SECOND DIVISION

[G.R. No. 103185. January 22, 1993.]

CONRADO CALALANG, petitioner, vs. THE COURT OF APPEALS

and FILIPINAS MANUFACTURERS BANK, respondents.

Fernando C. Cojuangco for petitioner.

Crisostomo J. Danguila for private respondent.

SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; PRE-TRIAL CONFERENCE; DISCRETION

OF THE TRIAL COURT TO DECLARE A PARTY NON-SUITED FOR NON-
APPEARANCE THEREON, MUST NOT BE ABUSED; CASE AT BAR. — A pre-trial
cannot validly be held until the last pleading has been filed, which last pleading
may be the plaintiff's reply, except where the period to file the last pleading
has lapsed. The period to appear and file the necessary pleading having
expired on the Acropolis Trading Corporation, the lower court can direct that a
pre-trial conference be held among the answering defendants. however, though
it is within the discretion of the trial court to declare a party non-suited for non
appearance in the pre-trial conference, such discretion must not be abused.
The precipitate haste of the lower court in declaring the respondent bank non-
suited was uncalled for and deserved a second look. Considering the fact that
the counsel for the plaintiff/respondent bank did arrive for the pre-trial
conference, though a bit late and that counsel for the defendant was himself
also late, the trial court should have called the case again. An admonition to
both counsels to be more prompt in appearing before the Court as scheduled
would have sufficed, instead of having dismissed the complaint outright. Unless
a party's conduct is so negligent, irresponsible, contumacious, or dilatory as to
provide substantial grounds for dismissal for non-appearance, the courts should
consider lesser sanctions which would still amount into achieving the desired
end. "Inconsiderate dismissals, even if without prejudice, do not constitute a
panacea nor a solution to the congestion of court dockets, while they lend a
deceptive aura of efficiency to records of individual judges, they merely
postpone the ultimate reckoning between the parties. In the absence of clear
lack of merit or intention to delay, justice is better served by a brief
continuance, trial on the merits, and final disposition of the cases before the
court." (Ruiz vs. Estenzo, 186 SCRA 8 [1990] citing Macasa vs. Herrera, 101 Phil.
44 [1957]). And there is authority that an order dismissing a plaintiff's
complaint without prejudice for failure of his counsel to appear at a pre-trial
conference must be reversed as too severe a sanction to visit on a litigant
where the record is devoid of evidence reflecting the litigant's willful or flagrant
disregard for the Court's authority.
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 2. ID.; ID.; DISMISSAL OF ACTIONS; FAILURE TO PROSECUTE, AS A GROUND;
TO BE SUFFICIENT DELAY MUST NOT ONLY BE LENGTHY BUT ALSO
UNNECESSARY AND DILATORY. — The acts of the respondent bank do not
manifest lack of interest to prosecute, in the absence of proof that it indeed
abandoned or intended to abandon its case against petitioner and the other
defendants. Admittedly there was delay in this case, but such delay, We hold, is
not the delay warranting dismissal. To be a sufficient ground for dismissal,
delay must not only be lengthy but also unnecessary and dilatory resulting in
the trifling of judicial processes. In Marahay vs. Melicor, (181 SCRA 811 [1990],
citing 1 MORAN, COMMENTS ON THE RULES OF COURT 521 [1979 Ed.], Perez,
et al. v. Perez, et al., 73 SCRA 517 [1967]), the Court set forth the test for
dismissal of a case due to failure to prosecute, to wit: "While a court can
dismiss a case on the ground of non prosequitur, the real test for the exercise
of such power is whether. under the circumstances, plaintiff is chargeable with
want of due diligence in failing to proceed with reasonable promptitude. In the
absence of a pattern or scheme to delay the disposition of the case or a wanton
failure to observe the mandatory requirement of the rules on the part of the
plaintiff, as in the case at bar, courts should decide to dispense with rather than
wield their authority to dismiss." Dismissal of a case for failure to prosecute is a
matter addressed to the sound discretion of the court. That discretion,
however, must not be abused. Thus, courts may not enter a dismissal which is
not warranted by the circumstances of the case. The availability of this
recourse must be determined according to each case's procedural history,
situation at the time of the dismissal and whether, and under the circumstances
of the particular case, the plaintiff is chargeable with want of due diligence in
failing to proceed with reasonable promptitude.

