Capati Vs Ocampo

SECOND DIVISION
[G.R. No. L-28742. April 30, 1982.]
VIRGILIO CAPATI , plaintiff-appellant, vs. DR. JESUS P. OCAMPO ,

defendant-appellee.
Filemon Catajor for plaintiff-appellant.

Jose R. Garcia for defendant-appellee.
SYNOPSIS
Appellant, a resident of Pampanga and a contractor, entered into a sub-contract

with appellee for the construction of vault walls, exterior walls and columns of the Feati
Bank building in Iriga, Camarines Sur. The parties agreed that the same should be
completed on or before June 5, 1967. The subcontract also contained a stipulation that
all actions arising out or relating to the contract "may" be instituted in the Court of First
Instance of Naga City. Since appellee nished the construction only in June 20, 1967,
appellant led an action against the former for recovery of consequential damages for
the delay with the Court of First Instance of Pampanga. Appellee led a motion to
dismiss on the ground of improper venue contending that the case can only be led in
Naga City as stipulated in their agreement. Appellant opposed the motion claiming that
their agreement to hold the venue in Naga City was merely optional. Upholding the
appellee, the lower court dismissed the complaint. Hence, this appeal.
The Supreme Court held that the stipulation of the parties as to venue is only
permissive for they did not agree to le their suits solely and exclusively with the Court
of First Instance of Naga, and that since the action was led in the court where the
plaintiff resides, the venue was properly laid.
Order appealed from set aside.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; VENUE OF PERSONAL ACTIONS;

RULE THEREON. — The rule on venue of personal actions cognizable by the courts of
rst instance is found in Section 2(b), Rule 4 of the Rules of Court, which provides that
such "actions may be commenced and tried where the defendant or any of the
defendants resides or may be found, or where the plaintiff or any of the plaintiffs
resides, at the election of the plaintiff." The said section is quali ed by the following
provisions of Section 3 of the same rule: "By agreement of the parties the venue of an
action may be changed or transferred from one province to another."
2. ID.; ID.; ID.; ID.; STIPULATION REGARDING THERE TO PERMISSIVE WHERE
PARTIES DO NOT EXCLUDE ALL OTHER COURTS; CASE AT BAR. — The stipulation as to
venue in the contract between the parties providing that "all actions arising out of this
contract may be instituted in the Court of First Instance of Naga City, "is simply
permissive. By the said stipulation, the parties did not agree to le their suits solely and
exclusively with the Court of First Instance of Naga. They merely agreed to submit their
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disputes to the said court, without waiving their right to seek recourse in the court
specifically indicated in Section 2(b), Rule 4 of the Rules of Court.
3. STATUTORY CONSTRUCTION; WORD "MAY" IS MERELY PERMISSIVE. — It
is well settled that the word "may" is merely permissive and operates to confer
discretion upon a party. Under ordinary circumstances, the term "may be" connotes
possibility; it does not connote certainty. "May" is an auxillary verb indicating liberty,
opportunity, permission or possibility.
4. REMEDIAL LAW; CIVIL PROCEDURE; VENUE OF PERSONAL ACTIONS;
PROPERLY LAID IN CASE AT BAR. — Since the complaint has been led in the Court of
First Instance of Pampanga, where the plaintiff resides, the venue of action is properly
laid in accordance with Section 2(b), Rule 4 of the Rules of Court.
DECISION
ESCOLIN , J : p
We set aside the order of the Court of First Instance of Pampanga in Civil Case
No. 3188 which dismissed the plaintiff's complaint on ground of improper venue.
Plaintiff Virgilio Capati, a resident of Bacolor, Pampanga was the contractor of
the Feati Bank for the construction of its building in Iriga, Camarines Sur. On May 23,
1967, plaintiff entered into a sub-contract with the defendant Dr. Jesus Ocampo, a
resident of Naga City, whereby the latter, in consideration of the amount of P2,200.00,
undertook to construct the vault walls, exterior walls and columns of the said Feati
building in accordance with the speci cations indicated therein. Defendant further
bound himself to complete said construction on or before June 5, 1967 and, to
emphasize this time frame for the completion of the construction job, defendant
a xed his signature below the following stipulation written in bold letters in the sub-
contract: "TIME IS ESSENTIAL, TO BE FINISHED 5 JUNE '67."
Claiming that defendant nished the construction in question only on June 20,
1967, plaintiff led in the Court of First Instance of Pampanga an action for recovery of
consequential damages in the sum of P85,000.00 with interest, plus attorney's fees and
costs. The complaint alleged inter alia that "due to the long unjusti ed delay committed
by defendant, in open violation of his express written agreement with plaintiff, the latter
has suffered great irreparable loss and damage . . ."
Defendant led a motion to dismiss the complaint on the ground that venue of
action was improperly laid. The motion was premised on the stipulation printed at the
back of the contract which reads:
"14. That all actions arising out, or relating to this contract may be
instituted in the Court of First Instance of the City of Naga."
Plaintiff led an opposition to the motion, claiming that their agreement to hold
the venue in the Court of the First Instance of Naga City was merely optional to both
contracting parties. In support thereof, plaintiff cited the use of the word "may" in
relation with the institution of any action arising out of the contract.
The lower court, in resolving the motion to dismiss, ruled that "there was no
sense in providing the aforequoted stipulation, pursuant to Sec. 3 of Rule 4 of the
Revised Rules of Court, if after all, the parties are given the discretion or option of ling
the action in their respective residences," and thereby ordered the dismissal of the
complaint. cdll
Hence, this appeal.

