FIRST DIVISION

[G.R. No. 69260. December 22, 1989.]

MUNICIPALITY OF BIÑAN , petitioner, vs. Hon. JOSE MAR GARCIA, Judge

of the Regional Trial Court at Biñan, Laguna (BRANCH XXXIV, Region IV),
and ERLINDA FRANCISCO , respondents.

The Provincial Fiscal for petitioner.

Roman M. Alonte for private respondent.

SYLLABUS

1. REMEDIAL LAW; SPECIAL CIVIL ACTION; EMINENT DOMAIN; MOTION TO DISMISS

FILED THEREIN TAKES PLACE OF AN ANSWER IN AN ORDINARY CIVIL ACTION. — One of
the defendants was Erlinda Francisco. She led a "Motion to Dismiss" dated August 26,
1983, on the following grounds; (a) the allegations of the complaint are vague and
conjectural; (b) the complaint violates the constitutional limitations of law and
jurisprudence on eminent domain; (c) it is oppressive; (d) it is barred by prior decision and
disposition on the subject matter; and (e) it states no cause of action. Now, her "motion to
dismiss" was led pursuant to Section 3, Rule 67 of the Rules of Court: "Sec. 3. Defenses
and objections. — Within the time speci ed in the summons, each defendant, in lieu of an
answer, shall present in a single motion to dismiss or for other appropriate relief, all of his
objections and defenses to the right of the plaintiff to take his property for the use or
purpose speci ed in the complaint. All such objections and defenses not so presented are
waived. A copy of the motion shall be served on the plaintiff's attorney of record and led
with the court with the proof of service." Her "motion to dismiss" was thus actually a
pleading, taking the place of an answer in an ordinary civil action; it was not an ordinary
motion governed by Rule 15, or a "motion to dismiss" within the contemplation of Rule 16
of the Rules of Court.
2. ID.; ID.; ID.; STAGES IN AN ACTION OF EXPROPRIATION. — There are two (2) stages in
every action of expropriation. The rst is concerned with the determination of the authority
of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in
the context of the facts involved in the suit. It ends with an order, if not of dismissal of the
action, "of condemnation declaring that the plaintiff has a lawful right to take the property
sought to be condemned, for the public use or purpose described in the complaint, upon
the payment of just compensation to be determined as of the date of the ling of the
complaint." An order of dismissal, if this be ordained, would be a nal one, of course, since
it nally disposes of the action and leaves nothing more to be done by the Court on the
merits. So, too, would an order of condemnation be a nal one, for thereafter, as the Rules
expressly state, in the proceedings before the Trial Court, "no objection to the exercise of
the right of condemnation (or the propriety thereof) shall be led or heard." The second
phase of the eminent domain action is concerned with the determination by the Court of
"the just compensation for the property sought to be taken." This is done by the Court with
the assistance of not more than three (3) commissioners. The order xing the just
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 compensation on the basis of the evidence before, and ndings of, the commissioners
would be nal, too. It would nally dispose of the second stage of the suit, and leave
nothing more to be done by the Court regarding the issue. Obviously, one or another of the
parties may believe the order to be erroneous in its appreciation of the evidence or
ndings of fact or otherwise. Obviously, too, such a dissatis ed party may seek reversal of
the order by taking an appeal therefrom.
3. ID.; ID.; PHASES OF A PARTITION AND/OR ACCOUNTING SUIT. — A two-phase feature is
found in the special civil action of partition and accounting under Rule 69 of the Rules of
Court. The rst phase of a partition and/or accounting suit is taken up with the
determination of whether or not a co-ownership in fact exists, and a partition is proper (i.e.,
not otherwise legally proscribed) and may be made by voluntary agreement of all the
parties interested in the property. This phase may end with a declaration that plaintiff is
not entitled to have a partition either because a co-ownership does not exist, or partition is
legally prohibited. It may end, on the other hand, with an adjudgment that a co-ownership
does in truth exist, partition is proper in the premises and an accounting of rents and
pro ts received by the defendant from the real estate in question is in order. In the latter
case, "the parties may, if they are able to agree, make partition among themselves by
proper instruments of conveyance, and the court shall con rm the partition so agreed
