FACTS: The case stemmed from an action led by petitioners in the trial court for Annulment of Mortgage, Extra!udicial Foreclosure Sale, and Annulment of Transfer Certicate of Title "os# T$%&'( and T$%&') and *eed of Sale +ith a rayer for reliminary -n!unction and .estraining /rder# The complaint alleged that the assailed mortgage and the foreclosure proceedings +ere null and 0oid since the +ritten consent of petitioners, as beneciaries of the mortgaged property, +ere not secured# .espondent ban1 denied the claim and alleged that in the execution of the mortgage, petitioners in fact ga0e their consent# *uring the course of the proceedings, petitioners and their counsel failed to attend a scheduled trial# 2pon motion of respondent ban1, the complaint +as dismissed# .TC: •
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3hen the case +as called, Atty# 4oren5o Castillo, counsel for the plainti6s did not appear despite proper notice# "o plainti6 appeared# Atty# Eduardo Alca Alcant ntar ara, a, coun counse sell for for defe defend ndan antt ban1 ban1 appe appear ared ed## Atty Atty## Alca Alcant ntar ara a manifested that there +ere numerous occasions in the past +hen plainti6s and counsel did not attend# 7e pointed out that there is an apparent lac1 of interest on the part of plainti6 to prosecute the action# 7e mo0ed to dismiss the case on that legal ground# 37E.EF/.E, in 0ie+ of the abo0e premises, the abo0eentitled case is hereby ordered dismissed# etiti etitione oners rs led led a motion motion for recon reconside siderat ration ion claimin claiming g that that they ha0e been been continuously pursuing negotiations +ith respondent ban1 to purchase bac1 the property and ha0e gained positi0e results# .espondent ban1 countered that from the time the complaint +as led, a period of three years had elapsed but petitioners failed to prosecute their case, sho+ing lac1 of interest in the early resolution thereof# The trial court denied the motion for reconsideration#
-SS2E: 3/" 3/" T7E T7E T.-A T.-A4 4 C/2. C/2.T T E..E E..E* * -" 4A 4A3 3 -" *-SM *-SM-S -SSS-"8 "8 E ETT-TT-/"E /"E.S .S C/M C/M4A4A-"T "T /" T7E 8./2 8./2"* "* /F T7ET7E-. . FA-42. A-42.E E T/ A AE EA. A. AT T7E T7E SC7E*24E* 7EA.-"8 *ES-TE T7AT T7AT *EFE"*A"T "9 7AS 9EE" E2A44; E2A44; 82-4T; 4-
etitioners erred in ling a petition for re0ie+ on certiorari under .ule () of the .ules of Court instead of ling an appeal +ith the Court of Appeals# Section =, .ule %> of the .ules of Court pro0ides:
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SEC# =# Dismissal due to fault of plainti. -f, for no !ustiable cause, the plainti6 fails to appear on the date of the presentation of his e0idence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply +ith these .ules or any order of the court, the complaint may be dismissed upon the motion of the defendant or upon the courts o+n motion, +ithout pre!udice to the right of the defendant to prosecute his counterclaim in the same or in a separate action# This dismissal shall have the efect o an adjudication upon the merits, unless otherwise declared by the court. 2pon the order of dismissal, petitioners counsel led a timely motion for reconsideration +hich +as denied by the trial court# Considering that an order of dismissal for failure to prosecute has the e6ect of an ad!udication on the merits, petitioners counsel should ha0e led a "/T-CE /F AEA4 +ith the appellate court +ithin reglementary period# .ules of procedure must be faithfully follo+ed except only +hen for persuasi0e reasons, they may be relaxed to relie0e a litigant of an in!ustice not commensurate +ith his failure to comply +ith the prescribed procedure# Concomitant to a liberal application of the rules of procedure should be an e6ort on the part of the party in0o1ing liberality to explain its failure to comply +ith the rules# -n the case at bar, three years ha0e since lapsed from the ling of the complaint on May =, $&&$ and the order of dismissal on April $>, $&&)# etitioner?s failure to prosecute their case and proceed +ith the trial during the span of three years leads to no other conclusion than that petitioners ha0e no interest in seeing their case terminated at the earliest possible time# @"o persuasi0e reasons to relax the rule#
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Dismissal due to ault o plaintif, proper remedy is ordinary appeal with the Court o Appeals. Duty o plaintif to prosecute his action with diligence, neglect thereo warrants dismissal o case.
