Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court which assails the resolution^[1] of the Court of Appeals (CA) promulgated on November 18, 1998, outrightly dismissing CA-G.R. SP No. 49074 on ground of insufficiency in form and substance, and the resolution^[2] dated March 4, 1999 denying petitioners' motion for reconsideration.

The factual background of the case is aptly stated by the Department of Agrarian Reform Adjudication Board (DARAB) in its decision dated January 9, 1998, as follows:

Plaintiffs^[3] alleged that they are duly registered and recognized, as tenants, by the Department of Agrarian Reform (DAR), Region VIII, Tacloban City on parcel of ricelands owned by defendant Isaac Delgado, duly administered by his son, defendant Fernando Delgado^[4] and situated at Barangay Tabunok, Palompon, Leyte. They started plowing and tilling these ricelands sometime in 1962 upon the authorization of defendant Isaac Delgado wherein they were appointed as tenants.

From 1962 up to 1981, plaintiffs and defendant Isaac Delgado shared the produce of the ricelands through their labor and hardship on a 50-50 basis. The sharing arrangement was, later on, changed, sometime in 1982, to 1/4-3/4 basis, in favor of the plaintiffs. The new sharing agreement, however, was not accepted by the defendants inspite (sic) of the fact that it was in accordance with the provisions of Republic Act (RA) 3844, as amended by Republic Act (RA) 6389. Because of defendants' refusal, plaintiffs were compelled to sell their share and deposited the proceeds with the Philippine National Bank (PNB), Ormoc City Branch, for its safekeeping.

After the effectivity of Presidential Decree (PD) 27 on October 21, 1972, the subject land being devoted to the production of rice, was covered by Operation Land Transfer for distribution to qualified beneficiaries. Plaintiffs were identified by the DAR as the qualified beneficiaries on their respective portion of the land. As a consequence, Certificates of Land Transfer (CLT's), in their respective names, were generated and issued (see Annexes A to F, pp. 52-A to 52-E, Rollo).

Last January 1985, for no apparent reason, defendants destroyed and razed to the grounds the newly sprouted rice plants, which they planted, to their great prejudice and embarrassment. Defendant Fernando Delgado threatened them, by pointing a gun, and warned them to stop tilling and cultivating the subject land resulting in their ejectment thereon. Because of these unlawful acts, plaintiffs were deprived of their share of the produce of the land.

In 1987, the DAR issued to the plaintiffs their Emancipation Patents (EP's) covering their respective portion of the land (see Annexes G to L, pp. 3-F to 53-L). The issuance of EP's, in their respective names, is a recognition of the fact that they are the de jure tenants on the subject land. But they cannot exercise their rights of possession and cultivation thereon. Because, until now, defendants are preventing them from doing so. This prompted plaintiffs to file the present action against defendants for Reinstatement with Damages.

In their Answer, defendants contended that as early as 1972, the land in question was sold to and partitioned by the children of defendant Isaac Delgado. They denied that plaintiffs Remegio Laguna, Camilo Evangelista and Rustico Ruizo are tenants on the subject land because they abandoned their landholdings sometime in the year 1971 when they left for Butuan, Agusan. The three (3) plaintiffs never returned to work again to their respective landholdings.

On the other hand, respondents also controverted the claim of plaintiffs Zacarias Limpangog, Santiago Baloro and Nemesio Amores. According to them, these three (3) remaining plaintiffs voluntarily left their respective landholding sometime in the year 1984 after they each received the sum of Three Thousand Pesos (P3,000.00) from the children of defendant Isaac Delgado. In addition, they illegally appropriated the six (6) cavans of palay harvested without giving any share to the landowners.

Moreover, defendants argued that all the plaintiffs acquired their respective CLT's and EP's fraudulently and in bad faith.