upon. In either case — i.e., either the action is dismissed or partition and/or accounting is
decreed — the order is a nal one, and may be appealed by any party aggrieved thereby.
The second phase commences when it appears that "the parties are unable to agree upon
the partition" directed by the court. In that event partition shall be done for the parties by
the Court with the assistance of not more than three (3) commissioners. This second
stage may well also deal with the rendition of the accounting itself and its approval by the
Court after the parties have been accorded opportunity to be heard thereon, and an award
for the recovery by the party or parties thereto entitled of their just share in the rents and
profits of the real estate in question." Such an order is, to be sure, final and appealable.
4. ID.; ID.; EMINENT DOMAIN; PERIOD FOR APPEAL FROM AN ORDER OF
CONDEMNATION. — The Court holds that in actions of eminent domain, as in actions for
partition, since no less than two (2) appeals are allowed by law, the period for appeal from
an order of condemnation is thirty (30) days counted from notice of order and not the
ordinary period of fteen (15) days prescribed for actions in general, conformably with the
provision of Section 39 of Batas Pambansa Bilang 129, in relation to paragraph 19 (b) of
the Implementing Rules to the effect that in "appeals in special proceedings in accordance
with Rule 109 of the Rules of Court and other cases wherein multiple appeals are allowed,
the period of appeal shall be thirty (30) days, a record of appeal being required."
5. ID.; B.P. BLG. 129; PERIOD OF APPEAL FROM A SEPARATE JUDGMENT RENDERED IN
AN ACTION AGAINST SEVERAL DEFENDANTS. — Where a single complaint was led
against several defendants having individual, separate interests, and a separate trial was
held relative to one of said defendants after which a nal order or judgment was rendered
on the merits of the plaintiff's claim against that particular defendant, it is obvious that in
the event of an appeal from that separate judgment, the original record cannot and should
not be sent up to the appellate tribunal. The record will have to stay with the trial court
because it will still try the case as regards the other defendants. As the rule above quoted
states, "In an action against several defendants, the court may, when a several judgment is
proper, render judgment against one or more of them, leaving the action to proceed
against the others." In lieu of the original record, a record on appeal will perforce have to be
prepared and transmitted to the appellate court. More than one appeal being permitted in
this case, therefore, "the period of appeal shall be thirty (30) days, a record of appeal being
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 required," as provided by the Implementing Rules in relation to Section 39 of B.P. Blg. 129,
supra.
6. ID.; CIVIL PROCEDURE MOTION TO DISMISS; FAILURE TO COMPLAINT TO STATE
CAUSE OF ACTION, NOT GROUND THEREFOR. — Nothing in the record reveals any valid
cause to reverse the order of trial. What the Trial Court might have had in mind was the
provision of Section 5, Rule 16 of the Rules of Court allowing "any of the grounds for
dismissal" in Rule 16 to "be pleaded as an af rmative defense," and authorizing the holding
of a "preliminary hearing . . . thereon as if a motion to dismiss had been led." Assuming
this to be the fact, the reception of Francisco's evidence rst was wrong, because
obviously, her asserted objection or defense — that the locational clearance issued in her
favor by the HSRC was a legal bar to the expropriation suit — was not a ground for
dismissal under Rule 16. She evidently meant to prove the Municipality's lack of cause of
action; but lack of cause of action is not a ground for dismissal of an action under Rule 16;
the ground is the failure of the complaint to state a cause of action, which is obviously not
the same as plaintiff's not having a cause of action.
7. ADMINISTRATIVE LAW; HUMAN SETTLEMENT REGULATORY COMMISSION; LOCATION
CLEARANCE CONSIDERED AUTOMATICALLY REVOKED IF NOT USED WITHIN ONE (1)
YEAR FROM DATE OF ISSUE. — It seems evident that said clearance did become a
"worthless sheet of paper," as averred by the Municipality, upon the lapse of one (1) year
from said date in light of the explicit condition in the clearance that it "shall be considered
automatically revoked if not used within a period of one (1) year from date of issue," and
the unrebutted fact that Francisco had not really made use of it within that period.