DECISION

CAMPOS, JR., J : p

This is a petition for review on certiorari seeking to annul the decision * of the
Court of Appeals which set aside the order of dismissal issued by the lower
court, ** in Civil Case No. 36907 entitled "Filipinas Manufacturers Bank, plaintiff,
versus Hugo Arca, Conrado Calalang, Rio Arturo R. Salceda and Acropolis
Trading Corporation, defendants".
The antecedent facts, as culled from the records, are as follows:
On April 29, 1980, respondent Filipinas Manufacturers Bank filed a complaint for
collection of a sum of money 1 against petitioner Conrado Calalang and 3 other
defendants namely, Hugo M. Arca, Rio Arturo Salceda and the Acropolis Trading
Corporation with the Court of First Instance of Rizal, 7th Judicial District Branch
36, Makati under Judge Segundo M. Zosa.
Petitioner, after having been served with summons on May 19, 1980, filed a
Motion to Dismiss on June 2, 1980. The other summoned defendant, Hugo M.
Arca, filed a Motion for Bill of Particulars on June 5, 1980. The two other
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 defendants namely, the Acropolis Trading Corporation and Rio Arturo Salceda
were also summoned but only a clerk-employee of the Acropolis Trading
Corporation received the summons while Arturo R. Salceda was no longer
residing at his given address.

Over a year after, the Motion for Bill of Particulars was granted on August 24,
1981 by Judge Zosa. Meanwhile, the Motion to Dismiss filed by petitioner
Calalang was left unresolved. The last pleading filed regarding the Motion to
Dismiss was the reply of petitioner Calalang to the opposition to the motion to
dismiss by respondent bank which was filed on August 5, 1980.
On August 10, 1981, Batas Pambansa Blg. 129 (The Judiciary Reorganization
Act) was passed by the Batasang Pambansa and subsequently approved by
then President Marcos on August 14, 1981.
On November 27, 1981, defendant Arca filed a Motion to Dismiss which
necessitated the filing of various pleadings in relation thereto by respondent
bank herein, and defendant Arca.

On May 25, 1983, a hearing was scheduled under Judge Florentino Dela Peña of
the Makati Regional Trial Court, Branch 134. But then, the case was transferred
to the Makati Regional Trial Court, Branch 150, presided over by Judge Benigno
M. Puno who, on August 8, 1985, issued an Order to wit: cdphil

"After a careful and thorough study of the defendant Calalang's

(petitioner herein) motion to dismiss, dated May 31, 1980 and the
Counter Manifestation and motion to dismiss dated November 25,
1981, filed by defendant Arca, together with the plaintiff's opposition,
defendant movants' replies or rejoinder, the Court finds that the
matters relied upon by said movants for the dismissal of the Complaint
are evidentiary in character, the truth or veracity of which are better
determined at the hearing on the merits and, therefore, said motions
are DENIED for lack of merit.

WHEREFORE, defendants are hereby ordered to file their Answers to

the Complaint within the reglementary period.
SO ORDERED." 2

On October 3, 1986, Gella Reyes Vergara Alcala and Associates entered its
appearance as counsel for respondent bank.
On October 30, 1985, defendant Arca filed his answer with compulsory
counterclaim to the complaint which was received by respondent bank's former
counsel, Emerito M. Salva and Associates on November 4, 1985.

It appears that this case has been set several times for pre-trial (November 29,
1985, January 29, 1986, May 12, 1986, November 19, 1986, January 14, 1987
and February 27, 1987). For the first two scheduled hearings, respondent
bank's counsel failed to appear causing the dismissal without prejudice of the
case which was nevertheless set aside upon respondent bank's motion for
reconsideration of the dismissal. The November 19, 1986 hearing was
transferred to January 14, 1987 upon agreement by both counsels. For the last
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 two scheduled dates counsel for the defendant Hugo Arca failed to appear.

