[ G.R. No. L-29719. November 28, 1975 ] 160-A Phil. 863
FIRST DIVISION
[ G.R. No. L-29719. November 28, 1975 ]
MARIA VILLANUEVA AND LINO DIZON, PETITIONERS, VS. THE COURT OF APPEALS AND GERVACIO LUIS QUE, RESPONDENTS. DECISION
ESGUERRA, J.:
Petition for certiorari to review the resolution of the Court of Appeals dated September 19, 1968, dismissing petitioners’ appeal in C.A.-G.R. No. 36919-R, entitled “Gervacio Luis Que, plaintiff-appellee, versus Maria Villanueva and Lino Dizon, defendants-appellants,” as well as the resolution of the same Appellate Court, dated October 15, 1968, which denied petitioners’ motion for the reconsideration of the first resolution. It appears on the record that herein petitioners were the defendants in Civil Case No. 7143 of the Court of First Instance of Rizal. On October 21, 1966, the Court of First Instance of Rizal rendered judgment against herein petitioners and in favor of private respondent Gervacio Luis Que. A copy of the decision was received by petitioners’ counsel on October 28, 1966. On November 3, 1966, petitioners filed and served their notice of appeal. On November 25, 1966, petitioners deposited with the clerk of court their cash appeal bond of P120.00. On November 26, 1966, petitioner filed with the lower court a motion for extension often (10) days from November 28, 1966 (the last day, November 27, being a Sunday) within which to submit their Record on Appeal. Before receiving the favorable resolution of the lower court on their motion for extension, petitioner submitted their Record on Appeal, December 8, 1966, the last day of the period asked for. The following day December 9, 1966, the lower court issued its order granting petitioners an extension often (10) days from November 28, 1966, within which to file their Record on Appeal. On March 15, 1967, the lower court issued an order stating that “there being no opposition interposed thereto, the record on appeal is hereby approved” and ordered its clerk of court to certify and elevate the record on appeal, together with the evidence both oral and documentary, to the respondent Court of Appeals. Pursuant to a notice from the respondent Appellate Court, petitioners paid the corresponding docket fee and submitted their printed record on appeal. On July 31,1967, private respondent Que filed a motion to dismiss petitioners’ appeal with respondent Appellate Court on the ground that petitioners ’ record on appeal does not show on its face that the appeal was perfected on time as the order granting the extension is not included therein. Petitioners opposed the motion, explaining that the order of the court below granting them the extension often (10) days from November 28, 1966, within which to file their Record on Appeal had not yet been received by petitioners’ counsel when they filed their record on appeal on December 8, 1966, the last day for so doing pursuant to their petition for extension. Respondent Appellate Court in its resolution of September 19, 1968, dismissed the petitioners’ appeal on the ground “that the record on appeal of appellants does not show that the appeal was perfected within the reglementary period.” Petitioners filed a motion to reconsider the appellate court’s resolution, but it was denied by the respondent Appellate Court in its resolution of October 15,1968. Hence this petition for review of the dismissal order. We have no doubt from an examination of the record that the record on appeal in Civil Case No. 7143 was timely filed with the lower Court. It was filed on December 8, 1966, or within the ten (10) day period of extension given by the lower court, counted from November 28, 1966, the last day for filing of the record on appeal. But said fact is not shown on the face of the record on appeal, hence raising before Us, as it has been done several times in the past, the lone issue of whether or not the failure to show on the face of the record on appeal that the appeal was perfected within the reglementary period would prove fatal to the appeal. It is true that this Court has repeatedly ruled before that the appellant has the burden of showing that his appeal is timely, and Sec. 6 of Rule 41 of the Rules of Court which explicitly provides that the record on appeal shall include “such data as will show that the appeal was perfected on time” has been held mandatory and jurisdictional. We emphasized this requirement, for unless appeal is perfected on time the appellate court acquires no jurisdiction over the appealed case and has power only to dismiss the appeal. The certification in the record on appeal that it was timely filed cannot restore the jurisdiction which has been lost. The principle is confirmed by Sec. 1, sub par. (a), Rule 50, Rules of Court (Govt. of the Phil. vs. Antonio, et al., G. R. No. L-23736, Oct. 19, 1965; Development Bank vs. Santos, et al, G. R. No. L-26387, Sept. 27, 1966, Araneta vs. Madrigal and Co., G. R. No. L-26227-28, Oct. 25, 1966; Atlas Consolidated Mining & Development Corp. vs. Progressive Labor Ass., G. R. No. L-27125, Sept. 15, 1967). In the case of Tijam, et al. vs. Sibonghanoy, et al, G. R. No. L-21450, April 15, 1968 this Court, speaking through then Associate Justice Arsenio Dizon, ruled that although the requirement that the record on appeal should contain such data as will show that the appeal was perfected on time is mandatory and jurisdictional, under the principle of estoppel and laches, a party may be barred from raising the question of jurisdiction as when it is raised after the parties have filed their brief. But a stringent rule based on technicality must give way to the demands of substantial justice, so We ruled in the case of Dequito vs. Lopez, G R. No. L-27757, March 20, 1968, that this Court cannot favorably consider a motion to dismiss an appeal on the ground that the record on appeal does not show on its face that the appeal was perfected on time, for the reason that the motion to dismiss was filed much too late, it having been filed after the submission of the brief for the appellee. The deviation from the rigid rule adopted in the case of Govt. of the Philippines vs. Antonio, et al, G. R. No. L-23736, Oct. 19, 1965, is due to Our realization that after all what is of vital importance in the requirement of Sec. 6, Rule 41, of the Rules of Court is that the record on appeal shall show that the appeal was really perfected within the reglementary period. If it could be ascertained from the record of the case that the appeal was perfected within the reglementary period, although such fact did not evidently appear on the face of the record on appeal, the defect or deficiency is not fatal (Berkenkotter vs. Court of Appeals, 53 SCRA, 228; Atlas Timber, et al vs. First Western Bank and Trust Co., 64 SCRA, 217). If the appellate court is convinced that the appeal was perfected on time, it should not throw it out but assume jurisdiction over it. After all, that procedural requirement is only intended to enable the appellate court to determine if the appeal is still within its jurisdiction, and nothing more. Under the facts of this case, We prefer to uphold substantial compliance with the requirement of Sec. 6, of Rule 41, of the Rules of Court, as more in consonance with the requirement of a fair dispensation of justice, considering petitioners’ explanation that they could not have included the lower Court’s order giving them ten days extension of time to file the record on appeal counted from November 28, 1968, in the record on appeal because the court order was released on December 9, 1966, or one day after petitioners filed their record on appeal on December 8, 1966, the last day of the extension period which was approved. Whatever mistake might have been committed here pales into insignificance when viewed in the light of the incontrovertible fact that the record on appeal was filed within the approved extension period. The respondent Appellate Court did lawfully acquire jurisdiction over Civil Case No. 7143 because the petitioners fulfilled all the requirements of appeal (notice of appeal, appeal bond, and record on appeal) within the reglementary period. It was, therefore, grave abuse of discretion for the Appellate Court to have dismissed the appeal. WHEREFORE, the respondent Appellate Court’s resolutions dated September 19, 1968 and October 15, 1968, are hereby set aside, and the petitioners’ appeal in C.A.-G.R. No. 36919-R is hereby reinstated and should be given due course. Costs against private respondent Gervacio Luis Que. SO ORDERED. Makasiar, Muñoz Pulma and Martin, JJ., concur. Teehankee, J., concurs in a separate opinion. Castro, J., did not take part.