DECISION

NARVASA , J : p

Three (3) questions are resolved in the action of certiorari at bar. The rst is whether the
special civil action of eminent domain under Rule 67 of the Rules of Court is a case
"wherein multiple appeals are allowed," 1 as regards which "the period of appeal shall be
thirty [30] days," 2 instead of fteen (15) days. 3 The second is whether or not the Trial
Court may treat the "motion to dismiss" led by one of the defendants in the action of
eminent domain as a motion to dismiss under Rule 16 of the Rules of Court, reverse the
sequence of trial in order and hear and determine said motion to dismiss, and thereafter
dismiss the expropriation suit as against the movant. And the third is whether or not a
"locational clearance" issued by the Human Settlements Regulatory Commission relative to
use of land is a bar to an expropriation suit involving that land.
prLL

The expropriation suit involved in this certiorari proceeding was commenced by complaint
of the Municipality of Biñan, Laguna, 4 led in the Regional Trial Court of Laguna and City of
San Pablo, presided over by respondent Judge Jose Mar Garcia. The complaint named as
defendants the owners of eleven (11) adjacent parcels of land in Biñan with an aggregate
area of about eleven and a half (11-1/2) hectares. The land sought to be expropriated was
intended for use as the new site of a modern public market and the acquisition was
authorized by a resolution of the Sangguniang Bayan of Biñan approved on April 11, 1983.
llcd

One of the defendants was Erlinda Francisco. She led a "Motion to Dismiss" dated August
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 26, 1983, on the following grounds; (a) the allegations of the complaint are vague and
conjectural; (b) the complaint violates the constitutional limitations of law and
jurisprudence on eminent domain; (c) it is oppressive; (d) it is barred by prior decision and
disposition on the subject matter; and (e) it states no cause of action. 5 Now, her "motion
to dismiss" was filed pursuant to Section 3, Rule 67 of the Rules of Court:
"Sec. 3. Defenses and objections. — Within the time speci ed in the summons,
each defendant, in lieu of an answer, shall present in a single motion to dismiss
or for other appropriate relief, all of his objections and defenses to the right of the
plaintiff to take his property for the use or purpose speci ed in the complaint. All
such objections and defenses not so presented are waived. A copy of the motion
shall be served on the plaintiff's attorney of record and led with the court with
the proof of service."

Her "motion to dismiss" was thus actually a pleading, taking the place of an answer in
an ordinary civil action; 6 it was not an ordinary motion governed by Rule 15, or a
"motion to dismiss" within the contemplation of Rule 16 of the Rules of Court.
On October 23, 1983, respondent Judge issued a writ of possession in favor of the
plaintiff Municipality.
On February 3, 1984, Erlinda Francisco led a "Motion for Separate Trial," invoking Section
2, Rule 31. 7 She alleged that there had already been no little delay in bringing all the
defendants within the court's jurisdiction, and some of the defendants seemed "nonchalant
or without special interest in the case" if not mere "free riders;" and "while the cause of
action and defenses are basically the same;" she had, among other defenses, "a
constitutional defense of vested right via a pre-existing approved Locational Clearance
from the H.S.R.C." 8 Until this clearance was revoked, Francisco contended, or the
Municipality had submitted and obtained approval of a "rezoning of the lots in question," it
was premature for it to " le a case for expropriation." 9 The Court granted the motion. By
Order dated March 2, 1984, it directed that a separate trial be held for defendant Erlinda
Francisco regarding her special defenses mentioned in her . . . Motion for Separate Trial
and in her Motion to Dismiss, distinct from and separate from the defenses commonly
raised by all the defendants in their respective motions to dismiss."
At the separate trial, the Fiscal, in representation of the Municipality called the Trial Court's
attention to the irregularity of allowing Francisco to present her evidence ahead of the
plaintiff, "putting the cart before the horse, as it were." He argued that the motion to
dismiss was in truth an answer, citing Rural Progress Administration v. Judge de Guzman,
and its ling did "not mean that the order of presentation of evidence will be reversed," but
the usual procedure should be followed; and the evidence adduced should be deemed
"evidence only for the motion for reconsideration of the writ of possession." 1 0
Nevertheless, at the hearing of March 5, and March 26, 1984, the Court directed Francisco
to commence the presentation of evidence. Francisco presented the testimony of Atty.
Josue L. Jorvina, Jr. and certain exhibits — the Land Use Map of the Municipality of Biñan,
the Locational Clearance and Development Permit issued by the HSRC in favor of "Erlinda
Francisco c/o Ferlins Realty & Development Corporation, and Executive Order No. 648 and
Letter of Instruction No. 729, etc. Thereafter, the respondent Judge issued an Order dated
July 24, 1984 dismissing the complaint "as against defendant ERLINDA FRANCISCO," and
amending the Writ of Possession dated October 18, 1983 so as to "exclude therefrom and
from its force and effects said defendant . . . and her property . . ." His Honor found that —

