Rule 16 (Motion to Dismiss)

THIRD DIVISION[G.R. No. 104019. January 25, 1993.]VICTRONICS COMPUTERS, INC., petitioner, vs. REGIONAL TRIAL COURT, BRANCH 63, MAKATI, presided by JUDGE JULIO R. LOGARTA, PANORAMA ENTERPRISES, INC., PASIG TOURIST DEVELOPMENT CORP., GALACTIC SPACE DEVELOPMENT CORP., MALATE TOURIST DEVELOPMENT CORP., CALOOCAN TOURIST DEVELOPMENT CORP., BARRIENTOS & CO., INC., KARL C. VELHAGEN and ARCHIMEDES R. KING, who operate business under the names VICTORIA COURT, GMT CONSOLIDATED COMPANY and VICTORIA GROUP OF COMPANIES, respondents.Paras & Reynes Law Office for petitioner.Ernest S. Ang for respondents.SYLLABUS1.REMEDIAL LAW; CIVIL PROCEDURE; MOTION TO DISMISS; LITIS PENDENTIA AS A GROUND; REQUISITES. It is a rule that for litis pendential to be invoked as a ground for the abatement or dismissal of an action, the concurrence of the following requisites is necessary: (a) identity of parties, or at least such as representing the same interest in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) the identity in the two (2) cases should be such that the judgment that may be rendered in the pending case would, regardless of which party is successful, amount to res judicata in the other.2.ID.; ID.; ID.; ID.; AS A GENERAL RULE, THE SECOND CASE IS ABATED; LIMITATIONS. Like res judicata as a doctrine, litis pendentia as a principle is a sanction of public policy against multiplicity of suits. Differently put, "[T]he principle upon which a 'plea of another action pending' is sustained is that the latter action is deemed unnecessary and vexatious." There is no hard and fast rule that governs the determination of which of the actions should be abated. A review of relevant cases decided by this Court discloses that generally, it is the second case which is abated. Indeed, it seems that the maxim Qui prior est tempore, potior est jure controls. To be sure, there are limitations to this rule. At common law, if it appears to the court that the second action was not brought to harass or vex the defendant, and is not in fact vexatious, it may refuse to abate the second action, allow it to stand, and order the first one to be discounted on proper terms. The court may also permit the plaintiff to discontinue the first suit and thereby defeat the plea in abatement where the second suit is necessary in order to protect and secure the plaintiff's full rights, or where the abatement of the second suit is necessary in order to protect and secure the plaintiff's full rights, or where the abatement of the second would result in possible loss of substantial rights on the part of the plaintiff.3.ID.; ID.; ID.; ID.; PROVIDES THAT THERE IS A PENDING ACTION, NOT A PENDING PRIOR ACTION. In our jurisdiction, the law itself (Section 1(e), Rule 16, Rules of Court) does not specifically require that the pending action which would hold in abatement the other must be a pending prior action. Thus, in Teodoro vs. Mirasol, (99 Phil. 150, 153 [1956]) this Court observed: "It is to be noted that the Rules do not require as a ground for dismissal of a complaint that there is a prior pending action. They provide that there is a pending action, not a pending prior action. The fact that the unlawful detainer suit was of a later date is no bar to the dismissal of the present action. We find, therefore, no error in the ruling of the court a quo that plaintiff's action should be dismissed on the ground of the pendency of another more appropriate action between the same parties and for the same cause."4.ID.; ID.; ID.; ID.; ID.; BONA FIDES OR GOOD FAITH OF THE PARTIES MUST BE CONSIDERED; CASE AT BAR. It is interesting to note that in common law, as earlier adverted to, and pursuant to the Teodoro vs. Mirasol case, the bona fides or good faith of the parties is a crucial element. In the former, the second case shall not be abated if not brought to harass or vex; in the latter, the first case shall be abated if it is merely an anticipatory action or, more appropriately, an anticipatory defense against an expected suit a clever move to steal the march from the aggrieved party. In the case at bar, We do not hesitate to rule that the second case, Civil Case No. 91-2192, was filed not so much upon the inspiration of unadulterated good faith to seek redress for a genuine wrong committed but more to vex or harass in another forum the plaintiff in the first case, the herein petitioner. What cannot escape Our attention is the undue, if not indecent, haste in the preparation of the complaint in Civil Case No. 91-2192 by the counsel for the defendants in Civil Case No. 91-2069. Civil Case No. 91-2192 is for the nullification of a contract the purchase order signed by no less than the authorized officers of the six (6) respondent corporations. It is, therefore, based upon a written document as provided Section 7, Rule 8 of the Rules of Court. There was absolutely no compliance with this requisite as no copy of the purchase order was set forth in the body of the complaint or attached to the complaint itself. The non-observance of this simple yet basic rule cannot be attributed to the ignorance of the lawyers who, measured by their pleadings in this case, appear to be experienced and well-versed in the law, but to the frenzied efforts to file the complaint at the earliest possible time. To make it appear that the complaint was prepared before service of summons on the defendants in Civil Case No. 91-2069, it was dated 7 August 1991. It was, however, filed on 9 August 1991 although the office of the abovementioned lawyers is located at 2129 Pasong Tamo St., Makati, Metro Manila, within the same municipality wherein the court sits. Moreover, all six (6) corporations likewise have their principal office at the same pasong Tamo address. The private respondents' claim in their Comment that: ". . . when undersigned counsel filed Civil Case No. 91-2192, neither he nor his clients had actual notice of the earlier suit filed by petitioner. Civil Case No. 91-2192 was filed in good faith." is clearly self-serving. Besides, counsel is careful enough to use "actual notice" thereby admitting, in effect, that some other form of notice was received.5.ID.; INTERIM RULES AND REGULATION; FORUM SHOPPING; CONCEPT; APPLICATION IN CASE AT BAR. In People v. Court of Appeals, (101 SCRA 450 [1980]) We noted that forum-shopping has its roots in the rule that a party should not be allowed to pursue simultaneous remedies in two (2) different forums for it does havoc to the rule on orderly procedure. Later, in E. Razon Inc. vs. Philippine Port Authority, (G.R. No. 75197, Resolution of 31 July 1986, quoted in Buan vs. Lopez, Jr., 145 SCRA 34, 38-39 [1986]) We specifically declared that forum-shopping is an act of malpractice that is proscribed and condemned as trifling with the courts and abusing their processes; it is improper conduct that tends to degrade the administration of justice. Thus, the said rule has been formalized in Section 17 of the Interim Rules and Guidelines issued by this Court on 11 January 1983 in connection with the implementation of the Judiciary Reorganization Act (Batas Pambansa Blg. 129). A review of the cases on forum-shopping reveals, however, that they involve parties filing two (2) or more suits in different forums. The rule has not been extended to a defendant who, for reasons known only to him, commences a new action against the plaintiff instead of filing a responsive pleading in the other case setting forth therein, as cause of action, specific denials, special and affirmative defenses or even counterclaims. Thus, Velhagen's and King's motion to dismiss Civil Case No. 91-2069 by no means negates the charge of forum-shopping as such did not exist in the first place.D E C I S I O NDAVIDE, JR., J p:This is a petition for review on certiorari under Rule 45 of the Rules of Court. Petitioner seeks to set aside, for being inconsistent with law and jurisprudence, the 22 January 1992 Order of respondent Branch 63 of the Regional Trial Court (RTC) of Makati, Metro Manila which, among others, denied a motion for reconsideration of its earlier dismissal, on the ground of lis pendens, of a collection suit docketed as Civil Case No. 91-2069 filed against private respondents Karl C. Velhagen and Archimedes R. King, alleged operators of a business under the names VICTORIA COURT, GMT CONSOLIDATED COMPANY and VICTORIA GROUP OF COMPANIES. Petitioner further asks this Court, in the exercise of its supervisory power over lower courts, to direct the respondent Court to issue alias summonses to the respondent corporations which were impleaded as additional defendants in the amended complaint filed in said Civil Case No. 91-2069, and to order the consolidation of this case in Branch 63 with Civil Case No. 91-2192 pending before Branch 150 of the said court.The records disclose the following antecedents:Petitioner Victronics Computers, Inc., a domestic corporation engaged in the sale of computer systems and peripherals, submitted a quotation for office systems to service the networking requirements of various Victoria Court branches.Satisfied with the said quotations, private respondents Velhagen and King placed an order with the petitioner in a Purchase Order 1 form on which is written "GMT CONSOLIDATED" above the printed word COMPANY, and the address 2129 Pasong Tamo St., Makati, Metro Manila below it. The private respondents ordered six (6) sets of 80 DATA 386 computer system with peripherals for the net consideration, after deducting a P7,000.00 discount, of P767,000.00 subject, to the following terms:a)Payment 50% down, 50% COD upon completion of delivery.b)Delivery within 30 calendar days upon receipt of P.O. and 50% down payment.c)Penalty 1% of total P.O. amount per day of delay.These systems were to be delivered to the parties therein indicated. namely: VCAD, VCCU, VCHI, VCNE, VCMA and VCES. Per the delivery receipts, these acronyms stand for Victoria Court drive-in motels located in different places. llcdThe fifty per cent (50%) downpayment agreed upon was only paid. Thereupon, petitioner delivered on 22 May 1991 three (3) of the six (6) sets to Victoria Court/North EDSA, Victoria Court/Adriatico and Victoria Court/Cuneta. 2 The remaining sets were delivered on 20 June 1991 to Victoria Court/Hillcrest, Victoria Court/Panorama and Victoria Court/McArthur. 3 As revealed in the complaint in Civil Case No. 91-2192, each of the aforementioned establishments is owned by the herein six (6) respondent corporations which, however, decided sometime in 1986 "to band together for their mutual interest and benefit, under the trade name and style of the Victoria Court Group of Companies." 4 As further revealed in the Comment of these corporations, they operate under a common management team wherein respondents Velhagen and King are the General Manager and Chief Executive Officer, respectively. 5 Only fifty per cent (50%) of the purchase price of each of the sets delivered to the different establishments was paid by the said corporations. 6 The outstanding balance not having been paid within and even after the period stipulated in the Purchase Order despite demands for its payment made on Velhagen and King, the petitioner filed, on 26 July 1991, with the RTC of Makati a Complaint 7 for a sum of money and damages against:"KARL C. VELHAGEN and ARCHIE R. KING, who operate business under the names VICTORIA COURT, GMT CONSOLIDATED COMPANY, and VICTORIA GROUP OF COMPANIES."The case was docketed as Civil Case No. 91-2069 and was raffled off to Branch 63 of the said court, presided over by herein respondent Judge Julio R. Logarta.Defendants Velhagen and King, herein private respondents, were each served with a summons and a copy of the complaint on 8 August 1991. 