LUCIANO, NOEL CHRISTIAN O.

UP LAW 2015

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TABLE OF CONTENTS

rule page
INTRODUCTION 4
Rule 1 16 General Provisions
Rule 2 24 Cause of Action
Rule 3 34 Parties to Civil Actions
Rule 4 47 Venue of Actions
Rule 5 53 Uniform Procedure in Trial Courts
Rule 6 59 Kinds of Pleadings
Rule 7 70 Parts of a Pleading
Rule 8 78 Manner of Making Allegations in Pleadings
Rule 9 87 Effect of Failure to Plead
Rule 10 94 Amended and Supplemental Pleadings
Rule 11 102 When to File Responsive Pleadings
Rule 12 107 Bill of Particulars
Rule 13 111 Filing and Service of Pleadings, Judgments, and other Papers
Rule 14 120 Summons
Rule 15 133 Motions
Rule 16 137 Motion to Dismiss
Rule 17 147 Dismissal of Actions
Rule 18 153 Pre-Trial
Rule 19 163 Intervention
Rule 20 167 Calendar of Cases
Rule 21 170 Subpoena
Rule 22 174 Computation of Time
Rule 23 177 Depositions Pending Action
Rule 24 188 Depositions Before Action or Pending Appeal
Rule 25 191 Interrogatories to Parties
Rule 26 194 Admission by Adverse Party
Rule 27 198 Production or Inspection of Documents of Things
Rule 28 201 Physical and Mental Examination of Persons
Rule 29 203 Refusal to Comply with Modes of Discovery

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 4) The power to admit attorneys to the Bar is not an arbitrary and
INTRODUCTION despotic one but is the duty of the court to exercise and
regulate it by a sound and judicial discretion.

Rules of procedure of special courts and quasi-judicial bodies

GENERAL PRINCIPLES shall remain effective unless disapproved by the Supreme Court

Remedial Law is that branch of law which prescribes the method of

enforcing rights or obtaining redress for their invasion POWER OF THE SUPREME COURT TO AMEND
AND SUSPEND PROCEDURAL RULES
Substantive Law as Distinguished from Remedial Law
A. Substantive Law creates, defines and regulates rights and When compelling reasons so warrant or when the purpose of justice
duties regarding life, liberty or property which when requires it
violated gives rise to a cause of action - Discretionary upon courts.
B. Remedial Law prescribes the methods of enforcing those
rights and obligations created by substantive law by Reasons that would warrant the suspension:
providing a procedural system for obtaining redress for 1. The existence of special or compelling circumstances;
the invasion of rights and violations of duties and by 2. Merits of the case;
prescribing rules as to how suits are filed, tried and 3. Cause not entirely attributable to the fault or negligence of
decided by the courts The party favored by the suspension of rules
4. A lack of showing that the review sought is merely
SUBSTANTIVE LAW REMEDIAL LAW frivolous and dilatory;
It is that part of the law which 5. The other party will not be unjustly prejudiced thereby.
It refers to the legislation
creates, defines, or regulates
providing means or methods
rights, concerning life, liberty Other reasons
whereby causes of action may
or property or the powers of 1. Where substantial and important issues await resolution.
be effectuated, wrongs
agencies or instrumentalities 2. When transcendental matters of life, liberty or state
redressed, and relief obtained
for the administration of public security are involved.
It is also called Adjective Law
affairs
It makes vested rights possible It has no vested rights The constitutional power of the Supreme Court to promulgate rules
It governs acts and transactions of practice and procedure necessarily carries with it the power to
It is prospective in application
which took place (retroactive) overturn judicial precedents on points of remedial law through the
The SC is expressly empowered amendment of the Rules of Court.
It cannot be enacted by the SC
to promulgate procedural rules

RULE MAKING POWER OF THE SUPREME COURT

NATURE OF PHILIPPINE COURTS
Judicial Power includes the duty of the courts of justice to settle
actual controversies involving rights, which are legally demandable Philippine courts are both courts of law and equity. Hence, both legal
and enforceable, and to determine whether or not there has been and equitable jurisdiction is dispensed with in the same tribunal.
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government (Sec. What is a Court:
1, Art. VIII, 1987 Constitution) a. It is an organ of government belonging to the judicial
department the function of which is the application of the
The power of judicial review is the SCs power to declare a law, laws to the controversies brought before it as well as the
treaty, international or executive agreement, presidential decree, public administration of justice.
proclamation, order, instruction, ordinance, or regulation b. It is a governmental body officially assembled under
unconstitutional authority of law at the appropriate time and place for the
administration of justice through which the State enforces
Sec. 5(5), Art. VIII, of the 1987 Constitution provides that that the its sovereign rights and powers.
Supreme Court shall have the power to: c. It is a board or tribunal which decides a litigation or
a. promulgate rules concerning the protection and contest.
enforcement of constitutional rights, pleading, practice,
and procedure in all courts;
b. admission to the practice of law; COURT DISTINGUISHED FROM A JUDGE
c. the Integrated Bar;
d. and legal assistance to the underprivileged COURT JUDGE
A tribunal officially assembled
An officer of such tribunal
under authority of law
LIMITATIONS OF THE RULE-MAKING POWER An organ of the government
The judge is the one who sits
OF THE SUPREME COURT with a personality separate
in court
from the person or judge
1) The rules shall provide a simplified and inexpensive procedure A being in imagination
A physical and natural person
for the speedy disposition of cases comparable to a corporation
2) They shall be uniform for all courts of the same grade May be considered an office A public officer
3) They shall not diminish, increase, or modify substantive rights.

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 CLASSIFICATION OF PHILIPPINE COURTS
Regular courts engaged in the administration of justice are
organized into 4 levels:
A. FIRST LEVEL (MTCs, MeTCs, MCTCs) which try and decide:
1. Criminal actions involving:
a. Violations of city or municipal ordinances committed
within their respective territorial jurisdiction; and
b. Offenses punishable with imprisonment not
exceeding six (6) years irrespective of the amount of
fine and regardless of other imposable accessory or
other penalties, and
2. Civil actions including:
a. Ejectment Cases (Feud)
b. Recovery of personal property with a value of not
more than P300,000 outside Metro Manila (MM) or
does not exceed P400,000 in MM
B. SECOND LEVEL (RTCs, Family Courts)
1. Courts of general jurisdiction among the civil actions
assigned to them by law are those in which the subject of
litigation is:
a. Actions incapable of pecuniary estimation
b. Actions involving title to or possession of real
property where the assessed value of the property
exceeds P20,000 outside MM or exceeds P50,000 in
MM
c. Where the demand exclusive of interest, damages of
whatever kind, attorneys fees, litigation expenses,
and cost, or the value of the personal property or
controversy exceeds P300,000 outside MM or
exceeds P400,000 in MM
2. Exercise appellate jurisdiction review cases appealed
from courts of the first level
C. THIRD LEVEL (CA, Sandiganbayan)
1. CA is an appellate court
a. Reviewing cases appealed to it from the RTC on
questions of fact or mixed questions of fact and law
b. Decisions of the RTC in the exercise of its original
jurisdiction
(1) As a matter of right
(2) As a matter of discretion
c. Occasionally, CA may act as a trial court, as in actions
praying for the annulment of final and executory
judgments of RTCs on the ground of extrinsic fraud
subsequently discovered, against which no other
remedies lies
2. Sandiganbayan has jurisdiction:
a. Over all criminal cases involving:
(1) Graft and corrupt practices act
(2) Such other offenses committed by public officers
and employees including those in GOCCs in
relation to their office
b. It also has exclusive appellate jurisdiction over final
judgments, resolutions, or orders of RTCs whether in
the exercise of their own original or appellate
jurisdiction over criminal and civil cases committed
by public officers or employees including those in
GOCCs in relation to their office
D. FOURTH LEVEL Supreme Court
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COURTS OF ORIGINAL AND APPELLATE JURISDICTION
A court is one with ORIGINAL jurisdiction when actions or
proceedings are originally filed with it
A court is one with APPELLATE jurisdiction when it has
the power of review over the decisions of a lower court
Discussion on the different courts:
1. MeTCs, MCTCs and MTCs are courts of original jurisdiction
without appellate jurisdiction
2. RTCs (see Sec. 22, BP129)
a. Court of original jurisdiction with respect to cases
originally filed with it
b. Court of appellate jurisdiction with respect to cases
decided by MTCs within its territorial jurisdiction.
3. CAs (See Sec. 9, BP 129)
a. Primarily a court of appellate jurisdiction with
competence to review judgments of the RTCs and
specified quasi-judicial agencies
b. It is also a court of original jurisdiction with respect
to cases filed before it involving issuance of writs of
certiorari, mandamus, quo warranto, habeas corpus,
and prohibition
c. It is also a court of original and exclusive jurisdiction
over actions for annulment of judgments of RTCs
4. SC
a. Fundamentally a court of appellate jurisdiction
b. But it may also be a court of original jurisdiction over
cases affecting ambassadors, public ministers and
consuls, and in cases involving petitions for certiorari,
prohibition and mandamus
c. Note that the SC en banc is not an appellate court to
which decisions or resolutions of a division of the
Supreme Court may be appealed
SUPERIOR AND INFERIOR COURTS
Superior courts refer to those courts which have the
power of review or supervision over another lower court
Inferior courts are those which, in relation to another, are
lower in rank and subject to review and supervision of the latter
COURTS OF RECORD
Those whose proceedings are enrolled and which are bound to keep
a written record of all trials and proceedings handled by them
- RA 6031 mandates all MTCs to be courts of record
COURTS OF GENERAL AND SPECIAL JURISDICTION
Courts of GENERAL JURISDICION are those with competence to
decide on their own jurisdiction and to take cognizance of all cases,
civil and criminal, of a particular nature
Courts of SPECIAL (LIMITED) JURISDICTION are those which have
only a special jurisdiction for a particular purpose or are clothed
with special powers for the performance of specified duties beyond
which they have no authority of any kind
Note: A court may also be considered general if it has the
competence to exercise jurisdiction over cases not falling within the
jurisdiction of any court, tribunal, person or body exercising judicial
or quasi-judicial functions. It is in the context that the RTC is
considered a court of general jurisdiction
 CONSTITUTIONAL AND STATUTORY COURTS
A CONSTITUTIONAL court is one created by a direct Constitutional
provision. Cannot be abolished by Congress without amending the
Constitution
- E.g. SC which owes its creation from the Constitution
- Only the SC is a constitutional court
A STATUTORY court is one created by law other than the
Constitution. May be abolished by Congress by just simply repealing
the law which created those courts
- All courts except the SC are statutory
- The SB was not directly created by the Constitution but by
law pursuant to a constitutional mandate
COURTS OF LAW AND COURTS OF EQUITY
Courts of Law a court of law decides a case according to
the existing laws
Courts of Equity a court of equity adjudicates a
controversy according to the common precepts of what is right and
just without inquiring into the terms of the statutes
Note: In the Philippines, every court both original and appellate,
exercise both the legal and equitable jurisdiction (US v. Tamparong)
PRINCIPLES AND DOCTRINES
PRINCIPLE OF JUDICIAL HIERARCHY
This is an ordained sequence of recourse to courts vested with
concurrent jurisdiction, beginning from the lowest, on to the next
highest and ultimately to the highest. This hierarchy is
determinative of the venue of appeals, and is likewise determinative
of the proper forum for petitions for extraordinary writs. This is an
established policy necessary to avoid inordinate demands upon the
Courts time and attention which are better devoted to those matters
within its exclusive jurisdiction, and to preclude the further clogging
of the Courts docket (Sec. 9[1], BP 129; Sec. 5[1], Art. VIII,
Constitution of the Philippines).
A higher court will not entertain direct resort to it unless the redress
cannot be obtained in the appropriate courts
The SC is a court of last resort. It cannot and should not be
burdened with the task of deciding cases in the first instances. Its
jurisdiction to issue extraordinary writs should be exercised only
where absolutely necessary or where serious and important reasons
exist
The doctrine of hierarchy of courts may be disregarded if warranted
by the nature and importance of the issues raised in the interest of
speedy justice and to avoid future litigations, or in cases of national
interest and of serious implications. Under the principle of liberal
interpretations, for example, it may take cognizance of a petition for
certiorari directly filed before it.
While it is true that the SC, CA, and RTC have concurrent original
jurisdiction to issue writs of Certiorari, Prohibition, and Mandamus,
Such concurrence does not accord litigants unrestrained freedom of
choice of the court to which the application for the writ may be
directed. Application should be filed with the court of lower level.
Unless the importance of the issue involved deserves the action of
the court of higher level.
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DOCTRINE OF NON-INTERFERENCE OR
DOCTRINE OF JUDICIAL STABILITY
Courts of equal and coordinate jurisdiction cannot interfere with
each others orders. Thus, the RTC has no power to nullify or enjoin
the enforcement of a writ of possession issued by another RTC. The
principle also bars a court from reviewing or interfering with the
judgment of a co-equal court over which it has no appellate
jurisdiction or power of review.
This doctrine applies with equal force to administrative bodies.
When the law provides for an appeal from the decision of an
administrative body to the SC or CA, it means that such body is co-
equal with the RTC and logically beyond the control of the latter.
General Rule: No court has the authority to interfere by injunction
with the judgment of another court of coordinate jurisdiction or to
pass upon or scrutinize and much less declare as unjust a judgment
of another court
Exception: The doctrine of judicial stability does not apply where a
third party claimant is involved
DOCTRINE OF ADHERENCE TO JURISDICTION
Or CONTINUITY OF JURISDICTION
Once jurisdiction has been acquired the court retains it until the final
termination of the case
General Rule: Law enacted during the pendency of a case which
transfers jurisdiction to another court does not affect cases prior to
its enactment.
Exceptions:
1. When the new law expressly provides for a retroactive
application
2. When the change of jurisdiction is curative in character
EXCLUSIONARY PRINCIPLE
The court first acquiring jurisdiction excludes all others
DOCTRINE OF PRIMARY JURISDICTION
Under this doctrine, courts will not resolve a controversy involving a
question which is within the jurisdiction of an administrative
tribunal. Especially where the question demands the exercise of
sound administrative discretion requiring the special knowledge and
experience of said tribunal in determining technical and intricate
matters of fact
DOCTRINE OF ANCILLARY JURISDICTION
It involves the inherent or implied powers of the court to determine
issues incidental to the exercise of its primary jurisdiction.
Under its ancillary jurisdiction, a court may determine all questions
relative to the matters brought before it, regulate the manner in
which a trial shall be conducted, determine the hours at which the
witnesses and lawyers may be heard, direct the disposition of money
deposited in court in the course of the proceedings, appoint a
receiver and grant an injunction, attachment or garnishment.

JURISDICTION
Jurisdiction
- Latin: juris and dico I speak of the law
- Is the power and authority of a court to try, hear, and
decide a case and to carry its judgment into effect
REQUISITES FOR THE VALID EXERCISE OF JURISDICTION
1. That it must have jurisdiction over the persons of the parties
a. Jurisdiction over the person of the plaintiff it is acquired
the moment he files his complaint, petition, or initiatory
pleading
b. Jurisdiction over the person of the defendant it is
acquired either by:
(1) Voluntary appearance in court and his submission to
its authority, or
(2) By service of summons or other coercive process
upon him
2. That it must have jurisdiction over the subject matter of the
controversy
a. Jurisdiction over the subject matter is determined by the
allegations made in the complaint
b. It is conferred by law and not by the voluntary act or
agreement of the parties
c. GENERAL RULE: lack of jurisdiction over the subject
matter of an action cannot be waived by the parties and
may be raised at any stage of the proceeding, the court
being authorized to dismiss the case motu proprio
d. EXCEPTIONS:
(1) Estoppel by laches
(2) Estoppel in pais where defendant actively
participated in all stages of the proceedings before
the trial court and invoked its authority by asking for
an affirmative relief
e. Note that jurisdiction is governed by the law at the time
the action is commenced
3. That it must have jurisdiction over the res (thing or property
under litigation)
a. It is acquired either by:
(1) The seizure of the property under legal process or
(2) As a result of the institution of legal proceedings, in
which the power of the court is recognized and made
effective
4. That it must have jurisdiction over the issues
a. As raised in the pleadings or by their agreement in a pre-
trial order or those tried by the implied consent of the
parties
CLASSIFICATION OF JURISDICTION
A. As to cases tried
1. General jurisdiction exercised over all kinds of cases,
except those withheld from the plenary powers of the
court
2. Limited jurisdiction exercised over and extends only to
particular or specified cases
B. As to nature of the cause:
1. Original jurisdiction exercised by courts in the first
instance
2. Appellate jurisdiction exercised by a superior court to
review and decide cases previously decided by a lower
court now elevated for judicial review
C. As to nature and extent of exercise
1. Exclusive jurisdiction confined to a particular court to
the exclusion of other courts
2. Concurrent jurisdiction pertaining to different courts
over the same subject matter at the same time and place.
When 2 or more courts have concurrent jurisdiction over
the case, the court which has first validly acquired
jurisdiction takes it to the exclusion of the others
(confluent or coordinate jurisdiction)
D. As to situs
1. Territorial jurisdiction exercised within the limits of the
place where the court is located
2. Extra-territorial jurisdiction exercised beyond the
confines of the territory where the court is located
JURISDICTION OVER THE PARTIES
Notes:
- The manner by which the court acquires jurisdiction over
the parties depends on whether the party is the plaintiff or
the defendant
- Jurisdiction over the plaintiff is acquired by his filing of the
complaint or petition. By doing so, he submits himself to
the jurisdiction of the court.
- Jurisdiction over the person of the defendant is obtained
either by a valid service of summons upon him or by his
voluntary submission to the courts authority.
- The mode of acquisition of jurisdiction over the plaintiff
and the defendant applies to both ordinary and special
civil actions like mandamus or unlawful detainer case
Jurisdiction over the plaintiff acquired when the action is
commenced by the filing of the complaint. This presupposes
payment of the docket fees
Jurisdiction over the defendant required only in an action in
personam; it is not a prerequisite in an action in rem and quasi in
rem
- In an action in personam, jurisdiction over the person is
necessary for the court to validly try and decide the case,
- While in a proceeding in rem or quasi in rem, jurisdiction
over the person of the defendant is not a prerequisite to
confer jurisdiction on the court, provided the latter has
jurisdiction over the res
By voluntary appearance of the defendant, without service of
summons or despite a defective service of summons
- The defendants voluntary appearance in the action shall
be equivalent to service of summons
Instances when appearance of defendant is not tantamount to
voluntary submission to the jurisdiction of the court:
1. When defendant files the necessary pleading;
2. When defendant files motion for reconsideration of the
judgment by default;
3. When defendant files a petition to set aside the judgment
of default;
4. When the parties jointly submit a compromise agreement
for approval of the court;
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 5. When defendant files an answer to the contempt charge;
6. When defendant files a petition for certiorari without
questioning the courts jurisdiction over his person.
JURISDICTION OVER THE SUBJECT MATTER
It is the power to deal with the general subject involved in the action,
and means not simply jurisdiction of the particular case then
occupying the attention of the court but jurisdiction of the class of
cases to which the particular case belongs. It is the power or
authority to hear and determine cases to which the proceeding is
question belongs.
When a complaint is filed in court, the basic questions that ipso facto
are to be immediately resolved by the court on its own:
a. What is the subject matter of their complaint filed before
the court?
b. Does the court have jurisdiction over the said subject
matter of the complaint before it?
Answering these questions inevitably requires looking into the
applicable laws conferring jurisdiction.
JURISDICTION v. EXERCISE OF JURISDICTION
Jurisdiction is the power or authority of the court. The exercise of
this power is the exercise of jurisdiction.
- The exercise includes the courts decision and its
consequences
ERROR OF JURISDICTION v. ERROR OF JUDGMENT
Error of Jurisdiction -- One where the act complained of was issued
by the court without or in excess of jurisdiction; it occurs when:
1. The court exercises a jurisdiction not conferred upon it by
law; or
2. When the court or tribunal although with jurisdiction, acts
in excess of its jurisdiction or with grave abuse of
discretion amounting to lack or jurisdiction
Error of Judgment One which the court may commit in the exercise
of its jurisdiction
- As long as the court acts within its jurisdiction, any alleged
errors committed in the exercise of its discretion will
amount to nothing more than mere errors of judgment.
Errors of judgment include errors of procedure or
mistakes in the courts findings
Errors of judgment are correctible by appeal; errors of jurisdiction
are correctible only by the extraordinary writ of certiorari. Any
judgment rendered without jurisdiction is a total nullity and may be
struck down at any time, even on appeal; the only exception is when
the party raising the issue is barred by estoppel
ERROR OF JURISDICTION ERROR OF JUDGMENT
One where the court, officer, or One that the court may commit
quasi-judicial body acts in the exercise of its
without or in excess of jurisdiction, it includes error of
jurisdiction, or with grave procedure or mistakes in the
abuse of discretion courts findings
It renders judgment void or at Such an error does not make
least voidable the courts decision void
Correctible by certiorari Correctible by appeal
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HOW JURISDICTION IS CONFERRED AND DETERMINED
Notes:
- Jurisdiction is a matter of substantive law because it is
conferred by law refers only to jurisdiction over the
subject matter
- Jurisdiction over the parties, the issues, and the res, are
matters of procedure
The test of jurisdiction is whether the court has the power to enter
into the inquiry and not whether the decision is right or wrong
It is the duty of the court to consider the question of jurisdiction
before it looks at other matters involved in the case.
- If the court finds that it has jurisdiction, it is the duty of the
court to exercise the jurisdiction conferred upon it by law
and to render a decision in a case properly submitted to it.
- It cannot decline to exercise its jurisdiction. Failure to do
so may be enforced by way of mandamus proceeding.
Note: Jurisdiction over the subject matter is conferred by substantive
law which may either be a Constitution or statute; while jurisdiction
over the subject matter is determined by the allegations of the
complaint regardless of whether or not the plaintiff is entitled to the
claims asserted therein.
Applicable doctrines:
1. Doctrine of Primary Jurisdiction Courts will not resolve a
controversy involving a question which is within the
jurisdiction of an administrative tribunal, especially where
the question demands the exercise of sound
administrative discretion requiring the special knowledge,
experience and services of the administrative tribunal to
determine technical and intricate matters of fact
2. Doctrine of Adherence of Jurisdiction Once a court has
acquired jurisdiction, that jurisdiction continues until the
court has done all that it can do in the exercise of that
jurisdiction. This principle also means that once
jurisdiction has attached, it cannot be ousted by
subsequent happenings or events and retains that
jurisdiction until it finally disposes of the case
OBJECTION TO JURISDICTION OVER THE SUBJECT MATTER
When it appears from the pleadings or evidence on record that the
court has no jurisdiction over the subject matter, the court shall
dismiss the same. (Sec. 1, Rule 9)
The court may on its OWN INITIATIVE object to an erroneous
jurisdiction and may ex mero motu take cognizance of lack of
jurisdiction at any point in the case and has a clearly recognized
right to determine its own jurisdiction
Jurisdiction over the subject matter may be raised at any stage of the
proceedings, even for the first time on appeal. When the court
dismisses the complaint for lack of jurisdiction over the subject
matter, it is common reason that the court cannot remand the case
to another court with the proper jurisdiction. Its only power is to
dismiss and not to make any other order.
 EFFECT OF ESTOPPEL ON OBJECTION TO JURISDICTION
The active participation of a party in a case is tantamount to
recognition of that courts jurisdiction and will bar a party from
impugning the courts jurisdiction. The general rule remains: a
courts lack of jurisdiction may be raised at any stage of the
proceedings even on appeal. The Sibonghanoy applies only to
exceptional circumstances.
Doctrine of estoppels by laches (in relation to objections to
jurisdiction) = the SC barred a belated objection to jurisdiction that
was raised only after an adverse decision was rendered by the court
against the party raising the issue of jurisdiction and after seeking
affirmative relief from the court and after participating in all stages
of the proceedings.
The SC frowns upon the undesirable practice of submitting ones
case for decision, and then accepting the judgment only if favorable,
but attacking it for lack of jurisdiction if it is not.
JURISDICTION OVER THE ISSUES
It is the power of the court to try and decide issues raised in the
pleadings of the parties.
An issue is a disputed point or question to which parties to an action
have narrowed down their several allegations and upon which they
are desirous of obtaining a decision. Where there is no disputed
point, there is no issue.
Generally, jurisdiction over the issues is conferred and determined
by the pleadings of the parties. The pleadings present the issues to
be tried and determine whether or not the issues are of fact or law.
a) may also be determined and conferred by stipulation of
the parties as when in the pre-trial, the parties enter into
stipulations of facts and documents or enter into
agreement simplifying the issues of the case.
b) may also be conferred by waiver or failure to object to the
presentation of evidence on a matter not raised in the
pleadings. Here the parties try with their express or
implied consent or issues not raised by the pleadings. The
issues tried shall be treated in all respects as if they had
been raised in the pleadings.
JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION
Jurisdiction over the res refers to the courts jurisdiction over the
thing or the property which is the subject of the action.
Jurisdiction over the res may be acquired by the court
1) by placing the property or thing under its custody
(custodia legis) (the seizure of the thing under legal
process whereby it is brought into actual custody of law).
Example: attachment of property.
2) through statutory authority conferring upon it the power
to deal with the property or thing within the courts
territorial jurisdiction (institution of a legal proceeding
wherein the power of the court over the thing is
recognized and made effective). Example: suits involving
the status of the parties or suits involving the property in
the Philippines of non-resident defendants.
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JURISDICTION OF THE METROPOLITAN TRIAL
COURTS and MUNICIPAL TRIAL COURTS
JURISDICTION OF THE MTCs IN CIVIL CASES
EXCLUSIVE ORIGINAL JURISDICTION
1) If the amount involved does not exceed P300,000 outside MM
or does not exceed P400,000 in MM in the following cases:
a) Actions involving personal property
b) Probate Proceeding (testate and intestate) based on
gross value of the estate
c) Admiralty and maritime cases
d) Demand for money
Note: Do not include Interest, Damages of whatever
kind, Attorneys fees, Litigation Expenses, and Costs
(IDALEC). However, in cases where the claim or
damages is the main cause of action, or one of the
causes of action, the amount of such claim shall be
considered in determining the jurisdiction of the
court.
2) Actions involving title to, or possession of, real property, or any
interest therein where the assessed value of the property or
interest therein does not exceed P20,000 outside MM or does
not exceed P50,000 in MM
3) Inclusion and exclusion of voters
4) Those governed by the Rules on Summary Procedure
a) Forcible entry and unlawful detainer (FEUD)
With jurisdiction to resolve issue of ownership to
determine ONLY issue of possession (provisional
only)
Irrespective of the amount of damages or unpaid
rentals sought to be recover
Where attorneys fees are awarded, the same shall
not exceed P20,000
b) Other civil cases, except probate proceeding, where the
total amount of the plaintiffs claim does not exceed
P200,000 in MM, exclusive of interests and costs.
SPECIAL JURISDICTION over petition for writ of habeas corpus OR
application for bail in criminal cases in the absence of all RTC judges
in the province or city
DELEGATED JURISDICTION to hear and decide cadastral and land
registration cases where there is no controversy over the land or in
case of contested lands, the value does not exceed P100, 000 =
appealable to the CA
1st level courts:
a. Metropolitan Trial Court Metro Manila;
b. Municipal Trial Courts in Cities situated in cities
c. Municipal Circuit Trial Court composed of multi-sala
d. Municipal Trial Courts in one municipality

JURISDICTION OVER SMALL CLAIMS,
SUMMARY PROCEDURE, AND
BARANGAY CONCILIATION
JURISDICTION OVER SMALL CLAIMS
1) MTCs, MeTCs and MCTCs shall have jurisdiction over actions for
payment of money where the value of the claim does not exceed
P100,000 exclusive of interest and costs (Sec. 2, AM 08-8-7-SC,
Oct. 27, 2009).
2) Actions covered are
a) purely civil in nature where the claim or relief prayed for
by the plaintiff is solely for payment or reimbursement of
sum of money, and
b) the civil aspect of criminal actions, either filed before the
institution of the criminal action, or reserved upon the
filing of the criminal action in court, pursuant to Rule 111
(Sec. 4, AM 08-8-7-SC).
These claims may be:
a) For money owed under the contracts of lease, loan,
services, sale, or mortgage;
b) For damages arising from fault or negligence, quasi-
contract, or contract; and
c) The enforcement of a barangay amicable settlement or an
arbitration award involving a money claim pursuant to
Sec. 417 of RA 7160 (LGC).
CASES COVERED BY RULES ON SUMMARY PROCEDURE
IN CIVIL CASES
1) All cases of forcible entry and unlawful detainer (FEUD),
irrespective of the amount of damages or unpaid rentals sought
to be recovered. Where attorneys fees are awarded, the same
shall not exceed P20,000;
2) All other cases, except probate proceedings where the total
amount of the plaintiffs claim does not exceed P100,000
(outside MM) or P200,000 (in MM), exclusive of interest and
costs.
CASES COVERED BY THE RULES ON BARANGAY CONCILIATION
The Lupon of each barangay shall have the authority to bring
together the parties actually residing in the same municipality or
city for amicable settlement of all disputes except:
1) Where one party is the government or any subdivision or
instrumentality thereof
2) Where one party is a public officer or employee, and the
dispute relates to the performance of his official functions
3) Offenses punishable by imprisonment exceeding one (1)
year or a fine exceeding P5,000
4) Offenses where there is no private offended party
5) Where the dispute involves real properties located in
different cities or municipalities unless the parties thereto
agree to submit their differences to amicable settlement by
an appropriate lupon
6) Disputes involving parties who actually reside in
barangays of different cities or municipalities, except
where such barangay units adjoin each other and the
parties thereto agree to submit their differences to
amicable settlement by an appropriate lupon
10
7) Such other classes of disputes which the President may
determine in the interest of justice or upon the
recommendation of the Secretary of Justice
8) Any complaint by or against corporations, partnerships, or
juridical entities. The reason is that only individuals shall
be parties to barangay conciliation proceedings either as
complainants or respondents
9) Disputes where urgent legal action is necessary to prevent
injustice from being committed or further continued,
specifically:
a) A criminal case where the accused is under
police custody or detention
b) A petition for habeas corpus by a person illegally
detained or deprived of his liberty or one acting
in his behalf
c) Actions coupled with provisional remedies, such
as preliminary injunction, attachment, replevin
and support pendente lite
d) Where the action may be barred by statute of
limitation
10) Labor disputes or controversies arising from employer-
employee relationship
11) Where the dispute arises from the CARL
12) Actions to annul judgment upon a compromise which can
be directly filed in court.
Note: It is a condition precedent under Rule 16; can be dismissed but
without prejudice
JURISDICTION OF THE REGIONAL TRIAL
COURTS, FAMILY COURTS, AND
SHARIAH COURTS
JURISDICTION OF THE REGIONAL TRIAL COURT IN CIVIL CASES
EXCLUSIVE ORIGINAL JURISDICTION
1) The action is incapable of pecuniary estimation (such as
rescission of contract, action to revive judgment, declaratory
relief (1st part), support, expropriation)
2) Title to, possession of, or interest in, real property with
assessed value exceeding P20,000 outside Metro Manila, or
exceeds P50,000 in Metro Manila
3) If the amount involved exceeds P300,000 outside MM or
exceeds P400,000 in MM in the following cases:
a) Admiralty and maritime cases
b) Matters of Probate (testate and intestate)
c) Other actions involving personal property
d) Demand for money
4) Cases not falling within the jurisdiction of any court, tribunal,
person or body exercising judicial or quasi-judicial functions
(general jurisdiction of RTC)
5) All actions involving the contract of marriage and family
relations
JURISDICTION OF FAMILY COURTS (RA 8369)
a) Petitions for guardianship, custody of children and
habeas corpus involving children
 b) Petitions for adoption of children and the revocation
thereof
c) Complaints for annulment of marriage, declaration of
nullity of marriage and those relating to status and
property relations of husband and wife or those living
together under different status and agreements, and
petitions for dissolution of conjugal partnership of gains
d) Petitions for support and/or acknowledgment
e) Summary judicial proceedings brought under the
provisions of EO 209 (Family Code)
f) Petitions for declaration of status of children as
abandoned, dependent or neglected children, petitions
for voluntary or involuntary commitment of children,
the suspension, termination or restoration of parental
authority and other cases cognizable under PD 603, EO
56 (1986) and other related laws
g) Petitions for the constitution of the family home
In areas where there are no Family Courts, the above-
enumerated cases shall be adjudicated by the RTC (RA 8369)
6) To hear and decide intra-corporate controversies Sec. 52,
Securities and Regulations Code):
a) Cases involving devises or schemes employed by or any
acts, of the board of directors, business associates, its
officers or partnership, amounting to fraud and
misrepresentation which may be detrimental to the
interest of the public and/or of the stockholders, partners,
members of associations or organizations registered with
the SEC
b) Controversies arising out of intra-corporate or partnership
relations, between and among stockholders, members or
associates; between any or all of them and the corporation,
partnership or association of which they are stockholders,
members or associates, respectively; and between such
corporation , partnership or association and the state
insofar as it concerns their individual franchise or right to
exist as such entity
c) Controversies in the election or appointments of directors,
trustees, officers or managers of such corporations,
partnerships or associations
d) Petitions of corporations, partnerships or associations to
be declared in the state of suspension of payments in cases
where the corporation, partnership of association
possesses sufficient property to cover all its debts but
foresees the impossibility of meeting them when they
respectively fall due or in cases where the corporation,
partnership of association has no sufficient assets to cover
its liabilities, but is under the management of a
Rehabilitation Receiver or Management Committee.
CONCURRENT JURISDICTION
1) with the Supreme Court in actions affecting ambassadors,
other public ministers and consuls
2) with the SC and CA in petitions for certiorari, prohibition
and mandamus against lower courts and bodies in
petitions for quo warranto, habeas corpus, and writ of
continuing mandamus on environmental cases
3) with the SC, CA and Sandigabayan in petitions for writs of
habeas data and amparo
4) With Insurance Commissioner claims not exceeding
P100,000
APPELLATE JURISDICTION over cases decided by lower courts in
their respective territorial jurisdictions except decisions of lower
courts in the exercise of delegated jurisdiction.
11
SPECIAL JURISDICTION SC may designate certain branches of RTC
to try exclusively criminal cases, juvenile and domestic relations
cases, agrarian cases, urban land reform cases not falling within the
jurisdiction of any quasi-judicial body and other special cases in the
interest of justice.
JURISDICTION OF THE SHARIAH COURTS
EXCLUSIVE JURISDICTION
1) All cases involving custody, guardianship, legitimacy,
paternity and filiation arising under the Code of Muslim
Personal Laws;
2) All cases involving disposition, distribution and settlement
of estate of deceased Muslims, probate of wills, issuance of
letters of administration of appointment administrators or
executors regardless of the nature or aggregate value of
the property;
3) Petitions for the declaration of absence and death for the
cancellation and correction of entries in the Muslim
Registries;
4) All actions arising from the customary contracts in which
the parties are Muslims, if they have not specified which
law shall govern their relations; and
5) All petitions for mandamus, prohibition, injunction,
certiorari, habeas corpus and all other auxiliary writs and
processes in aid of its appellate jurisdiction
CONCURRENT JURISDICTION
1) Petitions of Muslim for the constitution of the family home,
change of name and commitment of an insane person to an
asylum
2) All other personal and legal actions not mentioned in par 1
(d) wherein the parties involved are Muslims except those
for forcible entry and unlawful detainer, which shall fall
under the exclusive jurisdiction of the MTC.
3) All special civil actions for interpleader or declaratory
relief wherein the parties are Muslims or the property
involved belongs exclusively to Muslims
Cases that can be filed:
1) Offenses defined and punished under PD 1083
2) Disputes relating to:
a. Marriage
b. Divorce
c. Betrothal or breach of contract to marry
d. Customary dowry (mahr)
e. Disposition and distribution of property upon
divorce
f. Maintenance and support and consolatory gifts
(muta)
g. Restitution of marital rights
3) Disputes relative to communal properties

JURISDICTION OF THE SANDIGANBAYAN
JURISDICTION OF THE SANDIGANBAYAN
ORIGINAL JURISDICTION in all cases involving
1) Violations of RA 3019 (Anti-Graft and Corrupt Practices Act)
2) Violations of RA 1379 (Anti-Ill-Gotten Wealth Act)
3) Sequestration cases (E.O. Nos. 1,2,14,14-A)
4) Bribery (Chapter II, Sec. 2, Title VII, Book II, RPC) where one or
more of the principal accused are occupying the following
positions in the government, whether in permanent, acting or
interim capacity at the time of the commission of the offense:
a) Officials of the executive branch occupying the positions of
regional director and higher, otherwise classified as Grade
27 and higher, of the Compensation and Position
Classification Act of 1989 (RA 6758)
b) Members of Congress and officials thereof classified as G-
27 and up under RA 6758
c) Members of the Judiciary without prejudice to the
provisions of the Constitution
d) Chairmen and Members of the Constitutional Commissions
without prejudice to the provisions of the Constitution
e) All other national and local officials classified as Grade 27
and higher under RA 6758
f) Other offenses or felonies committed by the public officials
and employees mentioned in Sec. 4(a) of RA 7975 as
amended by RA 8249 in relation to their office
g) Civil and criminal cases filed pursuant to and in connection
with EO Nos. 1, 2, 14-A (Sec. 4, RA 8249)
Note: Without the office, the crime cannot be committed.
APPELLATE JURISDICTION - from the RTC in cases under PD 1606,
as amended by PD 1861, whether or not the cases were decided b
them in the exercise of their original or appellate jurisdictions.
CONCURRENT ORIGINAL JURISDICTION WITH SC, CA AND RTC
for petitions for writs of habeas data and amparo
The requisites that the offender the offender occupies salary
Grade 27 and the offense must be intimately connected with the
official function must concur for the SB to have jurisdiction
Justice Magdangal De Leon
JURISDICTION OF THE
COURT OF TAX APPEALS
UNDER RA 9282 and RULE 5, AM 05-11-07 CTA
EXCLUSIVE ORIGINAL OR APPELLATE JURISDICTION TO
REVIEW BY APPEAL
1) Decisions of CIR in cases involving disputed assessments,
refunds of internal revenue taxes, fees or other charges,
penalties in relation thereto, or other matters arising under
the NIRC or other laws administered by BIR;
2) Inaction by CIR in cases involving disputed assessments,
refunds of IR taxes, fees or other charges, penalties in
relation thereto, or other matters arising under the NIRC or
other laws administered by BIR, where the NIRC or other
applicable law provides a specific period of action, in which
case the inaction shall be deemed an implied denial;
12
3) Decisions, orders or resolutions of the RTCs in local taxes
originally decided or resolved by them in the exercise of
their original or appellate jurisdiction;
4) Decisions of the Commissioner of Customs
a. in cases involving liability for customs duties, fees or
other charges, seizure, detention or release of property
affected, fines, forfeitures or other penalties in relation
thereto, or
b. other matters arising under the Customs law or other
laws, part of laws or special laws administered by BOC;
5) Decisions of the Central Board of Assessment Appeals in the
exercise of its appellate jurisdiction over cases involving the
assessment and taxation of real property originally decided
by the provincial or city board of assessment appeals;
6) Decision of the secretary of Finance on customs cases
elevated to him automatically for review from decisions of
the Commissioner of Customs which are adverse to the
government under Sec. 2315 of the Tariff and Customs
Code;
7) Decisions of Secretary of Trade and Industry in the case of
non-agricultural product, commodity or article, and the
Secretary of Agriculture in the case of agricultural product,
commodity or article, involving dumping duties and
counterveiling duties under Secs. 301 and 302, respectively,
of the Tariff and Customs Code, and safeguard measures
under RA 8800, where either party may appeal the decision
to impose or not to impose said duties.
EXCLUSIVE ORIGINAL JURISDICTION
1) Over all criminal cases arising from violation of the NIRC
and the TCC and other laws, part of laws, or special laws
administered by the BIR or the BOC where the principal
amount of taxes and fees, exclusive of charges and penalties
claimed is less than P1M or where there is no specified
amount claimed (the offenses or penalties shall be tried by
the regular courts and the jurisdiction of the CTA shall be
appellate);
2) In tax collection cases involving final and executory
assessments for taxes, fees, charges and penalties where the
principal amount of taxes and fees, exclusive of charges and
penalties claimed is less than P1M tried by the proper MTC,
MeTC and RTC.
EXCLUSIVE APPELLATE JURISDICTION
1) In criminal offenses
a) over appeals from the judgment, resolutions or orders
of the RTC in tax cases originally decided by them, in
their respective territorial jurisdiction, and
b) over petitions for review of the judgments, resolutions
or orders of the RTC in the exercise of their appellate
jurisdiction over tax cases originally decided by the
MeTCs, MTCs, and MCTCs in their respective
jurisdiction.
2) In tax collection cases
a) over appeals from the judgments, resolutions or orders
of the RTC in tax collection cases originally decided by
them in their respective territorial jurisdiction; and
b) over petitions for review of the judgments, resolutions
or orders of the RTC in the exercise of their appellate
jurisdiction over tax collection cases originally decided
by the MeTCs, MTCs and MCTCs in their respective
jurisdiction.

JURISDICTION OF THE COURT OF APPEALS
JURISDICTION OF THE COURT OF APPEALS IN CIVIL CASES
EXCLUSIVE ORIGINAL JURISDICTION in actions for the annulment
of the judgments of the RTC.
CONCURRENT ORIGINAL JURISDICTION
1) With SC to issue writs of certiorari, prohibition and
mandamus against the RTC, CSC, CBAA, other quasi-
judicial agencies mentioned in Rule 43, and the NLRC
(however, this should be filed first with the CA as per St.
Martin Funeral Home case), and writ of kalikasan.
2) With the SC and RTC to issue writs of certiorari,
prohibition and mandamus (CPM) against lower courts
and bodies and writs of quo warranto, habeas corpus,
whether or not in aid of its appellate jurisdiction, and writ
of continuing mandamus on environmental cases.
3) With SC, RTC and Sandiganbayan for petitions for writs of
amparo and habeas data where the action involves public
data or government office
EXCLUSIVE APPELLATE JURISDICTION
1) by way of ordinary appeal from the RTC and the Family
Courts.
2) by way of petition for review from the RTC rendered by
the RTC in the exercise of its appellate jurisdiction.
3) by way of petition for review from the decisions,
resolutions, orders or awards of the CSC, CBAA and other
bodies mentioned in Rule 43 and of the Office of the
Ombudsman in administrative disciplinary cases.
4) over decisions of MTCs in cadastral or land registration
cases pursuant to its delegated jurisdiction; this is because
decisions of MTCs in these cases are appealable in the
same manner as decisions of RTCs.
Note: There is no action to annul the decision of the CA.
JURISDICTION OF THE SUPREME COURT
JURISDICTION OF THE SUPREME COURT IN CIVIL CASES
EXCLUSIVE ORIGINAL JURISDICTION in petitions for certiorari,
prohibition and mandamus against the CA, COMELEC, COA, CTA,
Sandiganbayan
CONCURRENT JURISDICTION
1) With Court of Appeals in petitions for certiorari,
prohibition and mandamus against the RTC, CSC, Central
Board of Assessment Appeals, NLRC, Quasi-judicial
agencies, and writ of kalikasan, all subject to the doctrine
of hierarchy of courts.
2) With the CA and RTC in petitions for certiorari, prohibition
and mandamus against lower courts and bodies and in
petitions for quo warranto, and writs of habeas corpus, all
subject to the doctrine of hierarchy of courts.
3) With CA, RTC and Sandiganbayan for petitions for writs of
amparo and habeas data
4) Concurrent original jurisdiction with the RTC in cases
affecting ambassadors, public ministers and consuls.
13
APPELLATE JURISDICTION
1) by way of petition for review on certiorari (appeal by
certiorari under Rule 45) against CA, Sandiganbayan, RTC
on pure questions of law and CTA in its decisions rendered
en banc.
2) in cases involving the constitutionality or validity of a law
or treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction,
ordinance or regulation, legality of a tax, impost,
assessment, toll or penalty, jurisdiction of a lower court;
and
3) all cases in which the jurisdiction of any court is in issue;
4) all cases in which an error or question of law is involved
Exceptions in which factual issues may be resolved by the Supreme
Court:
a) When the findings are grounded entirely on speculation,
surmises or conjectures;
b) When the inference made is manifestly mistaken, absurd or
impossible;
c) When there is grave abuse of discretion;
d) When the judgment is based on misapprehension of facts;
e) When the findings of facts are conflicting;
f) When in making its findings the CA went beyond the issues of
the case, or its findings are contrary to the admissions of both
the appellant and the appellee;
g) When the findings are contrary to the trial court;
h) When the findings are conclusions without citation of specific
evidence on which they are based;
i) When the facts set forth in the petition as well as in the
petitioners main and reply briefs are not disputed by the
respondent;
j) When the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on
record; and
k) When the Court of Appeals manifestly overlooked certain
relevant facts not disputed by the parties, which, if properly
considered, could justify a different conclusion.
TOTALITY RULE
Where there are several claims or causes of actions between the
same or different parties, embodied in the same complaint, the
amount of the demand shall be the totality of the claims in all the
claims of action, irrespective of whether the causes of action arose
out of the same or different transactions (Sec. 33[1], BP 129).
NOTES ON INTRODUCTION

14
NOTES ON INTRODUCTION

15
 2. Examples:
RULE 1 a. When a party litigant seeks to recover property
GENERAL PROVISIONS from another, remedy is to file an action
b. If his purpose is to seek an appointment of a
guardian for an insane, remedy is a special
proceeding to establish insanity
SECTION 1 - Title of the Rules.These Rules shall be known and
c. A petition for liquidation of an insolvent
cited as the Rules of Court.
incorporation should be classified as a special
proceeding, not as an ordinary action
The Rules of Court do not have retroactive effect
But they can be made applicable to pending cases at the Action v. Claim
time of their passage and therefore are retroactive in that
sense
ACTION CLAIM
An ordinary suit in a court of A right possessed by one
The rule making power of the SC has the following limitations:
justice against another
1. Simplified and inexpensive procedure for the speedy
One party prosecutes another
disposition of cases;
for the enforcement or The moment said claim is filed
2. Uniform for all courts of the same grade; and
protection of aright or the before a court, claim is
3. Shall not diminish, increase, or modify substantive rights
prevention or redress of a converted into an action or suit
(Art. VIII, Sec. 5(5), 1987 Constitution)
wrong
In the interest of just and expeditious proceedings, the SC may
suspend the application of the rules and except a case from its CLASSIFICATION OF ACTIONS
operation because the rules were precisely adopted with the
primary objective of enhancing fair trial and expeditious justice. As to Nature

ORDINARY CIVIL ACTION SPECIAL CIVIL ACTION

SECTION 2 - In what courts applicable.These rules shall apply in Also governed by ordinary
all courts, except as otherwise provided by the Supreme Court. Governed by the ordinary rules rules but subject to specific
rules prescribed
Sec. 2 provides for the scope of the applicability of the rules Formal demand or ones legal
rights in a court of justice in Special features not found in
the manner prescribed by ordinary civil actions
SECTION 3 - Cases governed.These Rules shall govern the court or by law
procedure to be observed in actions, civil or criminal, and special
proceedings. As to Object
(a) A civil action is one by which a party sues another for
the enforcement or protection of a right, or the ACTION IN ACTION QUASI
ACTION IN REM
prevention or redress of a wrong. (1a, R2) PERSONAM IN REM
A civil action may either be ordinary or Directed against
Directed against the Directed against
special. Both are governed by the rules for ordinary particular
thing itself particular persons
civil actions, subject to the specific rules prescribed for persons
a special civil action. (n) Jurisdiction over
(b) A criminal action is one by which the State prosecutes a the person of
Jurisdiction over the
person for an act or omission punishable by law. (n) Jurisdiction over the defendant is not
person of the
(c) A special proceeding is a remedy by which a party seeks person of defendant required as long
defendant not
to establish a status, a right, or a particular fact. (2a, required as jurisdiction
required
R2) over the res is
required
An action is a formal demand of ones legal rights in a court of justice Proceeding to
in the manner prescribed by the court or by the law subject the
a. Determinative fact which converts a claim into an action or Proceeding to Action to impose a interest of a
suit --- the filing of the same with a court of justice determine the state responsibility or named defendant
1. If filed elsewhere, claim may not be categorized under or condition of a liability upon a person over a particular
either term thing directly property to an
2. E.g. Extra-judicial foreclosure of real estate mortgage obligation or lien
it is initiated by filing a petition with the office of the burdening it
sheriff, not in a court of justice; it is not a judicial Judgment is binging Judgment
proceeding, action, or suit Judgment is binding only upon impleaded binging upon
b. Distinguished from Special Proceeding on the whole world parties or their particular
1. Special proceeding an application or proceeding to successors in interest persons
establish the status or right of a party, or a particular E.g. Action for
E.g. Probate
fact E.g. Specific partition;
proceeding,
a. No formal pleadings are required, unless performance, action foreclosure of
cadastral
expressly provided by statute for breach of contract real estate
proceeding
b. Remedy is granted generally upon an application mortgage
or motion

16
The distinction is important in determining the following: Exception: The Rules are applicable to the above cases only by
1. Whether or not jurisdiction over the person of the analogy or suppletory whenever applicable and convenient
defendant is required; and
2. Persons upon whom judgment is binding
SECTION 5 - Commencement of action.A civil action is
As to Cause: commenced by the filing of the original complaint in court. If an
additional defendant is impleaded in a later pleading, the action is
REAL ACTION PERSONAL ACTION MIXED ACTION commenced with regard to him on the date of the filing of such
Personal property is later pleading, irrespective of whether the motion for its
Ownership or sought to be admission, if necessary, is denied by the court. (6a)
Both real and
possession of real recovered or where
personal properties
property is damages for breach Commencement of Action
are involved
involved of contract are 1. By the filing of the original complaint in court
sought a. If additional defendant is impleaded in later pleading
Founded on privity Founded on privity (1) Action is commenced, with regard to him, on the
Founded on both
of real estate of contract date of the filing of the amended complaint
Filed in court where joining additional defendant
Filed in the court (2) If amended complaint is filed after the answer to
plaintiff or any of Rules on venue of
were property or the original complaint has been served on
defendant resides, at real actions shall
any part thereof is plaintiff:
the option of govern
situated (a) Motion for its admission now becomes
plaintiff
E.g. Accion necessary
E.g. Accion E.g. Action for a sum (b) If amended complaint is attached to the
publiciana with a
reinvindicatoria of money motion for its admission, date of filing
claim for damages
thereof is the date of commencement with
Note: regard to additional defendant, irrespective
- An action could be real as to cause and in personam as to of the action of the court thereon
object (e.g. action to recover a piece of land). 2. And the payment of docket fees
- An action could also be personal as to cause and in rem as a. Determined not only by the amount of the claim but
to object (e.g. action for annulment of marriage) also by the amount of damages
- The distinction is significant in determining the venue of
action An action capable of pecuniary estimation is one where the action is
brought primarily for the recovery of a sum of money; and the
As to Place of Filing amount of the claim shall determine where the jurisdiction lies.

LOCAL ACTION TRANSITORY ACTION An action incapable of pecuniary estimation is one wherein the basic
Must be brought in a particular Dependent on the place where issue is something other than the right to recover a sum of money or
place where the subject party resides regardless of where the money claim is purely incidental to, or a consequence of,
property or a portion thereof is where the cause of action arose the principal relief sought and are cognizable exclusively by the RTC.
located, unless there is an
agreement to the contrary
E.g. Action to recover real E.g. Action to recover sum of PAYMENT OF DOCKET FEES
property money
General Principles
Note:
- If action is founded on privity of contract between parties, Sec. 1, Rule 141 (AM No. 04-2-04 SC) provides that Upon filing of
then the action is transitory the pleading or other application which initiates an action or
- But if there is no privity of contract and the action is proceeding, the fees prescribed thereafter shall be paid in full.
founded on privity of estate only, such as a covenant that The court does not acquire jurisdiction and the action is
runs with the land in the hands of remote grantees, then not deemed commenced unless the correct docket fee is paid.
the action is local and must be brought in the place where
the land lies The Manchester Rule (as held in Manchester Development Corp. v.
CA)
- All complaints, petitions, answers, and other similar
SECTION 4 - In what cases not applicable.These Rules shall not
pleadings, should specify the amount of damages being
apply to election cases, land registration, cadastral, naturalization
prayed for not only in the body of the pleading but also in
and insolvency proceedings, and other cases not herein provided
the prayer
for, except by analogy or in a suppletory character and whenever
- Said damages shall be considered in the assessment of
practicable and convenient. (R143a)
filing fees
- Any pleading that fails to comply shall not be accepted or
Where rules not applicable:
admitted
1. Election cases
- Court acquires jurisdiction over any case only upon the
2. Land Registration
payment of the prescribed docket fee
3. Cadastral
- Amendment of the complaint or similar pleading will not
4. Naturalization
vest jurisdiction in the court, much less the payment of the
5. Insolvency Proceedings
docket fee based on the amount sought in the amended
6. Other cases not herein provided for
pleading

17
The Manchester Rule is embodied in SC Circ No. 7 of March 24, 1988
- Court acquires jurisdiction over any case only upon the
payment of the prescribed docket fees
- Sun Insurance Office, Ltd. v. Asuncion it is not the filing
of the complaint or appropriate initiatory pleading, but the
payment of the prescribed docket fee that vests in a trial
court with jurisdiction over the subject matter or nature of
the action
- Action is not deemed commenced and will not interrupt
the running of the period of prescription, unless and until
docket and other court fees are fully paid
Relaxation of the Manchester Rule
- Rule in Manchester that a complaint may not be amended
if the prescribed docket fee has not been paid upon the
filing of the initiatory pleading was relaxed in Sun
Insurance Office, Ltd. v. Asuncion
- In Sun Life and unlike in Manchester, respondent
demonstrated his willingness to abide by the rules by
paying the additional fees as required
The SC laid down the following rules:
1. It is not simply the filing of the complaint or appropriate
initiatory pleading, but also the payment of the prescribed
docket fee that vests a trial court with jurisdiction over the
subject matter or nature of the action
a. Where filing of the initiatory pleading is not
accompanied by payment of docket fee:
b. Court may allow payment of the fee within a
reasonable time
c. But in no case beyond the applicable prescriptive or
reglementary period.
2. Same rule applies to permissive counterclaims, third-party
claims and similar pleadings, which shall not be
considered filed until and unless the filing fee prescribed
therefor is paid
a. Court may also allow payment of said fee within a
reasonable time
b. But also in no case beyond the applicable prescriptive
or reglementary period
3. Where trial court acquires jurisdiction over a claim by the
filing of the appropriate pleading and payment of the
prescribed filing fee but, subsequently. Judgment awards a
claim not specified in the pleading, or if specified, same has
been left for the determination by the court, additional
filing fee shall constitute a lien on the judgment
a. It is the responsibility of the Clerk of Court or his duly
authorized deputy to enforce said lien and assess and
collect the additional fee
Central Bank v. CA The docket fee must be paid before the lapse of
the prescriptive period
Gochan v. Gochan The Sun Insurance rule allowing payment of
deficiency does not apply where plaintiff never demonstrated any
willingness to abide by the rules to pay the docket fee but stubbornly
insisted that the case filed was one for specific performance and
damages.
Filing Fee for Counter-claim or Cross-claim
- Effective Aug. 16, 2004, Rules required the payment of
filing fees for compulsory counterclaim or cross-claim
- Sec. 7(a), Rule 141, AM No. 14-2-04 SC
18
New Docket Fee to be Paid for the Filing of the Same Case that was
Dismissed for Improper Venue
Suson v. CA where the same case was filed after it was
dismissed for improper venue, another filing fee must be paid within
the prescriptive period as a condition precedent for further hearing
of the case
- Plaintiff must not rely on the filing fee paid in the first case
- First case was dismissed for improper venue and did not
interrupt the running of the prescriptive period
Mathematical Precision Not Required; Amount Not Stated in
Complaint
It is not necessary that the amounts be stated with
mathematical precision.
Ng Soon v. Alday:
- While it may be that the body of the complaint was silent
as to the exact amount of damages, the prayer did specify
an estimate
- Said amounts were definite enough and enabled the Clerk
to compute the docket fees payable
- Failure to state the rate of interest demanded was not
fatal:
a. It is the courts which ultimately fix the same
b. Rule 141, Sec. 5(a), itemizing the filing fees, speaks of
the sum claimed, exclusive of interest
A final determination is still to be made by the Court
- Fees ultimately found to be payable will either be
additionally paid or refunded
- Rule allows an initial payment of the filing fees
corresponding to the estimated amount of the claim
subject to adjustment as to what later may be proved
Circular No. 7 Applies Only where the Amount of Value of Property
Sought to be Recovered is Determinative of Jurisdiction
As held in Tacay v. RTC of Tagum:
- Circ. No. 7 does not apply where the amount of damages or
value of property is immaterial to the courts jurisdiction
- Where the action is principally in the nature of an accion
publiciana, failure to state the amounts claimed as
damages is not a ground for dismissal
Docket Fee as Determined by Nature of Action
- There are actions or proceedings involving real property,
in which the value of the property is immaterial to the
courts jurisdiction
- There are actions or proceedings involving personal
property for the recovery of money and/or damages, in
which the value of the property or amount is decisive of
trial courts competence
- Note that in RA 7691, MTCs now have jurisdiction over
real actions depending on the assessed value of the real
property
- Where the action is purely for the recovery of money or
damages, docket fees are assessed on the basis of the
aggregate amount claimed, exclusive only of interests and
costs
Two Situations:
1. Where complaint or similar pleading sets out a claim
purely for money or damages and there is no precise
statement of the amounts being claimed
a. Rule: pleading will not be accepted nor admitted, or
shall otherwise be expunged from records
b. Complaint or pleading may be dismissed or claims
may be expunged
 c. Although court may, on motion, permit the
amendment of the complaint and payment of the fees
(1) Provided that claim has not prescribed
2. Where pleading does specify the amount of every claim,
but fees paid were insufficient
a. Court may allow a reasonable time for payment of
prescribed fees or balance
b. Upon such payment, defect is cured and court may
take cognizance of the action
(1) Unless prescription has set in
Actions for Annulment or Rescission of Contract Involving Real
Property
- Where the action involves real property and a related
claim for damages as well, legal fees shall be assessed on
the basis of both:
a. Value of the property; and
b. Total amount of related damages sought
- Where the fees prescribed for an action involving real
property have been paid, but amounts of certain related
damages being demanded are unspecified:
a. Action may not be dismissed; court immediately has
jurisdiction
b. It is not divested with jurisdiction by the
circumstance that it may not have jurisdiction over
the accompanying claims for damages for lack of
specification
c. What should be done?
(1) To expunge those claims for damages to which
no amounts are stated
(2) Or allow a reasonable time for the amendment of
the complaints so as to allege the precise amount
of each
Determination of Nature of Action is Essential to Determine the
Amount of the Docket Fee
- It is necessary to determine the true nature of the
complaint in order to resolve the issue of whether the
correct fees were paid
- Nature of an action is determined by the allegations in the
body of the pleading or complaint itself
- Amount of docket fee is not determinative of the
jurisdiction of the court; but non-payment or insufficient
payment pay prevent courts from acquiring jurisdiction
- Rule 2, Sec. 5(d) where the claims in all such joined
causes of action are principally for the recovery of money,
the aggregate amount claimed shall be the test of
jurisdiction
- Whether or not the different claims for damages are based
on a single cause of action or different causes, it is the total
amount thereof
Jurisdiction may not necessarily be determined by the subject
matter of the action but by the nature of the action
- In ejectment cases, jurisdiction is with the MTC even if the
amount of real property may reach millions
- In eminent domain cases, regardless of the value of the
land, jurisdiction is with the RTC
Yusingco v. Ong
- Jurisdiction over the subject matter means jurisdiction to
hear and determine the general class of cases to which the
proceedings in question belong
- It is the nature of the cause of action and of the relief
sought
19
Docket fee may be based on:
1. Nature of the action
2. Value of the property involved, or
3. Value of the demand
Deficiency in Payment of Docket Fee or Failure to Specify Amount
upon Filing of Complaint Considered Merely as a Lien. Estoppel or
Laches also applied.
1. In assessing docket fee for filing of an action for rescission
of contract, nature of the action is one for rescission and is
incapable of pecuniary estimation (De Leon v. CA)
2. Original Devt Corp. v. CA the fact that the main action
or principal relief sought is for specific performance
and/or rescission is only determinative of jurisdiction in
the sense that regardless of the amount of damages
claimed, case is within the exclusive jurisdiction of the RTC
a. But this does not mean that the separate claims for
damages are exempted from payment of docket fees
3. Where the action for specific performance is for recovery
of property, docket fees should be based on the value of
property sought to be recovered (National Steel Corp v.
CA)
4. In Ruiz v. JM Tuason and Co., an action to execute a deed
of sale in his favor is an action to recover real property and
not for specific performance since the primary objective is
to regain ownership and possession of the land
5. An action for specific performance to execute a deed of
assignment was considered as an action to recover
property rather than for specific performance in National
Steel Corp v. CA so the docket fee was based on the value
of the property sought to be recovered
6. A complaint for cancellation and assignment of sale is an
action to ultimately give plaintiff possession and
ownership of assets and should be the basis of the filing
fee
When the corresponding docket fee for damages in the original
complaint was properly paid, court does not lose jurisdiction over
amended complaint increasing the amount of damages even if
corresponding docket fee for increase was not paid
- Unpaid docket fee is considered a lien on judgment
Effect of Failure to Specify Sum of Exemplary Damages Where Action
is Not Purely for Damages
- Sps. Belen Gregorio v. Angeles an action for sum of
money; failure of complaint to specify the sum of
exemplary damages does not warrant dismissal of
complaint
- Ayala Corporation v. Judge Madayag action for specific
performance with damages; plaintiff did not pay docket fee
and did not specify amount of exemplary damages both in
the body and prayer
a. Motion to dismiss on the ground of jurisdiction was
denied
b. The RTC was directed either to expunge from the
records the claim for exemplary damages or, upon
motion, give reasonable time to amend pleading and
pay (within the reglementary and prescriptive
period)
- In PAL v. CA entitlement to moral damages having been
established, exemplary damages may be awarded even
though not expressly pleaded
Sec. 3(1), RA 7691, amending Sec. 33 of BP 129 defining the
exclusive original jurisdiction of the MTC over civil actions, interest,
damages of whatever kind, attorneys fees litigation expenses, and
costs must be specifically alleged and shall be included in the
determination of the filing fees
Under RA 7691, incidental damages of whatever kind are not
included in the determination of the jurisdiction of the court, but the
law requires that the amount thereof be specified in the complaint
Payment of Docket Fee is Required even if Motion for Attorneys
Fees is filed as an Incident in Special Proceedings
- A motion for attorneys fees is in the nature of an action
commenced by a lawyer against his clients for attorneys
fees
- Lacson v. Reyes it may be true that the claim for
attorneys fees was but an incident in the main case still, it
is not an escape from the payment of docket fees
a. In all actions, whether separate or as an offshoot,
payment of docket fees is mandatory
- Pascual v. CA no docket fee is required where claim for
attorneys fees was not in the nature of an action
commenced by a lawyer against his client, but in the form
of a claim against the estate
Defense of Good Faith
- Timely filing of correct docket fees is jurisdictional
- Pronouncements of the court on the matter have always
been influenced by the peculiar legal and equitable
circumstances surrounding each case (Yuchengco v.
Republic)
Payment of docket fees is required in civil actions filed in the
Sandiganbayan (Yuchencgo v. Republic) but no docket fee is
required for a counter-petition (San Miguel Corp. v.
Sandiganbayan)
Estoppel to Question Jurisdiction for Non-Payment of Docket Fee
In Maersk Tabacalera Shipping v. CA
- An action for damages; SC refused to apply Manchester
- In Manchester, the jurisdictional issue arising from
insufficiency of docket fees paid was seasonably raised in
the answer of the defendant in the trial court
- In this case, issue of jurisdiction was being raised for the
first time in the SC
- A party who voluntarily participates in the trial court
cannot later on raise the issue of the courts lack of
jurisdiction
- Since this is a case where some of the claims for moral and
exemplary damages were not specified in the plaintiffs
pleading, the applicable rule is the 3rd rule set out in Sun
Insurance
Significance of Absence of Intent to Defraud
- In the determination of whether or not plaintiff may be
permitted to amend his complaint to specify the amounts
claimed and pay the unpaid balance of the prescribed
docket fee, absence of intent to defraud the Government in
payment of filing fees plays a significant role
- Sps. Belen Gregorio v. Angeles Manchester involved
clearly an effort to defraud the government, and so resort
to its ruling must be justified by a showing of a prior
attempt to cheat the court
Additional Filing Fee as Lien on the Judgment
- Fees as lien = see Sec. 2, Rule 141
- Filing fees for damages and awards that cannot be
estimated constitute liens on the awards finally granted by
the court
20
- Judgment awards which may be proved during trial would
still be subject to additional filing fees which shall
constitute a lien on the judgment
Applicable Rule
- Sec. 5(a), Rule 141 defines two kinds of claims:
1. Those which are immediately ascertainable
2. Those which cannot be immediately ascertained as to
the exact amount
- The 2nd class of claims, where exact amount still has to be
finally determined by the courts, falls under 3 rd par. Of Sec.
5(a)
- An initial payment of docket fees based on an estimated
amount must be paid simultaneous with the filing of the
complaint
Payment of Docket Fee to Acquire Jurisdiction
The court in Ballatan v. CA summarized different
principles for the court to acquire jurisdiction upon payment of
docket fee:
1. When an action is filed in court, complaint must be
accompanied by the payment of the requisite docket and
filing fees
2. In real actions, docket and filing fees are based on the
value of the property and the amount of damages claimed,
if any
3. If complaint is filed but the fees are not paid at the time of
filing, court acquires jurisdiction upon full payment of fees
within a reasonable time as the court may grant, barring
prescription
4. Where fees prescribed for real action have been paid but
the fees of certain related damages are not, the court,
although having jurisdiction over the real action, may not
have acquired jurisdiction over the accompanying claim
for damages
5. Accordingly, the court may expunge those claims for
damages, or allow, on motion, a reasonable time for
amendment of the complaint so as to allege the precise
amount of damages and accept payment of the requisite
legal fees
6. If there are unspecified claims, the determination of which
may arise after the filing of the complaint or similar
pleading, the additional filing fee thereon shall constitute a
lien on the judgment award. The same rule applies to 3rd
party claims and other similar pleadings
Election Protests; Payment of Full Amount of Filing Fees
- Before, it was held that election laws and rules are to be
interpreted and applied in a liberal manner so as to give
effect, not to frustrate, the will of the electorate
- But in Gonzales v. COMELEC - the complaint was
dismissed on grounds of prescription since the fees were
belatedly paid
- In Pahilab v. Tabalba, court reverted to the previous
doctrine and held en banc that there are strong and
compelling reasons to rule that the doctrine established in
Manchester cannot be made to apply to election cases
- But in Miranda v. Castillo Court in an en banc decision
reiterated the caveat in Loyola v. COMELEC that the court
would no longer tolerate any mistake in the payment of
the full amount of the filing fees for election cases filed
after the promulgation of the Loyola decision on March 25,
1997
 SECTION 6 - Construction.These Rules shall be liberally Impairment of Vested Rights
construed in order to promote their objective of securing a just, - Rule does not apply where the statute itself expressly or
speedy and inexpensive disposition of every action and by necessary implication provides that pending actions are
proceeding. excepted from its operation or where to apply it to
pending actions would impair vested rights
Liberal Construction
- Rules of procedure should be viewed as mere tools
designed to aid Courts in the speedy, just and inexpensive END OF RULE 1
determination of cases before them
- Liberal construction of the rules and the pleadings is the
controlling principle to effect substantial justice
- Departures from procedure may be forgiven where they
do not appear to have impaired substantial rights of
parties
- There are reasonable delays which are necessary in a good
administration of justice
- It is well settled that litigation should, as much as possible,
be decided on their merits and not on technicalities

GENERAL RULE: Liberal construction

EXCEPTIONS:
1. Reglementary periods
2. Rule on forum shopping
3. Service of summons

Reasons which would warrant the suspension of the rules:

1. The existence of special or compelling circumstances
2. The merits of the case
3. A cause not entirely attributable to the fault or negligence
of a party favored by the suspension of rules
4. A lack of any showing that the review sought is merely
frivolous and dilatory
5. The other party will not be unjustly prejudiced thereby

Liberal Interpretation of Pleadings To avoid possible denial of

substantive justice due to legal technicalities, pleadings as well as
remedial laws should be liberally construed so that the litigants may
have ample opportunity to prove their respective claims

Rules of Procedure are not Mere Technicalities

- Rules of procedure are tools designed to promote
efficiency and orderliness as well as to facilitate
attainment of justice, such that strict adherence thereto is
required
- Application of the rules may be relaxed only when rigidity
would result in a defeat of equity and substantial justice

Rules of Procedure Generally Cannot be Changed by Parties

- Rules of procedure are matters of public interest and
cannot be changed by agreements of the parties (Banco
Espanol-Filipino v. Palanca)
- On the other hand, there are matters of procedure which
may be waived if public interest is not affected thereby

Retroactive Application of Rules

- Retroactive application of procedural laws is allowed to
actions pending and undetermined at the time of their
passage
- Procedural laws are retrospective in that sense and to that
extent

Amendatory Acts
- The general rule is that an amendatory act, every case of
doubt must be resolved against its retroactive effect
- Since retroactive application of a law usually divests rights
already vested

21
NOTES ON RULE 1

22
NOTES ON RULE 1

23

RULE 2
CAUSE OF ACTION
SECTION 1 - Ordinary civil actions, basis of.Every ordinary civil
action must be based on a cause of action. (n)
NOTE: The law on jurisdiction, rules on venue, prescription,
defenses against the action, payment of the docket fee and service of
summons depends on the nature of the action
KINDS OF ACTION
1. Civil or Criminal
a. Civil one by which a party sues another for the
enforcement or protection of a right, or the
prevention or redress of a wrong
b. Criminal one by which the State prosecutes a
person for an act or omission punishable by law
2. Ordinary or Special both are governed by the rules of
ordinary civil actions, subject to the specific rules
prescribed for a special civil action
a. Special
b. Ordinary may be classified as:
(1) As to place
(a) Transitory action founded on privity of
contract between parties; brought in the
place where the party resides
(b) Local action founded on privity of estate
only and there is no privity of contract;
brought in a particular place
(2) As to object or against which the action is
directed, actions may be classified as:
(a) In personam;
(b) In rem; or
(c) Quasi in rem
(3) As to cause or foundation
(a) Real, or
(b) Personal
Real Action is that founded on privity of real estate and seeks to
recover a specific real property or its possession
Personal Action that founded on privity of a contract or recovery of
personal property or damages
- One brought for the recovery of personal property,
enforcement of some contract or recovery of damages
- A personal action may be:
1. Incapable of pecuniary estimation jurisdiction lies
with the RTC
2. Capable of pecuniary estimation jurisdiction would
depend on the value of the demand or personal
property involved
Example:
1. Action for breach of covenant of a lease
a. It is a personal action
b. Although damages to real estate may be sought, such
claim is only incidental to the breach
2. Action by lessee of a rice land against buyer to recover
possession of real property
a. It is a real action
24
b. Jurisdiction depends on the value and location of the
property
Action in Personam
- Technical object of the suit is to establish a claim against
some particular person
- With a judgment which generally, in theory, binds his
body, or to bar some individual claim or objection, so that
only certain persons are entitled to be heard in defense
Action in Rem
- Object is to bar indifferently all who might be minded to
make an objection of any sort against the right sought to
be established
- If anyone in the world has a right to be heard on the
strength of alleging facts, which if true, show an
inconsistent interest, proceedings is in rem
Action Quasi in Rem
- Proceedings which not strictly and purely in rem
- But are brought against a defendant personally
- Although the real object is to deal with a particular
property or subject it to discharge of claim asserted
therein
- Jurisdiction over person of defendant is not necessary;
summons is required only for due process
Notes:
- Aim and object of the action determines its character
- Whether a proceeding is in rem, in personam, or quas in
rem, is determined by its nature and purpose
- Only a complaint for forcible entry is a real action and in
personam (Domagas v. Jensen)
Illustrations:
1. Proceedings having for their sole object the sale of
property of defendant (e.g. foreclosure or attachment)
a. These are actions quasi in rem
b. Judgment is conclusive only between parties
2. Action for partition under Rule 69
a. It is a real action
b. It is in the nature of an action quasi in rem
c. Action is essentially for the purpose of affecting the
defendants interest in a specific property
3. Action intended to exclude a non-resident defendant from
any right or interest in property
a. Action quasi in rem
4. Annulment of marriage
a. Action affecting civil status action in rem
b. Status affects or binds the whole world
c. The res is the relation between the parties or their
marriage
5. Action to review the decision of a Secretary
a. An action in personam
b. Even if it involves real property
6. Action for enforcement of a maritime lien
a. Action quasi in rem
7. Insolvency proceedings
a. Similar to the settlement of a decedents estate
b. Proceeding in rem and is binding against the whole
world
Distinctions Between Actions in Personam, In Rem, Quasi in Rem
1. Action in personam is in an action against a person on the
basis of his personal liability
2. Action in rem is an action against the thing itself
3. Real action is not the same as an action in rem; personal
action is not the same as an action in personam
 4. Real action may be at the same time an action in personam
and not necessarily an action in rem
a. E.g. action to recover property is a real action but in
personam that binds only that particular individual
5. Actions to remove clouds from title to real property
a. Governed by Art. 476 to 481 and Rule 64 on
Declaratory Relief
b. These are quasi in rem
c. Judgment in such proceedings is conclusive only
between parties
d. Since action affects title to or possession of real
property, they are real actions
Justice Callejo Sr.s discussion in Domagas v. Jensen
- A proceeding in personam is a proceeding to enforce
personal rights and obligations brought against the person
and is based on the jurisdiction of the person
- Purpose of a proceeding in personam is to impose, through
judgment, some responsibility or liability directly upon the
person of the defendant
- An action in personam is said to be one which has for its
object a judgment against the person, as distinguished
from a judgment against the property
- A proceeding quasi in rem is one brought against persons
seeking to subject the property of such persons to the
discharge of claims assailed
- In an action quasi in rem, an individual is named as
defendant and the purpose of the proceeding is to subject
his interests therein to the obligation burdening the
property
- Actions quasi in rem deal with the status, ownership, or
liability of a particular property but which are intended to
operate on only as between the particular parties
Nature of Action Determines Jurisdiction
- For purposes of jurisdiction, actions are classified as to
whether or not the case is capable of pecuniary estimation
- If it is incapable, it falls under the exclusive original
jurisdiction of the RTC
- In such case, the docket fee is a flat rate
WHEN CAPABLE OF PECUNIARY ESTIMATION
From BP 129, as amended by RA 7961, what must be determined to
be capable or incapable of pecuniary estimation is not the cause of
action, but the subject matter of the action
- The subject matter of the action is the physical facts, the
thing real or personal, the money, lands, chattels, and the
like, in relation to which the suit is prosecuted, and not the
delict or wrong committed by defendant
Example: Action for damages based on quasi-delicts
- This is primarily and effectively an action for recovery of
the sum of money for damages suffered
- Damages claimed is the principal relief sought and is not
merely incidental thereof
If it is capable of pecuniary estimation, jurisdiction will depend on
the value of the demand exclusive of interests, damages of whatever
kind, attorneys fees, litigation expenses and costs, or value of the
property in controversy.
- Other form of damages even if not essential for purposes
of jurisdiction must be specified in the filing fees
- Amount of docket fee is not determinative of jurisdiction;
But non-payment or insufficiency of payment may prevent
courts from acquiring jurisdiction
25
Actions are also classified for purposes of venue
- Depend on whether or not the action is personal or real
- Regardless of the value of the property
GENERAL RULE: The facts alleged in the complaint as constituting
the cause of action and not those averred as defense in defendants
answer determines the nature of the action and consequently the
jurisdiction of the court
- Even without the prayer for a specific remedy, proper
relief may nevertheless be granted if the facts alleged in
the complaint and evidence introduced so warrant
- Nature of an action is determined by the body of the
pleading or complaint itself; not the title or caption
Examples:
1. Prayer for annulment or rescission of sale does not
operate to efface the prime objective and nature of the
action which is recovery of real property and is thus a real
action
2. If it is alleged that contract is breached and the party is
asking for rescission and return of the property, the action
is an action for recovery of the possession of the land
3. Action for specific performance to execute a deed of
assignment transferring stock certificates was considered
an action to recover property rather than specific
performance
For purposes of Jurisdiction, Actions are classified into actions that
are incapable of pecuniary estimation and those that are capable of
pecuniary estimation involving real and personal property
Ascertain the nature of the principal action or remedy
sought:
1. If it is primarily for the recovery of a sum of money, it is
capable of pecuniary estimation
2. Where the basic issue is something other than the right to
recover a sum of money or is purely incidental to or as a
consequence of the principal relief sought like specific
performance, action for support or for annulment of
judgment, it is not capable of pecuniary estimation
SECTION 2 - Cause of action, defined.A cause of action is the act
or omission by which a party violates a right of another.
CAUSE OF ACTION, RIGHT OF ACTION
Cause of Action Defined
- Sec. 2, Rule 2 provides for the statutory definition
- Rebollido v. CA a cause of action is defined as an act or
omission of one party in violation of the legal right of the
other which causes the latter injury
Elements:
1. Existence of a legal right in plaintiff
2. A correlative legal duty of defendant to respect ones right;
and
3. An act of omission of the defendant in violation of
plaintiffs right with a consequential injury or damage to
the plaintiff for which he may maintain an action for the
recovery of damages or other appropriate relief
Note: there must be damnum et injuria
Damnum absque injuria:
- Custodio v. CA the mere fact that plaintiff suffered losses
does not give rise to a right to recover damages
- wrong without damages, or damage without wrong, does
not constitute a cause of action
 - in order that the law will give redress for an act causing CONDITIONS PRECEDENT
damage, that act must not only be hurtful, but wrongful
A cause of action does not accrue until the party obligated refuses, Failure to comply with a condition precedent is a ground for a
expressly or impliedly, to comply with his duty (Summit Guaranty motion to dismiss (Rule 16, Sec. 1(j))
and Insurance v. De Guzman)
This will determine the reckoning date of the period of EXHAUSTION OF ADMINISTRATIVE REMEDIES
prescription (Texton Manufacturing v. Millena)
- Exhaustion of administrative remedies stands as a bar to a
Cause of Action or Lack of it Does Not Affect Jurisdiction judicial review of administrative agencies made in the
A cause of action or the lack of it does not affect the exercise of their quasi-judicial function
authority of the court to hear and decide a given case, if the court has - Failure to do so results in the absence of a cause of action
jurisdiction over its subject matter, over the parties therein, and in - Non-exhaustion is not jurisdictional
an action in rem, over the res. a. It only renders the action premature (claimed cause
of action is not ripe for judicial determination)
Right of Action right to commence and prosecute an action to b. The motion to dismiss must then be understood to be
obtain the relief sought based on:
(1) Lack of jurisdiction, and
Right of Action Distinguished from Cause of Action (2) Lack of cause of action for failure to exhaust
- they have been held to be synonymous administrative remedies
- but in Code Pleading, one is distinguished from the other:
a. Right of action remedial right belonging to some When Exhaustion of Administrative Remedies is Required
person; a matter of right and depends on substantive - If a remedy within the administrative machinery can still
law he had by giving the administrative officer concerned
b. Cause of action formal statement of the operative every opportunity to decide on a matter that comes within
facts that give rise to such remedial right; a matter of his jurisdiction, then such remedy should be priorly
statement and is governed by procedural law exhausted before the courts judicial power is invoked
- Right of action springs from the cause of action - Reason for principle:
a. But it does not accrue until all facts which constitute a. Sound practice and policy
the cause of action have occurred b. Ensures an orderly procedure which favors a
b. There can be no right of action until there has been a preliminary sifting process
wrong a violation of a legal right c. Avoidance of interference with functions of the
administrative agency
Elements of a Right of Action d. Prevention of attempts to swamp the courts by a
1. The existence of a cause of action resort to them in the first instance
2. The performance of all conditions precedent to the
bringing of the action Note: Exhaustion of Administrative Remedies refers ONLY to quasi-
3. The right to bring and maintain the action must be in the judicial functions
person instituting it - It does not apply to a resolution issued by an
administrative body in the exercise of its rule-making or
Note: All valid conditions precedent to the institution of a particular legislative power
action, whether prescribed by statute, fixed by agreement of the - Only judicial review of decisions of administrative
parties, or implied by law must be performed or complied with agencies made in the exercise of their quasi-judicial
before commencing the action function is subject to the exhaustion doctrine
Unless the conduct of the adverse party has been such as - E.g. in questioning the validity or constitutionality of a
to prevent or waive performance or excuse non-performance of the rule or regulation issued by an administrative agency, a
condition party need not exhaust administrative remedies before
going to court
Cause of Action v. Right of Action
When Exhaustion of Administrative Remedies not Necessary
CAUSE OF ACTION RIGHT OF ACTION The doctrine is a relative one and its flexibility is called
Remedial right or right to relief upon by the peculiarity and uniqueness of the factual and
Delict or wrongful act or circumstantial setting of the case (Paat v. CA)
granted by law to a party to
omission committed by Exhaustion of remedies are not necessary:
institute an action against a
defendant in violation of the 1. Where the questions involved are purely judicial or a legal
person who has committed a
primary rights of plaintiff one (Limoco v. PVA)
delict or a wrong against him
The remedy or means afforded 2. When the controverted act is patently illegal or was
The reason for the action performed without jurisdiction or in excess of jurisdiction
or the consequent relief
The formal statement of the The remedial right given to a (Brett v. IAC)
operative facts that give rise person because of the 3. Where respondent official acted in utter disregard of due
to a remedial right occurrence of the alleged facts process (Triste v. Leyte State College Board)
A matter of procedure and 4. When it does not provide a plain, speedy, and adequate
A matter of right and depends remedy (Laganapan v. Elpidio Asedillo)
depends on the pleadings
on substantive law 5. When its application may cause great and irreplaceable
filed by the parties
Not affected by affirmative Affected by affirmative damage (Tesorero v. Mathay)
defenses defenses 6. When the insistence in its observance would result in the
nullification of the claim being asserted
7. When the respondent is a Department Secretary, whose
acts as an alter ego of the President bears the implied or