Judge Benigno M. Puno was replaced by Judge Federico Y. Alikpala, Jr. as the
presiding judge of the Makati Regional Trial Court, Branch 150 who, on March 6,
1987, issued an Order, quoted hereunder as follows:
"The records of this case show that among the defendants herein are:
(a) Rio Arturo R, Salceda; and (b) Acropolis Trading Corporation. The
Sheriff's Return, dated June 4, 1980 (Records Page 33) show the
following report on the service of summons thereto:
As to defendant Acropolis Trading Corporation: "Served
upon the defendant thru Miss BETH REYES, Clerk-employee,
employed thereat, who signed for the receipt hereof."
As to defendant Rio Arturo Salceda: "Not serve (sic),
defendant is not residing at the given address, occupant is
Leonito Acuron."

The Court hereby informs the plaintiff that it shall not consider
defendant Acropolis Trading Corporation as having been properly
brought under the jurisdiction of this Court in view of the improper
service of summons on said corporation (Sec. 13 of Rule 14, Revised
Rules of Court).

In view of the foregoing, plaintiff is hereby directed to inform the Court,

within ten (10) days from its receipt hereof, what steps plaintiff intends
to take with respect to the said two defendants so that the Court will
know whether plaintiff is still interested in the prosecution and/or
outcome of this case.
With respect to defendants Conrado T. Calalang, the latter had filed a
motion to dismiss which, however, was denied by the Court per Order
dated August 8, 1985. The records of this case do not, however, show
whether a copy of the said Order was transmitted to, or received by,
counsel for the said defendant. In any event, said defendant had not
filed any motion for the reconsideration of the said Order, nor had said
defendant filed his answer in this case. Let, therefore, a copy of the
Order dated August 8, 1985 be sent to the defendant Conrado T.
Calalang, through his counsel of record, Attys. N.J. Quisumbing &
Associates of the Lawyers' Inn. LibLex

Inasmuch as it would appear that the setting of this case for pre-trial
was premature, since issues herein do not appear to have been really
joined, the pre-trial conference scheduled in this case for April 8, 1987
is cancelled until further assignment or until any of the parties herein
shall make the appropriate steps in connection therewith.
xxx xxx xxx" 3

The above Order was received by petitioner's counsel on March 13, 1987. 4
On March 17, 1987, respondent bank, in response to the Order dated March 6,
1987, filed a manifestation stating that:

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 "1. It is very much interested in prosecuting the complaint against
the defendants Acropolis Trading and Salceda;
2. Pursuant to this, counsel has requested the Credit Investigation
Department of plaintiff to verify the correct addresses of said
defendants including all necessary facts for the proper service of
summons on them;
3. Upon verification, plaintiff will then move for the issuance of Alias
Summons on the said defendants." 5

Thereafter, on March 24, 1987, petitioner Calalang moved to dismiss the

complaint on the ground that respondent bank failed to prosecute the case for
an unreasonable length of time. 6

On April 3, 1987, the trial court 'issued another Order, to wit:

"Before this Court is plaintiff's "Manifestation" filed on March 18, 1987
stating that plaintiff is interested in prosecuting its complaint against
defendants Acropolis Trading and Rio Arturo R. Salceda; this
manifestation was made as a consequence of the directives set out in
the second paragraph of the Order dated March 6, 1987.

Since the Court cannot let an unreasonable period pass for plaintiff to
cause service of alias summons on the aforesaid defendants, the Court
hereby resolves that if plaintiff shall still be unable to cause service of
alias summons on the said defendants within thirty (30) days from
plaintiff's receipts hereof, then this Court will dismiss the complaint as
against said defendants and proceedings herein shall be limited to the
defendants on whom summons had been served as of the lapse of said
30 days' period." 7

Thereafter, on May 8, 1987, respondent bank moved for the issuance of alias
summons on defendant Acropolis Trading Corporation through its
President/Director Conrado T. Calalang or through its director Hugo M. Arca. 8

Judge Zosimo Z. Angeles of the Makati Regional Trial Court, Branch 58, to whom
the case was assigned after Judge Federico Y. Alikpala, Jr., then issued an
Order, dated July 16, 1987, denying the Motion to Dismiss filed by petitioner for
lack of merit. The motion for alias summons was granted. Entry of appearance
of Atty. Crisostomo J. Danguilan as counsel for respondent bank was noted in
the same order. 9

