Venue can be waived:

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 74854 April 2, 1991

JESUS DACOYCOY, Petitioner, vs. HON. INTERMEDIATE APPELLATE COURT,

HON. ANTONIO V. BENEDICTO, Executive Judge, Regional Trial Court, Branch LXXI,
Antipolo, Rizal, and RUFINO DE GUZMAN, Respondents.

FERNAN, C.J.:

May the trial court motu proprio dismiss a complaint on the ground of improper venue? This is
the issue confronting the Court in the case at bar.virtualawlibrary virtual law library

On March 22, 1983, petitioner Jesus Dacoycoy, a resident of Balanti, Cainta, Rizal, filed before
the Regional Trial Court, Branch LXXI, Antipolo, Rizal, a complaint against private respondent
Rufino de Guzman praying for the annulment of two (2) deeds of sale involving a parcel of
riceland situated in Barrio Estanza, Lingayen, Pangasinan, the surrender of the produce thereof
and damages for private respondent's refusal to have said deeds of sale set aside upon petitioner's
demand.virtualawlibrary virtual law library

On May 25, 1983, before summons could be served on private respondent as defendant therein,
the RTC Executive Judge issued an order requiring counsel for petitioner to confer with
respondent trial judge on the matter of venue. After said conference, the trial court dismissed the
complaint on the ground of improper venue. It found, based on the allegations of the complaint,
that petitioner's action is a real action as it sought not only the annulment of the aforestated deeds
of sale but also the recovery of ownership of the subject parcel of riceland located in Estanza,
Lingayen, Pangasinan, which is outside the territorial jurisdiction of the trial
court.virtualawlibrary virtual law library

Petitioner appealed to the Intermediate Appellate Court, now Court of Appeals, which in its
decision of April 11, 1986, 1 affirmed the order of dismissal of his
complaint.virtualawlibrary virtual law library

In this petition for review, petitioner faults the appellate court in affirming what he calls an
equally erroneous finding of the trial court that the venue was improperly laid when the
defendant, now private respondent, has not even answered the complaint nor waived the
venue. 2 virtual law library
Petitioner claims that the right to question the venue of an action belongs solely to the defendant
and that the court or its magistrate does not possess the authority to confront the plaintiff and tell
him that the venue was improperly laid, as venue is waivable. In other words, petitioner asserts,
without the defendant objecting that the venue was improperly laid, the trial court is powerless to
dismiss the case motu proprio.virtualawlibrary virtual law library

Private respondent, on the other hand, maintains that the dismissal of petitioner's complaint is
proper because the same can "readily be assessed as (a) real action." He asserts that "every court
of justice before whom a civil case is lodged is not even obliged to wait for the defendant to raise
that venue was improperly laid. The court can take judicial notice and motu proprio dismiss a
suit clearly denominated as real action and improperly filed before it. . . . the location of the
subject parcel of land is controlling pursuant to Sec. 2, par. (a), Rule 4 of the New Rules of Court
. . . 3 virtual law library

We grant the petition.virtualawlibrary virtual law library

The motu proprio dismissal of petitioner's complaint by respondent trial court on the ground of
improper venue is plain error, obviously attributable to its inability to distinguish between
jurisdiction and venue.virtualawlibrary virtual law library

Questions or issues relating to venue of actions are basically governed by Rule 4 of the Revised
Rules of Court. It is said that the laying of venue is procedural rather than substantive. It relates
to the jurisdiction of the court over the person rather than the subject matter. Provisions relating
to venue establish a relation between the plaintiff and the defendant and not between the court
and the subject matter. Venue relates to trial not to jurisdiction, touches more of the convenience
of the parties rather than the substance of the case. 4 virtual law library

Jurisdiction treats of the power of the court to decide a case on the merits; while venue deals on
the locality, the place where the suit may be had. 5 virtual law library

In Luna vs. Carandang, 6 involving an action instituted before the then Court of First Instance of
Batangas for rescission of a lease contract over a parcel of agricultural land located in Calapan,
Oriental Mindoro, which complaint said trial court dismissed for lack of jurisdiction over the
leased land, we emphasized:

(1) A Court of First Instance has jurisdiction over suits involving title to, or
possession of, real estate wherever situated in the Philippines, subject to the rules
on venue of actions (Manila Railroad Company vs. Attorney General, etc., et al.,
20 Phil. 523; Central Azucarera de Tarlac vs. De Leon, et al., 56 Phil. 169;
Navarro vs. Aguila, et al., 66 Phil. 604; Lim Cay, et al. vs. Del Rosario, etc., et al.,
55 Phil. 692); virtual law library