26
 assumed approval of the latter unless actually disapproved
by him (Demaisip v. CA)
8. Where there are circumstances indicating the urgency of
judicial intervention (Cuevas v. Pineda)
9. When there is estoppel on the part of the administrative
agency concerned (Vda. De Tan v. Veterans Backpay
Division)
10. When to require administrative remedies would be
unreasonable (Cipriano v. Marcelino)
11. When the subject matter is a private land in land case
proceedings (Soto v. Jareno)
12. Exhaustion of administrative remedies may also be
considered waived if there is a failure to assert it for an
unreasonable length of time (Republic v. Sandiganbayan)
13. A civil action for damages may, however, proceed
notwithstanding the pendency of an administrative action
(Esuerte v. CA)
14. When the claim involved is small
15. When strong public interest is involved; and
16. In quo warranto proceedings (Castro v. Gloria)
Failure to exhaust administrative remedies does not affect
jurisdiction of the court
- Failure to observe this doctrine only deprives the
complaint of a cause of action which is a ground for a
motion to dismiss
- If not invoked in proper time, ground is deemed waived
and court can take cognizance of the case and try it
OTHER CONDITIONS PRECEDENT
1. Investigation by a fiscal is a prerequisite to annulment of
marriage when defendant defaults (Tolentino v.
Villanueva)
2. No suit shall be filed or maintained between members of
the same family unless it should appear that earnest
efforts at compromise have been made but that the same
have failed. (Art. 222; Versoza v. Versoza)
ARBITRATION AS CONDITION PRECEDENT
Rule: Where there is an agreement to arbitrate as a condition
precedent to court of action and one party puts up a claim which the
other disputes, the need to arbitrate is imperative
- Arbitration agreements are valid, binding, enforceable, and
not contrary to public policy such that when there obtains
a written provision for arbitration which is not complied
with, trial court should suspend the proceedings and order
the parties to proceed to arbitration in accordance with
the terms of the agreement
Advantages of Arbitration
1. Expeditious determination of a dispute
2. Lawyers fees can be saved or lessened as arbitration
proceedings are shorter than court trials
3. Private arbitration costs the public nothing, and parties
and witnesses become less tense and nervous as
proceedings are conducted in private
4. Arbitration being private and more informal than court
trials, there is more possibility of amicable settlement
5. There is a quick determination of the dispute, thus
avoiding the situation of an award that has less purchasing
power than the amount due him because of inflation
Some Laws on Arbitration
1. RA 876 The Arbitration Law under this law two or
more persons or parties may submit to the arbitration of
one or more arbitrators any controversy existing between
them at the time of the submission and which may be the
27
subject of an action, or the parties to any contract may in
such contract agree to settle by arbitration a controversy
thereafter arising between them
2. Construction Industry Arbitration Commission
a. Has exclusive and original jurisdiction over
construction disputes pursuant to Sec. 49, EO 1008
b. Sec. 1, Art III, of the new Rules of Procedure
Governing Construction Arbitration has dispensed
with the requirement of request
c. Recourse to the CIAC may now be availed of
whenever a contract contains a clause for the
submission of future controversy to arbitration
d. There is no more need to file a request with the CIAC
in order to vest it with jurisdiction
3. RA 9285 Alternative Dispute Resolution Act of 2004
Where Arbitration Clause Not Applicable
1. Even if there is an arbitration clause, there are instances
when referral to arbitration does not appear to be the
most prudent action
2. Where the panel of arbitrators is bereft of jurisdiction over
the complaint because the issue is judicial (e.g. issues on
the validity of the contract)
Barangay Conciliation (Katarangung Pambarangay)
- Source: Local Government Code of 1991
- The lupon of each barangay shall have authority to bring
together the parties actually residing in the same city or
municipality for amicable settlement of all disputes,
except:
1. Where one party is the government or any
subdivision or instrumentality thereof
2. Where one party is a public officer or employee, and
the dispute relates to the performance of his official
functions
3. Offenses punishable by imprisonment exceeding 1
year or a fine exceeding P5,000
4. Offenses where there is no private offended party
5. Where the dispute involves real properties located in
different cities or municipalities unless the parties
thereto agree to submit their differences to amicable
settlement by an appropriate lupon
6. Disputes involving parties who actually reside in
barangays of different cities or municipalities, except
where such barangay units adjoin each other and the
parties thereto agree to submit their differences to
amicable settlement by an appropriate lupon
7. Such other classes of disputes which the President
may determine in the interest of justice or upon the
recommendation of the Secretary of Justice
Note: no complaint, petition, action, or proceeding involving any
matter within any matter within the authority of the lupon shall be
filed or instituted directly in court or any other government office
for adjudication, unless there has been a confrontation between the
parties before the lupon chairman or the pangkat, and that no
conciliation or settlement has been reached as certified by the lupon
secretary or pangkat secretary as attested to by the lupon chairman
or pangkat chairman or unless the settlement has been repudiated
by the parties thereto.
Parties may go directly to court in the following instances:
1. Where the accused is under detention
2. Where a person has otherwise been deprived of personal
liberty calling for habeas corpus proceedings
3. Where actions are coupled with provisional remedies such
as preliminary injunction, attachment, delivery of personal
property, and support pendent lite; and
 4. Where the action may otherwise be barred by the statute
of limitations
Conciliation among Members of Indigenous Cultural Communities
- Customs and traditions of indigenous cultural
communities shall be applied in settling disputes between
members of cultural communities
- The NCIP, through its regional offices, shall have
jurisdiction over all claims and disputes involving the
rights of the ICCs/IPs
- Provided, however, that no such dispute shall be brought
to the NCIP unless the parties have exhausted all remedies
under their customary laws
RELIEF, REMEDY, SUBJECT MATTER
Relief The redress. Protection, award or coercive measure which
the plaintiff prays the court to render in his favor as consequence of
the delict committed by defendant
Remedy The procedure or appropriate legal form of relief of action
which may be availed of by the plaintiff as the means to obtain
desired relief
Subject Matter The thing, wrongful act, contract, or property which
is directly involved in the action, concerning which the wrong has
been done and with respect to which the controversy has arisen
SECTION 3 - One suit for a single cause of action.A party may
not institute more than one suit for a single cause of action.
SECTION 4 - Splitting a single cause of action; effect of.If two or
more suits are instituted on the basis of the same cause of action,
the filing of one or a judgment upon the merits in any one is
available as a ground for the dismissal of the others.
SPLITTING OF CAUSE OF ACTION
Splitting a Cause of Action the act of dividing a single cause of
action, claim, or demand into two or more parts, and bringing suit
for one of such parts only, intending to reserve the rest for another
separate action
Remedy: Where a single cause of action has been split, the remedy of
defendant is to:
1. Move to dismiss under Rule 16 on the grounds of:
a. Litis pendentia when there is another action
pending between the same parties for the same cause
b. Res judicata if the first action has already been
finally terminated
2. An answer alleging either of the aforementioned grounds
as affirmative defense
Scope of Rule The rule against splitting a single cause of action
applies not only to complaints but also to counterclaims and cross-
claims.
This may be set up either by motion to dismiss or by
affirmative defense on the ground of pendency of another action
between the same parties for the same cause or bar by prior
judgment
Purpose it is intended:
1. To prevent repeated litigation between the same parties in
regard to the same subject of controversy;
2. To protect defendant from unnecessary vexation
3. To avoid the costs and expenses incident to numerous
suits
28
Nemo debet bis vexare pro una et eadem causa (no man shall be
twice vexed for one and the same cause)
Re-statement of Principle: Where there is only one delict or wrong,
there is but a single cause of action regardless of the number of
rights violated belonging to one person
What is Prohibited
- Note that a single right might give rise to more than one
relief
- It is the filing of separate complaints for those several
reliefs that constitutes splitting up of the cause of action
- The other case may be dismissed either on the ground:
1. Of litis pendentia (Sec. 1(e), Rule 16); or
2. Of res judicata (Sec. 1(f), Rule 16)
Test of Singleness of Action
The test of singleness of cause of action lies in the
singleness of the delict or wrong violating the rights of one person.
- A single delict or wrong may consist of a single act or
series of acts of a single transaction or series
- As held in City of Bacolod v. San Miguel Brewery:
1. A single act or omission can be violative of various
rights at the same time
a. As when the act constitutes juridically a
violation of several separate and distinct legal
obligations
b. Violation of each of these rights is a cause of
action in itself
2. Several acts or omissions may violate one right
a. In this case, there would be only one cause of
action
3. A violation of a single right may give rise to more than
one relief
a. So for a single cause of action or violation of a
right, the plaintiff may be entitled to several
reliefs
b. It is the filing of separate complaints for these
several reliefs that constitutes splitting up of the
cause of action
Rules on Actions Ex-Contractu
1. For a single and indivisible contract
a. Only one cause of action arises from a single breach
or several breaches of a single and indivisible
contract
b. All damages claimed by reason thereof must be
secured in a single action
2. For contracts providing for several obligations
a. A contract providing for several obligations to be
performed at different times gives rise to a single and
independent cause of action for each obligation that
is not performed at the proper time
b. If upon the filing, several obligations have already
matured, all of them shall be considered as
integrating into a single cause of action and must be
included in the complaint, otherwise, those not
included are barred forever
Other Cases
1. Separate contracts to be performed on separate occasions
gives rise to several causes of action
2. Non-payment of a note secured by a mortgage, creditor
has a single cause of action against debtor
a. Single cause of action is the recovery of credit with
the execution of the security
b. Creditor may make his demands of payment and
foreclosure but both arise from the same cause which
is the non-payment of debt
 3. Only one cause of action for a single breach of an
obligation which cannot be split into 2 separate actions
4. A mortgage creditor may not institute against the
mortgage debtor either a personal action for debt or a real
action to foreclose
a. He may pursue either of the two but not both
5. Caltex Phils. Inc. v. IAC plaintiff cannot split his single
cause of action by filing a complaint for payment of debt
and thereafter a complaint for foreclosure; this will in
effect be authorizing plural redress for a single contractual
breach
Limitations of the Rule
1. A cause of action is not made different by merely changing
the form of action (Marsteel v. Lawin Security Services)
2. The rule against splitting a cause of action applies only
where the action lies between the same parties (Itogon
Suyoc Mines v. Sangil-Itogon Workers Union)
3. Where the nature of relief is cognizable by different
tribunals, the rule is not violated
GENERAL RULE: A contract embraces only one cause of action even
if it contains several stipulations
EXCEPTION: A contract to do several things at several times is
divisible, and judgment for a single breach of a continuing contract is
not a bar to a suit for subsequent breach
EXCEPTION TO THE EXCEPTION: All obligations which have
matured at the time the suit must be integrated as one cause of
action in one complaint, and those not included would be barred
DOCTRINE OF ANTICIPATORY BREACH: An unqualified and positive
refusal to perform a contract, though performance thereof is not yet
due, may, if renunciation goes into the whole contract, be treated as
a complete breach which will entitle the injured party to bring his
action at once
Actions to Recover Real Property
In actions to recover real property, one does not
necessarily bar the other depending on the nature of the action.
1. A judgment in an accion publiciana is not a bar to an action
to compel defendant to execute a deed of sale
a. Judgment is only as to who of the parties had a better
right to possess
2. In De Luzuriaga v. Adil where both action to quiet title
and forcible entry is anchored on ownership, forcible entry
case was dismissed
Rules in Actions Ex-Delicto
1. A single tort gives rise but to one cause of action no matter
how many items of damages may have been caused to one
person
2. When by a single delict or wrong, several rights are
violated belonging to different persons, several causes
arise on behalf of such persons
3. When there are separate tortuous acts resulting in
different injuries, separate causes of action arise and
several actions may be maintained
4. But if only one injury resulted from several wrongful acts,
only one cause of action arises. Double recovery for the
same act or omission is prohibited.
Rule Against Double Recovery
- A cause of action is understood to be the delict or wrongful
act or omission committed by the defendant in violation of
the primary rights of the plaintiff
29
- Where there is only one delict or wrong, there is but a
single cause of action regardless of the number of rights
that may have been violated belonging to one person
- Singleness of a cause of action lies in the singleness of the
delict or wrong violating the rights of one person
- A recovery by petitioner under one remedy necessarily
bars recovery under the other
- This prohibition stems from the fundamental rule against
unjust enrichment
Examples:
1. Only one suit for recovery of real property and damages
may be filed
2. In ejectment cases:
a. Only rentals or reasonable value for the use and
occupation of the premises are recoverable
b. Other damages must be recovered in a separate
action (Felisilda v. Villanueva)
3. Illegally dismissed employees have only one cause of
action (Primero v. IAC)
SECTION 5 - Joinder of causes of action.A party may in one
pleading assert, in the alternative or otherwise, as many causes of
action as he may have against an opposing party, subject to the
following conditions:
(a) The party joining the causes of action shall comply with
the rules on joinder of parties;
(b) The joinder shall not include special civil actions or
actions governed by special rules;
(c) Where the causes of action are between the same
parties but pertain to different venues or jurisdictions,
the joinder may be allowed in the Regional Trial Court
provided one of the causes of action falls within the
jurisdiction of said court and the venue lies therein;
and
(d) Where the claims in all the causes of action are
principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction.
A joinder of causes of action is the uniting of two or more demands
or right of action in a complaint.
The rule in Sec. 5 is purely permissive and the plaintiff can always
file separate actions for each cause of action (Baldovir v. Sarte)
SPLITTING OF CAUSES JOINDER OF CAUSES
There is a single cause of Contemplates several causes
action of action
Prohibited Encouraged
It causes multiplicity of suits It minimizes multiplicity of
and double vexation on part of suits and inconvenience on the
defendant parties
Section 5 presupposes:
1. That the different causes of action which are joined accrue
in favor of the same plaintiff/s and against the same
defendant/s; and
2. That no misjoinder of parties is involved
Discussion of Justice Feria in Flores v. Mallare-Philipps
The Rule liberalizes the 1964 rule on the requisite of
permissive joinder of causes of action by limiting the condition as
follows:
1. The first condition is based on the ruling in Flores v.
Mallare-Philipps
2. The reason for the 2nd condition is that the special civil
action may be governed by a different rule
 3. Under the 3rd condition, if one cause of action falls within
the jurisdiction of the RTC and the other with the MTC, the
action shall be filed in the RTC
a. If the causes of action have different venues, they may
be joined in any of the courts of proper venue
4. Under the 4th condition, the totality of the principal claims
for money determines which court has jurisdiction
Under Sec. 5(a)
- It is a requirement that the joinder of causes of action shall
comply with the rule on joinder of parties
- As such, under Sec. 6, Rule 3, it is necessary that the right
of relief from said causes of action:
1. Should arise out of the same transaction or series of
transactions; and
2. A question of law and fact common to all plaintiffs or
defendants may arise in the action
Under Sec. 5(b)
- Only causes of action in ordinary civil actions may be
joined since they are subject to the same rules
- Special civil actions or actions governed by special rules
should not be joined with ordinary civil actions so as to
avoid confusion:
1. In the conduct of the proceedings
2. As well as in the determination of the presence of the
requisite elements of each cause of action
Under Sec. 5(c) and (d)
- These paragraphs determine which court will have
jurisdiction over the action wherein several causes of
action have been joined
- The aggregate or totality rule applies only where:
1. The claims are principally for sums of money
2. Said claims for money must arise out of the same
transaction or series of transactions wherein a
question of law or fact common to the parties may
arise in the action
Tests to Determine Joinder of Causes of Action
1. Question of the joinder of causes of action involves in
particular cases a preliminary inquiry as to whether two
or more causes of action are alleged
2. In declaring whether more than one cause of action is
alleged, the main thrust is whether more than one primary
right or subject of controversy is present
3. Whether recovery on one ground would bar recovery on
the other
4. Whether the same evidence would support the other
different counts
5. Whether the same evidence be maintained for separate
relief,
6. Whether more than one distinct primary right or subject of
controversy is alleged for enforcement or adjudication
Note: Distinguish a single cause of action from several causes of
action
- A cause of action may be single although the plaintiff seeks
a variety of remedies
- If the allegations of the complaint show one primary right
and one wrong, only one cause of action is alleged even
though other matters are incidentally involved
- When two or more primary rights and wrongs appear,
there is a joinder of causes of action
Incidental claims to main action are not separate cause of action
30
Unity of Problems
- The absence of unity of problems is no longer a bar to a
joinder of causes of action under Sec. 5, Rule 2
- The provision removed the restriction of venue,
jurisdiction, and causes of action arising from money, the
same nature or character or similar transactions
- The only grounds to refuse joinder of causes of action are:
1. The rules on joinder of parties, which require:
a. That the claims arise from the same or series of
transactions and
b. That there is a common question of law and fact
2. It must not be cognizable by different tribunals
3. Joinder of ordinary and special civil actions
- But the presence of unity of problems is not by itself a
sufficient ground for joinder of causes of action, where the
separate causes of action are cognizable by different
tribunals
The joinder of causes of action may involve the same person or
different parties
- If the joinder involves different parties, there must be a
question of fact or of law common to both parties joined,
arising out of the same transaction
Joinder of causes is Permissive
- The rule is permissive, not obligatory
- There is no positive provision of law or any rule of
jurisprudence which compels a party to join all his causes
of action and bring them at one and the same time
- Plaintiff MAY, and not that he MUST
Totality Rule
Under Sec. 33, BP 129 where there are several claims or
causes of action between the same or different parties embodied in
the same complaint, the amount of the demand shall be the totality
of the claims in all causes of action, irrespective of whether the
causes of action arose out of the same or different transactions
Application of Totality Rule
1. In actions where the jurisdiction of the court is dependent
on the amount involved, test of jurisdiction shall be the
aggregate sum of all money demands
a. Exclusive only of interest and costs
b. Irrespective of whether or not the separate claims are
owned by or due to different parties
c. If any demand is for damages in a civil action, the
amount thereof must be specifically alleged
2. Rule also applies to cases where two or more plaintiffs
having separate causes of action against a defendant join
in a single complaint
3. Rule applies to cases where a plaintiff has separate causes
of action against two or more defendants joined in a single
complaint
4. Note however that the causes of action in favor of the 2 or
more plaintiffs or against 2 or more defendants should
arise out of the same transaction or series of transaction
and there should be a common question of law or fact (Sec.
6, Rule 3)
Examples:
1. In a proceeding for the summary settlement of an estate,
where two parcels of land were claimed by 2 heirs of the
deceased, the probate court had no jurisdiction to try title
to said lands
a. Issue of title constitutes a separate cause of action
which must be decided by a separate suit
2. A special civil action for forcible entry or unlawful detainer
cannot be joined with an ordinary civil action for collection
 3. Neither may a case governed by the Rules on Summary - Joiner of causes of action which is accrued in favor of a
Procedure be joined with an action to b governed by the party is only permissive
regular rules of procedure So a party may institute as many actions as he has
4. Joinder of an action for ejectment with that of causes of action
reivindicacion cannot be done Without prejudice to the provisions of Sec. 1, Rule 31
a. Proceedings in ejectment cases are summary in on joint trial or consolidation of actions
nature
b. Actions for recovery of ownership require a full
blown trial on the merits
END OF RULE 2
5. Joinder of causes which are separate and distinct is
permissive
a. Cause of action where amount is P20,000 or less may
be the subject of a separate complaint filed with the
MTC
b. That which exceeds P20,000 may be filed with the
RTC
6. Action for acknowledgement of a natural child may be
joined with an action to compel defendants to a partition
of all properties left by deceased natural father
7. Settlement of estates and disposition of property of 2
deceased can lawfully be made in the same proceeding
(e.g. conjugal property of deceased spouses)
8. Action based on quasi delict and breach of contract of
carrier may be joined

SECTION 6 - Misjoinder of causes of action.Misjoinder of causes

of action is not a ground for dismissal of an action. A misjoined
cause of action may, on motion of a party or on the initiative of
the court, be severed and proceeded with separately.

Discussion of Justice Feria in Flores v. Mallare-Philipps

- Sec. 6, Rule 2 is similar to the rule on misjoinder and non-
joinder of parties in Sec. 11, Rule 3
- Except that court may not order the joinder of causes of
action if neither the court nor the adverse party objects to
the misjoinder of a cause of action
- It will be adjudicated together with other causes, provided
that the court has jurisdiction

Misjoinder of causes of action and parties do not involve a question

of jurisdiction
- They are not grounds for dismissal
- It involves an implied admission of the courts jurisdiction
- It acknowledges the power of the court, acting upon the
motion of party or on its own initiative, to:
a. Order the severance of the cause of action, to be
proceeded with separately (in misjoinder of causes of
action)
b. To the dropping of a party and the severance of any
claim against said misjoined party, also to proceed
separately (in misjoinder of parties)

Regalado summarizes the following points:

- In case of misjoinder of causes of action, the cause of
action erroneously joined need only be separated and
dismissed, without affecting the action with regard to
other causes of action
- Misjoinder of causes of action, like misjoinder of parties, is
not a ground for dismissal of an action
- Party misjoined shall only be dropped by order of the
court sua ponte or on motion, and any claim against a
party may be severed and proceeded with separately
- Unlike in non-joinder of parties (regulated by Sec. 9 to 11,
Rule 3), there is no provision on or sanction against non-
joinder of separate causes of action
A plaintiff needs only a single cause of action to
maintain an action

31
NOTES ON RULE 2

32
NOTES ON RULE 2

33
 - Some cases:
RULE 3 a. Litonjua Group of Companies v. Vigan - Sec 4, Rule
PARTIES TO CIVIL ACTIONS 8 provides that facts showing the capacity of a party
to sue or the legal existence of an organized
association of persons that is made a party must be
averred; for having failed to show that they are
SECTION 1 - Who may be parties; plaintiff and defendant.Only
juridical entities, they are deemed to be devoid of
natural or juridical persons, or entities authorized by law may be
legal personality to bring action
parties in a civil action. The term plaintiff may refer to the
b. PLACU v. Cuneta a civic organization together with
claiming party, the counter-claimant, the cross-claimant, or the
a real party-in-interest is not disqualified as
third (fourth etc.)party plaintiff. The term defendant may
petitioner because as a non-profit civic and non-
refer to the original defending party, the defendant in a
partisan organization like the PHILCONSA, it is
counterclaim, the cross-defendant, or the third (fourth, etc.)
merely interested in upholding the rule of law
party defendant.
c. Juansing Hardware v. Mendoza a sole
proprietorship not being vested with juridical
For a Person to be a Party to a Civil Action:
personality cannot sue or file or defend an action in
1. He must be a natural or juridical person or an entity
court
authorized by law
2. He must have legal capacity to sue; and
EXCEPTIONS: Entities Authorized by Law
3. He must be the real party-in-interest
1. Partnership has a juridical personality separate and
distinct from that of each of the partners, even in case of
Plaintiff one having an interest in the matter of the action or in
failure to comply with the requirements in Art 1772 NCC
obtaining the relief demanded. The term may either refer to the
(Art. 1768 NCC)
claiming party, counter-claimant, cross-claimant, or third-party
2. Labor organizations organized in accordance with law may
plaintiff
file a complaint or petition in court in representation of its
members (Art 242 LC)
Defendant one claiming an interest in the controversy or the
3. As to properties of the Roman Catholic Church, the
subject thereof adverse to the plaintiff. Term may also include:
Archbishop or diocese to which they belong may be a
1. An unwilling co-plaintiff or one who should be joined as
party (Ponce v. Roman Catholic)
plaintiff but refuses to give his consent thereto (Sec. 10,
Rule 3)
SECOND REQUIREMENT: Legal Capacity to Sue
2. The original plaintiff becoming a defendant to the original
Legal capacity to sue or be sued means that the party is
counterclaim of defendant; and
free from general disability (e.g. minority or insanity) or, in case of
3. One necessary to a complete determination or settlement
juridical entities, that it must be duly registered in accordance with
of the questions involved therein
law
Distinguish: Real Party-in-Interest, Capacity to Sue and Standing
Under Sec. 4, Rule 8, legal capacity to sue must be averred
lack of legal capacity to sue means either:
Real Paty-in-Interest party who stands to be benefited or injured
a. Plaintiff does not have the necessary qualifications to
by the judgment in the suit or the party entitled to the avails of the
appear in the case because he is not in full exercise of his
suit
civil rights (e.g. minority, incompetent, etc.); or
b. When he does not have the character or representation
Capacity to Sue deals with a situation where a person who may
which he claims (e.g. corporation not duly registered)
have a cause of action is:
1. Disqualified from bringing suit under applicable law, or
Example: Rights of Heirs to Sue
2. Is incompetent to bring a suit, or
- A prior settlement of the estate, or even the appointment
3. Is under some legal disability that would prevent him from
of an administrator, is not necessary for any of the heirs to
maintaining an action unless represented by a guardian ad
acquire legal capacity to sue (see Art. 777 NCC)
litem
- Even if administration proceedings have already been
commenced, heirs may still bring the suit if an
Legal Standing a personal and substantial interest in the case, such
administrator has not yet been appointed
that the party has sustained or will sustain direct injury as a result of
- Once administrator has been appointed, he brings the suit
the challenged act
- Even if there is an appointed administrator, jurisprudence
a. Interest material interest; an interest in issue to be
recognizes 2 exceptions:
affected by the questioned act as distinguished from mere
a. If the executor or administrator is unwilling or
interest in the question involved or mere incidental
refuses to bring suit
interest
b. When the administrator is alleged to have
b. Test in public law whether the party has a direct and
participated in the act complained of and he is made
personal interest in the controversy and whether such
party defendant
party has sustained or is in imminent danger of sustaining
an injury as a result of the act complained of
Lack of Legal Capacity to Sue is DIFFERENT from Lack of Legal
Personality to Sue
FIRST REQUIREMENT: A party must be a natural or juridical person
a. Lack of legal capacity to sue
or an entity authorized by law
(1) Refers to plaintiffs general disability to sue
- Only natural and juridical persons may be parties
(2) May be a ground for a motion to dismiss on the
- Art. 44 NCC an association is considered a juridical
ground of lack of legal capacity to sue
person if the law grants it a personality separate and
distinct from that of its members

34
 b. Lack of legal personality to sue
(1) Plaintiff does not have the necessary qualification to
appear in the case or any other general
disqualifications
(2) May be a ground for a motion to dismiss on the
ground that the complaint states no cause of action
Note: Dilweg v. Philip held that non-resident aliens living abroad
may maintain PERSONAL actions against Philippine residents in
Philippine courts, even if a counterclaim is brought against said
plaintiffs.
SECTION 2 - Parties in interest.A real party in interest is the
party who stands to be benefited or injured by the judgment in
the suit, or the party entitled to the avails of the suit. Unless
otherwise authorized by law or these Rules, every action must be
prosecuted or defended in the name of the real party in interest.
Classification of Parties
1. Indispensable Parties those without whom no final
determination can be held of an action (Sec. 7)
2. Necessary Parties those who are not indispensable but
ought to be parties if complete relief is to be accorded as to
those already parties, or for a complete determination or
settlement of the claim subject of the action (Sec. 8)
3. Representative Parties those referred to in Sec. 3
4. Pro-Forma Parties Those who are required to be joined
as co-parties in suits by or against another party as may be
provided by the applicable substantive law or procedural
rule
5. Quasi-Parties Those in whose behalf a class or
representative suit is brought (Sec. 17)
A real party-in-interest is one who would be benefited or injured by
the judgment, or who is entitled to the avails of the suit
- A decision rendered against a person who is not a real
party-in-interest in the case cannot be executed; a
complaint filed against such a person should be dismissed
for failure to state a cause of action
- An action shall be prosecuted in the name of the party,
who, by the substantive law, has the right sought to be
enforced
Interest within the meaning of Sec. 2, Rule 3
- Material interest; an interest in issue to be affected by the
decree
- As distinguished from mere interest in the question
involved, or mere incidental interest
- The interest of the party must be personal and not one
based on a desire to vindicate the rights of a third and
unrelated party
Substantial interest such interest of a party in the subject matter of
the action as will entitle him, under the substantive law, to recover if
the evidence is sufficient or that he has the legal title to the demand
and the defendant will be protected in a payment to or recovery by
him
Note that party-in-interest applies to both
- Real party-in-interest plaintiff one who has legal right
- Real party-in-interest defendant one who has a
correlative obligation whose acts or omissions violate the
legal rights of the former
35
Failure to Name Real Party in Interest
a. Effect: a motion to dismiss may be filed on the ground that
the complaint states no cause of action
(a) If a complaint is filed for and in behalf of a plaintiff
who is not authorized to do so, the complaint is not
deemed filed
b. Remedies:
(1) Amendment of pleadings (Alonso v. Villamor); or
(2) Complaint may be deemed amended to include the
real party-in-interest (Balquidra v. CFI Capiz)
c. Exception: A real litigant may be held bound as a party
even if not formally impleaded provided he had his day in
court (Albert v. University Publishing Co.)
Illustrations:
1. In Oposa v. Factoran, minors represented by their parents
were held as real parties in interest to file an action to
annul timber licenses under the following principles:
a. Inter-generational responsibility
b. Inter-generational justice
c. Right of Filipinos to a balanced and healthful ecology
d. Minors represent themselves and generations to
come
2. In Eminent Domain cases:
a. Owner of the fee is not necessarily the only person
who is entitled to compensation
b. owner when employed in statutes relating to
eminent domain to designate the persons who are to
be made parties to the proceeding, refers, as is the
rule in respect of those entitled to compensation, to
all those who have lawful interest in the property to
be condemned
3. Party to a contract is the real party-in-interest
a. Contracts may be violated only by the parties thereto,
as against each other, in an action upon the contract,
the real parties in interest must be the parties to said
contract
b. As to contracts with stipulations pour autrui (Art.
1311)
(1) Note that there must be a stipulation clearly and
deliberately conferring a favor to any third
person
4. Those who are not parties, heirs, assignees, or
beneficiaries of a stipulation pour autrui, do not, under
substantive law, possesses the right they seek to enforce
a. So, commission agents are not allowed to sue
b. Assignees are allowed to sue when one has a right
of action assigned to him he is then the real party-in-
interest and may maintain an action upon such claim
or right
5. In insurance contracts, third person can directly sue the
insurer
a. Direct liability of the insurer under indemnity
contracts against TPL does not mean that insurer can
be held solidarily liable with the insured and/or other
parties at fault (liabilities of insurer and insured are
based on different laws)
b. See insurance laws
6. In annulment of marriage cases:
a. If based on minority, parent who did not give consent
is the real party-in-interest
b. If based on fraud, force, or intimidation, party himself
is a real-party-in-interest without need of a guardian
ad litem
7. A validly disinherited heir and not claiming to be a
creditor of his father is not a real party-in-interest to
question the validity of sale executed by his father
 8. Childrens rights to parents property is merely inchoate
and vests only upon the latters death
9. In proceedings to set aside an execution sale, the real
party-in-interest is the person who has an interest either
in the property sold or the proceeds thereof
SECTION 3 - Representatives as parties. Where the action is
allowed to be prosecuted or defended by a representative or
someone acting in a fiduciary capacity, the beneficiary shall be
included in the title of the case and shall be deemed to be the real
party in interest. A representative may be a trustee of an express
trust, a guardian, an executor or administrator, or a party
authorized by law or these Rules. An agent acting in his own
name and for the benefit of an undisclosed principal may sue or
be sued without joining the principal except when the contract
involves things belonging to the principal.
Comment by Justice Feria
- This rule makes mandatory the joinder of the beneficiary
or the party for whose the benefit the action is brought
- A public interest suit may be brought provided the class
benefited by it is included in the title of the case
- Party for whom or in whose name a contract has been
made for the benefit of another may sue or be sued
provided the person benefited by the contract is joined
Trusts
- The provision refers to an express trust and has no
application to an implied trust
- The provision authorizing a trustee to sue in his own name
joining the person for whose benefit the action is
presented or defended do not ordinarily prevent the real
party-in-interest or the beneficiary of the trust, from
maintaining an action in his own name
- Rule is permissive and not mandatory
- Therefore, beneficiary, being the real party-in-interest may
sue or be sued alone or be joined by the trustee
Guardians See notes under Sec. 5
Executor of Administrator
- Note that unless there is a pending proceeding for the
settlement of the estate of a deceased, the legal heirs may
commence an ordinary action arising out of a right
belonging to the ancestor without the necessity of a
provision and separate judicial declaration of their status
as such, and without the necessity of appointing an
executor or administrator
- If deceased has debts, creditors or heirs may initiate a
special proceeding
a. Once a special proceeding is instituted and an
administrator/executor appointed,
b. Any action arising out of a right belonging to the
deceased may be brought by or against him and not
by or against the heirs
Agents
- An agent acting in his own name and for the benefit of an
undisclosed principal may sue or be sued without joining
the principal (See Art. 1883)
a. EXCEPTION: when the contract involves things
belonging to the principal
- Note however the ruling in Beamount v. Prieto although
a contract is made in the name of the agent, where the
agency is disclosed and the principal appears to be the
owner of the thing involved in the suit, action should be
brought against both
36
SECTION 4 - Spouses as parties.Husband and wife shall sue or
be sued jointly, except as provided by law.
The general rule is that the husband and wife shall sue or be sued
jointly
- This is inasmuch as both are the co-administrators of the
community property as well as the conjugal partnership
- EXCEPTIONS:
1. A spouse without just cause abandons the other or
fails to comply with his or her obligations to the
family with respect to marital, parental, or property
relations
2. A spouse of age mortgages, encumbers, alienates, or
otherwise disposes of his or her exclusive property
3. The regime of separation of property relations of the
spouses
Cases:
1. Peyer v. Martinez Where the husband abandoned the
wife and child, the wife may bring an action to cancel a real
estate mortgage executed by the husband in favor of the
bank without joining the husband
2. Laperal v. Katigbak an action against the husband for
promissory note signed by the husband alone does not
make the wife a necessary party nor personally liable
3. Pacquing v. Marquez failure to join the husband is not a
jurisdictional defect
4. Uy v. CA non-joinder of the husband does not warrant
dismissal as it is merely a formal requirement which may
be cured by amendment
NOTE: The propriety of suits by or against the spouses should now
take into account the pertinent provisions of the FC
SECTION 5 - Minor or incompetent persons.A minor or a person
alleged to be incompetent, may sue or be sued, with the assistance
of his father, mother, guardian, or if he has none, a guardian ad
litem.
Note: a person alleged to be incompetent encompasses insane
persons and judicially declared incompetents
JOINDER OF PARTIES
Types of Joinder of Parties:
a. Permissive Sec. 6
b. Compulsory Sec. 7
c. Proper or Necessary Sec. 8
PERMISSIVE JOINDER OF PARTIES
SECTION 6 - Permissive joinder of parties.All persons in whom
or against whom any right to relief in respect to or arising out of
the same transaction or series of transactions is alleged to exist,
whether jointly, severally, or in the alternative, may except as
otherwise provided in these Rules, join as plaintiffs or be joined
as defendants in one complaint, where any question of law or fact
common to all such plaintiffs or to all such defendants may arise
in the action; but the court may make such orders as may be just
to prevent any plaintiff or defendant from being embarrassed or
put to expense in connection with any proceedings in which he
may have no interest.
Sec. 8 enunciates the rule on Permissive Joinder of Parties
- They can either be joined in one single complaint or may
themselves maintain or be sued in separate suits
- This rule is also applicable to counterclaims (Go et.al. v. Go
et.al.)
- Note that in the case of indispensable and necessary
parties, their joinder is compulsory (Sec. 7 and 8)
Permissive Joinder Requirements for a permissive joinder of
parties to be allowed, there must be:
1. A right to relief arising out of the same transaction or
series of transactions;
2. A question of fact or law common to all plaintiffs or
defendants; and
3. Such joinder is not otherwise proscribed by the provisions
of the Rules on jurisdiction and venue
Definitions:
a. Transaction not only a stipulation or agreement but any
event resulting in wrong, without regard to whether the
wrong has been done by violence, neglect, or breach of
contract
b. Series of transaction transactions connected with the
same subject of the action
Distinguished from Joinder of Causes of Action
- In joinder of causes of action, it is enough if the cause of
action arises out of the same contract
- Unlike permissive joinder of parties, in joinder of causes of
action, there is no need for a common question of fact or
law
Illustrations of Permissible Joinder of Parties
1. Four owners of 4 houses burned by spark of locomotive
may file a single complaint for damages against the
railroad company
2. Several farmers sustaining damages by reason of diversion
of water from irrigation system may unite in filing a single
complaint
3. Injuries to driver and damages to car of employer. The
driver and owner of car may join in a single complaint
4. 25 teachers dismissed by a school may join in suing the
school for separation pay
COMPULSORY JOINDER OF PARTIES
SECTION 7 - Compulsory joinder of indispensable parties.Parties
in interest without whom no final determination can be had of an
action shall be joined either s plaintiffs or defendants.
Indispensable Party
- One whose interest will be affected by the courts action in
the litigation, and without whom no final determination of
the case can be held
- His interest in the subject matter and in the relief sought
are so inextricable intertwined with the other parties that
his legal presence as a party to the proceeding is an
absolute necessity
- In his absence, there cannot be a resolution of the dispute
of the parties before the court which is effective, complete,
or equitable
Distinguished from Necessary Party
- A party is not indispensable if his interest in the
controversy or subject matter is distinct and divisible from
the interest of the other parties and will not necessarily be
37
prejudiced by a judgment which does complete justice to
the parties in court
- He is not indispensable if his presence would merely
permit complete relief between him and those already
parties to the action, or will simply avoid multiple
litigation
- Their differences are summarized as follows:
1. In Indispensable Parties
a. Action cannot proceed unless they are joined
b. If not impleaded, any judgment would have no
effectiveness
2. In Necessary Parties
a. Action can proceed even in the absence of some
necessary parties
b. Even if not impleaded, the case may be finally
determined in court; But the judgment therein
will not resolve the whole controversy
Joinder is Mandatory
- Joinder of indispensable parties are mandatory
- Courts cannot proceed without their presence
- Without their presence, judgment of the court cannot
attain finality
- Their presence is a sine qua non for the exercise of judicial
power (Borlosa v. Polistico)
Test of Indispensability if a partys interest in the controversy is
that a final decree would necessarily affect their rights so that the
court cannot proceed without their presence, then the party is
indispensable
Effect of Absence of Indispensable Parties
- It is the duty of the court to stop the trial and to order the
inclusion of such party (Cortez v. Avila)
a. Such an order is unavoidable
b. General rule with reference to the making of parties
in a civil action requires the joinder of all necessary
parties wherever possible, and the joinder of all
indispensable parties under any and all conditions
- Absence of an indispensable party renders all subsequent
actuations of the court null and void, for want of authority
to act, not only as to the present parties but even as to
those present
Responsibility of impleading all the indispensable parties rests on
the plaintiff
- It would seem an obvious proposition that a plaintiff has
the right to choose which of the several persons to implead
as defendants or to drop
a. None of the defendants has the right to compel said
plaintiff to prosecute the action against a party if he
does not wish to do so
b. But the plaintiff will have to suffer the consequences
of any error in exercising this option
- The remedy of the co-defendant who is not dropped is not
to insist that plaintiff continue to prosecute against the
dropped defendant but to:
a. Move for the dismissal of the action against himself,
or
b. To take such appropriate action as might otherwise
be proper
The court pursuant to Sec. 11, Rule 3 may, however, take the
initiative to implead an indispensable party
- Where court orders the plaintiff to amend its complaint to
implead an indispensable, plaintiffs refusal to comply is
ground for dismissal of the complaint
Examples and Illustrative Cases:
1. In vehicular collisions where driver, registered owners,
beneficial owners, and insurer were sued,
a. Court ruled that the registered owners are
indispensable parties but not the insurer
b. Hence, case may proceed without the insurer
2. When defendant alleged in his answer to a complaint for
recovery of real property, that he was occupying the
property as a tenant of a 3rd person, the latter is an
indispensable (Sanedad v. Cabotaje)
3. In an action for recovery of possession of land against a
person not in possession for having sold the property to a
3rd person, such 3rd person is indispensable (Laeno v.
Laeno)
4. In special civil action for partition, all persons interested in
the property are indispensables
5. As to co-owners:
a. Co-owners in an action for the security of tenure of a
tenant are indispensables (Arcelona v. CA)
b. But co-owners are not, however, indispensable to
maintain an action for ejectment (clarified in the
correction of Arcelona v. CA
6. In an action for rescission of sale, vendee is indispensable
7. Owners of property over which reconveyance is asserted
are indispensable parties (Acting Register of Land Titles
v. RTC Makati)
8. Action for recovery of the subject party converted into
prime residential subdivision would affect proprietary
rights of many lot owners and are thus indispensables
9. All heirs of deceased in an action to recover real property
are indispensables
10. In an action for recognition of a natural child with claim to
share in the property left by deceased natural father, all
legitimate heirs or kin of the latter who are entitled to
inherit if recognition is denied, are indispensables
11. In an action for recovery of property against a person who
purchased it from another who in turn acquired it from
someone, predecessors of defendants are indispensables
as the transfers, if not voided, may bind plaintiff (Alabang
Dev. Corp. v. Valenzuela)
12. In reconstitution of title proceedings, all actual occupants
and possessors are indispensables
13. A solidary obligor is not an indispensable party in a suit by
the creditor. Any of the solidary creditors may file an
action for collection without joining the other creditors
14. A mortgagee is an indispensable in a suit for cancellation
of title
15. In an action for quasi-delict against employer under Art.
2180, employee is not indispensable
a. But an action based on delict seeking to enforce the
subsidiary liability of employer under Art 103, RPC,
employee is indispensable
SECTION 8 - Necessary party.A necessary party is one who is
not indispensable but who ought to be joined as a party if
complete relief is to be accorded as to those already parties, or for
a complete determination or settlement of the claim subject of the
action.
Proper or Necessary Parties
- Those without whom the case may be finally determined
between the parties in court, but should be included in
order that a final determination may be had in a single
action of the whole controversy
a. EXCEPT: when it is not permissible to join them; in
which event, the case should be heard and
determined without prejudice to their rights
38
- Those whose presence is necessary to adjudicate the
whole controversy, but whose interests are so far
separable that final decree can be made in their absence
without affecting them
Illustrative Examples
1. See Seno v. Mangubat
2. In judicial foreclosure of mortgage, junior encumbrancers
are not indispensables but are necessaries to foreclose the
equity of redemption in favor of all junior encumbrancers
(Nufable v. Nufable)
3. In an action for reformation, all parties claiming an
interest in the land purportedly conveyed by the
instrument sought to be reformed, and whose interest will
be affected by reformation, are necessary parties (Toyota
Motor Philippines v. CA)
a. But this does not apply where the joinder of third
parties in an action for reformation, would in effect
be a collateral attack on the Torrens Title
SECTION 9 - Non-joinder of necessary parties to be pleaded.
Whenever in any pleading in which a claim is asserted a
necessary party is not joined, the pleader shall set forth his name,
if known, and shall state why he is omitted. Should the court find
the reason for the omission unmeritorious, it may order the
inclusion of the omitted necessary party if jurisdiction over his
person may be obtained.
The failure to comply with the order for his inclusion,
without justifiable cause, shall be deemed a waiver of the claim
against such party.
The non-inclusion of a necessary party does not prevent the
court from proceeding in the action, and the judgment rendered
therein shall be without prejudice to the rights of such necessary
party.
The rule specifically points to the consequence of an omission of a
necessary party and directs that should the court find the reason for
the omission unmeritorious, it may order the inclusion of the
omitted necessary party
Sanction: failure to comply without justifiable cause shall be deemed
a waiver of the claim against such party
Note: the non-inclusion of a necessary party does not prevent the
court from proceeding with the action
- Judgment rendered therein shall be without prejudice to
the rights of such necessary party
Regalado notes that the non-inclusion of the necessary party may be
excused only on meritorious grounds
- Absent such grounds, the court shall order him to be
impleaded if jurisdiction over his person can be obtained
As ordered by par. 1
Plaintiff is ordered to file an amended complaint
impleading the necessary party therein as co-
defendant
- If plaintiff fails to follow par. 1, the sanction in 2 nd par
applies
Plaintiff deemed to have waived his claim against said
party
Same rule applies to any pleading asserting a claim
against a necessary party
- If his inclusion cannot be effected for valid reasons, par. 3
applies
Note also that under Sec. 3, Rule 17 states that where the plaintiff
fails without justifiable cause to comply with an order of the court,
his complaint may be dismissed
- This dismissal shall not be ordered where the plaintiff fails
to comply with the order for the joinder of a necessary
party under Rule 3
- Indeed, Sec. 11 provides that non-joinder of parties should
not be a ground for dismissal
- As such, this provision is an exception to the rules on
penalties imposed on a disobedient party under Rule 17
SECTION 10 - Unwilling co-plaintiff. If the consent of any party
who should be joined as plaintiff cannot be obtained , he may be
made a defendant and the reason therefor shall be stated in the
complaint.
SECTION 11 - Misjoinder and non-joinder of parties.Neither
misjoinder nor non-joinder of parties is ground for dismissal of an
action. Parties may be dropped or added by order of the court on
motion of any party or on its own initiative at any stage of the
action and on such terms as are just. Any claim against a
misjoined party may be severed and proceeded with separately.
A party is MISJOINED when he is made a party to the action although
he should not be impleaded
A party is NOT JOINED when he is supposed to be joined but is not
impleaded in the action
NON-JOINDER
Non-Joinder of Proper Parties
- Neither a misjoinder nor a non-joinder of parties is a
ground for the dismissal of action
- Parties may be dropped or added, at any stage of the
proceedings, by:
1. Order of the court
2. On motion of any party
3. On courts own initiative
Non-joinder does not warrant dismissal
- Remedy: Court should order the inclusion of the necessary
party
- BUT if the case is erroneously dismissed on this ground
without stating that it is without prejudice, and plaintiff
did not appeal, such dismissal bars the filing of another
action on the same cause (Rivera v. Luciano)
Objections or defects in the parties impleaded
- Should be made at the earliest opportunity, the moment
such defects become apparent
- Remedy: Motion to strike the names of parties impleaded
- If there is a misjoinder:
a. A separate action should be brought against the
party misjoined
b. Objection to misjoinder cannot be raised for the first
time on appeal (Garcia v. Chua)
MISJOINDER
Rules do NOT allow for whimsical dropping
- In case of misjoinder, remedy has never been to dismiss
the entire petition but to dismiss it only as against the
party upon whom the tribunal or body cannot acquire
jurisdiction (Union Bank of the Phils. v. CA)
39
- Rule does not comprehend whimsical and irrational
dropping or adding of parties
- It contemplates an erroneous or mistaken non-joinder or
misjoinder
- No one is free to join anybody in a complaint in court only
to drop him unceremoniously later at the pleasure of the
plaintiff
- The rule presupposes that the original inclusion was a
mistake
- This is the reason why the rule ordains that the dropping
be on such terms as are JUST just to all
- Lim Tanhu v. Ramolete the SC did not allow the
dropping of 2 defendants despite motion by plaintiff
because the motion was filed after the 2 remaining
defendants defaulted
Although both misjoinder of parties and causes of action are not
grounds for dismissal, both stand on different premises
- There can be misjoinder of parties even if there is only one
cause of action common to them
- There can be misjoinder of causes of action even if there is
only one plaintiff
CLASS SUITS
SECTION 12 - Class suit.When the subject matter of the
controversy is one of the common or general interest to many
persons so numerous that it is impracticable to join all as parties,
a number of them which the court finds to be sufficiently
numerous and representative as to fully protect the interests of
all concerned may sue or defend for the benefit of all. Any party
in interest shall have the right to intervene to protect his
individual interest.
For a class suit to prosper, the following requisites must be present:
1. Subject matter of the controversy that is of common or
general interest to many persons
2. Persons are so numerous that it is impracticable to join all
as parties
3. Parties actually before the court are sufficiently numerous
and representative so that all interests concerned are fully
respected
4. The representative sues or defends for the benefit of all
An action does not become a class suit merely because it is
designated as such in the pleadings
- Whether the suit is or is not a class suit depends upon the
attending facts,
- In order for the court to be able to determine if a class suit
is proper under the circumstances:
1. The complaint or other pleading initiating the class
action should allege the existence of a subject-matter
of common interest;
2. As well as the existence of a class and the number of
persons in the alleged class
Subject Matter of Action
- The subject matter of the controversy that must be of
common or general interest refers to the physical facts, the
things real or personal, the money, lands or chattels and
the like, in relation to which the suit is prosecuted, and not
the delict or wrong committed by defendant (Mathay v.
Consolidated Bank)
- In Meralco v. Phil Consumers Foundation Inc. involving
the issue of whether or not there is identity of subject
matter between the 2 cases, the subject matter of an action
was referred to include the thing, wrongful act, contract or
 property, which is directly involved in the action,
concerning which the wrong has been done and with
respect to which the controversy has arisen
- Interest must be common or general and not separate with
each having determinable interest
Class Suit Distinguished from Joinder of Parties
- What is contemplated in a class suit is that:
1. The subject matter in controversy is of common
general interest to many persons, and
2. Those persons are so numerous as to make it
impracticable to bring them all before the court (to
join them as parties)
- In joinder of parties:
a. There are many persons who have distinct, separate
rights against the same party or group of parties
b. But those rights arise from the same transaction or
series of transactions
c. There are common questions of fact or law resulting
therefrom
- In both juridical situations, similar essential factors exist:
1. The same transaction or series of transactions is
involved; and
2. Common questions of fact or law are at issue
- What makes the situation a proper case for a class suit is
the circumstance that there is only one right or cause of
action pertaining or belonging in common to many
persons
a. Note that in permissive joinder of parties, there are
separate or several rights of action to distinct
individuals
- Basically:
a. If there are plural rights of actions joinder
b. If there is a singular right of action class suit
Rules from Jurisprudence:
1. The complaint must specifically state that the same is
being brought in behalf of others with whom the parties
share a common interest (Borlosa v. Polistico)
2. If there is a conflict of interest between those sought to be
represented and those who filed the action, the class suit
will not prosper (Ibanez v. Roman Catholic Church)
3. The party bringing the class suit must have the legal
capacity to do so (Chinese Flour Importers Assoc. v. Price
Stablization Board)
4. The parties who brought the class suit have control over
the case with the right to compromise or even discontinue
the same
But a class suit cannot be compromised or dismissed
without court approval (Sec. 2, Rule 17)
Member of the class is bound by the judgment in the
class suit
As such, the Rules give him the right to intervene if he
desires to protect his own individual interests
Illustrative Cases:
1. Class suit is not permissible in action to recover real
property against several persons occupying different
portions (Sulo ng Bayan v. Gregorio Araneta)
2. Derivate suit brought in behalf of numerous stockholders
of a corporation to perpetually enjoin or nullify what is
claimed to be a breach of trust or an ultra vires act of the
BOD (this is a class suit)
a. In such a suit, there is one, single right of action
pertaining to numerous stockholders
b. Not multiple right belonging separately to several,
distinct persons
40
ALTERNATIVE DEFENDANTS
SECTION 13 - Alternative defendants.Where the plaintiff is
uncertain against who of several persons he is entitled to relief,
he may join any or all of them as defendants in the alternative,
although a right to relief against one may be inconsistent with a
right of relief against the other.
Example: Where the owner of the goods is not sure whether the
same was lost in transit or while it was on deposit in the arrastre
warehouse, he may sue the shipper or the operator in the alternative
Although the right against the former is based on
admiralty while that against the operator is on
contract
SECTION 14 - Unknown identity or name of defendant.
Whenever the identity or name of a defendant is unknown, he
may be sued as the unknown owner, heir, devisee, or by such
other designation as the case may require; when his identity or
true name is discovered, the pleading must be amended
accordingly.
See Sec. 14, Rule 14 on Service upon defendant whose identity or
whereabouts are unknown
This section presupposes that the plaintiff really does not know the
identity and/or address of the defendant or is not in a position to
ascertain such identity or whereabouts.
SECTION 15 - Entity without juridical personality as defendant.
When two or more persons not organized as an entity with
juridical personality enter into a transaction, they may be sued
under the name by which they are generally or commonly known.
In the answer of such defendant the names and addresses
of the persons composing said entity must all be revealed.
See Sec. 8, Rule 14 on Service upon entity without juridical
personality
Requisites:
1. There are two or more persons not organized under a
juridical entity
2. They enter into a transaction; and
3. A wrong or delict is committed against a 3rd person in the
course of such transaction
Comment of Justice Feria
- Two or more persons transacting as an entity without
juridical personality may be sued under the name by
which they are generally or commonly known, but they
cannot sue under such name
- Summons may be served upon any one of them, or upon
the person in charge of the office or place of business
maintained under such name
- Answer of defendant must reveal the names and addresses
of the persons composing said entity so that judgment may
be rendered against them under Sec. 6, Rule 36
With respect to judgments to be rendered in this situation:
- See Sec. 6, Rule 36
- Said rule provides that when judgment is rendered against
2 or more persons associated in an entity without juridical
personality, judgment shall set out their individual or
proper names, if known
Instances Where Substitution of Parties is Proper:
1. Death of a party Sec. 16
2. Death or separation of a party- public officer Sec. 17
3. Incompetency or incapacity Sec. 18
4. Transfer of interest Sec. 19
DEATH OF A PARTY
SECTION 16 - Death of party; duty of counsel.Whenever a party
to a pending action dies, and the claim is not thereby
extinguished, it shall be the duty of his counsel to inform the court
within thirty (30) days after such death of the fact thereof, and to
give the name and address of his legal representative or
representatives. Failure of counsel to comply with this duty shall
be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted
for the deceased, without requiring the appointment of an
executor or administrator and the court may appoint a
guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period of
thirty (30) days from notice.
If no legal representative is named by the counsel for the
deceased party or if the one so named shall fail to appear within
the specified period, the court may order the opposing party,
within a specified time, to procure the appointment of an
executor or administrator for the estate of the deceased and the
latter shall immediately appear for and on behalf of the
deceased. The court charges in procuring such appointment, if
defrayed by the opposing party, may be recovered as costs.
This provision applies:
1. Where the claim survives
2. Regardless of whether either plaintiff or defendant dies
3. Regardless of whether the case is in trial or on appeal
SURVIVAL OR DEATH OF ACTION
The question as to whether an action survives or not depends on the
nature of the action and the damage sued for
A. Causes of Action that SURVIVE
The wrong complained of affects primarily and
principally property and property rights
Injuries to the person are merely incidental
B. Causes of Action which DO NOT SURVIVE
The injury complained of is to the person
The property and property rights affected are
incidental
The actions that survive against the decedents representatives are:
1. Actions to recover real and personal property against the
estate
2. Actions to enforce liens thereon; and
3. Actions to recover for an injury to person or property by
reason of tort or delict committed by the deceased
Claims that are Extinguished PURELY PERSONAL actions
Examples: support, divorce, annulment of marriage, legal separation
General rule: a party having died in an action that survives, the trial
held by the court without the appearance of the deceaseds legal
representative or substitution of heirs and the judgment rendered
after such trial are null and void
- Court acquired no jurisdiction over the persons of the legal
representatives or of the heirs upon whom the trial and
judgment would be binding
41
- However, formal substitution is not necessary when:
a. Heirs voluntarily appeared, participated in the case,
and presented evidence in defense of deceased
defendant (Vda. De Salazar v. CA)
b. When parties who claim interest in the estate had
already been fully heard and what remained was the
evaluation of the evidence and rendition of judgment
(Torres Jr. v. CA)
Illustrations:
1. If there is already a final decree of legal separation, the
action continues with respect to the liquidation of the
conjugal property (Macadangdang v. CA)
2. Death of the putative father during the pendency of the
action for compulsory recognition is not a bar to the action
commenced during his lifetime by one who pretended to
be his natural son. It may survive against the executor,
administrator or any other legal representative of the
estate (Mendoza v. CA)
3. As held in Poe, Jr. v. Macapagal-Arroyo, a public office is
personal to the public officer and not a property
transmissible to the heirs upon death. As such, the
substitution by the widow or heirs in election contests
where the protestant dies during the pendency of the
protest is not allowed.
DUTIES
Death of a client divests counsel of authority
- A dead client has no personality and cannot be
represented by an attorney
- In the absence of a retainer from the heirs or authorized
representatives of deceased client, lawyer has no further
authority to act save to inform the court of the death and
take necessary steps to safeguard the clients rights
Duty of Lawyer it is the duty of the attorney to:
1. Inform the court promptly of his clients death, incapacity,
or incompetency during the pendency of action; and
2. To give the name and residence of his executor,
administrator, guardian, or other legal representatives
Duty of Court in case of death, the court if the action survives, shall
order, upon proper notice, the legal representative of the deceased
to appear and to be substituted for the deceased within a period of
30 days or within such time as may be granted.
If there is notice of death, court should await appointment
of legal representative; otherwise, subsequent proceedings are void.
Period of filing of brief is suspended.
Upon learning of the death of a party
- The trial court should not order the amendment of the
complaint
- Order for amendment of the complaint before substitution
of the deceased party is void (Casenas v. Rosales)
EFFECTS
Effect of Failure to Notify
- If there is no notice of death, the case may continue
- Proceedings are valid and judgment is binding on
successors-in-interest
- Failure of counsel to comply with this duty shall be ground
for disciplinary action
Proceedings conducted by the trial court after the death of the
defendant and without substitution are null and void (Lawas v. CA)
Discussion in Regoso v. CA
- Rules operate on the presumption that the attorney for the
deceased is in a better position to know about the death of
his client and to inform the court of the names and
addresses of his legal representatives
- Were no such notice of death, nor motion for substitution
of the deceased was ever made, the trial court could not be
expected to know or take judicial notice of the death of
defendant without proper manifestation from counsel
- The supervening death of defendant did not extinguish his
wifes action for partition of conjugal assets, for it is an
action that survives
a. The trial of the case on merits was finished before the
death of defendant
b. Since the court was not informed of the death, the
trial court may not be faulted for proceeding to
render judgment without ordering the substitution of
the deceased defendant
c. The judgment is valid and binding upon defendants
legal representatives or successors-in-interest,
insofar as his interest in the property is concerned
NOTE: The court should not order the amendment but the
appearance of the legal representative (Casenas v. Rosales)
As to suits concerning spouses
- Creditor cannot sue the surviving spouse of a decedent in
an ordinary proceeding for the collection of sum of money
chargeable against the CPG
a. Proper remedy: to file a claim in the settlement of the
estate of the deceased (Alipio v. CA)
- When spouses are sued for the enforcement of an
obligation, they are being impleaded in their capacity as
representatives to the CPG
a. They are not being impleaded as independent debtors
b. As such, the concept of joint or solidary as between
them does not apply
- However, if they are being sued on the bases of joint or
solidary liability, the death of one would not necessarily
result against the other
RULES ON SUBSTITUTION
Note that substitution must be valid in order that the court may
acquire jurisdiction over the party substituted.
No summonses are required to be served on the substitute
defendants
- Instead, the order of substitution shall be served upon the
parties substituted in the action
- Otherwise, the court does not acquire jurisdiction over the
substitute party
The defendants legal heirs are his legal representatives if there is no
pending proceeding for the settlement of his estate (Magdalera v.
Benedicto)
In substitution, priority is given to his legal representative (executor
or administrator)
- Court may allow the substitution by the heirs instead IF:
1. There is unreasonable delay in the appointment of an
executor or administrator or
2. When the estate was extrajudicially settled
There is no valid substitution effected in the following cases:
- Where there had been no court order for any such legal
representative to appear
42
- No legal representative ever appeared in court to be
substituted
- Complainant never procured the appointment of such legal
representative
- Heirs never asked to be allowed to be substituted
If no valid substitution court never acquired jurisdiction over the
party seeking substitution
Effect of failure to notify court of death the decision rendered shall
bind his successors-in-interest
Formal substitution is not a jurisdictional but a due process
requirement
- Non-compliance results in the undeniable violation of the
right of due process of those who, though not duly notified
of the proceedings, are substantially affected by the
decision
OTHER INSTANCES WHEREIN SUBSTITUTION OF PARTIES IS
PROPER (Subject to the conditions therein and whenever the court,
upon motion and notice, finds justifiable reason therefor:
1. Sec. 17 on death or separation of public office
2. Sec. 18 on incompetence or incapacity
3. Sec. 19 on transfer of interest
SECTION 17 - Death or separation of a party who is a public
officer.When a public officer is a party in an action in his official
capacity and during its pendency dies, resigns, or other wise
ceases to hold office, the action may be continued and maintained
by or against his successor if, within thirty (30) days after the
successor takes office or such time as may be granted by the
court, it is satisfactorily shown to the court by any party that
there is a substantial need for continuing or maintaining it and
that the successor adopts or continues or threatens to adopt or
continue the action of his predecessor. Before a substitution is
made, the party or officer to be affected, unless expressly
assenting thereto, shall be given reasonable notice of the
application therefor and accorded an opportunity to be heard.
Notes:
- Rule emphasizes that the public officer is a party in an
action in his official, not private, capacity
- The showing to the court of substantial need for
continuing and maintaining the action may be made by
any party
- The rule is no longer limited to actions involving an officer
in the Philippines
There are permissible instances for maintaining civil
suits against public officers of a foreign government
But subject to the nature of the action and
considerations of international law
- It is not required that what the successor in office is
continuing or threatens to adopt and continue is an action
of his predecessor in enforcing a law alleged to be in
violation of the Constitution
The challenged action need not necessarily involve a
constitutional issue
Republic v. CFI Lanao del Norte the officer contemplated in Sec.
17 does not include a judge who issued in connection with the
exercise of his judicial functions as any action impugning it is not
abated by his cessation from office
 SECTION 18 - Incompetency or incapacity.If a party becomes
incompetent or incapacitated, the court, upon motion with notice,
may allow the action to be continued by or against the
incompetent or incapacitated person assisted by his legal
guardian or guardian ad litem.
With this rule, instead of the action being continued by or against the
representative of the incompetent, it may now be continued by or
against the incompetent or incapacitated assisted by his legal
guardian or guardian ad litem.
In line with Sec. 3 and 5, he continues to be the real
party in interest although assisted by corresponding
guardian
SECTION 19 - Transfer of interest.In case of any transfer of
interest, the action may be continued by or against the original
party, unless the court upon motion directs the person to whom
the interest is transferred to be substituted in the action or joined
with the original party.
The SC has declared in a number of decisions that a transferee
pendente lite stands in the exactly the same position as its
predecessor-in-interest, the original defendant, and is bound by the
proceedings had in the case before the transfer.
- It is a proper but not an indispensable party as it would in
any event be bound by the judgment against his
predecessor
- Such would follow even if it is not formally included as a
defendant through an amendment of the complaint
- To erase all doubts as to the status of the transferee, the
latter may be deemed impleaded in substitution of the
original defendant
Regalado notes the following points:
- Sec. 19 does not provide that the substitution of parties
contemplated therein is mandatory
It is permissible to continue the action by or against
the original party in case of transfer of interest
pendente lite
- Since the original party is bound by the decision, his
substitution by transferee is not necessary
UNLESS the substitution by or the joinder of the latter
is required by court
OTHERWISE failure to do so does not warrant
dismissal of case
- A transferee pendente lite is a proper, not an
indispensable, party to the case (Heirs of Francisco v.
Guballa Sr.)
- But where the transfer was effected BEFORE the
commencement of the suit
Transferee must necessarily be the defendant or
plaintiff
But transferee may file a third-party complaint
against and implead the transferor in the action
whenever the same is necessary and proper for a
complete determination of all rights of parties
SECTION 20 - Action on contractual money claims.When the
action is for recovery of money arising from contract, express or
implied, and the defendant dies before entry of final judgment in
the court in which the action was pending at the time of such
death, it shall not be dismissed but shall instead be allowed to
continue until entry of final judgment. A favorable judgment
obtained by the plaintiff therein shall be enforced in the manner
especially provided in these Rules for prosecuting claims against
the estate of a deceased person.
43
Two Important Aspects:
1. The action must primarily be for recovery of money, debt,
or interest thereon
Not where the subject matter is primarily for some
other relief and collection of money is merely
incidental
2. The claim subject of the action arose from a contract,
express or implied, entered into by the decedent in his
lifetime or the liability for which had been assumed by or
is imputable to him
Under the present procedure, if defendant dies before entry of final
judgment in the court where it was pending at that time, action shall
not be dismissed but shall be allowed to continue until entry of final
judgment thereon
- Such entry may take place in the RTC, where no appeal is
taken, or by the appellate court
- In either case, the former objection against probate court
having to review the judgment of another court is
eliminated
Since the money claim that shall thereafter be filed in
the probate court is based upon a final and executory
judgment, former does not have to, and cannot,
review said judgment
The death of the defendant does not affect a pending action for
money,
- Whether the death occurs while the case is pending in a
municipal, regional, or appellate court.
- Defendant is substituted by his executor or administrator
or legal heirs and the action continues until a final
judgment is entered
- Once a final judgment is entered against the estate, it shall
be enforced as a money claim without need of proving the
same
If a writ of attachment had been issued and levied, the death of the
defendant at whatever stage of the action would not be ground for
the dismissal of the action and the dissolution of the writ of
attachment.
- If judgment is entered against the estate, the same shall be
enforced as a money claim
- The writ of attachment obtained by plaintiff which has not
been dissolved will entitle him to preference over the
other creditors against the estate
SECTION 21 - Indigent party.A party may be authorized to
litigate his action, claim or defense as an indigent if the court,
upon an ex parte application and hearing, is satisfied that the
party is one who has no money or property sufficient and
available for food, shelter and basic necessities for himself and his
family.
Such authority shall include an exemption from payment
of docket and other lawful fees, and of transcripts of stenographic
notes which the court may order to be furnished him. The
amount of the docket and other lawful fees which the indigent
was exempted from paying shall be a lien on any judgment
rendered in the case favorable to the indigent, unless the court
otherwise provides.
Any adverse party may contest the grant of such authority
at any time before judgment is rendered by the trial court. If the
court should determine after hearing that the party declared as an
indigent is in fact a person with sufficient income or property, the
proper docket and other lawful fees shall be assessed and
collected by the clerk of court. If the payment is not made within
the time fixed by the court, execution shall issue or the payment
thereof, without prejudice to such other sanctions as the court
may impose.
Herrera Notes:
- Under this rule, the application to litigate as a pauper may
be filed by either the plaintiff or defendant and hearing to
litigate as a pauper may be made ex parte
- Proof in support of the application need not necessarily be
by affidavits and certificates for as long as the court is
satisfied that the party is one who has no money or
property sufficient and available for food, shelter, and
basic necessities for himself and his family
- See also Sec. 19, Rule 141

Regalado Notes:
- The term indigent party has been substituted for what
used to be called a pauper litigant
- For purposes of a suit in forma pauperis, a pauper litigant
is not really a pauper but a person who is indigent
although not a public charge
This means that he has no property or income
sufficient for his support aside from his labor, even if
he is self-supporting when able to work and in
employment
- When an application to litigate as an indigent litigant is
filed and the court finds that it complies with Sec. 19, Rule
141, authority to litigate as such is automatically granted
- But if both requirements therein have not been complied,
a hearing shall be conducted and the application resolve
on the evidence of parties
- The adverse party may later still contest the grant before
judgment and proceed in accordance with the present
provisions of Sec. 21

SECTION 22 - Notice to the Solicitor General.In any action

involving the validity of any treaty, law, ordinance, executive
order, presidential decree, rules or regulations, the court, in its
discretion, may require the appearance of the Solicitor General
who may be heard in person or through a representative duly
designated by him.

This provision is applicable to any court and not limited to a

superior court

Lucena Grand Central Terminal Inc. v. JAC Liner failure to notify

the SolGen about the petition is not a jurisdictional effect

END OF RULE 3

44
NOTES ON RULE 3

45
NOTES ON RULE 3

46
 Under the rule, the rules on venue of the courts of the first and
RULE 4 second levels are now uniform
VENUE OF ACTIONS
Venue depends on:
1. The nature of action; or
Venue the place where an action must be instituted and tried
2. The residence of the parties; or
3. By stipulation; or
Nature of Venue as Distinguished from Jurisdiction
4. By law
1. Jurisdiction
a. Treats of the power of the court to decide a case on
When Venue determined by the Nature of Action
the merits (venue deals with the locality)
1. Real actions actions affecting title to or possession of real
b. Venue has nothing to do with jurisdiction
property, or interest therein
c. Note that in criminal actions, venue is jurisdictional
2. Personal actions all other actions
d. Jurisdiction may not be conferred by consent or
waiver upon a court which otherwise would have no
Remember:
jurisdiction over the subject matter
1. Action in personam action against the person on the
e. Rules as to jurisdiction can never be left to the
basis of personal liability
consent or agreement of the parties, whether or not
2. Action in rem action against the thing itself
prohibition exists against their alteration
2. Venue
Test to determine real nature of the action:
a. Question relating to venue are governed by Rule 4
The nature of an action whether real or personal is
b. Laying of venue is procedural rather than substantive
determined by the allegations of the complaint, not by the title of the
c. Relates to the jurisdiction of the court over the
complaint, or by the fundamental and prime object and nature of the
person rather than the subject matter
action (Prime Objective Test)
d. Relates to trial, not to jurisdiction and touches more
on the convenience of the parties rather
e. The venue of an action as fixed by statute may be
REAL ACTIONS
changed by the consent of the parties
f. An objection that the plaintiff brought his suit in the
Venue for Real Actions: Sec. 1
wrong country may be waived by failure to make
- Venue shall be in the proper court which has jurisdiction
timely objection
over the area wherein the real property involved, or a
g. Failure to allege venue may be cured by amendment
portion thereof is situated
- This is so because under the amendments by RA 7961 to
Purpose of Venue rules on venue are designed to insure a just and
Sec. 19 and 33 of BP 129, both RTC and lower courts now
orderly administration of justice or the impartial and evenhanded
have jurisdiction over real action, depending on the value
determination of every action and proceeding
of the property
This presupposes that such real action involves the
title to or possession of real property or any interest
SECTION 1 - Venue of real actions.Actions affecting title to or
therein
possession of real property, or interest therein, shall be
commenced and tried in the proper court which has jurisdiction
Examples:
over the area wherein the real property involved, or a portion
1. Torres v. JM Tuason complaint was entitled to be one
thereof, is situated.
for specific performance but was asking for a deed of sale
Forcible entry and detainer actions shall be commenced
to be issued in their favor
and tried in the municipal trial court of the municipality or city
a. Primary objective and nature of the action was to
wherein the real property involved, or a portion thereof, is
recover the parcel of land
situated.
b. As such, there is a need to make a finding of
ownership which is a real action
SECTION 2 - Venue of personal actions.All other actions may be
c. Action must be commenced in the province where the
commenced and tried where the plaintiff or any of the principal
property is located
plaintiffs resides, or where the defendant or any of the principal
2. Dr. Antonio Lizares, Inc. v. Calalang respondent filed an
defendants resides, or in the case of a non-resident defendant
action to compel petitioner to accept payment for a lot
where he may be found, at the election of the plaintiff.
a. Although the remedy sought was to compel
acceptance of payment, the relief is merely the first
SECTION 3 - Venue of actions against nonresidents.If any of the step to establish his title over the lot
defendants does not reside and is not found in the Philippines, b. The action was in reality a real action
and the action affects the personal status of the plaintiff, or any 3. Where action affects, not only the possession but also title
property of said defendant located in the Philippines, the action to real property, it should be instituted in the court where
may be commenced and tried in the court of the place where the property is situated
plaintiff resides, or where the property or any portion thereof is 4. If complainant seeks to annul deeds of sale and to obtain a
situated or found. declaration of ownership, action is real action
5. Deudor v. JM Tuason plaintiffs claimed that their action
SECTION 4 - When Rule not applicable.This Rule shall not was one for rescission but they prayed for reconveyance of
apply the land; it was a real action
(a) In those cases where a specific rule or law provides 6. Where the primary object of the action is to nullify
otherwise; or defendants title to a land, with an alternative prayer for a
(b) Where the parties have validly agreed in writing before sum of money, action is a real action
the filing of the action on the exclusive venue thereof.

