"x x x.
Under the Rules of Court, the proper remedy of a party aggrieved by a judgment, final order, or resolution of the CA is to file with the Supreme Court a verified petition for review on certiorari under Rule 45 within 15 days from notice of the judgment, final order, or resolution appealed from.[43]
Obviously, petitioner, in filing a petition for certiorari under Rule 65 of the Rules of Court, availed of the wrong remedy.
Unlike a petition for review on certiorari under Rule 45, which is a continuation of the appellate process over the original case, a special civil action for certiorari under Rule 65 is an original or independent action[44] based on grave abuse of discretion amounting to lack or excess of jurisdiction.[45] It will lie only if there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law.[46] As such, it cannot be a substitute for a lost appeal, especially if such loss or lapse was due to one’s own negligence or error in the choice of remedies.[47]
In this case, the remedy of appeal was available; thus, the filing of petition for certiorari was inapt. Petitioner should have filed a petition under Rule 45 within 15 days from receipt of the Resolution dated September 12, 2006, denying her motion for reconsideration.
While in certain cases we have considered petitions erroneously filed under Rule 65 as filed under Rule 45, we cannot do so in this case because the petition was filed beyond the 15-day reglementary period.[48] Records show that petitioner filed her petition 33 days after receipt of the Resolution dated September 12, 2006.[49]
In contrast, although there are cases when certiorari may be allowed despite the availability of appeal, such as: “(a) when public welfare and the advancement of public policy dictates; (b) when the broader interest of justice so requires; (c) when the writs issued are null and void; and (d) when the questioned order amounts to an oppressive exercise of judicial authority,”[50] no such persuasive reason exists in this case. And even if we were to consider this case as an exception, the petition must still fail as no grave abuse of discretion amounting to lack or in excess of jurisdiction was committed by the CA in affirming the ruling of the RTC in favor of respondent-spouses. “Grave abuse of discretion” is defined as “the arbitrary or despotic exercise of power due to passion, prejudice or personal hostility; or the whimsical, arbitrary, or capricious exercise of power that amounts to an evasion or refusal to perform a positive duty enjoined by law or to act at all in contemplation of law.”[51]
x x x."