The motion for reconsideration of the foregoing order filed on February 5, having been denied on March 14, Garcia on March 28, 1977 with the Court of Appeals a special civil action CA-G.R. No. 06521 for certiorari entitled "Mariano Garcia v. Hon. Jose C. Razo and Frank C. Ramos" alleging that respondent Judge Razo, acted without or in excess jurisdiction and/or with grave abuse of discretion and to lack of jurisdiction in dissolving the injunction and delivering the possession of the lands in question to the private Respondent. Petitioner prayed that the lower Court’s Order of January 3, dissolving the injunction as well as the Order dated March 14, 1977, denying his motion for reconsideration, be set aside, and that another order be entered commanding private respondent Ramos to vacate the lands in question, and to restore him in possession thereof.
On March 31, 1977, the Second Division of the Court of Appeals gave due course to the petition and issued ex-parte a writ of preliminary injunction restoring possession of the real properties subject of litigation to Garcia. 5
Hence, this petition, alleging that the Court of Appeals acted without or in excess of its jurisdiction in giving due course to the petition, on the grounds that —
(1) The dissolution of the ex-parte writ of preliminary injunction by the trial court is a lawful exercise of its jurisdiction.
(2) The petition below does not show that irreparable loss and injustice will be suffered by the private respondent as a result of the dissolution of the injunction.
(3) The petition below is predicated on false, erroneous and misleading statements for contrary to his allegations, plaintiff Mariano Garcia, private respondent herein, was never appointed as "Farm Manager of the land described in the complaint nor an agent to be entitled to a reimbursement of expenses allegedly incurred by him.
(4) The order of the trial court dissolving the writ of preliminary injunction dated June 19, 1971, was issued after the parties were heard and relevant evidence received.
(5) In issuing the writ of preliminary injunction, ex-parte, respondent Court of Appeals violated the fundamental rule of injunction in that a court should not by means of a preliminary injunction transfer the property in litigation from the possession of one party to another whose title thereto has not been clearly established by law.
(6) The petition below raises the issue as to whether the trial court correctly applied jurisprudence, law and the Constitution the matter of dissolving the writ of injunction, hence the Court of Appeals has no jurisdiction to issue the writ of injunction. 6
which in a nutshell raise the issue of whether or not the Court of Appeals acted without jurisdiction or with grave abuse discretion amounting to lack of jurisdiction in giving due course to the petition for certiorari filed by the herein private respondent Garcia and in issuing the preliminary injunction restoring said private respondent Garcia in possession of the property in controversy.chanrobles law library : red
This petition is clearly invested with merit. For while the Court of Appeals had jurisdiction to take cognizance of the petition for certiorari filed by the herein private respondent, it, however, acted palpably with grave abuse of discretion amounting to lack of jurisdiction in issuing the preliminary injunction ex-parte.
The Court of Appeals took cognizance of respondent Garcia’s petition in aid of its appellate jurisdiction pursuant to the provisions of Section 30 of Rep. Act 296, as amended, considering that factual and legal issues are involved in the action brought before the trial court and, therefore, any appeal from the decision of the court below would fall within the exclusive appellate jurisdiction of the Court of Appeals. 7 But it acted with grave abuse of discretion when it issued without hearing 8 the subject writ of preliminary injunction restoring respondent Garcia in possession of the litigated property. Indeed, the Rules 9 and jurisprudence 10 require that no preliminary injunction shall issue without hearing. Section 5, Rule 58 of Revised Rules of Court explicitly provides that:jgc:chanrobles.com.ph
"SEC. 5. PRELIMINARY INJUNCTION NOT GRANTED WITHOUT NOTICE; EXCEPTION. — No preliminary injunction shall be granted without notice to the defendant unless it shall appear from facts shown by affidavits or by the verified complaint that great or irreparable injury would result to the applicant before the matter can be heard on notice. The judge to whom the application preliminary injunction was made, must cause an order to be served on the defendants, requiring him to show cause, at a specified time and place why the injunction should not be granted." (Emphasis supplied.)