8 The following day, 9 August 1991, the six (6) respondent corporations 9 filed with the RTC of Makati a Complaint, dated 7 August 1991, 10 for the nullification of the abovementioned Purchase Order and for damages against the herein petitioner and one Teodorico B. Kabigting. It is prayed for in the complaint that:". . . judgment be rendered for the plaintiffs and against the defendants declaring the contract to purchase the aforementioned computer equipment null and void for fraud and undue influence, and ordering defendants, jointly or severally, to pay plaintiffs:1.The sum of P383,500.00 plus reasonable interest of at least 2% per month from the month of May 1991 until the amount is actually paid, as compensary (sic) or actual damages;2.The sum of P500,000.00 as exemplary damages;3.The sum of P100,000.00 and a per appearance fee of P1,000.00 as and by way of attorney's fees;4.The cost of the suit."The case was docketed as Civil Case No. 91-2192 and was raffled off to Branch 150 of the said court.Four (4) causes of action are alleged in this complaint. In the first, the corporations claim that defendant Kabigting, then the Manager of the Management Information Services of the Victoria Court Group of Companies who was instructed to canvass or conduct a price survey of computer equipment supplied by different companies. connived with Victor Mariano, the petitioner's General Manager and the latter's old and close friend, in consideration of an alleged promise of a substantial commission, to falsify the price survey report and recommend the purchase of the computer equipment from the petitioner corporation. A routine check of the transaction likewise disclosed an overpricing of the equipment by at least P200,000.00 while an audit revealed that the equipment sold was among the surplus stock of the petitioner. In the second cause of action, they allege that they forthwith informed the petitioner's Mr. Mariano about the fraud and sought an audience with him for an amicable solution to the controversy, but that the petitioner failed to respond and instead referred the matter to its attorney who in turn wrote a letter of demand for the payment of the balance of the purchase price. Reacting, they also referred the matter to their lawyer who wrote the petitioner a letter informing it that the contract was being voided due to fraud and undue influence and demanding that the fifty per cent (50%) downpayment be returned with a reasonable interest at the rate of two per cent (2%) per month in exchange for the return of "all computer equipment purchased from defendant (herein petitioner) in the same condition as they were received." 11 Upon the petitioner's failure to respond positively to this offer, they filed the complaint. In the third cause of action, they allege bad faith and a fraudulent intent on the part of the defendants and ask for P500,000.00 as exemplary damages. The fourth cause of action is for attorney's and appearance fees.No copy of any document whatsoever is attached to the complaint in said Civil Case No. 91-2192. cdrepOn 22 August 1991, private respondents Velhagen and King, represented by counsel of record for the six (6) corporations in Civil Case No. 91-2192 the law firm of ANG, CADIZ and ASSOCIATES filed in Civil Case No. 91-2069 a Motion To Dismiss and/or To Suspend Proceedings based on the following grounds: (a) plaintiff (petitioner herein) failed to verify the complaint, (b) plaintiff failed to sue the proper parties and (c) there is a prejudicial question or a pending incident before another court. In support of these grounds, they allege that (a) verification is a formal requirement under Section 6, Rule 7 of the Rules of Court; (b) the transaction in question was not entered into by them in their personal capacities they acted for and on behalf of the corporations they represent; hence, the latter, who chose not to honor the contract, are the real parties in interest; moreover, "Victoria Court, GMT Consolidated Company and Victoria Group of Companies . . . are mere tradenames" 12 none of these named companies really exist; and (c) Civil Case No. 91-2192 (erroneously written as 91-2191) for the nullification of the subject purchase order has been filed against the petitioner and is pending before Branch 150 of the trial court; accordingly. "[A]t the very least, the Honorable Court (Branch 63) should suspend all proceedings in this case because of the existence of a prejudicial question or a pending incident before another court." Elaborating thereon, said movants state:"There is a situation wherein two suits were filed for different causes of action but involving the same transaction or contract. One case, the one pending before this Honorable Court, is for the enforcement of the contract, or more specifically, for the collection of the balance or sum of money as provided for in the contract. In the other case before another court, what is being sought is the nullification or the voiding of the same contract for alleged fraud and undue influence. There is no debate that the more basic question is before the other court, as the very validity of the contract sought to be enforced is at issue there.It is clear therefore that the second case is prejudicial to the determination of the first case. Whether or not the suit pending before this Honorable Court will prosper depends entirely on how the case in the other court will fare. If for example the other court should determine that there is (sic) sufficient grounds to nullify the contract, then the collection suit before this Honorable Court must necessarily fail. It is only after the other court should determined (sic) that the questioned contract is valid can this Honorable Court proceed with the collection case.Suspension of the proceedings before this Honorable Court is therefore the prudent thing to do. This will avoid the absurd situation wherein one court will find for one party in one case, and the other court will find for the adverse party in the second case. It is also an act of courtesy to a co-equal branch of the same court." 13 They then end with an alternative prayer, thus:"WHEREFORE, premises considered. it is respectfully prayed that the instant Complaint be dismissed for all or any of the grounds aforecited. On the alternative, it is prayed that the proceedings before the Honorable Court be at least suspended until the final resolution of the other case before Branch 150 of the Regional Trial Court of Makati." 14 Meanwhile, on 5 September 1991, the herein petitioner filed in Civil Case No. 91-2192 a Special Appearance and Motion To Dismiss 15 asking the trial court to dismiss the said case on grounds of improper service of summons and lack of jurisdiction over it as defendant therein. LibLexOn 16 September 1991, Branch 63 of the Makati RTC, through respondent Judge Julio Logarta, issued an order dismissing Civil Case No. 91-2069 because of litis pendentia. 16 The court gave the following reasons, quoted verbatim, in support of its ruling:". . . Clearly, the elements of litis pendentia, as a ground for a motion to dismiss is present, to wit:'1.Identity of parties or at least such as representing the same interests in both actions;2.Identity of rights asserted and prayed for, the reliefs being founded on the same facts;3.The identity of the presiding particulars should be such that any judgment which may be rendered on the other action will regardless of which party is successful amount to res judicata in the action under consideration (FEU Dr. Nicanor Reyes Medical Foundation vs. Trajano 152 SCRA, 453 (1987); Lopez vs. Villaruel, G.R. No. 54323, 1988).'Further, it was held that 'the Rule does not require as a ground for dismissal of a complaint that there is a prior action, but only pending action (Teodoro vs. Mirasol 53 O.G., 8088 99 Phil. 150).' Thus, the contention of plaintiff that the case before this branch is 123 days older than Civil Case No. 91-2192 before Branch 150, hence, the one lodged with Branch 150 should be the one dismissed by litis pendentia is untenable. Moreover, 'inclusion of additional parties in second case is no obstacle to its dismissal on the ground of litis pendentia' (Investors Finance Corp. vs. Judge Ebarle, G.R. No. 70640, June 29, 1988)." 17 On 19 September 1991, petitioner filed in Civil Case No. 91-2069 a contempt charge against respondents Velhagen and King for forum-shopping, 18 claiming that after having respectively received the summons and a copy of the complaint, both respondents did not file an answer with compulsory counterclaim. Instead, "using the names of certain corporations that represent the same interests they advance, [they] filed a separate action one day later before Branch 150 of the Makati Regional Trial Court in Civil Case No. 91-2192" 19 which arose from the same transaction or occurrence as that obtaining in Civil Case No. 91-2069; as a matter of fact, the complaint in the former reads like an answer with compulsory counterclaim to the complaint in the latter. Hence, both are guilty of forum-shopping, double dealing, trifling with the court and abusing its processes. 20 Meanwhile, acting on the petitioner's motion to dismiss Civil Case No. 91-2192, Branch 150 of the court below, per Judge Zeus Abrogar, handed down an order, on 25 September 1991, directing in order to remove any doubt on the propriety of the service of summons the re-service of summons on the petitioner. 21 On 4 October 1991, after allegedly accidentally learning of the 16 September 1991 Order of dismissal of Civil Case No. 91-2069, petitioner requested, and thereafter obtained, a photocopy of the said order which was not, unfortunately, served on the petitioner's counsel until then. 22 On 9 October 1991, petitioner filed in Civil Case No. 91-2069 an Ex Abundante Cautela Motion To Refer Forum-Shopping Charge to Executive Judge. 23 On the same date, petitioner filed a Motion for Reconsideration 24 of the said order of dismissal.On 14 October 1991, after proper service of summons to it, petitioner filed a Motion To Dismiss 25 Civil Case No. 91-2192 on the grounds of litis pendentia and forum shopping.Thereupon, on 11 December 1991, petitioner filed in Civil Case No. 91-2069 a motion for the consolidation 26 of the two (2) cases before Branch 63 where the prior case was filed; on 6 January 1992, it also filed in the same case a Manifestation Pro Hac Vice 27 wherein it stated that there was technically no pending action before" Branch 150 as it had not yet acquired jurisdiction over the person of the petitioner (due to improper service of summons) as evidenced by the 25 September 1991 Order of Judge Abrogar himself.In the meantime, however, petitioner filed in Civil Case No. 91-2192 an Answer with compulsory Counterclaim 28 dated 20 January 1992. One of the Special and Affirmative Defenses averred therein is the pendency in Branch 63 of Civil Case No. 91-2069. Also on 20 January 1992, petitioner filed in Civil Case No. 91-2069 an Amended Complaint impleading therein, as additional defendants, the six (6) corporations which sued as plaintiffs in Civil Case No. 91-2192. 