Plaintiff-Appellant vs. vs. Defendant-Appellee Filemon Catajor Jose R. Garcia

SECOND DIVISION
[G.R. No. L-28742. April 30, 1982.]
VIRGILIO CAPATI , plaintiff-appellant, vs. DR. JESUS P. OCAMPO ,

defendant-appellee.
Filemon Catajor for plaintiff-appellant.

Jose R. Garcia for defendant-appellee.
SYNOPSIS
Appellant, a resident of Pampanga and a contractor, entered into a sub-contract with

appellee for the construction of vault walls, exterior walls and columns of the Feati Bank
building in Iriga, Camarines Sur. The parties agreed that the same should be completed on
or before June 5, 1967. The subcontract also contained a stipulation that all actions
arising out or relating to the contract "may" be instituted in the Court of First Instance of
Naga City. Since appellee nished the construction only in June 20, 1967, appellant led an
action against the former for recovery of consequential damages for the delay with the
Court of First Instance of Pampanga. Appellee led a motion to dismiss on the ground of
improper venue contending that the case can only be led in Naga City as stipulated in
their agreement. Appellant opposed the motion claiming that their agreement to hold the
venue in Naga City was merely optional. Upholding the appellee, the lower court dismissed
the complaint. Hence, this appeal.
The Supreme Court held that the stipulation of the parties as to venue is only permissive
for they did not agree to le their suits solely and exclusively with the Court of First
Instance of Naga, and that since the action was led in the court where the plaintiff
resides, the venue was properly laid.
Order appealed from set aside.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; VENUE OF PERSONAL ACTIONS; RULE

THEREON. The rule on venue of personal actions cognizable by the courts of rst
instance is found in Section 2(b), Rule 4 of the Rules of Court, which provides that such
"actions may be commenced and tried where the defendant or any of the defendants
resides or may be found, or where the plaintiff or any of the plaintiffs resides, at the
election of the plaintiff." The said section is quali ed by the following provisions of Section
3 of the same rule: "By agreement of the parties the venue of an action may be changed or
transferred from one province to another."
2. ID.; ID.; ID.; ID.; STIPULATION REGARDING THERE TO PERMISSIVE WHERE PARTIES
DO NOT EXCLUDE ALL OTHER COURTS; CASE AT BAR. The stipulation as to venue in the
contract between the parties providing that "all actions arising out of this contract may be
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instituted in the Court of First Instance of Naga City, "is simply permissive. By the said
stipulation, the parties did not agree to le their suits solely and exclusively with the Court
of First Instance of Naga. They merely agreed to submit their disputes to the said court,
without waiving their right to seek recourse in the court speci cally indicated in Section
2(b), Rule 4 of the Rules of Court.
3. STATUTORY CONSTRUCTION; WORD "MAY" IS MERELY PERMISSIVE. It is well
settled that the word "may" is merely permissive and operates to confer discretion upon a
party. Under ordinary circumstances, the term "may be" connotes possibility; it does not
connote certainty. "May" is an auxillary verb indicating liberty, opportunity, permission or
possibility.
4. REMEDIAL LAW; CIVIL PROCEDURE; VENUE OF PERSONAL ACTIONS; PROPERLY
LAID IN CASE AT BAR. Since the complaint has been led in the Court of First Instance
of Pampanga, where the plaintiff resides, the venue of action is properly laid in accordance
with Section 2(b), Rule 4 of the Rules of Court.
DECISION
ESCOLIN , J : p
We set aside the order of the Court of First Instance of Pampanga in Civil Case No. 3188
which dismissed the plaintiff's complaint on ground of improper venue.
Plaintiff Virgilio Capati, a resident of Bacolor, Pampanga was the contractor of the Feati
Bank for the construction of its building in Iriga, Camarines Sur. On May 23, 1967, plaintiff
entered into a sub-contract with the defendant Dr. Jesus Ocampo, a resident of Naga City,
whereby the latter, in consideration of the amount of P2,200.00, undertook to construct
the vault walls, exterior walls and columns of the said Feati building in accordance with the
speci cations indicated therein. Defendant further bound himself to complete said
construction on or before June 5, 1967 and, to emphasize this time frame for the
completion of the construction job, defendant af xed his signature below the following
stipulation written in bold letters in the sub-contract: "TIME IS ESSENTIAL, TO BE
FINISHED 5 JUNE '67."
Claiming that defendant nished the construction in question only on June 20, 1967,
plaintiff led in the Court of First Instance of Pampanga an action for recovery of
consequential damages in the sum of P85,000.00 with interest, plus attorney's fees and
costs. The complaint alleged inter alia that "due to the long unjusti ed delay committed by
defendant, in open violation of his express written agreement with plaintiff, the latter has
suffered great irreparable loss and damage . . ."
Defendant led a motion to dismiss the complaint on the ground that venue of action was
improperly laid. The motion was premised on the stipulation printed at the back of the
contract which reads:
"14. That all actions arising out, or relating to this contract may be instituted
in the Court of First Instance of the City of Naga."
Plaintiff led an opposition to the motion, claiming that their agreement to hold the venue
in the Court of the First Instance of Naga City was merely optional to both contracting
parties. In support thereof, plaintiff cited the use of the word "may" in relation with the
institution of any action arising out of the contract.
The lower court, in resolving the motion to dismiss, ruled that "there was no sense in
providing the aforequoted stipulation, pursuant to Sec. 3 of Rule 4 of the Revised Rules of
Court, if after all, the parties are given the discretion or option of ling the action in their
respective residences," and thereby ordered the dismissal of the complaint. cdll
Hence, this appeal.