The rule on venue of personal actions cognizable by the courts of rst instance is
found in Section 2(b), Rule 4 of the Rules of Court, which provides that such "actions
may be commenced and tried where the defendant or any of the defendants resides or
may be found, or where the plaintiff or any of the plaintiffs resides, at the election of the
plaintiff." The said section is quali ed by the following provisions of Section 3 of the
same rule:
"By written agreement of the parties the venue of an action may be
changed or transferred from one province to another."
Defendant stands rm on his contention that because of the aforequoted

covenant contained in par. 14 of the contract, he cannot be sued in any court
except the Court of First Instance of Naga City. We are thus called upon to rule on
the issue as to whether the stipulation of the parties on venue is restrictive in the
sense that any litigation arising from the contract can be led only in the court of
Naga City, or merely permissive in that the parties may submit their disputes not
only in Naga City but also in the court where the defendant or the plaintiffs
resides, at the election of the plaintiff, as provided for by Section 2(b), Rule 4 of
the Rules of Court.
It is well settled that the word "may" is merely permissive and operates to
confer discretion upon a party. Under ordinary circumstances, the term "may be"
connotes possibility; it does not connote certainty. "May" is an auxillary verb
indicating liberty, opportunity, permission or possibility. 1
In Nicolas vs. Reparations Commission 2 , a case involving the interpretation of a

stipulation as to venue along lines similar to the present one, it was held that the
agreement of the parties which provided that "all legal actions arising out of this
contract . . . may be brought in and submitted to the jurisdiction of the proper courts in
the City of Manila," is not mandatory.
We hold that the stipulation as to venue in the contract in question is simply
permissive. By the said stipulation, the parties did not agree to le their suits solely and
exclusively with the Court of First Instance of Naga. They merely agreed to submit their
disputes to the said court, without waiving their right to seek recourse in the court
specifically indicated in Section 2(b), Rule 4 of the Rules of Court. LibLex
Since the complaint has been led in the Court of First Instance of Pampanga,
where the plaintiff resides, the venue of action is properly laid in accordance with
Section 2(b), Rule 4 of the Rules of Court.
WHEREFORE, the order appealed from is hereby set aside. Let the records be
returned to the court of origin for further proceedings. Costs against defendant-
appellee.
SO ORDERED.
Barredo (Chairman), Aquino, De Castro and Ericta, JJ., concur.
Concepcion Jr., and Abad Santos, JJ., are on leave.

Footnotes
1. In Re: Hirsh's Estate 5A. 2d 160, 163; 334 Pa. 172; Words & Phrases, permanent edition,
26a.
2. 64 SCRA 110.

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SECOND DIVISION

[G.R. No. L-28742. April 30, 1982.]

VIRGILIO CAPATI , plaintiff-appellant, vs. DR. JESUS P. OCAMPO ,

Filemon Catajor for plaintiff-appellant.

Appellant, a resident of Pampanga and a contractor, entered into a sub-contract

1. REMEDIAL LAW; CIVIL PROCEDURE; VENUE OF PERSONAL ACTIONS;

Hence, this appeal.

Defendant stands rm on his contention that because of the aforequoted

In Nicolas vs. Reparations Commission 2 , a case involving the interpretation of a

CD Technologies Asia, Inc. 2019 cdasiaonline.com

CD Technologies Asia, Inc. 2019 cdasiaonline.com

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