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Motion For Reconsideration Replevin Case

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89 views6 pages

Motion For Reconsideration Replevin Case

Uploaded by

maycil ambag
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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REPUBLIC OF THE PHILIPPINES

THIRD JUDICIAL REGION

x----------------------------------------------------x CIVIL CASE NO. ________

FOR: REPLEVIN AND/OR


SUM OF MONEY (WITH
Defendants. PROVISIONAL REMEDY
OF WRIT OF REPLEVIN)
X--------------------------------------------------------
x---------------------------------------x
X

MOTION FOR RECONSIDERATION


(Of the Order Dated April 19, 2024)

COMES NOW, Respondent through undersigned counsel and unto


this Honorable Court respectfully states THAT:

PURPOSE

The subject matter of this Motion for Reconsideration is the Order of


this Honorable Court dated April 19, 2024, which reads:

“ Considering that the defendant failed to appear in today’s hearing


as well as submit his preliminary conference brief within…..(PUTOL
YUNG SINEND MO MARSIE.”

MATERIAL DATES

The Order of this Honorable Court dated April 19, 2024 was served at
the law office through private courier/registered mail of the undersigned
counsel and received by the office secretary on ---. The fifteenth (15 th) day
or the last day within which petitioner can move for the reconsideration of

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the said order is until May ----2024. Thus, this Motion for Reconsideration is
timely filed.

GROUNDS FOR RECONSIDERATION

Availing of his rights enshrined under Section 1, Rule 52, of the Rules
of Court, petitioner move for the reconsideration of the Order dated April
19, 2024 based on the following grounds:

I.

THE ABSENCE OF THE RESPONDENT AND THE


UNDERSIGNED COUNSEL DURING THE SCHEDULED HEARING
ON ------ WAS FOR A JUSTIFIABLE CAUSE AND NOT A WILLFUL
DISREGARD OF THE ORDERS OF THIS HONORABLE COURT
WHICH WILL JUSTIFY THE DISMISSAL OF THE PETITION.

II.

THE ENDS OF JUSTICE AND FAIRNESS WOULD BE BEST


SERVED IF THE RESPONDENT WILL BE GIVEN ANOTHER
OPPORTUNITY TO FULLY THRESH OUT THE ISSUES IN A FULL-
BLOWN TRIAL.

DISCUSSION

I.
THE ABSENCE OF THE PETITIONER AND
THE UNDERSIGNED COUNSEL DURING THE
SCHEDULED HEARING ON ------FACTS WAS
FOR A JUSTIABLE CAUSE AND NOT A
WILLFUL DISREGARD OF THE ORDER OF
THIS HONORABLE COURT AND WILL
JUSTIFY THE DISMISSAL OF THE
COMPLAINT FILED.
The order
dated April 19, 2024, was based solely on the respondent and his
undersigned counsel’s absence during the scheduled hearing for the initial

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hearing to establish jurisdictional facts on April 19, 2024 as it was construed
by this Honorable Court as without justifiable cause and their failure to
comply with its order has the effect of rendition of judgment on
Complainants’ favor.

While it cannot be gainsaid that court can render judgment based on


the aforementioned rule, however, and without irreverence, the rendition of
judgment in favor of the complainant based on respondents’ absence and
that of his counsel to establish jurisdictional facts should not be done with
precipitate haste without giving the respondent and his counsel the
opportunity to justify their absence in order to determine whether or not their
absence was, indeed, unjustifiable and is intended to disobey and disrespect
the order of this Honorable Court.

The pronouncement of the Supreme Court in the case of Calalang vs.


Court of Appeals G.R. No. 103185 January 22, 1993, applies strongly in
this case, viz:

“x x x 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.

xxxxxxxxx

Unless a partys 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 the 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 plaintiffs complaint without prejudice for
failure of his counsel to appear at a pre-trial conference must be
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reversed as too severe a sanction to visit on a litigant where the
record is devoid of evidence reflecting the litigants willful or flagrant
disregard for the Courts authority.”

In this case, the petitioner and his counsel’s absence on the scheduled
initial hearing to establish jurisdictional facts was because the
respondent Bern Maglaqui belated learned of the date of the scheduled
hearing because he was not to aware of the said date as he has to
attend to a more urgent matter which is personal to him. The
respondents’ counsel likewise has a personal knowledge of the
scheduled hearing as it was the office of the undersigned counsel that
received the order of this Honorable Court for the date of the
scheduled hearing. Although, the counsel had duly informed the
respondent, however, because of the unavailability of the respondent
on that scheduled hearing, counsel then attended on the scheduled
hearing but respondent arrive late thereof.

A single instance of non-appearance of the respondent and


undersigned counsel should not be construed a willful disregard of the
orders of this Honorable Court which will justify the rendition of
judgment in complainants’ favor.

In Marahay v. Melicor, G.R. No. 44980, February 6, 1990,


181 SCRA 811, 817. the Supreme Court ruled that:

“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.

II.

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THE ENDS OF JUSTICE AND FAIRNESS
WOULD BE BEST SERVED IF THE
RESPONDENT WILL BE GIVEN AN
OPPORTUNITY TO FULLY THRESH OUT
THE ISSUES IN A FULL –BLOWN TRIAL.

The respondent and the undersigned counsel has clearly establish the
reasons for this absence during the initial hearing and considering that they
have not shown culpable negligence or wanton disregard or failure to
observe the mandatory requirement of the rules, petitioner and the
undersigned sought the kind indulgence and magnanimity of this Honorable
Court to reconsider and reverse its order dated April 19, 2024. The ends of
justice and fairness would best be served if the issues involved in the
petition are threshed out in a full-blown trial.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed


of this Honorable Court that the Order dated April 19, 2024 be reconsidered
by declaring that the Order dated April19, 2024 be set aside and vacated and
further ordering the new schedule date for the initial hearing to establish
jurisdictional facts.

Such other reliefs equitable and consistent with justice are hereby
prayed of.

MOST RESPECTFULLY SUBMITTED.

City of San Fernando, Pampanga April 20, 2024.

NOTICE OF HEARING
Page 5 of 6
The Branch Clerk of Court
Municipal Trial Court in Cities

Greetings:

Kindly submit the foregoing Motion for Reconsideration for the


consideration of the Honorable Court immediately upon receipt and schedule
the same for hearing on ------- at 8:30 o’clock in the morning.

EXPLANATION

Undersigned counsel has furnished the Clerk of Court and the


Complainants’ counsel of a copy of the foregoing motion though registered
mail, and not by personal delivery due to distance and time constraint and
for lack of personnel to effect personal service.

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