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 1) a Locational Clearance had been issued on May 4, 1983 by the Human Settlements
Regulatory Commission to the "Ferlin's Realty . . . owned by defendant Erlinda Francisco to
convert . . . (her) lot to a commercial complex;
2) according to the testimony of Atty. Jorvina of the HSRC, "a grantee of a locational
clearance acquires a vested right over the subject property in the sense that . . . said
property may not be subject of an application for locational clearance by another applicant
while said locational clearance is subsisting;
3) such a clearance should be "considered as a decision and disposition of private
property co-equal with or in parity with a disposition of private property through eminent
domain;
4) the clearance was therefore "a legal bar against the right of plaintiff Municipality . . . to
expropriate the said property."
The Municipality led on August 17, 1984 a Motion for Reconsideration. Therein it (a)
reiterated its contention respecting the irregularity of the reversal of the order of trial,
supra. 1 1 (b) decried the act of the Court in considering the case submitted for decision
after the presentation of evidence by Francisco without setting the case for further hearing
for the reception of the plaintiff's own proofs, (c) pointed out that as admitted by Atty.
Jorvina, the locational clearance did not "mean that other persons are already prevented
from ling locational clearance for the same project, and so could not be considered a bar
to expropriation, (d) argued that the locational clearance issued on May 4, 1983, became a
"worthless sheet of paper" one year later, on May 4, 1984 in accordance with the explicit
condition in the clearance that it "shall be considered automatically revoked if not used
within a period of one (1) year from date of issue," the required municipal permits to put up
the commercial complex never having been obtained by Francisco; and (e) alleged that all
legal requirements for the expropriation of the property had been duly complied with by
the Municipality. 1 2
The Municipality set its motion for reconsideration for hearing on August 28, 1984 after
furnishing Francisco's counsel with copy thereof. The Court however re-scheduled the
hearing more than two (2) months later, on November 20, 1984. 1 3 Why the hearing was
reset to such a remote date is not explained.
On September 13, 1984, Francisco led an "Ex-Parte Motion for Execution and/or Finality
of Order," contending that the Order of July 27, 1984 had become " nal and executory on
August 12, 1984" for failure of the Municipality "to le a motion for reconsideration and/or
appeal within the reglementary period," 1 4 i.e., " fteen (15) days counted from the notice of
the final order . . . appealed from." 1 5
On October 10, 1984, the Court issued an Order declaring the Municipality's motion for
reconsideration dated August 15, 1984 to have been " led out of time," on account of
which the Court "could not give due course to and/or act . . . (thereon) except to dismiss
(as it did thereby dismiss) the same." 1 6 It drew attention to the fact that notice of its
Order of July 24, 1984 (dismissing the complaint as against Francisco) was served on
plaintiff Municipality on July 27, 1984, but its motion for reconsideration was not
presented until August 17, 1984, beyond the fteen-day period for appeal prescribed by
law. And on October 15, 1985, His Honor promulgated another Order directing the
issuance of (1) a writ of execution of the Order of July 24, 1984, and (2) a "certi cate of
finality" of said order. 1 7