47
 7. If the plaintiff is primarily interested in establishing his
right to recover possession of land, it is a real action
8. Where main relief sought is the delivery of the Torrens
Title which is entirely dependent on who has a better right
to the land, action is a real action
9. Action to declare a certain lot as conjugal is a real action
When an action involves various parcels of land situated in different
provinces
- Venue is determined by the singularity or plurality of the
transactions involving said parcels of land:
1. If the parcels are object of one and the same
transaction venue is with the Court which has
jurisdiction over any of the provinces wherein a
parcel is located
Judgment therein rendered can be executed in
the other provinces where the rest of the real
estate is located
2. If parcels are subject to separate and distinct
transactions no common venue; separate actions
should be laid in the court which has jurisdiction over
the province wherein each parcel is situated
PERSONAL ACTIONS
Actions Founded on Privity of Contract
- If action is founded on privity of contract between the
parties, then the action whether debt or covenant, is
transitory
- If there is no privity of contract and the action is founded
on privity of estate only, then the action is local
Venue in Personal Actions: at the election of plaintiff:
1. Where the plaintiff or any of the principal plaintiffs reside;
or
2. Where the defendant or any of the principal defendants
reside; or
3. In case of non-resident defendant where he may be found
Distinguish Residence and Domicile
- Residence is used to indicate a place of abode, whether
permanent or temporary
- Domicile denotes a fixed permanent residence to which
when absent, one has the intention of returning
The term resides as employed in the rule on venue on personal
actions means the place of abode, whether permanent or temporary,
of the plaintiff or defendant
Rescission of Contracts (as discussed in Cabutihan v. Landcenter
Construction and Development Corporation)
A breach of contract gives rise to a cause of action for
specific performance or for rescission. This would depend on the
objective of the action.
Actions affecting title to or possession of real property or
an interest therein shall be commenced and tried in the proper court
that has territorial jurisdiction over the area where the real property
is situated.
All other actions shall be commenced and tried in the
proper courts where the plaintiff/defendant or any of the principal
plaintiffs/defendants resides.
A case for specific performance with damages is a personal
action. In the present case, petitioner seeks payment of her services
in accordance with the undertaking the parties signed and is a
personal action.
48
Examples of Personal Actions:
1. Actions to compel execution of purchase contracts where
there is no issue of title (Adamos v. JM Tuason)
2. Action to annul cancellation of award which does not
involve title and ownership over the properties but seeks
to compel respondent to recognize that the award is valid
and subsisting (Hernandez v. DBP)
3. Action for cancellation of real estate mortgage
a. Where the action is primarily to compel the
mortgagee to accept payment of the mortgage debt
and to release the mortgage, it is a personal action
b. However, an action for nullification of the mortgage
documents and the foreclosure of the mortgaged
properties is a real action that affects title of property
4. Action to recover damages is personal
5. Liquidation of partnership is personal
VENUE AS TO NON-RESIDENTS
Venue of actions against non-residents if any of the defendants
does not reside and is not found in the Philippines, and the action
affects the personal status of the plaintiff, or any property of said
defendant located in the Philippines, the action may be commenced
and tried in the court of the place where the plaintiff resides, or
where the property or any portion thereof is situated or found.
Where a personal action is against principal defendants:
1. One is a resident defendant; and
2. The other is a non-resident defendant but who is in the
Philippines
What is the venue? Venue may be laid either:
a. Where the resident defendant resides; or
b. Where the non-resident defendant may be found; and,
(Sec. 2)
c. An additional alternative avenue: Residence of any of the
principal plaintiffs (Sec. 2 and 3)
OBSERVE: When there is more than one defendant or plaintiff, the
residences of the PRINCIPAL parties should be the basis for
determining proper venue
Where plaintiff is a non-resident but is permitted to sue here
- Like in the case of foreign corporation with the requisite
license under Sec. 123 of the Corp Code
- Venue is:
1. If PERSONAL -- the place where defendant resides
2. If REAL where the real property or part thereof is
situated
- The alternative venue granted to plaintiffs is not available
to a non-resident
But where it is the defendant who is a non-resident and is not found
in the Philippines
- Civil actions are proper ONLY when the action affects:
1. The personal status of plaintiff, or
2. The property of the defendant
- In which case, Sec. 2 determines venue
VENUE BY AGREEMENT OF PARTIES
Venue determined by Stipulation where the parties have validly
agreed in writing before the filing of the action on the exclusive
venue thereof, agreement prevails whether the action is real or
personal
Stipulations as to Venue may be Permissive or Mandatory
Stipulations in a contract which specify a definite place for
the institution of an action do not, as a rule, supersede the general
rules on the matter set out in Rule 4, but should be construed merely
as an agreement on an additional forum.
Written stipulations are either mandatory or permissive,
so inquiry must be made as to what they are:
1. Agreement is restrictive the suit may be filed only in the
place agreed upon; mandatory
2. Agreement is permissive parties may file their suits not
only in the place agreed upon but also in the places fixed
by the rules
Look at the language of the stipulation.
Examples:
1. Where it is stipulated that in case of any litigation, the
venue of the action shall be in the City of Manila without
either party reserving the right to choose the venue
a. It can reasonably be inferred that the parties
intended to definitely fix the venue at Manila only
b. Notwithstanding that neither party is a resident
thereof
2. The stipulation that the parties agree to sue and be sued
in the Courts of Manila
a. Does not preclude the filing of suits in the residence
of the parties
b. Plain meaning of the stipulation is that the parties
merely consented to be sued in Manila
c. Qualifying or restrictive words which would indicate
that Manila alone is the venue are absent
d. Stipulation as to venue is permissive
Note, however, the ruling in Zoleta v. Ramillo where the action is
no longer based on the agreement but the tortious act of sending
collection telegrams despite the fact that the obligation had already
been paid, venue is no longer based on the written stipulation but at
the election of the plaintiff as fixed by law.
As to Corporations and Sole Proprietorships
1. Corporations venue is the place of business
2. Sole proprietorship venue is the residence of plaintiff or
defendant and not the place of business
Unimasters Conglomeration, Inc. v. CA upheld the Polytrade
principle (Polytrade Corporation v. Blanco):
- Of the essence is the ascertainment of the parties
intention in their agreement governing the venue of
actions between them
- Ascertainment must be done keeping in mind that
convenience is the foundation of venue regulations
- Construction should be adopted which most conduces
thereto
- Invariable construction placed on venue stipulations is
that they do not negate but merely complement or add to
the codal standards of Rule 4
- Unless the parties make very clear, by employing
categorical and suitably limiting language, that they wish
the venue between them to be laid only and exclusively at
a definite place, and to disregard the prescriptions of Rule
4m agreements on venue are not to be regarded as
mandatory or restrictive, but merely permissive or
complementary of Rule 4
Justice Regalado, in his separate concurring opinion, suggested some
parametric qualifications on venue stipulations:
1. The agreement on venue shall, in the first instance, be
normally considered as merely permissive
49
2. To be restrictive, the language or terminology employed in
the stipulation must be unequivocal and admit of no
contrary or doubtful interpretation
3. In case of irreconcilable doubt, venue provision shall be
deemed to be permissive
4. In ascertaining the intent in that provision which
reasonably admits of more than one meaning, the
construction should be adopted which most conduces to
the convenience of the parties
The Court takes caution in contracts of adhesion
- Greater caution on a case to case basis must be adopted by
the courts where such stipulation is contained in a
contract of adhesion
- The rule on restrictive venue stipulations should not apply
where it would be violative of a settled and important
policy of the State
- Where the venue stipulation would be contrary to public
policy of making courts accessible to all who may have
need of their service, the stipulation is void and
unenforceable
- Agreements as to venue is oppressive when venue
stipulations work injustice or deny the party concerned
access to courts by reason of poverty
Additional Limitations
- Exclusive venue stipulation embodied in a contract
restricts or confines parties thereto when the suit relates
to the breach of the said contract
- But where the exclusivity clause does not make it
necessarily all encompassing, such that even those not
related to enforcement of contract should be subject to the
exclusive venue, the stipulation designating exclusive
venues should be strictly confined to the specific
undertaking or agreement
VENUE AS DETERMINED BY THE LAW
Venue as Determined by Rules - see BP 129
- Under Sec. 18, BP 129, the SC shall define the territory
over which a branch of the RTC shall exercise its authority
- Territory thus defined shall be deemed to be the territorial
area of the branch concerned for the purpose of
determining the venue of all suits, proceedings, actions,
civil or criminal, as well as the MTCs over which said
branch may exercise appellate jurisdiction
Venue in Special Proceedings
1. Settlement of estate of deceased Sec. 1, Rule 73
a. If deceased is Philippine inhabitant at time of death
RTC in the province in which he resides at time of
death
b. If inhabitant of foreign country RTC of any province
in which he had estate
2. Escheat proceedings Sec. 1, Rule 91
a. If resident RTC of province where he last resided
b. If non-resident RTC of province in which he had
estate
3. Guardianship of person or estate of an incompetent Sec.
1, Rule 92
a. If resident RTC of province where he resides
b. If non-resident RTC of province wherein his
property or part thereof is situated
4. Trustee Sec. 1, Rule 98
a. If will allowed in the Philippines RTC in which the
will was allowed
 b. If not by the RTC of province in which the property
or some portion thereof, affected by the trust is
situated
5. Inter-Country Adoption Sec. 10, RA 8043
a. With the RTC having jurisdiction over the child; or
b. With the ICA board
6. Proceedings for the hospitalization of the insane Sec. 1,
Rule 101; RTC of province where person alleged to be
insane is found
7. Habeas Corpus:
a. Sec. 2, Rule 102 in the SC, CA, RTC, enforceable only
within the judges region
b. Sec. 34, BP129 in the MTC in the absence of all RTC
judges
8. Change of name Sec. 1, Rule 103, in RTC of province in
which person desiring to change his name resides
9. Absentees Sec. 1, Rule 107; in RTC where the absentee
resided before his appearance
10. Cancellation or correction of entries in civil registry Sec.
1, Rule 108, in RTC where the civil registry is located
Venue as Fixed by Law
1. Filed in the proper court of the place where the child
resides (Art. 250 FC) in the following cases:
a. Art. 223 petitions for an order providing for
disciplinary measures over the child
b. Art. 225 in case of disagreement in the exercise of
legal guardianship over the property of the
unemancipated child
c. Art. 235 approval of agreement as to emancipation
2. Guardianship of Minors
a. If minor is resident Family court of the province or
city where minor resides
b. If non-resident Family court of province or city
where his property or part thereof is situated
3. Rule on Adoption family court of the province or city
where the prospective adoptive parents reside (Sec. 6,
Rule on Adoption)
4. Rules of Procedure on Corporate Rehabilitation RTC
having jurisdiction over territory where debtors principal
office is located (Rule 3, Sec. 2)
5. Rules on Procedure for Intra-Corporate Controversies
a. In RTC which has jurisdiction over the principal office
b. Where the principal office is registered in the SEC as
Metro Manila, action must be filed in the City or
municipality where head office is located (Sec. 5)
6. Rules on Declaration of Absolute Nullity of Marriage in
the family court
7. Annulment of voidable marriages and for legal separation
cases
a. Family court of province or city where petitioner or
respondent has been residing for at least 6 months
prior to filing
b. If non-resident respondent, where he may be found in
the Philippines at election of petitioner
c. In stations where no family courts are designated,
case is raffled among RTC branches within the same
station
8. Rule on custody of minors and writ of habeas corpus in
relation to custody of minors family court of the province
or city where the petitioner resides or where they may be
found
9. Rule on commitment of children
a. Petition for involuntary commitment family court of
province or city in which parent or guardian resides
or where child is found
b. Petition for voluntary commitment family court of
province or city where child placement agency or
50
child-caring agency to which the child has been
voluntarily committed is located or where child may
be found
c. Petition for commitment of disabled child family
court of place where parent or guardian or where
child resides
10. Rules on VAWC
a. With the family court where offended party resides
b. Application for BPO rules on venue under Sec. 409
of LGC of 1991 applies
11. Katarungang Pambarangay venue
a. Disputes between persons actually residing in the
same barangay shall be brought for amicable
settlement before the lupon
b. Those involving actual residents of different
barangays within the same city or municipality shall
be brought in the barangay where the respondent or
any of the respondents actually resides, at election of
complainant
c. All disputes involving real property or any interest
therein shall be brought in the barangay where the
real property or larger portion thereof is situated
d. Those arising at the workplace where the contending
parties are employed or at the institution where such
parties are enrolled for study shall be brought in the
barangay where such workplace or institution is
located
12. Libel cases see Art. 360 RPC
a. Whether offended party is a public official or private
person, file with the RTC of the province or city where
libelous article is printed and first published
b. If offended party is private individual, action may also
be filed in the RTC of the province where he actually
resided at the time of the commission of the offense
c. If offended party is public officer, whose office is in
Manila at the time of commission, action may be filed
in the RTC of Manila
d. If offended party is a public officer holding office
outside of manila, action may be filed in the CFI of
province or city where he held office at the time of the
commission of the offense
Note that the rule on venue refers to the FILING of actions
- As such, if it is not an action, rules on venue dont apply
- An extra-judicial foreclosure of mortgage is NOT an action
IMPROPER VENUE
The ground of improper venue is placed on the same footing as the
other grounds for a motion to dismiss enumerated in Sec. 1, Rule 16
- It is entitled to the same considerations
- If it is not raised in a motion to dismiss, it may be alleged
as an affirmative defense in the answer for a preliminary
hearing thereon
- It is likewise subject to the sanction in Sec. 1, Rule 9 in
that if it is not pleaded as an objection (either in a motion
to dismiss or in a the answer), it is deemed waived
END OF RULE 4
NOTES ON RULE 4

51
NOTES ON RULE 4

52

RULE 5
UNIFORM PROCEDURE IN TRIAL COURTS
SECTION 1 - Uniform procedure.The procedure in the Municipal
Trial Courts shall be the same as in the Regional Trial Courts,
except (a) where a particular provision expressly or impliedly
applied only to either of said courts, or (b) in civil cases governed
by the Rule on Summary procedure.
SECTION 2 - Meaning of terms.The term Municipal Trial
Courts as used in these Rules shall include Metropolitan Trial
Courts, Municipal Trial Courts in Cities, Municipal Trial Courts,
and Municipal Circuit Trial Courts.
REVISED RULES ON SUMMARY PROCEDURE
Condensed
Sec. 1 Scope rule shall govern the summary procedure in the MTC,
MTC in Cities, MCTC in the following cases falling within their
jurisdiction:
A. Civil Cases
1. Cases of forcible entry and unlawful detainer
a. Irrespective of the amount of damages or unpaid
rentals sought to be recovered
b. Where attorneys fees are awarded, it shall not
exceed P20,000
2. All other civil cases where total amount of plaintiffs
claim does not exceed P100,000 or P200,000 in
Metropolitan Manila, exclusive of interest and costs
a. EXCEPT: probate proceedings
B. Criminal Cases
1. Traffic laws, rules, and regulations violation
2. Rental law violations
3. Municipal or city ordinance violations
4. All other criminal cases where penalty prescribed by
law for offense charged is imprisonment not exceeding
6 months and/or a fine not exceeding P1,000
a. Irrespective of other imposable penalties,
accessory or otherwise, or of civil liability arising
therefrom
b. In offenses involving damage to property through
criminal negligence, this rule shall govern where
imposable fine does not exceed P10,000
Rule shall not apply:
1. To a civil case where plaintiffs cause of action is pleaded in
the same complaint with another cause of action subject to
ordinary procedure
2. To a criminal case where offense charged is necessarily
related to another criminal case subject to ordinary
procedure
Notes:
- Rules on summary procedure do not apply to forcible
entry and unlawful detainer
- Rule on summary procedure applies only to cases filed
before the MTC (Sec. 16, BP 129)
a. It has no application to cases before RTC
b. Appeals of MTC decisions to the RTC are governed by
the rules of the latter court
Sec. 2 Determination of Applicability
A. Upon filing of action, court shall issue an order declaring
whether or not the case shall be governed by this Rule
B. Patently erroneous determination to avoid application of
summary procedure rules = ground for disciplinary action
53
II. Civil Cases
(Condensed)
Sec. 3 Pleadings
A. Pleadings allowed to be filed:
1. Complaints
2. Compulsory counterclaims and cross-claims pleaded in
the answer
3. Answers thereto
B. All pleadings shall be verified
Sec. 4 Duty of Court
A. After determination that the case falls under summary
procedure, court may dismiss the case outright on any of the
grounds apparent therefrom for the dismissal of a civil
action; based on:
1. From an examination of the allegations therein
2. And such evidence as may be attached thereto
B. If no ground for dismissal is found:
1. Court shall issue summons
2. Summons shall state that summary procedure shall
apply
Sec. 5 Answer
A. Within 10 days from service of summons:
1. Defendant shall file his answer to the complaint
a. Affirmative and negative defenses not pleaded
therein shall be deemed waived
(1) EXCEPT: for lack of jurisdiction over the
subject matter
b. Cross-claims and compulsory counterclaims not
asserted shall be considered barred
2. Defendant to serve a copy thereof on the plaintiff
B. Within 10 days from service of the answer
1. Answer to counterclaims or cross-claims shall be filed
and served
Notes:
- Parties are not prohibited from filing an answer with
affirmative defenses in cases falling under summary
procedure
a. But the trial courts are enjoined from conducting a
preliminary hearing on such affirmative defenses to
prevent unnecessary delay
- Adjudication of the case can be done on the basis of
affidavits or other evidence
- Proceeding must be as summary as possible
- Filing of an answer within the reglementary period is
mandatory and non-extendible
a. The Rules use the word Shall
b. Giving the provisions a directory application would
subvert the nature of the rule and defeat its objective
- Affidavit filed within the period to answer may be
considered as an answer
Sec. 6 Effect of Failure to Answer
A. If defendant fail to answer the complaint within the period
provided:
1. Court (motu proprio or on motion of plaintiff) shall
render judgment
2. Judgment:
a. As may be warranted by the facts alleged in the
complaint and
b. Limited to what is prayed for
B. The court may in its discretion reduce the amount of
damages and attorneys fees claimed
1. For being excessive or unconscionable
 2. Without prejudice to the applicability of Sec. 4, Rule 18
ROC, if there are 2 or more defendants
Notes:
- Sec. 6 allows the trial court to render judgment, even motu
proprio, upon failure of defendant to file answer within the
reglementary period
- The Rule do not provide that an answer filed after the
reglementary period should be expunged from the records
a. There is no provision for an entry of default when
defendant fails to file his answer
- Defense of lack of jurisdiction may be met and ruled
squarely by the court, as this may even be raised in a
motion to dismiss as an exception to the rule on prohibited
pleadings in summary procedure
- Motion to dismiss which involves grounds that may qualify
as defenses in an answer should be treated as an answer
Sec. 7 Preliminary Conference; appearance of parties
A. A preliminary conference shall be held
1. Not later than 30 days after the last answer is filed
2. Rules on pre-trial in ordinary cases shall be applicable
unless inconsistent with the provisions of this Rule
B. Failure of plaintiff to appear in preliminary conference
1. Cause for dismissal of complaint
2. Defendant who appears in the absence of plaintiff shall
be entitled to judgment on his counterclaim in
accordance with Sec. 6
3. All cross-claims shall be dismissed
C. If sole defendant shall fail to appear
1. Plaintiff entitled to judgment in accordance with Sec. 6
2. Rule shall not apply where one of 2 or more defendants
sued under a common cause of action who had pleaded
a common defense shall appear at preliminary
conference
Notes:
- Provision requires that immediately after the preliminary
conference, MTC should issue an order clearly and
distinctly setting forth the issues
- Preliminary conference:
a. Where parties are admonished to settle their dispute
amicably
b. If amicable settlement not possible, to narrow, clarify
and define the issues of the case
- Sec. 6 is made mandatory by the use of auxiliary verbs
shall and must
a. But it does not follow that the absence of preliminary
conference would necessarily render nugatory the
proceedings (Martinez v. De La Merced)
b. Unless there is a showing of substantial prejudice
caused to a party, the trial courts inadvertent failure
to calendar the case for pre-trial or preliminary
conference cannot render proceedings illegal or void
ab initio
- Partys failure to object to the absence of pre-trial is
deemed a waiver
- Rule allows the application of the Rules on pre-trial
a. But only where the provisions of the latter are
consisted with the former
b. The latter is merely secondary thereto
- Note that it is only when the defendant failed to answer
the complaint may the court proceed to judgment
a. When defendant did file an answer to the complaint,
trial court may not declare him in default
b. A motion to declare defendant in default is a
prohibited pleading under Sec. 15(h) of the rules on
summary procedure
54
Sec. 8 Record of Preliminary Conference
A. Court shall issue an order stating the matters taken up
therein, including but not limited to:
1. Whether the parties have arrived at an amicable
settlement, and if so, the terms thereof
2. Stipulations or admissions entered into by the parties;
3. Whether, on the basis of pleadings and stipulations and
admission made, judgment may be rendered without
need for further proceedings
a. In which event, judgment shall be rendered within
30 days from issuance of order
4. Clear specification of material facts which remain
uncontroverted; and
5. Such other matters intended to expedite the disposition
of the case
B. WHEN: Within 5 days after termination of the preliminary
conference
Sec. 9 Submission of affidavits and position papers
A. Within 10 days from receipt of the order in Sec. 8, parties
shall submit:
1. Affidavits of their witnesses
2. Other evidence on the factual issues defined in the
order
3. Position papers setting forth the law and facts relied
upon by them
Notes:
- Formal offer of evidence applicable only to ordinary trials
not to cases covered by the rule on summary procedure
- Failure of adverse party to reply does not ipso facto render
the facts set forth therein duly proven
a. Plaintiffs still has the burden of proving their cause of
action
b. Since they are the ones asserting affirmative relief
- Particular item of evidence may be admissible but
evidentiary weight depends on judicial valuation provided
by the rules of evidence
- Joint counter-affidavit which sets forth defenses and raises
issues and counterclaims may be considered as an answer
- A defective complaint in summary procedure may be
cured by the allegations in the position paper (Dula v.
Maravilla)
a. Similar to a complaint, which fails to state a cause of
action, may be cured by evidence presented during
trial in regular procedure
b. For this to apply, plaintiff must have a valid and
subsisting cause of action at the time of the
commencement of action (Sepulveda Sr., v. Pelaez)
Sec. 10 Rendition of judgment
A. Court shall render judgment within 30 days after:
1. Receipt of last affidavits and position papers, or
2. The expiration of the period for filing the same
B. Court may issue an order for matters than need to be
clarified (clarificatory procedure)
1. Should the court find it necessary to clarify certain
matters of facts
2. Order is issued within the same period
3. Parties are required to submit affidavits and other
evidence on said matters within 10 days from receipt of
said order
4. Judgment rendered within 15 days after receipt of last
clarificatory affidavits, or expiration of the period for
filing the same
C. Clarificatory hearings shall not be resorted to gain time for
rendition of judgment
Notes:
- Note that trial courts are no longer allowed to conduct a
clarificatory hearing after submission of affidavits and
submission papers
a. If court desires to clarify certain material facts, it may
require parties to submit affidavits or other evidence
- A court cannot resort to clarificatory procedure when
parties fail to submit their affidavits and position paper as
required by Sec. 9
- Courts cannot issue subpoena duces tecum in cases triable
summarily merely on the basis of the answers
- It is only after evaluating the affidavits and position papers
submitted by the parties that the court can determine
whether he should resort to the clarificatory procedure in
Sec. 10
- If any of the parties fail to submit evidence and position
papers within the reglementary period, court cannot set
the clarificatory procedure
IV. Common Provisions
(Condensed)
Sec. 18 Referral to Lupon Cases requiring referral to the Lupon for
conciliation under the provisions of PD 1508 where there is no
showing of compliance with such requirement, shall be dismissed
without prejudice and may be revived only after such requirement
shall have been complied with. This provision shall not apply to
criminal cases where the accused was arrested without a warrant.
Notes:
- Sec. 18 mandates that non-referral shall result in dismissal
a. Dismissal is without prejudice
b. Except in criminal cases where the accused is in
custody without a warrant
- While referral is not jurisdictional, the intent is to increase
awareness on the need for conciliation
- The rules regarding finality of judgment under the ROC
apply to cases covered by the 1991 Revised Rules on
Summary Procedure
- A judgment or order which is not appealed or made
subject of a motion for reconsideration within the
prescribed 15 day period attains finality
Sec. 19 Prohibited pleadings and motions
The following pleadings, motions, or petitions shall not be
allowed in the cases covered by this Rule:
1. Motion to dismiss the complaint or to quash the complaint
or information except on the ground of lack of jurisdiction
over the subject matter, or failure to comply with the
preceding section;
2. Motion for a bill of particulars
3. Motion for new trial, or for reconsideration of a judgment,
or for re-opening of trial
4. Petition for relief from judgment
5. Motion for extension of time to file pleadings, affidavits or
any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against
any interlocutory order issued by the court;
8. Motion to declare defendant in default
9. Dilatory motions for postponement
10. Reply
11. Third-party complaints
12. Interventions
55
Notes:
- Motion to dismiss that is prohibited by the rules is a
motion to dismiss which would stop the running of the
period to file an answer and cause undue delay
- Where no answer is filed, court may not declare defendant
in default because a motion to declare defendant in default
is a prohibited pleading
- When the rule on summary procedure bars a petition for
relief from judgment of a petition for certiorari,
mandamus, or prohibition against any interlocutory order,
a. It has in mind:
1. Sec. 1, Rule 38 on petitions for relief from
judgment; and
2. Rule 65 regarding petitions for certiorari,
mandamus, or prohibition
b. Aforementioned petitions are cognizable by the RTCs,
not the MTCs
c. If Sec. 19 RSP and Rules 38 and 65 ROC are
juxtaposed, conclusion is that no petition for relief
from judgment nor a special civil action for certiorari,
prohibition, or mandamus arising from a judgment
nor a special civil action of certiorari, prohibition, or
mandamus arising from cases covered by the RSP
may be filed with a superior court
Sec. 20 Affidavits
A. Affidavits required to be submitted under this Rule:
1. Shall state only facts of direct personal knowledge of
the affiants which are admissible in evidence;
2. Shall show their competence to testify to the matters
stated therein
B. Violation of this requirement:
1. May subject the party of the counsel who submits the
same to disciplinary action
2. Shall be cause to expunge the inadmissible affidavit or
portion thereof from the record
Sec. 21 Appeal
A. Judgment or final order shall be appealable to the
appropriate RTC
1. RTC shall decide the same in accordance with Sec. 22,
BP 129
2. Decision of the RTC in civil cases governed by this Rule,
including forcible entry and unlawful detainer, shall be
immediately executory
a. Without prejudice to a further appeal that may be
taken therefrom
B. Sec. 10, Rule 70 shall be deemed repealed
Sec. 22 Applicability of the regular rules The regular procedure
prescribed in the Rules of Court shall apply to the special cases herein
provided for in a suppletory capacity insofar as they are not
inconsistent therewith,
Sec. 23 Effectivity This revised Rule on Summary Procedure shall be
effective on November 15, 1991.
The foregoing rules no longer apply to cases of Forcible
Entry and Unlawful Detainer cases under Rule 70 since the pertinent
and applicable provisions thereof have already been incorporated in
Rule 70.
 THE KATARUNGANG PAMBARANGAY LAW The parties may, at any stage of the proceedings, agree in writing to
Title I, Book III, RA 7160 have the matter in dispute decided by arbitration by either the
Condensed Punong Barangay or Pangkat.

No complaint, petition, action, or proceeding involving any matter The settlement and arbitration agreement may be repudiated on the
(between individuals or natural persons) within the authority of the ground that consent is vitiated by fraud, violence, or intimidation.
lupon shall be filed or instituted directly in court or any other Such repudiation shall be sufficient basis for the issuance of the
government office or adjudication certification for filing a complaint in court or any government office
- UNLESS: for adjudication (10 days to repudiate).
1. There has been confrontation between the parties
before the lupon chairman or pangkat; and Rules on Venue under the Katarungang Pambarangay Law
2. That no conciliation or settlement has been reached 1. Disputes between residents of the same barangay shall be
or unless the settlement has been repudiated by the brought for settlement before the lupon of said barangay
parties thereto 2. Residents of different barangays within the same city or
municipality in the barangay where the respondent or
Cases not covered by the Katarungang Pambarangay Law any of the respondents reside at the election of
(Substantive Exceptions) complainant
1. Where one party is the government or any subdivision or 3. Disputes involving real property or any interest therein
instrumentality thereof where real property or larger portion thereof is located
2. Where one party is a public officer or employee, and the 4. Disputes arising at the workplace where contending
dispute relates to the performance of his official functions; parties are employed or at the institution where such
3. Offenses punishable by imprisonment exceeding 1 year or parties are enrolled for study in the barangay where
a fine exceeding P5,000 such workplace or institution is located
4. Offenses where there is no private offended party
5. Where the dispute involves real properties located in
different cities or municipalities END OF RULE 5
a. UNLESS the parties thereto agree to submit their
differences to amicable settlement by an appropriate
lupon
6. Disputes involving parties who actually reside in
barangays or different cities or municipalities
a. EXCEPT:
(1) Where such barangay units adjoin each other;
and
(2) The parties thereto agree to submit their
differences to amicable settlement by an
appropriate lupon
7. Such other classes of disputes which the president may
determine in the interest of justice; and
8. Where one of the parties is a juridical entity

The court in which non-criminal cases not falling within the

authority of the lupon are filed may, at any time before trial, motu
proprio refer the case to the lupon concerned for amicable
settlement.

While the dispute is under mediation, conciliation, or arbitration, the

prescriptive periods for offenses and cause of action under existing
laws shall be interrupted upon filing of the complaint with the
punong barangay. Such interruption shall not exceed 60 days from
time of filing of complaint with punong barangay.

The parties may go directly to court in the following instances:

(Procedural Exceptions):
1. Where the accused is under police custody or detention
2. Where the person has otherwise been deprived of
personal liberty calling for habeas corpus proceeding;
3. Where the actions are coupled with provisional remedies
such as preliminary injunction, attachment, delivery of
personal property, and support pendente lite;
4. Where the action may otherwise be barred by the statute
of limitations;
5. Labor disputes (Montoya v. Escayo)
6. Actions to annul judgment upon a compromise (Sanchez v.
Tupaz)
7. CARL disputes;
8. Disputes involving the traditions of indigenous cultural
community

56

RULES ON SUMMARY PROCEDURE IN CIVIL CASES
Court may summon the defendant
Within 10 days from receipt of
summons, defendant answers,
incorporating compulsory
counterclaim, or cross-claim, and
serves a copy to plaintiff
Answer to counterclaim and cross-
claim within 10 days
Preliminary conference within 30
days after last answer is filed
Within 5 days after conference,
court issues record of preliminary
conference
Within 10 days from receipt of
order, submission by the parties of
affidavits and position papers
Rendition of judgment within 30
days from receipt of last affidavit
or within 15 days after last
clarificatory paper
NOTES ON RULE 5
Filing of verified complaint with RTC
Court may dismiss outright
If defendant fails to answer in 10
days, the court motu-proprio or on
plaintiffs motion, may render
judgment based on facts alleged in
the complaint without prejudice to
Rule 9, Sec. 3
If plaintiff fails to appear in
preliminary conference, complaint
may be dismissed. Defendant
entitled to decision based on his
counterclaim. All cross-claims
dismissed
If sole defendant fails to appear,
plaintiff is entitled to judgment
based on complaint and what is
proven therein
57
NOTES ON RULE 5

58
 The Nine Pleadings Allowed:
1. Complaint
2. Counterclaim
3. Cross-claim
4. Third-party complaint
5. Complaint-in-intervention
6. Answer
RULE 6 7. Reply
8. Counter-counterclaim; and
KINDS OF PLEADINGS 9. Counter-cross-claim

SECTION 3 - Complaint.The complaint is the pleading alleging

SECTION 1 - Pleadings defined.Pleadings are the written
the plaintiffs cause or causes of action. The names and
statements of the respective claims and defenses of the parties
residences of the plaintiff and defendant must be stated in the
submitted to the court for appropriate judgment.
complaint.
Pleadings
Notes
- The term includes all papers filed, excluding evidentiary
- Provision is also true and are applicable to other initiatory
matters, from the complaint down to the judgment
pleadings, as well as to petitions filed in the trial or
- Documents attached to the pleadings and made a part
appellate courts
thereof are considered evidence and also part of pleadings
- Note however that in appellate courts, it is the act of the
(Asia Banking Corp. v. Oslen & Co.)
lower court which is complained of that has to be alleged,
- A bill of particulars constitutes part of the pleading that it
instead of a cause of action
supplements (Sec. 6, Rule 12)
- Jurisdiction of the court and the nature of the action are
- A covering letter for a pleading is not part of the latter
determined by the averments of the complaint
(Clorox Co. v. Director of Patents)
- Prayer for relief is not controlling on the court and is
merely advisory as to the nature of the action (See Sec. 2,
Purpose of Pleadings:
Rule 7)
1. To apprise the court of the rival claims in a judicial
controversy submitted for trial and decision.
Ultimate Facts
2. To draw a line of battle between the litigants and to
- Refer to the essential facts constituting the plaintiffs cause
indicate fairly the nature of the claims or defenses of both
of action
parties
- A fact is essential if it cannot be stricken out without
a. A party cannot subsequently take a position
leaving the statement of the cause of action insufficient
contradictory to or inconsistent with his pleadings
- Test of sufficiency of facts alleged in the complaint
b. Issues in a case are limited to those presented in
determine whether upon the averment of facts, a valid
pleadings
judgment may be properly rendered
3. To define the issues and form the foundation of proof to be
submitted during the trial as well as advice a party to what
SECTION 4 - Answer.An answer is a pleading in which a
his adversary would rely on as a cause of action or as
defending party sets forth his defenses.
defense so that he would properly be prepared at the trial
to meet the issues raised
Answer is the pleading where the defendant sets forth his
affirmative or negative defenses. It may or may not contain a
PLEADING MOTION
counterclaim. It may likewise be the response to a counterclaim or
Purpose: to submit a claim or
Purpose: to apply for an order cross-claim
defense for appropriate
not included in the judgment
judgment
SECTION 5 - Defenses.Defenses may either be negative or
Cannot be initiatory as they are
affirmative.
May be initiatory always made in a case already
(a) A negative defense is the specific denial of the material
filed in court
fact or facts alleged in the pleading of the claimant
May be filed even after
Always filed before judgment essential to his cause or causes of action.
judgment
(b) An affirmative defense is an allegation of a new matter
Only 9 kinds of pleading are Any application for relief not by which, while hypothetically admitting the material
allowed by the rules a pleading is a motion allegations in the pleading of the claimant would
May be oral when made in open nevertheless prevent or bar recovery by him. The
Must be written court or in the course of a affirmative defenses include fraud, statute of limitations,
hearing or trial release payment, illegality, statute of frauds, estoppel,
former recovery, discharge in bankruptcy, and any other
matter by way of confession and avoidance.
SECTION 2 - Pleadings allowed.The claims of a party are
asserted in a complaint, counterclaim, cross-claim, third (fourth, Sec. 5(a) defines a NEGATIVE DEFENSE
etc.)party complaint, or complaint-in-intervention. - It is the specific denial of the material facts or facts alleged
The defenses of a party are alleged in the answer to the in the pleading of the claimant essential to his cause of
pleading asserting a claim against him. action
An answer may be responded to by a reply. - A denial is not specific just because it is so qualified (Agton
v. CA)

59
 This is especially true where a blanket denial is made
of all the averments of the complaint instead of
dealing particularly with each
Such general denial will be deemed admission of the
averments in the complaint
- To be considered specific, see Sec. 10, Rule 8
Sec. 5(b) defines and illustrates an AFFIRMATIVE DEFENSE
- It is an allegation of a new matter which, hypothetically
admitting the material allegations in the pleading of the
claimant, would nevertheless prevent or bar recovery by
him
- The enumeration is not exclusive; some affirmative
defenses which should be specifically pleaded include:
1. Res judicata
2. Ultra vires acts of a corporation
3. Laches
4. Unconstitutionality
- Note also that if no motion to dismiss had been filed, any of
the grounds therefor may be raised as an affirmative
defense in the answer (Sec. 6, Rule 16)
Insufficient denial or denial amounting to admissions:
1. General denial; and
2. Denial in the form of a negative pregnant
Negative Pregnant is a denial in such form as to imply or express
an admission of the substantial fact, which apparently is
controverted. It is a form of denial which really admits the important
facts contained in the allegations to which it relates.
While it is a denial in the form its substance actually has
the effect of an admission because of a too literal denial of the
allegation sough to be denied. This arises when the pleader merely
repeats the allegations in a negative form.
Notes:
- The rules made it clear that the admission to be drawn
from an affirmative allegation is merely hypothetical
- Justice Feria: an affirmative defense does not require that
the defending party admit, expressly or impliedly, the
material allegations of the complaint
a. It is an allegation of new matter which, while
hypothetically admitting the material allegations in
the pleading of the claimant, would prevent or bar
recovery
- Note also that a collateral attack on Torrens Title as
affirmative defense is not allowed
a. Vda. De Villanueva v. CA the issue of invalidity of
the titles as a defense in an answer/counterclaim to
respondents action for recovery of ownership
partakes of the nature of a collateral attack and is an
indirect challenge to the final judgment and decrees
of registration which resulted in the issuance of titles
b. Sec. 48, PD 1529 (Property Registration Act) requires
no less than a direct action for reconveyance duly
filed within the period provided for by law
SECTION 6 - Counterclaim.A counterclaim is any claim which a
defending party may have against an opposing party.
Nature of Counterclaim
- It partakes of the nature of a complaint or a cause of action
against a plaintiff
a. A cross-claimant or a counterclaimant is a plaintiff on
the cross-claim or counterclaim
60
- Where defendant who is a counter-claimant and therefore
a plaintiff in his counterclaim dies, a simple motion for
substitution is permissible under Rule 3
Direct Attack and Collateral Attack Distinguished
1. Direct attack
a. A direct attack against a judgment is made to an
action or proceeding
b. Main object of which is to annul, set aside, or enjoin
the enforcement of such judgment
c. If not yet carried into effect or if property has been
disposed of, aggrieved party may sue for recovery
2. Collateral attack
a. It is made when, in another action to obtain a
different relief, an attack on the judgment is made as
an incident to such action
b. This is proper only when:
(1) The judgment, on its face, is null and void; or
(2) Where it is patent that the court which rendered
said judgment has no jurisdiction
While a counterclaim may be filed with a subject matter or for a
relief different from those in the basic complaint in the case, it does
not follow that such counterclaim is in the nature of a separate and
independent action in itself (Co v. CA)
- Its allowance in the action is subject to explicit conditions
as set forth particularly in its required relation to the
subject matter of the opposing parties claim
- Failing in that respect, it cannot be entertained as a
counterclaim in the original
a. It must be filed and pursued as an altogether different
and original action
That being said, may a counterclaim be allowed to nullify a Torrens
Title?
1. First school of thought: NOT ALLOWED
a. Where the objective of the claim is to nullify the title
to the property in question, which thereby challenges
the judgment pursuant to which the title was decreed,
this is apparently a collateral attack which is not
permitted under the principle of indefeasibility of
Torrens Title
b. In Co v. CA, the Court held that the issue of validity of
title can only be raised in an action expressly
instituted for that purpose and not by counterclaim
c. Said principle was reiterated in Vda. De Villanueva v.
CA
2. Second school of thought: COUNTERCLAIM ALLOWED AS
DIRECT ATTACK
a. Lenas v. IAC reconveyance of title was granted in a
counterclaim in an action to recover possession
b. Heirs of Santiago v. Heirs of Santiago the court
held that a counterclaim can be considered a direct
attack in the title
c. DBP v. CA it was held that a counterclaim is
considered a complaint, only this time, it is the
original defendant who becomes the plaintiff
d. Leyson v. Bantuyan court held that an attack on a
certificate of title may be an original action or a
counter-claim in which a certificate of title is assailed
as void; a counterclaim is considered a new suit
Counterclaim, Set-off, and Recoupment
1. Counterclaim or Contrarreclamacion
a. Includes both set-off and recoupment and is broader
than both
 b. It includes equitable demands and secures to the SECTION 7 - Compulsory counterclaim.A compulsory
defendant full relief which is a separate action at law counterclaim is one which, being cognizable by the regular courts
and would have secured him on the state of facts of justice, arises out of or is connected with the transaction or
c. Being substantially a cross-action by defendant occurrence constituting the subject matter of the opposing partys
against plaintiff claim and does not require for its adjudication the presence of
2. Set-off or Compensacion third parties of whom the court cannot acquire jurisdiction. Such
a. A money demand by defendant against plaintiff a counterclaim must be within the jurisdiction of the court both as
arising upon contract and constituting a debt to the amount and the nature thereof, except that in an original
independent of and unconnected with the cause of action before the Regional Trial Court, the counterclaim may be
action in the complaint considered compulsory regardless of the amount.
b. May be used to offset a plaintiffs claim but not to
recover affirmatively Purpose the reason for the rule on counterclaims is to avoid
3. Recoupment or Reconvencion multiplicity of suits and to dispose of the whole matter in
a. It differs from a counterclaim in this wise: controversy in one action
(1) Under a counterclaim, defendant may have an
affirmative judgment where he is able to prove a Classification of Counterclaims
demand in excess of the plaintiffs demand 1. Permissive Counterclaim
(2) In recoupment, whatever the damages proved by a. Essentially an independent claim that may be filed
defendant, they can go only to reduce or separately in another case
extinguish the claim against him 2. Compulsory Counterclaim
b. Recoupment must arise out of the contract or a. When its object arises out of or is connected with the
transaction upon which the plaintiffs claim is transaction or occurrence constituting the subject
founded matter of the opposing partys claim and does not
require for its adjudication the presence of third
For Set-off or Recoupment to be considered as counterclaim, the parties of whom the court cannot acquire jurisdiction
following requisites must concur (Lopez v. Gloria and Sheriff of b. Unlike permissive counterclaims, compulsory
Leyte): counterclaims should be set up in the same action,
1. The same be essentially a genuine action of the defendant otherwise they would be barred forever
against the plaintiff c. If a compulsory counterclaim is:
Under this requisite, independent of any other (1) Filed concurrently with the main action but in a
consideration, a genuine action is constituted by different proceeding, it would be abated on the
defendant which could be employed separately ground of litis pendentia
against plaintiff (2) Filed subsequently, abated on the ground of res
2. The same should have as its object, to neutralize, wholly or judicata
partially, that which the plaintiff is trying to obtain
Under this requisite, that the defendant admits the COMPULSORY PERMISSIVE
facts upon which the action of plaintiff is based COUNTERCLAIM COUNTERCLAIM
This requisite is absent if defendant bases his claim One which arises out of or is
It does not arise out of nor is it
on facts which directly destroy the action or cause of necessarily connected with the
necessarily connected with the
action of plaintiff; in this case, the claim of defendant transaction or occurrence that
subject matter of the opposing
would only be a special defense is the subject matter of the
partys claim
3. The same does not have for its object to destroy directly opposing partys claim
the action of the plaintiff; and It may require for its
It does not require for its
Under this requisite, set-off or recoupment may be adjudication the presence of
adjudication the presence of
merely a defense and not a counterclaim if it only third parties over whom the
third parties of whom the court
tends to oppose or to destroy the action of plaintiff court cannot acquire
cannot acquire jurisdiction
4. The same ought not to pray for a positive remedy distinct jurisdiction
from payment of money It is barred if not set up in the It is not barred even if not set
action up in the action
Same Capacity Rule A counterclaim must be filed against an Must be answered, otherwise,
opposing party in the same capacity he is suing (De Borja v. De Need not be answered; no
the defendant can be declared
Borja) default
in default

Note that a counterclaim against counsel is not allowed (Chavez v.
Sandiganbayan)
- A lawyer who acts in the name of a client should not be
sued on a counterclaim in the very same case he has filed
only as a counsel and not as a party
- Any claim for alleged damages or other causes of action
should be filed in an entirely separate and distinct civil
action
- A lawyer cannot properly attend to his duties towards his
client if, in the same case, he is kept busy defending
himself
Note: A plaintiff who fails or chooses not to answer a compulsory
counterclaim may not be declared in default, principally because the
issues raised in the counterclaim are deemed automatically joined
by the allegations of the complaint. (Gojo v. Goyala)
PERMISSIVE COUNTERCLAIMS
Permissive Counterclaim
- Counterclaim is permissive if it does not arise out of, nor is
necessarily connected with, the subject matter of the
opposing partys claim
- This is not barred even if not set up in the action
- Must have independent jurisdictional ground (see notes on
fourth element of compulsory counterclaims)

61
Cases where Counterclaims were Held as Permissive
1. In an action for money, defendants counterclaim for
damages sustained because of supposed illegal detention
by plaintiff is merely permissive (Yap Unki v. Chua Jamco)
2. The civil case in the Pasig Court, which is in effect a
counterclaim to the Manila case, was ordered transferred
and consolidated with the Manila case (Delta v.
Mangosing)
COMPULSORY COUNTERCLAIMS
Requisites of Compulsory Counterclaim:
1. It must be cognizable by regular courts
If a claim is cognizable by other quasi-judicial bodies
(like the NLRC or the SEC) then it cannot be
compulsory
2. It arises out of or is necessarily connected with, the
transaction or occurrence that is the subject matter of the
opposing partys or co-partys claim
3. Does not require for its adjudication the presence of third
parties of whom the court cannot acquire jurisdiction
When the presence of parties other than those to the
original action is required for the granting of
complete relief in the determination of a
counterclaim or cross-claim, the court shall order
them to be brought in as defendants, if jurisdiction
over them can be obtained
4. The trial court has jurisdiction to entertain the claim both
as to the amount and the nature thereof, except that in an
original action before the RTC, the counterclaim may be
considered compulsory regardless of the amount
See separate discussion below
GENERAL RULE: A compulsory counterclaim not set up in the
answer is deemed barred
EXCEPTIONS:
1. If it is a counterclaim which either matured or was
acquired by a party after serving his answer
In this case, it may be pleaded by filing a
supplemental answer or pleading before judgment
(Sec. 9, Rule 11)
2. When a pleader fails to set up a counterclaim through
oversight inadvertence, excusable negligence, or when
justice requires
He may, by leave of court, set-up the counterclaim by
amendment of the pleading (Sec. 10, Rule 11)
A compulsory counterclaim is auxiliary to the original suit
- It is auxiliary to the proceeding in the original suit and
derives its jurisdictional support therefrom
- It presupposes the existence of a claim against the party
filing the counterclaim
- Where there is no claim against a counterclaimant, the
counterclaim is improper and it must be dismissed; more
so where complaint is dismissed at the instance of the
counterclaimant
As to the Fourth Element
- According to Justice Moran, a compulsory counterclaim is
essentially auxiliary or ancillary to the main controversy
- Being ancillary, it needs no independent jurisdictional
grounds to support it, and as a consequence, no
jurisdictional amount is required for its adjudication
- If the court does not have jurisdiction to entertain the
main action of the case and dismissed the same, then the
compulsory counterclaim, being ancillary, must likewise
be dismissed
62
UNLESS: it had independent jurisdictional grounds to
support it
Under Sec. 2 and 3 of Rule 17, where the complaint is
dismissed upon the motion of the plaintiff or due to
the fault of the plaintiff, the defendant may prosecute
his counterclaim in the same or in a separate action
- Note however the language of the present rule:
1. The counterclaim must be within the jurisdiction of
the court both as to the amount and the nature
thereof
2. EXCEPT that in an original action before the RTC, the
counterclaim may be considered compulsory
regardless of the amount (note this is only with
regard to the AMOUNT and not as to NATURE, see
notes below)
- As such, a compulsory counterclaim in the RTC needs no
independent jurisdictional grounds
- However, permissive counterclaims must have
independent jurisdictional ground
In the MTC, a counterclaim beyond the courts
jurisdiction may only be pleaded by way of defense; if
found to be meritorious, complaint may be dismissed
on the ground that the defendant has bigger credit
(Calo v. Ajax)
In Yu Lay v. Galmes, it has been held that the failure
of the defendant to set up, by way of counterclaim,
the credit for a sum greater than that of the justice of
the peaces jurisdiction does not mean that he
thereby loses his right to set it up before a competent
court
The rule that a compulsory counterclaim is barred if
not set up, when applied to MTCs presupposes that
the amount involved is within said courts jurisdiction
Limitations on Jurisdiction over the Nature of the Claim
- While there is no limit on the amount of the claim as far as
the RTC is concerned, the RTC must, however, have
jurisdiction over the nature of the claim
- Regardless if it is the RTC or MTC, the court must have
jurisdiction over the nature of the claim
- Illustrative cases:
1. Vda. De Chua v. IAC it was held that the rules on
jurisdiction in an independent action applies to
counterclaims; a counterclaim for recovery of
possession may be allowed in the RTC but not a
counterclaim for ejectment
2. Chan v. CA it was held that a counterclaim for
ejectment may be set up in a consignation case filed
with the MTC but not with the RTC
3. Zulueta v. Pan Am lack of jurisdiction over the main
case was cured by the compulsory counterclaim
based upon damages already suffered by defendant in
consequence of the filing of the complaint
4. Where the MTC has no jurisdiction in ejectment, it
has also no jurisdiction to entertain counterclaim
NAMARCO v. Federation of United Namarco Distributors Inc. laid
down the following criteria to determine whether a counterclaim is
compulsory: If YES to all four questions = counterclaim is
COMPULSORY
1. Are the issues of fact and law raised by the claim and
counterclaim largely the same?
2. Would res judicata bar a subsequent suit on defendants
claim about the compulsory counterclaim rule?
3. Will substantially the same evidence support or refute
plaintiff's claim as well as defendants counterclaim
4. Is there any logical relation between the claim and
counterclaim?
The Logical Relationship Test Any claim a party has against an
opposing party that is logically related to the claim being asserted by
the opposing party, and that is not within the exception to the rule is
a compulsory counterclaim.
Nexus Between the Phrase Logical Relationship and Purpose of Rule
- A counterclaim is logically related to the opposing partys
claim where separate trials of each of their respective
claims would involve SUBSTANTIAL DUPLICATION of
effort and time by parties and courts
- Where multiple claims involve many of the same factual
issues, or the same factual and legal issues, or when they
are offshoots of the same basic controversy between
parties, fairness and convenience require that the
counterclaimant be permitted to maintain his cause of
action
The counterclaim must have MATURED before the answer
- If counterclaim matures AFTER the answer, it is merely
PERMISSIVE
- Counterclaim or cross-claim, which either matured or was
acquired by a party after serving his pleading, may, with
court permission, be presented as a counterclaim or a
cross-claim by supplemental pleading before judgment
Meaning of Transaction or Occurrence
- Transaction may comprehend a series of many
occurrences depending not so much upon the
immediateness of their connection as upon their logical
relationship
- Transaction is broad enough to include an occurrence
and the words transaction or occurrence as used
include the facts out of which a cause of action may arise
and probably mean whatever may be done by one person
which affects anothers rights and out of which a cause of
action arises
- It is not enough that the claim and counterclaim arise out
of the same contract
a. It should also arise out of the same transaction or
occurrence that is the subject matter of the opposing
partys claim
Failure to Invoke Compulsory Counterclaim
- A party to a case who failed to invoke his claim in the main
case, while having the opportunity to do so, will be
precluded, subsequently, from invoking his claim, even if it
were true, after the decision has become final (Tuazon v.
Arca)
- Estoppel may be successfully invoked if party fails to raise
the question in early stages of proceeding (Corona v. CA)
- A compulsory claim cannot be the subject of a separate
action
Filing of a Motion to Dismiss is an Implied Waiver of Compulsory
Counterclaim
- If the dismissal of the main action results in the dismissal
of the counterclaim already filed, it stands to reason that
the filing of a motion to dismiss the complaint is an
implied waiver of the compulsory counterclaim since the
grant of the motion ultimately results in the dismissal of
the counterclaim
- Hence, the filing of a motion to dismiss and setting up of a
compulsory counterclaim are incompatible remedies
- In the event that defendant has a ground for dismissal and
a compulsory counterclaim at the same time, he must
choose only one remedy
If he chooses a motion to dismiss, he will lose his
compulsory counterclaim
63
If he opts to set up his compulsory counterclaim, he
may still plead his ground for dismissal as an
affirmative defense in his answer (more favorable
option)
Note also that No Filing Fee is required for Compulsory
Counterclaims but only for Permissive Counterclaims
- Filing fee does not apply to a compulsory counterclaim
- Only to permissive counterclaim
- There is no need to pay docketing fees for compulsory
counterclaim (Metal Engineering Resources Co. v. CA)
Cases where Counterclaim was Held to be Compulsory and Examples
1. A counterclaim for damages and attorneys fees as a
consequence of an action filed against petitioner is
compulsory and must be pleaded in the same action (Tui
Po v. Bautista)
2. In an action for recovery of possession of real estate the
expense for clearing and cultivation is a compulsory
counterclaim even if it is inconsistent with the defense of
ownership (Camara v. Aguilar)
3. In an action for annulment on ground of fraud expenses
for preservation and improvement of property is
compulsory (Maclan v. Garcia)
4. In an action by debtor against a creditor to prevent
extrajudicial foreclosure of chattel mortgage, creditor
should file a counterclaim for mortgage debt and damages,
if any, provided that the debt is already mature (Papa v.
Banaag)
5. In an action to quiet title, the claim of defendants for
damages against the plaintiff for usurping the produce of
the property is compulsory (Doliente v. Blanco)
6. Claims for compensation for improvements in good faith
should be set in an action for ejectment suit against
defendant (Beltran v. Balbuena)
7. In Linaza v. IAC, and which was reiterated in Melquiades
v. IAC, reconveyance of title was granted in a counterclaim
8. The claim of employers for actual damages against a
dismiss employee where the basis of the claim arises from
or is necessarily connected with the fact of termination,
should be entered as a counterclaim in labor dismissal
case
a. This should be distinguished from causes of action for
damages where employment relationship is merely
incidental and the cause of action proceeds from a
different source of obligation
9. Note that compulsory counterclaim incapable of pecuniary
estimation, such as those arising from quasi-contracts are
not allowed in ejectment cases, but may be the subject of a
separate action in the RTC (Arenas v. CA)
10. Rules on Counterclaim for Improvements in Ejectment
Cases
a. Power of the court in ejectment case to decide issue
of builder in good faith (Tayag, et.al. v. Yusecom
et.al.)
(1) Speaking of ordinary ejectment cases, if lessees
or occupant has not built anything on the
premises, payment of rent would be a valid and
satisfactory solution
(2) But where defendant has built on the land,
especially where it is substantial and valuable,
courts even in ejectment cases are bound to take
cognizance of such fact
(3) When the court finds that the construction or
planting had been effected in good faith:
(a) Court enforces or defends the respective
rights of parties and to assess the value of
the land and improvement
 (b) Instead of directing the parties to comply
with Art 448 NCC, and if they cannot agree,
to file a new action
(c) This is to avoid multiplicity of suits and to
administer practical and speedy justice
(4) Court may apply the provisions of the NCC
relative to builders specially since there is no
question as to the ownership of the buildings
b. In Alvira v. Vera as an incident to the main issue of
possession de facto, inferior courts can decide, if
defendant has built on the land a substantial and
valuable building, and there is no dispute as to
ownership, their rights according to the NCC
c. However, in Depra v. Dumlao, the SC, addressing the
question of the decision of the MTC ordering a forced
lease between parties after finding that defendant
was builder in good faith, held that the decision is null
and void
(1) Judgment in a detainer case is effective in
respect of possession only
(2) MTC overstepped its bounds when it imposed
upon the parties a forced lease; a lease is an
interest in real property and belongs to the
jurisdiction of CFI
d. Counterclaim for improvement is compulsory as held
in Baclayon v. CA
(1) Although the alternative defense of being
builders in good faith is only permissive,
(2) The counterclaim for reimbursement of the
value of the improvements is compulsory
(3) Failure to set up in an action for recovery of
ownership and possession filed with the RTC
bars the right to raise it in a subsequent
litigation
e. In a special civil action for declaratory relief a
defendant may set up in his answer a counterclaim
based on or arising from the same transaction, deed
or contract on which the petition is based (Ledesma
v. Morales and Amparo)
Related Rules on Counterclaims
1. Sec. 8, Rule 11 a compulsory counterclaim or a cross-
claim that a defending party has at the time he files his
answer shall be contained therein
2. Sec. 2, Rule 9 a compulsory counterclaim or cross-claim,
not set up shall be barred
3. Sec. 9, Rule 11 a counterclaim or cross-claim which
either matured or was acquired by a party after serving his
pleading may, with the permission of the court, be
presented as a counterclaim or cross-claim by
supplemental pleading before judgment
4. Sec. 10, Rule 11 when a pleader fails to set up a
counterclaim or a cross-claim through oversight,
inadvertence, or excusable negligence, or when justice
requires, he may, by leave of court, set up the counterclaim
or cross-claim by amendment before judgment
5. Sec. 4, Rule 11 a counterclaim or cross-claim must be
answered within 10 days from service
6. Sec. 3, Rule 11 as to an amended counterclaim or cross-
claim. The counter-defendant shall answer the same
within 15 days after being served a copy thereof. Where its
filing is not a matter of right, the counter-defendant shall
answer the amended counterclaim within 10 days from
notice of the order admitting the same. An answer earlier
filed may serve as the answer to the amended
counterclaim if no new answer is filed
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SECTION 8 - Cross-claim.A cross-claim is any claim by one party
against a co-party arising out of the transaction or occurrence
that is the subject matter either of the original action or of a
counterclaim therein. Such cross-claim may include a claim that
the party against whom it is asserted is or may be liable to the
cross-claimant for all or part of a claim asserted in the action
against the cross-claimant.
Purpose of Cross-claim to settle in a single proceeding all the
claims of the different parties in the case against each other in order
to avoid multiplicity of suits
Requirements for a Cross-claim
1. A claim by one party against a co-party
2. It must arise out of the subject matter of the complaint or
of the counterclaim; and
3. The cross-claimant is prejudiced by the claim against him
by the opposing party
Limitations on Cross-claim
1. Must arise out of the subject matter of the complaint
2. Can be filed only against a co-party
3. Is proper only where cross claimant stands to be
prejudiced by filing of the action against him (see notes
under Cross Bill)
4. If the complaint is dismissed, cross-claim should also be
dismissed (see notes below)
Cross Claim v. Counterclaim they differ in that:
1. In cross-claim, it is filed against a co-party
2. And always arises out of the transaction or occurrence that
is the subject matter of either the original action or of a
counterclaim therein
GENERAL RULE: C ross-claim not set up in the action is BARRED
EXCEPTIONS: Permissive cross-claims
1. When it is outside the jurisdiction of the court; or
2. If the court cannot acquire jurisdiction over third parties
whose presence is necessary for the adjudication of said
cross-claim
In which case, the cross-claim is considered as
permissive
3. Cross claim that may mature or may be acquired after
service of the answer
Note: The dismissal of the complaint carries with it the dismissal of a
cross-claim which is purely defensive, but not a cross-claim seeking
an affirmative relief.
On Dismissal of the Complaint (as discussed in Ruiz v. CA)
- Where cross-claim stemmed from the alleged unjust
refusal of donees to return donated properties, resulting in
the donors filing of the complaint for revocation of
donation
- Here, the cross-claim arose from the complaint of the
donors and was not separable to the main action
It had no independent existence and was based
entirely on that complaint
- The cross-claim was defensive in character because it can
prosper only if plaintiffs succeed
- Since plaintiffs failed to establish that the petitioners
refusal was not justified, it necessarily followed that the
respondents cross-claim, which was based on the same
allegation, also had to fail
- Cross-claimants cannot claim more right than the plaintiffs
themselves, on whose cause of action the cross-claimants
depended
Test of Propriety of Cross-claims
- There must at least be a necessary relation to the matter
constituting the principal cause of action
- If the cause of action set forth in the cross claim is entirely
foreign to the matters alleged in the original complaint or
in the counterclaim, the cross-claim shall be dismissed
- There must be some legal or equitable relationship
between the ground for recovery alleged in the cross-claim
and the matters alleged as cause of action by plaintiff
reply, all the new matters alleged in the answer are deemed
controverted.
If the plaintiff wishes to interpose any claims arising out of
the new matters so alleged such claims shall be set forth in an
amended or supplemental complaint.
Primary Purpose of Reply to join issues with new matters raised in
the answer and thereby authorize the pleader of the reply to
introduce evidence on said new issues

Improper Cross-Claims: Regalado notes that the filing of the reply is optional as the new
1. Where the cross-claim is improper, the remedy is matters raised in the answer are deemed controverted even without
certiorari (Malinao v. Luzon Surety) a reply.
2. The dismissal of a cross-claim is unappealable when the Where the party desires to file a reply, he must
order dismissing the complaint becomes final and nevertheless do so within 10 days from service of the
executory (Ruiz, Jr. v. CA) pleading responded to (Sec. 6, Rule 11)
3. A cross-claim is not allowed after declaration of default of
cross-claimant (Tan v. Dimayuga) When Reply is Necessary:
It would be tantamount to setting aside the order of 1. To set up affirmative defenses on the counterclaim
default because then the cross-claimant would re- (Rosario v. Martinez)
obtain a standing in court as party litigant 2. Where the answer alleges the defense of usury in which
case a reply under oath should be made; otherwise, the
THIRD-PARTY allegation of usurious interest shall be deemed admitted
CROSS-CLAIM COUNTERCLAIM
COMPLAINT (Sun Bros. v. Caluntad)
Against a person 3. Where the defense in the answer is based on an actionable
Against an opposing
Against a co-party not a party to the document, a reply under oath must be made; otherwise,
party
action the genuineness and due execution of the document shall
May arise out or be be deemed admitted (Toribio v. Bidin)
necessarily
Must arise out of connected with the Exception to the Rule in Falcasantos v. How Suy Ching where the
the transaction transaction or the case is submitted on the pleadings, the failure of the party to make a
that is the subject subject matter of the Must be in respect reply does not mean that he is deemed to have controverted the
matter of the opposing partys of the opponents issues raised in the answer
original action or claim, in which case, (plaintiff) claim
for a counterclaim it is called Limitations
therein compulsory; or it 1. Calvo v. Roldan a party cannot, in his reply, amend his
may not, in which cause of action
case it is permissive 2. Anaya v. Palaoran a party cannot, in his reply, introduce
No need for a leave No need for leave of Leave of court is therein new or additional causes of action
of court court needed

Illustrative Cases: SECTION 11 - Third, (fourth, etc.)party complaint.A third

1. In an action for damages against the judgment creditor
and the Sheriff for having sold the property of the plaintiff,
the Sheriff may file a cross-claim against the judgment
creditor for whatever amount he may be adjudged to pay
the plaintiff
2. In an action against a co-signer of a promissory note one of
whom is merely an accommodation party, the latter may
file cross-claim against the party accommodated for
whatever amount he may be adjudged to pay the plaintiff
3. The cross-claim need not seek relief against all original
defendants. A third-party complaint may be likened to a
cross claim (Talisay-Silay v. CIR)
4. A cross-claim of defendant against co-defendant in an
action where their liability is in solidum is not barred even
when the latter is not summoned (Cardenas v. Camus)
SECTION 9 - Counterclaims and counter-cross-claims.A
counterclaim may be asserted against an original counter-
claimant.
A cross-claim may also be filed against an original cross-claimant.
SECTION 10 - Reply.A reply is a pleading, the office or function
of which is to deny, or allege facts in denial or avoidance of new
matters alleged by way of defense in the answer and thereby join
or make issue as to such new matters. If a party does not file such
(fourth, etc.)party complaint is a claim that a defending party
may, with leave of court, file against a person not a party to the
action, called the third (fourth, etc.)party defendant, for
contribution, indemnity, subrogation or any other relief, in
respect of his opponents claim.
NOTE: for CONTRIBUTION, INDEMNITY, SUBROGATION, or any
other RELIEF (CIS)
Nature and Object of Third-Party Complaint
- It is a procedural device; Sec. 11 defines it
- A third-party complaint is actually independent of and
separate and distinct from plaintiffs complaint
The Rules permit defendant to bring in a third-party
defendant to litigate his separate cause of action in
respect of plaintiffs claim against a third-party in the
original and principal cause
- But Regalado notes that a third-party complaint need not
arise out of or be entirely dependent on the main action as
it suffices that the former be only in respect of the claim
of the third-party plaintiffs opponent
- Object is to avoid circuity of action and unnecessary
proliferation of lawsuits and disposing expeditiously in
one litigation the entire subject matter

65
 - Purpose is to enable a defending party to obtain
contribution, indemnity, subrogation, or other relief from a
person not a party to the action
- Notwithstanding the judgment on the pleadings, defendant
could still proceed with the prosecution of the third-party
complaint
- Judgment on a third-party complaint may become final
and executory without waiting for the final determination
of the main case (Pascual v. Bautista)
Reason for Leave of Court - To obviate delay in the resolution of the
complaint as when:
a. Third party defendant cannot be located; or
b. Unnecessary issues may be introduced; or
c. Introduction of a new and separate controversy
Basis of Third-Party Complaint
- Under this Rule, a person not party to an action may be
impleaded by the defendant either:
(a) On allegation of liability to the latter;
(b) On the ground of direct liability to the plaintiff; or
(c) Both (a) and (b)
- Situation in (a) is covered by the phrase contribution,
indemnity or subrogation, while (b) and (c) are subsumed
under the catch-all phrase (Samala v. Victor)
Third-Party Complaint v. Cross-Claim
a. SIMILARITY: the third-party seeks to recover from another
person some relief in respect to the opposing partys claim
b. DIFFERENCE:
(1) In a cross-claim, third party is already impleaded
(2) In a third-party complaint, third party is not yet
impleaded; leave of court is also required and if
granted, summons will have to be served on the
third-party defendant
Third-Party Complaint v. Complaint in Intervention (Rule 19)
a. SIMILARITY: both result in bringing into the action a 3 rd
person who was not originally a party
b. DIFFERENCE:
(1) Initiative in a third-party complaint is with the person
already a party to the action
(2) In intervention, initiative is with a non-party who
seeks to join the action
No Need to Amend Complaint to Hold Third-Party Defendant
Directly Liable to Plaintiff
- When a third-party defendant is impleaded on the ground
of direct liability to the plaintiff, there is no need to amend
the complaint to hold the third-party defendant liable
- Since liability if third-party defendant is already asserted
in the third-party complaint, amendment of complaint to
assert such liability is a mere matter of form
- A third-party complaint, however, involves an action
separate and distinct from, although related to, the main
complaint
- A third-party defendant who feels aggrieved by some
allegations in the main complaint should, aside from
answering the third-party complaint, also answer the main
complaint
Same Capacity Rule applies So, one who is sued in his individual
capacity cannot file a third-party complaint in another capacity, like
an administrator (Capayas v. CFI Albay)
Third-Party Defendant must NOT be a Party The third-party
complaint cannot be asserted against one who is already a party to
the action. (Del Rosario v. Jimenez)
66
Rule on Venue and Jurisdiction Inapplicable
- Jurisdiction over 3rd party complaint is but a continuation
of the main action and is a procedural device to avoid
multiplicity of suits
- As such, proscription on jurisdiction and venue applicable
to ordinary suits may not apply (Eastern Assurance v.
Cui)
- What is determinative of venue are the operative facts in
the main case, and not those alleged in the third-party
complaint
Grounds for Third-Party Complaint The third party complaint must
have a connection with the main action, with defendant claiming for:
1. Contribution,
2. Indemnity,
3. Subrogation, or
4. Any other relief
Tests of Propriety The tests whether the third-party complaint in
respect to plaintiffs claim are:
1. Whether it arises out of the same transaction on which
plaintiffs claim is based; or
2. Whether the third partys claim, although arising out of
another or different contract or transaction, is connected
with plaintiffs claim; or
3. Where the third-party defendant would be directly liable
to the plaintiff or to the defendant in whole or in part of
plaintiffs claim against the original defendant, although
the third partys liability arises out of another transaction;
or
4. Where the third-party defendant may assert defenses
which the third-party plaintiff may have against the
plaintiffs claim
Notes:
- Leave of court to file a third-party complaint may be
obtained by motion under Rule 15
- Summons on third, fourth, etc. party defendant must be
served for the court to obtain jurisdiction over his person,
since he is not an original party
- Where the trial court has jurisdiction over the main case, it
also has jurisdiction over the third-party complaint
regardless of the amount involved as a third-party
complaint is merely auxiliary to and is a continuation of
the main action
- A third party complaint is not proper in an action for
declaratory relief
Examples of Third-Party Complaint
1. A creditor files an action for collection against one of the
solidary debtors. Defendant may with leave of court file a
third-party complaint against his co-debtor for
contribution of his share in the obligation
2. The victim of a vehicular accident files an action for
damages against one of the owners of the vehicle involved.
The latter with leave of court may file a third-party
complaint against his insurer for indemnity to the extent
of the insurance against any liability of the owner of the
motor vehicle.
3. Where an action is filed by the lessor against the lessee for
failure to make repairs on the leased premises, the lessee
may with leave of court file a third-party complaint against
the sublessee who assumes compliance, for subrogation
4. In an action for damages based on torts, defendant may
with leave of court file a third-party complaint against a
third person on the ground that the latters negligence is
the proximate cause of the accident
Judgment and Appeal
- There are 2 judgments that may be rendered in the action
where a third-party complaint is filed:
1. Judgment on the principal action; and
2. Judgment on the third-party complaint
- An appeal in one does not inure to the benefit of the other
- When the issues presented in the third-party complaint
are separate and distinct from those in the complaint, the
third-party complaint is not a legal obstacle to the
dismissal of the main action
- An order disallowing a third-party complaint is appealable
since it would finally dispose of defendants right to
implead the party (De Dios v. Balagot)
- But the main case cannot be tried pending receipt of
answer to the third-party complaint
It is the duty of the judge to rule on third-party
complaint where issues have been joined and
evidence received
- Examples:
1. Where a third-party defendant appealed but the
third-party plaintiff did not appeal from the judgment
against him in favor of the plaintiff, such judgment
became executory, without prejudice to the third-
party defendants appeal being given due course as it
pertains only to the third-party complaint (Firestone
Tire & Rubber Co. v. Tempongko)
2. Where the trial court dismissed the complaint and the
defendants third-party complaint, and only the
plaintiff appealed, the CA cannot make a finding of
liability on the third-party defendants who did not
appeal from the dismissal of the third-party
complaint (Go, et.al. v. CA)
SECTION 12 - Bringing new parties.When the presence of
parties other than those to the original action is required for the
granting of complete relief in the determination of a counterclaim
or cross-claim, the court shall order them to be brought in as
defendants, if jurisdiction over them can be obtained.
For purposes of Sec. 12, the court may authorize the filing of the
proper third-party complaint to implead the other parties not
included in the complaint (Rubio v. Mariano)
- Even where the impleading of third-party defendants does
not fall squarely within the requisites of Sec. 12, their
inclusion in the action may be permitted where there is a
question of law or fact common to the right in which they
are interested and another right sought to be enforced in
the action, hence their inclusion is now necessary under
Sec. 6, Rule 3
Notes:
- In an action to recover possession by a co-owner, the
defendant files a counterclaim to recover title to the same
property
The other co-owners may be brought in under this
section as defendants to the counterclaim for
complete relief thereon
- The plaintiffs husbands may be joined as co-defendants of
their wives in the counter-complaint against them
(Aurelio v. CA)
- While a compulsory counterclaim may implead persons
not parties to the original complaint, the general rule a
defendant in a compulsory counterclaim need not file any
responsive pleading, as it is deemed to have adopted the
allegations in the complaint as its answer does not apply
The filing of a responsive pleading is deemed a
voluntary submission to the jurisdiction of the court
67
A new party impleaded by plaintiff in a compulsory
counterclaim cannot be considered to have
automatically and unknowingly submitted to the
jurisdiction of the court
A contrary ruling would result in mischievous
consequences whereby a party may be
indiscriminately impleaded
- The correct procedure in such instances is for the trial
court to order such impleaded parties to be brought in as
defendants, if jurisdiction over them can be obtained, by
directing that summons be served on them
In this manner, they can properly be appraised of and
answer the charges against them
Only upon service of summons can trial court obtain
jurisdiction over them
Distinguished from a Third-party Complaint
- A third-party complaint is proper when not one of the
third-party defendants therein is a party to the main
action
- If one or more of the defendants in the counterclaim or
cross-claim is already a party to the action, then the other
necessary parties may be brought under this section
SECTION 13 - Answer to third (fourth, etc.)party complaint.A
third (fourth, etc.)party defendant may allege in his answer his
defenses, counterclaims or cross-claims, including such defenses
that the third (fourth, etc.)party plaintiff may have against the
original plaintiffs claim. In proper cases, he may also assert a
counterclaim against the original plaintiff in respect of the latters
claim against the third-party plaintiff.
Notes
- Under this rule, the third-party defendant is allowed to
include in his answer to the third-party complaint
defenses, counterclaims, or cross-claims, including such
defenses that the third-party plaintiff may have against the
original plaintiffs claim
- In proper cases, he may also assert a counter-claim against
the third-party plaintiff
Example:
- A third party complaint was filed against a reinsurer by
the defendant insurer
- The reinsurer may set up in his answer the defense alleged
by the defendant insurer that the loss was caused by the
willful act of connivance by the plaintiff insured
- But the third-party defendant reinsurer may not ordinarily
file a counterclaim against the plaintiff insured, there
being no privity of contract between them
END OF RULE 6
NOTES ON RULE 6