Petitioner then filed his answer only on November 10, 1987. 10

On November 16, 1987, the trial court issued an Order setting the pre-trial of
the case for January 7, 1988 at 8:30 a.m. 11
At the pre-trial conference, respondent bank's counsel arrived 15 minutes late
or at 8:45 a.m. However, the case had already been dismissed. Thus, in the
Order of January 7, 1988, the court declared:
"For failure of plaintiff's counsel to appear inspite of notice and
considering that this case has been pending for seven (7) years,
without plaintiff having taken positive steps to prosecute the same, it is
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 hereby DISMISSED pursuant to Section 3, Rule 17, Rules of Court.
Defendants' counterclaim is likewise dismissed." 12

On January 12, 1988, counsel for the respondent bank filed a Motion for
Reconsideration of the order of dismissal citing as reason for his late arrival
"the unusually heavy traffic he encountered along Kamias Road in Quezon City,
which was caused by a stalled Jeepney along the main thoroughfare." 13 The
motion was denied on January 26, 1988. The respondent bank appealed the
dismissal to the respondent Court. On October 25, 1991, the respondent Court
promulgated the assailed decision, the dispositive portion of which is quoted
hereunder: prLL

"WHEREFORE, the Order of the court a quo dated January 9, 1988

dismissing this case and its Order dated January 26, 1988 denying
reconsideration of the first order are hereby SET ASIDE, and this case is
ordered remanded to the court of origin for further proceedings.
No pronouncement as to costs.
SO ORDERED." 14

The petitioner's Motion for Reconsideration having been denied by the Court of
Appeals, he filed this instant petition with this Court alleging that the
respondent Court erred in:
1.) absolving respondent bank for the delay in the pursuit of the
case;
2.) declaring the January 7, 1988 pre-trial as premature;
3.) holding that respondent bank "did not entirely fall to appear";
4.) invoking the liberal application of the rules of procedure in favor
of the respondent bank;
5.) not having found abuse in the dismissal by the lower court of
the case at bar, there is no basis for the respondent court to reverse
the order of dismissal.

The pre-trial conference scheduled for January 8, 1987 was not premature. A
pre-trial cannot validly be held until the last pleading has been filed, which last
pleading may be the plaintiff's reply, except where the period to file the last
pleading has lapsed. 15 The period to appear and file the necessary pleading
having expired on the Acropolis Trading Corporation, the lower court can direct
that a pre-trial conference be held among the answering defendants. however,
though it is within the discretion of the trial court to declare a party non-suited
for non appearance in the pre-trial conference, such discretion must not be
abused. The precipitate haste of the lower court in declaring the respondent
bank non-suited was uncalled for and deserved a second look. Considering the
fact that the counsel for the plaintiff/respondent bank did arrive for the pre-trial
conference, though a bit late and that counsel for the defendant was himself
also late, the trial court should have called the case again. An admonition to
both counsels to be more prompt in appearing before the Court as scheduled
would have sufficed, instead of having dismissed the complaint outright.
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 Unless a party's conduct is so negligent, irresponsible, contumacious, or
dilatory as to provide substantial grounds for dismissal for non-appearance, the
courts should consider lesser sanctions which would still amount into achieving
the desired end. 16
"Inconsiderate dismissals, even if without prejudice, do not constitute a
panacea nor a solution to the congestion of court dockets, while they
lend a deceptive aura of efficiency to records of individual judges, they
merely postpone the ultimate reckoning between the parties. In the
absence of clear lack of merit or intention to delay, justice is better
served by a brief continuance, trial on the merits, and final disposition
of the cases before the court." 17

And there is authority that an order dismissing a plaintiff's complaint without

prejudice for failure of his counsel to appear at a pre-trial conference must be
reversed as too severe a sanction to visit on a litigant where the record is
devoid of evidence reflecting the litigant's willful or flagrant disregard for the
Court's authority. 18
Petitioner's contention that the respondent Court erred in absolving respondent
bank for the delay in the resolution of this case, maintaining that "the case was
dismissed out of its inordinate refusal to heed the warnings of the court", is not
borne out by the records of this case. The seven-year delay is not attributable
to the respondent bank alone but to circumstances beyond its control. The
respondent Court found that: cdphil

