G.R. No. L-35910. July 21, 1978.
PURITA BERSABAL, petitioner, vs. HONORABLE JUDGE SERAFIN SALVADOR, as Judge of the Court of First Instance of Caloocan City, Branch XIV, TAN THAT and ONG PIN TEE, respondents.

FACTS

Petitioner Purita Bersabal appealed a City Court ejectment decision to the Court of First Instance (CFI), docketed as Civil Case No. C-2036. The respondent CFI judge issued an order on March 23, 1971, directing the transmittal of the stenographic notes and giving both parties thirty days from receipt to file their memoranda, after which the case would be deemed submitted for decision. Petitioner received this order on April 17, 1971. As the transcripts had not yet been forwarded, petitioner filed an ex-parte motion on May 5, 1971, requesting to submit her memorandum within thirty days from notice of the transcripts’ submission. The court granted this motion on May 7, 1971.
Without petitioner receiving any notice that the transcripts had been submitted, the respondent judge issued an order on August 4, 1971, dismissing petitioner’s appeal for failure to prosecute. Petitioner filed a motion for reconsideration and subsequently submitted her memorandum. The respondent judge denied the motion for reconsideration on October 30, 1971, and a subsequent motion for leave to file a second motion for reconsideration was denied on March 15, 1972. Petitioner then filed this certiorari petition to annul these orders and compel the CFI to decide her perfected appeal.

ISSUE

Whether the Court of First Instance has the power to dismiss an appeal for the appellant’s mere failure to timely submit a memorandum, or whether it is mandatory for the court to decide the appeal on the basis of the evidence and records transmitted from the inferior court.

RULING

The Supreme Court ruled in favor of the petitioner, setting aside the dismissal orders. The legal logic is anchored on the clear and mandatory language of the second paragraph of Section 45 of Republic Act No. 296 (The Judiciary Act of 1948), as amended by Republic Act No. 6031. The provision states: “Courts of First Instance shall decide such appealed cases on the basis of the evidence and records transmitted from the city or municipal courts: Provided, That the parties may submit memoranda and/or brief with oral argument if so requested…”
The Court emphasized the statutory distinction between “shall” and “may.” The word “shall” imposes a mandatory duty on the CFI to decide the appealed case on the basis of the transmitted evidence and records. Conversely, the word “may” regarding the submission of memoranda is permissive only; it is optional on the part of the parties. Since the submission of a memorandum is not an essential requirement but merely an option the parties may avail of if requested by the court, the appellant’s failure to submit one does not constitute a failure to prosecute that warrants dismissal. The law leaves the CFI with no discretion to dismiss the appeal on that ground. Its only duty is to proceed to decide the case on the merits based on the available records.
The Court further found that in this specific instance, the dismissal was precipitate. Petitioner had been granted an extension to file her memorandum upon notice of the transcripts’ submission, but the appeal was dismissed before she received any such notice and before her period to file even commenced. The orders of August 4, 1971, October 30, 1971, and March 15, 1972, were declared null and void. The respondent court was directed to decide Civil Case No. C-2036 on its merits.