29 On 7 February 1992, the Clerk of Court of Branch 63 sent the petitioner, by registered mail, 30 a copy of the 22 January 1992 Order in Civil Case No. 91-2069 31 which resolved the various motions filed by the latter. The said order reads:"Consequently, the Motion for Consolidation filed by plaintiff on December 11, 1991, perforce, should also be DENIED for being moot and academic.WHEREFORE, premises considered, the Motion for Reconsideration dated October 7, 1991; the Contempt Charge for Forum-Shopping; the Motion to Refer the Contempt Charge to the Executive Judge; the Motion for Consolidation; and, Manifestation Pro Hac Vice are hereby DENIED, and the order dated September 16, 1991, dismissing the above-entitled case is hereby REITERATED."Anent the particular issue of forum shopping, the lower court held that the same "is negated by the move of defendants (private respondents Velhagen and King) to dismiss the case filed before this court [Civil Case No. 91-2069], to give way to that which pends before Branch 150 [Civil Case No. 91-2192]." And, on the matter of litis pendentia, it reiterated its ruling that, the filing of one action ahead of another is not decisive on the issue of which of the two (2) identical actions in two (2) separate courts of concurrent jurisdiction should be dismissed. cdllAs a consequence of this 22 January 1992 Order, respondent Court, in Civil Case No. 91-2069, issued on 20 February 1992 an order denying the petitioner's motion for the issuance of an alias summons. 32 Hence, the instant petition wherein the petitioner claims that the respondent Court erred:"(1)in equating respondents' ground of 'pending incident before another court' to ask for suspension of proceedings with litis pendentia under Rule 16 when respondents' grounds to ask for dismissal were only (a) lack of verification; and (b) not having initially impleaded respondent corporations as proper parties grounds not found in Rule 16;(2)in ruling, with precipitate haste, and in insisting, despite a chance to reconsider, that there was another pending action at the time of dismissal when technically there was none since Branch 50 was still trying to acquire jurisdiction over petitioner's person and to notify petitioner by new summons some 2 weeks later about the filing of the second;(3)in preferring to maintain the second action over the first, which (a) was 123 cases (sic) older than the second; (b) was the one pending when the second one was just filed; and (c) was meant to collect the unpaid balance of close to half a million pesos that respondents still owe and which in substantial justice was entitled to be heard if not preferentially over the second, at least jointly with the second upon consolidation;(4)in disregarding the Supreme Court's rulings in vda. de Tolentino v. de Guzman, Pambusco v. Ocfemia, Ramos v. CIR, and other applicable decisions;(5)in not finding, by itself or through the executive judge, that the institution of the second action was a specie of forum shopping, in she light of DBP v. IAC, given that (a) the second action came 2 weeks later after the first complaint; (b) the second complaint was filed after respondents had already received a copy of the first; (c) respondents complaint reads like an answer with compulsory counterclaim to petitioner's complaint; and (d) the second action arose from the same transaction, facts, and circumstances identical to those in an already pending proceeding;(6)in totally ignoring the existence of the amended complaint; and(7)in releasing an order on February 7, 1992 that did not conform with the prevailing state of affairs of the action as of that time and with applicable Supreme Court decisions since (a) the amended complaint had already rendered the first complaint functus oficio along with resolutions that attached to it; (b) the motion for alias summons should have been granted as a matter of course; and (c) consolidation should have afterwards been granted to promote the Supreme Court's avowed preference for consolidation as expressed in Active Wood Products v. CA because it is a 'beneficial and desirable' practice." 33 On 10 June 1992, 34 after the private respondents filed their Comment 35 to the petition (on 20 April 1992) and the petitioner filed its Reply 36 thereto (on 28 May 1992), We resolved to give due course to the petition and required the parties to submit their respective Memoranda, which they subsequently complied with.The pivotal issues raised in the instant petition are: (1) whether or not the respondent Court erred in dismissing, on the ground of litis pendentia, Civil Case No. 91-2069 which has priority with respect to the time of filing, and (2) whether or not the private respondents are guilty of forum-shopping.It is a rule that for litis pendentia to be invoked as a ground for the abatement or dismissal of an action, the concurrence of the following requisites is necessary: (a) identity of parties, or at least such as representing the same interest in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) the identity in the two (2) cases should be such that the judgment that may be rendered in the pending case would, regardless of which party is successful, amount to res judicata in the other. 37 The presence of all the foregoing requisites with respect to Civil Case No. 91-2069 and Civil Case No. 91-2192 is not controverted by the parties. As a matter of fact, both invoked these identities in their respective motions to dismiss.As to the first requirement, it is quite evident that the petitioner is a party in both cases. There is, however, an initial confusion as to the personalities of the defendants in Civil Case No. 91-2069 and the plaintiffs in Civil Case No. 91-2192, who are claimed to be natural persons doing business under the names of "Victoria Court, GMT Consolidated Company and Victoria Group of Companies" and juridical persons (the six (6) corporations), respectively. In the light of the admission by the six (6) corporations that they banded together for their mutual interest and benefit under the trade name and style of the Victoria Group of Companies; that they put up a common management team with respondents Velhagen and King as General Manager and Chief Executive Officer, respectively; that the purchase order in question is the official act of the said officers; and that the computer sets were in fact received by them for which they each paid a downpayment of fifty per cent (50%) of the purchase price thereof, there can be no doubt that the defendants in the first case and the plaintiffs in the second case represent the same interests.As regards the second element, a careful reading of the allegations in the parties' respective complaints and motions to dismiss in the two (2) civil actions below reveals that both assert rights founded on an identical set of facts which give rise to one basic issue the validity of the contract in question, the purchase order for the computer equipment. Civil Case No. 91-2069 actually involves an action for specific performance; it thus upholds the contract and assumes its validity. Civil Case No. 91-2192, on the other hand, is for the nullification of the contract on the grounds of fraud and vitiated consent. While ostensibly the cause of action in one is opposite to that in the other, in the final analysis, what is being determined is the validity of the contract. It would not have been unlikely that in its answer filed in Civil Case No. 91-2192, the petitioner would merely reiterate its allegations in the complaint in Civil Case No. 91-2069 sustaining and invoking the validity of the purchase order and setting up lis pendens as a defense. This is what it exactly did. It would not have been likewise unlikely that the defense of the private respondents in Civil Case No. 91-2069 would be one in pursuit of their theory, as plaintiffs, in Civil Case No. 91-2192. Thus, the identity of rights asserted cannot be disputed. Howsoever viewed, it is beyond cavil that regardless of the decision that would be promulgated in Civil Case No. 91-2069, the same would constitute res judicata on Civil Case No. 91-2192 and vice-versa. But which case should be abated? Squarely put, should it be the second, which was filed fourteen (14) days after the filing of the first, or should it be the first? LLjurLike res judicata as a doctrine, litis pendentia as a principle is a sanction of public policy against multiplicity of suits. 38 Differently put, "[T]he principle upon which a 'plea of another action pending' is sustained is that the latter action is deemed unnecessary and vexatious." 39 There is no hard and fast rule that governs the determination of which of the actions should be abated. A review of relevant cases decided by this Court discloses that generally, it is the second case which is abated. Indeed, it seems that the maxim Qui prior est tempore, potior est jure 40 controls.To be sure, there are limitations to this rule. At common law, if it appears to the court that the second action was not brought to harass or vex the defendant, and is not in fact vexatious, it may refuse to abate the second action, allow it to stand, and order the first one to be discontinued on proper terms. The court may also permit the plaintiff to discontinue the first suit and thereby defeat the plea in abatement where the second suit is necessary in order to protect and secure the plaintiff's full rights, or where the abatement of the second suit is necessary in order to protect and secure the plaintiff's full rights, or where the abatement of the second would result in possible loss of substantial rights on the part of the plaintiff. 41 In our jurisdiction, the law itself 42 does not specifically require that the pending action which would hold in abatement the other must be a pending prior action. Thus, in Teodoro vs. Mirasol, 43 this Court observed:"It is to be noted that the Rules do not require as a ground for dismissal of a complaint that there is a prior pending action. They provide that there is a pending action, not a pending prior action. The fact that the unlawful detainer suit was of a later date is no bar to the dismissal of the present action. We find, therefore, no error in the ruling of the court a quo that plaintiff's action should be dismissed on the ground of the pendency of another more appropriate action between the same parties and for the same cause."In Roa-Magsaysay vs. Magsaysay, 44 wherein it was the first case which was abated, this Court ruled:"In any event, since We are not really dealing with jurisdiction out mainly with venue, considering both courts concerned do have jurisdiction over the causes of action of the parties herein against each other, the better rule in the event of conflict between two courts of concurrent jurisdiction as in the present case, is to allow the litigation to be tried and decided by the court which, under the circumstances obtaining in the controversy, would, in the mind of this Court, be in a better position to serve the interests of justice, considering the nature of the controversy, the comparative accessibility of the court to the parties, having in view their peculiar positions and capabilities, and other similar factors. Without in any manner casting doubt as to the capacity of the Court of First Instance of Zambales to adjudicate properly cases involving domestic relations, it is easy to see that the Juvenile and Domestic Relations Court of Quezon City which was created in order to