DIFFERENCE BETWEEN THE CERTIORARI REMEDIES UNDER RULE 45 AND RULE 65 OF THE RULES OF COURT

In Mercado v. Court of Appeals, 484 Phil. 438 (2004), the Supreme  Court had again stressed the difference of the remedies provided for under Rule 45 and Rule 65 of the Rules of Court, to wit:

x x x [T]he proper remedy of the party aggrieved by a decision of the Court of Appeals is a petition for review under Rule 45, which is not identical with a petition for review under Rule 65.  Under Rule 45, decisions, final orders or resolutions of the Court of Appeals in any case, i.e., regardless of the nature of the action or proceedings involved, may be appealed to us (SC) by filing a petition for review, which would be but a continuation of the appellate process over the original case. On the other hand, a special civil action under Rule 65 is an independent action based on the specific ground therein provided and, as a general rule, cannot be availed of as a substitute for the lost remedy of an ordinary appeal, including that to be taken under Rule 45.”

Relative thereto, One of the requisites of certiorari is that there be no available appeal or any plain, speedy and adequate remedy. Where an appeal is available, certiorari will not prosper, even if the ground therefore is grave abuse of discretion. (VMC Rural Electric Service Cooperative, Inc. v. Court of Appeals, G.R. No. 153144, October 16, 2006, 504 SCRA 336, 352). 

In Artistica Ceramica, Inc. vs. Ciudad Homeowners Association, Inc., the Supreme Court stated that a perusal of the records will show that petitioners filed a Motion for Reconsideration to the January 4, 2005 CA Decision, which was, however, denied by the CA via a Resolution dated March 18, 2005. As manifested by petitioners, they received a copy of the March 18, 2005 CA Resolution on March 28, 2005. Thus, from March 28, 2005, petitioners had 15 days, or until April 12, 2005, to appeal the CA Resolution under Rule 45. Clearly, petitioners had an available appeal under Rule 45 which, under the circumstances, was the plain, speedy and adequate remedy. However, petitioners instead chose to file a special civil action for certiorari, under Rule 65, on April 18, 2005, which was 6 days after the reglementary period under Rule 45 had expired.  xxxx

 Accordingly, when a party adopts an improper remedy, his petition may be dismissed outright. Pertinent, therefore, to a resolution of the case at bar is a determination of whether or not an appeal or any plain, speedy and adequate remedy was still available to petitioners, the absence of which would warrant petitioners’ decision to seek refuge under Rule 65 of the Rules of Court. xxxxx Since petitioners filed the instant special civil action for certiorari, instead of appeal via a petition for review, the petition should be dismissed. (ARTISTICA CERAMICA, INC. vs. CIUDAD DEL CARMEN HOMEOWNER'S ASSOCIATION, INC., G.R. Nos. 167583-84, June 16, 2010, PERALTA, J.).