"While it is true that the case had been pending for that length of time
we find that the delay is not to be attributed entirely to the plaintiff in
this case. The records show that various incidents were raised by the
defendants Calalang and Arca who filed separate pleadings and were
represented by different counsels.
Calalang filed a motion for the dismissal of the case on the ground that
the plaintiff had no cause of action against him. This necessitated the
filing of an opposition from the plaintiff, a reply to said opposition from
the defendant Calalang, and a rejoinder to the said reply. The
defendant Arca, on the other hand. initially sought an extension of time
to file a responsive pleading, then filed a motion for bill of particulars,
then later also a motion to dismiss the case. After his motion to dismiss
was denied Arca filed a motion for reconsideration. In all these
incidents pleadings and counter-pleadings were filed and hearings held
on the motions, which resulted in the case dragging on for a
considerable time.
The case was set for pre-trial several times when, as aforestated, the
issues were not yet joined for only Arca had initially filed his answer to
the complaint. The case was ordered dismissed at least two (2) times
when the plaintiff's counsel failed to appear at these pre-trials but the
dismissals were reconsidered and the case set anew.
Another factor that contributed to the confusion in the proceedings and
the delay in the case is the fact that the case was assigned from one
Judge to another due probably to the judicial reorganization that took
place. The records show that there were no less than four (4) judges
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 who handled the case - Judges Segundo Zosa, Benigno M. Puno,
Federico Alikpala, Jr., and Zosimo Angeles.
The answer of defendant Arca to the complaint was filed only on
October 30, 985 while that of defendant Calalang was filed only on
November 10, 1987." 19

Again, petitioner's contention that the fact that respondent bank had not
caused service of summons on the two other defendants, the Acropolis Trading
Corporation and Rio Arturo Salceda, for almost seven years after the complaint
was filed on April 29, 1980 indicated "abuse of judicial leniency and tolerance"
is bereft of merit. Summons is issued by the clerk of court upon the filing of the
complaint. When it was informed later on by Judge Alikpala. Jr. in his Order
dated March 6, 1987 that there was an improper service on defendants
Acropolis Trading Corporation and Rio Arturo Salceda, respondent bank, in
compliance therewith, filed a motion for alias summons, as permitted by the
law.

Considering the judicial reorganization which took place during the pendency of
this case and the numerous instances raised by both petitioner and respondent
bank as contributing to the delay, petitioner cannot now claim that respondent
bank's "abuse of judicial leniency and tolerance is the single greatest
component of this delay". 20
The acts of the respondent bank do not manifest lack of interest to prosecute,
in the absence of proof that it indeed abandoned or intended to abandon its
case against petitioner and the other defendants. Admittedly there was delay in
this case, but such delay, We hold, is not the delay warranting dismissal. To be
a sufficient ground for dismissal, delay must not only be lengthy but also
unnecessary and dilatory resulting in the trifling of judicial processes. cdll

In Marahay vs. Melicor, 21 the Court set forth the test for dismissal of a case due
to failure to prosecute, to wit:
"While a court can dismiss a case on the ground of non prosequitur, the
real test for the exercise of such power is whether. under the
circumstances, plaintiff is chargeable with want of due diligence in
failing to proceed with reasonable promptitude. In the absence of a
pattern or scheme to delay the disposition of the case or a wanton
failure to observe the mandatory requirement of the rules on the part
of the plaintiff, as in the case at bar, courts should decide to dispense
with rather than wield their authority to dismiss."

Dismissal of a case for failure to prosecute is a matter addressed to the sound

discretion of the court. That discretion, however, must not be abused. Thus,
courts may not enter a dismissal which is not warranted by the circumstances
of the case. 22 The availability of this recourse must be determined according to
each case's procedural history, situation at the time of the dismissal and
whether, and under the circumstances of the particular case, the plaintiff is
chargeable with want of due diligence in failing to proceed with reasonable
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 promptitude. 23

". . . The desideratum of a speedy disposition of cases should not, if at

all possible, result in the precipitate loss of a party's right to present
evidence and either in plaintiff's being non-suited or the defendant's
being pronounced liable under an ex-parte judgment.