(2) Rule 4, Section 2, of the Rules of Court requiring that an action involving real
property shall be brought in the Court of First Instance of the province where the
land lies is a rule on venue of actions, which may be waived expressly or by
implication.
In the instant case, even granting for a moment that the action of petitioner is a real action,
respondent trial court would still have jurisdiction over the case, it being a regional trial court
vested with the exclusive original jurisdiction over "all civil actions which involve the title to, or
possession of, real property, or any interest therein . . ." in accordance with Section 19 (2) of
Batas Pambansa Blg. 129. With respect to the parties, there is no dispute that it acquired
jurisdiction over the plaintiff Jesus Dacoycoy, now petitioner, the moment he filed his complaint
for annulment and damages. Respondent trial court could have acquired jurisdiction over the
defendant, now private respondent, either by his voluntary appearance in court and his
submission to its authority, or by the coercive power of legal process exercised over his
person. 7 virtual law library

Although petitioner contends that on April 28, 1963, he requested the City Sheriff of Olongapo
City or his deputy to serve the summons on defendant Rufino de Guzman at his residence at 117
Irving St., Tapinac, Olongapo City, 8 it does not appear that said service had been properly
effected or that private respondent had appeared voluntarily in court 9 or filed his answer to the
complaint. 10 At this stage, respondent trial court should have required petitioner to exhaust the
various alternative modes of service of summons under Rule 14 of the Rules of Court, i.e.,
personal service under Section 7, substituted service under Section 8, or service by publication
under Section 16 when the address of the defendant is unknown and cannot be ascertained by
diligent inquiry.virtualawlibrary virtual law library

Dismissing the complaint on the ground of improper venue is certainly not the appropriate course
of action at this stage of the proceeding, particularly as venue, in inferior courts as well as in the
courts of first instance (now RTC), may be waived expressly or impliedly. Where defendant fails
to challenge timely the venue in a motion to dismiss as provided by Section 4 of Rule 4 of the
Rules of Court, and allows the trial to be held and a decision to be rendered, he cannot on appeal
or in a special action be permitted to challenge belatedly the wrong venue, which is deemed
waived. 11 virtual law library

Thus, unless and until the defendant objects to the venue in a motion to dismiss, the venue
cannot be truly said to have been improperly laid, as for all practical intents and purposes, the
venue, though technically wrong, may be acceptable to the parties for whose convenience the
rules on venue had been devised. The trial court cannot pre-empt the defendant's prerogative to
object to the improper laying of the venue by motu proprio dismissing the
case.virtualawlibrary virtual law library

Indeed, it was grossly erroneous for the trial court to have taken a procedural short-cut by
dismissing motu proprio the complaint on the ground of improper venue without first allowing
the procedure outlined in the Rules of Court to take its proper course. Although we are for the
speedy and expeditious resolution of cases, justice and fairness take primary importance. The
ends of justice require that respondent trial court faithfully adhere to the rules of procedure to
afford not only the defendant, but the plaintiff as well, the right to be heard on his
cause.virtualawlibrary virtual law library

WHEREFORE, in view of the foregoing, the decision of the Intermediate Appellate Court, now
Court of Appeals, dated April 11, 1986, is hereby nullified and set aside. The complaint filed by
petitioner before the Regional Trial Court of Antipolo, Branch LXXI is revived and reinstated.
Respondent court is enjoined to proceed therein in accordance with law.virtualawlibrary virtual
law library

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ., concur.

Endnotes:

1 Penned by Presiding Justice Ramon G. Gaviola, Jr. and concurred in by

Associate Justice Ma. Rosario Quetulio-Losa and Leonor Ines Luciano. virtual
law library

2 Page 4, Rollo. virtual law library

3 P. 69, Rollo. virtual law library

4 Manila Railroad Co. vs. Attorney General, 20 Phil. 523. virtual law library

5 67 C.J. 12. virtual law library

6 G.R. No. L-27145, November 29, 1968, 26 SCRA 306. virtual law library

7 Banco Espanol-Filipino vs. Palanca, 37 Phil. 921. virtual law library

8 Page 3, Rollo. virtual law library

9 Section 23, Rule 14, Rules of Court. virtual law library

10 Section 6, Rule 6; Section 1, Rule 11, Rules of Court. virtual law library

11 Ocampo vs. Domingo, 38 SCRA 134 (1971).