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 The Municipality attempted to have the respondent Court reconsider both said Orders of
October 10, and October 15, 1984. To this end it submitted a motion contending that: 1 8
1) "multiple appeals are allowed by law" in actions of eminent domain, and hence the
period of appeal is thirty (30), not fifteen (15) days;
2) moreover, the grant of a separate trial at Francisco's instance had given rise " ipso facto
to a situation where multiple appeals became available (Sections 4 and 5, Rule 36, . . .,
Santos v. Pecson, 79 Phil. 261);
3) it was wrong for the Trial Court to have acted ex parte on the motion for execution, the
motion being "litigable in character;" and
4) it (the Municipality) was denied due process when the Court, after receiving Francisco's
evidence and admitting her exhibits, immediately resolved the case on the merits as
regards Francisco, without setting the case "for further hearing for reception of evidence
for the plaintiff."
The motion was denied, by Order dated October 18, 1984; hence, the special civil action of
certiorari at bar.
1. There are two (2) stages in every action of expropriation. The rst is concerned with the
determination of the authority of the plaintiff to exercise the power of eminent domain and
the propriety of its exercise in the context of the facts involved in the suit. 1 9 It ends with
an order, if not of dismissal of the action, "of condemnation declaring that the plaintiff has
a lawful right to take the property sought to be condemned, for the public use or purpose
described in the complaint, upon the payment of just compensation to be determined as
of the date of the ling of the complaint." 2 0 An order of dismissal, if this be ordained,
would be a nal one, of course, since it nally disposes of the action and leaves nothing
more to be done by the Court on the merits. 2 1 So, too, would an order of condemnation be
a nal one, for thereafter, as the Rules expressly state, in the proceedings before the Trial
Court, "no objection to the exercise of the right of condemnation (or the propriety thereof)
shall be filed or heard. 2 2

The second phase of the eminent domain action is concerned with the determination by
the Court of "the just compensation for the property sought to be taken." This is done by
the Court with the assistance of not more than three (3) commissioners. 2 3 The order
xing the just compensation on the basis of the evidence before, and ndings of, the
commissioners would be nal, too. It would nally dispose of the second stage of the suit,
and leave nothing more to be done by the Court regarding the issue. Obviously, one or
another of the parties may believe the order to be erroneous in its appreciation of the
evidence or ndings of fact or otherwise. Obviously, too, such a dissatis ed party may
seek reversal of the order by taking an appeal therefrom. cdrep