give specialized attention to family problems, armed as it is with adequate and corresponding facilities not available to ordinary courts of first instance, would be able to attend to the matters herein dispute with a little more degree of expertise and experience, resulting in better service to the interests of justice. A reading of the causes of action alleged by the contending spouses and a consideration of their nature, cannot but convince Us that, since anyway, there is an available Domestic Court that can legally take cognizance of such family issues, it is better that said Domestic Court be the one chosen to settle the same as the facts and the law may warrant."We made the same pronouncement in Ramos vs. Peralta: 45 "Finally, the rule on litis pendentia does not require that the later case should yield to the earlier case. What is required merely is that there be another pending action, not a prior pending action. Considering the broader scope of inquiry involved in Civil Case No. 4102 and the location of the property involved, no error was committed by the lower court in deferring to the Bataan court's jurisdiction."An analysis of these cases unravels the ratio for the rejection of the priority-in-time rule and establishes the criteria to determine which action should be upheld and which is to be abated. In Teodoro, this Court used the criterion of the more appropriate action. We ruled therein that the unlawful detainer case, which was filed later, was the more appropriate action because the earlier case for specific performance or declaratory relief filed by the lessee (Teodoro) in the Court of First Instance (CFI) to seek the extension of the lease for another two (2) years or the fixing of a longer term for it, was "prompted by a desire on plaintiff's part to anticipate the action for unlawful detainer, the probability of which was apparent from the letter of the defendant to the plaintiff advising the latter that the contract of lease expired on October 1, 1954." 46 The real issue between the parties therein was whether or not the lessee should be allowed to continue occupying the leased premises under a contract the terms of which were also the subject matter of the unlawful detainer case. Consonant with the doctrine laid down in Pue vs. Gonzales 47 and Lim Si vs. Lim, 48 the right of the lessee to occupy the land leased against the lessor should be decided under Rule 70 of the Rules of Court; the fact that the unlawful detainer case was filed later was then of no moment. Thus, the latter was the more appropriate action.The "more appropriate action" criterion was also applied in Ramos vs. Peralta, 49 Ramos, the lessee of a fishpond located in Pilar, Bataan, sought to consign with the CFI of Manila the advance rentals for the fishpond for 15 March 1976 and 15 June 1976 after its tender was refused by the lessors (Ortaez spouses) 50 and after he was informed by the vendee of the property, P.R. Roman Inc. in its letter of 1 May 1976 that it had acquired the property and would take possession thereof on 16 May 1976. Ramos filed the consignation case, docketed as Civil Case No. 103647, with the lower court on 2 August 1976. Meanwhile, on 13 August 1976, P.R. Roman Inc. filed with the CFI of Bataan a complaint for quieting of title against Ramos; this case was docketed as Civil Case No. 4102. Consequently, P.R. Roman, Inc. filed a motion to dismiss Civil Case No. 103647 on the ground of, inter alia, lis pendens. The motion was granted. On appeal, this Court affirmed the lower court's decision considering the "broader scope of inquiry involved in Civil Case No. 4102 and the location of the property involved." cdphilIn Roa-Magsaysay, the criterion used was the consideration of the interest of justice. In applying this standard, what was asked was which court would be "in a better position to serve the interests of justice," 51 taking into account (a) the nature of the controversy, (b) the comparative accessibility of the court to the parties and (c) other similar factors. While such a test was enunciated therein, this Court relied on its constitutional authority to change venue to avoid a miscarriage of justice.It is interesting to note that in common law, as earlier adverted to, and pursuant to the Teodoro vs. Mirasol 52 case, the bona fides or good faith of the parties is a crucial element. In the former, the second case shall not be abated if not brought to harass or vex; in the latter, the first case shall be abated if it is merely an anticipatory action or, more appropriately, an anticipatory defense against an expected suit a clever move to steal the march from the aggrieved party.In the case at bar, We do not hesitate to rule that the second case, Civil Case No. 91-2192, was filed not so much upon the inspiration of unadulterated good faith to seek redress for a genuine wrong committed but more to vex or harass in another forum the plaintiff in the first case, the herein petitioner. What cannot escape Our attention is the undue, if not indecent, haste in the preparation of the complaint in Civil Case No. 91-2192 by the counsel for the defendants in Civil Case No. 91-2069. Civil Case No. 91-2192 is for the nullification of a contract the purchase order signed by no less than the authorized officers of the six (6) respondent corporations. It is, therefore, based upon a written document. Section 7, Rule 8 of the Rules of Court expressly provides that:"SECTION 7.Action or defense based on document. Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading." (Emphasis supplied).There was absolutely no compliance with this requisite as no copy of the purchase order was set forth in the body of the complaint or attached to the complaint itself. The non-observance of this simple yet basic rule cannot be attributed to the ignorance of the lawyers who, measured by their pleadings in this case, appear to be experienced and well-versed in the law, but to the frenzied efforts to file the complaint at the earliest possible time. To make it appear that the complaint was prepared before service of summons on the defendants in Civil Case No. 91-2069, it was dated 7 August 1991. 53 It was, however, filed only on 9 August 1991 although the office of the abovementioned lawyers is located at 2129 Pasong Tamo St., 54 Makati, Metro Manila, within the same municipality wherein the court sits. Moreover, all six (6) corporations likewise have their principal office at the same Pasong Tamo address. 55 The private respondents' claim in their Comment that:". . . when undersigned counsel filed Civil Case No. 91-2192, neither he nor his clients had actual notice of the earlier suit filed by petitioner. Civil Case No. 91-2192 was filed in good faith." 56 is clearly self-serving. Besides, counsel is careful enough to use "actual notice" thereby admitting, in effect, that some other form of notice was received.Being merely vexatious, Civil Case No. 91-2192 is the abatable case.Independently of the element of bona fides, the fact remains that under the peculiar circumstances attending the transaction in question, the first case for specific performance is the more appropriate action. In the first place, petitioner, the unpaid seller in the amount of fifty per cent (50%) of the purchase price, had completely delivered the six (6) computer sets to the establishments of the six (6) respondent corporations within the period stipulated in the purchase order. Despite their assertion in the complaint in Civil Case No. 91-2192 that the equipment was "outmoded and obsolete," 57 they neither claim the inability to use the computer sets nor insinuate that they had, at any time, called upon the petitioner to account under its warranty against hidden defects. 58 They did not even offer to return the computer equipment. Thus, in reality, it is the petitioner who has been aggrieved; in availing of the remedy of specific performance allowed under Article 1191 of the Civil Code, it was acting well within its rights. The subsequent action for the annulment of the contract on grounds of fraud and vitiated consent is nothing but a mere defense thereto. prLLRespondents Velhagen and King very well acknowledged the weakness of the defense of lis pendens. In their Motion to Dismiss and/or Suspend Proceedings, 59 they did not categorically refer to Civil Case No. 91-2192 as a pending action. In lieu thereof, they chose the phrase "prejudicial question or a pending incident before another court;" in consonance therewith, they even prayed that if Civil Case No. 91-2069 may not be dismissed for any of the grounds therein invoked, it should be suspended until the final resolution of Civil Case No. 91-2192. Fortunately for them, respondent Court read the phrase "prejudicial question or a pending incident" as lis pendens and thereafter decreed the dismissal of said Civil Case No. 91-2069. This clearly amounted to grave abuse of discretion.And now on the issue of forum-shopping.In its Order of 22 January 1992, respondent Court held:"Likewise, the Court finds no basis to cite defendant in contempt of court, allegedly for engaging in forum-shopping as this allegation is negated by the move of defendants to dismiss the case filed before this Court, to give way to that which pends before Branch 150." 60 Respondent Court does not seem to have a full grasp of the underpinnings of forum-shopping. In People vs. Court of Appeals, 61 We noted that forum-shopping has its roots in the rule that a party should not be allowed to pursue simultaneous remedies in two (2) different forums for it does havoc to the rule on orderly procedure. Later, in E. Razon Inc. vs. Philippine Port Authority, 62 We specifically declared that forum-shopping is an act of malpractice that is proscribed and condemned as trifling with the courts and abusing their processes; it is improper conduct that tends to degrade the administration of justice. Thus, the said rule has been formalized in Section 17 of the Interim Rules and Guidelines issued by this Court on 11 January 1983 in connection with the implementation of the Judiciary Reorganization Act (Batas Pambansa Blg. 129). A review of the cases on forum-shopping reveals, however, that they involve parties filing two (2) or more suits in different forums. 63 The rule has not been extended to a defendant who, for reasons known only to him, commences a new action against the plaintiff instead of filing a responsive pleading in the other case setting forth therein, as causes of action, specific denials, special and affirmative defenses or even counterclaims. Thus, Velhagen's and King's motion to dismiss Civil Case No. 91-2069 by no means negates the charge of forum-shopping as such did not exist in the first place. prLLIN VIEW OF THE FOREGOING, the instant petition is hereby GRANTED. The Order of respondent Court of 16 September 1991 dismissing Civil Case No. 91-2069 is SET ASIDE and a new one is entered DISMISSING instead, on ground of lis pendens, Civil Case No. 91-2192 of Branch 150 of the Regional Trial Court of Makati, with costs against the defendants therein. The Order of respondent Court of 22 January 1992 in Civil Case No. 91-2069 is hereby MODIFIED by setting aside that portion thereof denying the motion to reconsider its Order of 16 September 1991 and declaring that portion denying the motion for consolidation as moot and academic.Cost against private respondents.SO ORDERED.Gutierrez, Jr., Bidin, Romero and Melo, JJ ., concur.