68
NOTES ON RULE 6

69

RULE 7
PARTS OF A PLEADING
SECTION 1 - Caption.The caption sets forth the name of the
court, the title of the action, and the docket number if assigned.
The title of the action indicates the names of the
parties. They shall all be named in the original complaint or
petition; but in subsequent pleadings, it shall be sufficient if the
name of the first party on each side be stated with an appropriate
indication when there are other parties.
Their respective participation in the case shall be indicated.
Contents of a Caption:
1. Name of the Court
2. Title of the Action
a. Indicates the name of the parties
b. Participation of parties
3. Docket number, if assigned
Test of Sufficiency of Plaintiffs Initial Pleading
As to form, the test is whether it clearly states the nature,
basis, and extent of the claim or demand asserted, so that the
defendant and the court may be fully informed and proceed
accordingly.
Caption not Determinative of Nature of Pleading
- It is not the caption but the facts alleged which give
meaning to the pleading
- Courts are called upon to pierce the form and go into the
substance thereof
Vlasons Enterprises Corp. v. CA the mere failure to include the
name of the party in the title of the complaint is not fatal by itself
provided there is a statement in the body of the petition indicating
that a defendant was made party to such action
SECTION 2 - The body.The body of the pleading sets forth its
designation, the allegations of the partys claims or defenses, the
relief prayed for, and the date of the pleading. (n)
(a) Paragraphs.The allegations in the body of a pleading
shall be divided into paragraphs so numbered as to be
readily identified, each of which shall contain a
statement of a single set of circumstances so far as that
can be done with convenience. A paragraph may be
referred to by its number in all succeeding pleadings.
(3a)
(b) HeadingsWhen two or more causes of action are
joined, the statement of the first shall be prefaced by the
words first cause of action, of the second by second
cause of action, and so on for the others.
When one or more paragraphs in the
answer are addressed to one of several causes of action
in the complaint, they shall be prefaced by the words
answer to the first cause of action or answer to the
second cause of action and so on; and when one or
more paragraphs of the answer are addressed to
several causes of action, they shall be prefaced by
words to that effect. (4)
(c) Relief.The pleading shall specify the relief sought, but
it may add a general prayer for such further or other
relief as may be deemed just or equitable. (3a, R6)
(d) Date.Every pleading shall be dated.
70
Contents of the Pleading:
1. Pleading designation
2. Allegations of the partys claims or defenses
Divided into numbered paragraphs
One paragraph for a statement of a single set of
circumstances
If more than one cause of action, the first is referred to
as first cause of action then second cause of action
and so on; same goes to the answers
3. Relief prayed for
May add a general prayer for such further or other
reliefs as may be deemed just or equitable
4. Date of the pleading
Every pleading shall be dated
Title of the Pleading not Controlling
- Courts should not be misled by a false name given to a
pleading or a defective title
- Courts should be guided by the averments thereof
The prayer in a pleading does not constitute an essential part of the
allegations determinative of the jurisdiction of the court
- Question on jurisdiction depends largely upon the
determination of the true nature of the action
This in turn involves the consideration of the ultimate
facts alleged as constitutive of the cause of action
therein (Bautista v. Fernandez)
- Prayer for relief, although part of the complaint, cannot
create a cause of action
As such, it cannot be considered as a part of the
allegations of the nature of the cause of action
(Rosales v. Reyes)
SECTION 3 - Signature and address.Every pleading must be
signed by the party or counsel representing him, stating in either
case his address which should not be a post office box.
The signature of counsel constitutes a certificate by him
that he has read the pleading; that to the best of his knowledge,
information, and belief there is good ground to support it; and
that it is not interposed for delay.
An unsigned pleading produces no legal effect. However,
the court may, in its discretion, allow such deficiency to be
remedied if it shall appear that the same was due to mere
inadvertence and not intended for delay. Counsel who
deliberately files an unsigned pleading, or signs a pleading in
violation of this Rule, or alleges scandalous or indecent matter
therein, or fails to promptly report to the court a change of his
address, shall be subject to appropriate disciplinary action.
Breakdown of the Provision:
A. Every pleading must be signed by the party or counsel
representing him
1. Address must be stated
2. Such address must not be a post office box
B. Signature of counsel constitutes a certificate by him that:
1. He has read the pleading
2. That to the best of his knowledge, information, and
belief there is good ground to support it; and
3. That it is not interposed for delay
C. Unsigned Pleading
1. No legal effect
2. Court may, in its discretion, allow such remedy to be
remedied if it appears that:
a. It was due to mere inadvertence; and
b. It was not intended for delay
D. Counsel shall be subject to appropriate disciplinary action:
1. If he deliberately files an unsigned pleading,
 2. If he signs a pleading in violation of the Rule
3. If he alleges scandalous or indecent matter therein
4. If he fails to promptly report to the court a change of
his address
Effect of Failure to Sign or Signing with Intent to Defeat Purposes of
Rules:
1. Strike out pleading as sham and false
2. Action proceeds as if no pleading has been served; and
3. Attorney may be subjected to disciplinary action
Attorney should also indicate his Roll of Attorneys Number
- Bar Matter No. 287 (2000) lawyers should indicate his
current Professional Tax Receipt, IBP Official Receipt, and
his Roll of Attorneys Number in all pleadings, motions, and
papers
- Bar Matter No. 1132 (2003) all pleadings which do not
bear counsels roll number may not be acted upon by the
court
Without prejudice to whatever disciplinary action the
court may take against erring counsel
Counsel is required to comply with the requirement
within 5 days from notice
Failure to comply with said order shall be ground for
further disciplinary action and contempt of court
GENERAL RULE: No substitution of attorneys will be allowed
EXCEPTION: Unless all of the following requisites are present:
1. There is written request for such substitution
2. It is filed with the written consent of the client; and
3. With the written consent of the attorney to be substituted,
or with proof of service of notice of said motion to the
attorney to be substituted
Unless the requisites are complied with, no substitution will be
permitted and the attorney who last appeared in the case before
such application will be responsible for the conduct of the case
(Bacarro v. CA, et al., citing US v. Borromeo)
SECTION 4 - Verification.Except when otherwise specifically
required by law or rule, pleadings need not be under oath,
verified or accompanied by affidavit.
A pleading is verified by an affidavit that the affiant has
read the pleading and that the allegations therein are true and
correct of his personal knowledge or based on authentic records.
A pleading required to be verified which contains a
verification based on information and belief, or upon
knowledge, information and belief, or lacks a proper
verification, shall be treated as an unsigned pleading.
Breakdown of Provision:
A. Pleadings need not be under oath, verified, or accompanied
by affidavit
1. UNLESS when otherwise specifically required by law
B. Verification of pleading:
1. By an affidavit that affiant has read the pleading and
that the allegations therein are true and correct of his
knowledge; or
2. By Authentic Records
C. Pleading required to be verified but lacks proper verification
1. Effect: Same as unsigned pleading
2. Verification based on information and belief or upon
knowledge, information, and belief treated as
unsigned pleading
71
Note: The 2nd paragraph emphasizes that the pleaders affirmation of
the truth and correctness of the allegations in his pleading shall be
based not only on his knowledge and belief but specifically on his
PERSONAL knowledge or based on AUTHENTIC records
Purpose of Verification
- Intended to forestall allegations which are perjured or
hearsay
- Purpose is reasonably subserved by the requirement for
authentic documents such as official records
Note that these are exceptions to the hearsay rule
- As such, verification cannot be made on facts or arising in
whole or in part from mere information and belief
Who can make a verification?
1. By the party or his representative
2. His lawyer
3. Or any person who personally knows the truth of the facts
alleged in the pleading
Note: Pleadings filed in the inferior courts in cases covered by the
Rules on Summary Procedure are all required to be verified
How a Pleading is Verified: by an affidavit that the affiant:
1. Has read the pleading; and
2. That the allegations therein are true and correct of his
personal knowledge or based on authentic documents
Verification is REQUIRED in the following:
1. Petition for relief from judgment or order (Sec. 3, Rule 38)
2. Petition for review from RTC to the CA (Sec. 1, Rule 42)
3. Petition for review from quasi-judicial agencies to the CA
(Sec. 5, Rule 43)
4. Appeal by certiorari from the CTA to the SC (Sec. 12, RA
9282 amending Sec. 19, RA 1125)
5. Appeal by certiorari from CA to the SC (Sec. 1, Rule 45)
6. Petition for annulment of judgments or final orders and
resolutions (Sec. 1, Rule 47)
7. Complaint for injunction (Sec. 4, Rule 58)
8. Application for appointment of receiver (Sec. 1, Rule 59)
9. Application for support pendente lite (Sec. 1, Rule 69)
10. Petition for certiorari against judgments, final orders, or
resolutions of constitutional commissions (Sec. 2, Rule 64)
11. Petition for certiorari (Sec. 1, Rule 65)
12. Petition for prohibition (Sec. 2, Rule 65)
13. Petition for mandamus (Sec. 3, Rule 65)
14. Petition for quo warranto (Sec. 1, Rule 66)
15. Complaint for expropriation (Sec. 1, Rule 67)
16. Complaint for forcible entry or unlawful detainer (Sec. 4,
Rule 70)
17. Petition for indirect contempt (Sec. 4, Rule 71)
18. Petition for appointment of a general guardian (Sec. 2,
Rule 93)
19. Petition for leave to sell or encumber property of the ward
by a guardian (Sec. 1, Rule 95)
20. Petition for declaration of competency of a ward (Sec. 1,
Rule 97)
21. Petition for habeas corpus (Sec. 3, Rule 102)
22. Petition for change of name (Sec. 2, Rule 103)
23. Petition for voluntary judicial dissolution of a corporation
(Sec. 1, Rule 104)
24. Petition for cancellation or correction of entries in the civil
registry (Sec. 1, Rule 108)
The following are not required to be verified in the manner and form
prescribed by Sec. 4 but MUST BE UNDER OATH:
1. Denial of the genuineness and due execution of an
actionable document (Sec. 8, Rule 8)
 2. Denial of allegations of usury (Sec. 11, Rule 8)
3. Motion to set aside a default order (Sec. 3(b), Rule 9)
4. Answer to written interrogatories (Sec. 2, Rule 25)
5. Answer to request for admission (Sec. 2, Rule 26)
In the following cases, SUPPORTING AFFIDAVITS or AFFIDAVITS OF
MERITS are required:
1. Motion to postpone for absence of evidence (Sec. 3, Rule
30)
2. Motion to postpone for illness of a party or counsel (Sec. 4,
Rule 30)
3. Motion for summary judgment or opposition thereto (Sec.
1, 2, 3, and 5, Rule 35)
4. Motion for new trial on the ground of fraud, accident,
mistake, or excusable negligence or opposition thereto
(Sec. 2, Rule 37)
5. Petition for relief from judgment or order (Sec. 3, Rule 38)
6. Third-party claim (Sec. 16, Rule 39)
7. Proof required of a redemptioner (Sec. 30, Rule 39)
8. Motion for preliminary attachment (Sec. 3, Rule 57)
9. Motion for dissolution of preliminary injunction (Sec. 6,
Rule 58)
10. Application for a writ of replevin (Sec. 2, Rule 60)
11. Claim against the estate of a decedent (Sec. 9, Rule 86)
12. Motion for new trial on the ground of newly-discovered
evidence in criminal cases (Sec. 4, Rule 121)
Illustrative Cases
1. Verification to the best of my knowledge is insufficient
compliance (De Cano v. Edu)
2. Were a petition for mandamus was verified by the counsel
to be true to the best of his knowledge, information and
belief, it was held to be insufficient in view of the
sanctions respecting attorneys (now in Sec. 3) of this Rule
(Guerra Enterprises Co. Inc. v. CFI Lanao del Sur)
Principles on relaxation laid down in Jurisprudence
1. Where the verification is made by the attorney who also
signed the pleadings, the courts are inclined to be liberal
and accept substantial compliance with the verification
rule (Arambulo v. Perez)
2. Where the question at issue is one purely of law and there
is no need of delving into the veracity of allegations,
technical defects are disregarded (Antem Consolidated v.
CA)
3. Even where verification is required by the Rules, the court
may give due course to the pleading even if such
verification is lacking or is insufficient or defective if the
circumstances warrant the relaxation or dispensing of the
rule in the interest of justice (Oshita v. Republic)
4. Verification of a pleading is a formal, not jurisdictional,
requisite (Buenaventura v. Uy)
5. It is simply intended to secure an assurance that the
allegations are true and correct and that the pleading is
filed in good faith (Bank of the Phil. Islands v. CA)
6. In the interest of substantial justice, Court may simply
order the correction of the unverified pleading or act on it
and waive strict compliance with the rules (Vda. De
Gabriel v. CA)
SECTION 5 - Certification against forum shopping. The plaintiff
or principal party shall certify under oath in the complaint or
other initiatory pleading asserting a claim for relief, or in a sworn
certification annexed thereto and simultaneously filed therewith:
(a) that he has not theretofore commenced any action or filed any
claim involving the same issues in any court, tribunal or quasi-
judicial agency and, to the best of his knowledge, no such other
72
action or claim is pending therein; (b) if there is such other
pending action or claim, a complete statement of the present
status thereof; and (c) if he should thereafter learn that the same
or similar action or claim has been filed or is pending, he shall
report that fact within five (5) days therefrom to the court
wherein his aforesaid complaint or initiatory pleading has been
filed.
Failure to comply with the foregoing requirements shall
not be curable by mere amendment of the complaint or other
initiatory pleading but shall be cause for the dismissal of the case
without prejudice, unless otherwise provided, upon motion and
after hearing. The submission, of a false certification or non-
compliance with any of the undertakings therein shall constitute
indirect contempt of court, without prejudice to the
corresponding administrative and criminal actions. If the acts of
the party or his counsel clearly constitute willful and deliberate
forum shopping, the same shall be ground for summary dismissal
with prejudice and shall constitute direct contempt, as well as a
cause for administrative sanctions.
Breakdown of Provision
A. WHO: The plaintiff or principal party
B. HOW: Certify under oath:
1. In the complaint or other initiatory pleading asserting
a claim for relief; or
2. In a sworn certification annexed thereto and
simultaneously filed therewith
C. Contents of the Certification:
1. That:
a. He has not theretofore commenced any action or
filed any claim involving the same issue in any
court, tribunal or quasi-judicial agency; and,
b. To the best of his knowledge, no such other action
or claim is pending therein
2. If there is such other pending action or claim, a
complete statement of the present status thereof; and
3. If he should thereafter learn that the same or similar
action or claim has been filed or is pending:
a. He shall report that fact within 5 days therefrom
b. To the court wherein his aforesaid complaint or
initiatory pleading has been filed
D. Failure to Comply:
1. Not curable by mere amendment of the complaint or
other initiatory pleading
2. A cause for the dismissal of the case
a. Dismissal without prejudice (unless otherwise
provided)
b. Upon motion and after hearing
E. Submission of a false certification or non-compliance with
any undertakings:
1. Constitute indirect contempt of court
2. Without prejudice to corresponding administrative and
criminal actions
F. If acts of party or his counsel clearly constitute willful and
deliberate forum shopping
1. Ground for summary dismissal with prejudice
2. Constitute direct contempt of court
3. Cause for administrative sanctions
Note: This rule was taken from Circular No. 04-94 or the Certificate
of Non-Forum Shopping
NATURE, PURPOSE, DEFINITION
Forum Shopping
- Forum shopping involves the institution of 2 or more
cases, actions, or proceedings grounded on the supposition
 that one or the other court or tribunal would make a
favorable disposition
- It is the act of a party against whom an adverse judgment
has been rendered in one forum, of seeking another
opinion in another forum, other than by appeal or the
special civil action of certiorari
The Prohibition on Non-Forum Shopping
- The filing of a similar petition in different courts is
prohibited
- Forum shopping is deplorable as it degrades the
administration of justice, adds to the already congested
court dockets, and wreaks havoc upon orderly judicial
procedure
Distinguish between Certification and Forum Shopping
- The certification against forum shopping is separate from
and independent of the avoidance of the act of forum
shopping itself
- A violation of the rules on certification is sufficient cause
for the dismissal without prejudice of the complaint or
initiatory pleading upon motion and after hearing
- A violation of non-forum shopping is a ground for
summary dismissal thereof and direct contempt
Three Ways of Committing Forum-Shopping
1. Filing multiple cases based on the same cause of action
and with the same prayer, the previous not having been
resolved yet (litis pendentia)
2. Filing multiple cases based on the same cause of action
and with the same prayer, the previous having been
resolved with finality (res judicata)
3. Filing multiple cases based on the same causes of action
but with different prayers (splitting of cause of action,
where the ground for dismissal is also litis pendentia or
res judicata)
TESTS ON FORUM SHOPPING
It has been held in Executive Secretary v. Gordon that there is
forum-shopping:
1. Whenever as a result of an adverse decision in one forum,
a party seeks a favorable decision (other than by appeal or
certiorari) in another, or
2. If, after he has filed a petition before the SC, a party files
another before the CA since in such case he deliberately
splits appeals, or
3. Where a party attempts to obtain a preliminary injunction
in another court after failing to obtain the same from the
original court
Some Tests of Forum Shopping laid down by Jurisprudence
1. The mere filing, however, of several cases based on the
same incident does not necessarily constitute forum
shopping.
Test is whether the several actions filed involve the
same transactions and the same essential facts and
circumstances (Paredes v. Sandiganbayan)
The actions must also raise identical causes of action,
subject matter, and issues (Intl Container Terminal
Services v. CA)
2. Whether in the 2 or more cases pending, there are identity
of parties, rights or causes of actions, and reliefs sought
Forum shopping exists where the elements of litis
pendentia are present
Or where a final judgment in one case will amount to
res judicata in the other (Buan v. Lopez)
73
But forum shopping does not require a literal identity
of parties; it is sufficient that there is identity of
interest represented (Firs Philippine International
Bank et al. v. CA)
CERTIFICATION IS MANDATORY; INITIATORY PLEADINGS
Certification is a mandatory part of an initiatory pleading
- A certificate of non-forum shopping is not, however,
required in COMPULSORY counterclaims
Since these claims cannot be the subject of a separate
and independent action, certification is not needed
- However, a certification is needed in PERMISSIVE
counterclaims (Korea Exchange Bank v. Gonzales)
Any judgment of the court on the complaint of the
petitioner would not bar any suit on the counterclaim
Hence, the permissive counterclaim is an initiatory
pleading, which requires the appendage of a
certificate of non-forum shopping
Failure to do so results to the dismissal of the
counterclaim without prejudice
Note also that the Rules require only the initiatory pleading to be
accompanied with a certificate of non-forum shopping
- So a certification is not needed in a search warrant
application since it is not a pleading (Kenneth Roy Savage
v. Judge Taypin)
- Certification is also not necessary in a mere motion for
extension (Far Eastern Shipping v. CA)
When may an omission be excused?
Only upon manifest equitable grounds proving substantial
compliance therewith
The court held that in those cases where the deficiency
were tolerated, special circumstances or compelling reasons made
the strict application of the rules distinctly unjustified (Ong v. CA)
WHO EXECUTES CERTIFICATION
Certification by Plaintiff, not Attorney
- Certification against forum shopping ordained by the
Rules is to be executed by the petitioner, not his counsel
- The petitioner is in the best position to know whether he
filed or caused the filing of a petition in the case
- Certification by counsel
Defective certification
Equivalent to non-compliance with the requirement
and constitutes a valid cause for dismissal of petition
- EXCEPTION: In a case, the court held that the rationale of
the rule does not apply where it is the attorney-in-fact who
instituted the action in which case the certificate may be
signed by the attorney-in-fact
Special Power of Attorney is Insufficient
- In Santos v. CA, the court held that a special power of
attorney executed for convenience was insufficient
considering that:
1. The petitioners are all natural persons and
2. There is no showing of any reasonable cause to justify
their failure to personally sign
- The court emphasized in Republic v. Carmel
Development Inc. that the certification must be made by
petitioner himself and not by counsel, even if the latter has
a special power of attorney specially authorizing counsel
to execute the certification on plaintiffs behalf
Party Misjoined Need Not Sign Certification
- Any act or omission committed by a misjoined party (such
as omission to execute the Certificate should not be a
cause for impediment to the prosecution of the case, much
less dismissal (Chua v. Torres)
Certification for Corporations
- In corporations, as distinguished from a natural person,
may be signed for and in behalf of a corporation by a
specially authorized lawyer who has personal knowledge
of the facts required to be disclosed in such document
- Note also that the certification must be accompanied by a
BOARD RESOLUTION authorizing the counsel to sign the
certification (General Milling Corp. v. NLRC)
Certification not signed by a duly authorized person
renders the petition subject to dismissal
GENERAL RULE: All parties are required to sign the certification
- The court earlier held in Five Star Bus Co. v. CA that a
petition may be summarily dismissed on the ground that
the affidavit of non-forum shopping was not signed by the
petitioners
- Verification and certification by one of the five petitioners
was held insufficient compliance in Loquias v. Office of
the Ombudsman
EXCEPTION: When the case calls for a relaxation of the doctrine;
Subject to two conditions:
1. The petitioners must show justifiable cause for their
failure to personally sign the certification, and
2. They must also be able to prove that the outright dismissal
of the petition would seriously impair the orderly
administration of justice
THE PRINCIPLE OF LIBERAL APPLICATION
The criteria would be where there are special circumstances or
compelling reasons making the strict application of the rule clearly
unjustified
The apparent merits of the substantive aspects of the case
should be deemed as special or compelling reasons. (Batoy v.
Cabardo)
Certificate of Non-Forum Shopping is Mandatory But Not
Jurisdictional
- The required certificate is mandatory and applies to
election cases but is not jurisdictional
- Substantial compliance by filing certification within
reglementary period is sufficient (Loyola v. CA)
Rule on Substantial Compliance
- The rule on substantial compliance may be availed of with
respect to the contents of the certification
- Note that the requirement of strict compliance with the
provisions regarding certification merely underscores its
mandatory nature
This means that the certification cannot be altogether
dispensed with or its requirements completely
disregarded (Cavile v. Cavile)
- Ex: The failure to state in the certificate that he undertakes
to inform the court of any petition which may be filed, may
be overlooked since it does not appear that any petition
related to the case has been filed in any court (Cabarbo v.
CA)
- Where petitioners are husband and wife, the certificate by
one of them is substantial compliance with the rule
(Spouses Dar v. Legasto)
74
Instances when petitioner may not personally sign the certificate:
The fact that petitioners were abroad when the petition
was filed is a justification for not personally signing the Certificate
(Hamilton v. Fe Quitanghon)
In cases where is it is highly impractical to require all the plaintiffs
to sign the certificate, it is sufficient, in order not to defeat the ends
of justice, for one of the plaintiffs, acting as representative, to sign
the certificate provided that the plaintiffs share a common interest
in the subject matter of the case filed as a collective, raising only
one common cause of action
Cases where Higher Interests of Justice was invoked
1. The court set aside procedural technicalities in the higher
interest of justice even if the certification was signed by
counsel and filed beyond the reglementary period in
People v. Gako
2. In view of the peculiar circumstances of the case and in the
interest of justice, the procedural defect may be set aside
pro hac vice (National Steel Corp v. CA)
3. Where only 3 out of 4 petitioners in a petition signed the
certificate, the court held that they should not be unduly
prejudiced by the fault of their co-petitioner who did not
sign the certificate (Fiel v. Kris Security Systems Inc.)
4. The rules on forum shopping should be applied with
liberality in election cases since a strict application would
not work to the best interest of the parties and the
electorate (Bince Jr. v. COMELEC)
EFFECT OF SUBSEQUENT COMPLIANCE WITHIN
REGLEMENTARY PERIOD
Court held in Roadway Express Inc. v. CA that all the more reason
should the petition for review be allowed in this case, in view of the
compliance prior to the dismissal of the petition, and even if the
certification was not filed with the pleading but in a manifestation
EFFECT OF THE SUBMISSION OF A FALSE CERTIFICATION
OR NON-COMPLIANCE WITH ANY OF THE UNDERTAKINGS
Submission of False Certification or Non-Compliance of Undertaking
- Constitutes indirect contempt
- Without prejudice to the corresponding administrative
and criminal actions
If acts of Counsel or Party Constitute Willful and Deliberate Forum
Shopping
- Summary dismissal with prejudice
- Direct contempt
- As well as administrative sanctions
TIME TO INVOKE RULE
In general, violation of the rule on forum shopping should be raised
at the earliest opportunity in a motion to dismiss or a similar
pleading
Invoking it in the later stages of the proceedings or on appeal may
result in the dismissal of the action as an exception only if the
violation arises from or will result in:
1. The loss of jurisdiction over the subject matter
2. The pendency of another action between the same parties
for the same cause
3. Barring of the action by a prior judgment, or
4. The crossing of the Statute of Limitations
 ILLUSTRATIVE CASES AND EXAMPLES

There IS forum shopping in the following cases:

1. The rule has been extended to a defendant who, for
reasons only known to him, commences a new action
against the plaintiff instead of filing a responsive
pleading in the other case (Victronics Computers Inc. v.
RTC)
2. There is also forum shopping in connection with litigations
commenced in the Courts while an administrative
proceeding is pending in order to defeat administrative
processes (Villanueva v. Adre)
3. A willful attempt by the same party to obtain a preliminary
injunction in another court after it failed to acquire the
same from the original court (Fil-Estate Golf and Dev. Inc.
v. CA)
4. After a party has filed a petition before the SC, he
subsequently files another before the IAC is forum
shopping since he deliberately split appeals (Borromeo v.
IAC)
5. Where the litigant sues the same party against whom
another action or actions for the alleged violation of the
same right and the enforcement of the same relief is/are
still pending (First Philippine International Bank v. CA)
6. When, in effect, the petition filed before the CA, not being
an appeal nor special action, was filed during pendency of
her motion before the RTC (Lapu-lapu Development and
Housing Corp v. Group Management Corp.)
7. While petition was pending in COMELEC, respondent filed
a wholly separate petition for certiorari also with the
COMELEC pleading the same reliefs prayed for in the
supplemental petition (Santos v. COMELEC)
8. When a notice of appeal which is the proper mode of
questioning the main decision and a special civil action for
certiorari is filed questioning not only the issuance of
immediate execution which is also proper but also the
merits of the main decision (Candido v. Camacho)

There is NO forum shopping in the following cases:

1. Where the special civil action for certiorari and the appeal
brought by as a party do not involve the same issue (GSIS
v. Bengson Commercial Buildings)
2. Where the first petition involved the propriety of the
affirmative defenses while the second petition raised the
issue of the judges partiality (Gochan v. Gochan)
3. An action for quieting of title and partition has a different
cause of action and is not a valid reason for defeating the
execution of the summary remedy of ejectment (Gachon v.
Devera)
4. When there is no identity of rights or causes of action and
the reliefs prayed for (HSBC v. Catalan)
5. There is no forum shopping in the Supreme Court (as
between divisions) (Republic v. Express
Telecommunications Co. Inc.)

END OF RULE 7

75
NOTES ON RULE 7

76
NOTES ON RULE 7

77

RULE 8
MANNER OF MAKING ALLEGATIONS
IN A PLEADING
SECTION 1 - In general .Every pleading shall contain in a
methodical and logical form, a plain, concise and direct statement
of the ultimate facts on which the party pleading relies
for his claim or defense, as the case may be, omitting the
statement of mere evidentiary facts. (1)
If a defense relief on is based on law, the
pertinent provisions thereof and their applicability to him shall be
clearly and concisely stated. (n)
Breakdown of Provision:
A. Every pleading shall contain a statement of the ultimate
facts on which the party pleading relies for his claim or
defense
1. In a methodical and logical form
2. A plain, concise and direct statement
3. Statement of mere evidentiary facts omitted
B. If a defense relief is based on law, state in a clear and
concise manner:
1. Pertinent provisions of the law
2. Applicability of the law to him
PRELIMINARIES
Like all other pleadings, the complaint shall contain in a methodical
and logical form a plain, concise, and direct statement of the ultimate
facts on which the plaintiff relies for his claim, omitting the
statement of mere evidentiary facts
Note: Facts within judicial notice of courts or presumed by law need
not be pleaded
Office, Purpose, or Function
- To inform the defendant clearly and definitely of the
claims made against him
- So that defendant may be prepared to meet the issues at
trial
The Complaint
- It should inform the defendant of all material facts on
which the plaintiff relies to support to his demand;
- It should state the theory of a cause of action which forms
the bases of the plaintiffs claim of liability
Ultimate Facts and Evidentiary Facts
A. Ultimate Facts
Means the essential facts constituting the plaintiffs
cause of action
A fact is essential if it cannot be stricken out without
leaving the statement of the cause of action
insufficient
Important and substantial facts which either directly
form the basis of the primary right and duty, or which
directly make up the wrongful acts or omissions of
defendant
Does not refer to details of probative matter or
particulars of evidence by which these material
elements are to be established
Refers to principal, determinate, constitutive facts,
upon the existence of which, the entire cause of action
rests
78
B. Evidentiary Facts
Those which go to prove the case
Facts which are necessary for the determination of
the ultimate facts
Premises upon which conclusions of ultimate facts
are based
Facts which furnish evidence of existence of some
other facts
Test to Distinguish Conclusion of Law from Statement of Facts
1. Statement of fact if from the facts in evidence, the result
can be reached by the process of natural reasoning
adopted in the investigation of the truth, it becomes an
ultimate fact
2. Conclusion of law if resort must be had to the artificial
processes of law in order to reach a final determination,
the result is a conclusion of law
Note:
- The plaintiff is not required to indicate in his complaint the
particular provision of law upon which he relies
- And if he does so and is mistaken, this will not preclude
relief if the facts stated and proven justify it (La Insular v.
Jao Oge)
- Though take note of the 2nd par.
AS TO DOCUMENTS ATTACHED TO PLEADINGS
Ultimate Facts in Documents
GENERAL RULE: Ultimate facts in documents even if attached to the
complaint cannot take place of allegation and must be alleged as if
the documents were not attached thereo (Orbit Transportation v.
Workmens Compensation Commission)
EXCEPTION: Where there are allegations of fact in the complaint,
resort may be had to exhibits attached thereto in aid or elucidation
of an indefiniteness or uncertainty of said allegations
BUT Annexes cannot supply the omission of
allegations necessary to present a good cause of
action
Documents Attached to Pleadings are Part of Pleadings
- Documents attached must be construed as evidence and as
part of the pleadings
- No necessity of expressly introducing them in evidence
when the authenticity and due execution have not been
denied under oath
In such case, the documents are facts admitted by
parties
- Material facts established in annexes attached to the
complaint or petition which disprove or are contrary to
the very allegations of the pleader should not be
suppressed in the pleaders statement of his case and
issues involved (Orbit Transportation v. Workmens
Compensation Commission)
Instead, these must be specifically averred
So that the court may have before it a full and
complete picture of the questions raised
AS TO RELIEFS
The prayer for relief, though part of the complaint, is not part of the
cause of action and does not give it character
- Plaintiff is entitled to as much relief as the facts warrant
- Although that relief is not specifically demanded
It is the duty of the courts to grant the relief to which parties are
shown to be entitled by the allegations in their pleadings and the
facts proved at trial
- The mere fact that they themselves misconstrued the legal
effect of the facts alleged and proved will not prevent the
court from placing the just construction thereon and
adjudicate the issue accordingly
JUDICIAL ADMISSIONS IN PLEADINGS
A party cannot subsequently take a position contradictory to or
inconsistent with his pleadings
- The facts therein admitted are to be taken as true for the
purpose of the action (Lianga Lumber v. Lianga Timber)
- Issues in a case are limited to those presented in the
pleadings
- Ex: Allegations of having inherited the property from their
deceased parents mean that the land is conjugal
ILLUSTRATIVE CASES AND EXAMPLES
Allegations which are Mere Conclusions of Law
1. The general rule is that an allegation of duty in terms
unaccompanied by a statement of the facts showing the
existence of the duty, is a mere conclusion of law
Unless there is a relation set forth from which the law
raises a duty
2. Allegations that the defendants were actuated by ulterior
motives, gross and evident bad faith, etc. are conclusions
alleged and expression of opinion unsupported by factual
premises
3. Allegations characterizing the letter of dismissal as
libelous is a conclusion of law without factual basis
4. The allegation that the individual defendants held their
shares in trust for plaintiffs without averment of facts from
which the court could conclude the existence of the alleged
trust, was not deemed admitted by motion to dismiss for
that was a conclusion of law (Mathay v. Consolidated
Bank and Trust)
5. Allegations in a petition in the nature of conclusions about
the meaning of a contract, inconsistent with stated terms
of the contract, cannot be considered
Ex: an allegation characterizing an instrument or
purporting to interpret it and state its effects
6. Allegation that there was a violation of trust duty was
plainly a conclusion of law, for a mere allegation that it
was the duty of a party to do this or that, or that he was
guilty of a breach thereof, is a statement of a conclusion
Ex: an allegation that the defendants acquired stock
holdings far in excess of what they were lawfully
entitled
7. An averment that an act was unlawful or wrongful is a
mere legal conclusion or opinion of the pleader
8. Mere conclusions of law are allegations that a contract is
void, voidable, invalid, illegal, ultra vires, or against public
policy, without stating facts showing its invalidity
9. An allegation of bad faith is a mere conclusion of law
SECTION 2 - Alternative causes of action or defenses.A party
may set forth two or more statements of a claim or defense
alternatively or hypothetically, either in one cause of action or
defense or in separate causes of action or defenses. When two or
more statements are made in the alternative and one of them if
made independently would be sufficient, the pleading is not made
insufficient by the insufficiency of one or more of the alternative
statements. (2)
79
Breakdown of Provision
A. A party may set forth 2 or more statements of a claim or
defense
1. Alternatively or hypothetically
2. Either in one cause of action or defense or in separate
causes of action or defenses
B. When two or more statements are made in the alternative
and one of them if made independently would be sufficient
1. Pleading is not made insufficient by the insufficiency of
one or more of the alternative statements
Election of Remedies
- Broadly, election of remedies refers to the choice by a
party of one or two or more co-existing remedial rights,
where several such rights arise out of the same facts
- It has been generally limited to a choice by a party
between inconsistent remedial rights
The assertion of one being necessarily repugnant to,
or repudiation of, the other
- In its technical and more restricted sense, it is the
adoption of one of 2 or more co-existing remedies
With the effect of precluding a resort to the others
- As a technical rule of procedure, purpose of the doctrine of
election of remedies:
Is not to prevent recourse to any remedy
But to prevent double redress for a single wrong
- It is an application on the law of estoppel
- Ordinarily, election of remedies is not made until the
judicial proceedings has gone to judgment on the merits
HOWEVER, when a certain state of facts under the law entitles a
party to these remedies both founded upon identical state of facts,
these remedies are not considered inconsistent remedies
- In this case, invocation of one remedy is not an election
which will bar the other
UNLESS:
1. The suit upon the remedy first invoke shall reach
the stage of final adjudication, or
2. Unless by the invocation of the remedy first
sought to be enforced, plaintiff shall have gained
an advantage thereby or caused detriment or
change of situation to the other
No Binding Election Occurs Before a Decision on the Merits is had or
a Detriment to the Other Party Supervenes
- No binding election occurs before a decision on the merits
is had or a detriment to the other party supervenes
- The principle of election of remedies is discordant with the
modern procedural concepts embodied in civil procedure
which permits a party to seek inconsistent remedies in his
claim for relief without being required to elect between
them at the pleading stage of litigation
Illustrative Cases
1. The defense of expiration of right to repurchase or the
alternative defense of having inherited the property is
allowed; otherwise, alternative defense is barred (Heirs of
Marquez v. Valencia)
2. A party may state as many claims or defenses as he has
regardless of consistency but each must be consistent in
itself
3. The hypothetical defense of prescription is allowed
(Doran v. Dinamore)
Facts that Must be Averred Generally:
1. Conditions precedent (Sec. 3)
But there must still be an allegation that the specific
condition precedent has been complied with,
otherwise, it will be dismissed for lack of cause of
action
2. Capacity to sue or be sued (Sec. 4)
3. Capacity to sue or be sued in a representative capacity
(Sec. 4)
NOTE: A party desiring to raise an issue as to the legal
existence or capacity of any party to sue or be sued in
a representative capacity shall do so by specific denial
which shall include supporting particulars within the
pleaders knowledge
4. Legal existence of an organization (Sec. 4)
5. Malice, intent, knowledge, or other condition of the mind
(Sec. 5)
6. Judgments of domestic or foreign courts, tribunals, boards,
or officers (Sec. 6)
No need to show jurisdiction, for it is presumed
7. Official document or act (Sec. 9)
Facts that Must be Averred Particularly The circumstances
showing fraud or mistake in all averments of fraud or mistake (Sec.
5)
SECTION 3 - Conditions precedent.In any pleading a general
averment of the performance or occurrence of all conditions
precedent shall be sufficient. (3)
If plaintiffs cause of action depends upon a condition precedent
- Complaint must allege fulfillment or legal excuse for non-
fulfillment
- Omission of such allegation will make the complaint
insufficient
Case may be dismissed for failure to state cause of
action
SECTION 4 - Capacity.Facts showing the capacity of a party to
sue or be sued or the authority of a party to sue or be sued in a
representative capacity or the legal existence of an organized
association of persons that is made a party, must be averred. A
party desiring to raise an issue as to the legal existence of any
party or the capacity of any party to sue or be sued in a
representative capacity, shall do so by specific denial, which shall
include such supporting particulars as are peculiarly within the
pleaders knowledge. (4)
What must be averred:
1. Facts showing the capacity of a party to sue or be sued; or
2. The authority to sue or be sued in a representative
capacity;
3. Or the legal existence of an organized association of
persons that is made a party
How is Capacity challenged?
1. By specific denial which shall include such supporting
particulars as are peculiarly within pleaders knowledge,
(The Home Insurance Co. v. Eastern Shipping Lines); or
2. By a motion to dismiss (See Rule 16); or
3. By filing a motion for bill of particulars (Bontillo v. IAC)
As to Foreign Corporations
- Whether or not a foreign corporation may sue or be sued
in the Philippines depends on whether or not it is doing
business in the Philippines
80
- The specific circumstances that a foreign corporation is
either duly licensed to do business in the Philippines or
the transaction sued upon is singular and isolated is an
essential part of plaintiffs capacity to sue and must be
affirmatively alleged (Atlantic Mutual Insurance Co. v.
Cebu Stevedoring Co. Inc.)
SECTION 5 - Fraud, mistake, condition of the mind.In all
averments of fraud or mistake, the circumstances constituting
fraud or mistake must be stated with particularity. Malice, intent,
knowledge or other condition of the mind of a person may be
averred generally. (5a)
State with particularity averments of fraud or mistake
May be stated generally averments of malice, intent, knowledge or
other condition of the mind of a person
Notes:
- Facts constituting the condition of the mind are permitted
to be averred generally as it would be difficult to do so
with particularity
- Fraud and mistake are required to be averred with
particularity in order to enable the opposing party to
controvert the particular facts allegedly constituting the
same
The test is whether the complaint states sufficient ultimate facts to
give defendants fair notice of the nature of the action and the
fraudulent acts
SECTION 6 - Judgment.In pleading a judgment or decision of a
domestic or foreign court, judicial or quasi-judicial tribunal, or of
a board or officer, it is sufficient to aver the judgment or decision
without setting forth matter showing jurisdiction to render it. (6)
Notes:
- This provision is a necessary consequence of the
disputable presumption that a court, or judge acting as
such, whether in the Philippines or elsewhere, was acting
in the lawful exercise of his jurisdiction (Sec. 3(n), Rule
131)
- Such judicial record may be impeached by evidence of
want of jurisdiction in the court or judicial officer (Sec. 29,
Rule 132)
SECTION 7 - Action or defense based on document.Whenever an
action or defense is based upon a written instrument or
document, the substance of such instrument or document shall be
set forth in the pleading, and the original or a copy thereof shall
be attached to the pleading as an exhibit, which shall be deemed
to be a part of the pleading, or said copy may with like effect be
set forth in the pleading. (7)
When action or defense based upon a written instrument or document:
1. Substance of such shall be set forth in the pleading
2. The original or copy thereof attached as an exhibit
a. It will be deemed part of the pleading
Where a pleader relies upon a document, its substance must be set
out in the pleading either by its terms or by its legal effects
Actionable Document the written instrument upon which the
action or defense is based
Requisites of the Rule:
1. The substance of such instrument or document shall be set
forth in the pleading; and
2. The original or copy thereof shall be attached to the
pleading as an exhibit, which shall be deemed to be part of
the pleading; or
3. Said copy may with like effect be set forth in the pleading
Two permissible ways of pleading an actionable document:
1. By setting forth the substance of such document in the
pleading and attaching the document thereto as an annex;
2. Or by setting forth said document verbatim in the pleading
Unless alleged in any of the aforementioned modes, the rule on
implied admission in Sec. 8 will not apply
Note: A variance in the substance of the document set forth in the
pleading and the document annexed thereto does not warrant
dismissal of the action (Convets Inc. v. National Dev. Co.)
- However, the contents of the document annexed are
controlling
Example: Action to enforce or rescind a written contract of lease
- The contract itself is the basis of the action
- A copy of such contract must either be:
1. Set forth in the complaint; or
2. Its substance must be recited therein
- Attached also is the original or a copy thereof with the
complaint
- Letters written by lessee to lessor or vice-versa concerning
the contract need not and should not be set forth in the
complaint
They may have evidential value but evidence, even in
writing, does not necessarily have a place in a
pleading (Araneta Inc. v. Lyric Film Exchange)
Rule is not applicable if the document is not the basis of the
complaint or defense
SECTION 8 - How to contest such documents.When an action or
defense is founded upon a written instrument, copied in or
attached to the corresponding pleading as provided in the
preceding section, the genuineness and due execution of the
instrument shall be deemed admitted unless the adverse party,
under oath, specifically denies them, and sets forth what he claims
to be the facts; but the requirement of an oath does not apply
when the adverse party does not appear to be a party to the
instrument or when compliance with an order for an inspection of
the original instrument is refused. (8a)
How to Contest an Actionable Document
1. By specific denial under oath; and
2. By setting forth what is claimed to be the facts
PURPOSE AND DEFINITIONS
Reason for the Rule
- To enable the adverse party to know beforehand whether
he will have to meet the issue of genuineness or due
execution of the document during trial
- While mandatory, rule is a discovery procedure and
should be reasonably construed to attain its purpose, and
in a way as not to effect a denial of substantial justice
81
Meaning of Genuineness and Due Execution
A. Due Execution
1. That the party whose signature it bears admits that
he voluntarily signed it; or
2. That it was signed by another for him with his
authority
B. Genuineness
1. That the party whose signature it bears admits that at
the time it was signed it was in words and figures
exactly as set out; and
2. That the formalities, such as swearing and
acknowledgement, or revenue stamps which are
required by law are waived by him
To deny the genuineness and due execution of an instrument means
that the defendant must declare under oath that:
1. He did not sign the document or
2. That it is otherwise false or fabricated
DENIAL MUST BE SPECIFIC
The denial contemplated by this section must be specific
- A mere statement in the answer that the instrument was
procured by fraudulent representation does not raise any
issue as to its genuineness or due execution (Songco v.
Sellner)
- An attack on the instrument in general is insufficient even
though the answer is under oath
- An oath which reads that the contents of the foregoing are
true and correct according to my best knowledge and
information is not sufficient
Where the genuineness of the document which is the
basis of the action has not been specifically denied
FAILURE TO DENY
Effect of Failure to Deny Under Oath
1. The genuineness and due execution is deemed admitted
2. The document need not be formally offered in evidence
Where the actionable document is properly alleged (Sec. 7), failure
to deny the same results in the admission of the genuineness and
due execution of said document
- EXCEPT:
1. When the adverse party was not party to the
instrument, and
2. When an order for the inspection of the document
(Rule 27) was not complied with
Defenses Cut Off for Failure to Make Denial - Those defenses
inconsistent with genuineness and due execution, such as:
1. Defenses that signature is forgery
2. That it was unauthorized, as in the case of an agent signing
for his principal, or one signing in behalf of a partnership
or corporation
3. Or that in case of corporation, that the corporation was not
authorized under its charter to sign the document
4. That the party charged signed the instrument in some
other capacity alleged in the pleading setting it out;
5. That it was never delivered
6. That the document was spurious, counterfeit, or of
different import on its face as the one executed
Defenses that are NOT deemed Admitted those which are not
inconsistent with due execution and genuineness, such as:
1. Payment, illegality, or want of consideration
2. Compromise, estoppel, coercion
3. Failure to deny does not preclude a party from arguing
against it by evidence of fraud, mistake, statute of
limitations
4. Mistake or imperfection in the writing
5. That it does not express the true agreement of the parties
6. That the agreement is invalid
7. There is an intrinsic ambiguity in the writing
WHEN RULE IS NOT APPLICABLE
When Rule is NOT Applicable
1. When the adverse party does not appear to be a party to
the instrument; or
2. When compliance with an order for an inspection of the
original instrument is refused; or
3. When document or instrument is not the basis of action or
defense
In this case, a simple specific denial would be
sufficient
Examples as to when rule is not applicable:
1. Heirs on a written contract executed by the father need
not be denied by the heirs (Lim Chingco v. Terariray)
2. An endorsement by the payee in a note executed by the
maker need not be denied by the latter (Heinszen and Co.
v. Jones)
3. Statements of account exclusively prepared by the plaintiff
and attached to the complaint of plaintiff does not have to
be denied under oath and is not binding on defendant
(Kalilid Wood Industries v. IAC)
SECTION 9 -- Official document or act.In pleading an official
document or official act, it is sufficient to aver that the document
was issued or the act done in compliance with law. (9)
SECTION 10 - Specific denial.A defendant must specify each
material allegation of fact the truth of which he does not admit
and, whenever practicable, shall set forth the substance of the
matters upon which he relies to support his denial. Where a
defendant desires to deny only a part of an averment, he shill
specify so much of it as is true and material and shall deny only
the remainder. Where a defendant is without knowledge or
information sufficient to form a belief as to the truth of a material
averment made in the complaint, he shall so state, and this shall
have the effect of a denial. (10a)
PURPOSE
The purpose of requiring the defendant to make a specific denial is
to make him disclose the matters alleged in the complaint which he
sincerely intends to disprove at the trial, together with matters
which he relies upon to support the denial
MODES OF DENIAL
A. Defendant must specify each material allegation of fact the
truth of which he does not admit
Whenever applicable, he shall set forth the substance
of the matters which he will rely upon to support the
denial
82
B. If pleader decides to deny only a part or a qualification of
an averment:
He shall specify so much of it as is true and material
He shall deny the remainder
C. If defendant is without knowledge or information
sufficient to form a belief as to the truth of a material
averment made in the complaint
He shall so state
This shall have the effect of a denial
FIRST MODE OF DENIAL
Specific Absolute Denial By specifically denying the averment and,
whenever practicable, setting forth the substance of the matters
relied upon for such denial
Purpose to make him disclose the matters alleged in the complaint
which he sincerely intends to disprove at the trial, together with the
matters which he relies upon to support the denial
Contents of Denial
- It must not only specify each material allegation of facts,
the truth of which is not admitted
- But he must also, whenever applicable, set forth the
substance of the matters which he will rely upon to
support his denial
- Ex: Deny contract and set forth the real contract
When Denial is Insufficient
- Mere use of the words specific denial is not sufficient
- Denial in the answer does not become specific merely
because it is qualified by the word (Agton v. CA)
Where the averments in the opposing partys pleading are based on
documents which are:
1. In the possession of defendant; or
2. Are presumed to be known by him; or
3. Are readily ascertainable by him,
A general allegation of lack of knowledge or information thereof on
his part will not be considered a specific denial but an admission
(Warner, Barnes and Co. Ltd. v. Reyes et al.)
Where the answer merely reproduces the recitals in the complaints
and denies such recitals without setting forth the matters relied
upon in support of such denials, such answer contains only general
denials and judgment on the pleadings is proper (Syquia v.
Marsman)
SECOND MODE OF DENIAL
Partial Specific Denial Part admission, part denial
Purpose to abolish negative pregnants which is a denial pregnant
with an admission of the substantial facts alleged in the pleadings
Negative Pregnant
- Is that form of denial which at the same time involves an
affirmative implication favorable to the opposing party
- Denial pregnant with an admission of the substantial facts
in the pleading responded to
A Negative Pregnant Arises:
1. From a too literal denial of the allegations of the
opponents pleadings
In such case, it is merely the form and not the
substance that is denied
 2. Where a fact is alleged with qualifying or modifying
language, and the words of the allegation are so qualified
or modified are literally denied
In such case, the qualifying circumstances alone are
denied while the fact itself is admitted
If the defendants denial is a negative pregnant, it is equivalent to an
admission (Galofa v. Nee Bon Sing)
Example: In the case of Galofa, defendant denies the material
averment of par. 4 of the complaint, the truth being that he never
asserted title of ownership to the property, much less to plaintiff, nor
claimed possession of right over said property
- SC held that this denial is as to the material averment
contained in par.4 conjoined with his disclaimer or
dominical, or possessory right in the manner alleged in the
complaint
- It was held as a negative pregnant and was deemed to be
an admission
- The defendant has, in effect, denied only the qualification
but not the averment that he had deprived the plaintiff of
actual possession of the land
THIRD MODE OF DENIAL
Disavowal of Knowledge By an allegation of lack of knowledge or
information sufficient to form a belief as to the truth or falsity of the
averment in the opposing partys pleading
Requisites:
1. It is indispensable that the matter regarding which lack of
knowledge be clearly specified, so that the adversary may
know what is denied
2. The denial must only refer to matters which are not plainly
and necessarily within defendants knowledge
Must be made in good faith
Otherwise, it shall be deemed as an admission
On Ignorance
- A mere allegation of ignorance of the facts alleged in the
complaint is insufficient to raise an issue
Defendant must positively state how it is that he is
ignorant of the facts as alleged (Philippine
Advertising v. Revilla)
- A profession of ignorance about a fact which is patently
and necessarily within the pleaders knowledge or means
of knowing is as ineffective as no denial at all (New Japan
Motors v. Perucho)
Notes:
- The setting up of special defenses which are evasive and
do not touch the heart of the controversy is a strategy that
cannot be sanctioned (Syquia v. Marsman)
- Failure to deny estops defendants from questioning the
allegations (Velasco v. CA)
SECTION 11 - Allegations not specifically denied deemed
admitted.Material averment in the complaint, other than those
as to the amount of unliquidated damages, shall be .deemed
admitted when not specifically denied. Allegations of usury in a
complaint to recover usurious interest are deemed admitted if not
denied under oath. (1a, R9)
On Judicial Admissions
1. GENERAL RULE: Admissions made by parties in the
pleadings, or in the course of the trial or other
83
proceedings do not require proof and cannot be
contradicted
2. EXCEPTION: Unless they have been made through
palpable mistake or that no such admission was made
The denial must be made in accordance with the modes in Sec. 10
- Failure to do so would fail to tender an issue and would
admit the material allegations of the adverse partys
pleading
In which case, judgment on the pleadings would be
proper
Examples of Averments NOT Deemed Admitted Even if Not Specifically
Denied
1. Immaterial allegations (like allegations by way of anticipation
of defense)
2. Incorrect conclusions of facts drawn from facts set out in the
complaint
3. Conclusions of law
4. General averment contradicted by specific averment
5. Unliquidated damages
6. Default
7. Annulment of marriage
8. Legal separation
9. Allegations as to amount of damages
10. All allegations in the complaint where no answer has been
filed by the defendant
Withdrawal of Express Admissions
1. Admissions may be withdrawn by amendments
Under Sec. 8, Rule 10, an amended pleading supersedes
the pleading that it amends
Admissions in superseded pleadings may be received in
evidence against the pleader, and claims or defenses
alleged therein not incorporated in the amended
pleading shall be deemed waived
2. Admission may be contradicted by showing palpable mistake
or that no such admission was made
SECTION 12 - Striking out of pleading or matter contained therein.
Upon motion made by a party before responding to a pleading or, if no
responsive pleading is permitted by these Rules, upon motion made
by a party within twenty (20) days after the service of the pleading
upon him, or upon the courts own initiative at any time, the court
may order any pleading to be stricken out or that any sham or false,
redundant, immaterial, impertinent, or scandalous matter be stricken
out therefrom. (5, R9)
Pleadings or Matters to be Stricken Out: Matters that are:
1. Sham or false
2. Redundant
3. Immaterial, or
4. Scandalous
When Court May Order Any Pleading to be Stricken Out
1. Upon motion made by a party before responding to a pleading;
or
2. If no responsive pleading is permitted by the rules, upon
motion made by a party within 20 days after the service of the
pleading upon him; or
3. Upon the Courts initiative at any time
False Allegations
An averment in a pleading made without reasonable cause and
found untrue shall subject the offending party to a payment of such
reasonable expenses as may have been necessarily incurred by the other
party by reason of such untrue pleading.
The amount of expenses so payable shall be fixed by the judge
in the trial, and taxed as costs. (Sec. 4, Rule 142)
No Cost for Irrelevant Matters
When the record contains any unnecessary, irrelevant, or
immaterial matter, the party at whose instance the same was inserted or
at whose instance the same was printed, shall not be allowed as costs
any disbursement for preparing, certifying, or printing such matter (Sec.
5, Rule 142)

END OF RULE 8

84
NOTES ON RULE 8

85
NOTES ON RULE 8

86

RULE 9
EFFECT OF FAILURE TO PLEAD
SECTION 1 - Defenses and objections not pleaded.Defenses and
objections not pleaded either in a motion to dismiss or in the
answer are deemed waived. However, when it appears from the
pleadings or the evidence on record that the court has no
jurisdiction over the subject matter, that there is another action
pending between the same parties for the same cause, or that the
action is barred by a prior judgment or by statute of limitations,
the court shall dismiss the claim. (2a)
Breakdown of Provision
A. Defenses and objections not pleaded either in a motion to
dismiss or in the answer are deemed waived
B. But the court shall dismiss the claim when it appears from
the pleading or records that:
1. Court has no jurisdiction over the subject matter
2. There is another action pending between the same
parties for the same cause
3. The action is barred by a prior judgment
4. The action is barred by statute of limitations
GENERAL RULE: Defenses and objections not raised in a motion to
dismiss or in the answer are deemed waived
EXCEPTIONS:
1. Lack of jurisdiction over the subject matter;
2. Litis pendentia;
3. Res judicata; and
4. Prescription of the action
Lack of Jurisdiction over the Subject Matter
- The objection on jurisdictional grounds which is not
waived even if not alleged is lack of jurisdiction over the
SUBJECT MATTER
- Lack of jurisdiction over the NATURE of the action has
been eliminated in Rule 16
Although objection may possibly be raised in other
pleadings or proceedings
- Lack of jurisdiction over the subject matter can always be
raised anytime
Even for the first time on appeal
Jurisdictional issues cannot be waived but subject,
however, to the principle of estoppel by laches
Litis Pendentia
- Since the other case is still pending, a resolution of the
objection raised on this ground should properly await the
resolution of and developments in the other pending case
- Upon occurrence of the relevant contingencies in the other
case, this objection may then be raised
Unless already submitted to the court
Which by then would be in a better position to
appreciate the merits of the objection
Res Judicata and Prescription
- Included as exceptions since they are grounds for
extinguishment of the claim
- Note also Sec. 5, Rule 16 which provides that a motion to
dismiss on the grounds, inter alia, of res judicata or
prescription shall bar the refiling of the same action or
claim
87
- As to prescription:
It is not deemed waived if it is apparent on the face of
the complaint or evidence adduced during trial
It has been held that the defense of prescription may
be considered only if the same is invoked in the
answer
Except where the fact of prescription appears in the
allegations in the complaint of the evidence presented
by plaintiff, in which case such defense is deemed not
waived (Ferrer v. Ercita)
Thus, it would appear that the non-waiver is
dependent on the timeliness of invocation of the
defense, or where such defense is a matter of record
or evidence
The Presence of any of the Four Grounds
- Authorizes the court to motu proprio dismiss the claim
The claims asserted in the complaint, counter-claim,
cross-claim, third-party complaint, or complaint in
intervention
- But it is necessary that the constitutive facts of such
grounds, if not in the answer with evidence adduced
therefor, should appear in the other pleadings filed or in
the evidence on record in the case
Illustrative Cases
1. Brown v. Yambao courts can take cognizance of the
action since actions seeking decree of legal separation, or
annulment of marriage, involves public interest; defense of
prescription deemed not waived
2. PNB v. Perez the defense of prescription can only be
considered if the same is invoked as such in the answer of
the defendant
In this case, no such defense was invoked because the
defendant had been declared in default
But such rule does not obtain when the evidence
shows that the cause of action upon which plaintiffs
complaint is based is already barred by statute of
limitatioons
3. Garcia v. Mathis where the allegations in the complaint
showed that the action has prescribed, the case was
dismissed even if prescription was not invoked
Limitations on Exceptions
- Sec. 1 Rule 9 covers situations where a defense or
objection is not raised in a motion to dismiss or answer
- It does not apply where defenses are raised in the answer
but not included in the pre-trial order
Non-inclusion of the defense of prescription in the
pre-trial order barred its consideration during trial
SECTION 2 - Compulsory counterclaim, or cross-claim, not set up
barred.A compulsory counterclaim, or a cross-claim, not set up
shall be barred. (4a)
Amended Answer is proper if the counterclaim or cross-claim
already existed at the time the original answer was filed but due to
oversight inadvertence, or excusable neglect it was not set up
Supplemental Answer is proper if the counterclaim or cross-claim
matures or is acquired after the answer is filed
Relevant Provisions
1. See Sec. 8, Rule 11
2. See Rule 17 on Effects of Dismissal of complaint on
counterclaim
3. See Rule 6, Sec. 7
Purpose of Rule
- To avoid multiplicity of suits and to dispose of the whole
matter in controversy in one action
- Adjustment of defendants demand by counterclaim rather
than by independent suit
Effect of Failure to Set Up Compulsory Counterclaim
- If a compulsory counterclaim is not set up, it shall be
barred
- Party in error is precluded from setting it up in a
subsequent litigation on the ground of res judicata
- What are barred by prior judgment are not only the
matters actually raised and litigated, but also such matters
as could have been raised but were not
- Where the counterclaim is made subject of a separate suit,
it may be abated upon plea of auter action pendant or litis
pendentia and/or dismissed on the ground of res judicata
- A compulsory counterclaim is ancillary to the proceedings
in the original suit
Note also that the Filing of Motion to Dismiss is Implied Waiver of
Compulsory Counterclaim
- The filing of a motion to dismiss and the setting up of a
compulsory counterclaim are incompatible remedies
- Party must choose only one remedy
1. If he decides to file a motion to dismiss, he will lose
his compulsory counterclaim
2. If he opts to set up a compulsory counterclaim, he
may still plead his ground for dismissal as an
affirmative defense in his answer
But if the Dismissal of the Counterclaim was due to Non-Payment of
Docket Fees, it is not res judicata
- In this case, it was not a determination on the merits
- And the dismissal would be unqualified
- So the dismissal is not a bar to the filing of the
counterclaim in a subsequent action instituted by the
plaintiff involving the same subject-matter
- See Meliton v. CA, et al.
SECTION 3 - Default; declaration of.If the defending party fails
to answer within the time allowed therefor, the court shall, upon
motion of the claiming party with notice to the defending party,
and proof of such failure, declare the defending party in default.
Thereupon, the court shall proceed to render judgment granting
the claimant such relief as his pleading may warrant, unless the
court in its discretion requires the claimant to submit evidence.
Such reception of evidence may be delegated to the clerk of court.
(1a, R18)
(a) Effect of order of default.A party in default shall be
entitled to notice of subsequent proceedings but not to
take part in the trial. (2a, R18)
(b) Relief from order of default.A party declared in default
may at any time after notice thereof and before
judgment file a motion under oath to set aside the order
of default upon proper showing that his failure to
answer was due to fraud, accident, mistake or excusable
negligence and that he has a meritorious defense. In
such case, the order of default may be set aside on such
terms and conditions as the judge may impose in the
interest of justice. (3a, R18)
(c) Effect of partial default.When a pleading asserting a
claim states a common cause of action against several
defending parties, some of whom answer and the others
fail to do so, the court shall try the case against all upon
the answers thus filed and render judgment upon the
evidence presented. (4a, R18)
88
(d) Extent of relief to be awarded.A judgment rendered
against a party in default shall not exceed the amount or
be different in kind from that prayed for nor award
unliquidated damages. (5a, R18)
(e) Where no defaults allowed.If the defending party in an
action for annulment or declaration of nullity of
marriage or for legal separation fails to answer, the
court shall order the prosecuting attorney to investigate
whether or not a collusion between the parties exists,
and if there is no collusion, to intervene for the State in
order to see to it that the evidence submitted is not
fabricated. (6a, R18)
Breakdown of Provision
A. If defending party fails to answer within time allowed, the
court shall declare the defending party in default
1. HOW:
a. Upon motion of the claiming party
b. With notice to the defending party
c. And proof of such failure
2. The court shall then proceed to render judgment
granting the claimant such relief as the pleading may
warrant
a. UNLESS: the court in its discretion requires the
claimant to submit evidence
b. Reception of evidence may be delegated to clerk of
court
B. Effect of Order of Default
1. Party in default is entitled to notice of subsequent
proceedings
2. But not to take part in the trial
C. Relief from Order of Default
1. A party may file a motion to set aside the order
2. WHEN:
a. At any time after notice of the order of default
b. Before judgment
3. HOW: File a motion under oath to set aside the order of
default
4. Upon a showing that:
1. His failure to answer was due to fraud, accident,
mistake, or excusable negligence; and
2. That he has a meritorious defense
5. Order of default may be set aside on such terms and
conditions as the judge may impose on the interest of
justice
D. Effect of Partial Default
1. When a pleading asserting a claim states a common
cause of action against several defending parties, some
answer and the others fail
2. Court shall try the case against all upon the answers
thus filed and render judgment upon evidence
presented
E. Extent of Relief to be Awarded judgment rendered against
party in default:
1. Shall not exceed the amount or be different in kind
from that prayed for
2. No award of unliquidated damages
F. Where No Defaults Allowed
1. If defending party in an action for legal separation fails
to answer
a. Court shall order prosecuting attorney to
investigate whether or not a collusion between
parties exist
b. IF there is no collusion, Court shall order
prosecuting attorney to intervene for the State in
order to see to it that the evidence submitted is
not fabricated
Dual Stages of Default two stages of default:
1. Declaration of Order of Default when defendant fails to
answer within the time specified in the rules, the court
shall, upon motion of the plaintiff and proof of such failure,
declare defendant in default
2. Rendition of Judgment by Default thereafter, on the basis
of the allegation of the complaint or after receiving
plaintiffs evidence, the court shall render judgment
granting him such relief as the complaint and the facts
proven may warrant
ORDER OF DEFAULT JUDGMENT BY DEFAULT
Issued by the court, on Rendered by the court
plaintiffs motion for failure of following a default order or
defendant to file his responsive after it received, ex parte,
pleading seasonably plaintiffs evidence
Interlocutory not appealable Final appealable
When Declaration of Default Proper
There is only one instance when a party defendant can
properly be declared in default and that is when he fails to file his
answer within the reglementary period, or within such extended
time as he is allowed by the court, under Sec. 1, Rule 18
Take Note:
- Failure to file a responsive pleading within the
reglementary period, and not failure to appear at hearing,
is the SOLE ground for an order of default
- Except the failure to appear at pre-trial conference
wherein the effects of a default on the part of the
defendant are followed (Sec. 5, Rule 18)
Failure of the defendant to attend the pre-trial is a
cause for the court to order the plaintiff to present his
evidence ex parte and for the court to render
judgment on the basis thereof; but this consequence
is not to be called a declaration of default
- Also, a default judgment may be rendered, even if
defendant had filed his answer, under the circumstances in
Sec. 3(c), Rule 29
NOTE: Where the answer is filed beyond the reglementary period
but before the defendant was declared in default, and there is no
showing that defendant intended to delay the case, the answer
should be admitted (Cathay Pacific v. Romillo)
GENERAL RULE: Default order and consequently a default judgment
are triggered by the failure of the defending party to file the required
answer (Sec. 3, Rule 9)
EXCEPTIONS: A judgment by default may be rendered in the
following cases despite an answer having been filed:
1. If a party refuses to obey an order requiring him to comply
with the various modes of discovery (Sec. 3, Rule 29); or
2. If a party or officer or managing agent of a party willfully
fails to appear before the officer who is to take his
deposition (Sec. 5, Rule 29)
Elements of a Valid Declaration of Default
1. The court must have validly acquired jurisdiction over the
person of the defendant either by service of summons or
voluntary appearance
2. The defendant failed to file his answer within the time
allowed therefor
3. There must be a motion to declare the defendant in default
with notice to the latter
4. There must be notice to the defendant by serving upon
him a copy of such motion
5. There must be proof of such failure to answer
6. There must be a hearing to declare defendant in default
89
Basis of Default
1. Fundamentally, default orders are taken on the legal
presumption that in failing to file an answer, defendant
does not oppose the allegations and relief demanded in the
complaint
2. There must be a motion to declare defendant in default
Take Note:
- The court cannot motu proprio declare a defendant in
default, there must be a motion to that effect by plaintiff
with proof of failure by defendant to file his responsive
pleading despite due notice
- Under the rule of summary procedure, no default order is
rendered or required as a motion to declare the defendant
in default is prohibited
Caution in Issuing Default Orders
While there are instances when a party may properly be
defaulted, these should be the exception rather than the rule, and
should be allowed only in clear cases of obstinate refusal or
inordinate neglect to comply with the orders of the court (Tropical
Homes, Inc. v. Villaluz)
Kinds of Declaration of Default
1. A validly or properly declared in default for causes
attributable to the defendant
2. Illegally or improvidently declared in default as when it is
premature for causes not attributable to defendant
The proceedings are null and void
Certiorari is an appropriate remedy despite
availability of appeal
May a defendant be declared in default while a motion to dismiss or
a motion for a bill of particulars remains pending and undisposed of?
No, because the filing of a motion to dismiss or motion for
bill of particulars interrupts the running of the period to answer. It
will run again from the moment defendant receives the order
denying motion to dismiss or for a bill of particulars.
Effect of Order of Default:
1. The court shall proceed to render judgment granting the
claimant such relief as his pleading may warrant; or in its
discretion
2. Shall require the claimant to submit evidence;
3. Loss of standing in court of the defaulting party
4. Defendant is still entitled to notices of subsequent
proceedings
- Loss of standing in court consequence of an order of
default; a party in default is considered out of court
He cannot appear therein, adduce evidence and be
heard nor take part in the trial
He loses his right to present his defense, control the
proceedings and examine witness
Although he is entitled to notice of subsequent
proceedings
- Loss of standing does not constitute a waiver of all his
rights except that being heard and or presenting evidence
in trial court:
He is entitled to notice of final judgments and orders
and proceedings taken subsequent thereto (Garcia v.
CA)
He may be cited and may testify as a witness (Cavile
v. Florendo)
He has the right to notice of motion for execution
pending appeal (SC Johnson & Co v. CA)
 Defaulting defendant in a common cause of action
may ask for execution of judgment issued in his favor
(Castro v. Pena)
- Note that these principles are not applicable where the
order of default is invalid for lack of proper service of
summons
Remedies available to defendant in default, as held in Lina v. CA
1. The defendant in default may file a motion, under oath, to
set aside the order of default
At any time after discovery thereof (from Notice)
and before judgment,
2. If the judgment has already been rendered, he may file for
new trial under Sec. 1 (a) Rule 37
when the defendant discovered the default,
but before the same has become final and executory
3. If defendant discovered the default after judgment had
become final and executory, he may file a petition for relief
under Sec. 2, Rule 38
4. He may also appeal from the judgment rendered against
him as contrary to the evidence or to the law, even if no
petition to set aside the order of default has been
presented by him
Certiorari Available Defendant Improvidently Declared in Default
- An order of default is interlocutory and is not appealable
(Vencilan v. Vano)
- But if the order is void, remedy is certiorari; the appeal
may be treated as certiorari (Akut v. CA)
- Note that a defendant who is properly declared in default
is differently situated from one who is improvidently
declared:
1. Defendant PROPERLY declared in default
a. He irreparably loses his right to participate in
trial
b. He is limited to the remedy set forth in Sec. 2,
Par. 3, Rule 41; he can only contest the judgment
by default on the designated ground that it is
contrary to evidence or law
2. Defendant IMPROVIDENTLY declared in default
a. He retains his right to participate and the
subsequent judgment by default annulled and
case remanded to court of origin
b. He has the option to avail of the same remedy in
Rule 41 or to forthwith interpose a petition for
certiorari seeking nullification of the order of
default; or in the event that the latter has been
rendered, to have both decrees declared void
Illustrative Cases
1. It is an error to declare defendant in default after an
answer had already been filed (Cathay Pacific v. Romillo,
Jr.)
a. The answer should be admitted (Tumambing v.
Ganzon)
2. Failure to furnish plaintiff with copy of answer is ground
for default (Gonzales v. Francisco)
a. Failure to furnish plaintiff with a copy of letter-
answer prepared by an ordinary layman containing a
recital of facts relied upon as defenses, is a sufficient
and substantial compliance, and is not a ground for
default (Cequerra v. Cayetano)
3. When a counterclaim need not be answered, default is
improper
a. A plaintiff who fails or chooses not to answer a
compulsory counterclaim may not be declared in
default; issues raised in the counterclaim are deemed
90
automatically joined by allegations in the complaint
(Gojo v. Goyala)
4. Declaration of default before expiration of period to
answer is null and void (Denso v. IAC)
a. Filing of a special civil action for certiorari under Rule
65 does not interrupt the period to file an answer;
defendant may be declared in default even if there is a
pending petition for certiorari (Diaz v. Diaz)
5. A motion to dismiss assailing the merits may be
considered as an answer but the court explained that a
motion to dismiss may not be considered as an answer
(Matute v. CA)
Partial Default:
1. The pleading asserting a claim states a common cause of
action against several defending parties
2. Some of the defending parties answer and the others fail to
do so
3. The answer interposes a common defense
Effect of Partial Default
- When the complaint states a common cause of action
against several defendants some of whom answers and
some of them do not, the court should declare defaulting
defendants in default, and proceed to trial on answers of
others
- It must be established that:
1. Petitioner has a common cause of action against all
defendants; and
2. All defendants are indispensable parties to the case
- Some rules laid down by jurisprudence:
a. The rule is not applicable to defenses personal to the
answering defendant such as forgery (Luzon Surety
v. Magbanua)
b. Where a co-defendant who filed his answer died and
the case was dismissed as to him, the answer he filed
does not inure to the benefit of the defendant who did
not file his own answer
Requisites to Lift Order of Default
A Verified Motion showing:
1. Fraud, accident, mistake, or excusable neglect; AND
2. Meritorious defenses
Notes:
- The motion must be under oath or verified and
accompanied by an affidavit of merits
- A meritorious defense is synonymous to a good and valid
defense
- His motion must be accompanied by a statement of the
evidence which he intends to present if the motion is
granted and which is such as to warrant a reasonable
belief that the result of the case would probably be
otherwise if a new trial is granted
- These two requisites MUST concur
- It is within the discretion of the trial court to set aside an
order of default and permit the filing of defendants
answer even beyond the reglementary period, or to refuse
to set aside the default order where it finds no justification
for the delay (Malipod v. Tan)
Liberality in Setting Aside Default
Courts should be liberal in setting aside orders of default,
for a default judgment is frowned upon and are not looked upon
with favor for such a judgment may amount to a positive and
considerable injustice to the defendant and the possibility of such
serious consequences necessitates a careful examination of the
grounds upon which the defendant asks that it be set aside.
(Montinola v. Planters Bank)

Effect of Setting Aside of Default Order

- If the court sets aside the order of default, the defendant is
now restored to his standing and rights in the action
- But proceedings already taken are not to be disturbed
(Jamie v. Maniego)
- Although it is within the discretion of the court to re-open
the evidence submitted by the plaintiff and enable the
defendant to challenge the same (Denso Inc. v. IAC)
- The lifting of an order of default does not revert the case to
its pre-trial stage, much less render a second pre-trial
mandatory (DBP v. CA)

Extent of Relief to be Awarded

- A judgment rendered against a party in default shall not
exceed the amount or be different in kind from that prayed
for nor award unliquidated damages
- The rules see to it that any judgment against him must be
in accordance with the law
- The court acts in excess of jurisdiction if it awards an
amount beyond the claim made in the complaint or
beyond that proved by evidence
- Although the defendant would not be in position to object,
elementary justice requires that only legal evidence should
be considered against him
- And if an unfavorable judgment should be justifiable, it
cannot exceed the amount or be different from what is
prayed for in the complaint
- If the claim is not proved, the case should be dismissed

Where No Defaults Allowed

1. An action for annulment or declaration of nullity of
marriage
2. For legal separation
3. Special civil actions of certiorari. Prohibition and
mandamus where comment instead of an answer is
required to be filed
4. Summary procedure

END OF RULE 9

91

DEFAULT IN ORDINARY PROCEDURE
After the lapse of time to file
an answer, the plaintiff may
move to declare the defendant
in default
If motion granted:
Court issues order of default
and renders judgment or
require plaintiff to submit
evidence ex parte
Before judgment by default is
rendered, defendant may:
(1) Move to set aside order of
default upon showing of FAME
and that he has a meritorious
defense;
(2) Avail of Rule 65 in proper
cases
Court sets aside order of
default and defendant is
allowed to file an answer
Case set for pre-trial
If plaintiff proves his
allegations:
Judgment by default
NOTES ON RULE 9
If motion denied:
Defendant allowed to file an
answer
REMEDIES FROM JUDGMENT BY
Court maintains order of
default
Presentation of plaintiffs
evidence ex-parte
If plaintiff fails proves his
allegations:
Case is dismissed
92
DEFAULT
Judgment by default
Motion for new trial or
reconsideration at any time
after service of judgment by
default and within 15 (3)
days therefrom
Failure to file a motion for
new trial or denial of said
motion
Perfect appeal from said
judgment by default within
the balance of said 15 (30)
day period
Failure to appeal without
defendants fault
Petition for relief from
judgment within 60 days
from notice of the judgment
but within 6 months from
entry thereof
Annulment of judgment
under Rule 47
NOTES ON RULE 9