A similar two-phase feature is found in the special civil action of partition and accounting
under Rule 69 of the Rules of Court. 2 4
The rst phase of a partition and/or accounting suit is taken up with the determination of
whether or not a co-ownership in fact exists, and a partition is proper (i.e., not otherwise
legally proscribed) and may be made by voluntary agreement of all the parties interested in
the property. 2 5 This phase may end with a declaration that plaintiff is not entitled to have a
partition either because a co-ownership does not exist, or partition is legally prohibited. 2 6
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 It may end, on the other hand, with an adjudgment that a co-ownership does in truth exist,
partition is proper in the premises and an accounting of rents and pro ts received by the
defendant from the real estate in question is in order. 2 7 In the latter case, "the parties may,
if they are able to agree, make partition among themselves by proper instruments of
conveyance, and the court shall con rm the partition so agreed upon. 2 8 In either case —
i.e., either the action is dismissed or partition and/or accounting is decreed — the order is a
final one, and may be appealed by any party aggrieved thereby. 2 9
The second phase commences when it appears that "the parties are unable to agree upon
the partition" directed by the court. In that event partition shall be done for the parties by
the Court with the assistance of not more than three (3) commissioners. 3 0 This second
stage may well also deal with the rendition of the accounting itself and its approval by the
Court after the parties have been accorded opportunity to be heard thereon, and an award
for the recovery by the party or parties thereto entitled of their just share in the rents and
profits of the real estate in question. 3 1 Such an order is, to be sure, final and appealable.
Now, this Court has settled the question of the nality and appealability of a decision or
order decreeing partition or recovery of property and/or accounting. In Miranda v. Court of
Appeals, decided on June 18, 1986, 3 2 the Court resolved the question af rmatively, and
expressly revoked the ruling in Zaldarriaga v. Enriquez 3 3 — that a decision or order of
partition is not nal because it leaves something more to be done in the trial court for the
complete disposition of the case, i.e, the appointment of commissioners, the proceedings
for the determination by said commissioners of just compensation, the submission of
their reports, and hearing thereon, and the approval of the partition — and in Fuentebella vs.
Carrascoso 3 4 — that a judgment for recovery of property with accounting is not nal, but
merely interlocutory and hence not appealable until the accounting is made and passed
upon. As pointed out in Miranda, imperative considerations of public policy, of sound
practice and adherence to the constitutional mandate of simpli ed, just, speedy and
inexpensive determination of every action require that judgments for recovery (or partition)
of property with accounting be considered as nal judgments, duly appealable. This,
notwithstanding that further proceedings will still have to be rendered by the party
required to do so, it will be ventilated and discussed by the parties, and will eventually be
passed upon by the Court. It is of course entirely possible that the Court disposition may
not sit well with either the party in whose favor the accounting is made, or the party
rendering it. In either case, the Court's adjudication on the accounting is without doubt a
nal one, for it would nally terminate the proceedings thereon and leave nothing more to
be done by the Court on the merits of the issue. And it goes without saying that any party
feeling aggrieved by that ultimate action of the Court on the accounting may seek reversal
or modification thereof by the Court of Appeals or the Supreme Court. 3 5
The Miranda doctrine was reiterated in de Guzman v. C.A. ; 3 6 Valdez v. Bagaso ; 3 7
Lagunzad v. Gonzales ; 3 8 Cease v. C.A. ; 3 9 Macadangdang v. CA. ; 4 0 and Hernandez v. C.A. ;
4 1 Gabor v. C.A. 4 2 Fabrica v. C.A. 4 3

No reason presents itself for different disposition as regards cases of eminent domain. On
the contrary, the close analogy between the special actions of eminent domain and
partition already pointed out, argues for the application of the same rule to both
proceedings.
The Court therefore holds that in actions of eminent domain, as in actions for partition,
since no less than two (2) appeals are allowed by law, the period for appeal from an order
of condemnation 4 4 is thirty (30) days counted from notice of order and not the ordinary
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 period of fteen (15) days prescribed for actions in general, conformably with the
provision of Section 39 of Batas Pambansa Bilang 129, in relation to paragraph 19 (b) of
the Implementing Rules to the effect that in "appeals in special proceedings in accordance
with Rule 109 of the Rules of Court and other cases wherein multiple appeals are allowed,
the period of appeal shall be thirty (30) days, a record of appeal being required." 4 5
The municipality's motion for reconsideration led on August 17, 1984 was therefore
timely presented, well within the thirty-day period laid down by law therefor; and it was
error for the Trial Court to have ruled otherwise and to have declared that the order sought
to be considered had become final and executory.
2. As already observed, the Municipality's complaint for expropriation impleaded eleven
(11) defendants. A separate trial was held on motion of one of them, Erlinda Francisco, 4 6
it appearing that she had asserted a defense personal and peculiar to her, and inapplicable
to the other defendants, supra. Subsequently, and on the basis of the evidence presented
by her, the Trial Court promulgated a separate Order dismissing the action as to her, in
accordance with Section 4, Rule 36 of the Rules of Court reading as follows:
Sec. 4. Several judgments. — In an action against several defendants, the court
may, when a several judgment is proper, render judgment against one or more of
them, leaving the action to proceed against the others.