Finally, defendants raised that the present action should be dismissed on ground of res judicata. Defendants pointed out that plaintiffs, on June 18, 1987, filed before the Regional Trial Court of Palompon, Leyte a case for Reinstatement with Damages against them involving the subject land (see Exhibit I, pp. 81-A to 81-D, Rollo). This case was subsequently dismissed on June 28, 1988 (see Exhibit 2, p. 81-E, Rollo). Thereafter, on May 27, 1987, plaintiffs filed the same action for Reinstatement with Damages before the Lower Board.

On July 27, 1993, after careful perusal of the evidence adduced by the parties, the Provincial Adjudicator a quo rendered a decision adverse the defendants, the dispositive portion of which is reproduced in full as follows:

WHEREFORE, premises considered, decision is hereby rendered, to wit:

1. Finding plaintiffs as lawful tenant-beneficiaries and now owners of the lands in question located at Barangay Tabunok, Palompon, Leyte, to wit:
   

   a). Zacarias Limpangog-OCT No. OE-1186 and EP No. A-045799, with an area of .3836 ha.
   
   b). Remegio Laguna OCT No. OE-1189 and EP No. A-045800, with an area of .4169 ha.
   
   c). Santiago Baloro OCT No. OE-1193 and EP No. A-045796, with an area of .3770 ha.
   
   d). Camilo Evangelista OCT No. OE-1192 and EP No. A-045798, with an area of .3690 ha.
   
   e). Nemesio Amores OCT No. OE-1183 and EP No. A-045451, with an area of .3698 ha.
   
   f). Rustico Ruizo OCT No. OE-1184 and EP No. A-045453, with an area of .3929 ha., all issued and registered with the Register of Deeds of Leyte on October 7, 1987 and April 22, 1988, respectively.
   

2. Ordering defendants and their agents or persons in possession to vacate from the landholding in question and to place thereon plaintiffs in peaceful possession and cultivation.
   

SO ORDERED.

On August 16, 1993, defendants seasonably filed a Motion for Reconsideration. The Lower Board, on February 9, 1994, granted the Motion for Reconsideration and modified its previous decision as follows:

In fine, this Office holds that by virtue of the dismissal of the action in the RTC, Branch 17, Palompon, Leyte, at the instance of the complainant, the latter, in legal contemplation have abandoned their rights and obligations relative to their farmholding, the consequence is the forfeiture of their titles and the landholding covered and reallocation of the land to other tenant farmer in accordance with aforesaid guidelines.

WHEREFORE, premises considered, the Decision of July 27, 1993 is hereby reconsidered and modified as follows:

1. Finding that the complainants^[5] have forfeited their rights to the land in question as tenant beneficiaries; and
   
   
2. Ordering the Municipal Agrarian Reform Officer (MARO) of DAR, Palompon, Leyte, to effect the reallocation of the subject landholding to other tenant-farmers in accordance with the provisions of PD 27, and Memorandum Circulars and Rules and Regulations.
   

SO ORDERED.^[6] (Emphasis supplied)

Respondents appealed to the DARAB. Reversing the Provincial Adjudicator, the DARAB, in its decision dated January 9, 1998, ruled that herein respondents did not abandon the possession and cultivation of the subject land; set aside the challenged order dated February 9, 1994; reinstated the decision dated July 27, 1993 issued by the Provincial Adjudicator and affirmed the same.

Petitioners then filed in the CA, a petition for review under Rule 45 of the Rules of Court, docketed as CA-G.R. SP No. 49074. It was dismissed outright per the CA's herein assailed resolution promulgated on November 18, 1998, to wit:

It appearing that the petition for review is insufficient in form and substance:

1. Verification and Certification of non-forum shopping is signed by counsel, not by the parties (Rollo, p. 18);
   
   
2. There are no affidavit of service and explanation on mode of service; and
   
   
3. Copy of the assailed decision attached as Annex "A" is a mere Xerox copy (Rollo, p. 20).
   

the Court resolves to DISMISS this case outright.