Aside from the fact that the issuance ex-parte of a preliminary injunction is considered the exception rather than the rule, the party applying for its issuance must show a clear right thereto the violation of which is so recent as to makes its vindication an urgent one. 11 In Locsin v. Climaco, 12 We made the pronouncement that the applicant’s right or title must be clear and unquestioned, for equity, as a rule, will not take cognizance of suits to establish title, and will not lend its preventive aid by injunction where the applicant’s title or right is doubtful or disputed. So that if a writ of preliminary injunction is issued despite applicant’s doubtful title to the property in controversy or lack of interest therein, the Court is justified in dissolving the writ. Thus, in Pio v. Marcos, 13 We said: "It is always a ground for denying injunction that the party seeking it has insufficient title or interest to sustain it, and no claim to the ultimate relief sought — in other words, that he shows no equity. Want of equity to use the injunctive process of the Court to enforce a mere barren right will justify the Court in refusing the relief."cralaw virtua1aw library
In the case at bar, the cause or claim of respondent Garcia against the petitioner is not clear. He claims that he had an option to purchase the property, whereas the record shows that the very same property had already been purchased by the petitioner. He claims that he was appointed farm manager of the lots, whereas the trial Court found that his appointment did not extend to the two parcels in question. True it is that respondent Garcia was also given the opportunity to purchase the land himself, but he failed to signify his intention to avail of such opportunity within the period fixed by Mrs. Gardner. Verily, respondent Garcia miserably failed to show any clear legal right to purchase the property at this late date.
On the other hand, petitioner took actual physical possession of the property on February 26, 1971 immediately upon arrival from the United States; cleared, fenced and planted on it, declared it in his name for taxation purposes and paid all the realty taxes due thereon; and was disturbed in possession thereof only on June 18, 1971, when Judge Quicho order the issuance of the writ of preliminary injunction by virtue of which petitioner Ramos was enjoined from entering upon and molesting respondent Garcia’s possession. Subsequently, however, Judge Razo, upon motion of petitioner, dissolved the writ, taking into account the fact that it was issued ex-parte. In so doing, Judge Razo acted providently.
We discourage the issuance of injunction ex-parte and deplore the readiness of some judges to grant and issue the same. We have repeatedly held that preliminary injunction is an extraordinary, peremptory remedy that should be dispensed with circumspection, and both sides should first be heard whenever possible. 14 So that when an injunction is improvidently issued, the issuing Court may recall or modify it. This is authorized by Section 7, Rule 58 of the Rules of Court which specifically provides that: "after hearing on the merits the court may grant or refuse, continue, modify or dissolve the injunction as justice may require," because after all the issuance or recall of a preliminary writ of injunction is an interlocutory matter that remains at all times within the control of the Court. Judge Razo was guided by and acted pursuant to the aforesaid provisions when he dissolved the preliminary injunction improvidently issued by Judge Quicho.chanrobles.com : virtual law library
In fine, We perceive no plausible reason to disturb the order of Judge Razo dissolving the writ of injunction and, therefore, the Court of Appeals acted with grave abuse of discretion resolution of March 31, 1977, directing the issuance of a writ of preliminary injunction, as in fact the writ was issued on the same day, which restored respondent Garcia in possession of the lots in question.
WHEREFORE, judgment is hereby rendered annulling and setting aside the resolution of the Court of Appeals dated March 31, 1977 and the writ of preliminary injunction issued on the same date pursuant thereto, and converting temporary restraining order issued by this Court on April 21, 1977 into a permanent injunction. Costs against private respondent Mariano Garcia.
Barredo, Antonio, Aquino and Concepcion Jr., concur.
Abad Santos, J., took no part.
1. JJ. Andres Reyes, Chairman, Mariano Serrano and Vicente Santiago, Jr., members.
2. Rollo, Annex 3 at p. 29; Annex 4, p. 30.
3. Id., Annex 3, p. 29.
4. Id., Annex 4, p. 30.
5. Id., Annex 1, p. 69.
6. Rollo, pp. 7-9.
7. Sec. 29, RA 296, as amended: Medina v. Gen. Manuel Yan, Et Al., L-30978, Sept. 30, 1974; Lagman, Et Al., v. Investment Planning Corp. of the Phil., L-18103, Feb. 29, 1964; Tubera, Et. Al. v. Fernando Et. Al., L-18492, March 31, 1964.
8. Señeres, Et. Al. v. Frias, Et. Al. 39 SCRA 533.
9. Sec. 5, Rule 58, Revised Rules of Court.
10. Butuan Lumber Mfg. Co., Inc., v. Ortiz, 9 SCRA 451.
11. Subido v. Gopengco, L-25618, March 26, 1969.
12. 26 SCRA 930.
13. 56 SCRA 726.
14. The Police Commission v. Hon. Bello, Et Al., 37 SCRA 230; Señeres, Et. Al. v. Terias, 39 SCRA 533.