THIRD DIVISION[G.R. No. 28883. June 3, 1992.]LOURDES G. SUNTAY, plaintiff-appellant, vs. HEROICO M. AGUILUZ, ET AL., defendants-appellees.SYLLABUS1.REMEDIAL LAW; CIVIL PROCEDURE; MOTION TO DISMISS; LIS PENDENS AS A GROUND; REQUISITES. The requisites of lis pendens as a ground for dismissal of a complaint are: (1) there must be the same parties or at least such as to represent the same interest; (2) there must be the same rights asserted and the same relief prayed for, which relief must be founded on the same facts and the title or essential basis of the relief sought must be the same; (3) the identity in these particulars should be such that if the pending case had already been disposed of, it would be pleaded in bar as a former adjudication of the same matter between the same parties.2.ID.; ID.; ID.; ID.; ID.; NOT PRESENT IN CASE AT BAR. Civil Case No. Q-10313, although cleverly denominated as one for specific performance with mandatory and prohibitory injunction, is in reality principally one for injunction to prevent the foreclosure of the mortgage and to fix a new period to pay the remaining unpaid balance of P40,000.00 which was to be paid on or before 6 August 1966 without any need for a demand. Upon the other hand, Civil Case No. Q-10343 is a suit for specific performance which asks for the payment of the balance and the liquidated damages and foreclosure of the mortgage. The causes of action and the reliefs sought are entirely different. A decision in the first will not amount to res judicata against the second case for whether or not defendants prevail in the former, petitioner's right to the unpaid balance and the foreclosure of the mortgage would still be litigable.3.ID.; ID.; ID.; ID.; REQUIRES A PENDING ACTION AND NOT A PENDING PRIOR ACTION. To the mind of this Court, if any case should be dismissed at all, it should be Civil Case No. Q-10313. That this case was filed ahead of the other is of no moment for, as this Court held in Teodoro vs. Mirasol: (99 Phil. 150 [1956]) "It is to be noted that the Rules do not require as a ground for dismissal of a complaint that there is a prior pending action. They provide that there is a pending action, not a pending prior action. The fact that the unlawful detainer suit was of a later date is no bar to the dismissal of the present action." Plaintiff then had all the right to file the motion to dismiss Civil Case No. Q-10313. Unfortunately, however, while she actually filed such a motion, she failed to invoke lis pendens; she merely raised: (a) unenforceability of the demands under the statute of frauds and (b) lack of cause of action as grounds for the motion. Thus, the same was denied by the trial court on 7 December 1966.4.ID.; ID.; CONSOLIDATION OF ACTION; RULE; CASE AT BAR. The trial court, therefore, committed an error in dismissing Civil Case No. Q-10343. What it should have done was to order its consolidation, for joint hearing and trial, with Civil Case No. Q-10313 pursuant to Section 1, Rule 31 of the Rules of Court. As ruled by this Court in Ramos vs. Ebarle: (182 SCRA 245 [1990]) ". . . And, whatever difficulties or inconvenience may be entailed if both causes of action are pursued on separate remedies, the proper solution is not the dismissal order of the trial court. The possible consolidation of said cases, as well as stipulations and appropriate modes of discovery, may well be considered by the court below to subserve not only procedural expedience but, more important, the ends of justice."D E C I S I O NDAVIDE, JR., J p:This is an appeal, on a pure question of law, from the Orders of 7 January 1967 and 26 September 1967 of Branch IX (Quezon City) of the then Court of First Instance (now Regional Trial Court) of Rizal in Civil Case No. Q-10343 which respectively dismissed said case on the ground of pendency of another action, Civil Case No. Q-10313, entitled Heroico M. Aguiluz, et al. vs. Lourdes G. Suntay, and denied the motion for its reconsideration.The antecedent facts are not disputed.On 9 June 1966, plaintiff and defendants executed a Deed of Sale with Real Estate Mortgage under which the former sold to the latter Lot 12, Block S-38 of the Diliman Estate Subdivision located in the District of Diliman, Quezon City, containing an area of 441 square meters, and more particularly described in Transfer Certificate of Title No. 82529 of the Registry of Deeds of Quezon City, subject to the following conditions: LLphil"WHEREFORE, for and in consideration of the sum of SIXTY THOUSAND (P60,000.00) PESOS, Philippine Currency, the VENDOR-MORTGAGEE hereby transfers, sells and conveys to the VENDEE-MORTGAGOR the above-described parcel of land together with all the improvements existing thereon subject to the following terms and conditions:1.That the VENDOR-MORTGAGEE acknowledges having receipt (sic) the sum of TWENTY THOUSAND (P20,000.00) PESOS as partial payment and the VENDEE-MORTGAGOR hereby binds himself to pay the balance of FORTY THOUSAND (P40,000.00) PESOS on or before August 6, 1966, without need of any demand;2.That failure on the part of the VENDEE-MORTGAGOR to pay the balance of the purchase price in the sum of FORTY THOUSAND (P40,000.00) PESOS in full on the agreed date, the VENDEE-MORTGAGOR shall pay to the VENDOR-MORTGAGEE the sum of TEN THOUSAND (P10,000.00) PESOS as liquidated damages.And to secure unto the VENDOR-MORTGAGEE the due and punctual payment of the balance of the purchase price of FORTY THOUSAND (P40,000.00) PESOS in accordance with the terms herein agreed upon, the VENDEE-MORTGAGOR hereby constitutes in favor of the said VENDOR-MORTGAGEE a valid and voluntary first mortgage upon the property subject of this Deed of Sale with Real Estate mortgage;And the conditions of this mortgage is (sic) such that if the VENDEE-MORTGAGOR, his heirs, successors and assigns shall faithfully comply with the terms agreed upon by the parties as contained in this instrument, then this mortgage shall have no further force or effect; otherwise, the said mortgage shall remain binding;That if at any time the VENDEE-MORTGAGOR fail (sic) to comply with the terms and conditions herein stipulated, the VENDOR-MORTGAGEE may at her discretion declare the mortgage defaulted and immediately foreclose this mortgage judicially or extra-judicially under Act No. 3135, as amended by Act No. 4119, and in case of foreclosure, the VENDOR-MORTGAGEE on filing the corresponding petition shall be appointed receiver without any bond, and the said VENDOR-MORTGAGEE shall at once take charge of the mortgaged property and to (sic) hold possession of the same, and the rents and profits derived from the mortgaged property before the sale, less the costs of expenses of the receivership, the expenses of collection and attorney's fees, which shall be TWENTY FIVE (25%) PER CENT of the total indebtedness, but which shall not be less than FIVE THOUSAND (P5,000.00) PESOS exclusive of all costs and fees allowed by law, shall be applied first to the payment of interests and then to the capital of the indebtedness secured herein and such rents and profits that may be obtained after the sale will belong to the bidder to whom the property shall have been adjudicated;That all the expenses in connection with the registration of this instrument, attorney's fee for the preparation of this document and all other expenses to effect the transfer of the above-mentioned Transfer Certificate of Title to the VENDEE-MORTGAGOR shall be for his exclusive account.That during the existence of this mortgage the VENDEE-MORTGAGOR shall insure the building in the abovementioned parcel of land in the amount of FORTY THOUSAND (P40,000.00) PESOS against all insurable risks with a reputable insurance Company to be chosen by the VENDOR-MORTGAGEE and the policy shall be endorsed to the VENDOR-MORTGAGEE;" 1 Defendants failed to pay the P40,000.00 on due date, 6 August 1966. Plaintiff demanded payment and threatened to foreclose the mortgage.On 9 August 1966, defendants filed a complaint against herein plaintiff for specific performance with preliminary mandatory and prohibitory injunction with the then Court of First Instance of Rizal, which was docketed as Civil Case No. Q-10313. They allege therein that upon the execution of the contract, the parties agreed that herein plaintiff would simultaneously deliver to the defendants the certificate of title and the tax declaration of the lot, the latest realty tax receipt, lot plan and vicinity map and building permit for the existing building; the defendants repeatedly made it known to the plaintiff that in order to fully pay the balance of the purchase price, the former needed to obtain a loan from the Social Security System (SSS) or any other lending institution, thus necessitating the transfer of the property in their names; for no justifiable reason and despite repeated demands, plaintiff refused to turn over to them the above documents, resulting in the delay in the filing of an application for a housing loan with the SSS; even if the application had been processed, however, the proceeds of the loan cannot be released until the certificate of title is surrendered to them and a new certificate of title is issued to them; plaintiff has threatened to foreclose the mortgage, immediately take possession of the property as receiver and enforce the penalty clause of the contract, which would cause them irreparable injury; if the foreclosure and/or receivership proceedings are initiated by herein plaintiff, their loan application would be disapproved by the SSS; and that it is essential that the court fix a reasonable period, to commence on the date the certificate of title is delivered to them, within which they may comply with their obligation to pay the unpaid balance of P40,000.00 of the purchase price. They pray that: (a) a writ of preliminary mandatory and prohibitory injunction be issued ordering the plaintiff to surrender the certificate of title and enjoining her or her representative from, inter alia, proceeding with the threatened foreclosure of the mortgage, respective; and (b) after trial, judgment be rendered making the injunction permanent, fixing a reasonable period, from the date of delivery of the certificate of title, within which they may comply with their above obligation and awarding to them attorney's fees, exemplary damages and costs. 