". . . (T)rial courts have . . . the duty to dispose of controversies after

trial on the merits whenever possible. It is deemed an abuse of
discretion for them, on their own motion, 'to enter a dismissal which is
not warranted by the circumstances of the case' (Municipality of
Dingras v. Bonoan, 85 Phil. 458-59 [1950]). While it is true that the
dismissal of an action on grounds specified under Section 3, Rule 17 of
the Revised Rules of Court is addressed to their discretion (Flores v.
Phil. Alien Property Administrator, 107 Phil. 778 [1960]; Montelibano v.
Benares, 103 Phil. 110 [1958]; Adorable v. Bonifacio, 105 Phil. 1269
[1959]; Inter-Island Gas Service, Inc. v. De la Gerna, L-17631, October
19, 1966, 18 SCRA 390), such discretion must be exercised soundly
with a view to the circumstances surrounding each particular case
(Vernus-Sanciangco v. Sanciangco, L-12619, April 28, 1962, 4 SCRA
1209). If facts obtain that serve as mitigating circumstances for the
delay, the same should be considered and dismissal denied or set
aside (Rudd v. Rogerson, 15 ALR 2d 672; Cervi v. Greenwood, 147 Colo
190, 362 P. 2d 1050 [1961]), especially where the suit appears to be
meritorious and the plaintiff was not culpably negligent and no injury
results to defendant (27 C.J.S. 235-36, 15 ALR 3rd 680)." (Abinales vs.
Court of First Instance of Zamboanga City, Br. I, 70 SCRA 590, 595). LLphil

"It is true that the allowance or denial of petitions for postponement

and the setting aside of orders previously issued, rest principally upon
the sound discretion of the judge to whom they are addressed, but
always predicated on the consideration that more than the mere
convenience of the courts or of the parties of the case, the ends of
justice and fairness would be served thereby (Camara Vda. de Zubiri v.
Zubiri, et al., L-16745, December 17, 1966) . . ." 24

IN VIEW OF THE FOREGOING, the petition is DISMISSED. The decision of the

Court of Appeals dated October 25, 1991 and its Resolution of December 12,
1991 are both AFFIRMED. Costs against petitioner.
SO ORDERED.
Narvasa, C .J ., Feliciano, Regalado and Nocon, JJ ., concur.

Footnotes

* CA G.R. CV No. 27344, Associate Justice Salome A. Montoya, ponente,

Associate Justices Eduardo R. Bengzon and Fortunato A. Vailoces, concurring.
** Makati Regional Trial Court, Branch 56, presided over by Judge Zosimo Z.
Angeles.
1. P1,350,000.00 evidenced by a promissory note titled "Commercial Paper No.
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 CP 115511".
2. Original Records, p. 136.
3. Original Records, pp. 222-223.
4. Original Records, p. 223, Registry Receipt No. 1199.

5. Original Records, p. 224.

6. Revised Rules of Court, Rule 17, Sec. 3.
7. Original Records, p. 236.
8. Original Records, p. 237.
9. Original Records, p. 239.

10. Original Records, p. 240.

11. Original Records, p. 245.
12. Original Records, p. 249.
13. Original Records. p. 250.

14. Court of Appeals Records, p. 95.

15. 1 REGALADO, REMEDIAL LAW COMPENDIUM 183 (5th Rev. Ed.), citing
Pioneer Insurance & Surety Corp. vs. Hontanosas, 78 SCRA 447 (1977).

16. 62A Am. Jur. 2d 602 citing Willis v. RCA Corp. (Cuyahoga Co.), 12 Ohio App.
3d 1, 12 Ohio BR 57, 465 N.E. 2d 924.

17. Ruiz vs. Estenzo, 186 SCRA 8 (1990) citing Macasa vs. Herrera, 101 Phil. 44
(1957).

18. 62A Am. Jur. 2d 602 citing Garland v. Dixie Ins. Co. (Fla App. D4) 495 So.
2d. 785, 11 FLW 1986, Aller v. Editorial Planeta. S.A. (Fla App. D3) 389 So.
2d. 321.
19. Rollo, p. 22.
20. Rollo, p. 13.

21. 181 SCRA 811 (1990), citing 1 MORAN, COMMENTS ON THE RULES OF
COURT 521 (1979 Ed.), Perez, et al. v. Perez, et al., 73 SCRA 517 (197).

22. Supra, note 17.

23. 24 Am. Jur. 2d 50.
24. Padua vs. Ericta, 161 SCRA 458, 459-460 (1988).

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