964 denying petitioner's motion to postpone the hearing of this case to the day following the date set for the hearing and reviving the previous order of the court adjudicating the property in question to respondent Beatriz Castaeda without giving petitioner a chance to present evidence in support of her claim of ownership over the said property. Likewise, respondent Judge gravely abused his discretion when he denied the three motions for reconsideration of the order of August 27, 1964 filed by petitioner.

At this juncture We consider it meet to quote what this Court said in the case ofMcEntee v. Manotok, supra, as follows:

At this stage of the proceedings we must remind judges and counsel that the rules of procedure are not to be applied in a very rigid, technical sense; rules of procedure are used only to help secure substantial justice. (Rule 1, Sec. 2). If a technical and rigid enforcement of the rules is made, their aim would be defeated. In the case at bar, it appears that the rules which are merely secondary in importance are made to override the ends of justice; the technical rules had been misapplied to the prejudice of the substantial right of a party.

WHEREFORE, the writ ofcertiorariprayed for is granted. The orders of respondent Judge in Cadastral Case No. 12, LRC Cad. Record No. 377 (Lots Nos. 9102 and 9103), of the Court of First Instance of Zambales, dated August 27, 1964, September 26, 1964, December 4, 1964, and February 3, 1965, respectively, are set aside. Respondent Judge is ordered to reopen the proceedings in the cadastral case herein-mentioned and receive the evidence that petitioner Leonor Manuel Castillo Udan will present in support of her claim of ownership over Lots Nos. 9102 and 9103, and decide the case accordingly. Costs against respondent Beatriz Castaeda. It is so ordered.

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