SO ORDERED.^[7]

On petitioners' motion for reconsideration, the appellate court denied the same, ruling that there was no attempt on the part of the petitioners to rectify the above-mentioned insufficiencies; that although in their Supplement to Motion for Reconsideration, petitioners attempted to comply with the verification and certification on non-forum shopping requirements, only petitioner Fernando Delgado signed the same; and that the petition for review was not accompanied by pleadings and other material portions of the records as would support the allegations of the petitions, such as the motion for reconsideration dated January 31, 1998 of the Decision of January 9, 1998, Order dated February 9, 1994 and the Decision of July 27, 1993 of the DARAB Board, Tacloban City; Resolution dated June 29, 1998 of DARAB, Diliman, Quezon City; the Complaint for Reinstatement with Damages dated May 27, 1987; the Reply on the Complaint, and the Motion for Reconsideration of DARAB, Tacloban City Decision of July 27, 1997.^[8]

Petitioners filed herein petition raising the sole issue, thus:

WHETHER OR NOT THE HONORABLE COURT OF APPEALS WAS CORRECT IN STRICTLY APPLYING THE RULES NOTWITHSTANDING PETITIONERS' MERITORIOUS CASE.^[9]

After respondents filed their Comment, the parties filed their respective memoranda.

However, in their Memorandum, petitioners raise different issues, thus:

I

WHETHER OR NOT THE ONLY PROPERTY OF PETITIONERS WITH AN AREA OF 2.9320 HAS. IS COVERED BY THE MANDATE OF PD 27.

II

WHETHER OR NOT PETITIONERS ARE ENTITLED TO THE RIGHT OF RETENTION AS PROVIDED FOR BY PD 27.

III

WHETHER OR NOT RESPONDENTS' RIGHT OF POSSESSION OVER THE SUBJECT PROPERTY SUBSISTS IF ITS COVERAGE UNDER PD 27 WAS ERRONEOUS.^[10]

while respondents raise the following issues in their Memorandum:

1. WHETHER OR NOT THE INSTANT PETITION IS FRIVOLOUS AND DILATORY.
   
   
2. WHETHER OR NOT THE DISMISSAL OF PETITIONERS' PETITION FOR REVIEW ON CERTIORARI FOR THEIR PATENT FAILURE TO COMPLY WITH THE MANDATORY REQUIREMENTS OF THE RULES OF COURT WAS DONE WITH GRAVE ABUSE OF DISCRETION.
   
   
3. WHETHER OR NOT THE PRESENT PETITION COULD BE TAKEN COGNIZANCE WITH (sic) CONSIDERING THAT THIS IS FILED IN LIEU OF THE LOST REMEDY OF APPEAL.
   
   
4. GRANTING FOR PURPOSES OF INTELLECTUAL DISCUSSIONS THAT THIS PETITION HAS MERIT, WHETHER OR NOT THE RES JUDICATA LEGAL PRINCIPLE HAS SET-IN IN THE INSTANT CASE.
   
   
5. WHETHER OR NOT RESPONDENTS ARE THE ABSOLUTE OWNERS OF THE LAND AWARDED TO THEM BY THE GOVERNMENT THRU THE OPERATION OF THE LAND REFORM LAW.
   
   
6. WHETHER OR NOT RESPONDENTS ARE ENTITLED TO DAMAGES.^[11]
   

At the outset, it is necessary that herein petition filed with the Court be given its proper perspective. Originally filed as a petition for review on certiorari under Rule 45 of the Rules of Court, the same should be considered as a petition for certiorari under Rule 65 of the Rules of Court as there is nothing to review on the merits of CA-G.R. SP No. 49074, due to its outright dismissal by the CA, for being insufficient in form and substance.

Ordinarily, the proper recourse of an aggrieved party from a decision of the CA is a petition for review on certiorari under Rule 45 of the Rules of Court. However, if the error, subject of the recourse, is one of jurisdiction, or the act complained of was perpetrated by a court with grave abuse of discretion amounting to lack or excess of jurisdiction, the proper remedy available to the aggrieved party is a petition for certiorari under Rule 65 of the said Rules.^[12] Inasmuch as the present petition principally assails the dismissal of the petition on ground of procedural flaws involving the jurisdiction of the court a quo to entertain the petition, it falls within the ambit of a special civil action for certiorari under Rule 65 of the Rules of Court.