2 On the day the above complaint was filed, the court 3 issued an Order setting the hearing for the application for injunction on 20 August 1966, and directing the parties to maintain the status quo in the meantime.On 18 August 1966, before being served with summons, a copy of the complaint in Civil Case No. Q-10313 and a copy of the above Order, herein plaintiff filed with the same court a complaint for recovery of the unpaid balance of the purchase price, the penalty provided for in the contract and foreclosure of the mortgage. The complaint was docketed as Civil Case No. Q-10343 and was raffled to another branch of the court. In said complaint, plaintiff prays for: (a) judgment ordering the defendants to pay her the amount of P50,000.00 (P40,000.00 representing the unpaid balance and P10,000.00 representing the liquidated damages) with legal interest from the date of the filing of the complaint until the same is fully paid and a sum equivalent to 25% thereof as attorney's fees, plus certain sums as attorney's fees for the preparation of the document, documentary stamps and registration fees, and decreeing the foreclosure of the mortgage and sale of the property in a public auction; and (b) an Order appointing her, during the pendency of the action, as receiver of the property. 4 Plaintiff subsequently received the summons and a copy of the complaint in Civil Case No. Q-10313 on 20 August 1966. 5 On 2 September 1966, defendants filed a motion to dismiss plaintiff's Civil Case No. Q-10343 on the following grounds: LLpr"1.That there is another action pending between the same parties for the same cause;2.That the complaint states no cause of action." 6 The other action referred to is Civil Case No. Q-10313.On 13 September 1966, defendants filed a Supplemental Complaint. 7 On 17 September 1966, plaintiff filed an Opposition to the motion to dismiss 8 alleging therein that the two (2) complaints are not for the same cause of action. While Civil Case No. Q-10313 prays for: (a) the issuance of a mandatory and prohibitory injunction to compel her to deliver the certificate of title and to prevent her from foreclosing the mortgage, and (b) the fixing of a period within which herein defendants will pay the balance of the purchase price of the property, Civil Case No. Q-10343 is an action for foreclosure of mortgage. She further alleges that her complaint states a valid cause of action as defendants failed to pay the balance of the purchase price on due date.On 7 January 1967, the trial court issued an Order dismissing Civil Case No. Q-10343 on the ground of pendency of another action "between the same parties for specific performance of the very contract subject of this suit for foreclosure, and it appearing that the issue raised in this present action can well and should be litigated in the suit for specific performance." 9 Her motion for reconsideration 10 having been denied by the trial court in its Order of 26 September 1967, 11 plaintiff filed her notice of appeal on 21 October 1967, 12 deposited a case appeal bond 13 and filed a record on appeal which was approved on 12 March 1968.In her Brief, plaintiff makes the following assignment of errors:"IThe lower court erred in holding that there is pending an action between the same parties for specific performance of the very contract subject of this suit for foreclosure, and it appearing further that the issues raised in this present action can well and should be litigated in the suit for specific performance.IIThe lower court erred in dismissing the complaint."Defendants did not file their Appellee's Brief despite three (3) extensions of time granted by this Court. 14 Hence, this Court considered this case submitted for decision without the Appellee's Brief. 15 The appeal is meritorious.As could be gathered from the body of the complaint, Civil Case No. Q-10313 is an action for injunction filed in anticipation of the foreclosure of the mortgage which plaintiff had threatened to pursue if defendants failed to pay the unpaid balance of P40,000.00 on due date. The contract explicitly provides that said balance shall be paid "on or before August 6, 1966 without need of any demand." Defendants' self-serving characterization thereof as an action for "specific performance" is calculated to obfuscate the issues and mislead the trial court. As this Court sees it, defendants herein merely tried to beat the plaintiff to the draw 16 and pre-empt the latter's legal moves.The other causes of action in Civil Case No. Q-10313 are but mere embellishments to give a semblance of viability to the alleged grievance of herein defendants. The contract fails to indicate that (a) it was the intention of the parties to consider the delivery of the certificate of title and the other documents mentioned therein as a condition precedent before the balance of P40,000.00 would be paid or (b) such delivery constitutes a suspensive condition the non-fulfillment of which prevents the obligation of defendants to pay said balance from arising. 17 On the contrary, as earlier alluded to, defendants unqualifiedly bound themselves to pay the balance on or before 6 August 1966 without need of any demand. Besides, since under the contract the property was mortgaged to the plaintiff as security for the payment of the unpaid balance of P40,000.00, plaintiff, as mortgagee, was entitled to possession of the certificate of title. The filing then of Civil Case No. Q-10313 was a clever ruse to avoid compliance with defendants' obligation. Even if it were not so, lis pendens does not apply in this case. The requisites of lis pendens as a ground for dismissal of a complaint are: (1) there must be the same parties or at least such as to represent the same interest; (2) there must be the same rights asserted and the same relief prayed for, which relief must be founded on the same facts and the title or essential basis of the relief sought must be the same; (3) the identity in these particulars should be such that if the pending case had already been disposed of, it would be pleaded in bar as a former adjudication of the same matter between the same parties. 18 While concededly, the first requisite obtains in this case, the last two are conspicuously absent. As earlier discussed, Civil Case No. Q-10313, although cleverly denominated as one for specific performance with mandatory and prohibitory injunction, is in reality principally one for injunction to prevent the foreclosure of the mortgage and to fix a new period to pay the remaining unpaid balance of P40,000.00 which was to be paid on or before 6 August 1966 without any need for a demand. Upon the other hand, Civil Case No. Q-10343 is a suit for specific performance which asks for the payment of the balance and the liquidated damages and foreclosure of the mortgage. The causes of action and the reliefs sought are entirely different. A decision in the first will not amount to res judicata against the second case for whether or not defendants prevail in the former, petitioner's right to the unpaid balance and the foreclosure of the mortgage would still be litigable. prcdTo the mind of this Court, if any case should be dismissed at all, it should be Civil Case No. Q-10313. That this case was filed ahead of the other is of no moment for, as this Court held in Teodoro vs. Mirasol: 19 "It is to be noted that the Rules do not require as a ground for dismissal of a complaint that there is a prior pending action. They provide that there is a pending action, not a pending prior action. The fact that the unlawful detainer suit was of a later date is no bar to the dismissal of the present action."Plaintiff then had all the right to file the motion to dismiss Civil Case No. Q-10313. Unfortunately, however, while she actually filed such a motion, she failed to invoke lis pendens; she merely raised: (a) unenforceability of the demands under the statute of frauds and (b) lack of cause of action 20 as grounds for the motion. Thus, the same was denied by the trial court on 7 December 1966. 21 The trial court, therefore, committed an error in dismissing Civil Case No. Q-10343. What it should have done was to order its consolidation, for joint hearing and trial, with Civil Case No. Q-10313 pursuant to Section 1, Rule 31 of the Rules of Court. As ruled by this Court in Ramos vs. Ebarle: 22 ". . . And, whatever difficulties or inconvenience may be entailed if both causes of action are pursued on separate remedies, the proper solution is not the dismissal order of the trial court. The possible consolidation of said cases, as well as stipulations and appropriate modes of discovery, may well be considered by the court below to subserve not only procedural expedience but, more important, the ends of justice."WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the challenged Orders of 7 January 1967 and 26 September 1967 in Civil Case No. Q-10343; REINSTATING said case; and ORDERING that it be jointly heard and tried with Civil Case No. Q-10313, if that would still be feasible.Costs against defendants-appellees.SO ORDERED.Gutierrez, Jr., Feliciano, Bidin and Romero, JJ., concur.

