1. PETITION FOR RELIEF; REQUIREMENTS; INSUFFICIENCY OF AFFIDAVIT OF MERIT IN CASE AT BAR. — A petition for relief should be verified and accompanied with an affidavit of merit, and should set forth facts or a set of facts sufficient to constitute one of the grounds for relief under Rule 33 of the Rules of Court. In the case at bar, the affidavit of merit subscribed by appellant’s counsel and printed in the Record on Appeal after the opposition filed by appellee in which the sufficiency of the petition for relief was raised because of the absence of an affidavit of merit to support it, may be presumed to have been filed to cure the defect in the petition. However, because the allegations of fact made therein do not prove either fraud, accident, mistake or excusable negligence, nor show a valid defense in favor of the party seeking relief, it is insufficient to cure the defect.

This is an appeal from the order of the Court of First Instance of Rizal (Branch of Quezon City) denying appellant’s petition for relief from a final and executory judgment rendered on December 16, 1959 in Civil Case No. Q-4290.

It appears that on June 7, 1959, appellee filed the above- mentioned case against appellant to recover possession of a parcel of land containing an area of approximately 550 square meters, to have him remove his house and other constructions therefrom, and to recover the monthly sum of P165.00 as rental from the date he unlawfully occupied the property in April 1949, until possession thereof has been restored to appellee. Appellant filed his answer and, after trial on the merits, the court rendered decision in favor of appellee on October 21 of the same year. Said decision became final and executory and the corresponding writ of execution was issued on December 5, 1959. On the 16th of the same month and year, appellant filed the petition for relief mentioned heretofore, to which appellee interposed a written opposition. After a hearing on the petition, the Court denied the same because it did "not comply with the provisions of the Rules of Court with respect thereto. Besides, the said Motion for Relief from Judgment is not supported by the corresponding affidavit of merit and does not allege any showing of fraud, accident, mistake or excusable negligence to serve as a valid basis of the petition."cralaw virtua1aw library

The order appealed from must be affirmed.

While the petition for relief was verified, it sets forth no fact or set of facts sufficient to constitute one of the grounds for relief under Rule 38 of the Rules of Court. And as the lower court stated in the appealed order, the petition was not accompanied with an affidavit of merit.

We notice, however, that on pages 12 to 15 of the Record on Appeal, there appears an affidavit of merit subscribed by Cornelio Ruperto, counsel for appellant in this case, as well as in Civil Case No. Q-4290. As it appears printed after the opposition filed by appellee in which the insufficiency of the petition for relief was raised because of the absence of an affidavit of merit to support the same, it may be presumed that this affidavit was prepared to meet and solve the situation. It is, however, clearly insufficient to cure the defect of the petition, because the allegations of fact made therein do not prove either fraud, accident, mistake or excusable negligence, nor do they show a valid defense in favor of the party seeking relief.

WHEREFORE, the order appealed from is affirmed, with costs.

Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes, Regala and Makalintal, JJ., concur.

Labrador, J., took no part.