93

RULE 10
AMENDED AND SUPPLEMENTAL PLEADINGS
SECTION 1 - Amendments in general.Pleadings may be amended
by adding or striking out an allegation or the name of any party,
or by correcting a mistake in the name of a party or a mistaken or
inadequate allegation or description in any other respect, so that
the actual merits of the controversy may speedily be determined,
without regard to technicalities, and in the most expeditious and
inexpensive manner. (1)
Pleadings are Amended by:
1. Adding or striking out an allegation or the name of any
party; or
2. By correcting a mistake in the name of a party or a mistake
or inadequate allegation or description in any other object
Purpose of Rule on Amendment:
- So that the actual merits of the controversy may be
speedily be determined, without regard to technicalities
- In the most expeditious and inexpensive manner
- To avoid multiplicity of suits
- The real matter in dispute and other matters included in
the action may be completely determined in a single
proceeding
Different Methods of Amendment:
1. Suppression
2. Addition
3. Incorporation
4. Substitution
5. By attaching document to complaint
Types of Amendments:
1. Amendment as a matter of right the party has the
unconditional right to amend his pleading. The court has
no right to prevent him from amending. The opposite
party has no right to oppose the amendment.
2. Amendment as a matter of judicial discretion the court
may or may not allow the amendment. The other party has
the right to oppose.
SECTION 2 - Amendments as a matter of right.A party may
amend his pleading once as a matter of right at any time before a
responsive pleading is served or, in the case of a reply, at any time
within ten (10) days after it is served. (2a)
When Amendments Allowed as a Matter of Right A party may
amend his pleadings:
1. Once as a matter of course;
2. At any time before a responsive pleading is served
3. In case of a reply, he may so amend it (the complaint) at
any time within 10 days after it is served
Amendment for the first time is a matter of right before a responsive
pleading is filed or, in the case of a reply, within 10 days after it was
served
Amendment for the second or subsequent time must
always be with leave of court even before a responsive pleading is
filed or before the case is set in the calendar of the court
Instances When an Amendments is a Matter of Right:
1. Amendment of complaint before an answer is filed.
2. Amendment of answer before a reply is filed or before the
period for filing a reply expires
94
3. Amendment of reply any time within 10 days after it is
served
4. Formal amendment
Illustrative Cases:
1. Even after a motion to dismiss has been filed by defendant
or such motion has been submitted for decision, plaintiff
can still amend his complaint as a matter of right
A motion to dismiss is not a responsive pleading
An error of the court in refusing such amendment is
controllable by mandamus (Breslin, et al. v. Luzon
Stevedoring)
2. Amendment of the complaint may be allowed even if an
order for its dismissal has been issued as long as the
motion to amend is filed before dismissal became final
(Constantino v. Reyes)
3. An amended answer may also be allowed even after the
case had been set for trial on the merits if the purpose of
the amendment is to submit the real matter in dispute
without intent to delay the action (Paman v. Diaz)
4. The defense of prescription, which is not raised in a
motion to dismiss nor as an affirmative defense in the
original answer, may validly be set up for the first time in
an amended answer (Aznar III et al., v. Bernad, et al.)
Effect of the amended answer is the withdrawal of the
original answer and its substitution
Since in this case, no responsive pleading, such as a
reply, had been filed by plaintiff and the case had not
been calendared for hearing, defendant had the right
to amend his answer
5. Amendment to the complaint prior to the filing of the
answer may introduce new causes of action against the
same defendant, in which case new summons together
with the amended complaint must be served upon
defendant (Atkins Kroll & Co. v. Domingo)
It is only when new causes of action are alleged in the
amended complaint filed before the defendant has
appeared in court that another summons must be
served on the defendant with the amended complaint
If an answer had already been filed or if defendants
were already served with summons in the original
complaint and appeared and filed a motion to
dismiss, no new summons is needed (Gumabay v.
Beralin)
SECTION 3 - Amendments by leave of court.Except as provided
in the next preceding section, substantial amendments may be
made only upon leave of court. But such leave may be refused if it
appears to the court that the motion was made with intent to
delay. Orders of the court upon the matters provided in this
section shall be made upon motion filed in court, and after notice
to the adverse party, and an opportunity to be heard. (3a)
Requisites for Valid Amendment
1. After the case is set for hearing (not after responsive
pleading is filed)
2. Substantial amendment may be made:
a. Only upon leave of court;
b. Upon motion filed in court;
c. And after notice to the adverse party;
d. And an opportunity to be heard
Note: Such leave may only be refused if it appears to the court that
the motion was made to delay the action
What May be Amended Pleadings, any process, affidavit, or other
documents in the case; all matters, principal and collateral, involved
in the action
Practice in Amending Pleading with Leave of Court
- The practice is to attach the amended pleading to the
motion which is titled as a Motion to admit instead of a
bare motion leave
- This is now required by the rules (See Sec. 9, Rule 15)
- If leave of court is not obtained, amended complaint may
be stricken out
There Must be Reasonable Ground
- Where amendment is not a matter of right, a bare
assertion of a desire to amend the pleading because
certain matters have not been therein alleged, or the
submission of an amended one, without more, is obviously
insufficient
- There must be some reasonable grounds justifying its
exercise of discretion to allow amendment
Test of Change of Cause of Action
- In determining whether a different cause of action is
introduced by amendments, what is to be ascertained is
whether the defendants shall be required to answer for a
liability or legal obligation wholly different from that
which was stated in the original complaint
- An amendment will not be considered as stating a new
cause of action in the following:
1. If the facts alleged in the amended complaint show
substantially the same wrong with respect to the
same matter but are more fully and differently stated
2. Where averments which were implied are made
express
3. Where the subject of the controversy or liability
sought to be enforced remains the same
4. An amendment to change the relief sought does not
change the theory of the case
Liberality in Accepting Amendments
- In furtherance of justice
- The courts should be liberal in allowing amendments to
pleadings to avoid multiplicity of suits and in order that
the real controversies between the parties are presented,
their rights determined, and the case decided on the
merits
- Should the trial court find the allegations in the pleadings
to be inadequate, it should allow the party concerned to
file proper amendments to pleadings in accordance with
the mandate of the Rules
- This liberality is greatest in the early stages of a lawsuit
Amendments Should Not be Disallowed in the following:
1. When disallowance would result in injustice to the moving
party;
2. Where the amendment would not prejudice the adverse
party or place him at a disadvantage and he has all the
time allowed by law to answer the amended pleading and
to prepare for trial (Shaffer v. Palma)
3. An amended answer to include additional defense allowed
liberally (Paman v. Diaz)
4. Even after the parties have rested, it is within the
discretion of the court to allow amendment to an answer
for purposes of questioning the personality of the plaintiff
in bringing the action (International Film v. Lyric Film
Exchange)
95
Limitations on Leave to Amend; Amendments Should Not be
Allowed in the following:
1. To set up a cause of action not existing at the time of filing
of complaint (Surigao Mines Exploration Co. v. Harris)
2. An action for collection of note not yet due when filed is
not curable by amendment even if it fell during the
pendency of the case (no cause of action) (Limpangco v.
Mercado)
Summary of Principles:
1. If there is no valid subsisting cause of action at the time of
filing, the complaint is NOT AMENDABLE
2. If there is merely an imperfect or incomplete statement of
cause of action, the complaint IS AMENDABLE
Effect on Statute of Limitations
1. For new and different causes of action, the statute runs
until after amendment (Ruymann and Farris v. Dir. Of
Lands)
For purposes of determining the commencement of
the suit, the original complaint is deemed abandoned
and superseded by the amended complaint only if the
amended complaint introduces a new or different
cause of action or demand (Versoza v. CA)
2. Addition of a new count which merely supplements and
amplifies the facts originally alleged relates back to the
date of the commencement of the action and is not barred
by the statute
It is the actual filing in court that controls and not the
ate of the formal admission of the amended pleading
3. Imperfect statement of cause of action the plea of the
statute relates back to the time of the filing of the original
complaint
4. If the defendant had no means of knowing before trial
began, that the claim advanced by plaintiff is barred by
statute of limitations, amendment is allowed
Amendments to Vest Court with Jurisdiction
- When the court of origin had no jurisdiction over the
original complaint in the first place, amendments may not
be had (Stricter view)
- Before an amendment can be permitted, the trial court
must have acquired jurisdiction over the case in the first
instance (Tirona v. Alejo)
- This is only true if a responsive pleading had already been
filed, but not when amendment is a matter of right
- In summary (a more Liberal view):
1. The rule that a plaintiff may not amend his cause of
action for purpose of vesting the court with
jurisdiction which it does not have under the original
complaint, only applies if a responsive pleading had
already been filed and, therefore, leave of court is
required
2. Before the filing of a responsive pleading, the plaintiff
may amend his pleading as a matter of course
without leave of court, and this is true even if a
motion to dismiss has been filed, because the latter is
not a responsive pleading
- For as long as no responsive pleading had not yet been
filed, there is no limitation on the scope and nature of the
amendment
Amendments to Cure Lack of Cause of Action
- Note that a complaint may fail to state a cause of action
either because:
1. The action have not yet accrued when the action was
commenced
 This cannot be cured by amendment since the
cause of action must exist at the time of the
commencement of action
2. Or the cause of action have already accrued but was
imperfectly stated
This situation is curable by amendment
- Some cases:
1. Mere correction of a defect in the allegation of the
complaint because as it then stood, the original
complaint states no cause of action, is permitted
(Tamayo v. San Miguel Brewery)
2. Amendment to allege earnest efforts to compromise
among members of the same family was allowed
(Versoza v. Versoza)
- Remember that where the plaintiff has no valid cause of
action at the time of the filing of the complaint, this defect
cannot be cured or remedied by the acquisition or accrual
of one while the action is still pending
An amendment which seeks to set up a cause of
action after it had accrued is NOT permissible
(Surigao Mines Exploration v. Harris)
Illustrative Cases:
1. Amendment to include prescription was allowed even
after case is set for trial but before trial (Castillo v.
Galvan)
2. A motion to amend answer long after pre-trial was
terminated and the case placed in the pre-trial calendar, to
include the defenses of prescription, estoppel, laches, and
fraud was denied (Gulang v. Nodayag)
3. An amendment from sole proprietorship to name of owner
is a mere formal amendment (Juasing Hardware v.
Mendoza)
4. Plaintiff may amend the complaint to place it out of
prescription based on an erroneous allegation of fact
(Malayan Insurance v. Delgado Shipping Agencies)
5. Amendment to include compulsory counterclaim is
allowed (Uy Hoo & Co. Inc. v. Tan)
6. Amendment to question capacity to sue even after resting
by both parties discretionary (International Films v. Lyric
Film Exchange)
7. Prayer for reinstatement and additional damages in an
amended answer filed 6 years from original answer is not
barred by laches or prescription as this allegation is
merely supplemented and amplified fact of termination
(Panay Electric Co. v. CA)
8. Even if amended defense will alter theory of defense, if it
will negate defendants liability, amendment is permissible
(R and B Surety and Insurance v. Savellano)
9. The court may allow amendment of pleadings even if the
cause of action or defense is substantially altered if no
substantial injury will be caused thereby (Marini
Gonzales v. Lood)
10. An amendment eliminating claims of ownership and
limiting the same to the issue of prior possession does not
substantially alter the theory of the complaint (Espejo v.
Malate)
SECTION 4 - Formal amendments.A defect in the designation of
the parties and other clearly clerical or typographical errors may
be summarily corrected by the court at any stage of the action, at
its initiative or on motion, provided so prejudice is caused
thereby to the adverse party. (4a)
Breakdown of Provision
1. The following may be summarily corrected by the court at
any stage of the action:
96
a. A defect in the designation of the parties; and
b. Other clearly clerical or typographical errors
2. At its own initiative or on motion
3. Provided no prejudice is caused thereby to the adverse party
SECTION 5 - Amendment to conform to or authorize presentation
of evidence.When issues not raised by the pleadings are
tried with the express or implied consent of the parties, they shall
be treated in all respects as if they had been raised in the
pleadings. Such amendment of the pleadings as may be necessary
to cause them to conform to the evidence and to raise these issues
may be made upon motion of any party at any time, even after
judgment; but failure to amend does not affect the result of the
trial of these issues. If evidence is objected to at the trial on the
ground that it is not within the issues made by the pleadings, the
court may allow the pleadings to be amended and shall do so with
liberality if the presentation of the merits of the action and the
ends of substantial justice will be subserved thereby. The court
may grant a continuance to enable the amendment to be made.
(5a)
Applicability of this Section
- This is an instance wherein the court acquires jurisdiction
over the issues even if the same are not alleged in the
original pleadings of the parties
Where the trial of said issues is with the express or
implied consent of the parties
- This rule is premised on the fact that evidence had been
introduced on an issue not raised by the pleadings without
any objection by the adverse party
- It does not apply when the case was decided on a
stipulation of facts in which case the pleadings are not
deemed amended to conform to the evidence (MWSS v.
CA)
What this rule contemplates
- This rule allows a complaint which states no cause of
action to be cured either by:
1. Evidence presented without objection or
2. In the event of an objection sustained by the court, by
an amendment of the complaint with leave of court
- It also allows the admission of evidence:
1. On a defense not raised in a motion or answer if no
objection is made thereto;
2. In the event of such objection, court may allow
amendment of the answer in order to raise said
defense
- Remember, however, that where the plaintiff has no valid
cause of action at the time of the filing of the complaint,
this defect cannot be cured or remedied by the acquisition
or accrual of one while the action is pending
This Section Envisions Two Scenarios
1. When evidence is not objected to
When issues not raised by pleadings are tried by
express or implied consent of the parties, they shall
be treated in all respected as if they had been raised
in the pleadings
This is premised on the fact that evidence has been
introduced on an issue not raised by the pleadings
without any objection thereto raised by parties
Such amendments of pleadings as may be necessary
to cause them to conform to the evidence and raise
these issues may be made upon motion of any party
at any time, even after judgment
But failure to amend does not affect the result of the
trial of those issues
 2. When evidence is objected to
Objection on the ground that it is not within the
issues made by the pleadings
Court may allow the pleadings to be amended and
shall do so freely
When the presentation of the merits of the action will
be subserved
As safeguard, the court may grant a continuance to
enable the objecting party to meet such evidence
AS TO THE FIRST SCENARIO
There is an implied consent even if no motion is filed and no
amendment is ordered
- The court may just as well render a valid judgment on the
issues thus proved
- Appellate courts may treat the pleadings as amended to
conform to the evidence although pleadings were not
actually amended
Relevant Rules
1. The complaint must contain a statement of all the facts
constituting the plaintiffs cause of action
If it does not, it is subject to demurrer
2. If the defendant permits evidence to be introduced
without objection, which supplies the necessary
allegations of a defective complaint, then this evidence has
the effect of curing the defects of such complaint
A demurrer thereafter is inadmissible
Court is required to render judgment in any
particular case, giving such relief as consistent with
the case made by the pleadings and the evidence
AS TO THE SECOND SCENARIO
There must be an amendment
- Amendment before accepting evidence (Co Tiam Co v.
Diaz)
- Purpose of the amendment after judgment is to support
the judgment or to make the record show more perfectly
what was really tried and decided
An amendment to pleadings after judgment which
would nullify the judgment and begin a new contest is
not authorized
- Objection to evidence not alleged must be supported by
affidavit of merits to show that he has meritorious defense
of which he may be deprived if the amendment to
accommodate the evidence be allowed, not merely on
technical grounds (Chua Kiong v. Whitaker)
Two Conflicting Rulings
1. One line of cases holds that where the evidence sustains an
award in excess of that claimed in the complaint, but the
plaintiff failed to amend the prayer of its complaint as to
the amount of damages to conform to the evidence, the
amount demanded in the complaint should be the measure
of damages (Malayan Insurance Co. Inc. v. Manila Port
Services)
2. There are cases where the SC has held that even without
such amendment to conform to the evidence, the amount
proved at trial may validly be awarded (Tuazon v.
Bolanos)
97
Principles in Jurisprudence
1. The rule on amendment need not be applied rigidly,
particularly where no surprise or prejudice is caused the
objecting party (Co Tiamco v. Diaz)
2. Where there is a variance in the defendants pleadings and
the evidence adduced at trial, the court may treat the
pleading as amended to conform to the evidence (National
Power Corp. v. CA)
On Pre-Trial
- The rules on pre-trial do not prohibit a subsequent
amendment of the complaint after pre-trial has been
issued
- To forbid allowance of a succeeding amendment would
render nugatory the rules on amendment after the case
had been set for hearing
- Such amendments may even be allowed at any stage of the
action if only to insure the actual merits of the controversy
may speedily be determined without regard to
technicalities
SECTION 6 - Supplemental pleadings. Upon motion of a party
the court may, upon reasonable notice and upon such terms as
are just, permit him to serve a supplemental pleading setting
forth transactions, occurrences or events which have happened
since the date of the pleading sought to be supplemented. The
adverse party may plead thereto within ten (10) days from notice
of the order admitting the supplemental pleading. (6a)
Breakdown of Provision
A. Court may permit a party to serve a supplemental pleading
1. Upon motion of a party
2. Upon reasonable notice
3. Upon such terms as just
B. Supplemental pleading sets forth transactions, occurrences,
events which have happened since the date of the pleading
sought to be supplemented
C. Adverse party may plead thereto within 10 days from notice
of order admitting supplemental pleading
Supplemental Pleadings those which aver facts occurring after the
filing of the original pleadings and which are materials to the mature
claims and/or defenses therein alleged
Distinctions between Supplemental Pleadings and Amended
Pleadings
1. As to subject
a. Amended Pleadings refer to the facts existing at
time of filing of original pleading
b. Supplemental Pleadings refer to those occurring
after the filing of original pleading
2. As to effect
a. Amended Pleadings supersedes the original
b. Supplemental Pleadings merely supplements
3. As to time
a. Amended Pleadings original may be amended
without leave of court before a responsive pleading is
filed
b. Supplemental Pleadings always needs a leave of
court
4. As to form
a. Amended Pleadings amendment must be
appropriately marked
b. Supplemental Pleadings no such requirement
Nature of a Supplemental Pleading
- Only serves to bolster or adds something to the primary
pleading
- It exists side by side with the original
- Does not replace that which it supplements
- Assumes that the original pleading is to stand and that
issues joined with the original pleading remained an issue
to be tried in the action
- A continuation of the complaint
- Usual office is to set up new facts which justify enlarge, or
change the kind of relief with respect to the same subject
matter as the controversy referred to in the original
complaint
- It may be allowed to supply deficiencies or to raise issues
in the pleadings but brought out during the pre-trial, but
not on separate and distinct causes of action
- A supplemental complaint should supply only deficiencies
in aid of an original complaint
Should contain only causes of action relevant and
material to the plaintiffs right and which help or aid
the plaintiffs right or defense
Must be based on matters arising subsequently to the
original complaint related to the claim or defense
presented therein, and founded on the same new
cause of action
It cannot be used to try a new matter or new cause of
action
Effect of Supplemental Complaint
- It relates back to the date of commencement of the action
and is not barred by the statute of limitations
- Period of which expires after services of the original
complaint but before service of the amendment
- It is the actual filing in court that controls
Some Limitations
1. Claims or defenses which have matured after the filing of
the original pleadings cannot be averred in a supplemental
pleading (it may be the subject of an amendment)
2. Supplemental pleadings are not allowed on separate and
distinct causes of action
3. The admission or non-admission of a supplemental
pleading is not a matter of right but is discretionary on the
court
Effect of Failure to Answer
- Failure to answer a supplemental complaint when ordered
by the court is ground for default
- But where the basic and principal issue which had been
previously traversed and joined by the answer remained,
there is no necessity to require defendant to plead further
to the supplemental complaint and there is no legal ground
to declare defendant in default for such failure to plead
Note Sec. 7, Rule 11
- A supplemental complaint may be answered within 10
days from notice of the order admitting the same
- Unless a different period is fixe by the court
- The answer to the complaint shall serve as the answer to a
supplemental complaint if no new supplemental answer is
filed
SECTION 7 - Filing of amended pleadings. When any pleading is
amended, a new copy of the entire pleading, incorporating the
amendments, which shall be indicated by appropriate marks,
shall be filed. (7a)
98
Note: Amendments to a pleading should be indicated in the amended
pleading, as by underscoring, enclosing them in quotation marks,
putting them in capital letters, and so forth, as would make them
readily evident
The Amended Pleading SUPERSEDES the Original Pleading
- Original pleading is deemed withdrawn and no longer
constitutes part of the record
- However, the filing of the amended pleading does not
retroact to the date of the filing of the original
Hence, the statute of limitations runs until the filing of
the amendment (Ruymann, et al. v. Dir. Of Lands)
But an amendment which merely supplements and
amplifies facts originally alleged in the complaint
relates back to the date of the commencement of the
action and is not barred by the statute of limitations
(Panay Electric Co. v. CA)
- It is the actual filing in the court that controls, and not the
date of the formal admission of the amended pleading
Specific Rules on Prescription
- Where the original complaint states a cause of action but
does it imperfectly, and afterwards an amended complaint
is filed correcting the defect, the plea of prescription will
relate to the time of the filing of the original complaint
(Pangasinan Trans. Co. v. Phil Farming Co. Ltd.)
- But such rule will not apply to the party who was
impleaded for the first time in the amended complaint
which was filed after the period of prescription had
already elapsed; hence, the amended complaint should be
dismissed (Aetna Insurance Co. v. Luzon Stevedoring)
Liberal Application
- The rule is that amendments should be liberally allowed
(Cese v. GSIS)
- This liberality at the outset of the action decreases as the
case moves to its termination (Salvador v. Frio)
- Amendments to pleadings may be permitted even for the
first time on appeal, if, without changing the cause of
action or causing unfair prejudice to the other party, the
purpose is to:
1. Correct a defect of party plaintiff, as where it is
merely to include the husband of the plaintiff
(Cuyugan v. Dizon)
2. Substitute the name of the real party in interest
(Polacio v. Fely Trans Co.)
SECTION 8 - Effect of amended pleadings. An amended pleading
supersedes the pleading that it amends. However,
admissions in superseded pleadings may be received in evidence
against the pleader; and claims or defenses alleged therein not
incorporated in the amended pleading shall be deemed waived.
(n)
Effect of an Amended Pleading
1. An amended pleading supersedes the pleading that it
amends
2. Admissions in the superseded pleading can still be
received in evidence against the pleader
3. Claims or defenses alleged therein but not incorporated or
reiterated in the amended pleading are deemed waived
According to Justice Moran
- Pleadings superseded or amended disappear from the
record as judicial admissions
- Any statement contained therein may be considered as an
extrajudicial admission
 As such, in order that the court may take it into
consideration, it should be offered formally in
evidence
- Ex: If in the original answer, the defendant admitted his
debt claimed by plaintiff, and he amends it later, denying
in his amended answer the whole debt
The admission contained in the original answer is
receivable against him
But such original answer should be introduced
formally in evidence since it is no longer a part of the
record as judicial admission because it has been
superseded or amended by another pleading
If not offered in evidence, admission contained
therein will not be considered
- Note that the present rule states that admissions in
superseded pleadings may be received in evidence against
the pleader

An amended pleading supersedes the original pleading

- Original pleading disappears from the records
- Defenses in original pleadings not reproduced in the
amended pleading are deemed waived
- Case stands for trial on the amended pleading only

END OF RULE 10

99
NOTES ON RULE 10

100
NOTES ON RULE 10

101

RULE 11
WHEN TO FILE RESPONSIVE PLEADINGS
SECTION 1 - Answer to the complaint.The defendant shall file his
answer to the complaint within fifteen (15) days after service of
summons, unless a different period is fixed by the court. (1a)
Note: In case of a non-resident defendant on whom extrajudicial
service of summons is made, period to answer must be at least 60
days (Sec. 15, Rule 15)
SECTION 2 - Answer of a defendant foreign private
juridical entity.Where the defendant is a foreign private
juridical entity and service of summons is made on the
government official designated by law to receive the same, the
answer shall be filed within thirty (30) days after receipt of
summons by such entity. (2a)
Breakdown of Sec. 1 and 2
A. Defendant to file his Answer to the Complaint
1. Within 15 days after service of summons
2. UNLESS different period is fixed by the court
B. If defendant is a foreign private juridical entity
1. Service of summons made on the government official
designated by law to receive the same
2. Answer is filed within 30 days after receipt of summons
Answer to Complaint:
1. Within 15 days after service of summons
UNLESS a different period is fixed by the court
2. In case the defendant is a foreign juridical entity
a. If it has a resident agent within 15 days after service
of summons to him
b. If it has no resident agent, but it has an agent or
officer in the Philippines within 15 days after
service of summons to said agent or officer
c. If it has no resident agent nor agent nor officer in
which case service of summons is to be made with the
SEC which will then send a copy thereof by registered
mail within 10 days to the home office of foreign
corporation within 30 days after receipt of
summons by the home office of the foreign private
entity
3. In case of service of summons by publication within the
time specified in the order granting leave to serve
summons by publication, which shall not be less than 60
days after notice (Rule 14 and 15)
4. In case of a non-resident defendant on whom
extraterritorial service of summons is made answer
should be at least 60 days
Note: The court may extend the time to file the pleadings but it may
NOT shorten them
Except in Quo warranto proceedings
SECTION 3 - Answer to amended complaint.Where the plaintiff
files an amended complaint as a matter of right, the defendant
shall answer the same within fifteen (15) days after
being served with a copy thereof.
Where its filing is not a matter of right, the defendant shall
answer the amended complaint within ten (10) days from notice
of the Order admitting the same. An answer earlier filed may
serve as the answer to the amended complaint, if no new answer
102
is filed.
This Rule shall apply to the answer to an amended
counterclaim amended cross-claim, amended third (fourth,
etc.) party complaint, and amended complaint-in-intervention.
(3a)
Breakdown of Provision
A. If plaintiff files amended complaint as matter of right
1. Defendant to answer within 15 days after being served
a copy thereof
B. If plaintiff files amended complaint which is not a matter of
right
1. Defendant to answer within 10 days from notice of the
order admitting the same
2. Answer earlier filed may serve as answer to amended
complaint if no answer is filed
C. Sec. 3, Rule 11 shall apply to:
1. Answer to an amended counterclaim
2. Answer to amended cross-claim
3. Answer to amended third-party complaint
4. Answer to amended complaint-in-intervention
Reckoning Dates:
A. If the filing of an amended complaint is a matter of right
As where no answer has yet been filed to the original
complaint, no motion for leave of court order
granting such leave to file amended complaint being
involved
15-day period to answer is counted from service of
amended complaint
B. If filing of amended complaint is not a matter of right
Leave of court is required
The 10-day period to answer runs from notice of the
court order granting the same
Leave of Court
- Leave of court to file a pleading or motion is obtained by
filing a motion for leave accompanied by the pleading or
motion sought to be admitted (See Sec. 9, Rule 15)
- Plaintiff should serve on defendant and file with the court
the motion for leave to file an amended complaint
- If motion is granted, defendant shall file his answer within
10 days from order admitting amended complaint
- If no answer is filed, his original answer may serve as
answer to the amended complaint
As such, he cannot be held in default
However, new material allegations in the amended
complaint which are not specifically denied are
deemed admitted
Note: this rule shall also apply to the answer to an amended
counterclaim, amended cross-claim, amended third-party complaint,
and amended complaint-in-intervention
- If no new answer is filed, answer to original pleading shall
be deemed as answer to amended pleading
SECTION 4 - Answer to counterclaim or cross-claim.A counter-
claim or cross-claim must be answered within ten (10) days from
service. (4)
Note: Failure to answer is a ground for default
A Counterclaim need not be answered in the following cases:
1. Where the answer would be a repetition of the allegations
in the complaint (Navarro v. Bello)
 2. Where the issues raised in the counterclaim are
inseparable from those posed in the complaint (Sarmiento
v. Juan)
3. A plaintiff who fails or chooses not to answer a
compulsory counterclaim may not be declared in default,
principally because the issues raised in the counterclaim
are deemed automatically joined by the allegations in the
compliant (Gojo v. Goyala)
Nature of Default on Counterclaim
Unlike default on a complaint, default to a counterclaim
does not divest the plaintiff of standing in court or right to produce
evidence on his complaint nor per se entitle defendant to immediate
judgment on the counterclaim (Navarro v. Bello)
A counterclaim or cross claim must be answered within 10 days
from service.
SECTION 5 - Answer to third (fourth, etc.)party complaint.
. The time to answer a third (fourth, etc.)party complaint shall
be governed by the same rule as the answer to the complaint. (5a)
Notes:
- Contents of an answer to a third-party complaint are
provided for in Sec. 13, Rule 6
- Time to file such answer is 15 days from service of
summons to which are attached copies of the complaint
and the third-party complaint
- The third-party defendant is served with summons just
like the original defendant, hence he also has 15, 30, or 60
days from service of summons, as the case may be
a. 15 days for resident defendant
b. 30 days for defendant foreign private juridical entity
c. 60 days for non-resident defendant
SECTION 6 - Reply.A reply may be filed within ten (10) days
from service of the pleading responded to. (6)
A reply may be filed within 10 days from service of pleading
responded to.
Notes:
- This section uses the word MAY
- It is ordinarily optional to file a reply since, by his failure
to do so, all the new matters alleged in the antecedent
pleading are deemed controverted
SECTION 7 - Answer to supplemental complaint.A supplemental
complaint may be answered within ten (10) days from notice of
the order admitting the same, unless a different period is fixed by
the court. The answer to the complaint shall serve as the answer
to the supplemental complaint if no new or supplemental answer
is filed. (a)
Since the filing of a supplemental complaint requires leave of court,
- The procedure for filing an answer thereto is similar to the
case of an amended complaint the filing of which is not a
matter of right, hence likewise requiring leave of court
- Unlike the amended complaint, the court may, in a
supplemental complaint, fix a different period for
answering the supplemental complaint in lieu of the
reglementary 10 day period
Note that in an amended complaint, the facts sought
to be incorporated were already known to but were
103
merely omitted by pleader and, in all probability,
were likewise known to defending party
In a supplemental complaint, it seeks the introduction
of facts or events which occurred or supervened after
the filing of the original complaint; hence, for lack of
knowledge thereof, defending party may need a
longer period of time to respond to the allegations
Effect of Failure to Answer Supplemental Complaint
- Failure to answer a supplemental complaint when ordered
by the court is a ground for default (Del Bros. v. IAC)
- But where the basic and principal issue had been
previously traversed and joined by the answer remained:
There is no necessity to require defendant to plead
further to the supplemental complaint
There is no legal ground to declare defendant in
default for such failure to plead
- The answer to the complaint shall serve as an answer to
the supplemental complaint
Justice Feria notes that new and material allegations
in the supplemental complaint which are not
specifically denied are deemed admitted
SECTION 8 - Existing counterclaim or cross-claim.--A compulsory,
counterclaim or a cross-claim that a defending party has at the
time he files his answer shall be contained therein. (8a, R6)
SECTION 9 - Counterclaim or cross-claim arising after answer. A
counterclaim or a cross-claim which either matured or was
acquired by a party after serving his pleading may, with the
permission of the court, be presented as a counterclaim or a
cross-claim by supplemental pleading before judgment. (9, R6)
SECTION 10 - Omitted counterclaim or cross-claim.
When a pleader fails to set up a counterclaim or a cross-claim
through oversight, inadvertence, or excusable neglect, or when
justice requires, he may, by leave of court, set up the counterclaim
or cross-claim by amendment before judgment. (3a, R9)
Breakdown of Provisions
A. A compulsory counterclaim or a cross-claim that defendant
has at time of filing of answer
1. The same shall be contained in the answer
B. Counterclaim or cross-claim arising after the Answer
1. This covers counterclaim or cross-claim which either:
a. Matured or
b. Was acquired by a party after his pleading
2. May be presented as counterclaim or cross-claim by
SUPPLEMENTAL PLEADING
a. How: With the permission of the court
b. When: Before judgment
C. Omitted counterclaim or cross-claim
1. When pleader fails to set up counterclaim or cross-
claim through:
a. Oversight, inadvertence, or excusable neglect; or
b. When justice requires
2. Pleader may set up the counterclaim or cross-claim by
AMENDED PLEADING
a. How: By leave of court
b. When: Before judgment
Notes:
- See Sec. 2, Rule 11 for comments for Sec. 11
- See Sec. 6 and 7, Rule 6 discussion:
An after-acquired counterclaim or cross-claim may be
set up by filing a supplemental pleading
 While an omitted counterclaim or cross-claim may be RECAP OF THE RULES
raised in an amended pleading pursuant to and under
the conditions in Sec. 9 and 10 of this Rule PLEADING WHEN TO FILE
15 days after service of summons
Note also: Defendants Answer
Unless different period is fixed by court
- A counterclaim or cross-claim need not be answered if: Foreign Private
1. It is based on or is inseparable from the defenses Juridical Entitys Within 30 days after receipt of summons
raised by the opposing party, or Answer
2. Merely allege the opposite of the facts in the Non-Resident At least 60 days from extrajudicial service
complaint Defendants Answer of summons
- Where the counterclaim or cross-claim is only for damages Answer to Amended
or attorneys fees arising from the filing of the complaint, it Complaint when Within 15 days after being served a copy
need not be answered Filed as a Matter of thereof
- The foregoing doctrines also apply to after-acquired or Right
omitted counterclaims and cross-claims subsequently Within 10 days from notice of the order
allowed by the court to be filed in the action Answer to Amended
admitting the same;
Complaint when
if no new answer is filed, answer earlier
Filed Not as a
filed may serve as the answer to amended
SECTION 11 - Extension of time to plead .Upon motion and on Matter of Right
complaint
such terms as may be just, the court may extend the time to plead Answer to
provided in these Rules. Counterclaim or Within 10 days from service
The court may also, upon like terms, allow an answer or Cross-Claim
other pleading to be filed after the time fixed by these Rules. (7) Answer to Third-
Same rules as answer to complaint
Party Complaint
Requisites: Within 10 days from service of the
1. There must be a motion Reply
pleading responded to
2. With service of such motion to other party; and
Within 10 days from notice of the order
3. On such terms as may be just
admitting the same
Answer to
Unless a different period is fixed by the
Notes: Supplemental
court
- A motion for extension of time to file petition should be Complaint
If no new answer is filed, answer to the
filed prior to the expiration or lapse of the period fixed by
complaint shall serve as answer
law
- Parties and counsel should not assume that courts are
bound to grant the time they pray for; a motion that is not
acted upon in due time is deemed denied
- But, once granted, the extension of time starts from the
end of the original reglementary period END OF RULE 11
It runs whether or not the movant/grantee has
knowledge of such actions of the granting
Notice in this instance is unimportant as, in the first
place, lawyers should never presume that their
motions for extension or postponement would be
granted
- As to rules regarding period allowed to defendant to file its
answer following the motion to dismiss, See Sec. 4, Rule 16

104
NOTES ON RULE 11

105
NOTES ON RULE 11

106
 Principal Function it is intended to inform the adverse party more
RULE 12 specifically of the precise nature and character of the cause of action
BILL OF PARTICULARS or defense alleged in a pleading with a view to enable him to
properly prepare his responsive pleading, and an opportunity to
prepare an intelligent answer
SECTION 1 - When applied for; purpose.Before responding to a
Notes:
pleading, a party may move for a definite statement or for a bill of
- The motion for a bill of particulars shall be filed before
particulars of any matter which is not averred with sufficient
responding to a pleading; Hence, it must be filed within the
definiteness or particularity to enable him properly to prepare his
period granted by Rule 11 for the filing of a responsive
responsive pleading. If the pleading is a reply, the motion must be
pleading
filed within ten (10) days from service thereof. Such motion shall
- The motion must comply with the requirements for
point out the defects complained of, the paragraphs wherein they
motions under Sec. 4, 5, and 6 of Rule 15; Otherwise the
are contained, and the details desired. (1a)
motion will not suspend the period to answer
- The motion applies to ANY pleading which in the
Breakdown of Provision
perception of the movant contains ambiguous allegations
A. A party may move for a definite statement or for a bill of
particulars
Illustrative Cases
1. On any matter which is not averred with sufficient
1. Mere ambiguity or indefiniteness is not a ground for a
definiteness or particularity
motion to dismiss so long as the complaint sufficiently
a. To enable him to properly prepare his responsive
shows a cause of action. The deficiency could be cured by
pleading
means of a motion for a bill of particulars (City of Cebu v.
2. Before responding to a pleading
CA)
B. If the pleading is a reply, motion must be filed within 10
2. A motion to dismiss based upon failure to state a cause of
days from service thereof
action with particularity should be treated as a motion for
C. Such motion shall:
bill of particulars (Salvador v. Frio)
1. Point out the defects complained of
3. A co-defendant is not proper party to ask for a bill of
2. Point out the paragraphs wherein they are contained
particulars of a co-partys answer. That rule belongs to the
3. And the details desired
plaintiff (Garcia v. Flores, et al.)
Bill of Particulars a complementary procedural document
Scope The rule is strictly construed as applicable only to
consisting of an amplification or more particularized outline of a
particulars necessary to enable a party to prepare his responsive
pleading, and being in the nature of a more specific allegation of the
pleading and not to evidentiary matters obtainable by discovery
facts recited in the pleading.
Note: The granting of a motion for a bill of particulars lies within the
Under this rule, the remedy available to a party who seeks
sound discretion of the court and its ruling will not be reversed
clarification of any issue or matter vaguely or obscurely pleaded by
unless there was palpable abuse of discretion or it was a clearly
the other party is to file a motion, either for (1) a definite statement,
erroneous order. (Santos v. Liwag)
or (2) for a bill of particulars.
An order directing the submission of such statement or bill
Instances When Bill of Particulars Allowed
is proper where it enables the party movant to intelligibly prepare a
1. When the allegations are indefinite and uncertain that the
responsive pleading, or adequately prepare for trial (Virata v.
nature of the action cannot be understood therefrom (Co
Sandiganbayan)
Tiamco v. Diaz)
2. When the allegations are so vague that they do not appear
It is Within the Office of the Bill of Particulars:
therefrom in what capacity a party sues or is sued
- To amplify or limit a pleading, specify more minutely and
(Bartillo v. IAC)
particularly a claim or defense set up and pleaded in
3. When allegations are uncertain as to time, place, quantity,
general terms
title, person or any other matter required to be pleaded
- To give information, not contained in the pleading, as to
with certainty
the precise nature, character, scope, and extent of the
4. When the allegations are faulty in duplication, setting out
cause of action or defense relied on by the pleader
two grounds for a single claim
- To apprise the opposite party of the case which he has to
5. When denials are so indefinite and uncertain that it cannot
meet
be understood what is denied and what is admitted
- To the end that proof at trial may be limited to the matters
6. Particulars of details of computation of bank account were
specified and in order that surprise be avoided
allowed; technicalities are frowned upon (Mutuc v.
- To expedite trial, and assist the court
Agloro)
- To prevent injustice or do justice in the case when that
7. Conclusions of law; these allegations need statement of
cannot be accomplished without the aid of such bill
facts (Santos v. Liwag)
It is Not The Office of the Bill Particulars:
Instances Where Bill of Particulars Improper the bill is improper
- To supply material allegations necessary to the validity of
on matters:
a pleading
1. Specified with particularity
- To change a cause of action or defense stated in the
2. Within partys knowledge; or
pleading
3. Irrelevant to allegations of complaint
- To state a cause of action or defense other than that one
4. Which are more properly ascertainable by discovery
stated
- To set forth the pleaders theory of his cause of action or a
Note: The motion for a bill of particulars must comply with the
rule of evidence on which he intends to reply
requirements of motions under Sec. 4, 5, and 6 of Rule 15
- To furnish evidentiary information

107
 SECTION 2 - Action by the court.Upon the filing of the motion,
the clerk of court must immediately bring it to the attention of the
court which may either deny or grant it outright, or allow the
parties the opportunity to be heard. (n)
Upon the filing of the motion, the clerk must immediately bring it to
the attention of the court.
The court may either deny or grant it outright, or allow
the parties opportunity to be heard.
A seasonable motion for a bill of particulars interrupts
the period within which to Answer.
Stay Period to File Responsive Pleading:
1. After service of the bill or for a more definite pleading, or
after notice of denial of the motion:
a. Movant shall have the same time to serve his
responsive pleading, if any is permitted by this rule,
as that to which he was entitled at the time of serving
his motion
b. But not less than 5 days in any event
2. If the motion is filed beyond that period, it should rightly
be denied
3. If the motion is filed on time, whether or not the movant
succeeds, he has the same time to serve his responsive
pleading as that to which he was entitled but not less than
5 days in any event
4. Pending resolution of these questions,
a. Issues of the case cannot be said to have been joined
b. Partys failure to attend subsequent hearings does not
amount to failure to prosecute
SECTION 3 - Compliance with order.If the motion is granted,
either in whole or in part, the compliance therewith must be
effected within ten (10) days from notice of the order, unless a
different period is fixed by the court. The bill of particulars or a
more definite statement ordered by the court may be filed either
in a separate or in an amended pleading, serving a copy thereof
on the adverse party. (n)
Breakdown of Provision
A. If motion is granted, compliance therewith must be effected:
1. Within 10 days from notice of the order
2. UNLESS a different period is fixe by the court
B. The bill of particulars or a more definite statement ordered:
1. May be filed either:
a. In a separate pleading or
b. In an amended pleading
2. Copy thereof is served on adverse party
Note:
- The motion may be granted in whole or in part
- Period to comply with order granting motion: 10 days
from notice of order unless a different period is fixed by
court
- The bill may be filed either in a separate or amended
pleading, serving a copy thereof to the adverse party
SECTION 4 - Effect of non-compliance.If the order is not obeyed,
or in case of insufficient compliance therewith, the court may
order the striking out of the pleading or the portions thereof to
which the order was directed or make such other order as it
deems just. (1[c]a)
Breakdown of Provision
A. If order is:
1. Not obeyed or
108
2. Insufficiently complied
B. Court may:
1. Order the striking out of the pleading or the portions
thereof to which the order was directed
2. Or to make such other order as it deems just
Plaintiffs failure to comply with order of the court may be a ground
for dismissing the complaint. Such dismissal, unless made without
prejudice, would be a bar to a subsequent action on the same cause.
(Bautista v. Teodoro)
Effect of Non-Compliance
1. If the order is not obeyed or in case insufficient
compliance therewith, the court may:
a. Order the striking out of the pleading or the portion
thereof to which the order is directed; or
b. Make such order as it may deem just
2. If the plaintiff fails to obey, his complaint may be
dismissed with prejudice UNLESS otherwise ordered by
the court (Rule 12, Sec. 4; Rule 17, Sec. 3)
3. If the defendant fails to obey, his answer will be stricken
off and his counterclaim dismissed, and he will be declared
in default upon motion of the plaintiff (Rule 12, Sec. 4; Rule
17, Sec. 4; Rule 9, Sec. 3)
SECTION 5 - Stay of period to file responsive pleading
After service of the bill of particulars or of a more definite
pleading, or after notice of denial of his motion, the moving party
may file his responsive pleading within the period to which he
was entitled at the time of filing his motion, which shall not be
less than five (5) days in any event. (1[b]a)
Effect of Motion
1. If the motion is granted, in whole or in part,
The movant can wait until the bill of particulars is
served on him by opposing party
Then he will have the balance of the reglementary
period within which to file his responsive pleading
2. If the motion is denied
He will still have such balance of the reglementary
period to file his responsive pleading, counted from
service of the order denying his motion
In any case, he shall have not less than 5 days to file his responsive
pleading
SECTION 6 - Bill a part of pleading.A bill of particulars becomes
part of the pleading for which it is intended. (1[a]a)
Review of Section 1
- A motion for a bill of particulars must be filed within the
reglementary period for the filing of a responsive pleading
to the pleading sought to be clarified
This contemplates pleadings which are required by
the Rules to be answered under pain of procedural
sanctions
Sanctions such as default or implied admissions of the
facts not responded to
- A special provision regarding vague reply is included
A motion for a bill directed to a reply must be filed
within 10 days
Note that a responsive pleading is not required for a
reply; the filing of the reply itself is optional or
permissive (Sec. 6, Rule 11)
The filing of a motion for a bill of particulars interrupts the time to
plead, but only if it is sufficient in form and substance.

1. If the motion is granted

Movant can wait until the bill is served on him by
opposing party
When served, he will have the balance of the
reglementary period within which to file his
responsive pleading
He will have at least 5 days to file his responsive
pleading
2. If the motion is denied
Movant will still have such balance of the
reglementary period to do so
Counted from the service of the order denying his
motion
He will have at least 5 days to file his responsive
pleading

END OF RULE 12

109
NOTES ON RULE 12

110

RULE 13
FILING AND SERVICE OF PLEADINGS,
JUDGMENTS AND OTHER PAPERS
SECTION 1 - Coverage .This Rule shall govern the filing of all
pleadings and other papers, as well as the service thereof, except
those for which a different mode of service is prescribed. (n)
SECTION 2 - Filing and service, defined.Filing is the act of
presenting the pleading or other paper to the clerk of court.
Service is the act of providing a party with a copy of the
pleading or paper concerned. If any party has appeared by
counsel, service upon him shall be made upon his counsel or one
of them, unless service upon the party himself is ordered by the
court. Where one counsel appears for several parties, he shall
only be entitled to one copy of any paper served upon him by the
opposite side. (2a)
Breakdown of Provision:
A. Filing the act of presenting the pleading or other paper to
the clerk of court
B. Service the act of providing a party with a copy of the
pleading or paper concerned
1. If any party has appeared by counsel
a. Service upon him shall be made upon his counsel
or one of them
(1) UNLESS service upon the party himself is
ordered by the court
2. If one party appears for several parties
a. He shall only be entitled to one copy of any paper
served upon him by the opposite side
GENERAL RULE: Notice to counsel is notice to party
Purpose the purpose of requiring a formal service to the lawyer is
to maintain a uniform procedure, calculated to place in competent
hands the orderly prosecution of a partys case. (National
Investment and Development Corp. v. CA)
Lawyers Must Make Formal Appearance
- There must be a formal appearance of lawyer
- Not enough that the attorney appear for a party at the trial
- Notice to a provisional lawyer is not binding
Right of Lawyer to Formal Notice
- Where a party appears by attorney in an action or
proceeding in a court of record, all notices required to be
given therein must be given to the attorney of record
Service of the courts order upon any person other
than the counsel of record:
1. Not legally effective and binding upon the party
2. Nor may it start the corresponding reglementary
period for the subsequent procedural steps that
may be taken by the attorney
- Where a copy of the decision is served on a person who is
neither a clerk nor one in charge of the attorneys office,
such service is invalid
- Service to a party is allowed only if the party is not
represented by counsel
UNLESS service upon the party himself is ordered by
the court
- Where a party is represented by a lawyer, service to
lawyer is service to party
UNLESS service upon party is ordered by the court
111
Note: However, in Labor cases, both the party and its counsel must
be duly served their separate copies of the order, decision, or
resolution, unlike in ordinary judicial proceedings where notice to
counsel is deemed notice to party
Formal Notice is Not Necessary Where there is Actual Notice
- Formal notice is necessary as a rule but not where there is
actual notice of the decision
- Like when there is a motion for reconsideration of the
decision which was filed
Where there is Substantial Compliance
1. The actual presence of the offended party and signing of
the judgment by the private prosecutor was considered as
an actual notice (Neplum Inc. v. Orbesco)
2. There is substantial compliance when petitioner acquired
knowledge of the writ of execution containing a literal
copy of the judgment (De Los Reyes v. Ugarte)
3. A copy of the decision obtained by counsel from PSC
Secretary is substantial compliance with the requirement
of notice of judgment (Laoag v. PSC)
4. The filing of the petitioners comment of the motion for
reconsideration shows that he has received copy of the
judgment (Luzon Rubber & Manufacturing Co v. Estaris)
Service on Lawyer is at Given Address
- Notice should be made upon the counsel of record at his
exact given address (National Investment and Dev. Corp.
v. CA) , to which notice of all kinds emanating from the
court should be sent in the absence of a proper and
adequate notice to the court of a change of address
- Service upon a lawyer must be effected at the exact given
address of the lawyer and not in the vicinity or at a general
receiving section for an entire multi-storied building with
many offices (PLDT v. NLRC)
- Leaving abroad by lawyer is no excuse for not receiving
notice (Antonio v. CA)
Duty of Counsel - It is the duty of counsel to adopt and strictly
maintain a system that efficiently takes into account all court notices
sent to him (Mercado v. Domingo)
As to Change of Addresses
A. Use of different address is not a notice of change
1. There must be a formal change of address (Philippine
Suburban Dev. Corp. v. CA)
2. The fact that counsel used a different address in later
pleadings should not be taken as notice to the court of
either change of address or of another address in
addition to that which was already of record (Lopez
v. De Los Reyes)
B. Where Court already took Notice of Change of Address
1. Notice, however, sent to counsel of record is valid
even if the latter did not make a formal appearance
where previous notices were sent to and received by
said lawyer without complaint from defendant (Vda.
De Mintu v. CA)
2. Where the court had already taken notice of the
change of address, notice sent to old address not
binding. (Anthony Sy v. IAC)
3. Where the trial judge was informed in open court and
had already taken cognizance of the change, it had in
fact acted in accordance with the change
Substitution of Counsel
A. General Principles:
1. A lawyers withdrawal as counsel must be made in a
formal petition filed in the case, without which, notice
of judgment rendered in the case served on counsel of
record, is for all intents and purposes, notice to the
client
2. There must be a formal petition for substitution
3. Consent of lawyer to be changed is not needed
B. No substitution of attorney will be allowed unless the
following requisites concur:
1. Written application for substitution
2. Written consent of client to substitution
3. Written consent of attorney to be substituted, if such
consent can be obtained; or if not,
4. There must be filed with application for substitution,
proof of service of such motion in the manner
required by the rules on the attorney to be
substituted
SECTION 3 - Manner of filing .The filing of pleadings,
appearances, motions, notices, orders, judgments and all other
papers shall be made by presenting the original copies thereof,
plainly indicated as such, personally to the clerk of court or by
sending them by registered mail. In the first case, the clerk of
court shall endorse on the pleading the date and hour of filing. In
the second case, the date of the mailing of motions, pleadings, or
any other papers or payments or deposits, as shown by the post
office stamp on the envelope or the registry receipt, shall be
considered as the date of their filing, payment, or deposit in court.
The envelope shall be attached to the record of the case. (1a)
Breakdown of Provision
The filing of pleadings, appearances, motions, notices,
orders, judgments, and all other paper shall be made by:
A. Presenting the original copies thereof, plainly indicated as
such
B. Present to:
1. The clerk of court
a. Clerk shall endorse on the pleading the date and
hour of filing
2. Or by sending them by registered mail
a. Date of the mailing as shown by the post office
stamp on the envelope or registry receipt shall be
considered as the date of filing
b. Envelope shall be attached to the record of the
case
Manner of Filing:
1. Personal service by presenting the original copies thereof,
plainly indicated as such, to the clerk of court; or
2. Registered mail
Under Sec. 8, Rule 136: Clerk shall keep a general docket
- Each page numbered and prepared for receiving all entries
in a single case
- Shall enter therein all cases, numbered consecutively in
the order in which they were received
- Under the heading of each case and a complete title
thereof, the date of:
1. Each paper filed or issued
2. Each order or judgment entered
3. Each other step taken in the case
112
Filing by Mail
- Should be through the registry service which is made by
deposit of the pleading in the post office; not through other
means of transmission
- Date of delivery of the pleadings to a private letter-
forwarding agency of private carrier is not a recognized
mode of filing pleadings
- Filing by mail can only be done through the Philippine
Government Post Office or its postal agencies
- If a private carrier is availed of by the party, the date of
actual receipt by the court of such pleading, and not the
date of delivery to carrier, is deemed to be the date of the
filing of that pleading
SECTION 4 - Papers required to be filed and served. Every judg-
ment, resolution, order, pleading subsequent to the complaint,
written motion, notice, appearance, demand, offer of judgment or
similar papers shall be filed with the court, and served upon the
parties affected. (2a)
Breakdown of Provision
A. Every judgment, resolution, order, pleading
1. Subsequent to the complaint, written motion, notice,
appearance, demand, offer of judgment, or similar
papers
2. Shall be filed with the court
3. And served upon parties affected
Filing is an act of presenting the pleading or other paper to the
clerk of court
Papers Required to be Filed and Served:
1. Pleading subsequent to the complaint
2. Appearance
3. Written motion
4. Notice
5. Order
6. Judgment
7. Demand
8. Offer of Judgment
9. Resolution
10. Similar papers
Comment of Justice Feria
- In the case of pleadings subsequent to the original
complaint and written motions, they should first be served
on the parties affected before filed with the court
- Ex parte written motions are now required to be served on
the parties affected, although they need not be set for
hearing
- Original complaint is first filed and subsequently served
with summons
Parties Must be Furnished Copies
No judgment or order, whether final or interlocutory, has
juridical existence until and unless it is set down in writing, signed,
and promulgated
1. Delivered by the Judge to the Clerk for filing
2. Released to the parties and implementation
3. Even after promulgation, it does not bind parties until and
unless notice thereof is duly served on them
SECTION 5 - Modes of service.Service of pleadings, motions,
notices, orders, judgments and other papers shall be made either
personally or by mail. (3a)
Service is the act of providing a party with a copy of the pleading or
paper concerned
Modes of Service
1. Personal Service (Sec. 6)
a. Delivering personally a copy to the party, who is not
represented by a counsel, or to his counsel; or
b. Leaving a copy in counsels office with his clerk or
with a person having charge thereof; or
c. Leaving the copy between 8am and 6pm at the partys
or counsels residence, if known, with a person of
sufficient age and discretion then residing thereon if
not person is found in his office, or if his office is
unknown, or if he has no office
2. By Mail (Sec. 7)
a. Ordinary Mail it does not constitute filing until the
papers are actually delivered into the custody of clerk
or judge
b. Registered Mail The date of mailing is the date of
filing
Such date of filing is determinable from two
sources: (1) from the post office stamp on the
envelope or (2) from the registry receipt
Either of which may suffice to prove the
timeliness of the filing of pleadings
If date stamped on one is earlier than the other,
the former may be accepted as date of filing
This presupposes that the envelope or registry
receipt and the dates appearing thereon are duly
authenticated before the tribunal where they are
presented
3. Substituted Service (Sec. 8) by delivery of the copy to the
clerk of court with proof of failure of both personal and
service by mail
Fax Pleadings
- Filing a pleading by facsimile is not sanctioned
- But fax was allowed in an extradition case (Justice Cuevas
v. Juan Antonio Munoz)
Docket Fees
However, where payment of fees is required by law or the
rules, a case is deemed filed only upon payment of the correct docket
fees regardless of the actual date of the filing in court
Aside from personal service or by mail, service may also be:
1. By substituted service (Sec. 8)
2. And judgments, final orders or resolutions may be served
by publication (Sec. 9)
This is only proper where the summons on the
defendant had also been served by publication
SECTION 6 - Personal service.Service of the papers may be
made by delivering personally a copy to the party or his counsel,
or by leaving it in his office with his clerk or with a person having
charge thereof. If no person is found in his office, or his office is
not known, or he has no office, then by leaving the copy, between
the hours of eight in the morning and six in the evening, at the
partys or counsels residence, if known, with a person of
sufficient age and discretion then residing therein. (4a)
Breakdown of Provision:
A. Service of papers may be made by:
1. Delivering personally a copy to the party or his counsel
113
2. By leaving it in his office with his clerk or with a person
having charge thereof
3. If he has no office, by leaving a copy between the 8am
and 6pm, at the partys or counsels residence, if known,
with a person of sufficient age and discretion then
residing therein
Notes:
- Personal service may either be actual or constructive
- Service on a person not an employee or person in charge
of the office is invalid (Tuazon v. Molina)
- Service of court notice to a store which was not
established as residence or office is not valid (Fuentes v.
Macandong)
SECTION 7 - Service by mail.Service by registered mail shall be
made by depositing the copy in the office, in a sealed envelope,
plainly addressed to the party or his counsel at his office, if
known, otherwise at his residence, if known, with postage fully
prepaid, and with instructions to the postmaster to return the
mail to the sender after ten (10) days if undelivered. If no registry
service is available in the locality of either the sender or the
addressee, service may be done by ordinary mail. (5a)
Breakdown of Provision
A. Service by Registered Mail
1. Done by depositing the copy in the post office
2. Specifics:
a. In a sealed envelope
b. Plainly addressed to the party or his counsel
(1) At his office if known
(2) Otherwise, at his residence if known
c. Postage fully pre-paid
d. With instructions to the postmaster to return the
mail to the sender after 10 days if undelivered
B. Service may be done by ordinary mail
1. If no registry service is available in the locality of either
sender or the addressee
Notes:
- Service by ordinary mail is allowed only in instances
where no registry service exists
- Where the notice of appeal was sent by special delivery
mail within the period of perfecting appeal but received in
court after the expiration of the period, service is valid
(Verdejo v. CA)
- If a pleading is posted with a private carrier and not
through registered mail as mandated by Sec. 1, Rule 13
Date of receipt by the court and not the date of
mailing is the date of filing of said pleading
- The legal and conclusive presumption is that the date
postmarked on the envelope is the date of filing
SECTION 8 - Substituted service.If service of pleadings, motions,
notices, resolutions, orders and other papers cannot be made
under the two preceding sections, the office and place of
residence of the party or his counsel being unknown, service may
be made by delivering the copy to the clerk of court, with proof of
failure of both personal service and service by mail. The service is
complete at the time of such delivery. (6a)
Breakdown of Provision:
A. Service may be made by delivering the copy to the clerk of
court
1. If service cannot be made under the two preceding
sections,
 2. The office and place of residence of the party or his
counsel being unknown
B. With proof of failure of both personal service and service by
mail
C. Service is complete at the time of such delivery
Note: Substituted service as applied to pleadings in this section is
different from the Substituted Service as applied to summons in Rule
14.
SECTION 9 - Service of judgments, final orders, or resolutions.
Judgments, final orders or resolutions shall be served either
personally or by registered mail. When a party summoned by
publication has failed to appear in the action, judgments, final
orders or resolutions against him shall be served upon him also
by publication at the expense of the prevailing party. (7a)
Breakdown of Provision:
A. Judgments, final orders, or resolutions shall be served either:
1. Personally, or
2. By registered mail
B. When party summoned by publication has failed to appear
in the action:
1. Judgments, final orders, resolutions against him shall
be served upon him also by publication
2. At the expense of the prevailing party
Kinds of Service for Final Judgments or Orders
1. Personal; or
2. By registered mail; or
3. By publication (in special cases); if party is summoned by
publication and has failed to appear in the action
Notes:
- Service of final orders and judgments can only be made
either by personal service or by registered mail; or in
special cases, by publication
- No substituted service
- Service cannot be by ordinary mail
This service does not become final and executory
since service if fatally defective (Vda. De Espiritu v.
CFI Cavite)
- The mere notation in the rollo that a copy of the resolution
was sent to counsel, absent a showing of his receipt
thereof, does not constitute proof of service (Soria v. CA)
Constructive Service by Registered Mail
- There must be conclusive proof that a first notice by the
postmaster to the addressee was received
- Presumption that official duty has been performed does
not apply (ITT Philippines Inc. v. CA)
- If, however, the postmaster certifies that such notice was
sent, presumption arises and overrides the contrary claim
of addressee (Ferraren v. Santos)
No Substitute Service
- Judgments, final orders, or final resolutions cannot be
served by substituted service
- Ex: It has been ascertained that a partys counsel is dead or
has permanently left the country an withdrawn from the
case without substitution, and the whereabouts of the
party represented can neither be ascertained nor the fact
thereof obtained from the opposing party, and summons
had not been served by publication
Service of the judgment by publication is not
authorized and would not be valid
Substituted service cannot be availed of
114
Logical solution would be to authorize the trial court
to effect service of judgment by publication
Service by Publication
- What is authorized or required to be served is the
judgment, final order, or resolution
- Only the dispositive portion of the fallo should be required
to be published, not the entire text of the decision or
resolution
- The term judgment must be that contemplated in Rule
36
SECTION 10 - Completeness of service.Personal service is
complete upon actual delivery. Service by ordinary mail is
complete upon the expiration of ten (10) days after mailing,
unless the court otherwise provides. Service by registered mail is
complete upon actual receipt by the addressee, or after five (5)
days from the date he received the first notice of the postmaster,
whichever date is earlier. (8a)
Breakdown of Provision
A. When Service is Complete
1. Personal Service upon actual delivery
2. Service by Ordinary Mail
a. Upon expiration of 10 days after mailing
b. Unless the court otherwise provides
3. Service by Registered Mail
a. Upon actual receipt by addressee, or
b. After 5 days from date he received the first notice
of postmaster
Whichever date is earlier
Completeness of Service
1. Personal Service
a. By handling a copy to the defendant; or
b. Tendering him a copy if he refuses (complete upon
actual delivery)
2. Service by Ordinary mail
a. Complete upon expiration of 10 days after mailing,
unless the court provides otherwise
3. Service by Registered Mail
a. Complete upon actual receipt by the addressee; or
after 5 days from the date he received the first notice
of the postmaster
Whichever date is earlier
Rule on Registered Mail Contemplates of Two Situations:
1. ACTUAL service the completeness of which is determined
upon receipt by the addressee of the registered mail; and
2. CONSTRUCTIVE service the completeness of which is
determined upon the expiration of 5 days from the date of
first notice of the postmaster without the addressee
having claimed the registered mail
Notes:
- Service by registered mail is complete upon actual receipt
by the attorney, his employee or messenger in the office
(Mata v. Legarda)
- Service by registered mail is effective at expiration of the
5-day period from date of first notice (Magno v. CA)
Illustration:
1. (General rule) If first notice is received by addressee on
Dec. 1, and he gets his mail on Dec. 3, the service is
complete on Dec. 3, the date of actual receipt
 2. (Exception) But if addressee gets his mail on Dec. 15,
service is deemed complete on Dec. 6, or five days from
Dec. 1, the date of first notice
3. If addressee never gets the mail, service is also deemed
complete on Dec. 6, as provided in the exception to the
general rule
4. If he receives his mail 2 months after it is registered and
there is no proof of the first notice, service is complete on
the date of actual receipt, following the general rule
For Completeness and Proof of Service by Registered Mail, there is
NO Presumption that Official Duty has been Performed
There must be clear proof of compliance with postal
regulations governing the sending and receipt of the notice referred
to in Sec. 8, Rule 13
Notice by Postmaster and Certification
- Proof of First Notice sent by postmaster to addressee with
the Postmasters certification or testimony
- There must be conclusive proof that counsel or somebody
acting on his behalf was duly notified or had actually
received the notice
- There must be conclusive proof of sending and receipt of
notice by registered mail, otherwise service is not
complete
- Postmasters certification should include data not only as
to whether or not notice was issued but also as to how,
when and to whom delivery thereof was made (Dela Cruz
v. Dela Cruz)
- Actual receipt of the notice by the addressee
This must be stated in the certification
Otherwise expiration of period does not apply until
proof of actual receipt
There is a presumption that the person to whom mail
is delivered is duly authorized by addressee to
receive it
The Rule on Completeness of Service by Registered Mail only
Provides for a Disputable Presumption
- It may be rebutted (Cabuang v. Bello)
- For the rule to apply, service must have been made on the
counsel de parte (Fojas v. Navarro) and if it was sent to
his address of record and he fails to receive it for causes
imputable to him, the service becomes final and it is not
necessary to effect further service (Magno v. CA)
Service of notice by registered mail cannot be avoided by counsels
refusal to accept delivery after notification thereof, and notice is
deemed complete regardless of such refusal to accept (Isaac v.
Mendoza)
SECTION 11 - Priorities in modes of service and filing Whenever
practicable, the service and filing of pleadings and other papers
shall be done personally. Except with respect to papers emanating
from the court, a resort to other modes must be accompanied by a
written explanation why the service or filing was not done
personally. A violation of this Rule may be cause to consider the
paper as not filed. (n)
Breakdown of Provision:
A. GENERAL RULE: Service and filing of pleadings and other
papers shall be done personally, whenever applicable
B. EXCEPTION: With respect to papers emanating from the
court
1. Resort to other modes must be accompanied by a
written explanation why service or filing was not done
personally
115
C. Violation may be cause to consider paper as not filed
Preference for Personal Service
- Sec. 11 refers to both:
1. Service of pleadings and other papers on the adverse
party or his counsel as provided for in Sec. 6, 7, and 8
2. Filing of pleadings and other papers in court
- Personal service and filing are preferred for obvious
reasons
Such should expedite action or resolution on a
pleading, motion, or other paper
Minimize delays likely to be incurred if service or
filing is done by mail
It does away with less than ethical practices of some
lawyers
Personal Service is Mandatory
- Personal service and filing is the general rule and resort to
the other modes of service and filing is the exception
- Whenever personal service or filing is practicable, in light
of the circumstances of time, place, and person, personal
service or filing is mandatory
- Only when personal service or filing is not practicable may
resort to other modes be had
It must be accompanied by a written explanation as
to why personal service or filing was not practicable
to begin with
Discretion of the Court
- Sec. 11 gives the court the discretion to consider a
pleading or paper as not filed if the other modes of service
or filing were resorted to and no written explanation was
made as to why personal service was not done
- Exercise of discretion must necessarily consider:
1. The practicability of personal service
2. The importance of the subject matter of the case or
issues involved therein
3. The prima facie merit of the pleading sought to be
expunged for violation of Sec. 11
SECTION 12 - Proof of filing. The filing of a pleading or paper
shall be proved by its existence in the record of the case. if it is not
in the record, but is claimed to have been filed personally, the
filing shall be proved by the written or stamped acknowledgment
of its filing by the clerk of court on a copy of the same; if filed by
registered mail, by the registry receipt and by the affidavit of the
person who did the mailing, containing a full statement of the
date and place of depositing the mail in the post office in a sealed
envelope addressed to the court, with postage fully prepaid, and
with instructions to the postmaster to return the mail to the
sender after ten (10) days if not delivered. (n)
Proof of Filing
1. Filing of a pleading or paper shall be proved by its
existence in the record of the case
2. If not in the record, but is claimed to have been filed
personally:
a. It shall be proved by the written or stamped
acknowledgement of its filing by the clerk of court on
a copy of the same
3. If filed by registered mail:
a. By the registry receipt
b. And by the affidavit of the person who did the mailing
Containing full statement of the date and place of
depositing the mail in the post office
In a sealed envelope addressed to the court
With postage fully prepaid
 With instructions to the postmaster to return the
mail to the sender after 10 days if not delivered
SECTION 13 - Proof of service.Proof of personal service shall
consist of a written admission of the party served, or the official
return of the server, or the affidavit of the party serving,
containing a full statement of the date, place and manner of
service. If the service is by ordinary mail, proof thereof shall
consist of an affidavit of the person mailing of facts showing
compliance with section 7 of this Rule. If service is made by
registered mail, proof shall be made by such affidavit and the
registry receipt issued by the mailing office. The registry return
card shall be filed immediately upon its receipt by the sender, or
in lieu thereof of the unclaimed letter together with the certified
or sworn copy of the notice given by the postmaster to the
addressee. (10a)
Proof of Service
1. Proof of personal service shall consist of:
a. A written admission of the party served
b. Or the official return of the server
c. Or the affidavit of the party serving
Contains a full statement of the date, place, and
manner of service
2. Proof of service by ordinary mail shall consist of:
a. An affidavit of the person mailing of facts showing
compliance with Sec. 7
3. Proof of service by registered mail shall consist of:
a. Affidavit and the registry receipt issued by the
mailing office
Registry return card shall be filed immediately upon
its receipt by sender
Or, in lieu thereof the unclaimed letter together with
the certified or sworn copy of the postmaster to the
addressee
SECTION 14 - Notice of lis pendens.In an action affecting the
title or the right of possession of real property, the plaintiff and
the defendant, when affirmative relief is claimed in his answer,
may record in the office of the registry of deeds of the province in
which the property is situated a notice of the pendency of the
action. Said notice shall contain the names of the parties and the
object of the action or defense, and a description of the property
in that province affected thereby. Only from the time of filing such
notice for record shall a purchaser, or encumbrancer of the
property affected thereby, be deemed to have constructive notice
of the pendency of the action, and only of its pendency against the
parties designated by their real names.
The notice of lis pendens hereinabove mentioned may
be cancelled only upon order of the court, after proper showing
that the notice is for the purpose of molesting the adverse party,
or that it is not necessary to protect the rights of the party who
caused it to be recorded. (24a, R14)
Breakdown of Provision
A. A Notice of pendency of action may be filed
1. In an action affecting the title or the right of possession
of real property
2. By the plaintiff and the defendant (when affirmative
relief is claimed in his answer)
3. In the office of the registry of deeds of the province in
which the property is situated
B. Notice shall contain:
1. Names of the parties
2. The object of the action or defense
3. Description of the property in that province affected
116
C. Only from the filing of such notice for record:
1. Shall a purchaser, or encumbrancer of the property
affected thereby, be deemed to have constructive notice
of the pendency of the action
2. And only of its pendency against the parties designated
by their real names
D. Notice of lis pendens may be cancelled
1. Only upon order of the court
2. After proper showing:
a. That the notice is for the purpose of molesting
adverse party
b. Or that it is not necessary to protect the rights of
the party who caused it to be recorded
Lis Pendens
- Literally means a pending suit
- Refers to the jurisdiction, power or control which a court
acquires over property involved in a suit, pending the
continuance of the action, and until final judgment
- The annotation of lis pendens is an announcement to the
whole world that a particular real property is in litigation
serving as a warning that one who acquires an interest
over said property does so at its own risk
- A notice of lis pendens may involve actions that deal not
only with the title or possession of property, but also with
the use or occupation of property
The litigation must directly involve a specific
property which is necessarily affected by the
judgment
Purpose of Lis Pendens
1. To protect the rights of the party causing the registration
of the lis pendens
2. To advise third persons who purchase or contract on the
subject property that they do so at their peril and subject
to the result of the pending litigation
Two-fold Effect of Filing a Notice of Lis Pendens
1. It keeps the subject matter of the litigation within the
power of the court until the entry of final judgment to
prevent the defeat of the final judgment by successive
alienations
2. It bins a purchaser, bona fide or not, of the land subject of
the litigation to the judgment or decree that the court will
promulgate subsequently
Transfer Does Not Affect the Merits of the Case
- A transferee pendente lite of the property involved in
litigation stands exactly in the shoes of his predecessor in
interest, and as such transferee, he is bound by the
proceeding in the case
- Without a notice of lis pendens, a third party who acquires
the property after relying only on the certificate of title is a
purchaser in good faith
Against such 3rd party, the supposed rights of a
litigant cannot prevail
The former is not bound by the property owners
undertakings not annotated in the TCT
Actions where Notice of Lis Pendens is Allowed according to Rule
13:
1. An action to recover possession of real estate
2. An action to quiet title thereto
3. An action to remove clouds thereon
4. An action for partition; and
 5. Any other proceedings of any kind in Court directly
affecting the title to the land or the use or occupation
thereto or the buildings thereon

Note: To put the property under the coverage of the rule on lis
pendens, all a party has to do is to assert a claim of possession or
title over the subject property. It is not necessary that ownership or
interest over the property is involved
Lis pendens is not, however, allowed in an action for
collection of unpaid installments on the purchase price of the
property, as the action is in personam.