SECOND DIVISION[G.R. No. L-39047. April 30, 1985.]ALBERTO PASCUA, CRISPINA PASCUA, SOTERA PASCUA, and EDUARDO MOLINA, petitioners, vs. HON. ALFREDO C. FLORENDO, CFI of Cagayan, CLEMENTE CASTRO, and JULIANA O. CASTRO, respondents.Hermenigildo G. Rapanan for petitioner.SYLLABUS1.REMEDIAL LAW; CIVIL PROCEDURE; PREVIOUS DENIAL OF MOTION TO DISMISS; TRIAL COURT NOT ESTOPPED FROM PASSING UPON ISSUE OF PRESCRIPTION. The trial court denied the motion to dismiss because the grounds relied upon by the respondents for their motion did not appear on the face of the complaint. There was no finding that the allegation of prescription had no merit. It cannot be said, therefore, that the trial court was already stopped from passing upon the issue of prescription. The issue was not adjudicated on its merits and the doctrine of res judicata had not set in yet.2.ID.; ID.; ACTION; BARRED BY STATUTE OF LIMITATIONS; CASE AT BAR. We likewise find the petitioners' contention, that they came to know of the deed of sale by Martin Pascua in favor of the respondents only in 1973, highly improbable. As the trial court correctly observed, it is inconceivable that the petitioners did not come to know about the purchase by the respondents of the property from Martin Pascua. They admitted that they have been neighbors of the respondents since before the war or for a period of about 30 years and that the latter had deprived them of the fruits of the land in question for more than 20 years. Alberto Pascua, one of the petitioners testified that his parents from whom they inherited the property died more than 25 years ago yet the children never exerted any effort to have the property partitioned. This fact indicates that petitioners had knowledge of the sale, which explains why they had no interest at all in any project of partition. More important is the fact that after the respondents purchased the land they worked to secure an Original Certificate of Title on the basis of a free patent application. This was way back in 1958, 15 years before the petitioners decided to file the action below. Clearly, the petitioners' action is now barred by the statute of limitations.3.CIVIL LAW; ACTION FOR RELIEF BASED ON FRAUD; ACTION BROUGHT WITHIN FOUR YEARS FROM DISCOVERY OF FRAUD. Even if we add the lower court's finding that there was fraud on the part of Martin Pascua when he effected the sale of the disputed lot in favor of the respondents, the petitioners are still barred from recovering the lot because their action should have been filed within four (4) years from their discovery of the fraud, which in turn, is deemed at the latest to have taken place in 1958, when the respondents were issued an original certificate of title.4.REMEDIAL LAW; CIVIL PROCEDURE; JUDGMENT BY DEFAULT PREVAILING PARTY NOT AUTOMATICALLY ENTITLED TO RELIEF; CASE AT BAR. Nowhere in the aforequoted provision nor in the summons issued by the respondent court is it stated that the petitioners are automatically entitled to the relief prayed for, once the respondents are declared in default. Favorable relief can be granted only after the court has ascertained that the evidence offered and the facts proven by the presenting party, petitioners in this case, warrant the grant of the same. Otherwise, it would be meaningless to require presentation of evidence if everytime the other party is declared in default, a decision would automatically be rendered in favor of the non-defaulting party and exactly according to the tenor of his prayer. This is not contemplated by the Rules nor is it sanctioned by the due process clause. In the instant case, from the evidence presented ex-parte by the petitioners and from their very own allegations, the only judgment that is warranted is the dismissal of the complaint. It is barred by the statute of limitations.D E C I S I O NGUTIERREZ, JR., J p:This is a petition for review on certiorari, seeking to annul the decision of the Court of First Instance of Cagayan which dismissed the petitioners' action for reconveyance with damages on the ground that the period within which to file the same had already prescribed.Petitioners, as plaintiffs, filed a complaint for reconveyance with damages against the private respondents, spouses Clemente and Juliana Castro. The latter, as defendants, in lieu of filing an answer, filed a motion to dismiss the complaint on the grounds that the complaint states no cause of action and that the same is already barred by the statute of limitations.The trial court denied the respondents' motion after finding that the grounds relied upon by them did not appear on the face of the complaint. The court subsequently declared the respondents in default for their having failed to file an answer within the reglementary period. Thus, the petitioners proceeded to present their evidence ex-parte.After receiving the petitioners' evidence, the trial court made the following findings:"From the evidence adduced during the presentation of evidence by plaintiffs, it was shown that Alberto Pascua is one of the plaintiffs, in this case; that he knows his co-plaintiffs Crispina, Sotera, surnamed Pascua, and Eduardo Molina, the first two being his sisters while the last is his nephew being the son of his sister Alejandra; that his father is Jordan Pascua while his mother is Magdalena Dumadag; that both his parents are already dead (Exhibits A, B, and C); that Alejandra Pascua is also dead; that during the lifetime of Jordan and Magdalena Dumadag, they begot five children, namely Alberto, Alejandra, Crispina, Martin and Sotera; that Jordan Pascua and Magdalena Dumadag acquired a parcel of land located at Dacalafugo, Camalaniugan, Cagayan, consisting of 1.02.20 hectares and described in paragraph 3 of the complaint; that lately they came to know that their brother Martin Pascua sold the property to Clemente Castro, a resident of Camalaniugan, Cagayan; that when they went to complain to the Agrarian office in Tuguegarao, Clemente Castro showed them the deed of sale which they xerox copied (Exhibit D); that the signature Alberto Pascua appearing in Exhibit D is not his signature; that the genuine signature of Alberto Pascua appears in Exhibit E; that he and his co- plaintiffs did not give consent to the sale of the land subject matter of this case; that the signature Sotera Pascua, appearing in Exhibit D is not also the signature of Sotera Pascua; that he and his co-plaintiffs did not appear before the Notary Public; that the land subject matter of this case was never given to Martin Pascua by their deceased father; that Martin Pascua is already dead; that the land is now titled in the name of the defendant Juliana O. Castro (Exhibits F and F-1) while the deed of sale was executed in favor of Clemente Castro (Exhibit D); that the land is declared for taxation purposes under Tax Declaration No. 157 (Exhibit G) in the name of Juliana Castro; that plaintiffs and the defendants have been neighbors since before the war and defendants know that the land sold to them and subject matter of this suit was inherited by the plaintiffs from their deceased father; that they (plaintiffs) have been deprived of the fruits of the land for more than 20 years; that the land yields from thirty to forty sacks of palay valued at P30.00 each; and that plaintiffs agreed to pay their counsel the amount of P1,200.00 out of which they have already paid P200.00."From. Exhibit D of the plaintiffs, it appears that the deed of sale was executed in favor of the defendant Clemente Castro married to Juliana Orteza by Martirs Pascua on May 8, 1951. Alberto Pascua and Sotera Pascua testified that lately they came to know that this land was conveyed by Martin Pascua to the defendants and that said defendants have been in possession of the land in question for more than 20 years. They testified further, however, that they have been deprived of the fruits of the land for more than twenty years. If such is the case, it is clear that the defendants have entered and occupied the property for more than twenty years and it is inconceivable that the plaintiffs did not come to know that the defendants bought the property from their brother Martin Pascua when they admitted that they have suffered damages by virtue of the dispossession for more than twenty years. The conclusion is obvious that the plaintiffs had knowledge of the transaction made by their brother about twenty years ago."From the evidence of the plaintiffs, the Court finds that there was really fraud committed by Martin Pascua in selling the entire property which said Martin Pascua and plaintiffs inherited from their parents thus excluding the shares of the plaintiffs. Certainly, Martin Pascua could only sell one-fifth of the property and that the four-fifths were fraudulently conveyed by him. It is clear that there was fraud on the part of Martin Pascua in selling the shares of his brother and sisters. The action for relief on the ground of fraud, however, may be brought only within four years from the discovery of the fraud. (Article 1391, New Civil Code; Section 43 (c) Act 190).xxx xxx xxx"In view of the fact that the deed of sale was executed on May 8, 1951, or over twenty years before the filing of the complaint on May 31, 1973, it is hard to believe that plaintiffs did not come to know of this deed of sale executed by their brother. The Court, therefore, comes to the inevitable conclusion that this action, having been filed 22 years after the execution of the deed of sale, has long prescribed."Not satisfied with the trial court's decision, petitioners elevated the case to this Court through this petition. The petitioners ask us to examine the following alleged errors of the respondent court: LLjur1.THE TRIAL COURT ERRED IN DISMISSING THE CASE ON GROUND OF PRESCRIPTION ALTHOUGH IT HAS PREVIOUSLY DENIED A MOTION TO DISMISS BASED ON THE SAME GROUND.2.THE TRIAL COURT ERRED IN NOT GRANTING RELIEF TO PLAINTIFFS ALTHOUGH THE DEFENDANTS WERE DECLARED IN DEFAULT.The petitioners contend that the trial court acted with grave abuse of discretion when, after hearing their evidence presented ex-parte, the respondents having been declared in default, it dismissed the case on the ground that the action had already prescribed. When the same ground was earlier raised, the court denied the motion to dismiss filed by the respondents. The petitioners argue that because of its denying the motion to dismiss, the trial court is stopped from dismissing the case on the same ground. Petitioners further contend that the court's conclusion that they had knowledge of the sale executed by their deceased brother, Martin Pascua about twenty years ago is based merely on surmises and conjectures because, in reality, it was only in 1973 when they came to learn of the deed of sale executed by their deceased brother in 1951. In 1973, the deed was shown to them by respondent Clemente Castro at the Agrarian office. Therefore, the period of prescription should be counted from the knowledge of the petitioners of the deed of sale and not from the date it was executed. LLprPetitioners' contention are without merit.The trial court denied the motion to dismiss because the grounds relied upon by the respondents for their motion did not appear on the face of the complaint. There was no finding that the allegation of prescription had no merit. It cannot be said, therefore, that the trial court was already stopped from passing upon the issue of prescription. The issue was not adjudicated on its merits and the doctrine of res judicata had not set in yet.We likewise find the petitioners' contention, that they came to know of the deed of sale by Martin Pascua in favor of the respondents only in 1973, highly improbable. As the trial court correctly observed, it is inconceivable that the petitioners did not come to know about the purchase by the respondents of