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

VIRGILIO CAPATI , plainti-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 withappellee for the construction of vault walls, exterior walls and columns of the FeatiBank building in Iriga, Camarines Sur. The parties agreed that the same should becompleted on or before June 5, 1967. The subcontract also contained a stipulationthat all actions arising out or relating to the contract "may" be instituted in theCourt of First Instance of Naga City. Since appellee nished the construction only inJune 20, 1967, appellant led an action against the former for recovery ofconsequential 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 thatthe case can only be led in Naga City as stipulated in their agreement. Appellantopposed the motion claiming that their agreement to hold the venue in Naga Citywas merely optional. Upholding the appellee, the lower court dismissed thecomplaint. Hence, this appeal.The Supreme Court held that the stipulation of the parties as to venue is onlypermissive for they did not agree to le their suits solely and exclusively with theCourt of First Instance of Naga, and that since the action was led in the courtwhere the plaintiff resides, the venue was properly laid.Order appealed from set aside.

SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; VENUE OF PERSONAL ACTIONS; RULETHEREON. The rule on venue of personal actions cognizable by the courts of rstinstance is found in Section 2(b), Rule 4 of the Rules of Court, which provides thatsuch "actions may be commenced and tried where the defendant or any of thedefendants resides or may be found, or where the plainti or any of the plaintisresides, at the election of the plainti." The said section is qualied by the followingprovisions of Section 3 of the same rule: "By agreement of the parties the venue ofan action may he 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 asto venue in the contract between the parties providing that "all actions arising outof this contract may be instituted in the Court of First Instance of Naga City, "issimply permissive. By the said stipulation, the parties did not agree to le their suitssolely and exclusively with the Court of First Instance of Naga. They merely agreedto submit their disputes to the said court, without waiving their right to seekrecourse in the court specically indicated in Section 2(b), Rule 4 of the Rules ofCourt.3. STATUTORY CONSTRUCTION; WORD "MAY" IS MERELY PERMISSIVE. It iswell settled that the word "may" is merely permissive and operates to conferdiscretion upon a party. Under ordinary circumstances, the term "may be" connotespossibility; it does not connote certainty. "May" is an auxillary verb indicatingliberty, 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 Courtof First Instance of Pampanga, where the plainti resides, the venue of action isproperly laid in accordance with Section 2(b), Rule 4 of the Rules of Court.

D E C I S I O N

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.Plainti Virgilio Capati, a resident of Bacolor, Pampanga was the contractor of theFeati Bank for the construction of its building in Iriga, Camarines Sur. On May 23,1967, plainti entered into a sub-contract with the defendant Dr. Jesus Ocampo, aresident of Naga City, whereby the latter, in consideration of the amount ofP2,200.00, undertook to construct the vault walls, exterior walls and columns of thesaid Feati building in accordance with the specications 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 axed his signature below the following stipulation written in boldletters 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 filed in the Court of First Instance of Pampanga an action for recoveryof consequential damages in the sum of P85,000.00 with interest, plus attorney'sfees and costs. The complaint alleged inter alia that "due to the long unjustieddelay committed by defendant, in open violation of his express written agreementwith 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 atthe back of the contract which reads:

"14. That all actions arising out, or relating to this contract may beinstituted in the Court of First Instance of the City of Naga."

Plainti led an opposition to the motion, claiming that their agreement to hold thevenue in the Court of the First Instance of Naga City was merely optional to bothcontracting parties. In support thereof, plainti cited the use of the word "may" inrelation 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 sensein providing the aforequoted stipulation, pursuant to Sec. 3 of Rule 4 of the RevisedRules of Court, if after all, the parties are given the discretion or option of ling theaction in their respective residences," and thereby ordered the dismissal of thecomplaint. cdllHence, this appeal.The rule on venue of personal actions cognizable by the courts of rst instance isfound 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 thedefendants resides or may be found, or where the plainti or any of the plaintisresides, at the election of the plainti." The said section is qualied by the followingprovisions of Section 3 of the same rule:

"By written agreement of the parties the venue of an action may be changedor transferred from one province to another."Defendant stands rm on his contention that because of the aforequotedcovenant contained in par. 14 of the contract, he cannot be sued in anycourt except the Court of First Instance of Naga City. We are thus calledupon to rule on the issue as to whether the stipulation of the parties onvenue is restrictive in the sense that any litigation arising from the contractcan be led only in the court of Naga City, or merely permissive in that theparties may submit their disputes not only in Naga City but also in the courtwhere the defendant or the plaintis resides, at the election of the plainti,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 toconfer discretion upon a party. Under ordinary circumstances, the term"may be" connotes possibility; it does not connote certainty. "May" is anauxillary verb indicating liberty, opportunity, permission or possibility. 1

In Nicolas vs. Reparations Commission 2 , a case involving the interpretation of astipulation as to venue along lines similar to the present one, it was held that theagreement of the parties which provided that "all legal actions arising out of thiscontract . . . may be brought in and submitted to the jurisdiction of the proper courtsin the City of Manila," is not mandatory.

We hold that the stipulation as to venue in the contract in question is simplypermissive. By the said stipulation, the parties did not agree to le their suits solelyand exclusively with the Court of First Instance of Naga. They merely agreed tosubmit their disputes to the said court, without waiving their right to seek recoursein the court specifically indicated in Section 2(b), Rule 4 of the Rules of Court. LibLexSince the complaint has been led in the Court of First Instance of Pampanga,where the plainti resides, the venue of action is properly laid in accordance withSection 2(b), Rule 4 of the Rules of Court.WHEREFORE, the order appealed from is hereby set aside. Let the records bereturned 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, permanentedition, 26a.

2. 64 SCRA 110.