Actions where Notice of Lis Pendens has No Application as held in

Tongohan v. CA
1. Preliminary attachments
2. Proceedings for the probate of wills
3. Levies on execution
4. Proceedings for administration of estate or deceased
persons
5. Proceedings in which the only object is the recovery of a
money judgment

Requirements As decreed by Sec. 76, PD 1529; a notice of lis

pendens should contain:
1. A statement of the institution of an action or proceeding
2. The court where the same is pending
3. Date of its institution
4. It should also contain:
a. A reference to the number of the certificate of title
b. An adequate description of the land affected
c. And its registered owner

Cancellation of Lis Pendens The trial courts inherent power to

cancel a notice of lis pendens is exercised only under exceptional
circumstances, such as: (Eduardo Fernandez, et al. v. CA)
1. Where such circumstances are imputable to the party who
caused the annotation
2. Where the litigation was unduly prolonged to the
prejudice of the other party because several continuances
procured by petitioner
3. Where the case which is the basis of lis pendens notation
was dismissed for non-prosequitur on the part of the
plaintiff; or
4. Where judgment was rendered against the party who
caused such a notation

Notes:
- Notice of lis pendens cannot be cancelled ex-parte
- Neither can it be ordered cancelled upon the mere filing of
a bond
- Cancellation cannot be ordered where appeal is perfected
(since the trial court already has lost jurisdiction)

Effect of Order of Cancellation where at the time of the purchase

there was already an order for the cancellation of the notice of lis
pendens, the buyer may not be considered as purchasers in bad faith

Other Principles Laid Down by Jurisprudence

1. The party who had the notice annotated and who won the
litigation over the property has the better right as against
one who bought it with such annotation (Heirs of Maria
Marasigan v. IAC)
2. Where the notice of lis pendens is limited to a one-half
undivided interest in the property in litigation, the owner
of the other half has the right to sell his undivided pro
indiviso share (Mercado v. Viardo)

END OF RULE 13

117
NOTES ON RULE 13

118
NOTES ON RULE 13

119

RULE 14
SUMMONS
SECTION 1 - Clerk to issue summons.Upon the filing of the
complaint and the payment of the requisite legal fees, the clerk of
court shall forthwith issue the corresponding summons to the
defendants. (1a)
Breakdown of Provision
A. Clerk to issue corresponding summons to defendants
1. Upon filing of the complaint
2. And upon payment of the requisite legal fees
Summons the writ by which the defendant is notified of the action
brought against him
Purpose of Summons
1. Actions in Personam
a. To acquire jurisdiction over the person of the
defendant in a civil case; and
b. To give notice to the defendant that an action has
been commenced against him (right to due process)
2. Actions in Rem and Quasi in Rem
a. Not to acquire jurisdiction over the defendant but
mainly to satisfy the constitutional requirement of
due process
b. Jurisdiction over the defendant is not required and
the court acquires jurisdiction over an action as long
as it acquires jurisdiction over the res
Effect of Invalid Summons
1. The trial court does not acquire jurisdiction and renders
null and void all subsequent proceedings and issuances
(Syjuco v. Castro)
2. Any judgment without service of summons in the absence
of a valid waiver is null and void (Filmerco Commercial
Co. v. IAC)
Some Principles in Jurisprudence
1. Personal service is required in actions in personam
(Venturanza v. CA)
2. The modes of service of summons must be strictly
followed in order that the court may acquire jurisdiction
over the person (Sps. Isagani Miranda and Miguela
Joguilon v. CA)
Waiver to Question Jurisdiction over the Person
- One of the circumstances considered by the Court as
indicative of waiver by the defendant of any alleged defect
of jurisdiction over his person is his failure to raise the
question of jurisdiction in the trial court at the first
opportunity
Defects in jurisdiction arising from irregularities in
the commencement of the proceedings may be
waived by a failure to make seasonable objections
- Note however that the question of jurisdiction over the
subject matter may be invoked at any stage of the
proceedings
Unlike in jurisdiction over the person where any
irregularities must be seasonably raised
- Irregularities over the acquisition of jurisdiction over the
person can be pleaded in a motion to dismiss or as an
affirmative defense in the answer
120
On Motions to Dismiss
- It is not accurate to say that the motion to dismiss was not
filed seasonably because it was filed beyond the
reglementary period if there was no valid service of
summons to begin with
- If a defendant has not been properly summoned, the
period to file a motion to dismiss for lack of jurisdiction
over his person does not commence to run until he
voluntarily submits to the jurisdiction of the court
Since the court has no jurisdiction to adjudicate the
controversy as to him until such time (Orange
Theatre Corp. v. Rayhertz Amusement Corp.)
Note: Although as a rule, modes of service of summons are strictly
followed in order that the court may acquire jurisdiction over the
person of the defendant, such procedural modes, however, are
liberally construed in quasi-judicial proceedings, substantial
compliance with the same, being considered adequate (Santos v.
NLRC)
GENERAL RULE: When an additional defendant is joined, summons
must be served upon him
EXCEPTIONS:
1. When the administrator of a deceased party defendant
substitutes the deceased
2. Where upon the death of the original defendant his infant
heirs are made parties; and
3. In cases of substitution of the deceased under Sec. 16, Rule
3
In these instances, the service of the order of substitution
is sufficient
SECTION 2 - Contents.The summons shall be directed to the
defendant, signed by the clerk of court under seal, and contain: (a)
the name of the court and the names of the parties to the action;
(b) a direction that the defendant answer within the time fixed by
these Rules; (c) a notice that unless the defendant so answers,
plaintiff will take judgment by default and may be granted the
relief applied for.
A copy of the complaint and order for appointment of
guardian ad litem, if any, shall be attached to the original and each
copy of the summons. (3a)
Breakdown of Provision
A. Summons shall be:
1. Directed to the defendant
2. Signed by clear of court under seal
B. Summons shall contain:
1. Name of the court and the names of the parties to the
action
2. A direction that the defendant answer within the time
fixed by the Rules
3. A notice that unless the defendant so answers, plaintiff
will take judgment by default and may be granted the
relief applied for
C. The following shall be attached to the original and each
copy of the summons:
1. A copy of the complaint
2. Order for appointment of guardian ad litem (if any)
Illustrative Cases
1. Jurisdiction cannot be acquired over the defendant
without service of summons, even if he knows of the case
against him, unless he voluntarily submits to the
 jurisdiction of the court by appearing therein (Habana v.
Vamenta)
2. Where the defendant died before the filing of the action
and summons was served on his co-defendant, the court
never acquired jurisdiction over the former and judgment
as to him is a nullity (Dumlao v. Quality Plastic Products)
3. As to copies to be attached:
a. If the order for appointment of guardian ad litem is
not attached order new summons with copy
(Castanohal v. Castrano)
b. If the complaint is not attached, failure to object is a
waiver (Paglaran v. Ballatan)
c. The failure to attach a copy of the complaint to the
summons (Pagalaran v. Ballatan) or a copy of the
order appointing a guardian ad litem (Castano v.
Castano) are mere technical defects and the service
of summons vests jurisdiction in the court over the
defendant
4. Where the defendant has already been served with
summons on the original complaint, no further summons
is required on the amended complaint if it does not
introduce new causes of action (Ong Peng v. Custodio)
a. But where defendant was declared in default on the
original complaint, and plaintiff subsequently filed an
amended complaint, new summons must be served
on the defendant on the amended complaint as the
original complaint is deemed withdrawn upon such
amendment (Atkins Kroll & Co. v. Domingo)
b. If defendant has not yet appeared by filing adversary
pleadings and an amended complaint introducing
new causes of action is filed, a new service of
summons must be served upon him as regards
amended complaint (Ong Peng v. Custodio)
SECTION 3 - By whom served.The summons may be served by
the sheriff, his deputy, or other proper court officer, or for
justifiable reasons by any suitable person authorized by the court
issuing the summons. (5a)
Breakdown of Provision
A. Summons may be served by:
1. The sheriff
2. His deputy
3. Other proper court officer
4. Any suitable person authorized by the court for
justifiable reasons
Note: The enumeration in Sec. 3 of the persons who may validly
serve summons is EXCLUSIVE
Summons was invalidly served by the following, without authority
granted by the Court
1. A police sergeant (Sequito v. Letrondo)
2. A postmaster (Olar v. Cuna)
3. A patrolman (Bello v. Ubo)
In the aforementioned cases, service was invalid and court did not
acquire jurisdiction
SECTION 4 - Return.When the service has been completed, the
server shall, within five (5) days therefrom, serve a copy of the
return, personally or by registered mail, to the plaintiffs counsel,
and shall return the summons to the clerk who issued it,
accompanied by proof of service. (6a)
121
Breakdown of Provision
A. When service of has been completed:
1. The server shall serve a copy of the return
a. Within 5 days therefrom
b. Personally or by registered mail
c. To the plaintiffs counsel
2. The server shall return the summons
a. To the clerk who issue it
b. Accompanied by proof of service
Proof of Service
- It is required to be given to the plaintiffs counsel in order
to enable him:
1. To move for a default order should the defendant fail
to answer on time, or
2. In case of non-service, so that alias summons may be
sought
- In either of the 2 cases, server must serve a copy of the
return on plaintiffs counsel within 5 days from completion
or failure of service
Certificate of Service of Summons
- Prima facie evidence of the facts set out in such certificate
- To overcome presumption arising from the sheriffs
return, evidence must be clear and convincing (Olar v.
Cuna)
- In the absence of contrary evidence, the presumption is
that he has regularly performed his official duty
- Where the sheriffs return is defective, the presumption of
regularity will not lie
Defective return is now insufficient and incompetent
proof that summons was served in the manner
prescribed (Syjuco v. Castro)
SECTION 5 - Issuance of alias summons. If a summons is
returned without being served on any or all of the defendants, the
server shall also serve a copy of the return on the plaintiffs
counsel, stating the reasons for the failure of service, within five
(5) days therefrom. In such a case, or if the summons has been
lost, the clerk, on demand of the plaintiff, may issue an alias
summons. (4a)
Breakdown of Provision
A. If summons is returned without being served on any or all
defendants
1. Server shall serve a copy of the return on plaintiffs
counsel
a. Stating the reasons for the failure of service
b. Within 5 days therefrom
B. If summon is not served or if summons has been lost:
1. Clerk may issue alias summons
a. On demand of plaintiff
Alias Summons one issued when the original has not produced its
effect because of a defect in form or in the manner of service, and
when issued supersedes the first writ
THE MODES OF SERVICE OF SUMMONS
Modes:
1. Personal Service (Sec. 6)
a. By handing a copy of summons to him; or
b. If he refuses to receive it, by tendering it to him
 2. Substituted Service (Sec. 7)
a. By leaving copies of the summons at the defendants
residence with some person of suitable age and
discretion residing therein; or
b. By leaving the copies at defendants office or regular
place of business with some competent person in
charge thereof
For substituted service of summons to be valid, it is
necessary to establish the following:
1. The impossibility of the personal service of
summons within a reasonable time
2. The efforts exerted to locate the person to be
served; and
3. Service upon a person of sufficient age and
discretion residing in the same place as
defendant or some competent person in charge
of his office or regular place of business
3. Service by Publication (Sec. 14, 15, and 16)
Requisites:
a. Defendants identity or whereabouts are unknown
and cannot be ascertained by diligent inquiry; and
b. There must be leave of court
4. Any other manner as court may deem sufficient (Sec. 15)
Note that summons cannot be served by mail
- Where service is made by publication, a copy of the
summons and order of the court shall be sent by
registered mail to last known address of defendant (Sec.
15)
Resort to registered mail is only complementary to
the service of summons by publication
But it does not mean that service by registered mail
alone would suffice
SECTION 6 - Service in person on defendant.
Whenever practicable, the summons shall be served by handing a
copy thereof to the defendant in person, or, if he refuses to
receive and sign for it, by tendering it to him. (7a)
Breakdown of Provision
A. Whenever practicable, summons shall be served by:
1. Handling a copy thereof to defendant in person; or
2. By tendering it to him, if he refuses to receive and sign
for it
Distinguish Service in Person on Defendant from Personal Service
of Pleadings
- Under Personal Service of Pleadings and Other Papers
under Sec. 6, Rule 13, personal service includes:
1. Service on the party or his counsel; or
2. By leaving a copy with the clerk or person having
charge of his office; or
3. Leaving it with a person of sufficient age and
discretion at the partys or counsels residence
- Under Service in Person on Defendant under this Rule,
1. Service is only made on the defendant himself
Service is to be done personally
- This does not mean that service is possible only at
defendants actual residence
- It is enough that defendant is handed a copy of the
summons in person by anyone authorize by law
- This is distinct from Substituted Service under Sec. 7, Rule
14
122
Said rule requires that summons be served at
defendants residence in the event that personal
service is not possible within reasonable time for
justifiable reasons
SECTION 7 - Substituted service. If, for justifiable causes, the
defendant cannot be served within a reasonable time as
provided in the preceding section, service may be effected (a) by
leaving copies of the summons at the defendants residence with
some person of suitable age and discretion then residing therein,
or (b) by leaving the copies at defendants office or regular place
of business with some competent person in charge thereof. (8a)
Breakdown of Provision
A. If, for justifiable causes, defendant cannot be served within a
reasonable time as provide in the preceding section, service
may be effected:
1. By leaving copies of the summons at defendants
residence with some person of suitable age and
discretion residing therein; or
2. By leaving copies at defendants office or regular place
of business with some competent person in charge
thereof
GENERAL RULE: Summons must be served to defendant in person.
EXCEPTION: It is only when the defendant cannot be served
personally within a reasonable time and for justifiable reasons that a
substituted service may be made
Requisites for Valid Substituted Service
1. The efforts exerted by the sheriff to effect personal service
within a reasonable period of time
a. Impossibility of service should be shown by stating
the efforts made to find defendant
2. That such personal service cannot be effected for
justifiable reasons
3. The service of summons was made at:
a. Defendants residence or
b. Defendants office or regular place of business at the
time of the service
4. Address of defendant to whom summons was supposed to
have been served must be indicated in the return
There must be STRICT compliance with requirements of substituted
service
- The statutory requirements of substitute service must be
followed strictly, faithfully, and fully,
Any substituted service other than the statute is
considered ineffective
- Substituted service is in derogation of the usual method of
service
It is an extraordinary method in character
May be used only as prescribed in the circumstances
authorized by statute
- The return must show impossibility of service and the
efforts of the sheriff to effect personal service
- If the return is defective:
No presumption of regularity of the service
- Judgment may be annulled based on lack of jurisdiction for
improper substitute service for failure to show in return
impossibility of personal service within a reasonable time
Principles as Laid down by Jurisprudence
1. In ejectment cases, being in personam, personal service of
summons on defendant is essential to acquire jurisdiction
over his person, hence summons by publication is null and
void (Ilaya Textile Market, Inc. v. Ocampo)
 2. Where the action is in personam and defendant is in the
Philippines, service must be made in accordance with Sec.
6; Substituted service should be availed only where
defendant cannot be promptly served in person (Litonjua
v. CA)
3. Impossibility of personal service should be explained in
the proof of service showing that efforts were exerted
therefor, hence resort to substituted service (Keister v.
Navarro)
Such facts must be reported in the proof of service
otherwise the substituted service is invalid (Busuego
v. CA)
But where substituted service under such
circumstances was not objected to by defendant at
the trial where he voluntarily appeared by counsel,
the substituted service was declared valid; whatever
defect there was in such mode of service was deemed
waived (Boticano v. Chu)
Some Cases on Substituted Service
1. Ownership of the house is not synonymous with dwelling
(Arevalo v. Quilatan)
2. Substituted service to wife is valid (Daran v. Angco), but
not when they are not residents of the same place
(Valmonte v. CA)
3. Service with one copy of complaint on 2 defendants is
irregular (Bello v. Ubo)
4. Service of summons on co-owner is not binding on others
(Eduardo Fernanez, et al. v. CA)
DEFINITION OF TERMS
Meaning of RESIDENCE
- For a substituted service to be valid, summons served at
the defendants residence must be served at his residence
AT THE TIME OF SERVICE; not his former place of
residence
- dwelling house or residence refers to the dwelling
house at the time of service
- They refer to the place where the person named in the
summons is living at the time of when the service is made,
even though he may be temporarily out of the country at
that time (Venturanza v. CA)
- Under the rules, plaintiff, in the initial stages, is merely
required to know defendants dwelling house or residence
or his office or regular place of business
Nothing more
He is not asked to investigate where a resident
defendant actually is, at the precise moment of filing
He is not even duty bound to see to it that the person
upon whom the service was actually made delivers
the summons to defendant or informs him about it
Meaning of Defendants Office or Regular Place of Business
- office or regular place of business refers to the office or
place of business of defendant at the time of service
- The rule specifically designates the persons to whom
copies of the process should be left
- to be in charge means to have care an custody of, under
control of, or entrusted to the management or direction of
(Sandoval II v. HoR)
Maintenance man cannot be said to be entrusted with
the management of office records
Not any employee or anyone who pretends to be an
employee could validly receive summons
123
AS TO PROOFS
Proof of Prior Efforts of Personal Delivery
- The absence in sheriffs return of a statement about the
impossibility of personal service does not conclusively
prove that the service is invalid
- Proof of prior attempts at personal service may be
submitted by plaintiff during the hearing of any incident
assailing the validity of substitute service (Mapa v. CA)
- While the sheriffs return carries with it the disputable
presumption of regularity
This is in the sense that the entries therein are
deemed correct
It does not necessarily show that an act done in
relation to the official duty for which the return is
made was not done simply because it is not disclosed
therein
- The impossibility of service may be established by
evidence
Irregularity may be Cured by Proof of Actual Receipt
- The constitutional requirement of due process exacts that
service be such as may be reasonably expected to give the
notice desired (Montalban v. Maximo)
Once service provided by the rules reasonably
accomplishes that end, justice is answered and due
process is served
- Irregularities of this kind, however, may be cured by proof
that the copies have actually been delivered to defendant,
which is equivalent to personal service
But there is NO Need for Proof of Actual Receipt
- In substituted service, it is immaterial that the defendant
does not in fact receive actual notice
This will not affect validity of the service
- The defendant may be charged by a judgment in personam
as a result of legal proceedings upon a method of service
which is not personal, which in fact may not become actual
notice to him, and which may be accomplished in his
lawful absence from the country
The rules do not require that papers be served on
defendants personally or a showing that papers were
delivered to defendant by person with whom they
were left (Smith v. Kincaid)
In substituted service, the validity of service does not depend upon
actual receipt
- But irregularity in service may be cured by proof of actual
receipt
- Thus, where summons was in fact received by the
defendant, his argument that the sheriff should have tried
first to serve summons on him personally before resorting
to substituted service is not meritorious (Boticano v. Chu,
Jr.)
- Mere knowledge, however, is not sufficient, in the absence
of a valid service
- In the absence however, of a categorical admission similar
to that made in Boticano, no such inference to the
contrary could be drawn
SECTION 8 - Service upon entity without juridical personality.
When persons associated in an entity without juridical
personality are sued under the name by which they are generally
or commonly known, service may be effected upon all the
defendants by serving upon any one of them, or upon the person
in charge of the office or place of business maintained in such
name. But such service shall not bind individually any person
 whose connection with the entity has, upon due notice, been
severed before the action was brought. (9a)
Breakdown of Provision
A. When persons associated in an entity without juridical
personality are sued under the name by which they are
commonly known
B. Service may be effected:
1. Upon all defendants by serving upon any one of them
2. Or Upon person in charge of the office or place of
business maintained in such name
C. Such service shall not bind individually any person whose
connection with the entity has been severed before the
action was brought (upon due notice)
A Review of Relevant Provisions under Rule 3
- Sec. 1, Rule 3 provides that only natural or juridical
persons may be parties in a civil action
But it also provides that entities authorized by law
may likewise be parties to a suit
- Sec. 15, Rule 3 provides that an entity without juridical
personality may be sued under the circumstances
prescribed therein in connection with a transaction it may
have entered into
Note:
- Such entity without juridical personality can be sued, but
cannot sue by initiating an original civil action
As a matter of fairness and logical procedure, once it
is impleaded as defendant, it may also file
counterclaims and cross-claims or other initiatory
pleadings for claims it may properly avail itself since
it is already a party to the suit
- Note also that this section does not limit itself to
associations engaged in business
Associations not engaged in business or commercial
activity can also commit actionable wrongs
Civic associations and organizations are also included
SECTION 9 - Service upon prisoners.When the defendant is a
prisoner confined in a jail or institution, service shall be effected
upon him by the officer having the management of such jail or
institution who is deemed deputized as a special sheriff for said
purpose. (12a)
Breakdown of Provision
When defendant is a prisoner confined in a jail or institution
1. Service shall be effected by the officer having the
management of such jail or institution
2. Such officer is deemed deputized as special sheriff for said
purpose
Note: Since the said officer is deputized as special sheriff, he is
charged with the duty of complying with the provisions of Sec. 4 an 5
of this Rule relative to the return on summons on prisoner.
SECTION 10 - Service upon minors and incompetents When the
defendant is a minor, insane or otherwise an incompetent, service
shall be made upon him personally and on his legal guardian if he
has one, or if none, upon his guardian ad litem whose
appointment shall be applied for by the plaintiff. In the case of a
minor, service may also be made on his father or mother. (10a,
11a)
124
Breakdown of Provision
A. When defendant is a:
1. Minor,
2. Insane, or
3. Otherwise an incompetent
B. Service shall be made:
1. Upon him personally,
2. AND:
a. On his legal guardian if he has one
b. Upon his guardian ad litem if he has no
guardian; appointment applied for by plaintiff
3. In case of defendant minor, service may also be made
on his father or mother
Note: With respect to insane or otherwise incompetent persons, it is
not necessary that they be judicially declared as such
SECTION 11 - Service upon domestic private juridical entity.
When the defendant is a corporation, partnership or association
organized under the laws of the Philippines with a juridical
personality, service may be made on the president, managing
partner, general manager, corporate secretary, treasurer, or in-
house counsel. (13a)
Breakdown of Provision
A. When defendant is a corporation, partnership, or
association,
1. Organized under the laws of the Philippines
2. With a juridical personality
B. Service may be made on the president, managing partner,
general manager, corporate secretary, treasurer, or in-
house counsel
Purpose of the Rule
Service must be made on a representative so integrated
with the corporation sued as to make it a priori supposable that he
will realize his responsibilities and know what he should do with
legal paper served on him (G&G Trading Corp. v. CA)
As held in Artemio Baltazar v. CA
- The regular mode of serving summons upon a private
Philippine corporation is by personal service upon one of
the officers of such corporation
- But there is no requirement that it be done at the principal
office of the corporation
- So it can be said that personal service upon the
corporation may be effected through service upon the
office or residential address of the corporation president,
for example
Strict Application of the Rules
- The rule must be strictly observed; service must be made
to one named in statute (Delta Motors v. Mangosing)
- Resort to substituted service by publication on a private
domestic corporation was held invalid where the sheriff
did not ascertain from the records of the SEC the address
of its corporate headquarters and address of its corporate
headquarters and addresses of its directors and other
officers (Baltazar v. CA)
- Under the present rule, service on an agent of the
corporation is no longer permitted
The designation of persons or officers who are
authorized to accept summons for a domestic
corporation is now limited and more clearly specified
- The doctrine of substantial compliance followed under the
1964 Rules is no longer applicable in view of the
amendments introduced by the 1997 Rules
 The new rule is restricted, limited, and exclusive (EB
Villarosa & Partner Co., Ltd. v. Benito)
Note: The doctrine of piercing the veil of corporate fiction does not
apply to service of summons. It refers to determination of liability
and not to determination of jurisdiction
SECTION 12 - Service upon foreign private juridical entity.When
the defendant is a foreign private juridical entity which has
transacted business in the Philippines, service may be made on its
resident agent designated in accordance with law for that
purpose, or, if there be no such agent, on the government official
designated by law to that effect, or on any of its officers or agents
within the Philippines. (14a)
Breakdown of Provision
A. Defendant is a foreign juridical entity which has transacted
business in the Philippines
B. Service may be made on:
1. Its resident agent designated in accordance with law
for that purpose; or
2. If no agent:
a. On the government official designated by law to
that effect; or
b. Any of its officers or agents within the Philippines
General Rule on Foreign Corporations
- Foreign corporations doing business in the Philippines
without license cannot sue but may sued
- If it is not doing business, it can sue
- If it is not engaged in business in the Philippines
Not barred from seeking redress in the Philippines a
fortiori, that same corporation cannot claim
exemption from being sued in Philippine courts for
acts done against a person or persons in the
Philippines
Summons may be issued under this rule when it is doing business in
the Philippines or which has transacted business in the Philippines
Note also Sec. 123 of the Corporation Code which provides that
when a foreign private corporation applies for a license to do
business in the Philippines, it shall be granted subject to the
condition, inter alia, that if it has no resident agent, summons and
processes intended for it shall be served on the SEC
Reglementary Periods
- Where service of summons is made on the government
official designated by law, defendant corporation has 30
days from its receipt of summons within which to file its
answer (Sec. 2, Rule 11)
- If served on its resident agent, offices or other agents in
the Philippines, the 15-day reglementary period applies
(Facilities Management Corp. v. De la Osa)
Meaning of Doing Business
- Mentholatum Co., Inc. v. Mangaliman no general rule or
governing principle can be laid down as to what
constitutes doing or engaging or trading in business; each
case must be judged in light of its peculiar environmental
circumstances
- Griffin v. Implement Dealers Mut. Fire Ins. Co.:
1. The test seems to be whether the foreign corporation
is continuing the body or substance of the business or
enterprise for which it was organized or whether it
has substantially retired from it and turned over it
over to another
125
2. Term implies a continuity of commercial dealings and
arrangements, and contemplates, to that extent, the
performance of acts or works or the exercise of some
of the functions normally incident to, and in
progressive prosecution of, the purpose and object of
its organization
Note: A foreign corporation not engaged in business in the
Philippines may file an action in Philippine Courts for an ISOLATED
Transaction
Some Jurisprudence:
1. In Georg Grotjahn GMBH and Co. v. Isagani, it was held
that the uninterrupted performance by a foreign
corporation of acts pursuant to its primary purposes and
functions as a regional headquarters for its home office,
qualifies such corporation as one doing business in the
country
2. Distinguish however from a single or isolated transaction
or occasional, incidental, or casual transaction
a. In such cases, the foreign corporation is not deemed
to be doing business in the Philippines (Pacific
Micronesian Line Inc. v. Del Rosario)
b. But where the single act or transaction is not merely
incidental or casual but indicates the foreign
corporations intention to do other business in the
Philippines, said single act or transaction constitutes
doing or engaging in or transacting business in the
Philippines (Far East Intl Import and Export Corp.
v. Nankai Kogyo Co.)
3. As a general rule, a foreign corporation will not be
regarded as doing business in the State simply because it
enters into contracts with residents of the State, where
such contracts are consummated outside the State
a. A foreign corporation is not doing business in the
State merely because sales of its product are made
there or other business furthering its interests is
transacted there
The Fact of Doing Business in the Philippines Must be Established by
Appropriate Allegations in the Complaint
- When the allegation in the complaint have a bearing on the
plaintiffs capacity to sue and merely state that plaintiff is a
foreign corporation existing under US laws, such averment
conjures 2 alternative possibilities:
1. That the corporation is engaged in the Philippines
a. In this case, a corporation must have been duly
licensed in order to maintain the suit
2. That it is not so engaged
a. In this case, that the transaction sued upon is
singular and isolated, hence no license is needed
- The qualifying circumstances being an essential part of
plaintiffs capacity to sue must be affirmatively pleaded
It is now settled that, for purposes of having summons served on a
foreign corporation in accordance with Rules 14 and 12, it is
sufficient that it be alleged in the complaint that the foreign
corporation is doing business in the Philippines.
Determination of Jurisdiction is NOT a Final Matter
- It cannot be said that the petitioners right to question the
jurisdiction of the court over its person is now a foreclosed
matter
- A determination that the foreign corporation is doing
business is only tentative
It is made only for the purposes of enabling the local
court to acquire jurisdiction over the foreign
 corporation through service of summons pursuant to
Rules 14 and 12
- Such determination does not foreclose a contrary finding
should evidence later show that it is not transacting
business in the country
How Service of Summons Effected Upon Private Foreign
Corporations
1. Three instances as provided for in Sec. 14, Rule 7
a. By serving upon the agent designated in accordance
with law to accept service of summons
b. If there is no resident agent, by service on the
government official designated by law to that office
c. By serving on any officer or agent of said corporation
within the Philippines
2. Under the Corp Code, if the corporation is without resident
agent, service of summons may be made upon the SEC
SEC must transmit it within 10 days by mail copy of
summons or other legal process to the corporation at
its home or principal office
SECTION 13 - Service upon public corporations.When the
defendant is the Republic of the Philippines, service may be
effected on the Solicitor General; in case of a province, city or
municipality, or like public corporations, service may be effected
on its executive head, or on such other officer or officers as the
law or the court may direct. (15)
Breakdown of Provision
A. If defendant is the Republic, service may be effected:
1. On the Solicitor General
B. If defendant is a province, city, or municipality, or like public
corporations, service may be effected
1. On its executive head; or
2. On such other officer or officers as the law or court may
direct
REVIEW: Service of Summons on Different Entities
DEFENDANT SERVICE OF SUMMONS
Entity without
Upon any or all the defendants being sued
juridical
under common name; or person in charge of
personality (Sec.
the office
8)
In case of minors: by serving upon the minor,
regardless of age, and upon his legal
guardian, or also upon either of his parents
In case of incompetents: by serving on him
Minors and personally and upon his legal guardian, but
incompetents not upon his parents, unless they are his
(Sec. 10) legal guardians
In any event: if the minor or incompetent has
no legal guardian, the plaintiff must obtain
the appointment of a guardian ad litem for
him
Domestic private To the president, managing partner, general
juridical entity manager, corporate secretary, treasurer, or
(Sec. 11) in house counsel (enumeration is exclusive)
Serve on the resident agent; or if none; on
Foreign private
the government official designated by law; or
juridical entity
on any officer or agent of the corporation
(Sec. 12)
within the Philippines
In case defendant is the Republic, by serving
upon the SolGen
Public
In case of a province, city or municipality, or
corporations
like public corporations, by serving on its
(Sec. 13)
executive head or on such other officer or
officers as the law or the court may direct
126
SECTION 14 - Service upon defendant whose identity
or whereabouts are unknown.In any action where the defendant
is designated as an unknown owner, or the like, or whenever his
whereabouts are unknown and cannot be ascertained by diligent
inquiry, service may, by leave of court, be effected upon him by
publication in a newspaper of general circulation and in such
places and for such time as the court may order. (16a)
Breakdown of Provision
A. Whenever a defendant is:
1. Designated as an unknown owner, or the like, or
2. Where his whereabouts are unknown and cannot be
ascertained by diligent inquiry
B. Service may be effected:
1. With leave of court
2. By publication
a. In a newspaper of general circulation
b. And in such places and for such time as the court
may order
In Baltazar v. CA, Justice Feliciano notes that service of summons by
publication may be allowed under Rule 14 in 3 different situations:
1. First is the situation of an Unknown Defendant governed
by Sec. 14
2. Second is the situation were Extraterritorial service is
proper governed by Sec. 15
3. Third, is that of a resident who is temporarily out of the
Philippines governed by Sec. 16
Under the present rule, summons by publication is allowed in any
action.
Determine the Nature of Action
- In ascertaining the validity of the service of summons it is
helpful to determine first whether the action is in
personam, in rem, or quasi in rem
- The rule on service of summons under Rule 14 apply
accordingly to the nature of action
- Review:
1. Action in personam action against a person on the
basis of personal liability
2. Action in rem an action against the thing itself
instead of against the person
3. Action quasi in rem one wherein an individual is
named as defendant and the purpose of the
proceeding is to subject his interest therein to the
obligation or lien burdening the property
In determining the propriety of summons by publication, distinction
should be made on whether or not defendant is a resident or not
- Rule on residents is governed by Sec. 14 and 16
- Rule on non-residents who cannot be found in the
Philippines is governed by Sec. 15
Note: In an action quasi in rem or in rem against a non-resident
defendant, jurisdiction over his person is non-essential
If the law requires in such case that the summons
upon defendant be served by publication, it is merely
to satisfy the constitutional requirement of due
process
Summons by way of publication may with leave of court be availed
of where a defendant involved in any action is designated as an
unknown owner or whenever his whereabouts are unknown and
cannot be ascertained. The summons shall be effected through
publication in a newspaper of general circulation and in such places
and for such time as the court sets
 THE RULE ON UNKNOWN DEFENDANTS
As held in United Coconut Planters Bank v. Ongpin If a defendant
is a resident and plaintiff cannot determine the correct address of
respondent, petitioner only needs to show that:
1. Respondents address is unknown and
2. Cannot be ascertained by diligent inquiry
Upon compliance with this requirement, it can validly serve
summons by publication in a newspaper of general circulation
Note:
- Summons by publication in actions in personam is
permissible in certain situations
- Its limitation to actions in rem and quasi in rem refers to
non-resident defendants who cannot be found in the
Philippines
- Under the present section, summons by publication is
allowed IN ANY ACTION
SECTION 15 - Extraterritorial service.When the defendant does
not reside and is not found in the Philippines, and the action
affects the personal status of the plaintiff or relates to, or the
subject of which is, property within the Philippines, in which the
defendant has or claims a lien or interest, actual or contingent; or
in which the relief demanded consists, wholly or in part, in
excluding the defendant from any interest therein, or the
property of the defendant has been attached within the
Philippines, service may, by leave of court, be effected out of the
Philippines by personal service as under section 6; or by
publication in a newspaper of general circulation in such places
and for such time as the court may order, in which case a copy of
the summons and order of the court shall be sent by registered
mail to the last known address of the defendant, or in any other
manner the court may deem sufficient. Any order granting such
leave shall specify a reasonable time, which shall not be less than
sixty (60) days after notice, within which the defendant must
answer. (17a)
Breakdown of Provision
A. If the defendant:
1. Does not reside in the Philippines
2. And is not found in the Philippines
B. And the action:
1. Affects the personal status of the plaintiff, or
2. Relates to or the subject of which is property within the
Philippines
a. In which defendant has or claims a lien or
interest, actual or contingent; or
b. In which the relief demanded consists, wholly or in
part, in excluding the defendant from any interest
therein, or
c. Property of defendant has been attached within
the Philippines
C. Service may be effected out of the Philippines
1. By leave of court
2. By:
a. Personal service as under Sec. 6
b. Publication in a newspaper of general circulation
(1) In such places and for such time as court may
order
(2) A copy of the summons and order of the
court shall be sent by registered mail to the
last known address of defendant
c. In any other manner the court may deem
sufficient
D. Any order granting such leave shall specify a reasonable
time within which defendant must answer
1. Time shall not be less than 60 days after notice
127
SERVICE OF SUMMONS BY PUBLICATION
Limitation - Service of summons by publication is limited to:
1. Actions in rem and quasi in rem
2. Where defendant is a non-resident who cannot be found in
the Philippines
In these type of actions, jurisdiction over the person of the defendant
is not essential for giving the court jurisdiction so long as the court
acquires jurisdiction over the res.
It is a Requirement of Fair Play
- While it may be true that service of summons by
publication does not involve any absolute assurance that
said nonresident defendant shall thereby receive actual
notice
Such service is required not for purposes of
physically acquiring jurisdiction over his person
But simply in pursuance of the requirements of fair
play
- However, it is necessary that copies of summons and
complaint be duly served at defendants last known
address by registered mail as complement to the
publication
Illustrative Cases
1. Where defendant is a non-resident, but his wife is a
resident and is his attorney-in-fact, who commenced an
action in his behalf, in a complaint against said non-
resident defendant, summons may validly be served on his
wife and the court has jurisdiction over said non-resident
(Gemperle v. Schenker)
2. If it is a personal action in personam, it is personal or
substituted service, not extraterritorial service, which is
required (The Dial Corp. et al. v. Soriano et al.)
In a personal action for injunction, extraterritorial
service of summons and complaint on the non-
resident defendants cannot confer on the court
jurisdiction (Kawasaki Port Service Corp., et al. v.
Amores, etc., et al.)
3. Since the defendant is a non-resident and the suit involves
real property in the Philippines wherein defendant has an
interest, service of summons by publication in a local
newspaper is authorized (Sahagun v. CA)
THE NON-RESIDENT DEFENDANT
The remedy against a non-resident defendant who cannot
be served with summons in the Philippines is to locate real or
personal property and attach the property
Here, the action becomes in rem or quasi in rem
In which case, service by publication is permissible
However, if attachment is invalid, service by
publication is void
If the defendant is ONLY temporarily out of the
Philippines, substituted service is permissible
But in this case, he is a resident defendant
ACTIONS RELATING TO PROPERTY IN THE PHILIPPINES
DOES NOT INCLUDE PERSONAL ACTIONS
Note: Contractual rights are not property located in the Philippines
within the meaning of the rule to justify extraterritorial service of
summons
Judgment Limited to STATUS or PROPERTY
- Judgment must be confined strictly to the personal status
of plaintiff or to the disposition of property
- Court cannot grant relief which would be a personal
liability upon the non-resident defendant
- In proceedings in rem or quasi-in-rem against a non-
resident who is not served personally within the State, and
who does not appear, relief must be confined to the res
- Example: In an action to foreclose mortgage, no personal
judgment for deficiency can be entered
In these cases, the property itself is the sole thing which is
impleaded and is the responsible object which is the subject of the
judicial power (Banco Espanol Filipino v. Palanca)
Accordingly, the relief must be confined to the res, and the
court cannot lawfully render a personal judgment against him.
Judgment In Personam is INVALID
- Example: In seeking to recover damages from non-
resident defendant for allege commission of injury to his
person or property caused by the formers nuisance
The action became in personam
As such, personal or, if not possible, substituted
service and not extrajudicial service is necessary
Since there was no valid service, trial court had no
jurisdiction to award damages
Rule Applies only to Non-Resident Defendants
- The service of summons in an action in personam against a
resident defendant outside of the courts territorial
jurisdiction is valid
- Principles limiting summons beyond the courts territorial
jurisdiction to actions in rem and quasi in rem should be
made to apply only to non-residents who cannot be found
in the Philippines
EXTRATERRITORIAL SERVICE
RULE: Service of summons on non-resident defendants who cannot
be found in the Philippines is limited to actions in rem and quasi in
rem
Extraterritorial service of summons is proper only in four instances:
1. When the action affects the personal status of the plaintiff
2. When the action relates to, or the subject of which is
property within the Philippines in which the defendant has
or claims a lien or interest, actual or contingent
3. When the relief demanded in such action consists, wholly
or in part, in excluding the defendant from any interest in
property located in the Philippines; and
4. When the defendant nonresidents property has been
attached in the Philippines
General Notes:
- When the defendant is not residing and is not found in the
Philippines, the Philippine courts cannot try any case
against him
Because of the impossibility of acquiring jurisdiction
over his person
Unless he voluntarily appears in court
- But when the action falls under any of the 4 instances
mentioned above, Philippine courts may then try the case
In these cases, they have jurisdiction over the res
Venue in such cases may be laid in the province
where the property of defendant or a part thereof
involved in the litigation is located
128
Where Action Affects the Personal Status of Plaintiff
Status means a legal personal relationship, not temporary
in nature nor terminable at the mere will of the parties, with which
third persons and the state are concerned (Holzer v. Deutsche
Reichsbahn Gesellschaft)
Note however that actions affecting personal status are
different from actions in personam
Monetary obligations do not, in any way, refer to
status, rights and obligations
Obligations are more or less temporary, but status is
relatively permanent
Now, if the complaint does not involve the personal status of
plaintiff, nor any property in the Philippines, the action being a
personal action and in personam:
- Personal or substituted service is necessary to confer
jurisdiction
- Not extraterritorial service
How Extraterritorial Service Made: By Leave of Court
To be effective, service may, with leave of court, be by:
1. Personal service;
2. Publication (copy of summons and order of Court must be
sent by registered mail at last known address)
3. Any other manner the court may deem sufficient
Service Must be Made Outside of the Philippines By Leave of Court
As held in Valmonte v. CA, where service upon a non-residents
counsel was held invalid and which does not fall under the third
mode
- The third mode of service, like the first 2, must be made
outside the Philippines
Such as through the Philippine Embassy in the foreign
country where defendant resides
Note: Publication in Foreign Newspaper is discretionary
SECTION 16 - Residents temporarily out of the Philippines.When
any action is commenced against a defendant who ordinarily
resides within the Philippines, but who is temporarily out of it,
service may, by leave of court, be also effected out of
the Philippines, as under the preceding section. (18a)
Breakdown of Provision
A. Service to a defendant who ordinarily resides in the
Philippines, but who is temporarily out of it
1. Service may also be effected out of the Philippines
a. By leave of court
b. As under the preceding section
Substituted Service is Allowed
- Where the defendant is residing in the Philippines,
jurisdiction over his person may be acquired by
substituted service of summons under Sec. 8
- Extra-territorial service is also allowed (also by leave of
court) according to Sec. 16
In other words, a resident defendant in an action personam, who
cannot be personally served with summons, may be summoned
either by:
1. Substituted service in accordance with Sec. 7, Rule 14
2. Or by service by publication under Sec. 16, Rule 14
 SERVICE OF - While Sec. 15 provides for modes of service which may
DEFENDANT ACTION
SUMMONS also be availed of in the case a resident defendant is
Resident but With leave by court, temporarily absent, the normal mode of service of such is
identity or by publication in a by substituted service under Sec. 7
Any action
whereabouts newspaper of Personal service outside the country and service by
unknown (Sec. 14) general circulation publication are not ordinary means of summons
In rem or quasi in Extraterritorial (Montalban, et al. v. Maxima)
rem; it either: Service:
(1) Affects the (a) With leave of Where the defendant is a resident and the action is in personam,
personal status of court serve outside summons by publication is invalid as being violative of due process
plaintiff the Phil by personal - Plaintiffs recourse, where personal service fails, is to
(2) Relates to or the service; or attach properties of defendant under Sec. 1(f), Rule 57
subject of which is (b) with leave of This converts the suit to one in rem or quasi in rem
property within the court serve by and summons by publication will now become valid
Phil in which publication in a - If plaintiff fails to do such,
defendant has a lien newspaper of Court should not dismiss the case but order the case
Not a resident and
or interest general circulation, to be held pending in the archives
is not found in the
(3) Demands a relief in which case the So that the action will not prescribe
Philippines
which consists copy of the Until such time as plaintiff succeeds in ascertaining
(Sec. 15)
wholly or in part in summons and the defendants whereabouts or his properties
excluding the order of court must - Pantaleon v. Asuncion
defendant from any also be sent by
interest in any registered mail to
property within the the last known SECTION 18 - Proof of service.The proof of service of a
Phil; or address of summons shall be made in writing by the server and shall set
(4) Property of defendant; or forth the manner, place, and date of service; shall specify any
defendant has been (c) Any other papers which have been served with the process and the name of
attached in the manner the court the person who received the same; and shall be sworn to when
Philippines deem sufficient made by a person other than a sheriff or his deputy. (20)
Substituted Service
or with leave of Breakdown of Provision
Resident
court, personal Proof of Service of Summons:
temporarily out of
Any action service out of the 1. Shall be made in writing and shall:
the Philippines
Phil as under a. Set forth the manner, place, date of service
(Sec. 16)
extraterritorial b. Specify any papers which may have been served with
service the process and the name of the person who received
the same
c. Shall be sworn to when made by a person, other than
SECTION 17 - Leave of court.Any application to the court under the sheriff or his deputy
this Rule for leave to effect service in any manner for which leave
of court is necessary shall be made by motion in writing, Effect of Defect of Proof of Service
supported by affidavit of the plaintiff or some person on his - Where sheriffs return is defective, presumption of
behalf setting forth the grounds for the application. (19) regularity in the performance of official functions will not
lie
Breakdown of Provision - Defective return is insufficient and incompetent to prove
A. Any application to the court for leave to effect service in any that summons was indeed served
manner for which leave of court is necessary - Party alleging valid summons will now prove that
1. Shall be made by motion in writing summons was indeed served
2. Supported by affidavit of the plaintiff or some other - If there is no valid summons, court did not acquire
person on his behalf jurisdiction which renders null and void all subsequent
3. Setting forth the grounds for the application proceedings and issuances

Service of Summons by Publication is Authorized, with Prior Leave

of Court:
1. Where the identity of the defendant is unknown;
2. Where the whereabouts of the defendant is unknown;
3. Where the defendant does not reside and is not found in
the Philippines but the suit can properly be maintained
against him here, being in rem or quasi in rem; and
4. Where the defendant is a resident of the Philippines but is
temporarily out of the country
SECTION 19 - Proof of service by publication.If the service has
been made by publication, service may be proved by the affidavit
of the printer, his foreman or principal clerk, or of the editor,
business or advertising manager, to which affidavit a copy of the
publication shall be attached, and by an affidavit showing the
deposit of a copy of the summons and order for publication in the
post office, postage prepaid, directed to the defendant by
registered mail to his last known address. (21)

Summons in a suit in personam against a resident temporarily Breakdown of Provision

absent from the Philippines If service has been made by publication, service may be proved by:
- Summons may validly be effected by substitute service 1. Affidavit:
under Sec. 7 a. The printer, his foreman, or principal clerk; or
It is immaterial that defendant does not in fact b. Of the editor, business or advertising manager
receive actual notice A copy of the publication shall be attached

129
 2. And an Affidavit:
a. Showing the deposit of a copy of the summons; and
b. Order of publication in the post office, postage prepaid,
directed to defendant by registered mail to his last
known address

SECTION 20 - Voluntary appearance.The defendants voluntary

appearance in the action shall be equivalent to service of
summons. The inclusion in a motion to dismiss of other grounds
aside from lack of jurisdiction over the person of the defendant
shall not be deemed a voluntary appearance. (23a)

Any form of appearance in court, by the defendant, by his agent

authorized to do so, or by attorney, is equivalent to service except
where such appearance is precisely to object the jurisdiction of the
court over the person of the defendant (Carballo v. Encarnacion)

Voluntary Appearance Equivalent to Service

- Appearance in whatever form, without expressly objecting
to the jurisdiction of the court over the person, is a
submission to the jurisdiction of the court over the person
- Any appearance other than for sole purpose of challenging
the jurisdiction over the defendants person is sufficient
But the inclusion in a motion to dismiss of other
grounds aside from lack of jurisdiction over the
person shall not be deemed voluntary appearance
(Vide Naval v. CA)

Illustrative Cases
1. Appearance of counsel on behalf of defendant is equivalent
service (Tuason v. CA)
2. The filing of answer with cross-claim is equivalent to
voluntary appearance and cures the defect, if any, of the
summons (Paramount Insurance v. Judge Luna)
3. The filing of a motion for reconsideration of the judgment
by default and a motion to admit answer on the ground of
excusable negligence is submission to the courts
jurisdiction (Europa v. IAC)

END OF RULE 14

130
NOTES ON RULE 14

131
NOTES ON RULE 14

132
 RULE 15 Breakdown of Provision
MOTIONS A. Every written motion shall be set for hearing by applicant
1. EXCEPT for motions which the court may act upon
without prejudicing the rights of adverse party
B. Every written motion required to be heard and the notice of
SECTION 1 - Motion defined.A motion is an application for relief
the hearing thereof
other than by a pleading. (1a)
1. Shall be served in such a manner as to ensure its
receipts by other party at least 3 days before such
Kinds of Motion
hearing
1. Motion Ex Parte made without the presence or a
2. UNLESS court for good cause sets the hearing on
notification to the other party because the question
shorter notice
generally presented is not debatable (e.g. Motion for
extension of time to file pleadings)
Requisites of a Motion: (not made in open court or in the course of
2. Motion Of Course where movant is entitled to the relief
hearing or trial)
or remedy sought as a matter of discretion on the part of
1. It must be in writing
the court
2. Hearing of motion set by applicant
3. Litigated Motion one made with notice to the adverse
3. Notice of hearing shall be addressed to parties concerned;
party to give an opportunity to oppose (e.g. Motion to
date of hearing must not be later than 10 days from the
dismiss)
filing of the motion (Sec. 5)
4. Special Motion motion addressed to the discretion of the
4. Motion and notice of hearing must be served at least 3
court
days before the date of hearing (three day notice rule)
Exceptions to the 3-day notice rule:
GENERAL RULE: A motion cannot pray for judgment
a. Ex-parte motions
EXCEPTIONS:
b. Urgent motions
1. Motion for judgment on the pleadings
c. Motions agreed upon by the parties to be heard on
2. Motion for summary judgment; and
shorter notice or jointly submitted by parties; and
3. Motion for judgment on demurrer to evidence
d. Motions for summary judgment which must be
served at least 10 days before hearing
SECTION 2 - Motions must be in writing.All motions shall be in 5. Proof of service (Sec. 6)
writing except those made in open court or in the course of a
hearing or trial. (2a)
Applicability of the Rule
- The rule does not apply to applications for a writ of
GENERAL RULE: Motions shall be in writing preliminary attachment, appointment of a receiver,
EXCEPTIONS: delivery of personal property, and a motion for a writ of
1. Motions for continuance made in the presence of the possession
adverse party or those made in the course of the hearing
All of which may be granted ex parte
or trial - Rule does not apply to manifestations which, unless
2. Those made in open court even in the absence of the otherwise indicated, are usually made merely for the
adverse party or those made in the course of a hearing or
information of the court
trial
Effects of Want of Notice
- A motion that does not contain a notice of hearing is but a
SECTION 3 - Contents.A motion shall state the relief sought to mere scrap of paper
be obtained and the grounds upon which it is based, and if
It is not even a motion for it does not comply with the
required by these Rules or necessary to prove facts alleged rules
therein, shall be accompanied by supporting affidavits and other
Clerk has no right to receive it
papers. (3a)
- A court has no jurisdiction to issue an order in
consideration of a motion for correction of judgment
Breakdown of Provision: which does not have a proper notice of hearing (Fajardo v.
A. A motion shall: CA)
1. State the relief sought to be obtained
- Copy of a motion containing a notice of time and place of
2. State the grounds upon which it is based hearing of said motion is a mandatory requirement
3. Be accompanied by supporting affidavits and other
Failure to do follow Sec. 4, 5 and 6 is a fatal flaw
papers if:
The motion is pro forma, hence, it did not suspend the
a. Required by the Rules or
running of prescriptive period
b. Necessary to prove facts alleged therein
Purpose of the Rule Notice of hearing is intended to prevent
surprise and to afford the adverse party a chance to be heard before
SECTION 4 - Hearing of motion.Except for motions which the
the motion is resolved by the trial court.
court may act upon without prejudicing the rights of the adverse
Motions without notice is pro forma.
party, every written motion shall be set for hearing by the
applicant.
GENERAL RULE: All written motions shall be set for hearing, even if
Every written motion required to be heard and the notice of
that hearing may be conducted on less than 3 days advance notice
the hearing thereof shall be served in such a manner as to ensure
its receipt by the other party at least three (3) days before the
EXCEPTION: Excepted from the hearing requirement are the non-
date of hearing, unless the court for good cause sets the hearing
litigable or non-litigated motions
on shorter notice. (4a)

133
 Those motions that may be acted upon by the court
without prejudicing the rights of the adverse party
E.g. motion for extension
The Exceptions to the 3-Day Notice Rule
1. Ex parte motions
2. Urgent motions
3. Motions agreed upon by the parties to be heard on shorter
notice or jointly submitted by the parties
4. Motions for summary judgment which must be served at
least 10 days before its hearing (See Sec. 3, Rule 35)
As to Ex-Parte Motions
- While a motion may be allowed to be filed ex parte, it does
not necessarily mean that the hearing thereof shall be
dispensed with
- Court may still hear the same ex parte since the court can
very well see to it that the absent partys interests will be
duly protected
- An ex parte proceeding merely means that it is taken or
granted at the instance and for the benefit of one party,
and without notice to or contestation by any party
adversely affected
Test as to Necessity of Notice
The true test as to the necessity of the notice of motion in a
case not specifically provided for whether the court may act on the
motion without prejudicing the rights of the adverse party. If so, it
need not be set for hearing.
SECTION 5 - Notice of hearing.The notice of hearing shall be
addressed to all parties concerned, and shall specify the time and
date of the hearing which must not be later than ten (10) days
after the filing of the motion. (5a)
Breakdown of Provision
A. The notice of hearing shall:
1. Be addressed to all parties concerned
2. Specify the time and dating of the hearing
The date must not be later than 10 days after
filing of the motion
Effect of Defective Notice
A motion that fails to religiously comply with the
mandatory requirements of Sec. 5 is pro forma and presents no
question which merits the attention and consideration of the court
(Barcelonia v. CA)
Such defect is not cured by a subsequent action of the
Court (Ramos v. CA)
Note: When a party is represented by a lawyer, service should be
made upon the lawyer and not upon the client.
- Notice upon the party himself is not considered in law and
is invalid
- Unless service upon party himself is ordered by the court
- Service to a party is only allowed if:
1. Party is not represented by counsel
2. If service upon the party himself is ordered by court
The Notice Must be Directed to Parties
- Sec. 5 expressly and unequivocally requires that the notice
shall be directed to the parties concerned
- The rule commanding the movant that the notice of
hearing shall be directed to the parties concerned does not
provide for any qualification or exception
- Hence, a manifestation and motion sent by ordinary mail
addressed to the clerk setting the motion for hearing
134
without furnishing the other party with a copy thereof is
defective (BPI v. Far East Molasses)
- Defect is fatal
However, there are exceptions to the strict application of this rule:
1. Where rigid application will result in manifest failure or
miscarriage of justice (Goldloop Properties Inc. v. CA)
2. Where the interest of substantial justice will be served
(Tamargo v. CA)
3. Where the resolution of the motion is addressed solely to
the sound and judicious discretion of the court (Galvez v.
CA)
4. Where the injustice to the adverse party is not
commensurate to the degree of his thoughtlessness in not
complying with the procedure prescribed (Galang v. CA)
Purposes of Setting Date of Hearing Purpose of setting the date of
the hearing within a reasonable time after filing of motion is to avoid
delay.
However, in the event service of motion with notice of
hearing is done by registered mail on all parties concerned, the date
of hearing should be at least 3 days after receipt thereof by other
parties.
SECTION 6 - Proof of service necessary.No written motion set
for hearing shall be acted upon by the court without proof of
service thereof. (6a)
Rule on Strict Application
- Sec. 4, 5, and 6 requires notice to be:
1. Sent at least 3 days before the hearing
2. Directed to parties concerned
3. Stating the time and place of hearing of the motion
4. With proper notice thereof
- Failing to comply with these requirements makes the
motion a mere scrap of paper and the judge will not take
cognizance thereof
The same is also true where the date for the hearing of the motion is
unintelligible, hence fatally defective and without legal effect.
(Republic Planters Bank, et al. v. IAC, et al.)
Note: An alias writ of execution need no hearing since it may be
construed as an order directing the sheriff to implement the original
writ.
- The motion need not be litigated since the court may act
upon the same without prejudicing the rights of the
adverse party
- Since there was no need for a hearing, provisions of Sec. 4
and 6 are inapplicable
SECTION 7 - Motion day.Except for motions requiring
immediate action, all motions shall be scheduled for hearing on
Friday afternoons, or if Friday is a non-working day, in the
afternoon of the next working day. (7a)
Breakdown of Provision
A. All motions shall be scheduled for hearing:
1. On Friday afternoons
2. If Friday is a non-working day, then the afternoon of
the next working day
B. Except for motions requiring immediate actions
Note: No motion day in the SC
 SECTION 8 - Omnibus motion.Subject to the provisions of
section 1 of Rule 9, a motion attacking a pleading, order,
judgment, or proceeding shall include all objections then
available, and all objections not so included shall be deemed
waived. (8a)

Omnibus Motion Rule a motion attacking a pleading, order,

judgment, or proceeding; shall include all objections then available.
Objections not included shall be deemed waived except the defenses
referred in Sec. 1, Rule 9

Purpose to require the movant to raise all available exceptions for

relief during a single opportunity so that multiple and piece-meal
objections may be avoided

The present rule expressly subjects an omnibus motion to the

provisions of Sec. 1, Rule 9
As such, the omnibus motion rule shall not apply when it
appears from the pleadings or evidence on record:
1. That the court has no jurisdiction over the subject matter
2. That there is another action pending between the same
parties or the same cause of action
3. That the action is barred by a prior judgment or by statute
of limitations

SECTION 9 - Motion for leave.A motion for leave to file a

pleading or motion shall be accompanied by the pleading or
motion sought to be admitted. (n)

Purpose
- Evident purpose is to provide the court with the basis for
determining the merits of the motion for leave of court to
file the desired pleading or motion
- Such pleading or motion sought to be admitted is now
required to be attached to the motion for leave
Otherwise, the latter may be denied
- Since the court will have to fathom the contents of the
projected pleading and the opposing party to intelligently
formulate his opposition

This particularly assumes significance in the filing of amended and

supplemental pleadings both of which require prior leave of court
- It also minimizes the time element when responsive
pleadings would be required
- When an amended or supplemental complaint is attached
to the motion for its admission and copy is served on
defendant, his period to answer immediately runs from his
receipt of the court order admitting the same

SECTION 10 - Form.The Rules applicable to pleadings shall

apply to written motions so far as concerns caption, designation,
signature, and other matters of form. (9a)

END OF RULE 15

135
NOTES ON RULE 15

136
 Period to file: Within the time for, but before filing of, the answer to
RULE 16 the complaint or pleading asserting a claim
MOTION TO DISMISS
Exceptions:
For special reasons which may be allowed even after
trial has begun, a motion to dismiss may be filed
SECTION 1 - Grounds.Within the time for but before filing the The court has allowed the filing of a motion to dismiss
answer to the complaint or pleading asserting a claim, a motion to where the evidence that would constitute a ground
dismiss may be made on any of the following grounds: for dismissal was discovered during trial
(a) That the court has no jurisdiction over the person of the
defending party; Note: Complaints cannot be dismissed on ground not alleged in a
(b) That the court has no jurisdiction over the subject motion to dismiss
matter of the claim; - The motion may be based on only one of the grounds
(c) That venue is improperly laid; enumerated in Sec. 1, Rule 16
(d) That the plaintiff has no legal capacity to sue; - But when it appears from the pleadings or evidence on
(e) That there is another action pending between the same record that:
parties for the same cause; 1. The court has no jurisdiction,
(f) That the cause of action is barred by a prior judgment 2. That there is another action pending between the
or by the statute of limitations; same parties for the same cause
(g) That the pleading asserting the claim states no cause of 3. The action is barred by prior judgment or the statute
action; of limitations
(h) That the claim or demand set forth in the plaintiffs - In the forgoing, the court shall dismiss the claim
pleading has been paid, waived, abandoned, or
otherwise extinguished; A motion to dismiss hypothetically admits the truth of the facts
(i) That the claim on which the action is founded is alleged in the complaint
unenforceable under the provisions of the statute of - Such admission is only limited to all material and relevant
frauds; and facts which are well pleaded in the complaint
(j) That a condition precedent for filing the claim has not - It does not admit to the following:
been complied with. (1a) 1. The truth of mere epithets charging fraud, nor
allegations of legal conclusions, erroneous statements
of law
NATURE 2. Inferences or conclusions drawn from such facts,
even if alleged in the complaint
Types of Dismissal of Action 3. Inferences or conclusions from facts not stated
1. Motion to dismiss before Answer (Rule 16) 4. To matters of evidence, surplusage or irrelevant
2. Motion to dismiss under Rule 17 matters
5. Allegations of fact the falsity of which is subject to
Upon notice by plaintiff;
judicial notice
Upon motion by plaintiff; or
6. Facts legally impossible; facts inadmissible in
Due to fault of plaintiff
evidence; facts which do not appear by record;
3. Motion to dismiss called a demurrer to evidence after
documents not include in the pleadings
plaintiff has completed presentation of his evidence under
Rule 33
4. Dismissal of an appeal
FIRST GROUND
NO JURISDICTIOON OVER THE PERSON OF DEFENDING PARTY
Note: A motion to dismiss under this Rule differs from a motion to
dismiss under Rule 33 on demurrer to evidence:
See earlier rules on Jurisdiction
MOTION TO DISMISS DEMURRER TO EVIDENCE The jurisdictional grounds which may be invoked are confined to
Grounded on preliminary Based on insufficiency of lack of jurisdiction over the person of the defending party and the
objections evidence subject-matter of the claim.
May be filed by any defending May be filed only by the
party against whom a claim is defendant against the Note also that the term used is not limited to the defendant but
asserted in the action complaint of the plaintiff applies to all defending parties against whom are claims are asserted
Should be filed within the time through other initiatory pleadings
May be filed for the dismissal of
for but prior to the filing of the - Jurisdiction is obtained over the original defendant by
the case only after the plaintiff
answer of the defending party service of summons
has completed the presentation
to the pleading asserting the - Jurisdiction is obtained over other defending parties by
of his evidence
claim against him service of the pleading containing the claim
If denied, defendant must file
If denied, defendant may
an answer, or else he may be Discussion of the Court in La Naval Drug Corp. v. CA, et al.
present evidence
declared in default Court held that while lack of jurisdiction over the person of
If granted, plaintiff appeals and defendant may be duly and seasonably raised, his voluntary
If granted, plaintiff may appeal
the order of dismissal is appearance in court without qualification is a waiver of such
or if subsequent case is not
reversed, defendant loses his defense.
barred, he may re-file the case
right to present evidence - Even if he challenges the jurisdiction of the court over his
person and invokes other grounds for the dismissal of the
action under Rule 16, he is not deemed to be in estoppel or

137
 to have waived his objection to jurisdiction over his
person
- The defendant may after all invoke his objections
alternatively, hence he would not thereby be said to
inconsistently challenge the jurisdiction of the court and at
the same time calls it to exercise its jurisdiction
a. The first questions the jurisdiction over his person
b. The second, assuming the court has jurisdiction over
his person, impugns its jurisdiction over other
aspects of the case
Note also that Sec. 20, Rule 14 makes a categorical statement that
the inclusion in a motion to dismiss of other grounds aside from lack
of jurisdiction over the person of the defendant shall not be deemed
voluntary appearance on his part.
SECOND GROUND
NO JURISICTION OVER THE SUBJECT MATTER
See earlier rules on Jurisdiction
Note that the rule refers to the subject matter of each particular
claim and not only to that of the suit. So other initiatory pleadings
included.
Jurisdiction over the subject-matter
- Is determined by the allegations in the complaint
- Regardless of whether or not the plaintiff is entitled to
recover upon all of the claims asserted therein
- Defenses asserted in answer of motion to dismiss are not
to be considered for this purpose (Magay v. Estandian)
Note: Where a party invokes the jurisdiction of a court to obtain
affirmative relief and fails, he cannot thereafter repudiate such
jurisdiction. While the issue of jurisdiction may be raised at any
time, he is estopped as it is tantamount to speculating on the
fortunes of litigation (Crisostomo, et al. v. CA)
Note: Lack of jurisdiction over the subject matter may be invoked as
a defense at any stage of the action, even if no such objection was
raised in a motion to dismiss or in the answer, and it may be so
claimed even after the trial had commenced (Ker & Co. v. CTA)
THIRD GROUND
IMPROPER VENUE
See earlier rules on Venue
Jurisprudence:
1. Where a motion to dismiss for improper venue is
erroneously denied, the remedy is prohibition (Enriquez
v. Macadaeg)
2. Where the plaintiffs filed the action in a court of improper
venue and thereafter submitted to its jurisdiction, the
issue of venue was thereby waived and they are in
estoppel to repudiate or question the proceedings in said
court (Vda. De Suan, et al. v. Cusi, et al.)
3. Objection to venue is also impliedly waived where the
party enters into trial, cross-examines the witnesses of the
adverse party and adduces evidence (Paper Industries
Corp of the Philippines v. Samson et al.)
138
FOURTH GROUND
PLAINTIFF HAS NO LEGAL CAPACITY TO SUE
This refers to the lack of necessary qualifications to appear in the
case because one is not in full exercise of his civil rights.
E.g. Minority, insanity, coverture, lack of juridical
personality, incompetence, civil interdiction, lack of license to
operate (in case of foreign corporations)
Note: Where the plaintiff is not the real party-in-interest, the ground
for the motion to dismiss is lack of cause of action.
Jurisprudence
1. Lack of legal capacity to sue means that the plaintiff is
either not in the exercise of his civil rights or does not have
the character or representation that he claims (Lunsod v.
Ortega)
2. A foreign corporation doing business in the Philippines
without the requisite license cannot maintain any suit in
the Philippines (Sec. 133, Corp. Code)
a. But not where the case involves a mere isolated
transaction (Aetna Casualty & Surety Co. Inc. v.
Pacific Star Line)
b. But if the said foreign corporation is sued in our
courts, it may seek relief against the wrongful
assumption of jurisdiction and its petition therefor
need not aver its legal capacity (Time, Inc. v. Reyes)
3. The issue of plaintiffs lack of legal capacity to sue cannot
be raised for the first time on appeal where the defendant
dealt with the former as a party in the proceedings below
(Univ. of Pangasinan Faculty Union v. Univ. of
Pangasinan)
FIFTH GROUND
LITIS PENDENTIA
Litis Pendentia as a ground for the dismissal of a civil action refers to
that situation wherein another action is pending between the same
parties for the same cause of action.
Requisites of Litis Pendentia
1. Identity of the parties or at least such parties representing
the same interests in both actions
2. There is substantial identity in the cause of action and
relief sought, the relief being founded on the same facts;
and
3. The identity in the two cases should be such that any
judgment that may be rendered in one, regardless of which
party is successful would amount to res judicata in the
other case
Note: A motion to dismiss may be filed in either suit, not necessarily
in the one instituted first
Purpose
- A sanction of public policy against multiplicity of suits
- The latter action is deemed unnecessary and vexatious
When Action is Deemed Pending
- Once the complaint is filed and there is a pending action,
lack of knowledge of filing is of no moment
- The Rules merely state that another action pending
between the same parties for the same cause is a ground
for dismissal
- The rule does not contemplate that there be prior pending
action, since it is enough that there is a pending action
 - Neither is it required that the party be served with
summons before lis pendens should apply (Andersons
Groups, Inc. v. CA)
Which of the Two Actions Shall be Dismissed?
GENERAL RULE: Priority-in-Time Rule
- The general rule is that it should be the later case
- Second case should be dismissed not only as a matter of
comity with a co-ordinate and co-equal court but also to
prevent confusion that might seriously hinder the
administration of justice
Note: That there is no hard and fast rule that governs the
determination of which of the actions should be abated
Court merely says that generally, it is the second case
which is abated
Law does not specifically require that the pending
action which would hold in abatement the other be a
prior pending action
Criteria in Determining Which Action Shall be Dismissed:
1. The More Appropriate Rule
a. The court held in Andresons Groups Inc. v. CA that
the criterion used in determining which case should
be abated is which is the more appropriate action or
which the court would be in a better position to serve
the interests of justice
b. Given the pendency of two action, the following are
relevant considerations in determining which action
should be dismissed (Allied Banking Corp v. CA):
(1) The date of the filing, with reference generally
given to the first action filed to be retained;
(2) Whether the action sought to be dismissed was
filed merely to pre-empt the later action or to
anticipate its filing and lay the basis for its
dismissal
(3) Whether the action is the appropriate vehicle for
litigating the issues between the parties
c. Examples:
(1) An action for unlawful detainer was considered
as more appropriate than an action for
declaratory relief with consignation (Teodoro v.
Mirasol)
(2) A case for consignation was dismissed, albeit
filed earlier, due to the institution of a quieting
of title suit in Ramos v. Peralta. SC held that the
2nd case has broader scope of inquiry
2. The Interest of Justice Rule
a. In applying this standard, what was asked was which
court would be in a better position to serve the
interests of justice
b. Taking into account:
(1) The nature of the controversy
(2) The comparative accessibility of the court to the
parties
(3) Other similar factors
c. Example: In a case of custody, the case filed with the
CFI was dismissed to give way to the case filed in the
Juvenile and Domestic Relations Court (Roa-
Magsaysay v. Magsaysay)
3. The Anticipatory Rule
a. The bona fide or good faith of the parties is a crucial
element
139
(1) The second case shall not be abated if not
brought to harass or vex
(2) The first case shall be abated if it is merely an
anticipatory action or, an anticipatory defense
against an unexpected suit a clever move to
steal the march from the aggrieved party
b. Example: An action for collection ahead of an action
for a statement of account apparently to enable it to
pay its obligation, is the appropriate case for
determining the parties rights (Allied Banking Corp.
v. CA)
Discussion on the Requisites of Litis Pendentia
1. Identity of Parties
Only substantial, not absolute, identity of parties is
required
Substantial identity when there is a community of
interest between a party in the first case and a party
in the second case albeit the latter was not impleaded
in the first case
E.g. Where the vendor was impleaded as defendant
in 1st case, it cannot be denied that the interests of the
buyer are inextricably with those of vendor such that
the formers exercise of her rights as buyer of the land
foreclosed by vendor, is conditioned on the latters
defense of the validity of foreclosure procedures in
the civil case for annulment of foreclosure sale
(Sempio v. CA)
2. Identity of Rights
Identity of rights is regardless of form of action
E.g. While in the first case, an action is for annulment
of foreclosure sale against vendor, and 2nd case is an
action for injunction filed by purchaser
a. What is dissimilar is only the form by which the
purchaser has sought to enforce her right as new
owner of land
b. There is only one cause of action running
through the purchasers litigious undertaking:
the continued violation of what she believes to
be her right to exclusive possession and
enjoyment of the land
3. Identity in the aforestated particulars
A plea of the pendency of a prior action is not
available unless the prior action is of such a character
that, had judgment been rendered therein on the
merits, such a judgment would be conclusive between
the parties and could be pleaded in bar of the 2nd
action
If the final judgment in one case is not conclusive in
the other case, this requirement is not met
Note: The determination of whether there is an identity of causes of
action for purposes of litis pendentia is inextricably linked with that
of res judicata, each constituting an element of the other.
Examples
1. There is litis pendentia where 1st case is for breach of lease
contract and damages and 2nd case is for rescission of
contract and damages
There is identity of causes validity of the agreement
is in issue
2. There is no litis pendentia where the 1st case filed before
the SEC is to declare a contract of lease void for being ultra
vires, and the 2nd case before the RTC for recovery of
possession of the property subject of the contract (Casil v.
CA)
In the 1st focus was on the alleged ultra vires act and
not the contract itself
 In the 2nd validity of the contract of lease was the
principal issue
No similarity in rights and reliefs prayed for
Also a difference in jurisdiction
Judgment in one will not amount to res judicata;
Judgment in SEC prohibiting the ultra vires act will
not settle the issue in the RTC, those of possession,
validity, and damages
3. Case before the DARAB for declaration of tenancy,
accounting, recovery of sum of money plus damages,
pendency of such is a bar to an action for forcible entry
involving the same parties, identity of rights asserted,
relief founded on the same facts (Tirona v. Alejo)
4. Where the 1st action is for collection of mortgage
indebtedness, while the 2nd action was to annul mortgage,
the 2nd case should be dismissed (Marcelo v. Merchant
Banking)
5. Where the 1st action is for recovery of land and the 2nd is
for quieting of title, the 2nd case should be dismissed
(Francisco v. Vda. De Blas)
The cloud sought to be removed in the 2nd case, which
is the issue of ownership, had already been raised in
the 1st case
6. As to counterclaims, it must be a compulsory one
(Valencia v. CA)
SIXTH GROUND
RES JUDICATA AND PRESCRIPTION
Requisites of Res Judicata
1. Previous final judgment or order
2. Jurisdiction over the subject matter and the parties by the
court rendering it
3. Judgment upon the merits
4. There must be identity of parties, of the subject matter,
and of cause of action between the first and second actions
a. However, if the allegations of the complaint, or
evidence presented, clearly indicate that the action
has prescribed, or where there is no issue in fact as to
prescription, defense of prescription is not deemed
waived by failure to allege the same (Chua Lamko v.
Dioso)
2. Estoppel and prescription cannot be invoked against the
State (Republic v. CA)
3. A motion to dismiss on the ground of prescription will be
given due course only if the complaint shows on its face
that the action has already prescribed (Sison v. McQuaid)
a. If it does not so appear, the determination of the
motion to dismiss must be deferred until trial
(Cordova v. Cordova)
See however, Sec. 3 which prohibits deferment
of the resolution of the motion
b. So since deferment is no longer allowed:
(1) Evidence may be received in support of the
motion under Sec. 2, Rule 16; or
(2) The motion to dismiss should be denied without
prejudice to the complaints dismissal if
evidence disclose that the action had already
prescribed (Sec. 1, Rule 9)
4. Prescription cannot be invoked as a ground if the contract
is alleged to be void ab initio (Ruiz v. CA)
a. But where the prescription depends on whether the
contract is void or voidable, there must be a hearing
(Landayan v. Bacani)
5. Petition for quieting of title although essentially
reconveyance should not be dismissed on the ground of
prescription where it is alleged that plaintiff is in
possession of the property (Faja v. CA)
6. Action for annulment of contract on the ground that it is
null and void for lack of consent does not prescribe
(Castillo v. Heirs of Madrigal)
a. But action for damages arising therefrom prescribes

Note: There could be res judicata without a trial, such as in: SEVENTH GROUND
1. Judgment on the pleadings (Rule 34) NO CAUSE OF ACTION
2. Summary Judgment (Rule 35)
3. Order of dismissal under Sec. 3, Rule 17 Complaint States No Cause of Action When the ground for
dismissal is that the complaint states no cause of action, such fact
Jurisprudence: can be determined only from the facts alleged in the complaint.
1. The trial court can take judicial notice of the finality of a
judgment previously decided by it and the fact that the Note: It is the FAILURE to state a cause of action and not LACK or
same case is now pending before it, the defeated party ABSENCE of a cause of action that is a ground for a motion to dismiss
having refilled the same (Baguio v. Jalagat, et al.) - The former means that there is insufficiency in the
allegations in the pleading
Prescription A motion to dismiss on the ground of prescription will - The latter means that there is insufficiency in the factual
be given due course only if the complaint shows on its face that the basis of the action
action has already prescribed
A cause of action exists if the following elements are present:
Prescription v. Laches 1. A right in favor of the plaintiff by whatever means and
under whatever law it arises or is created
PRESCRIPTION LACHES 2. An obligation on the part of the named defendant to
It is concerned with the fact of It is concerned with the effect of respect or not to violate such right; and
delay delay 3. An act or omission on the part of such defendant violative
It is a matter of time It is a matter of equity of the right of the plaintiff or constituting a breach of the
Statutory Non-statutory obligation of the defendant to the plaintiff for which the
latter may maintain an action for recovery of damages
Applies at law Applies in equity
Based on fixed time Not based on fixed time
Rule: The allegations in the complaint are sufficient to constitute a
cause of action against the defendants, if, admitting the facts alleged,
Jurisprudence
the court can render a valid judgment upon the same in accordance
1. Defense of prescription is waived and cannot be
with the prayer therein.
considered on appeal if not raised in the trial court
(Ramos v. Osorio)

140
Test of Sufficiency
- It is axiomatic under this ground that the defendant is
regarded as having admitted all the averments in the
complaint, hypothetically
- Test of sufficiency of the facts found in the petition, as
constituting a cause of action, being whether or not,
admitting the facts alleged, the court could render a valid
judgment upon the same in accordance with the prayer
In determining the sufficiency of statements, only
those statements in the complaint may properly be
considered
- The insufficiency of the cause of action must appear on the
face of the complaint
- Note, however, that ambiguities and lapses in the language
of these allegations may be understood or clarified
through a recourse to the annexes, related pleadings, or
other submissions of plaintiffs
Doubtful Veracity is NOT a Ground
If the motion assails directly or indirectly the veracity of
the allegations, it is improper to grant the motion upon the
assumption that the averments therein are true and those of the
complaint are not.
- Sufficiency should be tested on the strength of the
allegations of facts contained in the complaint, no other
- The SC has uniformly ruled that the court may not inquire
into the truth of the allegations, and find them to be false
before a hearing is had on the merits
- If the court finds the allegations to be sufficient but doubts
their veracity, it is incumbent upon the court to deny the
motion and require defendant to answer
- Veracity of assertions should be asserted at trial on merits
When Other Facts May be Considered Other facts not alleged in the
complaint may be considered where:
1. The motion to dismiss was heard with submission of
evidence; or
2. If documentary evidence admitted by stipulation disclose
facts sufficient to defeat the claim (Tan v. Dir. Of Forestry)
3. Or those admitted during hearing on preliminary
injunction (Santiago v. Pioneer Savings and Loan Bank)
Note:
- Other pleadings may be considered
- All documents attached must also be considered
Jurisprudence
1. Even if the complaint stated a valid cause of action, a
motion to dismiss for insufficiency of cause of action will
be granted if documentary evidence admitted by
stipulations discloses facts sufficient to defeat the claim
and enables the court to go beyond the complaint. (Tan v.
Dir. Of Forestry)
2. Courts should exercise utmost care and circumspection in
passing upon motions to dismiss based on this ground
(Militante v. Antero et al.)
3. Where the facts alleged to make out the principal cause of
action and relief are insufficient, the case should be
dismissed and plaintiff cannot rely on ancillary matters in
the complaint to make out a cause of action.
a. When the action is for cancellation of defendants title
but the allegations therein are inadequate, plaintiff
cannot lean on his allegations of supposed
improvements made on the land as these are purely
ancillary to the principal relief sought (Gabila v.
Barriaga)
141
b. Neither can such defect be cured by allegations in a
complaint in intervention filed by a third party
(Nacar v. Nistal et al.)
4. Where a complaint does not contain all facts constituting
the plaintiffs cause of action, it is subject to a motion to
dismiss.
a. However, if defendant permits evidence to be
introduced, without objection, which supplies
necessary allegation in such defective complaint, this
evidence cures the defects of such complaint which
may no longer be dismissed on that account (Pascua
v. CA, et al.)
5. An action cannot be dismissed on the ground that the
complaint is vague or indefinite. The remedy of the
defendant is to move for a bill of particulars or avail of the
proper mode of discovery (Galeon v. Caleon, et al.)
EIGHTH GROUND
WAIVER, ABANDONMENT, EXTINGUISHMENT
See Art. 1231, CC; See ObliCon Notes
NINTH GROUND
UNENFORCEABILITY UNDER THE STATUTE OF FRAUDS
See Art. 1403, CC; See ObliCon Notes
Unlike a motion to dismiss on the ground that the complaint states
no cause of action, a motion invoking the Statute of Frauds may be
filed even if the absence of a cause of action does not appear on the
face of the complaint. Such absence may be proved during the
hearing of the motion to dismiss on said ground. (Yuviengco et al. v.
Dacuycuy, etc., et al.)
TENTH GROUND
NON-COMPLIANCE WITH CONDITION PRECEDENT
Some Relevant Provisions:
1. Art. 222 No suit shall be filed or maintained between
members of the same family unless it should appear that
earnest efforts toward a compromise have been made, but
the same have failed, subject to the limitations in Art. 2035
2. Art. 2035 No compromise upon the following questions
shall be valid:
(1) The civil status of persons
(2) The validity of a marriage or a legal separation
(3) Any ground for legal separation
(4) Future support
(5) The jurisdiction of courts
(6) Future legitime
The Rule is Not Applicable:
1. Where there could be no valid compromise
This is a mere condition precedent that may be cured
by amendment
2. The rule does not apply where one of the parties is a
stranger
The phrase between members of the same family
should be construed in the light of Art. 150 FC
3. The rule is applicable only in ordinary civil actions and is
not applicable in special proceedings
4. Where the agreement contains an arbitration clause, it is
premature to file a third party complaint (Sea-Land
Service Inc. v. CA)
 5. No need of prior referral to DAR to determine Existence of
Tenancy Relationship
Note that PD 316 and 1038, which require a
preliminary determination of the existence of a
tenancy relationship have already been expressly
repealed by RA 6657
Jurisprudence:
1. Where the plaintiff has not exhausted all administrative
remedies, the complaint not having alleged the fact of such
exhaustion, the same may be dismissed for lack of cause of
action (Pineda v. CFI Davao, et al.)
a. If this objection is not raised at a proper time, it is
waived and the court can try the case (CN Hodges v.
Mun. Board, etc., et al.)
2. Where the complaint does not state that it is one of the
excepted cases, or it does not allege prior availment of
conciliation process, or it does not have a certification that
no conciliation or settlement had been reached under P
1508, case should be dismissed on motion (Morata v. Go,
et al.)
3. Where the defendant had participated in the trial court
without any invocation of PD 1508, and the judgment
therein had become final and executory, but said
defendant thereafter sought the annulment of the decision
for alleged lack of jurisdiction, the same was denied under
the doctrine of estoppel and laches (Royales, et al., v. IAC)
4. Non-compliance with PD 1508 only results in lack of cause
of action or prematurity (Vda. De Borromeo v. Pogoy)
a. This objection, not being jurisdictional in nature, is
deemed waived if not raised in a motion to dismiss
(Ebol v. Amin, et al.)
5. The fact that the suit is exclusively between members of
the same family is a ground for dismissal if no earnest
efforts at compromise had been made (Art. 222 CC, Art.
151, FC)
a. But this is not available where a compromise of the
controversy is not permitted by law (Art. 2035 CC)
b. Failure to allege in the complaint that earnest efforts
at compromise had been made is not a ground for a
motion to dismiss if one of the parties is a stranger
(Magbatela v. Gonong)
c. Or where the suit is between collateral relatives who
are not brothers or sisters, and, therefore, not
members of the same family (Mendez v. Bionson)
SECTION 2 - Hearing of motion.At the hearing of the motion, the
parties shall submit their arguments on the questions of law and
their evidence on the questions of fact involved except those not
available at that time. Should the case go to trial, the evidence
presented during the hearing shall automatically be part of the
evidence of the party presenting the same. (n)
Breakdown of Provision:
A. At the hearing of the motion the parties shall submit:
1. Their arguments on the questions of law
2. Their evidence on the questions of fact involved
a. EXCEPT those not available at the time
B. Should the case go to trial, evidence presented during
hearing shall automatically be part of the evidence of the
party presenting the same
The hearing should be conducted as in ordinary hearings
- Parties should be allowed to present evidence and the
evidence should be taken down
- EXCEPT: when the motion is based on the ground of
insufficiency of cause of action which must generally be
142
determined on the basis of the facts alleged in the
complaint
Lack of formal hearing of a motion to dismiss is not fatal where the
issues raised were fully discussed in the motion and opposition.
(Castillo v. CA)
SECTION 3 - Resolution of motion.After the hearing, the court
may dismiss the action or claim, deny the motion, or order the
amendment of the pleading.
The court shall not defer the resolution of the motion for
the reason that the ground relied upon is not indubitable.
In every case, the resolution shall state clearly and
distinctly the reasons therefor. (3a)
The Court may:
1. Dismiss the action;
2. Deny the motion; or
3. Order the amendment of the pleading
Note: In resolving the motion to dismiss, the court is required to give
reasons for its resolution.
- The resolution shall state clearly and distinctly the reasons
- It proscribes the common practice of perfunctorily
dismissing the motion for lack of merit
- Prohibits minute resolutions; it requires that the
resolution shall state clearly and distinctly the reasons
therefor
Now, the motion to dismiss must be granted or denied. Resolution
thereof cannot be deferred (National Irrigation Administration v.
CA)
Jurisprudence:
1. An order denying a motion to dismiss is interlocutory and
not appealable (Harrison Foundry & Machinery, et al. v.
Harrison Foundry Workers Assoc.)
a. But if the denial was with grave abuse of discretion or
is without or in excess of jurisdiction, prohibition will
lie (Moreno v. Macadaeg)
b. Certiorari and prohibition are proper remedies from
such order of denial (Alban v. Madarang, et al.)
2. An order granting a motion to dismiss is final and
appealable (Monares v. CNS Enterprises)
3. However, if the order of the dismissal is not an
adjudication on the merits, as where the venue is
improperly laid, that the plaintiff has no legal capacity to
sue, litis pendentia, that the complaint states no cause of
action or that a condition precedent for filing the suit has
not been complied with, such dismissal is not a bar to
another action when the circumstances change and
warrant the refiling and prosecution of the same.
4. Where the defect is curable by amendment as where the
complaint states no cause of action, and the court refuses
to allow amendment the same is reversible error
(Macapinlac v. Repide)
a. However, the plaintiff must move for leave to amend
the complaint before dismissal order becomes final
(Constantino v. Reyes)
 SECTION 4 - Time to plead.If the motion is denied, the movant
shall file his answer within the balance of the period prescribed
by Rule 11 to which he was entitled at the time of serving his
motion, but not less than five (5) days in any event, computed
from his receipt of the notice of the denial. If the pleading is
ordered to be amended, he shall file his answer within the period
prescribed by Rule 11 counted from service of the amended
pleading, unless the court provides a longer period. (4a)
Breakdown of Provision:
1. If the motion is denied, movant shall file his answer:
a. Within the balance of the period prescribed by Rule 11
to which he was entitled at the time of serving his
motion
b. But not less than 5 days in any event, computed from
his receipt of the notice of denial
2. If pleading is ordered to be amended, he shall file his answer
a. Within the period prescribed by Rule 11 counted from
service of amended pleading
b. Unless the court provides a longer period
When the period of filing the answer has been suspended, as by
defendants filing of a motion for a bill of particulars, a motion to
dismiss may thereafter be filed within the remaining period to file
the answer since the time to file the latter is coterminous with that
of the former. (Dumanan et al. v. Butuan City Rural Bank, et al.)
SECTION 5 - Effect of dismissal.Subject to the right of appeal, an
order granting a motion to dismiss based on paragraphs (f), (h)
and (i) of section 1 hereof shall bar the refiling of the same action
or claim. (n)
Effects of Action on Motion to Dismiss
ACTION REMEDY
Order granting
motion to dismiss is a
Re-file the complaint
final order, without
prejudice
Order granting
motion to dismiss, Appeal
with prejudice
File answer and proceed with the trial.
If decision is adverse, appeal therefrom
Order denying the and raise as error the denial of the
motion to dismiss is motion to dismiss.
interlocutory If there is grave abuse of discretion
amounting to lack or excess of
jurisdiction, certiorari or prohibition may
be filed under Rule 65
Effect of Dismissal
GENERAL RULE: The action or claim may be re-filed
EXCEPTION: The action cannot be re-filed if it was dismissed on any
of these grounds:
1. Prescription
2. Unenforceability under the Statute of Frauds
3. Res judicata; and
4. Extinguishment of claim or demand
Note: in these instances, remedy of plaintiff is appeal since an
order sustaining the motion to dismiss was an adjudication on
the merits
143
Jurisprudence
1. When the ground is based on fact that the action is
premature, it is not a judgment on the merits (Castano v.
Castano)
2. Dismissal based on lis pendens is not a judgment on
merits, hence, no res judicata (Moldes v. Mullet)
3. On the matter of prescription:
a. If what is referred to is that the cause of action is
barred by the statute of limitations, that is the action
has prescribed (Art. 1139 1155), the motion to
dismiss shall be grounded on Sec. 1, par. (f)
b. If what is involved us the fact that the ownership or
other real rights claimed have prescribed, or a case of
extinctive prescription is involved (Art. 1117 to
1138), then the ground for the motion to dismiss
should properly be based on Sec. 1, par. (h) since the
claim has been extinguished
SECTION 6 - Pleading grounds as affirmative defenses.If no
motion to dismiss has been filed, any of the grounds for dismissal
provided for in this Rule may be pleaded as an affirmative defense
in the answer and, in the discretion of the court, a preliminary
hearing may be had thereon as if a motion to dismiss had been
filed. (5a)
The dismissal of the complaint under this section shall be
without prejudice to the prosecution in the same or separate
action of a counterclaim pleaded in the answer. (n)
If no motion to dismiss had been filed, any of the grounds for
dismissal may be pleaded as affirmative defenses and a preliminary
hearing may be had at courts discretion.
The 2nd paragraph clarified the effect of dismissal of the complaint
upon a counterclaim duly pleaded in the action
Note: If the defendant would not want to file a counterclaim, he
should not file a motion to dismiss
- Instead, he should allege the grounds of a motion to
dismiss as affirmative defenses in his answer with a
counterclaim
- A preliminary hearing may be had thereon, and in the
event the complaint is dismissed, defendant can prosecute
his counterclaim
Note: A motion to dismiss is not a responsive pleading, hence the
filing thereof does not preclude the plaintiff from doing what he can
lawfully do before the defendant files his answer (Rodriguez v.
Fernan)
Regalado notes:
- Any of the grounds for dismissal provide for in this rule,
may be alleged as affirmative defenses
- And a preliminary hearing may be had thereon if no
motion to dismiss on any of said grounds had been filed
and resolved
- As to other affirmative defenses:
a. Sec. 5(b), Rule 6 enumerates some affirmative
defenses such as fraud, illegality, and estoppel
b. Jurisprudence has also provided ultra vires acts and
unconstitutionality of the statute involved
Since the aforementioned defenses and others by way
of confession and avoidance are not among the
grounds for a motion to dismiss under Rule 16, while
the same may be alleged as affirmative defenses to be
proved during trial, it would not be proper to have a
preliminary hearing thereon under the circumstances
and for the purpose contemplated in this section
Note that the preliminary hearing authorized in this section is NOT Dismissal based on lis pendens is not a judgment on the merits,
mandatory, since the grant thereof may be had in the discretion of hence, no res judicata (Moldes v. Mullet)
the court.