The rule on venue of personal actions cognizable by the courts of rst instance is found in
Section 2(b), Rule 4 of the Rules of Court, which provides that such "actions may be
commenced and tried where the defendant or any of the defendants resides or may be
found, or where the plaintiff or any of the plaintiffs resides, at the election of the plaintiff."
The said section is qualified by the following provisions of Section 3 of the same rule:
"By written agreement of the parties the venue of an action may be changed or
transferred from one province to another."
Defendant stands rm on his contention that because of the aforequoted

covenant contained in par. 14 of the contract, he cannot be sued in any court
except the Court of First Instance of Naga City. We are thus called upon to rule on
the issue as to whether the stipulation of the parties on venue is restrictive in the
sense that any litigation arising from the contract can be led only in the court of
Naga City, or merely permissive in that the parties may submit their disputes not
only in Naga City but also in the court where the defendant or the plaintiffs
resides, at the election of the plaintiff, as provided for by Section 2(b), Rule 4 of
the Rules of Court.
It is well settled that the word "may" is merely permissive and operates to confer
discretion upon a party. Under ordinary circumstances, the term "may be"
connotes possibility; it does not connote certainty. "May" is an auxillary verb
indicating liberty, opportunity, permission or possibility. 1
In Nicolas vs. Reparations Commission 2 , a case involving the interpretation of a

stipulation as to venue along lines similar to the present one, it was held that the
agreement of the parties which provided that "all legal actions arising out of this contract .
. . may be brought in and submitted to the jurisdiction of the proper courts in the City of
Manila," is not mandatory.
We hold that the stipulation as to venue in the contract in question is simply permissive. By
the said stipulation, the parties did not agree to le their suits solely and exclusively with
the Court of First Instance of Naga. They merely agreed to submit their disputes to the
said court, without waiving their right to seek recourse in the court speci cally indicated in
Section 2(b), Rule 4 of the Rules of Court. LibLex
Since the complaint has been led in the Court of First Instance of Pampanga, where the
plaintiff resides, the venue of action is properly laid in accordance with Section 2(b), Rule 4
of the Rules of Court.
WHEREFORE, the order appealed from is hereby set aside. Let the records be returned to
the court of origin for further proceedings. Costs against defendant-appellee.
SO ORDERED.
Barredo (Chairman), Aquino, De Castro and Ericta, JJ., concur.
Concepcion Jr., and Abad Santos, JJ., are on leave.
Footnotes
1. In Re: Hirsh's Estate 5A. 2d 160, 163; 334 Pa. 172; Words & Phrases, permanent edition,
26a.
2. 64 SCRA 110.

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SECOND DIVISION

[G.R. No. L-28742. April 30, 1982.]

VIRGILIO CAPATI , plaintiff-appellant, vs. DR. JESUS P. OCAMPO ,

Filemon Catajor for plaintiff-appellant.

Appellant, a resident of Pampanga and a contractor, entered into a sub-contract with

1. REMEDIAL LAW; CIVIL PROCEDURE; VENUE OF PERSONAL ACTIONS; RULE

Hence, this appeal.

Defendant stands rm on his contention that because of the aforequoted

In Nicolas vs. Reparations Commission 2 , a case involving the interpretation of a

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