It is now claimed by the Municipality that the issuance of such a separate, nal order or
judgment had given rise "ipso facto to a situation where multiple appeals became
available." The Municipality is right.
In the case at bar, where a single complaint was led against several defendants having
individual, separate interests, and a separate trial was held relative to one of said
defendants after which a nal order or judgment was rendered on the merits of the
plaintiff's claim against that particular defendant, it is obvious that in the event of an
appeal from that separate judgment, the original record cannot and should not be sent up
to the appellate tribunal. The record will have to stay with the trial court because it will still
try the case as regards the other defendants. As the rule above quoted states, "In an action
against several defendants, the court may, when a several judgment is proper, render
judgment against one or more of them, leaving the action to proceed against the others."
4 7 In lieu of the original record, a record on appeal will perforce have to be prepared and
transmitted to the appellate court. More than one appeal being permitted in this case,
therefore, "the period of appeal shall be thirty (30) days, a record of appeal being required,"
as provided by the Implementing Rules in relation to Section 39 of B.P. Blg. 129, supra. 4 8
3. Erlinda Francisco led a "motion to dismiss" in traverse of the averments of the
Municipality's complaint for expropriation. That "motion to dismiss" was in fact the
indicated responsive pleading to the complaint, "in lieu of an answer." 4 9
Now, the Trial Court conducted a separate trial to determine whether or not, as alleged by
Francisco in her "motion to dismiss," she had a "vested right via a pre-existing approved
Locational Clearance from the HSRC," making the expropriation suit premature. 5 0 While
such a separate trial was not improper in the premises, 5 1 and was not put at issue by the
Municipality, the latter did protest against the Trial Court's (a) reversing the order of trial
and receiving rst, the evidence of defendant Francisco, and (b) subsequently rendering its
order sustaining Francisco's defense and dismissing the action as to her, solely on the
basis of said Francisco's evidence and without giving the plaintiff an opportunity to
present its own evidence on the issue. The Trial Court was clearly wrong on both counts.
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 The Court will have to sustain the Municipality on these points. prLL

Nothing in the record reveals any valid cause to reverse the order of trial. What the Trial
Court might have had in mind was the provision of Section 5, Rule 16 of the Rules of Court
allowing "any of the grounds for dismissal" in Rule 16 to "be pleaded as an af rmative
defense," and authorizing the holding of a "preliminary hearing . . . thereon as if a motion to
dismiss had been filed." Assuming this to be the fact, the reception of Francisco's evidence
first was wrong, because obviously, her asserted objection or defense — that the locational
clearance issued in her favor by the HSRC was a legal bar to the expropriation suit — was
not a ground for dismissal under Rule 16. She evidently meant to prove the Municipality's
lack of cause of action; but lack of cause of action is not a ground for dismissal of an
action under Rule 16; the ground is the failure of the complaint to state a cause of action,
which is obviously not the same as plaintiff's not having a cause of action.

Nothing in the record, moreover, discloses any circumstances from which a waiver by the
Municipality of the right to present contrary proofs may be inferred. So, in deciding the
issue without according the Municipality that right to present contrary evidence, the Trial
Court had effectively denied the Municipality due process and thus incurred in another
reversible error.
4. Turning now to the locational clearance issued by the HSRC in Francisco's favor on May
4, 1983, it seems evident that said clearance did become a "worthless sheet of paper," as
averred by the Municipality, upon the lapse of one (1) year from said date in light of the
explicit condition in the clearance that it "shall be considered automatically revoked if not
used within a period of one (1) year from date of issue," and the unrebutted fact that
Francisco had not really made use of it within that period. The failure of the Court to
consider these facts, despite its attention having been drawn to them, is yet another error
which must be corrected. prcd

WHEREFORE, the challenged Order issued by His Honor on July 24, 1984 in Civil Case No.
8-1960 is ANNULLED AND SET ASIDE, and the case is remanded to the Trial Court for the
reception of the evidence of the plaintiff Municipality of Biñan as against defendant Erlinda
Francisco, and for subsequent proceedings and judgment in accordance with the Rules of
Court and the law. Costs against private respondent.
SO ORDERED.
Cruz, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

Footnotes

1. Sec. 39, BP 129.

2. Par. 19 (b), Interim Rules of the Supreme Court en banc dated Jan. 11, 1987 in
implementation of the Judiciary Reorganization Act of 1981 (B.P. Blg. 129).
3. Par. 19(a), id.
4. Docketed as Civil Case No. 8-1960.