If a motion to dismiss has been filed and denied:

- The order of denial is interlocutory END OF RULE 16
- The court may reconsider and reverse the order of denial
in its final judgment (Lasala v. Sarnate)
- Defendant may also reiterate the grounds thereof as
affirmative defenses
- BUT no preliminary hearing may be had thereon because a
motion to dismiss had already been filed and decided
(Rasdas v. Estenor)

The present rule makes it clear that any of the grounds for dismissal
provided for Rule 16 may be pleaded as an affirmative defense in the
answer if no motion to dismiss has been filed
- This means that if a motion to dismiss has been filed and
unconditionally denied, it need no longer be alleged in the
answer but may only be raised again on appeal

Note: The filing of a motion to dismiss is implied waiver of

compulsory counterclaim
- The dismissal of the main action results in the dismissal of
the counterclaim already filed
- As such, the filing of the motion to dismiss is an implied
waiver of the compulsory counterclaim
- Both are incompatible remedies
- As such, the defendant must choose one

DENIAL OF THE MOTION

GENERAL RULE: The denial of a motion to dismiss a complaint is an

interlocutory order and cannot be appealed or questioned
The remedy of the aggrieved party is to file an answer and
interpose as defenses the objections raised in his motion
to dismiss, proceed to trial, and in case of an adverse
decision, to appeal

EXCEPTION: When certiorari, prohibition, or mandamus is available

Where there is patent grave abuse of discretion in denying
the motion, the court may entertain the petition for
certiorari (National Investment Dev. Corp. v. Aquino)
If the grounds are indubitable, certiorari and prohibition is
available (Alice Van Dorn v. Romillo)
Or where the court in denying the motion acts without or
in excess of jurisdiction (Mendoza v. CA)
Under certain situations, recourse to certiorari or
mandamus is appropriate (Emergency Loan Pawnshop
Inc. v. CA):
1. When the trial court issued the order without or in
excess of jurisdiction
2. Where there is patent grave abuse of discretion by
the trial court
3. Appeal would not prove to be a speedy and adequate
remedy

EFFECT OF GRANT

When an order sustaining a motion to dismiss is final, in that it

disposes of the case in its entirety being an adjudication on the
merits, the remedy of the plaintiff is to appeal the order

When the ground is based on facts that the action is premature, it is

not a judgment on the merits (Castano v. Castano)

144
NOTES ON RULE 16

145
NOTES ON RULE 16

146

RULE 17
DISMISSAL OF ACTIONS
SECTION 1 - Dismissal upon notice by plaintiff.A complaint may
be dismissed by the plaintiff by filing a notice of dismissal at any
time before service of the answer or of a motion for summary
judgment. Upon such notice being filed, the court shall issue an
order confirming the dismissal. Unless otherwise stated in the
notice, the dismissal is without prejudice, except that a notice
operates as an adjudication upon the merits when filed by a
plaintiff who has once dismissed in a competent court an action
based on or including the same claim. (1a)
Breakdown of Provision:
A. A complaint may be dismissed by the plaintiff:
1. By filing a notice of dismissal; or
a. At any time before service of the answer
2. By filing a motion for summary judgment
B. Upon such notice, the court shall issue an order confirming
the dismissal
C. Dismissal is without prejudice; except:
1. Unless otherwise stated in the notice
2. A notice operates as an adjudication upon the merits
when filed by a plaintiff who has once dismissed in a
competent court an action based on or including the
same claim
Dismissal is effected not by motion but by mere notice of dismissal
which is a matter of right before the service of:
1. The answer; or
2. A motion for summary judgment
The Rule allows the plaintiff to withdraw his complaint by mere
notice
- The withdrawal is not automatic
- It requires an order by the court confirming the dismissal
- Until confirmed, the withdrawal does not take effect
- Note that the withdrawal must be before the defendant
has pleaded to the complaint
At that point, defendant has hardly been exposed to
any kind of damage or prejudice
Note: The dismissal as a matter of right ceases when an answer or a
motion for summary judgment is served on the plaintiff and not
when the answer or the motion is filed with the court.
Thus, if a notice of dismissal is filed by the plaintiff even
after an answer has been filed in court but before the responsive
pleading has been served on the plaintiff, the notice of dismissal is
still a matter of right.
The rule requires a court order confirming the dismissal
GENERAL RULE: Such dismissal is without prejudice
EXCEPTIONS:
1. Where the notice of dismissal so provides; or
2. Where the plaintiff has previously dismissed the same case
in a court of competent jurisdiction (Two Dismissal Rule)
3. Even where the notice of dismissal does not provide that it
is with prejudice but it is premised on the fact of payment
by the defendant of the claim involved (Serrano v.
Cabrera)
Two Dismissal Rule when the same complaint had twice been
dismissed by the plaintiff without order of the court by simply filing
a notice of dismissal, the 2nd dismissal operates as an adjudication on
the merits.
147
Note: If the plaintiff files a notice of dismissal proving therein a
reason that prevents the refiling of the complaint, the dismissal must
be deemed one with prejudice.
This happens when the notice provides that the plaintiff
recognizes the fact of prescription or extinguishment of the
obligation of the defendant for reasons stated in Sec. 5, Rule 16.
Jurisprudence
1. To be more precise, however, what causes the loss by a
plaintiff of the right to effect dismissal of the action by
mere notice Is not the filing of the defendants answer with
the court but the service on the plaintiff of said answer of a
motion for summary judgment (Go v. Cruz, et al.)
2. Where the first complaint for foreclosure of a chattel
mortgage for non-payment of certain installments due
thereunder was dismissed with prejudice, at the instance
of plaintiff under this section, another complaint later filed
by him for non-payment of installments subsequent to
those involved in the first case should not be dismissed on
the ground of res judicata since said 2nd case involved
different causes of action (Filinvest Credit Corp. v. Salas)
Overview of Section 2 and 3
SECTION 2 SECTION 3
Dismissal is not procured by
Dismissal is at the instance of
plaintiff though justified by
the plaintiff
causes imputable to him
Dismissal is a matter of
procedure, without prejudice Dismissal is a matter of
unless otherwise stated in the evidence, an adjudication on
court order or on motion to the merits
dismiss
Dismissal is without prejudice
to the right of defendant to
prosecute his counterclaim in a Dismissal is without prejudice
separation action unless within to the right of defendant to
15 days from notice of motion prosecute his counterclaim on
he manifests his intention to the same or separate action
have his counterclaim resolved
in the same action
SECTION 2 - Dismissal upon motion of plaintiff.Except as
provided in the preceding section, a complaint shall not be
dismissed at the plaintiffs instance save upon approval 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 for dismissal, the
dismissal shall be limited to the complaint. The dismissal shall be
without prejudice to the right of the defendant to prosecute his
counterclaim in a separate action unless within fifteen (15) days
from notice of the motion he manifests his preference to have his
counterclaim resolved in the same action. Unless otherwise
specified in the order, a dismissal under this paragraph shall be
without prejudice. A class suit shall not be dismissed or
compromised without the approval of the court. (2a)
Breakdown of Provision:
A. A complaint shall not be dismissed at the plaintiffs instance
1. Except as provided in Sec. 1
2. Save upon approval of the court
a. Upon such terms and conditions as the court
deems proper
B. If counterclaim has been pleaded by defendant prior to
service upon him of plaintiffs motion for dismissal
1. Dismissal shall be limited to the complaint
 C. Dismissal shall be without prejudice to the right of
defendant to prosecute his counterclaim in a separate action
1. Unless within 15 days from notice of motion he
manifests his preference to have his counterclaim
resolved in the same action
D. Dismissal under Sec. 2 shall be without prejudice
1. Unless otherwise specified in the order
E. Class suit shall not be dismissed or compromised without the
approval of the court
Under this section, dismissal of the complaint is subject to the
discretion of the court and upon such terms and conditions as may
be just.
GENERAL RULE: Dismissal under this rule is WITHOUT prejudice
EXCEPTIONS:
1. When otherwise stated in the motion to dismiss; or
2. When stated to be with prejudice in the order of the court
AS TO COUNTERCLAIMS
If a counterclaim has been pleaded by the defendant prior to the
service upon him of the plaintiffs motion for dismissal, the dismissal
shall be limited to the complaint.
Remember that if the civil case is dismissed, so also is the
counterclaim filed therein
- It was held that if the court does not have jurisdiction to
entertain the main action of the case and dismiss the case,
then the compulsory counterclaim, being ancillary to the
principal controversy must likewise be dismissed
No jurisdiction remained for any grant of relief under
the counterclaim (Metals Engineering Resources v.
CA)
However, under this section, if a counterclaim has been pleaded by a
defendant PRIOR to the service upon him of the plaintiffs motion for
dismissal, the dismissal shall be limited to the complaint.
Such dismissal shall be without prejudice to the right of the
defendant to either:
1. Prosecute his counterclaim in a separate action; or
In this case, the court should render the
corresponding order granting and reserving his right
to prosecute his claim in a separate complaint
2. To have the same resolved in the same action
In this case, defendant must manifest such preference
to the trial court within 15 days from notice to him of
plaintiffs motion to dismiss
Note: These alternative remedies of the defendant are
available to him regardless of whether his counterclaim is
compulsory or permissive
EFFECT OF DISMISSAL
The dismissal is without prejudice
- Only instance when dismissal of an action under the rule is
with prejudice is when the order or motion itself states
- When a court issues upon plaintiffs instance a dismissal
order that is silent as to whether it is with or without
prejudice, the presumption is that, it is without prejudice
(Vallangca v. CA)
148
Note: This rule does not apply to dismissal of expropriation cases
which is governed by Rule 67 which specifically governs eminent
domain cases.
COMPARED TO OTHER PROVISIONS
Sec. 1 and Sec. 2
- Both sections refer to the dismissal of the ENTIRE case at
the instance of the plaintiff, provided that under:
1. Sec. 1 there has been no service of an answer or a
motion for summary judgment
2. Sec. 2 defendant has not filed a counterclaim and
the court deems the dismissal proper
- Absent such contingent considerations, the plaintiff has
the virtual freedom to desist from further prosecuting any
defendant by causing the dismissal of the complaint
As distinguished from Sec. 11, Rule 3
- Said provision allows parties to be dropped or added by
order of the court, on motion, or motu proprio at any stage
of the action and on such terms as are just
- This refers to maintenance of the case against all parties
Except that one or more defendant may be excluded
- Remember that this does not comprehend whimsical or
irrational dropping of parties
- It contemplates the situation where there has been an
erroneous inclusion or misjoinder of parties
Presupposes that the original inclusion of defendant
was made in honest conviction that it was proper
But subsequent dropping is requested because it has
turned out to be incorrect
SECTION 3 - Dismissal due to fault of plaintiff.If, for no
justifiable cause, the plaintiff fails to appear on the date of the
presentation of his evidence in chief on the complaint, or to
prosecute his action for an unreasonable length of time, or to
comply with these Rules or any order of the court, the complaint
may be dismissed upon motion of the defendant or upon the
courts own motion, without prejudice to the right of the
defendant to prosecute his counterclaim in the same or in a
separate action. This dismissal shall have the effect of an
adjudication upon the merits, unless otherwise declared by the
court. (3a)
Breakdown of Provision:
A. The complaint may be dismissed, if for no justifiable cause,
the plaintiff fails:
1. To appear on the date of the presentation of his
evidence in chief on the complaint; or
2. To prosecute his action for an unreasonable length of
time; or
3. To comply with the Rules or any order of the court
B. The dismissal may be upon:
1. Motion of the defendant; or
2. Courts own motion
C. The dismissal shall:
1. Be without prejudice to the right of the defendant to
prosecute his counterclaim in the same or in a separate
action
2. Have the effect of an adjudication upon the merits
a. Unless otherwise declared by the court
Section 3 contemplates dismissal due to fault of plaintiff
Under this section:
- Like in Sec. 2:
Only the complaint is dismissed
Its dismissal does not necessarily carry with it the
dismissal of the counterclaim
Defendant is granted an option to prosecute his
counterclaim in the same or separate action
- The rule contemplates a situation which an answer with
counterclaim have already been filed
But as to Counterclaims:
- Defendant is granted the choice to prosecute that
counterclaim in either the same or a separate action, just
like the grant of that remedy in Sec. 6, Rule 16
- In this section (as well as in Sec. 6, Rule 16), defendant is
not required to manifest his preference within a 15-day
period as in Sec. 2
- Reason:
The motions to dismiss in this section and in Sec. 6,
Rule 16, are filed by defendant who perforce has
already deliberated upon the course of action he
intends to take on his counterclaim and which he may
even manifest right in his motion to dismiss
The dismissal in Sec. 2 is at the instance of plaintiff,
hence, defendant is granted the time and duty to
manifest preference within 15 days from notice, after
an opportunity to study the situation
Complaint May be Dismissed:
1. Upon motion of defendant; or
2. Upon the courts own initiative
Note: The court cannot issue an order of dismissal motu
proprio except for the grounds mentioned in this rule and
those in Sec. 1, Rule 9
Grounds for Dismissal
1. Plaintiff fails to appear for no justifiable cause on the date
of the presentation of his evidence in chief on the
complaint;
2. Plaintiff fails to prosecute his action for an unreasonable
length of time (nolle prosequi); and
3. Plaintiff fails to comply with these Rules or any order of
the court
The dismissal shall have the effect of an adjudication upon the
merits (Res judicata); UNLESS:
1. Otherwise declare by court; or
2. If the court has not yet acquired jurisdiction over the
person of the defendant
FAILURE TO APPEAR AND FAILURE TO PROSECUTE
While a court can dismiss a case on the ground of non-prosequitur,
the real test for the exercise of such power is whether, under the
circumstances, plaintiff is chargeable with want of due diligence in
failing to proceed with reasonable promptitude. (Producers Bank v.
CA)
There must be unwillingness on the part of the plaintiff to prosecute
(Gapoy v. Adil)
The dismissal of the case for failure of plaintiff to appear at trial, to
be valid, now requires that:
1. His non-appearance is without justifiable cause; and
149
2. Such prejudicious absence is limited to the date or dates
when presentation of his evidence in chief on the
complaint was scheduled or expected
Since plaintiffs presence is now required only during the
presentation of his evidence in chief, his absence during
the presentation of defendant or other parties evidence,
or even at rebuttal or subsequent stages, is not a ground
for dismissal.
What Constitutes Unreasonable Length of Time
- The dismissal of an action pursuant to this rule rests upon
the sound discretion of the court ( Smith Bell and Co. v.
American President Lines Ltd.)
- What constitutes unreasonable length of time depends on
the circumstances of each particular case
The sound discretion of the court in the
determination of said question will not be disturbed
in the absence of patent abuse
The burden of showing abuse of judicial discretion is
upon the appellant since every presumption is in
favor of the correctness of court action
Duty of the Plaintiff To Prosecute
- Under the rules, it is the duty of a plaintiff to always take
the initiative in keeping the proceedings active and going
until it is terminated
Otherwise, the case may be dismissed either upon
motion of his adversary or the court itself
- Upon issuance of summons, plaintiff or counsel should see
to it that the sheriff or process server immediately cause
its service
If plaintiff is not furnished with a return of service,
plaintiff should inquire from the court as to the status
of the summons, not only to take appropriate action if
unserved, but to know if period to answer has expired
If summons is unserved, plaintiff should make
verifications and ask for alias summons and/or
summons by publication
Jurisprudence:
1. Plaintiffs failure to appear, not absence of lawyer is
ground for dismissal (Calalang v. CA)
But the unwillingness of the party to proceed to trial
because of absence of counsel after being given time
to secure services of counsel if ground for dismissal
for failure to prosecute (Rodillas v. Farmacia
Central)
2. Where plaintiffs were not again ready to present their
evidence on the date of trial but instead moved for another
postponement, the dismissal is justified (EE Elser, Inc. v.
Dela Rama Steamship, Co.)
Where trial had previously been postponed 9 times at
plaintiffs request and the case had been pending for
more than 4 years, action may be dismissed for
failure to prosecute (Jordas v. Vedad)
3. The plaintiffs failure to appear at trial after he has
presented his evidence and rested his case does not
warrant the dismissal of the case on the ground of failure
to prosecute. It is merely a waiver of his right to cross-
examine and to object to the admissibility of evidence
(Jalover v. Ytoriaga)
4. The action should never be dismissed on a non-suit for
want of prosecution when the delay was caused by the
parties looking towards a settlement. (Goldloop
Properties Inc. v. CA)
 FAILURE TO COMPLY WITH RULES AND COURT ORDER
Note: The order must be valid.
It is still within the discretion of the court to dismiss
- It may not be reversed on appeal in the absence of abuse
- Burden is upon the party showing abuse of judicial
discretion
Jurisprudence on Failure to Comply with Court Order
1. Dismissal for failure to comply with order to amend
complaint to make claims asserted more definite is ground
for dismissal (Santos v. General Wood Craft)
2. Failure to comply with an order to include indispensable
parties is ground for dismissal (Aranico-Rubino v.
Aquino)
3. An order to amend the complaint before the proper
substitution of parties after the death of a party as directed
by Sec. 17, Rule 3 has been effected is void
It imposes no duty upon plaintiff to comply with said
order to the end that an order dismissing the said
complaint, for such non-compliance, would similarly
be void (Barrameda v. Barbara)
4. The failure to comply with order of new judge to recall
witness so he may observe demeanor is sufficient ground
for dismissal (Castillo v. Torres)
5. Failure to submit stipulation of facts and memoranda is
not a ground for dismissal (Buenaventura v.
Buenaventura)
Jurisprudence on Failure to Comply with Rules
1. The court may dismiss the complaint motu proprio for
failure to comply with the rule on actionable documents
(Rosales v. CA)
2. The failure of the parties to submit a compromise
agreement within period granted to them by court is not a
ground for dismissal (Goldloop Properties Inc. v. CA)
3. Dismissal is improper where a 3rd party complaint has
been admitted and the 3rd party defendant had not yet
been summoned (Sotto v. Valenzuela)
4. A case may be dismissed for failure to answer written
interrogatories under Rule 25 even without an order from
the court to answer. (Arellano v. CFI- Sorsogon)
LIMITATIONS ON POWER TO DISMISS
Notwithstanding the accepted basic principle, it is imperative to note
that the dismissal of actions under Sec. 3, Rule 17 should be applied
with extra care.
Hence, it becomes necessary that the sound discretion of the court
must extend to the vigilance of duly recognizing the circumstances
surrounding the particular case to the end that technicality shall not
lord over substantial justice.
As held in Dayo, et al. v. Dayo, et al. dismissals should be ordered
not as penalty for neglect, but only in the extreme cases where the
termination of the proceeding by dismissal is the only remedy
consistent with equity and justice.
DISMISSAL WITH PREJUDICE
Dismissal of actions under Sec. 3 which do not expressly state
whether they are with or without prejudice are held to be with
prejudice on the merits
150
Jurisprudence
1. A dismissal under this rule for lack of interest on the part
of the plaintiff without any condition, is with prejudice and
shall have the effect of an adjudication upon the merits
Unless otherwise provided by the Court
2. However, there is no res judicata if the court has not yet
acquired jurisdiction over the person of the defendant
(Guzman v. Mapa)
3. Dismissal of a case due to failure to prosecute shall have
the effect of an adjudication upon the merits (Vergara v.
IAC)
4. Dismissal for failure to appear at pre-trial is similar to
dismissal for failure to prosecute or to comply with an
order of the court under Sec. 3, and is, therefore, an
adjudication on the merits unless otherwise provided
(Gutierrez v. CA)
5. Where, however, the case was not tried on the merits and
dismissal was due to negligence of lawyer rather than
plaintiff,
In the interest of justice, dismissal of the case should
be decreed without prejudice to the filing of a new
action (Gutierrez v. CA)
DISMISSAL WITHOUT PREJUDICE
Note: Dismissal for lack of jurisdiction is always without prejudice
Jurisprudence:
1. Dismissal for failure to comply with certificate non-forum
shopping is without prejudice unless order provides that it
is with prejudice (Sto. Domingo-David v. Guerrero)
2. Dismissal for failure to prosecute will not constitute res
judicata in favor of a party in intervention who did not join
the defendants but alleged an independent claim since the
dismissal relates to the cause of action and none was made
against the intervenor. (Barroso v. Veloso)
3. Failure of plaintiff to appear after having adduced
evidence cannot be considered failure to prosecute
It is only a waiver of right to cross-examine witnesses
for defendant and to object to admissibility of
evidence
AS TO SUMMARY PROCEDURE
Under Sec. 7 of the Rule on Summary Procedure:
- Failure of plaintiff to appear in preliminary conference
shall be cause for dismissal of his complaint
- Defendant who appears in the absence of plaintiff shall be
entitled to judgment on his counterclaim in accordance
with Sec. 6 thereof
- All cross-claims shall be dismissed
SECTION 4 - Dismissal of counterclaim, cross-claim, or third-party
complaint.The provisions of this Rule shall apply. to the
dismissal of any counterclaim, cross-claim, or third-party
complaint. A voluntary dismissal by the claimant by notice as in
section 1 of this Rule, shall be made before a responsive pleading
or a motion for summary judgment is served or, if there is none,
before the introduction of evidence at the trial or hearing. (4n)
Breakdown of Provision:
A. Provisions of this rule shall apply to the dismissal of any
counterclaim, cross-claim, or third-party complaint
B. Voluntary dismissal by claimant by notice as in Sec. 1, shall
be made:
 1. Before a responsive pleading or motion for summary
judgment is served; or
2. If there is none, before introduction of evidence at trial
or hearing

Effect of Dismissals
- Dismissal or continuance of an action operates to annul
orders, ruling, or judgments previously made in the case
- It also annuls all proceedings had in connection therewith
and renders all pleadings ineffective
- Dismissal or non-suit leaves the situation as though no suit
had ever been brought

Jurisprudence:
1. A dismissal or discontinuance of an action operates to
annul orders, rulings, or judgments previously made in the
case, as well as all proceedings had in connection
therewith and renders all pleadings ineffective
(Servicewide Specialist Inc. v. CA)

END OF RULE 17

151
NOTES ON RULE 17

152

RULE 18
PRE-TRIAL
SECTION 1 - When conducted .After the last pleading has been
served and filed, it shall be the duty of the plaintiff to promptly
move ex parte that the case be set for pre-trial. (5a, R20)
The rules on pre-trial have been supplemented by AM No. 03-1-0-SC
Approving the Proposed Rule on Guidelines to be Observed by
Trial Court Judges and Clerks of Court in the Conduct of Trial and
Use of Deposition Discovery Measures (August 16, 2004)
The guidelines under AM No. 03-1-09-SC was for the further
implementation of the pre-trial guidelines laid down in Admin Circ.
No. 3-99 dated Jan. 15, 1999 and except as otherwise specifically
provided for in other special rules.
Separate Rules on Pre-trial in particular cases were provided for
under:
1. Interim Rules of Procedure Governing Intra-Corporate
Controversies (April 1, 2001)
2. Rule on Declaration of Absolute Nullity of Void Marriages
and Voidable Marriages (AM No. 02-11-SC; Mar 15, 2003)
3. Rule on Legal Separation (AM No. 02-11-11-SC; Mar 15,
2003)
4. The Rules on pre-trial under Rule 18 are applicable in
preliminary conference in Forcible Entry and Unlawful
Detainer cases (Sec. 8, Rule 70)
Pre-Trial is a mandatory conference and personal confrontation
before the judge between the parties and their respective counsel.
Concept of Pre-Trial
- A procedural device by which the court is called upon,
after the filing of the last pleading, to compel the parties
and their lawyers to appear before it, and negotiate an
amicable settlement or otherwise make a formal
settlement and embody in a single document the issues of
fact and law involved in the action, and such other matters
as may aid in the prompt disposition in the case, such as:
Number of witnesses
Tenor or character of their testimonies
Documentary evidence; nature and purpose of each
Number of trial dates
- One objective is to take trial out of the realm of surprise
and maneuvering
- Also lays down the foundational and structural framework
of the continuous trial system
When Pre-trial is Conducted
- After the last pleading has been served and filed
- It shall be the duty of the plaintiff to promptly move ex-
parte that the case be set for pre-trial
Note the following SC issuances:
1. Specifically, the motion is to be filed within 5 days
after the last pleading joining the issues has been
served and filed (Admin Circ. No. 3-99, Jan 15, 1999)
2. Within 5 days from date of filing of the reply, plaintiff
must promptly move ex-parte that the case be set for
pre-trial conference. If the plaintiff fails to file said
motion within the given period, the branch clerk shall
issue a Notice of Pre-Trial (AM No. 03-109-SC, July 13,
2004)
153
Note that under Sec. 3, Rule 17, failure of
plaintiff to comply with the rules is a ground for
dismissal
Pre-Trial is MANDATORY
- The present rules make a pre-trial mandatory
- Pre-trial conferences bring the parties together, making
possible an amicable settlement or doing away with at
least the non-essentials of the case
- Vital objective: the simplification, abbreviation, and
expedition of the trial, if not indeed its dispensation
- Mandatory nature is addressed to both court and parties:
Court must set the case for pre-trial and notify the
parties as well as counsel to appear
Parties with their counsel are obliged to obey the
order of the court to that effect
- Under the present rule, the court is no longer tasked with
sending a separate notice to the party
Notice of pre-trial shall be served on counsel, who is
charged with the duty of notifying the client
Note: The Last Pleading need not be literally construed as the
actual filing of the last pleading. For purpose of pre-trial, the
expiration of the period for filing the last pleading is sufficient
(Sarmiento v. Juan)
- The answer ordinarily is the last pleading
- When defendants answer contains:
A counterclaim plaintiffs answer is the last pleading
A cross-claim answer of cross-defendant is the last
pleading
- Where plaintiffs answer to a counterclaim contains a
counterclaim against the opposing party or a cross-claim
against a co-defendant, answer of opposing party to
counterclaim or answer of co-defendant to cross-claim is
last pleading
- Where plaintiff files a reply alleging facts in denial or
avoidance of new matter, such reply is last pleading
- The last pleading is the last pleading joining the issues
Reason for Last Pleading
- Requirement is intended to fully appraise the court and
the parties of all issues in the case before pre-trial is
conducted
- Remember: the issues may only be ascertained from the
allegations contained in the pleadings filed by parties
- Last permissible pleading that a party may file would be
the reply to the answer to the last pleading of a claim that
had been filed in a case
This may either be a complaint, a cross-claim, a
counterclaim, or third-party complaint
PART ONE: ANTECEDENTS OF A PRE-TRIAL
From AM No. 03-1-0-SC
A. Within one day from receipt of the complaint
1. Summons
a. Summons shall be prepared
b. And shall contain a reminder to defendant to
observe restraint in filing a motion to dismiss
and instead allege the grounds thereof as
defenses in the Answer, in conformity with IBP-
OCA Memorandum on Policy Guidelines dated
March 12, 2002
c. Copy of summons attached
2. Court order
a. Court shall issue an order requiring the parties:
 (1) To avail of interrogatories to parties under
Rule 25
(2) Request for admission by adverse party
under Rule 26
(3) Or at their discretion make use of
dispositions under Rule 23
(4) Or other measures under Rule 27 and 28
b. Order shall be complied with within 5 days from
filing of the answer
c. Copy of the order shall be served upon the
defendant together with summons and upon
plaintiff
SECTION 2 - Nature and purpose.The pre-trial is mandatory.
The court shall consider:
(a) The possibility of an amicable settlement or of a
submission to alternative modes of dispute resolution;
(b) The simplification of the issues;
(c) The necessity or desirability of amendments to the
pleadings;
(d) The possibility of obtaining stipulations or admissions
of facts and of documents to avoid unnecessary proof;
(e) The limitation of the number of witnesses;
(f) The advisability of a preliminary reference of issues to a
commissioner;
(g) The propriety of rendering judgment on the pleadings,
or summary judgment, or of dismissing the action
should a valid ground therefor be found to exist;
(h) The advisability or necessity of suspending the
proceedings; and
(i) Such other matters as may aid in the prompt disposition
of the action. (1a, R20)
The purposes of a pre-trial under the old Rule have been reproduced
with 2 substantial amendments:
1. The court shall consider submission to alternative modes
of dispute resolution including conciliation and mediation
and not only arbitration
With regard to submission to arbitration, see RA 876
and Art. 2028 and 2041 on compromises and
arbitration
See also RA 9285 which institutionalized the use of an
alternative dispute resolution system and provided
for a broader scope of alternative modes for dispute
resolution
2. It shall also consider the advisability of judgment on the
pleadings, summary judgment or dismissal of the action on
the bases of proceedings at pre-trial conference
Note: Under AM No. 03-1-09-SC, the trial judge can now set as many
pre-trial conferences as may be necessary
Effect of Failure to Calendar for Pre-Trial
- The pre-trial calendar should be separate from the trial
calendar (Fuentes v. Macandog)
It is preferred that the pre-trial first be set and to
schedule the trial and other incidents at a different
date
Jurisprudence
1. The process of securing admissions, whether of facts or
evidence, is essentially voluntary. When the parties are
unable to arrive at a stipulation of agreed facts, the court
mist close the pre-trial and proceed with the trial of the
case (FilOil Marketing Corp. v. Dy Pac & Co.)
2. Unless there is a showing of substantial prejudice caused
to a party, the trial courts inadvertent failure to calendar
154
the case for pre-trial or a preliminary conference cannot
render the proceedings illegal or void ab initio
A partys failure to object to the absence of a pre-trial
is deemed a waiver of his right thereto (Martinez v.
De la Merced)
3. When the pleadings tendered genuine issues resolvable
only in a trial on the merits but instead of setting the case
for pre-trial the court granted plaintiffs motion for
summary judgment, it was held that petitioner was
substantially prejudiced and denied of his right to due
process of law which is tantamount to an abuse of
discretion or lack of jurisdiction (Paz v. CA)
Certiorari and not appeal is the proper remedy
4. Where defendant asked the Court to give time to pay
there is no need of resetting pre-trial. The proper
procedure is not declaration of default but summary
judgment (Jarantilla, Jr. v. Adil)
SECTION 3 - Notice of pre-trial.The notice of pre-trial shall be
served on counsel, or on the party who has no counsel. The
counsel served with such notice is charged with the duty of
notifying the party represented by him. (n)
Notice of Pre-Trial under this section, the notice of pre-trial shall
be served on counsel and service shall be made on the party only if
he has no counsel
- However, the duty of counsel served with such notice is to
duly notify his client thereof
- The notice must be such as to give them and their counsel,
time to comply with the notice, given the circumstances of
time and place of hearing
Jurisprudence
1. The omission to specify in the notice of hearing that it was
notice of pre-trial is not an irregularity (Ravelo v. CA)
2. The knowledge of petitioner of the existence of pre-trial
order is an exception to the literal application of the rule
that notice to the parties of the pre-trial order is
indispensable (Western Agro Industries Corp. v. CA)
3. Absence of notice of third pre-trial is justified where after
proper notice for first 2 pre-trials, defendants filed third-
party complaint which he completely abandoned (Fabar v.
Rodelas)
4. The sufficiency of the written notice of pre-trial is
irrelevant where evidence shows that counsel and the
parties actually knew of the pre-trial (Bembo v. CA)
SECTION 4 - Appearance of parties.It shall be the duty of the
parties and their counsel to appear at the pre-trial. The non-
appearance of a party may be excused only if a valid cause is
shown therefor or if a representative shall appear in his behalf
fully authorized in writing to enter into an amicable settlement, to
submit to alternative modes of dispute resolution, and to enter
into stipulations or admissions of facts and of documents. (n)
Note: BOTH parties and counsel must appear at pre-trial
- Client and counsel must appear; this is mandatory
- Failure of client to appear is a ground for dismissal
- The appearance of plaintiff and defendant is also
mandatory their failure to do so without justification is not
a ground for new trial (American Ins. v. Republic)
Substitution of Appearance of Parties
- A party may not himself be present at the pre-trial and
another person may substitute for him, or his lawyer may
 undertake to appear not only as an attorney but in
substitution of his clients person
- It is imperative that the representative or lawyer have a
special authority to make substantive agreements; this
special authority must be in writing
When Non-Appearance of a Party may be Excused:
1. If a valid cause is shown therefor; and
2. If a representative shall appear in his behalf fully
authorized in writing to:
a. Enter into an amicable settlement;
b. Submit to alternative modes of dispute resolution;
and
c. Enter into stipulations or admissions of facts and of
documents
Note:
1. The written authority must be in form of an SPA (Sec.
23, Rule 38). If the party is a corporation, the SPA
must be supported by a board resolution.
2. The mere presentation of such written authority is
not sufficient, but must be complemented by a
showing of valid cause for the non-appearance of the
party himself.
Special Authority of Representative of Lawyer in Behalf of Client
- Without special authority, lawyer or representative cannot
be deemed capacitated to appear in place of the party
It will be considered that the latter has failed to put
up an appearance at all
And therefore, not suited or shall be cause to allow
plaintiff to present evidence ex parte
- The scope, extent, and limits of the authority must likewise
be shown (Barrera v. Militante)
Note that under the present rule, the representative
must be fully authorized in writing to enter into an
amicable settlement, to submit to alternative modes
of dispute resolution, and to enter into stipulations or
admissions of facts and of documents
- The authority must be specific and not general
Note that under Sec. 4, Rule 18, the law is clear and unambiguous.
Counsel, as representative, mist have appeared in partys behalf fully
authorized in writing
Jurisprudence
1. A certificate of the Secretary of a corporation couched in
general terms authorizing a lawyer to appear in all cases
filed against the corporation and on all matters that may
be necessary is insufficient and warrants a declaration of
default (Far Corporation v. IAC)
SECTION 5 - Effect of failure to appear.The failure of the
plaintiff to appear when so required pursuant to the next
preceding section shall be cause for dismissal of the action. The
dismissal shall be with prejudice, unless otherwise ordered by the
court. A similar failure on the part of the defendant shall be cause
to allow the plaintiff to present his evidence ex parte and the
court to render judgment on the basis thereof. (2a, R20)
Effect of Failure to Appear
1. Effect of Non-appearance of Plaintiff
Cause for the dismissal of the action (order of non-
suit)
This dismissal shall be without prejudice
a. Except when the court orders otherwise
155
2. Effect of Non-appearance of Defendant
Cause the plaintiff to present evidence ex parte
Cause for the court to render judgment on the basis
thereof
Note that the non-appearance of defendant in pre-trial is
not a ground to declare him in default
A plaintiff who makes no valid appearance at pre-trial may not ask
the defendant to be punished for the same shortcoming it was
equally guilty of (Sarmiento v. Juan)
- The remedy for plaintiffs failure to appear at the pre-trial
is to declare him non-suited
Not requiring the defendant to present his evidence
Judgment Ex Parte is DIFFERENT from Judgment by Default
1. Judgment against a defendant based on evidence
presented ex parte pursuant to a default order
Sec. 5, Rule 18 provides that judgment against
defendant should not exceed amount or be different
in kind from that prayed for
Trial may proceed ex parte
2. Judgment based on evidence presented ex parte and
against a defendant who had filed an answer but who
failed to appear at hearing
Award may exceed amount from that prayed for
A defendant in default is not and should not be placed
in a situation more favorable than a defendant who
answered but who fails to appear for trial despite
notice (Gochangco v. CFI Negros Occidental)
Trial may proceed ex parte
It is not invalidated by the fact merely that reception
of evidence had been undertaken by the clerk of court
on the courts instructions
Note: Semantical propriety: the word default is identified with the
failure to file a required answer, not non-appearance
Note that under this rule, there can be no judgment by default
- The sanction for failure of defendant to appear in the pre-
trial is not to consider him as in default
- But to authorize plaintiff to present evidence ex parte and
the court to render judgment on the basis thereof
- As such, limitations on the extent of a judgment by default
no longer applies when defendant fails to appear during
pre-trial
The remedy of a plaintiff who has been non-suited is to file a motion
to set aside the order of non-suit
- Affidavit of merit is not necessary in a simple motion for
reconsideration of the order of non-suit
Except as to show the cause of the failure to appear at
the pre-trial (Jonathan Landoil International Inc. v.
Mangudadatu)
- The provisions of Rule 37 on New Trial do not govern all
motions for reconsideration based on fraud, accident,
excusable negligence, or mistake
They are applicable only when a party adversely
affected by a judgment, already rendered in a case,
seeks to have it set aside and a new trial held, in the
hope that it may be reversed or modified on account
of the evidence that is to be produced
If a new trial is granted, original decision shall be
vacated and the action is to stand for trial de novo
The procedure contemplated in this rule involves a
reopening of the case for hearing, after it was already
submitted for decision and judgment thereon was
actually reached
 Since the reopening would necessarily affect the
party in whose favor the disputed judgment was
rendered,
Rule requires that movant show the valid cause of
action or defense which he intends to prove at new
trial
- A dismissal for failure to appear at the pre-trial hearing is
deemed an adjudication on the merits, unless otherwise
stated in the order
Remedy of plaintiff declared non-suited is to appeal
from the order of dismissal, the same being a final
resolution of the case
If a motion for reconsideration had been filed by
plaintiff but was denied, appeal lies from both orders
And where appeal is the proper remedy, certiorari
will not lie
Where defendant is declared in default for his failure to appear at
the pre-trial,
- His remedy is to file a motion for reconsideration without
need for affidavits of merits regarding the fraud, accident,
mistake, or excusable negligence (Lucero v. Dacayo)
If denied with grave abuse of discretion, certiorari is
the remedy as such order of default is interlocutory
- (Note however the pronouncement that non-appearance
of defendant is not a ground for declaring him in default)
SECTION 6 - Pre-trial brief.The parties shall file with the court
and serve on the adverse party, in such manner as shall ensure
their receipt thereof at least three (3) days before the date of the
pre-trial, their respective pre-trial briefs which shall contain,
among others:
(a) A statement of their willingness to enter into amicable
settlement or alternative modes of dispute resolution,
indicating the desired terms thereof;
(b) A summary of admitted facts and proposed stipulation
of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented, stating the
purpose thereof;
(No evidence shall be allowed to be presented
and offered during the trial in support of an evidence-
in-chief other than those that had been earlier identified
and pre-marked during pre-trial, except if allowed by
the court for good cause shown);
(e) A manifestation of their having availed or then intention
to avail themselves of discovery procedures or referral
to commissioners; and
(f) The number and names of the witnesses, and the
substance of their respective testimonies and the
approximate number of hours that will be required by
the parties for the presentation of their respective
witnesses.
Failure to file the pre-trial brief shall have the same effect as
failure to appear at the pre-trial. (n) (As modified by AM No. 03-1-
09-SC)
This section makes it the mandatory duty of the parties to
seasonably file their pre-trial briefs under the conditions and with
the sanctions provided therein.
Effect of Failure to File Pre-Trial Brief
- It shall have the same effect as failure to appear at the pre-
trial
- Remedy of defendant is to file a motion for
reconsideration, showing that his failure to file a trial brief
156
was due to fraud, accident, mistake, or excusable
negligence
The motion need not really stress the fact that the
defendant has a valid and meritorious defense
because his answer which contains his defenses is
already of record
- The filing of the pre-trial brief is mandatory
The Guidelines likewise enjoins strict compliance with the rule on
the contents of the pre-trial brief. Under the Rule on Declaration of
Absolute Nullity of Void Marriages and Annulment of Voidable
Marriages and the Rules on Legal Separation, the failure to file pre-
trial brief to comply with its required contents shall have the same
effect of failure to appear at the pre-trial.
PART TWO: CONDUCTING THE PRE-TRIAL
SCOPE
Pre-Trials are not intended merely to determine whether
the parties can arrive at compromises. Exhaustive pre-trials should
be conducted to reduce areas of conflict and simplify issues, secure
stipulations or admissions of facts, limit the number of witnesses,
consider the advisability of preliminary reference of issues to a
commissioner and other matters as may aid in the prompt
disposition of the action.
SUBMISSION TO ALTERNATIVE MODES OF DISPUTE RESOLUTION
A. Alternative Dispute Resolution
- Describes a range of techniques used to resolve disputes
outside of courts
- Typically, ADR is informal and flexible and emphasizes
helping parties help themselves reach a mutually
beneficial resolution
- Note that not all disputes can be resolved by mutual
agreements
- ADR techniques also include binding judgments imposed
by 3rd parties
B. Mediation
1. Use of Mediation Under the Guidelines, at the start of
the pre-trial conference, the judge shall immediately refer
the parties and/or their counsel if authorized by their
clients to the PMC mediation unit for purposes of
mediation if available
2. Type of Cases that are mediatable (from Resolution of the
Supreme Court in AM No. 04-3-15-SC, March 23, 2004)
a. All civil cases, settlement of estates, and cases
covered by the Rule on Summary Procedure except
those which by law may not be compromised;
b. Cases cognizable by the Lupong Tagapamayapa under
the Katarungang Pambansa Law
c. The civil aspect of BP 22 cases; and
d. The civil aspect of quasi-offenses under Title 14 of the
RPC
C. Katarungang Pambarangay Law (Sec. 408) The court in which
non criminals falling within the authority of the lupon under
this Code are filed may at any time before trial, motu proprio
refer the case of the lupon concerned for amicable settlement
D. The Arbitration Law (RA 876)
1. Persons and matter subject to arbitration (Sec. 2):
a. Two or more persons or parties may submit to the
arbitration of one or more arbitrators any
 controversy existing between them at the time of the
submission and which may be the subject of an action
b. Or the parties to any contract may in such contract
agree to settle by arbitration a controversy thereafter
arising between them
c. Such submission shall be valid, enforceable, and
irrevocable, save upon the grounds as exist at law for
the revocation of any contract
2. Note however, that the foregoing matters refer to court-
annexed mediation
a. It should be distinguished from the mediation,
arbitration, and conciliation as conditions precedent
under Katarungang Pambarangay Law and RA 9285
(Alternative Dispute Resolution Act of 2004)
CONDUCTION OF PRE-TRIAL IF MEDIATION FAILS
If mediation fails, the judge will schedule the continuance of the pre-
trial conference.
But before then, the Judge may refer the case to the Branch Clerk of
Court for a preliminary conference.
Circular No. 3-99 provides that at the pre-trial conference, the
following shall be done:
1. The judge with all tact, patience and impartiality shall
endeavor to persuade the parties to arrive at a settlement
of the dispute; if no amicable settlement is reached, then
he must effectively direct the parties toward the
achievement of the other objectives or goals of pre-trial
2. If warranted by the disclosure at the pre-trial, the judge
may either forthwith dismiss the action, or determine the
propriety of rendering a judgment on the pleadings or a
summary judgment
3. The judge shall define the factual issues arising from the
pleadings and endeavor to cull the material issues
4. If only legal issues are presented, the judge shall require
the parties to submit their respective memoranda and
thereafter render judgment
5. The judge should encourage the effective use of pre-trial
discovery proceedings
Preliminary Conference
Preliminary Conference Duties of the clerk:
1. To assist the parties in reaching a settlement
2. To mark the documents or exhibits to be presented by the
parties and copies thereof to be attached to the records
after comparison
3. To consider such other matters as may aid its prompt
disposition
During Preliminary Conference:
- The clerk shall also ascertain from the parties the
undisputed facts and admissions on the genuineness and
due execution of the documents marked as exhibits
- Proceedings shall be recorded in the Minutes of
Preliminary Conference to be signed by both parties
and/or counsel
The Minutes of Preliminary Conference and the exhibits shall be
attached by the Clerk to the case record before pre-trial.
157
Possibility of an Amicable Settlement
Relevant Provisions under the CC
1. Art. 2029 The court shall endeavor to persuade the
litigants in a civil case to agree upon some fair
compromise
2. Art. 2032 Courts approval is necessary in compromises
entered into by guardians, parents, absentees
representatives, and administrators or executors of
decedents estates
3. Art. 2033 - Juridical persons may compromise only in the
form and with the requisites which may be necessary to
alienate property
4. Art. 2034 There may be a compromise upon the civil
liability arising from an offense; but such compromise
shall not extinguish the public action for the imposition of
legal penalty
5. Art. 2031 Courts may mitigate the damages to be paid by
the losing party who has shown sincere desire for a
compromise
Principles Involved in Compromise Agreements
1. The authority to compromise a litigation is not
mandatorily required to be in writing
2. Vital thing is that the authority was made expressly
3. The authority to compromise if not in writing may be
established by evidence
Compromise agreement entered without authority is
not void, but unenforceable and may be ratified (Lim
Pin v. Liao Tan)
4. Even if the parties concerned agreed to execute a
stipulation of facts it does not mean that the respective
counsels of contending parties can prepare a stipulation of
facts the contents of which is prejudicial to the interests of
their clients and sign it themselves without the
intervention of their clients. (Caballero v. Dejarme)
Jurisprudence:
1. The filing of a pre-trial brief is mandatory and is not
excused simply because defendant was not represented by
counsel (Saguid v. CA)
Duty of the Judge
- Before the continuation of the pre-trial conference, judge
must study all pleadings, and determine the issues thereof
and the respective positions of the parties to enable him to
intelligently steer the parties toward a possible amicable
settlement or, at the very least, to help reduce and limit the
issues
- He should expose the parties to advantages of pre-trial:
a. The simplification of issues
b. The necessity or desirability of amendments to
pleadings
c. Possibility of obtaining stipulations or admissions of
facts and of documents to avoid unnecessary proof
- During pre-trial, judge shall be the one to ask questions on
issues raised therein and all questions or comments by
counsel must be directed to judge to avoid hostilities
1. The court shall initially ask the parties and lawyers if an
amicable settlement is possible
2. If not, judge may confer with parties with the opposing
counsel to consider the following:
a. Given the evidence of plaintiff presented in his pre-
trial brief to support his claim, what manner of
compromise is considered acceptable to defendant at
the present stage?
 b. Given the evidence of defendant described in his pre-
trial brief to support his defense, what manner of
compromise is considered acceptable to plaintiff at
the present stage?
3. If not successful, court shall confer with the party and his
counsel separately
4. If the manner of compromise is not acceptable, judge shall
confer with the parties without their counsel for the same
purpose of settlement
POWER OF THE COURT
Itemization of Issues In a Single Document
As held in DBP v. CA
- A trial court can always compel the parties to simplify, or
at the very least, identify the issues
- Court has the power to require the parties to make a
formals statement of the issues of fact and law involved
To set out which of the material averments of fact, or
parts thereof, are admitted and which are denied
- The desirability and usefulness of the itemization in a
single document:
a. Of the facts which are admitted and as to which no
evidence need be presented; and
b. Those of which are controverted and as to which
proof must be adduced
Disclosure of Witnesses and Evidence
The trial court has the power to require the parties at pre-trial:
1. To state the number of witnesses intended to be called to
the stand, their names and addresses, and a brief summary
of the evidence each of them is expected to give
2. To formally disclose the number of the documents and
things or a short description of the nature of each
3. To state the number of trial dates that each will need to
put on his case
On the Number of Witnesses
1. The One-Day Examination of Witness Rule
2. The Most Important Witness Rule
Determine the most important witnesses to be heard
and limit the number of facts to be proven by each
witnesses and approximate number of hours per
witness shall be fixed
Duty of Disclosure
1. The parties are required to state the documents or exhibits
to be presented, stating the purpose thereof (Sec. 6(d))
No evidence shall be allowed to be presented and
offered during the trial in support of an evidence-in-
chief other than those that had been earlier identified
and pre-marked during pre-trial
Except if allowed by the court for good cause shown
2. The number and names of witnesses (Sec. 6(f))
The substance of their respective testimonies
Approximate number of hours that will be required
by parties for the prosecution of their respective
witnesses
In light of the objectives of a pre-trial and the role of trial court
therein, it is evident that judges have the discretion to exclude
witnesses and other pieces of evidence not listed in the pre-trial
brief, provide the parties are given prior notice to this effect.
158
The Trial Judge also has the following powers: (see The Guidelines)
1. At his discretion, order the parties to use affidavits of
witnesses as direct testimonies
Subject to the right to object to inadmissible portions
thereof and to the right of cross-examination
Affidavits shall be based on personal knowledge
Set forth facts as would be admissible in evidence
Shall show affirmatively that the affiant is competent
to testify to the matters stated therein
Shall be in question and answer form
Shall conform with the rules on admissibility of
evidence
2. Order the delegation of the reception of evidence to the
Branch Clerk of Court under Rule 30
3. The advisability of a preliminary reference of issues to a
commissioner (see Rule 32)
The propriety of rendering judgment on the pleadings, or summary
judgment, or of dismissing the action should a valid ground therefor
be found to exist
- A judgment on the pleadings may be rendered on motion
of a party:
1. Where the answer fails to tender an issue, or
2. Otherwise admits to the material allegations of the
adverse partys pleading
- Note however in actions for annulment or for legal
separation, material allegations alleged in complaint shall
always be proved (Rule 34)
- A summary judgment may be rendered if the pleadings,
depositions, and admissions on file, together with the
affidavits, show that, except as to the amount of damages,
there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of
law (Rule 35)
The former rule which authorized the court to render judgment on
the pleadings or summary judgment if it appears at pre-trial that
facts exist which justify such action has been included in this section
- Court should merely consider the propriety of such action
- If proper, a motion for judgment on the pleadings or
summary judgment should be filed and heard in
accordance with the rules (Auman v. Estenzo)
Under the Guidelines:
- The judge should determine the propriety of rendering a
summary judgment dismissing the case based on the
disclosures made at pre-trial or a judgment based on the
pleadings, evidence identified and admissions made
during pre-trial
- If at pre-trial court finds that facts exist upon which a
judgment on the pleadings of summary judgment may be
made, it may render judgment on the pleadings or
summary judgment
The advisability or necessity of suspending the proceedings
- See Sec. 8, Rule 30
- Said rule provides that the suspension of actions shall be
governed by the provisions of the civil code
- Art. 2030 every civil action or proceeding shall be
suspended: if it appears that one of the parties before the
commencement of the action have offered to discuss a
possible compromise but the other party refused the offer
Such other matters as may aid in the prompt disposition of the
action: As held in DBP v. CA:
- While it is not reasonable to expect that a pre-trial will
always result in the parties reaching agreement as to all
matters specified in the rule,
 - It is nonetheless certain that by it, the court can always
bring about the prompt disposition of the action:
(1) The simplification of issues; and
(2) Such other matters as may aid in the prompt
disposition of the action
Good Faith is Required the parties are obliged, not only to make
formal identification and specification of the issues and of their
proofs, but also and equally as peremptorily, to directly address and
discuss with sincerity and candor and in entire good faith, each of
the other subjects enumerated in Sec. 2, Rule 18 (Mercader v. DBP)
PART THREE: PROCEEDINGS AFTER TERMINATION OF PRE-TRIAL
SECTION 7 - Record of pre-trial.The proceedings in the pretrial
shall be recorded. Upon the termination thereof, the court shall
issue an order which shall recite in detail the matters taken up in
the conference; the action taken thereon, the amendments
allowed to the pleadings, and the agreements or admissions made
by the parties as to any of the matters considered. Should the
action proceed to trial, the order shall explicitly define and limit
the issues to be tried. The contents of the order shall control the
subsequent course of the action, unless modified before trial to
prevent manifest injustice. (5a, R20)
Breakdown of Provision
A. The proceedings in the pre-trial shall be recorded
B. Upon termination, court shall issue an order which shall
recite in detail:
1. The matters taken up in the conference
2. The action taken thereon
3. The amendments allowed to the pleadings; and
4. The agreements or admissions made by the parties as
to any of the matters considered
C. Should the action proceed to trial, order shall explicitly
define and limit the issues to be tried
D. Contents of the order shall control the subsequent course of
the action
1. Unless modified before trial to prevent manifest
injustice
GENERAL RULE: The contents of the pre-trial order shall control the
subsequent course of the action
UNLESS:
1. Modified before trial to prevent manifest injustice (Rule
18, Sec. 7)
2. Issues impliedly included therein or may be inferable
therefrom by necessary implication (Velasco v. Apostol)
3. Amendment to conform to evidence (Rule 10, Sec. 5)
A party is deemed to have waived the delimitations in a pre-trial
order if he failed to object to the introduction of evidence on an issue
outside of the pre-trial order, as well as in cross-examining the
witness in regard to said evidence.
If trial is necessary, the judge shall fix the trial dates required to
complete presentation of evidence by both parties within 90 days
from date of initial hearing.
Note: After pre-trial conference, Judge should not fail to prepare and
issue the requisite pre-trial order which shall embody the matters
mentioned in Sec. 7
Specific Rules under the Guidelines
A. All proceedings during pre-trial shall be recorded
1. Transcripts prepared
159
2. Minutes signed by parties and/or their counsels
B. The Trial Judge
1. Shall issue a Pre-Trial Order
a. Within 10 days after termination of pre-trial
b. Order shall set forth:
(1) Actions taken during pre-trial conference
(2) Facts stipulated
(3) Admissions made, evidence marked
(4) Number of witnesses to be presented
(5) Schedule of trial
c. Effect of Order:
(1) Shall bind the parties
(2) Limit the trial to matters not disposed of
(3) Control the course of the action during trial
d. Court may opt to dictate the Order in open court in
the presence of parties and their counsel and with the
use of a computer,
(1) He shall have the same immediately finalized
and printed
(2) Once finished, parties and/or their counsel shall
sign the same to manifest conformity
2. Ask the parties to agree on specific trial dates for
continuous trial in accordance with Circular No. 1-89,
January 19, 2989
a. Adhere to the case flow chart determined by the court
(1) Containing the different stages of the
proceedings up to promulgation of decision
(2) Use the same time frame for each stage in setting
the trial dates
b. One-Day Examination of Witness Rule to be followed
(1) A witness has to be fully examined in one day
only
(2) Rule shall be strictly adhered to
(3) Subject to the courts discretion during trial on
whether or not to extend the direct and/or
cross-examination for justifiable reasons
3. On the last hearing day
a. On the last hearing day allotted for each party, party
is required to make his formal offer of evidence after
presentation of his last witness and opposing party is
required to immediately interpose his objection
thereto
b. Thereafter, judge shall make the ruling on the offer of
evidence in open court
c. Judge has the discretion to allow the offer of evidence
in writing in conformity with Sec. 35, Rule 132
Contents of Pre-Trial Order Circular No. 1-89 specifically mandates
that the pre-trial order shall include the following:
1. A statement of the nature of the case
2. The stipulations or admissions of the parties, including
testimonial and documentary evidence
3. The issues involved: (1) factual and (2) legal
4. Number of witnesses; and
5. The dates of trial
A pre-trial order has the presumption of veracity and that the judge
who issued it is presumed to have performed his duty regularly and
faithfully, in the absence of competent proof to the contrary. (Lao v.
Maya)
Trial is Limited to Unresolved Issues
1. Pre-trial is primarily intended to make certain that all
issues necessary to the disposition of a case are properly
raised
 2. To obviate surprise, parties are expected to disclose at a
pre-trial conference all issues of law and fact which they
intend to raise at trial
Except as may involve privileged or impeaching
matters
3. Determination of issues at pre-trial conference bars the
consideration of other questions on appeal
4. Where the case proceeded to trial, with petitioners
actively participating therein without raising their
objections to the pre-trial, they are bound by the
stipulations at the pre-trial (Macaraeg v. CA)
5. The petitioner should be bound by the delimitation of the
issues during the pre-trial because he himself agreed to
the same
6. An order allowing the presentation of unnamed witnesses
may no longer be modified during trial, without the
consent of parties affected (Tiu v. Middletown)
EXCEPTION:
One exception is prescription
As held in Gicano v. Gegato, trial courts have authority and
discretion to dismiss an action on the ground of prescription
when the parties pleadings or other facts of record show it to
be indeed barred. What is essential only is that the facts
demonstrating the lapse of the prescriptive period be otherwise
sufficiently and satisfactorily apparent on the record either in
the averments of the plaintiffs or otherwise established by
evidence.
However, note the holding in Villanueva v. CA, wherein the SC
held that the fact that the case proceeded to trial, with the
petitioners actively participating without raising the necessary
objection, all the more requires that they be bound by the
stipulations they made at pre-trial. Petitioners were well aware
that they raised the defense of prescription and laches since
they included it in their answer. Their failure to include it in the
pre-trial bars the defense.
Another exception is intertwined and intimately connected
issues. As held in Jimmy Co v. CA, the question of delay, though
not specifically mentioned as an issue at pre-trial may be
tackled by the court considering that it is necessarily
intertwined and intimately connected with the principal issue
agreed upon the parties.
Another exception is Sec. 5, Rule 10 Amendments to conform
to evidence.
This section allows the trial of issues not raised in the
pleadings but not objected to or tried with the
express or implied consent of the parties, and permits
an amendment of the pleadings to conform to the
evidence
Issues Not Disposed by Voluntary Agreement of the Parties
1. Issues for trial must be limited to those not disposed of by
admissions or agreement
2. The court has no discretion to exclude from trial issues not
resolved by voluntary agreement between parties
To Prevent Manifest Injustice
1. Rules are not applied with rigidity; to prevent manifest
injustice, some exceptions are admitted
2. A pre-trial order is not meant to be a detailed catalogue of
each and every issue that is to be or may be taken up
during trial
Issues that are impliedly included therein or may be
inferable therefrom by necessary implication
included
160
3. The rule that admissions made by parties during a pre-
trial conference and incorporated in pre-trial order are
binding, is not without exception
if, in order to prevent manifest injustice, the
admissions made by parties during pre-trial were
disregarded by lower court, we will not hold
otherwise (Sese v. IAC)
Preliminary Conference on Appeal
Under Rule 48, Rules of the Court of Appeals, at any time
during the pendency of a case, the Division concerned may call the
parties and their counsel to a preliminary conference:
1. To consider the possibility of an amicable settlement,
except when the case is not allowed by law to be the
subject of compromise
2. To define, simplify, and clarify issues for determination
3. To formulate stipulations of facts and admissions of
documentary exhibits, limit the number of witnesses to be
presented in cases falling within the original jurisdiction of
the Court or within its appellate jurisdiction, where a
motion for new trial is granted on the ground of newly
discovered evidence; and
4. To take up such other matters which may aid the court in
the prompt disposition of the case
Procedure:
Proceedings in such conference shall be recorded
Upon conclusion, resolution shall issue embodying all
actions taken, stipulations and admissions, issues
Resolution shall control all subsequent proceedings
in the case, unless within 5 days from notice any
party can satisfactorily show causes why the same
should not be followed
Jurisprudence:
1. The amendment of a pre-trial order is addressed to the
sound discretion of the court (Gotico v. Leyte)
2. Where the amount of back rentals to be paid by defendant
is stated in the pre-trial order in the nature of a
compromise agreement thereon, said pre-trial order in
that sense has the force of res judicata on that issue (M&M
Management Aids, Inc. v. CA)
END OF RULE 18
 NOTES ON RULE 18

PRE TRIAL

NO SETTLEMENT FAILURE TO APPEAR AMICABLE

SETTLEMENT

Agreements made by If plaintiff is absent If defendant is

parties; Amendments when so required to absent, court may
to pleading; Schedule attend, court may hear evidence of
of Trial dismiss the case plaintiff ex parte

If evidence is
TRIAL insufficient to prove
plaintiffs cause of
action or defendants
counterclaim, court
rules in favor of
either one or
dismisses the case
COURT RENDERS
DECISION

161
NOTES ON RULE 18

162

RULE 19
INTERVENTION
Intervention -- a legal proceeding by which a third person is
permitted by the court to become a party by intervening in a
pending action after meeting the conditions and requirements set by
the Rules.
Intervention v. Interpleader
INTERVENTION INTERPLEADER
An ancillary action An original action
Presupposes that the plaintiff
has no interest in the subject
Proper in any of the four
matter of the action or has an
situations mentioned in Rule
interest therein, which in whole
19
or in part, is not disputed by the
other parties to the action
The action is against either or
Defendants are being sued
both the original parties to the
precisely to implead them
pending suit
SECTION 1 - Who may intervene.A person who has a legal
interest in the matter in litigation, or in the success of either of the
parties, or an interest against both, or is so situated as to be
adversely affected by a distribution or other disposition of
property in the custody of the court or of an officer thereof may,
with leave of court, be allowed to intervene in the action. The
court shall consider whether or not the intervention will unduly
delay or prejudice the adjudication of the rights of the original
parties, and whether or not the intervenors rights may be fully
protected in a separate proceeding. (2[a], [b]a, R12)
NATURE
Right to Intervene is not an absolute right
- Procedure to secure the right to intervene is fixed by the
statute or rule
- Intervention can be secured only in accordance with the
terms of the applicable provision
- Under the Rules, intervention is addressed to the sound
discretion of the court
Intervention is never an independent proceeding but is ancillary and
supplemental to an existing litigation. Hence, the final dismissal of
the principal action results in the denial of a pending motion for
intervention.
- EXCEPT: When intervention has been allowed and the
complaint in intervention has already been filed before the
plaintiffs action had been expressly dismissed (Metro
Bank v. RTC-Manila)
Purpose to afford one, not an original party, yet having a certain
right or interest in the pending case, the opportunity to appear and
be joined so he could assert or protect such right or interest.
Meaning of Interest
- The interest must be actual and material, direct and
immediate, and not simply contingent and expectant
- It must be in the matter in direct legal operation and effect
of the judgment, the interest must be substantial and real
- interest in the subject= a direct interest in the cause of
action as pleaded, and would put the intervenor in a legal
position to litigate a fact alleged in the complaint without
the establishment of which plaintiff could not recover
163
WHO AND HOW
Who May Intervene:
1. One who has a legal interest in the matter in litigation;
2. One who has a legal interest in the success of either of the
parties
3. One who has an interest against both parties; or
4. One who is so situated as to be adversely affected by a
distribution or other disposition of property in the custody
of the court or of an officer thereof.
Factors to be Considered by the Court:
1. Whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original
parties; and
2. Whether or not the intervenors rights may be fully
protected in a separate proceeding
How to Intervene
a. With leave of court, the court shall consider the 2 factors
b. Motion to intervene may be filed at any time before
rendition of judgment by trial court
c. Copy of the pleadings-in-intervention shall be attached to
the motion and served on the original parties
Jurisprudence
1. While a share of stock represents a proportionate or
aliquot interest in the property of the corporation, it does
not vest the owner thereof with any legal right or title to
any of the property, his interest in the corporate property
being equitable or beneficial in nature (Saw v. CA)
2. A purchaser of property in involuntary sales did not
acquire the property from their owners but adverse to
them, he could expect no party in the pending suit to
safeguard his interest. Hence, the necessity of allowing his
intervention (Santiago Land Development v. CA)
Intervention Pro Interesse Suo where the stranger desires to
intervene for the purpose of asserting a right in the res which is the
subject-matter of litigation, without becoming a formal plaintiff or
defendant, and without acquiring control over the course of a
litigation, which is conceded to the main action therein
- In equity procedure; analogous to the trial of a right of
property in an action of law
- Purpose is to enable a person whose property gets into the
clutches of a court, in a controversy between others, to go
into court and to procure it or its proceeds to be
surrendered to him
- E.g. a person who really owns property or has a superior
lien or other interest, sees a litigation spring up between
others who assert rights in or concerning it
Though the litigation may not be technically binding
on him, because of his not being a party, yet it might
well happen that complications would ensue whereby
his rights would materially be prejudiced
Republic v. Sandiganbayan a private party was
allowed to intervene before the Sandiganbayan in a
complaint filed with the Sandiganbayan against
Marcos by the PCGG where it claims an interest in the
property sequestered by the PCGG without asking for
an affirmative relief but merely to unite with the
defendants in resisting the claims of the PCGG
Cases where Intervention Not Allowed:
1. Owner of merchandise lost by reason of collision between
two steamships may not be allowed to intervene in an
action between the owners of the steamships for damages
(Urrutia & Co. v. Baco Rubber Plantation)
 2. A mere creditor who has a right to the property in
litigation in a foreclosure writ cannot be allowed to
intervene (HSBC v. Aldecoa & Co.)
3. In an action upon a Promissory Note against a widow, the
heir of her deceased husband has no legal interest (Garcia
v. Davis)
4. Reinsurer wanted to intervene in an action for indemnity
filed by insured shippers of cargo against insurer.
Intervention denied on the ground that it would unduly
delay proceedings and intervenor can protect his rights in
a separate action (Gibson v. Revilla)
5. A person cannot intervene in an estate proceeding for
failure to prove his adoption by the deceased (Lazatin v.
Campos)
6. In an action of the wife abandoned by her husband against
the bank to cancel mortgage, the husband cannot
intervene after final judgment (Peyer v. Martinez)
7. Intervention was denied for want of sufficient showing
that movants right cannot be fully protected in a separate
proceeding (Mayuga v. Mayuga)
8. Intervention was denied in proceedings under Act 3135
for the issuance of a writ of possession (GSIS v. CA)
Intervention not proper where there is no pending
litigation
Proceeding under Sec. 7, Act 3135 is ex parte
DISMISSAL OF THE ACTION, EFFECT ON MOTION
Once Intervention is Allowed, Dismissal is Not Proper
- After intervenor has appeared in the action, plaintiff has
no absolute right to put intervenor out of court by
dismissal of the action
- Parties have no power to waive or otherwise annul the
substantial rights of the intervenor
Note the holding in Metro Bank v. RTC-Manila
- The simple fact that the trial court properly dismissed the
plaintiffs action does not require dismissal of the action
for the intervenor
- An intervenor has the right to claim judgment; right
cannot be defeated by dismissal of the suit by the plaintiff
after filing the petition and notice to other parties
- The trial courts dismissal of plaintiffs action does not
require the dismissal of the action of intervenor
- Where a complaint in intervention was filed before
plaintiffs action had been expressly dismissed, the
intervenors complaint was not subject to dismissal on the
ground that no action was pending, since dismissal of
plaintiffs action did not affect the rights of the intervenor
or effect the dismissal of the complaint in intervention
The Rulings in Barangay Matictic v. Elbinas and MetroBank v.
Presiding Judge
1. In Matictic, it was held that the dismissal of the main case
barred further action on intervention
a. This was an expropriation case filed by the
Municipality against private individuals. The Mayor
decided to withdraw the case. The Barangay filed a
motion for intervention.
b. The RTC, without taking action on the motion for
intervention, dismissed the case without prejudice,
since it was filed without Presidential approval
c. The SC ruled that the Barangay, a part of but a
different political entity, cannot question the
dismissal. The dismissal of the motion was
unavoidable since the main action ceased to exist
164
2. In Metrobank, the complaint-in-intervention survived and
was allowed to proceed despite dismissal of main action
a. Metrobank brought a replevin suit for recovery of
aircon units installed in a building acquired by
respondents. Airconditioning company was allowed
to intervene and after its complaint-in-intervention
was admitted and answers thereto were filed, the
case went to trial. Prior thereto, Metrobank and
building occupants went into a compromise
agreement and dismissed the case.
b. On motion of intervenor, order of dismissal was
reconsidered and set aside. RTC allowed the filing of
an amended complaint-in-intervention. Metrobank
challenged the order
c. SC denied Metrobank (See holding above). There was
no final dismissal of the main case since the
compromise and joint motion only affected their
respective claims but cannot affect the rights of
intervenor.
When an intervenor has become party to a suit,
trial court cannot dismiss the intervention on
the basis of a compromise, unless intervenor
was party to the compromise
Since the complaint in intervention was filed
before the plaintiffs action had been expressly
dismissed, the intervenors complaint was not
subject to dismissal
On Estoppel
- As a rule, Intervention is optional (Cruzcosa v.
Concepcion)
- But whether the failure to intervene may be deemed as
waiver or estoppel depends on each case (Liguez v. CA)
- It is believed that where intervenors rights are
interwoven in the pending case and he had due notice of
the proceedings, he will be estopped from questioning the
decision rendered therein through another action
DENIAL OF MOTION FOR INTERVENTION
Effect of Denial If motion to intervene is denied:
- He has no personality because he has not been allowed to
intervene
- Intervenor no longer entitled to notice
- Movant did not become a party to the case
- Order of the court denying the intervention is not a
decision on the merits of the case, and does not constitute
res judicata
Remedy from Denial
1. Appeal
Movant cannot appeal from the decision but only
from the order denying the intervention
2. Mandamus
Ordinarily, mandamus will not prosper to compel a
discretionary act
Movant must show manifest injustice or palpable
excess of authority equivalent to denial of a settled
right to which petitioner is entitled, writ shall issue
Remedy from Improper Granting of Intervention party may file a
certiorari or prohibition case
 SECTION 2 -- Time to intervene.The motion to intervene may be
filed at any time before rendition of judgment by the trial court. A
copy of the pleading-in-intervention shall be attached to the
motion and served on the original parties. (n)

GENERAL RULE: The motion to intervene must be filed at any time

before the rendition of judgment by the trial court
- After a rendition of judgment, a motion to intervene is
barred, even if the judgment itself recognizes the right of
the movant
- The remedy of movant is to file separate action

EXCEPTIONS:
1. With respect to indispensable parties, intervention may be
allowed even on appeal (Falcasantos v. Falcasantos)
2. When the intervenor is the Republic (Lim v. Pacquing)
3. Intervention may be allowed after judgment where
necessary to protect some interest which cannot
otherwise be protected, and for the purpose of preserving
the intervenors right to appeal (Pinlac v. CA)

SECTION 3- Pleadings-in-intervention.The intervenor shall file a

complaint-in-intervention if he asserts a claim against either or all
of the original parties, or an answer-in-intervention if he unites
with the defending party in resisting a claim against the latter.
(2[c]a, R12)

Complaint-in-Intervention if the intervenor asserts a claim against

either or all of the original parties

Answer-in-Intervention if the intervenor unites with the

defendants in resisting a claim against the latter

SECTION 4 - Answer to complaint-in-intervention.The answer to

the complaint-in-intervention shall be filed within fifteen (15)
days from notice of the order admitting the same, unless a
different period is fixed by the court. (2[d]a, R12)

Answer to a complaint-in-intervention = Within 15 days from notice

of the order admitting the same
- UNLESS: different period is fixed by court

As in the case of the filing of an amended or supplemental pleading

with leave of court, leave of court to file a complaint-in-intervention
is obtained by filing a motion for leave to file the pleading which is
attached thereto
- If Court grants the motion, answer to the complaint-in-
intervention shall be filed within 15 days from notice of
order admitting the same unless court fixes a different
period