the property from Martin Pascua. They admitted that they have been neighbors of the respondents since before the war or for a period of about 30 years and that the latter had deprived them of the fruits of the land in question for more than 20 years. Alberto Pascua, one of the petitioners testified that his parents from whom they inherited the property died more than 25 years ago yet the children never exerted any effort to have the property partitioned. This fact indicates that petitioners had knowledge of the sale, which explains why they had no interest at all in any project of partition. More important is the fact that after the respondents purchased the land they worked to secure an Original Certificate of Title on the basis of a free patent application. This was way back in 1958, 15 years before the petitioners decided to file the action below. Clearly, the petitioners' action is now barred by the statute of limitations.In the case of Iglesia ni Cristo v. Hon. Judge, Court of First Instance of Nueva Ecija, Br. I (123 SCRA 523), quoting the case of Labora v. Dayang-hirang (37 SCRA 346), we ruled:"The rule in this jurisdiction, regarding public patents and the character of the certificate of title that may be issued by virtue thereof, is that where land is granted by the government to a private individual, the corresponding patent therefor, is recorded and the certificate of title is issued to the grantee; thereafter, the land is automatically brought within the operation of the Land Registration Act, the title issued to the grantee becoming entitled to all the safeguards provided in Section 38 of said Act. In other words, upon the expiration of one year from its issuance, the certificate of title becomes irrevocable and indefeasible like a certificate issued in a registration proceeding."It is quite obvious, therefore, that the respondents' title has already become indefeasible and irrevocable, the one-year period provided by law having expired in 1959.Moreover, even if we add the lower court's finding that there was fraud on the part of Martin Pascua when he effected the sale of the disputed lot in favor of the respondents, the petitioners are still barred from recovering the lot because their action should have been filed within four (4) years from their discovery of the fraud, which in turn, is deemed at the latest to have taken place in 1958, when the respondents were issued an original certificate of title. This was our ruling in the case of Balbin v. Medalla (108 SCRA 666) where we stated: llcd"An action for reconveyance of real property resulting from fraud may be barred by the statute of limitations, which requires that the action shall be filed within four (4) years from the discovery of the fraud. Such discovery is deemed to have taken place when the petitioners herein were issued original certificates of title through either homestead or free patent grants, for the registration of said patents constitutes constructive notice to the whole world. (Gerona v. de Guzman, 11 SCRA 153, and cited cases thereof)."In the case at bar, the latest patent war issued on October 14, 1959. There is, therefore, merit in petitioners's contention that if any action for reconveyance should be commenced, the same should be filed on or before October 14, 1963. But private respondents' complaint for reconveyance and annulment of titles with damages was filed only on August 30, 1973 or more than 14 years had already elapsed from the date of the issuance of the respective titles of the defendants. Consequently, the action for reconveyance of land titled in the names of defendants (petitioners herein) had already prescribed."The petitioners raise as a second issue that the respondent court had no alternative but to grant the relief prayed for in their complaint as this was evident in the tenor of the summons issued by said court which in part stated:". . . if you fail to appear within the time aforesaid, the plaintiff will take judgment against you by default and demand from this Court the relief applied for in said complaint . . ."Petitioners also anchor their contention on Rule 18, Section 1 of the Rules of Court which provides:"Judgment by default. If the defendant fails to answer within the time specified in these roles, the court shall, upon motion of the plaintiff and proof of such failure, declare the defendant in default. Thereupon the court shall proceed to receive the plaintiff's evidence and render judgment granting him such relief as the complaint and the facts proven may warrant. This provision applies where no answer is made to a counter-claim, cross-claim or third-party complaint within the period provided in this Rule."Nowhere in the aforequoted provision nor in the summons issued by the respondent court is it stated that the petitioners are automatically entitled to the relief prayed for, once the respondents are declared in default.Favorable relief can be granted only after the court has ascertained that the evidence offered and the facts proven by the presenting party, petitioners in this case, warrant the grant of the same. Otherwise, it would be meaningless to require presentation of evidence if everytime the other party is declared in default, a decision would automatically be rendered in favor of the non-defaulting party and exactly according to the tenor of his prayer. This is not contemplated by the Rules nor is it sanctioned by the due process clause. prLLIn the case of Lim Tanhu v. Ramolete (66 SCRA 452-453), we had occasion to elaborate on this point. We ruled:"The Rules of Court contain a separate rule on the subject of default, Rule 18. But said rule is concerned solely with default resulting from failure of the defendant or defendants to answer within the reglementary period. Referring to the simplest form of default, that is, where there is only one defendant in the action and he fails to answer on time, Section l of the rule provides that upon 'proof of such failure, (the court shall) declare the defendant in default. Thereupon the court shall proceed to receive the plaintiff's evidence and render judgment granting him such relief as the complaint and the facts proven may warrant.' This last clause is clarified by Section 5 which says that 'a judgment entered against a party in default shall not exceed the amount or be different in kind from that prayed for.'"Unequivocal, in the literal sense, as these provisions are, they do not readily convey the full import of what they contemplate. To begin with, contrary to the immediate notion that can be drawn from their language, these provisions are not to be understood as meaning that default or the failure of the defendant to answer should be 'interpreted as an admission by the said defendant that the plaintiff's cause of action find support in the law or that plaintiff is entitled to the relief prayed for.' (Moran, supra, p. 535 citing Macondray & Co. v. Eustaquio, 64 Phil. 466. citing with approval Chaffin v. Mc Fadden, 41 Ark. 42; Johnson v. Pierce, 12 Ark. 599; Mayden v. Johnson, 59 Ga. 105; People v. Rust, 292 Ill. 328; Ken v. Leopold, 21 Ill. A. 163; Chicago, etc. Electric R. Co. v. Krempel, 116 Ill. A. 253.)xxx xxx xxx"In other words, a defaulted defendant is not actually thrown out of court. While in a sense it may be said that by defaulting he leaves himself at the mercy of the court, the rules see to it that any judgment against him must be in accordance with law. The evidence to support the plaintiffs cause is, of course, presented in his absence, but the court is not supposed to admit that which is basically incompetent. Although the defendant would not be in a position to object, elementary justice requires that only legal evidence should be considered against him. If the evidence presented should not be sufficient to justify a judgment for the plaintiff, the complaint must be dismissed. And if an unfavorable judgment should be justifiable, it cannot exceed in amount or be different in kind from what is prayed for in the complaint."In the instant case, from the evidence presented ex-parte by the petitioners and from their very own allegations, the only judgment that is warranted is the dismissal of the complaint. It is barred by the statute of limitations.WHEREFORE, the petition is hereby DISMISSED for lack of merit. No costs.SO ORDERED.Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De la Fuente and Alampay, JJ., concur.

SECOND DIVISION[G.R. No. L-49833. February 15, 1990.]JUANITO RAMOS, SALVADOR RAMOS, ESPERIDION RAMOS, LYDIA RAMOS and AGAPITA VDA. DE RAMOS, petitioners, vs. HON. BIENVENIDO A. EBARLE, Judge, Court of First Instance of Misamis Occidental, Branch II, and SPOUSES BERTOLO HINOG and DELA PAZ CORTES, respondents.Dominador B. Borje for petitioners.Jorge C. Paderanga for private respondents.SYLLABUS1.REMEDIAL LAW; CIVIL PROCEDURE; JUDGMENT; LITIS PENDENTIA, REQUISITES. Under the rules and jurisprudence, for litis pendentia to be invoked as a ground for the dismissal of an action, the concurrence of the following requisites is necessary: (a) Identity of parties or at least such as represent the same interest in both actions; (b) Identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) The identity in the two cases should be such that the judgment that may be rendered in one would, regardless of which party is successful, amount to res judicata in the other.2.ID.; ID.; ID.; ID.; NO LITIS PENDENTIA IN CASE AT BAR. The rights asserted in each of the cases involved are separate and distinct; there are two subjects of controversy presented for adjudication. Also, two causes of action are clearly involved. Civil Case No. OZ 642 is for annulment of an instrument and recovery of possession and ownership of the one-half (1/2) share of the widow in the conjugal partnership properties. The alienation and transfer thereof to private respondents without the knowledge and consent of said widow is the actionable wrong. This cause of action properly pertains to the widow, Agapita Manisan, who is the real aggrieved party and, therefore, the real party in interest. Thus, the participation of the other petitioners in the case in that particular regard is not even necessary and they should not have been impleaded therein. On other hand, the real parties in interest in the second action, Civil Case No. OZ 731, not only include the widow but all the heirs of Manuel Ramos. The case is anchored on the alleged fraudulent acts employed by private respondents in securing Transfer Certificate of Title No. 300 although the deed purporting to be a sale was actually intended only as a mortgage. Necessarily, the real parties in interest and the cause of action are not the same. Furthermore, the subject matter affected by said cause of action is the entire deed and, consequently, the entire parcel of land and not merely a part or half thereof.3.ID.; ID.; ID.; ID.; WHILE A DECISION IN ONE CASE MAY AFFECT THE OTHER CASE IDENTITY OR DISCRETENESS OF THE CAUSES OF ACTION IS NOT DETERMINED BY IT. It necessarily follows from the above disquisition that the third requisite for litis pendentia is also not present. There being different causes of action, the decision in one case will not constitute res judicata as to the other. Thus, a finding that there was no fraud in executing a deed of sale instead of a mortgage will not be res judicata as to the question of whether or not the widow consented to or participated in the transaction. Of course, a decision in one case may, to a certain extent, affect the other case as they involve the same parcel of land. This, however, is not the test to determine the identity or discreteness of the causes of action.4.ID.; ID.; ID.; ID.; ID.; DIFFICULTIES OR INCONVENIENCE IN PURSUING CAUSES OF ACTION BY SEPARATE REMEDIES DO NOT JUSTIFY DISMISSAL. Whatever difficulties or inconvenience may be entailed