5. Rollo, pp. 34 et seq.

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 6. Moran, Comments on the Rules, 1980 ed., Vol. 3, p. 248, citing Rural Progress Adm. v. Judge
de Guzman, L-3224, Aug. 15, 1951.

7. Which reads as follows: "The court, in furtherance of convenience or to avoid prejudice, may
order a separate trial of any claim, cross-claim, counterclaim or third-party claim, or of
any separate issue or of any number of claims, cross-claims, counterclaims, third-party
claims or issues."
8. Human Settlements Regulatory Commission.
9. Rollo, pp. 40-44.

10. Id., pp. 53-54.

11. Ibid.
12. Rollo., pp. 54-61.
13. Id., p. 62 (Minutes of the session of September 28, 1984).
14. Rollo, pp. 63-65.

15. Sec. 39, B.P. 129; par. 19(a), Interim Rules of the Supreme Court in Implementation of the
Judiciary Reorganization Act of 1981.

16. Rollo, p. 67.

17. Id., p. 66.
18. Id., pp. 68-73.
19. SEE Secs. 1, 2 and 3, Rule 67 of the Rules of Court.
20. Sec. 4, Rule 67; See Nieto v. Isip, 97 Phil. 31; Benguet Consolidated v. Republic, 143 SCRA
466.
21. SEE Investments, Inc. v. C.A., et al., 147 SCRA 334, 339-341.

22. Ibid.
23. Secs. 5 to 8, Rule 67.
24. SEE Miranda v. C.A., 71 SCRA 295 (1976); Roque v. I.A.C., 165 SCRA 118, 125-126; Fabrica
v. C.A., 148 SCRA 250; Garbo v. C.A., 129 SCRA 616; Valdez v. Bagaso, 82 SCRA 22.
25. Secs. 1 and 2, Rule 69, Rules of Court.
26. Roque v. I.A.C., supra.
27. Sec. 8, Rule 69.

28. Sec. 2, Rule 69.

29. SEE footnote 3, at page 5, supra.
30. Secs. 3-7, Rule 69.
31. Sec. 8, Rule 69, supra.
32. 71 SCRA 295; 73 O.G. 11646.

33. 111 Phil. 829; 1 SCRA 1188 (1966).

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 34. G.R. No. 48102, May 27, 1942 (unpublished), 14 L.J. 305 (1949).
35. Mr. Justice Jose Y. Feria (ret.) in his annotations on B.P. Blg. 129 and the Interim Rules and
Guidelines, Rules of Court (Philippine Legal Studies, Series No. 1, 1983 ed., Central
Lawbook) (at p. 52) pointed out that under Miranda, supra and de Guzman, infra, "a
judgment for recovery of property is nal and appealable without awaiting the
accounting; and an order of partition is nal and appealable without awaiting the actual
partition. Hence the accounting or the partition may continue pending the appeal, and a
second appeal may be taken from the judgment on the accounting or the partition."
36. 71 SCRA 195 (1976).

37. 82 SCRA 22 (1978).

38. 92 SCRA 476 (1979).
39. 93 SCRA 483 (1981).
40. 108 SCRA 314 (1981).
41. 120 SCRA 856 (1983).

42. 129 SCRA 616.

43. 148 SCRA 250.
44. The first final order.

45. Emphasis supplied.

46. Pursuant to Sec. 2 of Rule 31 already quoted; footnote 3 on page 2, supra.

47. Emphasis supplied.

48. SEE Santos v. Pecson, et. al., 79 Phil 261, 265, 270, Dissenting Opinion, distinguishing
between the situation of defendants having separate or severable interest, and that of
defendants having solidary or joint or common interest.

49. See footnote 6 at page 2, supra.

50. SEE footnote 9 and related text, at page 2 supra.

51. SEE footnote 7, at page 2, supra.

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