The basic question in the present petition is: should the Court require the CA to give due course to CA-G.R. SP No. 49074 despite the failure of herein petitioners to comply with the formal requirements of the Rules of Court in filing a petition for review under Rule 45, as pointed out earlier by said appellate court?

Based on the attachments of herein petition, an examination of the merits of the reinstatement case filed with the Provincial Adjudicator and appealed to the DARAB reveals that had the CA been given the opportunity to peruse the same attachments which, unfortunately, were not appended to the petition in CA-G.R. SP No. 49074, it would have known that the petition involved the sole substantial issue: whether the dismissal of Agrarian Case No. PK-0001 by the Regional Trial Court, Branch 17, Palompon, Leyte, on motion of herein respondents, plaintiffs in said case, constituted res judicata. The CA would have then been able to determine whether the petition deserved to be given due course. As it is, petitioners failed, among other things, to attach the pertinent pleadings and other material portions of the records that would support the allegations of the petition even in their supplement to their motion for reconsideration. Consequently, the CA was given no other choice but to dismiss the case outright and deny the motion for reconsideration. It committed no grave abuse of discretion, amounting to lack of jurisdiction. Petitioners have lost their appeal.

Should this Court proceed to determine the other issues raised in petitioners' memorandum? Ordinarily, the answer is in the negative. Certiorari is not a substitute for lost appeal.^[13] As held in Republic vs. Court of Appeals,^[14] time and again, we have emphasized that the perfection of appeals in the manner and within the period permitted by law is not only mandatory but jurisdictional, and that the failure to perfect an appeal renders the decision of the trial court final and executory. This rule is founded upon the principle that the right to appeal is not part of due process of law but is a mere statutory privilege to be exercised only in the manner and in accordance with the provisions of the law. Neither can petitioners invoke the doctrine that rules of technicality must yield to the broader interest of substantial justice. While every litigant must be given the amplest opportunity for the proper and just determination of his cause, free from constraints of technicalities, the failure to perfect an appeal within the reglementary period is not a mere technicality. It raises a jurisdictional problem as it deprives the appellate court of jurisdiction over the appeal.^[15] Petitioners lost their remedy of appeal upon their failure to comply with the requirements of Rule 45 of the Rules of Court in filing their petition for review in the CA.

However, in order to lay all the issues at rest considering the number of years that the reinstatement case had been pending, suffice it to be stated that the only reason of the Provincial Adjudicator in reversing himself on a motion for reconsideration is that he was of the opinion that the prior dismissal of the case by the RTC on motion of respondents constitutes res judicata; and in effect, an abandonment of their rights and obligations relative to their farmholding.

The order of dismissal dated June 28, 1988, in Agrarian Case No. PK-0001 of RTC (Branch 17) Palompon, Leyte, simply recites:

On motion of the plaintiffs,^[16] let this case be dismissed with cost de oficio.^[17]

There is no statement in the order of dismissal of the RTC case that the dismissal was without prejudice. In accordance, therefore, with the then prevailing Section 2, Rule 17 of the Rules of Court, to wit:

Sec. 2. Dismissal by the order of the court. Except as provided in the preceding section, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiffs motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice.

such dismissal is without prejudice. As held in Vallangca vs. Court of Appeals,^[18] a dismissal order is generally deemed to be without prejudice to the filing of another action. The only instance when dismissal of an action is with prejudice is, when the order itself so states. Stated differently, when the court issues, upon the plaintiff's instance, a dismissal order that is silent as to whether it is with or without prejudice, such as in the case at bar, the presumption is, that it is without prejudice.^[19]

Thus, the Court finds no cogent reason to disturb the decision of the DARAB reversing the Provincial Adjudicator's Order dated February 9, 1994 and reinstating the latter's earlier decision dated July 27, 1993. The dismissal of the agrarian case by the RTC on motion of plaintiffs-respondents did not constitute res judicata inasmuch as the dismissal order was not a decision on the merits but a dismissal "without prejudice."^[20]

The principle of res judicata does not apply when the dismissal of the earlier complaint, involving the same plaintiffs, same subject matter, same theory and the same defendants, was made without prejudice to its refiling at a future date,^[21] or in a different venue, as in this case. The dismissal of the case without prejudice indicates the absence of a decision on the merits and leaves the parties free to litigate the matter in a subsequent action as though the dismissal action had not been commenced. In other words, the discontinuance of a case not on the merits does not bar another action on the same subject matter.^[22]

Neither can respondents be held guilty of abandonment. Abandonment may be said to result where there is concurrence of two (2) elements: the first being the intent to abandon a right or claim and the second being the external act by which that intention is expressed and carried into effect.^[23] There must be an actual, not merely projected, relinquishment; otherwise, the right or claim is not vacated or waived and, thus, susceptible of being appropriated by another.^[24] The intention to abandon implies a departure, with the avowed intent of never returning, resuming or claiming the right and the interest that have been abandoned.^[25] These requirements are clearly lacking in the present case. There is nothing in the record to show a deliberate intent to discontinue the suit without intention of refiling the same. This inference of abandonment is belied by the fact that respondents filed the proper case in the Provincial Adjudication Board. Abandonment is inconsistent with the filing of the same action in the appropriate forum.

Thus, the DARAB correctly reversed the Order dated February 9, 1994 of the Provincial Adjudicator and reinstated the latter's decision dated July 27, 1993.

WHEREFORE, the petition is DISMISSED for lack of merit. Costs against petitioners.

SO ORDERED.

Puno, (Chairman), Tinga, and Chcico-Nazario, JJ., concur.
Callejo, Sr., J., on leave.

---

^[1] Penned by Justice B.A. Adefuin de la Cruz (now retired) and concurred in by Justices Consuelo Ynares Santiago (now Associate Justice of the Supreme Court) and Presbitero J. Velasco, Jr. (now Court Administrator).

^[2] Ibid.

^[3] Herein respondents.

^[4] Herein petitioners.

^[5] Herein respondents.

^[6] Rollo, pp. 36-40.

^[7] Id., p. 46.

^[8] Id., pp. 49-50.

^[9] Rollo, p. 14.

^[10] Rollo, p. 110.

^[11] Id., pp. 79-80.

^[12] Donato vs. Court of Appeals, 417 SCRA 2I6, 223 (2003).

^[13] Republic vs. Court of Appeals, 322 SCRA 81, 87 (2000).

^[14] Id., pp. 87-88.

^[15] Id., p. 90.

^[16] Herein respondents.

^[17] Rollo, p. 21.

^[18] 173 SCRA 42 (1989).

^[19] Id., pp. 53-54. See also Vergara vs. Ocumen, 114 SCRA 446, 451(1982).

^[20] Barcelona vs. CA, 412 SCRA 41, 52 (2003); Roxas vs. Court of Appeals, 363 SCRA 207, 219 (1991).

^[21] Segura vs. Segura, 165 SCRA 368, 372 (1988).

^[22] Meliton vs. Court of Appeals, 216 SCRA 485, 495-496 (1992).

^[23] Estolas vs. Mabalot, 381 SCRA 702, 709-710 (2002); Corpus vs. Grospe, 333 SCRA 435, 437 (2000); Medrana vs. Office of the President, 188 SCRA 818, 826 (1990).

^[24] Estolas vs. Mabalot, supra, p. 710; Medrana vs. Office of the President, supra.

^[25] Corpus vs. Grospe, supra; Partosa-Jo vs. Court of Appeals, 216 SCRA 692, 699 (1992).