END OF RULE 19

165
NOTES ON RULE 19

166

RULE 20
CALENDAR OF CASES
SECTION 1 - Calendar of cases.The clerk of court, under the
direct supervision of the judge, shall keep a calendar of cases for
pre-trial, for trial, those whose trials were adjourned or
postponed, and those with motions to set for hearing. Preference
shall be given to habeas corpus cases, election cases, special civil
actions, and those so required by law. (1a, R22)
The Clerk shall keep a calendar of cases for:
1. Pre-trial
2. Trial
3. Those whose trials were adjourned or postponed
4. Those with motions to set for hearing
Preference shall be given to:
1. Habeas corpus cases;
2. Election cases
3. Special civil actions; and
4. Those so required by law
Notes:
- This is to ensure a more efficient monitoring of cases for
both supervision and reportorial purposes
- It is also the duty of the presiding judge to exercise direct
supervision over those matters
SECTION 2 - Assignment of cases.The assignment of cases to the
different branches of court shall be done exclusively by
raffle. The assignment shall be done in open session of which
adequate notice shall be given so as to afford interested parties
the opportunity to be present (7a, R22)
Breakdown of Provision:
1. Assignment of cases to the different branches of a court shall
be done exclusively by raffle
2. The assignment:
a. Shall be done in open session
b. Adequate notice shall be given so as to afford
interested parties the opportunity to be present
Note: Assignment of cases is required to be done exclusively by raffle
Supreme Court Circ. No. 7, Sept. 23, 1974 laid down the rules for the
filing of cases filed in the CFI:
I. Raffling of Cases
A. All cases filed with the court where there are 2 or more
branches shall be assigned or distributed to different
branches by raffle
B. The raffle should be regularly conducted at the hour and
on the day or days to be fixed by the Exec. Judge
1. Only the maximum number of cases as can be
equally distributed to all the branches in the
particular station or grouping shall be included in
the raffle
II. Notice
A. Notice of the day and hour of raffle shall be posted
prominently in the bulletin boards of the courts and at
conspicuous place at main door of session hall
B. Other notice may be sent to parties
1. As interest of justice may require
2. On request of any party and with prior approval of
Exec. Judge
167
C. No special raffle of any case except on meritorious
application in writing by any party and with approval of
the Exec. Judge
III. Manner of Raffling
A. Raffle must be conducted at lawyers table in open court
by the Exec Judge personally with the attendance of 2
other judges (or authorized representative)
B. In stations where there are only 2 salas
1. Judges of both and either the Clerk should be
present
C. In the absence of Exec Judge, the Judge at the station
who is the most senior in appointment shall personally
conduct the raffle
D. No raffle in the chambers
E. The raffle proceedings
1. Should be stenographically recorded
2. Minutes prepared and signed by the judge and
clerk in attendance
F. After the raffle
1. Exec Judge shall indicate the particular branch to
which the case is assigned
2. Written in words and in figures on the cover of the
Rollo and on the first page of the original complaint
or information
3. Initiated by the Exec Judge and the other 2 officers
who attended said raffle
G. The raffle must be conducted in such manner that all
branches shall receive more or less the same number of
civil, criminal, and other kinds of cases
IV. In Case of Urgent or Interlocutory Matters
A. Such urgent nature that it may not wait for the regular
raffle
B. Interested party may request the Exec Judge in writing
for a special raffle
C. If request is granted and the special raffle is conducted
1. Case shall immediately be referred to the branch to
which it corresponds
D. Exec Judge shall have no authority to act on any
incidental or interlocutory matter in any case not yet
assigned to any branch by raffle
V. Notice of the Result of the Raffle
A. Copy of the minutes of the raffle proceedings showing
the case numbers and branches shall be immediately
posted on the bulletin boards of the Clerk and Exec
Judge
1. Duly certified by the Exec Judge or Judge who
conducted raffle, as well as by the 2 other Judges in
attendance
B. Copies thereof furnished to each branch of court
VI. Reassignment of Cases of Disqualified Judges
A. Records shall be returned to the Exec Judge and case
included in the regular raffle for re-assignment
B. Another case, similar category to one re-assigned, shall
be assigned by raffle to the disqualified or inhibiting
judge as replacement
VII. Dismissed Cases
A. If a dismissed case is re-filed
1. It shall not be included in the raffle
2. It shall be assigned to the branch to which the
original case pertained
B. If such case is raffled and assigned to another branch
1. The latter must transfer the case to the branch to
which it originally belonged
2. Another case shall be assigned as replacement
VIII. Pairing System
A. Every branch shall be considered as paired with another
branch
 B. In the event of vacancy in any branch, or absence of
judge, all incidental and interlocutory matters
pertaining to it may be acted upon by the judge of the
other branch paired with it
C. Latter may likewise conduct trials or hearings on merits
in criminal cases with detention prisoners assigned to
another branch as well as other kinds of cases
D. Branch 1 paired with 2; 3 with 4; and so on
1. Any branch without a pair shall be paired with the
branch presided by the Exec Judge in addition to
the latters regular pair
E. In case of vacancy of 2 pair branches, or prolonged
absence of both presiding judges
1. Incidental and interlocutory matters shall be acted
by the Exec Judge

Administrative Order No. 134-92 Re: Pairing System for Single Sala
Stations
A. In the event of vacancy in a single sala station, or absence
or disability of the judge thereof, and no acting judge has
yet been assigned
1. The clerk, upon request of party, shall refer any
urgent matter requiring immediate action to the
nearest presiding judge of the appropriate RTC or
MTC with jurisdiction to act on the matter
a. Such presiding judge is authorized to hear and
resolve any urgent matters requiring immediate
attention prior to the appointment of a new
judge, return of the regular judge, or assignment
of acting judge
b. If nearest court is a multiple sala station, matter
shall be referred to the Exec Judge
B. Before making such referral, the clerk:
1. Shall certify that the station is vacant, or that the
judge is absent or disabled, and no acting judge has
been designated
2. Notify such referral to the:
a. RTC Exec Judge with jurisdiction over the MTC
Single Sala Station concerned; or
b. Court Administrator of an RTC Single Sala
Station
C. The presiding judge shall act on all matters pertaining to
the paired single sala station in the said station utilizing its
personnel and facilities
1. Attendance shall be deemed to be on official business
2. However, if his travel to the paired single sala would
cause delay, he may act in his own station
D. If there are 2 or more single sala courts more or less
equidistant from the court without a judge, referral made
to:
1. Presiding judge most senior in station
2. If judges are of equal seniority, then to the presiding
judge with the least number of pending cases

END OF RULE 20

168
NOTES ON RULE 20

169

RULE 21
SUBPOENA
Subpoena v. Summons
SUBPOENA SUMMONS
An order to appear and testify
or to produce books and An order to answer complaint
documents
May be served to a non-party Served on the defendant
Needs tender of kilometrage,
Does not need tender of
attendance fee and reasonable
kilometrage and other fees
cost of production fee
SECTION 1 - Subpoena and subpoena duces tecum. Subpoena is
a process directed to a person requiring him to attend and to
testify at the hearing or the trial of an action, or at any
investigation conducted by competent authority, or for the taking
of his deposition. It may also require him to bring with him any
books, documents, or other things under his control, in which
case it is called a subpoena duces tecum. (1a, R23)
Subpoena Ad Testificandum (SAT) a process directed to a person
requiring him to attend and to testify at the hearing or the trial of an
action, or at any investigation conducted by competent authority or
for the taking of his deposition
Subpoena Duces Tecum (SDT) a process directed to a person
requiring him to bring with him books, documents, or other things
under his control
SECTION 2 - By whom issued.The subpoena may be issued by
a) the court before whom the witness is required to
attend;
b) the court of the place where the deposition is to be
taken;
c) the officer or body authorized by law to do so in
connection with investigations conducted by said
officer or body; or
d) any Justice of the Supreme Court or of the Court of
Appeals in any case or investigation pending within
the Philippines.
When application for a subpoena to a prisoner is made, the
judge or officer shall examine and study carefully such application
to determine whether the same is made for a valid purpose.
No prisoner sentenced to death, reclusion perpetua or life
imprisonment and who is confined in any penal institution shall
be brought outside the said penal institution for appearance or
attendance in any court unless authorized by the Supreme Court.
(2a, R23)
Who May Issue:
1. Court before whom the witness is required to attend
2. Court of the place where the deposition is to be taken
3. Officer or body authorized by law to do so in connection
with investigations conducted by said officer or body; or
4. Any justice of the SC or of the CA, in any case or
investigation pending within the Philippines
Note: Sec. 38(2), BP 129 All processes issued by the MTC and
MCTC in cases falling within their jurisdiction may be served
anywhere in the Philippines without the necessity of certification by
the judge of the RTC
170
SECTION 3 - Form and contents.A subpoena shall state the
name of the court and the title of the action or investigation, shall
be directed to the person whose attendance is required, and in
the case of a subpoena duces tecum, it shall also contain a
reasonable description of the books, documents or things
demanded which must appear to the court prima facie relevant.
(3a, R23)
A Subpoena:
1. Shall state the name of the court and the title of the action
or investigation
2. Shall be directed to the person whose attendance is
required
3. In case of a subpoena duces tecum, shall contain a
reasonable description of the books, documents, or things
demanded which must appear to the court to be prima
facie relevant
The SDT is, in all respects, like the ordinary SAT with the exception
that it concludes with an injunction that the witness shall bring with
him and produce at the examination the books, documents, or things
described in the subpoena
Before a subpoena duces tecum may issue, the court must first be
satisfied that the following requisites are present:
1. The books, documents, or other things requested must
appear prima facie relevant to the issue subject of the
controversy (test of relevancy)
2. Such books must be reasonably described by the parties to
be readily identified (test of definiteness)
In determining whether the production of the documents described
in a SDT should be enforced, it is proper to consider the following:
1. Whether the subpoena calls for the production of specific
documents, or rather for specific proof; and
2. Whether that proof is prima facie sufficiently relevant to
justify enforcing its production
It is the duty of petitioner to prove, to the satisfaction of the court,
the relevancy and definiteness of the books and documents he seeks
to be brought before it.
SECTION 4 - Quashing a subpoena.The court may quash a
subpoena duces tecum upon motion promptly made and, in any
event, at or before the time specified therein if it is unreasonable
and oppressive, or the relevancy of the books, documents or
things does not appear, or if the person in whose behalf the
subpoena is issued fails to advance the reasonable cost of the
production thereof.
The court may quash a subpoena ad testificandum on the
ground that the witness is not bound thereby. In either case, the
subpoena may be quashed on the ground that the witness fees
and kilometrage allowed by these Rules were not tendered when
the subpoena was served. (4a, R23)
Quashing a Subpoena:
A. SDT may be quashed upon:
1. Motion promptly made; AND
2. Proof that:
a. It is unreasonable and oppressive
b. The articles sought to be produced do not
appear prima facie to be relevant to the issues;
or
c. The person asking for the subpoena does not
advance the cost for the production of the
articles desired
 B. SAT may be quashed on the ground:
1. That the witness is not bound thereby, or
2. That the witness fees and kilometrage allowed by the
Rules were not tendered when subpoena was served
Note: In either case, the subpoena may be quashed for failure to
tender the witness fees and kilometrage allowed by the Rules
Period to File Motion to Quash at or before time specified in the
subpoena
SECTION 5 - Subpoena for depositions.Proof of service of a
notice to take a deposition, as provided in sections 15 and 25 of
Rule 23, shall constitute sufficient authorization for the issuance
of subpoenas for the persons named in said notice by the clerk of
the court of the place in which the deposition is to be taken. The
clerk shall not, however, issue a subpoena duces tecum to any
such person without an order of the court. (5a, R23)
Breakdown of Provision
A. Proof of service of a notice to take deposition shall constitute
sufficient authorization for the issuance of subpoenas for
persons named in said notice
1. By the clerk in which the deposition is to be taken
B. The clerk shall not issue a subpoena duces tecum to any such
person without an order of the court
SECTION 6 - Service.Service of a subpoena shall be made in the
same manner as personal or substituted service of summons. The
original shall be exhibited and a copy thereof delivered to the
person on whom it is served, tendering to him the fees for one
days attendance and the kilometrage allowed by these Rules,
except that, when a subpoena is issued by or on behalf of the
Republic of the Philippines or an officer or agency thereof, the
tender need not be made. The service must be made so as to allow
the witness a reasonable time for preparation and travel of the
place of attendance. If the subpoena is duces tecum, the
reasonable cost of producing the books, documents or things
demanded shall also be tendered. (6a, R23)
Breakdown of Provision
A. Service of subpoena
1. Shall be made in the same manner as personal or
substituted service of summons
2. Original shall be exhibited
3. Copy thereof delivered to the person on whom it is
served
a. Tender to him the fees for one days attendance
and the kilometrage allowed by the Rules
(1) EXCEPT: when a subpoena is issued by or on
behalf of the Republic or an officer or agency
thereof, tender need not be made
b. If SDT, reasonable cost of producing the books,
documents, or things demanded shall also be
tendered
B. Service must be made so as to allow the witness a
reasonable time for the preparation and travel to place of
attendance
Note: Administrative Circular No. 4, Sept. 22, 1988 authorized
service of subpoena by counsel or their representatives to insure
service thereof and return of the same.
171
SECTION 7 - Personal appearance in court.A person present in
court before a judicial officer may be required to testify as if he
were in attendance upon a subpoena issued by such court or
officer. (10, R23)
Personal appearance Sec. 7
GENERAL RULE:
1. The court which issued the subpoena may issue a warrant
for the arrest of the witness and make him pay the cost of
such warrant and seizure, if the court should determine
that his disobedience was willful and without just cause
(Sec. 8)
2. The refusal to obey a subpoena without adequate cause
shall be deemed contempt of the court issuing it (Sec. 9)
EXCEPTIONS: Provisions regarding the compelling of attendance
(Sec. 8) and contempt (Sec. 9) do not apply where:
1. Witness resides more than 100km from his residence to
the place where he is to testify by the ordinary course of
travel (Viatory Right) and
This refers to civil cases only, not criminal
2. Permission of the court in which the detention prisoners
case is pending was not obtained
SECTION 8 - Compelling attendance.In case of failure of a
witness to attend, the court or judge issuing the subpoena, upon
proof of the service thereof and of the failure of the witness, may
issue a warrant to the sheriff of the province, or his deputy, to
arrest the witness and bring him before the court or officer where
his attendance is required, and the cost of such warrant and
seizure of such witness shall be paid by the witness if the court
issuing it shall determine that his failure to answer the subpoena
was willful and without just excuse. (11, R23)
Breakdown of Provision
A. In case of failure of witness to attend
1. Court or judge issuing the subpoena may issue a
warrant
a. Upon proof of service thereof and
b. Of the failure of the witness
2. Warrant issued to the sheriff of the province, or his
deputy, to arrest the witness and bring him before the
court or officer where his attendance is required
B. If the court issuing subpoena determines that his failure to
answer was willful and without just cause
1. He shall pay the cost of such warrant and his seizure
SECTION 9 - ContemptFailure by any person without adequate
cause to obey a subpoena served upon him shall deemed a
contempt of the court from which the subpoena is issued. If the
subpoena was not issued by a court, the disobedience thereto
shall be punished in accordance with the applicable law or Rule
(12a, R23)
Breakdown of Provision
A. Failure by any person without adequate cause to obey a
subpoena served upon him shall be deemed a contempt of
court from which the subpoena is issued
B. If subpoena was not issued by a court
1. Disobedience thereto shall be punished in accordance
with the applicable law or rule
Examples of subpoenas not issued by a court
1. Subpoena issued by a fiscal or prosecutor disobedience
of which is punishable as contempt of court
 2. Subpoena issued by a commissioner disobedience
thereto shall be punished as contempt of the court who
appointed the commissioner

Relevant Laws:
1. Sec. 12, Rule 71 Contempt against quasi-judicial entities
Unless otherwise provided by law, this Rule shall apply
to contempt committed against persons, entities, bodies or
agencies, exercising quasi-judicial functions, or shall have
suppletory effect to such rules as they may have adopted
pursuant to authority granted to them by law to punish for
contempt. The RTC of the place wherein the contempt has
been committed shall have jurisdiction over such charges
as may be filed therefore.
2. Sec. 13, Book VII, 1987 Admin Code Subpoena In any
contested case, the agency shall have the power to require
the attendance of witnesses for the production of books,
papers, documents, and other pertinent data, upon request
of any party before or during the hearing upon showing of
general relevance. Unless otherwise provided by law, the
agency may, in case of disobedience, invoke the aid of the
RTC within whose jurisdiction the contested case being
heard falls. The Court may punish contumacy or refusal as
contempt.

SECTION 10 - Exceptions.The provisions of sections 8 and 9 this

Rule shall not apply to a witness who resides more than one
hundred (100) kilometers from his residence to the place where
he is to testify by the ordinary course of travel, or to a detention
prisoner if no permission of the court in which his case is pending
was obtained. (9a, R23)

Note: This rule applies solely to civil cases.

END OF RULE 21

172
NOTES ON RULE 21

173

RULE 22
COMPUTATION OF TIME
SECTION 1 - How to compute time.In computing any period of
time prescribed or allowed by these Rules, or by order the court,
or by any applicable statute, the day of the act or event from
which the designated period of time begins to run is to excluded
and the date of performance included. If the last day of the period,
as thus computed, falls on a Saturday, a Sunday, or a legal holiday
in the place where the court sits, the time shall not run until the
next working day. (n)
Breakdown of Provision
A. In computing any period of time:
1. Day of the act or event from which the designated
period of time begins to run is excluded
2. Date of performance included
B. If last day of period falls on a Saturday, Sunday, or legal
holiday in the place where the court sits
1. Time shall not run until the next working day
Note: First day excluded and last day included
Art. 13, CC When the law speaks of years, months, days or nights, it
shall be understood that years are of 365 days each; months, of 30
days; days, of 24 hours; and nights from sunset to sunrise.
If months are designated by their name, they shall be
computed by the number of days which they respectively have.
In computing a period, the first day shall be excluded, and
the last day included.
Since Rule 22 is based on the provisions of Art. 13, the meaning of
the terms therein are also applicable
- A pleading filed on the last day of the reglementary period
but after office hours is still considered reasonably filed if
duly mailed (Caltex Phil. Inc. v. Katipunan Labor Union)
- Or is received by a person authorized to do so (De Chavez
v. Ocampo)
Applicability of Rule 22
- The rule refers to the computation of period of time
- It does not apply to a specific date fixed for the
performance of an act
- It applies only when the period of time is prescribed by the
Rules, by order of court, or by any applicable statute
Rule 22 adopts the rule on pretermission of holidays the exclusion
of such holidays in the computation of the period, whenever the first
2 conditions stated in Sec. 1 are present
In considering the application of the rule on pretermission of
holidays:
- The 2nd sentence of Sec. 1 refers to the place where the
court sits
- Note that some non-working holidays are applicable to
and observed only in some particular places
So, the method of computation under Rule 22 does not generally
apply to the following cases:
- Those provided in a contract (Art. 1159)
- A specific date fixed for a court hearing or foreclosure sale
- Prescriptive (not reglementary) periods specifically
provided by the RPC for felonies therein
E.g. Computation of the appeal periods
- First day excluded
174
- Last day included
Unless it is a Saturday, Sunday, or legal holiday
a. In such case, the time shall run until the end of
the next day which is neither a Saturday, Sunday
nor a Holiday
(1) Note that under the present rules, Saturday
is included in the pretermission of holidays
b. The period to perfect an appeal is extended ipso
jure to the first working day immediately
following
Note: Extension of time to file the required pleading should
therefore be counted from the expiration of the period regardless of
the fact that said due date is a Saturday
A.M. No. 00-2-14-SC
A. Sec. 1, Rule 22 applies in the matter of filing of pleadings in
courts when the due date falls on a Saturday, Sunday, or
legal holiday
1. In which case, the filing of the said pleading on the
next working day is deemed on time
B. Question: If the period is extended ipso jure to the next
working day immediately following where the last day of
the period is a Saturday, Sunday, or legal holiday
1. So that when a motion for extension is filed, period of
extension is to be reckoned from the next working
day and not from the original expiration of the period
C. The Court resolves:
1. Sec. 1, Rule 22 speaks only of the last day of the
period
a. So when a party seeks an extension and the
same is granted, the due date ceases to be the
last day
b. Hence, the provision no longer applies
2. Any extension of time to file should be counted from
the expiration of the period regardless of the fact that
said due date is a Saturday, Sunday, or legal holiday
SECTION 2 - Effect of interruption.Should an act be done which
effectively interrupts the running of the period, the allowable
period after such interruption shall start to run on the day after
notice of the cessation of the cause thereof.
The day of the act that caused the interruption shall be
excluded in the computation of the period. (n)
Pretermission of Holidays
- Sec. 28, Rev. Admin. Code Where the day, or the last day,
for doing an act required or permitted by law falls on a
regular holiday or special day, the act may be done on the
next succeeding business day
- It was earlier held that the computation of the appeal
period is to the effect that the first day shall be excluded
but the last day of the period so computed is to be included
Unless it is a Sunday or a legal holiday
a. In which event, the time shall run until the end
of the next day which is neither a Sunday nor a
holiday
b. Note that the present rule includes Saturday in
the pretermission of holiday
Holidays (Sec. 26, Chap. 7, Book 1, Admin Code)
A. Regular Holidays
1. New Years Day Jan. 1
2. Maundy Thursday Movable date
3. Good Friday Movable date
4. Araw ng Kagitingan April 19
5. Labor Day May 1
 6. Independence Day June 12 - A party litigant may either:
7. National Heroes Day Last Sunday of August a. File his notice of appeal within 15 days from receipt
8. Bonifacio Day Nov. 30 of the RTCs decision or
9. Christmas Day Dec. 25 b. File it within 15 days from receipt of the final order
10. Rizal Day Dec. 30 denying his motion for new trial or motion for
B. Nationwide Special Days reconsideration
1. All Saints Day Nov. 1 - The new 15-day period may be waived only if either
2. Last Day of the Year Dec. 31 motion is filed
C. Sec. 27 Local Special Days - The president may proclaim - Otherwise, the decision becomes final and executory after
any local special day for a particular date, group or place the lapse of the original appeal period provided in Rule 41,
Sec. 3

Filing of Motion for New Trial Interrupts Period to Appeal
The filing of a proper motion for new trial interrupts the running
period of appeal which begins to run again from receipt of notice by
the movant of the order denying his motion.
As held in Lloren v. de Veyra
- The party adversely affected has only the balance of the
period within which to perfect his appeal
- Balance is the number of days remaining of the
reglementary period after deducting the time during
which the motion was pending
- If the motion for new trial was filed on the last day of the
reglementary period, the movant may appeal within the
day following the service on him of the order denying his
motion
When Pretermission of Holiday Applies
- The pretermission applies only where the day or the last
day for doing any act, required or permitted by law, falls
on a holiday or when the last day of a given period for
doing an act falls on a holiday
- It does not apply to a day fixed by an office or officer of
government for an act to be done
- E.g.
1. If a party is required by law to file his answer to a
complaint within 15 days from receipt of summons,
and the last day is a holiday, last day is deemed
moved to the next succeeding, business day
2. But if the court fixes the trial of a case on a certain
day bit said date is subsequently declared a public
holiday, the trial thereof is not automatically
transferred to the next succeeding business day

Applying the ruling in Lloren:

- Where the MFR was filed on Sep. 13, the 15th day after
petitioner received a copy of the courts decision END OF RULE 22
Denial of motion was received Sep. 30
- Then the last day to perfect appeal was on Oct. 1
Right to file the petition for review would have
expired on Oct 1, not Sep. 30
- When the petitioner asked for an extension of 15 days to
file his petition for review,
The 15-day period no longer includes Oct .1 because
that day was already given to him by Rule 41
The 15-day period is on top of Oct. 1
It starts on Oct. 1 and ends on Oct. 16

NOTE: The foregoing rule NO LONGER HOLDS TRUE

To standardize the appeal periods provided in the Rules and to

afford litigants fair opportunity to appeal, the Court en banc deems it
practical to allow a fresh period of 15 days within which to file the
notice of appeal in the RTC, counted from the receipt of order
denying a motion for a new trial or motion for reconsideration

This Fresh Period Rule shall also apply to:

1. Rule 40 appeals from MTC to RTC
2. Rule 42 petitions for review from RTC to the CA
3. Rule 43 appeals from quasi-judicial bodies to CA
4. Rule 45 appeals by certiorari to the SC

This new rule aims to regiment or make the appeal period uniform
- Counted from the receipt of the order denying motion for
new trial, motion for reconsideration, or any final order or
resolution

In summary:
- The fresh period of 15 days becomes significant only when
a party opts to file a motion for new trial or motion for
reconsideration

175
NOTES ON RULE 22

176

RULE 23
DEPOSITIONS PENDING ACTION
DISCOVERY a device employed by a party to obtain information
about relevant matters on the case from the adverse party in the
preparation for trial
Purpose to enable the parties to obtain the fullest possible
knowledge of the issues and evidence long before the trial to prevent
such trial from being carried on in the dark
MODES OF DISCOVERY UNDER THE RULES
1. Depositions pending actions Rule 23
2. Depositions before action or pending appeal Rule 24
3. Interrogatories to parties Rule 25
4. Admission by adverse party Rule 26
5. Production or inspection of documents or thing Rule 27
6. Physical and mental examination of persons Rule 28
Note: The modes of discovery are intended to be cumulative and not
alternative or mutually exclusive
Note: Discovery is not mandatory but failure to avail carries
sanctions in Rules 25 and 26. Rule 29 provides for the legal
consequences for the refusal of a party to comply with such modes of
discovery lawfully resorted to by the adverse party
Limitations to discovery: Relevancy and Privilege
1. When it can be shown that the examination is being
conducted in bad faith or in such a manner as to annoy,
embarrass, or oppress the person subject to the inquiry
(See Sec. 16 and 18, Rule 23)
2. When the inquiry touches upon the irrelevant or
encroaches upon the recognized domains of privilege
(Hickman v. Taylor)
DEPOSITIONS IN GENERAL
Deposition a written testimony of a witness given in the course of a
judicial proceeding in advance of the trial or hearing upon oral
examination or in response to written interrogatories and where an
opportunity is given for cross-examination
Depositions are different from Affidavits
- Affidavits are ex parte statements without formal
interrogation and opportunity for cross-examination
- Affidavits are not admissible in evidence
EXCEPT in cases governed by the Rule on Summary
Procedure or in ordinary cases subject to cross-
examination
Purpose of Depositions
- Intended as a means to compel disclosure of facts resting
in the knowledge of a party or other person, which are
relevant in a suit or proceeding
Classification of Depositions
1. Depositions on oral examination and depositions upon
written interrogatories
2. Depositions can also be:
a. Depositions de bene esse those taken for purposes
of a pending action (Rule 23)
b. Depositions in perpetuam rei memoriam those
taken to perpetuate evidence for purposes of an
177
anticipated action or further proceedings in a case on
appeal (Rule 24)
Note: In Discovery, evidentiary matters may be inquired into
- The undertaking of laying the facts before the court is
accomplished by the pleadings; but these pleadings only
set forth the ultimate facts
- Although a bill of particulars may be served to make a
more definite statement, the office of the bill of particulars
is limited to make more particular the ultimate facts of the
pleading
- As such, evidentiary matters may be inquired into and
learned by the parties before the trial through the
deposition-discovery mechanisms set forth in Rule 24-29
The various modes or instruments of discovery are meant to serve:
1. As a device, along with the pre-trial hearing under Rule 20
to narrow and clarify the basic issues between the parties
2. And as a device for ascertaining the facts relative to those
issues
Dual Functions of Deposition
1. A method of discovery
2. A method of presenting testimony in lieu of oral open
court testimony
SECTION 1 - Depositions pending action, when may be taken.By
leave of court after jurisdiction has been obtained over any
defendant or over property which is the subject of the action,
without such leave after an answer has been served, the
testimony of any person, whether a party or not, may be taken, at
the instance of any party, by deposition upon oral examination or
written interrogatories. The attendance of witnesses may be
compelled by the use of a subpoena as provided in Rule 21.
Depositions shall be taken only in accordance with these Rules.
The deposition of a person confined in prison may be taken only
by leave of court on such terms as the court prescribes. (1a, R24)
Breakdown of Provision
A. Deposition may be taken:
1. By leave of court after jurisdiction has been obtained
over any defendant or over property which is the
subject of the action
2. Without leave of court after an answer has been
served
B. Testimony of any person, whether a party or not, may be
taken, at the instance of any party
1. By deposition upon oral examination or
2. By deposition upon written interrogatories
C. Attendance of witnesses may be compelled by the use of
subpoenas as provided in Rule 21
D. Deposition shall be taken only in accordance with Rules
E. Deposition of a person confined in person may be taken only
by leave of court on such terms as the court prescribes
When Taken:
A. With leave of court
1. After jurisdiction has been obtained over any
defendant or over the property which is the subject of
the action
a. But BEFORE an answer has been served
2. Deposition of a person confined in prison
B. Without leave of court
1. After answer has been served
2. Deponent is not confined in prison
Note: An answer ex abudanti cautela (out of abundant caution or to
be on the safe side) does not make an answer less of an answer
- Thus, when an answer ex abudanti cautela is filed,
deposition may be made without leave of court
Preliminary Step: Send notice of taking deposition
- This is done through a request for subpoena
- See Sec. 5, Rule 21 on Subpoena for Depositions
Note that the following modes may be availed of without leave
of court, and generally without court intervention after an
answer to the complaint has been served:
1. Depositions under Rule 23
2. Interrogatories to parties under Rule 25
3. Requests for admissions under Rule 26
General Rule: Plaintiff may not be permitted to take depositions
before answer is served
- Plaintiff must await the joinder of issues because if the
discovery is to deal with matters relevant to the case, it is
difficult to know exactly what is relevant until issues are
developed
- Prior to the time of delineation of issues, matter is in the
control of the court
Exception: Depositions before answer
- Depositions before an answer should be granted only
under special circumstances where the conditions point to
the necessity of presenting a strong case for allowance of
the motion
- There must be some necessity or good reason for
taking the testimony immediately or that it would be
prejudicial to the party seeking the order to be compelled
to await joinder of issues
- Examples: If the witness is:
Aged or infirm
About to leave the courts jurisdiction
Only temporarily in the jurisdiction
- When movants reason does not amount to exceptional or
unusual case to grant leave of court to allow the
depositions, the court may refuse leave to the taking of
such before the answer
SECTION 2 - Scope of examination.Unless otherwise ordered by
the court as provided by section 16 or 18 of this Rule, the
deponent may be examined regarding any matter, not privileged,
which is relevant to the subject of the pending action, whether
relating to the claim or defense of any other party, including the
existence, description, nature, custody, condition, and location of
any books, documents, or other tangible things and the identity
and location of persons having knowledge of relevant facts. (2,
R24)
Scope of Examination in Depositions
1. Matter which is relevant to the subject of the pending
action made by the pleadings or likely to arise under the
pleadings
2. Not privileged
3. Under such limitations as the court may order under Sec.
16 and 18
Not restricted by a protective order
The field of inquiry that may be covered by depositions or
interrogatories is as broad as when the interrogated party is called
as a witness to testify orally at trial
- Inquiry extends to all facts which are relevant
Ultimate and evidentiary
178
Except those that are privileged
- Note that Sec. 2 generally allows the examination of a
deponent:
1. Regarding any matter, not privileged which is
relevant to the subject of the pending action, whether
relating to the claim or defense of any other party
2. As well as:
a. The existence, description, nature, custody,
condition and location of any books, documents,
or other tangible things; and
b. The identity and location of persons having
knowledge of relevant facts
Broader meaning of relevancy
- Relevant is synonymous to germane
- The law contemplates examination, not only for use as
evidence but also to discover information which may be
useful in the preparation for trial
- Not limited by the rules of admissibility of evidence
- Relevancy of evidence sought at the taking of deposition
should be determined at the trial and not with a motion to
terminate or limit the examination
UNLESS it plainly appears in such motion that
evidence can have no possible bearing on the issue
SECTION 3 - Examination and cross-examination .Examination
and cross-examination of deponents may proceed as permitted at
the trial under sections 3 to 18 of Rule 132. (3a, R24)
SECTION 4 - Use of depositions.At the trial or upon the hearing
of a motion or an interlocutory proceeding, any part or all of a
deposition, so far as admissible under the rules of evidence, may
be used against any party who was present or represented at the
taking of the deposition or who had due notice thereof, in
accordance with any one of the following provisions:
(a) Any deposition may be used by any party for the
purpose of contradicting or impeaching the testimony
of deponent as a witness;
(b) The deposition of a party or of any one who at the time
of taking the deposition was an officer, director, or
managing agent of a public or private corporation,
partnership, or association which is a party may be
used by an adverse party for any purpose;
(c) The deposition of a witness, whether or not a party,
may be used by any party for any purpose if the court
finds: (1) that the witness is dead; or (2) that the
witness resides at a distance more than one hundred
(100) kilometers from the place of trial or hearing, or is
out of the Philippines, unless it appears that his absence
was procured by the party offering the deposition; or
(3) that the witness is unable to attend or testify
because of age, sickness, infirmity, or imprisonment; or
(4) that the party offering the deposition has been
unable to procure the attendance of the witness by
subpoena; or (5) upon application and notice, that such
exceptional circumstances exist as to make it desirable,
in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses
orally in open court, to allow the deposition to be used;
and
(d) If only part of a deposition is offered in evidence by a
party; the adverse party may require him to introduce
all of it which is relevant to the part introduced, and any
party may introduce any other parts. (4a, R24)
Use of Depositions the use of depositions depends on whether
deponent is a party or not:
1. The depositions may be used for contradicting or
impeaching the testimony of deponent not as proof of
specific facts
a. If deponent does not testify and is not a party,
deposition cannot be used for this purpose
2. Deposition of an ADVERSE party may be used for any
purpose
It may be used as an admission
A deposition cannot, however, be used in the trial of a
case against a defendant who was not a party to the
action when the deposition was taken
3. Deposition of a witness or party may be used for any
purpose under the following circumstances:
a. Witness is dead there must be proof of death or
presumption of death and that deposition was legally
taken
b. Non-residence of deponent where it appears that
the absence of deponent was procured by the party
offering the deposition of the same cannot be
received in evidence
c. Disability of a witness age, sickness, infirmity, or
imprisonment. The certificate of the attending
physician that the witness is in a precarious condition
is sufficient
d. Inability to procure attendance of witness by
subpoena
e. Exceptional circumstances
Five instances where deposition of any Witness may be used for ANY
Purpose:
1. The witness is dead
2. The witness resides more than 100km from the place of
trial or hearing, or is out of the Philippines.
UNLESS it appears that his absence was procured by
the party offering the deposition
3. The witness is unable to testify because of age, sickness,
infirmity, or imprisonment
4. The party offering the deposition has been unable to
procure the attendance of the witness by subpoena, or
5. Upon application and notice, that such exceptional
circumstances exist as to make it desirable in the interest
of justice
Note: Where the witness is available to testify and the situation is
not one of those excepted under Sec. 4, his deposition is inadmissible
in evidence and he should be made to testify
DEPONENT USE
By any party for contradicting
Any person or impeaching the testimony of
deponent as witness
A party or anyone who at the
time of the deposition was an
officer, director, or managing By an adverse party for any
agent, of a public or private purpose
corporation or partnership, or
association which is a party
By any party for any purpose if
Witness, whether or not a
the court finds the 5 instances
party
occurring
Note: Depositions can be used as evidence by a party (for any
purpose) under the specific conditions in Sec. 4
Note: Certiorari will not lie against an order admitting or rejecting a
deposition in evidence. The remedy is an appeal from the final
judgment. (This merely an error of law, not abuse of discretion)
179
Remember: Depositions are not generally meant to be a substitute
for the actual testimony in open court of a party witness
- The deponent must, as a rule, be presented for oral
examination in open court at trial
- Any deposition offered to prove the facts therein at trial of
the case, in lieu of actual testimony, may be opposed and
excluded for being hearsay
Except those in specific instances authorized by the
Rules and under particular conditions and for certain
limited purposes
SECTION 5 - Effect of substitution of parties.Substitution of
parties does not affect the right to use depositions previously
taken; and, when an action has been dismissed and another action
involving the same subject is afterward brought between the
same parties or their representatives or successors in interest, all
depositions lawfully taken and duly filed in the former action may
be used in the latter as if originally taken therefor. (5, R24)
Breakdown of Provision
A. Substitution of parties does not affect the right to use
depositions previously taken
B. When the action has been dismissed and another action
involving the same subject is afterward brought between the
same parties or their representatives or successors-in-
interest,
1. All depositions lawfully taken and duly filed in former
action may be used in the latter
SECTION 6 - Objections to admissibility.Subject to the
provisions of section 29 of this Rule, objection may be made at the
trial or hearing to receiving in evidence any deposition or part
thereof for any reason which would require the exclusion of the
evidence if the witness were then present and testifying. (6, R24)
Breakdown of Provision
A. Objection may be made at the trial or hearing
1. To receiving in evidence any deposition or part thereof
2. For any reason which would require the exclusion of
evidence if witness were then present and testifying
B. Subject to Sec. 29
SECTION 7 - Effect of taking depositions.A party shall not be
deemed to make a person his own witness for any purpose by
taking his deposition. (7, R24)
SECTION 8 - Effect of using depositions.The introduction in
evidence of the deposition or any part thereof for any purpose
other than that of contradicting or impeaching the deponent
makes the deponent the witness of the party introducing the
deposition, but this shall not apply to the use by an adverse party
of a deposition as described in paragraph (b) of section 4 of this
Rule. (8, R24)
GENERAL RULE: A party shall not be deemed to make a person his
own witness for any purpose by taking his deposition because
depositions are taken for discovery and not for use as evidence
EXCEPTION: If a party offers the deposition in evidence, then he is
deemed to have made the deponent his witness (Sec. 8)
EXCEPTIONS TO THE EXCEPTION: (Sec. 8)
1. The deposition is that of an opposing party OR
2. The deposition is used to impeach or contradict the
opponent
 SECTION 9 - Rebutting deposition.At the trial or hearing, any
party may rebut any relevant evidence contained in a deposition
whether introduced by him or by any other party. (9, R24)
A party may rebut any relevant evidence contained in a deposition
- Whether introduced by him or by another party
- At the trial or hearing
SECTION 12 - Commission or letters rogatory.A commission or
letters rogatory shall be issued only when necessary or
convenient, on application and notice, and on such terms and with
such direction as are just appropriate. Officers may be designated
in notices or commissions either by name or descriptive title and
letters rogatory may be addressed to the appropriate judicial
authority in the foreign country. (12n, R24)

SECTION 10 - Persons before whom depositions may be taken Breakdown of Provision

within the Philippines.Within the Philippines, depositions must A. A commission or letters rogatory shall be issued:
be taken before any judge, notary public, on the person referred 1. Only when necessary or convenient
to in section 14 hereof. (10a, R24) 2. On application and notice
3. On such terms and with such direction
SECTION 11 - Persons before whom depositions may be taken in B. Officers may be designated in notices or commissions either
foreign countries.In a foreign state or country, depositions may by name or descriptive title
be taken (a) on notice before a secretary of embassy or legation, C. Letters rogatory may be addressed to the appropriate
consul general, consul, vice-consul, or consular agent of the judicial authority in the foreign country
Republic of the Philippines; (b) before such person or officer as
may be appointed by commission or under letters rogatory; or (c) Commission an instrument issued by a court of justice, or other
the person referred to in section 14 hereof. (11a, R24) competent tribunal, to authorize a person to take depositions or do
any other act by authority of such court or tribunal
Persons before whom depositions may be taken:
A. Within the Philippines: Letters Rogatory an instrument sent in the name and by the
1. Judge authority of a judge or court to another, requesting the latter to
2. Notary Public, or cause to be examined, upon interrogatories filed in a case pending
3. Any person authorized to administer oaths, as before the former, a witness who is within the jurisdiction of the
stipulated by the parties in writing judge or court to whom such letters are addressed
B. Outside the Philippines
1. On notice before a secretary of embassy or legation, COMMISSION LETTERS ROGATORY
consul general, consul, vice-consul, or consular agent Issued to the appropriate
of the Philippines Issued to a non-judicial foreign judicial officer of the foreign
2. Before such person or officer as may be appointed by officer who will directly take country who will direct
commission or under letter rogatory or the testimony somebody in said foreign
3. Any person authorized to administer oaths as country to take down testimony
stipulated by parties in writing Applicable rules of procedure Applicable rules of procedure
are those of the requesting are those of the foreign court
Leave of court is not necessary where the deposition is to be taken court requested to act
before a secretary of embassy or legation, consul general, consul, Resorted to if the execution of
Resorted to if permission of
vice-consul or consular agent and the defendants answer has the commission is refused in
the foreign country is given
already been served the foreign country
- The court intervenes only if a party moves: Leave of court is not necessary Leave of court is necessary
1. To enlarge or shorten the time stated in the notice, or Addressed to officers Addressed to some appropriate
2. Upon notice and for good cause shown, to prevent the designated either by name or judicial authority in the foreign
deposition-taking, or impose conditions thereon descriptive title state

While the deposition taking is a departure from the accepted and
usual judicial proceedings of examining witnesses in open court
where the demeanor could be observed by judge, the procedure is
not on that account rendered illegal nor is the deposition taken
inadmissible
- It precisely falls within one of the exceptions where the
law permits such situation
The use of deposition in lieu of actual appearance
and testimony of the deponent in open court
- Depositions are allowed provided that the deposition is
taken in accordance with the applicable provisions of the
Rules and the existence of any of the exception for its
admissibility is first satisfactorily established
The Rules vests in the trial court the discretion to order whether a
deposition may be taken or not under specified circumstances that
may even differ from those the proponents have in mind
- It is well-settled that this discretion is not unlimited
It must be exercised in a reasonable manner and in
consequence with the spirit of the law, to the end that
its purpose may be attained
Where the deposition is to be taken in a foreign country where the
Philippines has no secretary of embassy, or legation, consul general,
consul, vice-consul, or consular agent:
- Then it may be taken only before such person or officer as
may be taken only before such person or officer as may be
appointed by commission or under letters rogatory
Commission
- A person in a foreign country is appointed as
Commissioner to examine witnesses residing therein
- Foreign countries will not, however, compel the
attendance of witnesses before commissioners appointed
by our courts
- If the witness cooperates and appears voluntarily, the
examination may be held
- If witnesses refuse to appear
The commission must be aborted
Hence, resort to letters rogatory with information to
the foreign court that a similar request in the future
will be honored

180
Letters Rogatory
- Formal communication from a domestic court in which an
action is pending to a foreign court requesting that the
testimony of a witness residing in such foreign jurisdiction
be taken under the direction of the court addressed and
transmitted to the court making the request
- There must be a showing that Commission is inadequate
or ineffective
- Note that letters rogatory may be applied for and issued
only after a commission has been returned unexecuted
SECTION 13 - Disqualification by interest.No deposition shall be
taken before a person who is a relative within the sixth degree of
consanguinity or affinity, or employee or counsel of any of the
parties; or who is a relative within the same degree, or employee
of such counsel; or who is financially interested in the action.
(13a, R24)
No deposition shall be taken before a person who is:
1. A relative within the 6th degree of affinity or consanguinity
2. An employee or counsel of any of the parties
3. A relative within the same degree or employee of such
counsel
4. Financially interested in the action
SECTION 14 - Stipulations regarding taking of depositions.If the
parties so stipulate in writing, depositions may be taken before
any person authorized to administer oaths, at any time or place,
in accordance with these Rules, and when so taken may be used
like other depositions. (14a, R24)
Breakdown of Provision
A. If the parties so stipulate in writing, depositions may be
taken before any person authorized to administer oaths
1. At any time or place
2. In accordance with the Rules
B. When so taken, may be used like other depositions
Note: Whether the deposition is to be taken in the Philippines or in a
foreign country, Sec. 14 applies
SECTION 15 - Deposition upon oral examination; notice; time
and place.A party desiring to take the deposition of any person
upon oral examination shall give reasonable notice in writing to
every other party to the action. The notice shall state the time and
place for taking the deposition and the name and address of each
person to be examined, if known, and if the name is at known, a
general description sufficient to identify him or the particular
class or group to which he belongs. On motion of any party upon
whom the notice is served, the court may for cause shown enlarge
or shorten the time. (15, R24)
Breakdown of Provision
A. A party desiring to take the deposition of any person upon
oral examination shall give reasonable notice in writing to
every other party to the action
B. The notice shall:
1. State the time and place for taking deposition
2. State the name and address of each person to be
examined, if known
a. If not known, a general description sufficient to
identify him or the particular class or group to
which he belongs
C. On motion of any party upon whom notice is served, the
court may for cause shown enlarge or shorten the time
181
The rules provide adequate safeguards to ensure the reliability of
depositions:
1. Notice requirements (Sec. 15, 21, 25, and 27)
2. Orders for the protection of parties and deponents (Sec. 16
and 28)
3. Recording of the examination (Sec. 17 and 26)
4. Motion to terminate or limit the examination (Sec. 18)
5. Certification by deposition officer (Sec. 20)
The right to object to their admissibility is retained by the parties
- As a rule, depositions should be allowed, absent any
showing that the taking would prejudice any party
SECTION 16 - Orders for the protection of parties and deponents.
After notice is served for taking a deposition by oral examination,
upon motion seasonably made by any party or by the person to be
examined and for good cause shown, the court in which the action
is pending may make an order that the deposition shall not be
taken, or that it may be taken only at some designated place other
than that stated in the notice, or that it may be taken only
on written interrogatories, or that certain matters shall not be
inquired into, or that the scope of the examination shall be held
with no one present except the parties to the action and their
officers or counsel, or that after being sealed the deposition shall
b opened only by order of the court, or that secret processes
developments, or research need not be disclosed, or that the
parties shall simultaneously filed specified documents or
information enclosed in sealed envelope to be opened as directed
by the court; or the court may make any other order which justice
requires to protect the party or witness from annoyance,
embarrassment, or oppression. (16a, R24)
Breakdown of Provision
A. After notice is served for taking a deposition by oral
examination
B. Upon motion seasonably made by any party or by the person
to be examined and for good cause shown
C. The court in which the action is pending may make an
order:
1. That the deposition shall not be taken; or
2. That it may be taken only at some designated place
other than that stated in the notice; or
3. That it may be taken only in written interrogatories; or
4. That certain matters shall not be inquired into; or
5. That the scope of the examination shall be held with no
one present except the parties to the action and their
officers or counsel; or
6. That after being sealed, the deposition shall be opened
only by order of the court, or that secret processes,
developments, research need not be disclosed; or
7. That the parties shall simultaneously file specified
documents or information enclosed in sealed envelopes
to be opened as directed by the court; or
8. The court may make any other order which justice
requires to protect the party or witness from
annoyance, embarrassment or oppression
Note: Sec. 16 refers to protective orders before taking of deposition.
For protective orders during taking of deposition, see Sec. 18
The right to take oral examination is not absolute
- Court possesses certain measures of control over the right
of parties in taking deposition in order to prevent abuse
- The provision vests in the court the power to order that
the deposition shall not be taken
This grant connotes the authority to exercise
discretion in connection therewith
 - However, the discretion is not unlimited
It must be exercised in a reasonable manner
In consonance with the spirit of the law
To the end that its purpose may be attained
Requisites
1. Motion by party or person to be examined
2. Motion seasonably filed
3. There is good cause shown
4. Notice of motion served to other party
Note: It is only upon notice and for good cause shown that the court
may order that the deposition shall not be taken
How Good Cause is shown:
1. Good cause means a substantial reason one that affords a
substantial excuse
Particular and specific demonstration of facts, as
distinguished from conclusory statements
2. Availability of proposed deponent to testify in court does
not constitute good cause to justify the courts order that
his deposition shall not be taken
3. Allegation that petitioner merely intended to annoy,
harass, or oppress the proposed deponent cannot ably
support the setting aside of a notice to take deposition in
the absence of proof
4. Inconvenience to the party whose deposition is to be taken
is not valid objection
SECTION 17 - Record of examination; oath; objections.
The officer before whom the deposition is to be taken shall put
the witness or oath and shall personally, or by someone acting
under his direction and in his presence, record the testimony of
the witness. The testimony shall be taken stenographically unless
the parties agree otherwise. All objections made at the time of the
examination to the qualifications of the officer taking the
deposition, or to the manner of taking it, or to the evidence
presented, or to the conduct of any party, and any other objection
to the proceedings, shall be noted by the officer upon the
deposition. Evidence objected to shall be taken subject to the
objections. In lieu of participating in the oral examination, parties
served with notice of taking a deposition may transmit written
interrogatories to the officers, who shall propound them to the
witness and record the answers verbatim. (17, R24)
Breakdown of Provision
A. The officer before whom deposition is to be taken shall:
1. Put the witness on oath
2. Personally, or by someone acting under his direction
and in his presence, record the testimony of the witness
B. Testimony shall be taken stenographically
1. UNLESS the parties agree otherwise
C. All objections made at the time of examination shall be
noted by the officer upon deposition. Objections such as:
1. To the qualifications of the officer taking the deposition
2. To the manner of taking it
3. To the evidence presented
4. To the conduct of any party
5. And any other objection to the proceedings
D. Evidence objected to shall be taken subject to the objections
E. In lieu of participating in the oral examination, parties
served with notice of taking deposition may transmit
written interrogatories to the officers
1. The officers shall propound them to the witness and
record the answers verbatim
182
Notes:
- Officer has no authority to rule on objections
- Refusal of witness to answer at peril of being adjudged in
contempt
Objections interposed do not prevent deponent from answering
questions.
- Exceptions:
1. When questions are annoying, embarrassing, or
oppressive to deponent the matter may be
submitted to the trial judge for a ruling
2. When constitutional privilege against self-
incrimination is invoked by deponent or by counsel in
his behalf trial court may stay the question
Failure of Party to Attend or Serve Answers if a party or an officer
or managing agent of a party willfully fails to appear before the
officer who is to take his deposition, after being served with proper
notice, the court on motion and notice may:
1. Strike out all or any part of any pleading of that party
2. Dismiss the action or proceeding, or any part thereof
3. Enter a judgment by default against that party
4. In its discretion, order him to pay reasonable expenses
incurred by the other, including attorneys fees
Consequences of Refusal to Answer
1. Under Rule 29, if a party or other deponent refuses to
answer any question upon oral examination:
The examination may be completed on other matters
Or adjourned as the proponent of the question may
prefer
2. The proponent may thereafter apply to the proper court,
for an order to compel an answer
The same procedure may be availed of when a party
or a witness refuses to answer any interrogatory
submitted under Rule 23 or 25
3. If application is granted:
a. Court shall require refusing party or deponent to
answer the question or interrogatory
b. If it finds that the refusal to answer was without
substantial justification, it may require the refusing
party or deponent or counsel advising refusal, or
both, to pay the proponent of the amount of
reasonable expenses incurred in obtaining the order,
including attorneys fees
4. If application is denied
a. If court finds that it was filed without substantial
justification, the court may require the proponent or
counsel advising the filing, or both, to pay the
refusing party or deponent the amount of reasonable
expenses incurred in opposing the application,
including attorneys fees
5. If a party or other witness refuses to be sworn or refuses
to answer any question after being directed to do so by the
court, refusal may be considered a contempt of that court
Other consequences: If any party or an officer or managing agent of a
party refuses to obey an order made under Sec.1 of this Rule,
requiring him to answer designated questions, the court may make
such orders in regard to the refusal as are just, and among others the
following:
1. An order that the matters regarding which the questions
were asked, shall be taken to be established for the
purposes of the action in accordance with the claim of the
party obtaining the order
2. An order refusing to allow the disobedient party to
support or oppose designated claims or defenses or
 prohibiting him from introducing in evidence designated
documents or things or items of testimony
3. An order striking out pleadings or parts thereof, or staying
further proceedings until order is obeyed, or dismissing
the action or proceeding or any part thereof, or rendering
a judgment by default against the disobedient party; and
4. In lieu of any of the foregoing orders or in addition thereto,
an order directing the arrest of any party or agent of a
party disobeying any of such orders
5. The case may also be dismissed with prejudice See Sec. 3,
Rule 17 on effects of failure to comply with the order of the
Court
SECTION 18 - Motion to terminate or limit examination.At any
time during the taking of the deposition, on motion or petition of
any party or of the deponent and upon a showing that the
examination is being conducted in bad faith or in such manner, as
unreasonably to annoy, embarrass, or oppress the deponent or
party, the court in which the action is pending or the Regional Trial
Court of the place where the deposition is being taken may order
the officer conducting the examination to cease forthwith from
taking the deposition, or may limit the scope and manner of the
taking of the deposition, as provided in section 16 of this Rule. If
the order made terminates the examination, it shall be resumed
thereafter only upon the order of the court in which the action is
pending. Upon demand of the objecting party or deponent, the
taking of the deposition shall be suspended for the time necessary
to make a notice for an order. In granting or refusing such order,
the court may impose upon either party or upon the witness the
requirement to pay such costs or expenses as the court may deem
reasonable. (18a, R24)
Breakdown of Provision
A. The court may order the officer conducting the examination
to cease from taking the deposition, or may limit the scope
and manner of taking, as provided in Sec. 16
1. The court:
a. In which the action is pending; OR
b. The RTC of the place where the deposition is being
taken
2. At any time during the taking of deposition
3. On motion or petition of:
a. Any party or
b. Of the deponent
4. And upon a showing that the examination is being
conducted:
a. In bad faith
b. Or in such a manner as unreasonably to annoy,
embarrass or oppress the deponent or party
B. If the order made terminates the examination, it shall be
resumed thereafter
1. ONLY upon the order of the court in which the action is
pending
C. Taking of deposition shall be suspended for the time
necessary to make a notice for an order
1. UPON demand of the objecting party or deponent
D. In granting or refusing such order, court may impose upon
either party or upon the witness the requirement to pay
such costs or expenses as the court may deem reasonable
Motion to terminate of limit examination may be filed:
1. Any time during the taking of the deposition
2. On motion or petition of any party or of the deponent; and
3. Upon showing that the examination is conducted in:
a. Bad faith;
b. In such manner as unreasonably to annoy, embarrass,
or oppress the deponent or party
183
Protection Order under v. Motion to Terminate or Limit
PROTECTION ORDER MOTION TO TERMINATE OR
Sec. 16 LIMIT EXAMINATION; Sec. 18
Provides protection to the
Provides such protection
party or witness BEFORE
DURING the taking of deposition
taking deposition
Motion or petition is filed in the
court in which the action is
Motion is filed with the court in
pending OR the RTC of the place
which the action is pending
where the deposition is being
taken
Note: when the constitutional privilege against self-incrimination is
invoked by deponent or counsel, trial court may stop the
examination to protect the deponents constitutional right
SECTION 19 - Submission to witness; changes; signing.When the
testimony is fully transcribed, the deposition shall be submitted to
the witness for examination and shall be read to or by him, unless
such examination and reading are waived by the witness and by
the parties. Any changes in form or substance which the witness
desires to make shall be entered upon the deposition by the officer
with a statement of the reasons given by the witness for making
them. The deposition shall then be signed by the witness, unless
the parties by stipulation waive the signing or the witness is ill or
cannot be found or refuses to sign. If the deposition is not signed by
the witness, the officer shall sign it and state on the record the fact
of the waiver or of the illness or absence of the witness or the fact
of the refusal to sign together with the reason given therefor, if any,
and the deposition may then be used as fully as though signed,
unless on a motion to suppress under section 29 (f) of this Rule, the
court holds that the reasons given for the refusal to sign require
rejection of the deposition in whole or in part. (19a, R24)
Breakdown of Provision
A. When deposition is fully transcribed:
1. Deposition shall be:
a. Submitted to the witness for examination; and
b. Read to or by him
2. UNLESS such examination and reading are waived by
the witness and by the parties
B. Changes in form or substance which witness desires to make
1. Shall be entered upon the deposition by the officer
2. With a statement of the reasons given by the witness
for making them
C. The deposition shall then be signed by the witness
1. UNLESS:
a. The parties by stipulation waive the signing; or
b. The witness is ill or cannot be found or refuses to
sign
D. If deposition is NOT signed by the witness:
1. The officer shall:
a. Sign it
b. And state on record the fact of the waiver, or
illness, or absence, or refusal of witness to sign
c. Together with the reason given therefor, if any
2. The deposition may then be used as fully as though
signed
a. UNLESS on a motion to suppress under Sec. 29 (f),
the court holds that the reasons given for refusal
to sign require rejection of the deposition in whole
or in part
 SECTION 20 Certification and filing by officer The officer shall
certify on the deposition that the witness was duly sworn to by him
and that the deposition is a true record of the testimony given by
the witness. He shall then securely seal the deposition in an
envelope indorsed with the title of the action and marked
Deposition of (here insert the name of witness and shall
promptly file it with the court in which the action is pending or
send it by registered mail to the clerk thereof for filing, (20, R24)
SECTION 21 - Notice of filing.The officer taking the deposition
shall give prompt notice of its filing to all the parties. (21, R24)
SECTION 22 - Furnishing copies.--Upon payment of reasonable
charges therefor, the officer shall furnish a copy of the deposition
to any party or to the deponent. (22, R24)
Breakdown of Provisions (Sec. 20, 21, and 22)
A. The officer shall certify on the deposition that:
1. The witness was duly sworn to by him
2. The deposition is a true record of the testimony given
by witness
B. The officer shall then securely seal the deposition in an
envelope
1. Envelope indorsed with the tile of the action
2. Marked Deposition of (here insert name of witness)
C. The officer shall:
1. File it with the court in which the action is pending; or
2. Send it by registered mail to the clerk thereof for filing
D. The officer shall give prompt notice of its filing to all parties
E. The officer shall furnish a copy of the deposition to any party
or deponent
1. Upon payment of reasonable charges therefor
SECTION 23 - Failure to attend of party giving notice.If the party
giving the notice of the taking of a deposition fails to attend and
proceed therewith and another attends in person or by counsel
pursuant to the notice, the court may order the party giving the
notice to pay such other party the amount of the reasonable
expenses incurred by him and his counsel in so attending including
reasonable attorneys fees. (23a, R24)
SECTION 24 - Failure of party giving notice to serve subpoena.
If the party giving the notice of the taking of a deposition of a
witness fails to serve a subpoena upon him and the witness
because of such failure does not attend, and if another party
attends in person or by counsel because he expects the deposition
of that witness to be taken, the court may order the party giving
the notice to pay to such other party the amount of the reasonable
expenses incurred by him and his counsel in so attending including
reasonable attorneys fees. (24a, R24)
Breakdown of Provisions (Sec. 23 and 24)
A. Court may order the party giving the notice to pay such
other party the amount of reasonable expenses incurred by
him and his counsel in so attending including attorneys
fees:
1. If party giving notice of deposition fails to attend and
proceed therewith
a. And another attends in person or by counsel
pursuant to the notice
2. If party giving notice of deposition of a witness fails to
serve subpoena upon him
a. And the witness because of such failure does not
attend
b. And if another party attends in person or by
counsel because he expects the deposition of that
witness to be taken
184
SECTION 25 - Deposition upon written interrogatories; service of
notice and of interrogatories.A party desiring to take
the deposition of any person upon written interrogatories shall
serve them upon every other party with a notice stating the name
and address of the person who is to answer them and the name of
descriptive title and address of the officer before whom the
deposition is to be taken. Within ten (10) days thereafter, a party
so served may serve cross-interrogatories upon the party
proposing to take the deposition. Within five (5) days thereafter,
the latter may serve re-direct interrogatories upon a party who has
served cross-interrogatories. Within three (3) days after being
served with re-direct interrogatories, a party may serve recross-
interrogatories upon the party proposing to take the deposition.
(25, R24)
Breakdown of Provision
A. A party desiring to take the deposition of any person upon
written interrogatories:
1. Shall serve them upon every other party with a notice
2. Notice shall state:
a. The name and address of the person who is to
answer them; and
b. The name or descriptive title and address of
officer before whom the deposition is to be taken
B. Within 10 days thereafter party served may serve cross-
interrogatories upon party proposing to take deposition
C. Within 5 days thereafter latter may serve re-direct
interrogatories upon a party who has served cross-
interrogatories
D. Within 3 days after being served with re-direct
interrogatories party may serve recross-interrogatories
upon the party proposing to take deposition
Note: there is no express requirement that the notice state the time
and place for taking the deposition
SECTION 26 - Officers to take responses and prepare record.
A copy of the notice and copies of all interrogatories served shall
be delivered by the party taking the deposition to the officer
designated in the notice, who shall proceed promptly, in the
manner provided by sections 17, 19 and 20 of this Rule, to take the
testimony of the witness in response to the interrogatories and to
prepare, certify, and filed or mail the deposition, attaching thereto
the copy of the notice and the interrogatories received by him. (26,
R24)
Breakdown of Provision
A. Copy of the notice and copies of all interrogatories served
shall be delivered by party taking the deposition to the
officer designated in the notice
B. The said officer:
1. Shall proceed promptly, in the manner provided by Sec.
17, 19, and 20
2. To take the testimony of the witness in response to the
interrogatories
3. To prepare, certify, and file or mail the deposition
a. Attaching thereto the copy of the notice and
interrogatories served by him
Note: There is a right to cross-examine orally even if examination is
based on written interrogatories
 SECTION 27 - Notice of filing and furnishing copies.When a
deposition upon interrogatories is filed, the officer taking it shall
promptly give notice thereof to all the parties, and may furnish
copies to them or to the deponent upon payment of reasonable
charges therefor. (27, R24)
Breakdown of Provision
A. When a deposition upon interrogatories is filed, the officer
taking it:
1. Shall promptly give notice thereof to all parties
2. May furnish copies to them to deponent upon payment
of reasonable charges therefor
SECTION 28 - Orders for the protection of parties and deponents.
After the service of the interrogatories and prior to the taking of
the testimony of the deponent, the court in which the action is
pending, on motion promptly made by a party or a deponent, and
for good cause shown, may make any order specified in sections
15, 16 and 18 of this Rule which is appropriate and just or an order
that the deposition shall not be taken before the officer designated
in the notice or that it shall not be taken except upon oral
examination. (28a, R24)
Breakdown of Provision
A. The court in which the action is pending may make any
order
1. After service of the interrogatories and prior to the
taking of testimony of deponent
2. On motion promptly made by a party or deponent and
for good cause shown
B. The order:
1. Any order specified in Sec. 15, 16, and 18 which is
appropriate and just; or
2. An order that the deposition shall not be taken before
the officer designated in the notice; or
3. An order that it shall not be taken except upon oral
examination
Notes:
- A motion to the court for the protection order to terminate
or limit provided in Sec. 18 may not be made by a party
after taking of deposition upon written interrogatories
began
- Permission to cross-examine orally is allowable
SECTION 29 - Effect of errors and irregularities in depositions.
(a) As to notice.All errors and irregularities in the notice
for taking a deposition are waived unless written
objection is promptly served upon the party giving the
notice.
(b) As to disqualification of officer.Objection to taking a
deposition because of disqualification of the officer
before whom it is to be taken is waived unless made
before the taking of the deposition begins or as soon
thereafter as the disqualification becomes known or
could be discovered with reasonable diligence.
(c) As to competency or relevancy of evidence.Objections to
the competency of a witness or the competency,
relevancy, or materiality of testimony are not waived by
failure to make them before or during the taking of the
deposition, unless the ground of the objection is one
which might have been obviated or removed if presented
at that time.
(d) As to oral examination and other particulars.Errors and
irregularities occurring at the oral examination in the
manner of taking the deposition, in the form of the
185
questions or answers, in the oath or affirmation, or in the
conduct of the parties and errors of any kind which
might be obviated, removed, or cured if promptly
prosecuted, are waived unless reasonable objection
thereto is made at the taking of the deposition.
(e) As to form of written interrogatories.Objections to the
form of written interrogatories submitted under sections
25 and 26 of this Rule are waived unless served in
writing upon the party propounding them within the
time allowed for serving succeeding cross or other
interrogatories and within three (3) days after service of
the last interrogatories authorized.
(f) As to manner of preparation.Errors and irregularities
in the manner in which the testimony is transcribed or
the deposition is prepared, signed, certified, sealed,
indorsed, transmitted, filed, or otherwise dealt with by
the officer under sections 17, 19, 20 and 26 of this Rule
are waived unless a motion to suppress the deposition or
some part thereof is made with reasonable promptness
after such defect is, or with due diligence might have
been, ascertained. (29a, R24)
Effect of Errors and Irregularities in Depositions
Error and
Effect
Irregularities
Waived
As to notice for
Unless written objection is promptly served
taking depositions
upon party giving notice
Objection to taking Waived
deposition because Unless made:
of disqualification 1. Before taking of deposition begins or
of officer before 2. As soon thereafter as disqualification
whom it is to be becomes known or could be discovered
taken with reasonable diligence
Objection to the Not waived by failure to make them before
competency of a or during the taking of deposition
witness or
competency or Unless the ground of the objection is one
relevancy or which might have been obviated or removed
materiality of if presented at that time
testimony
In the manner of taking, in the form of
questions or answers, in the oath or
affirmation, or in conduct of parties and
Occurring at oral
errors of any kind which might be obviated
examination and
or removed if promptly prosecuted are
other particulars
waived
Unless reasonable objection thereto is made
at the time of taking the deposition
Waived
Objections to the
Unless served in writing upon the party
form of written
propounding them within the time allowed
interrogatories
for serving succeeding cross or other
under Sec. 25 and
interrogatories and within 3 days after
26
service of last interrogatories authorized
In the manner in Waived
which testimony is Unless motion to suppress depositions or
transcribed or in some part thereof is made with reasonable
the preparation promptness after such defect is ascertained,
under Sec. 17, 19, or with due diligence might have been
20, and 26 ascertained
Errors and irregularities which are waived unless a motion to
suppress the deposition or some part thereof is made with
reasonable promptness after such defect is, or with due diligence
might have been, ascertained are those which refer to:
 1. Record of examination; oath; objections
2. Submission to witnesses; changes; signing (Sec. 19)
3. Certification and filing by officer (Sec. 20)
4. Officers to take responses and prepare record (Sec. 26)

Notes:
- Deposition not signed does not preclude its use during
trial
Deponents signature to deposition is not in all events
indispensable since presence of signature goes
primarily to the form of deposition
- Requirement that deposition must be examined and
signed by witness is only:
To ensure that deponent is afforded opportunity to
correct any errors contained therein
To ensure its accuracy
- The admissibility of the deposition does not preclude the
determination of its probative value at the appropriate
time
Admissibility of evidence is not the same as weight of
evidence
Admissibility depends of its relevance and
competence
Weight pertains to evidence already admitted and
its tendency to convince and persuade

The deposition-discovery rules are to be accorded a broad and

liberal treatment and the liberty of a party to make discovery is a
well-nigh unrestricted if the matters inquired into are otherwise
relevant and not privileged, and the inquiry is made in good faith,
and within the bounds of the law

END OF RULE 23

186
NOTES ON RULE 23

187

RULE 24
DEPOSITIONS BEFORE ACTION
OR PENDING APPEAL
A deposition before action and a deposition pending appeal are
referred to as perpetuation of testimony (perpetuam rei memoriam)
because their objective is to perpetuate the testimony of a witness
for future use.
The depositions under Rule 24:
- Also taken conditionally, to be used at trial only in case
deponent is not available
- Do prove the existence of any right and the testimony
perpetuated is not in itself conclusive proof, either of the
existence of any right or even of the facts to which they
relate
It can be controverted during trial in the same
manner as though no perpetuation of testimony was
ever had
However, in the absence of any objection to its taking, and even if the
deponent did not testify at the hearing, the perpetuated testimony
constitutes prima facie proof of facts referred to in the deposition.
SECTION 1 - Depositions before action; petition.A person who
desires to perpetuate his own testimony or that of another person
regarding any matter that may be cognizable in any court of the
Philippines, may file a verified petition in the court of the place of
the residence of any expected adverse party. (1a, R134)
Breakdown of Provision
A. A person who desires to perpetuate his own testimony or
that of another person
1. Regarding any matter that may be cognizable by any
Philippine court
2. May file a verified petition
a. In the court of the place of the residence of any
expected adverse party
A petition may be filed by any person:
1. Who wants to perpetuate his own testimony; or
2. Who wants to perpetuate the testimony of another person
Note: this may be availed of only in civil cases, not criminal
E.g.: The petitioner has a cause of action which has not yet accrued.
- In such a case, inasmuch as he cannot bring the action until
the cause of action accrues, he may perpetuate his
testimony of that of another person
SECTION 2 - Contents of petition.The petition shall be entitled
in the name of the petitioner and shall show: (a) that the
petitioner expects to be a party to an action in a court of the
Philippines but is presently unable to bring it or cause it to be
brought; (b) the subject matter of the expected action and his
interest therein; (c) the facts which he desires to establish by the
proposed testimony and his reasons for desiring to perpetuate it;
(d) the names or a description of the persons he expects will be
adverse parties and their addresses so far as known; and (e) the
names and addresses of the persons to be examined and the
substance of the testimony which he expects to elicit from each,
and shall ask for an order authorizing the petitioner to take the
depositions of the persons to be examined named in the petition
for the purpose of perpetuating their testimony. (2, R134)
188
Breakdown of Provision
A. The petition shall be entitled in the name of petitioner
B. The petition shall show:
1. That petitioner expects to be a party to an action in a
Philippine court but is presently unable to bring it or
cause it to be brought
2. The subject matter of the expected action and his
interest therein
3. The facts which he desires to establish by the proposed
testimony and his reasons for desiring to perpetuate it
4. The names of a description of the persons he expects
will be adverse parties and their addresses so far as
known
5. The names and addresses of the persons to be
examined and the substance of the testimony which he
expects to elicit from each
C. The petition shall ask for an order authorizing the petitioner
to take the depositions of the persons to be examined named
in the petition for the purpose of perpetuating their
testimony
Note: The petition shall be:
- Verified
- Filed in the place of residence of any expected adverse
party
- And contains the matters set forth in Sec. 2
SECTION 3 - Notice and service.The petitioner shall serve a
notice upon each person named in the petition as an expected
adverse party, together with a copy of the petition, stating that the
petitioner will apply to the court, at a time and place named
therein, for the order described in the petition. At least twenty
(20) days before the date of the hearing, the court shall cause
notice thereof to be served on the parties and prospective
deponents in the manner provided for service of summons. (3a,
R134)
Breakdown of Provision
A. The petitioner shall serve a notice upon each person named
in the petition as an expected adverse party
1. Together with a copy of the petition
2. Stating that the petitioner will apply to the court, at a
time and place named therein, for the order described
in the petition
B. At least 20 days before the date of hearing
1. The court shall cause notice thereof to be served on the
parties and prospective deponents in the manner
provide for service of summons
SECTION 4 - Order and examination.If the court is satisfied that
the perpetuation of the testimony may prevent a failure or delay
of justice, it shall make an order designating or describing the
persons whose deposition may be taken and specifying the
subject matter of the examination and whether the depositions
shall be taken upon oral examination or written interrogatories.
The depositions may then be taken in accordance with Rule 23
before the hearing. (4a, R134)
Breakdown of Provision
A. If the court is satisfied that the preparation of the testimony
may prevent a failure or delay of justice
1. It shall make an order designating or describing the
persons whose depositions may be taken
2. Specifying:
a. The subject matter of examination
 b. And whether the depositions shall be taken upon
oral examination or written interrogatories
B. The depositions may then be taken in accordance with Rule
23 before hearing
SECTION 5 - Reference to court.For the purpose of applying
Rule 23 to depositions for perpetuating testimony, each reference
therein to the court in which the action is pending shall be
deemed to refer to the court in which the petition for such
deposition was filed. (5a, R134)
Breakdown of Provision
A. For purposes of applying Rule 23 to depositions for
perpetuating testimony
1. Each reference therein to the court in which the action
is pending
a. Shall refer to the court in which the petition for
such deposition was filed
SECTION 6 - Use of deposition.If a deposition to perpetuate
testimony is taken under this Rule, or if, although not so taken, it
would be admissible in evidence, it may be used in any action
involving the same subject matter subsequently brought in
accordance with the provisions of sections 4 and 5 of Rule 23. (6a,
R134)
Breakdown of Provision
A. If:
1. A deposition to perpetuate testimony is taken under
this Rule; or
2. Although not so taken, it would be admissible in
evidence
B. It may be used in any action involving the same subject
matter subsequently brought in accordance with the
provisions of Sec. 4 and 5 of Rule 23
Note: If deposition is taken under this Rule, it may be used in any
action involving the same subject matter subsequently brought
SECTION 7 - Depositions pending appeal.If an appeal has been
taken from a judgment of a court, including the Court of Appeals
in proper cases, or before the taking of an appeal if the time
therefor has not expired, the court in which the judgment was
rendered may allow the taking of depositions of witnesses to
perpetuate their testimony for use in the event of further
proceedings in the said court. In such case the party who desires
to perpetuate the testimony may make a motion in the said court
for leave to take the depositions, upon the same notice and
service thereof as if the action was pending therein. The motion
shall state (a) the names and addresses of the persons to be
examined and the substance of the testimony which he expects to
elicit from each; and (b) the reason for perpetuating their
testimony. If the court finds that the perpetuation of the
testimony is proper to avoid a failure or delay of justice, it may
make an order allowing the depositions to be taken, and
thereupon the depositions may be taken and used in the same
manner and under the same conditions as are prescribed in these
Rules for depositions taken in pending actions. (7a, R134)
Breakdown of Provision
A. If an appeal has been taken from a judgment of a court,
including the CA in proper cases, or before the taking of an
appeal if the time thereof has not expired
1. The court in which the judgment was rendered may
allow the taking of depositions of witnesses
189
2. To perpetuate their testimony for use in the event of
further proceedings in said court
B. In such case the party who desires to perpetuate their
testimony may make a motion in the said court for leave to
take depositions
1. Upon the same notice and service thereof as if the
action was pending therein
2. The motion shall state:
a. Names and addresses of persons to be examined
and the substance of the testimony which he
expects to elicit from each and
b. The reason for perpetuating their testimony
C. If the court finds that perpetuation of their testimony is
proper to avoid a failure or delay of justice
1. It may make an order allowing the depositions to be
taken
2. And thereupon, depositions may be taken and used in
the same manner and under the same conditions as
prescribed in Sec. 23
Note: Depositions are taken pending appeal with the view of their
being used in the event of further proceedings in the court of origin
or appellate court
E.g.: A party may perpetuate the testimony of a witness which was
objected by the adverse party and ruled out by the court
- If appellate court should reverse the decision or order of
lower court, it could:
1. Admit the deposition as additional evidence or
2. Remand the case back to the lower court for such
admission in accordance with Sec. 4 and 5 of Rule 23
Note: Under Sec. 6, Rule 25, a party not served with written
interrogatories may not be compelled by the adverse party to give
testimony in open court, or to give a deposition pending appeal
- UNLESS thereafter allowed by court for good cause shown
and to prevent a failure of justice
Sec. 1 is the procedure for perpetuating testimony of witnesses
PRIOR to the filing of the case and in anticipation thereof
Sec. 7 is the procedure in perpetuating testimony after judgment in
the RTC and before it has become executory or during the pendency
of an appeal therefrom
END OF RULE 24
NOTES ON RULE 24

190
 Notes:
RULE 25 - Under the present rule, the written interrogatories must
INTERROGATORIES TO PARTIES not only be served but also filed
- Purpose of serving interrogatories is to elicit facts from
any adverse party
Purpose of Written Interrogatories To elicit facts from any adverse - The rule requires the written interrogatories and the
party (answers may also be used as admission of the adverse party) answers thereto to be filed in court and served on adverse
- Written interrogatories and the answers thereto must party
both be filed and served Hence, answers may constitute judicial admissions
Hence, the answers may constitute as judicial
admissions (Sec. 4, Rule 129) Remember: A party may serve written interrogatories:
1. Without leave of court after answer has been served, for
the first set of interrogatories
DISTINCTIONS 2. With leave of court before answer has been served
Since the issues are not yet joined and the disputed
INTERROGATORIES BILL OF PARTICULARS facts not yet clear
A party may properly seek A party may properly seek
disclosure of matters of proof disclosure only of matters which
which may later be made part define the issues and become a SECTION 2 - Answer to interrogatories.The interrogatories shall
of the records as evidence part of the pleadings be answered fully in writing and shall be signed and sworn to by
the person making them. The party upon whom the
interrogatories have been served shall file and serve a copy of the
answers on the party submitting the interrogatories within fifteen
DEPOSITIONS UPON WRITTEN
INTERROGATORIES TO PARTIES (15) days after service thereof, unless the court, on motion and
INTERROGATORIES
for good cause shown, extends or shortens the time. (2a)
Sec. 25, Rule 23 Rule 25
As to Deponent
Breakdown of Provision
Party or ordinary witness Party only A. The interrogatories shall:
As to Procedure 1. Be answered fully in writing
With intervention of the officer No intervention. 2. Be signed and sworn to by the person making them
authorized by the court to take Written interrogatories are B. The party upon whom the interrogatories have been served:
depositions directed to the party himself 1. Shall file and serve a copy of the answers on the party
As to Scope submitting interrogatories
Direct, cross, redirect, re-cross Only one set of interrogatories a. Within 15 days after service thereof
Interrogatories b. UNLESS the court extends or shortens the time
15 days to answer unless (1) On motion AND
No fixed time extended or reduced by the (2) For good cause shown
court
Notes:
Other distinctions of Interrogatories: - Effect of an answer to interrogatories party calling not
- Interrogatories must be specific bound
- A defendant who has been declared in default cannot be - Both parties to a cause have the right to introduce the
permitted to propound interrogatories answer as evidence
- Under Rule 24, deponent need not appear before an officer - Answers cannot be made by an agent or attorney
but only one set of interrogatories is allowed Answers not made by the parties are nullities
- Written interrogatories may be allowed even at the - Evasive and not responsive answer may be stricken out
rebuttal stage But a party has a right to reasonably qualify his
- While an order denying written interrogatories is answers
interlocutory and non-appealable, the remedy of certiorari E.g. does not know whether he executed note or not
is available where the order is patently erroneous is evasive and may be stricken out
- Answers to interrogatories are admissible in evidence at
SECTION 1 - Interrogatories to parties; service thereof. Under the trial as admission or for impeachment
the same conditions specified in section 1 of Rule 23, any party But not by the answering party as this would be a
desiring to elicit material and relevant facts from any adverse self-serving statement
parties shall file and serve upon the latter written interrogatories
to be answered by the party served or, if the party served is a
public or private corporation or a partnership or association, by SECTION 3 - Objections to interrogatories.Objections to any
any officer thereof competent to testify in its behalf. (1a) interrogatories may be presented to the court within ten (10)
days after service thereof, with notice as in case of a motion; and
Breakdown of Provision answers shall be deferred until the objections are resolved, which
A. Under the same conditions specified in Sec. 1, Rule 23, any shall be at as early a time as is practicable. (3a)
party desiring to elicit material and relevant facts from any
adverse party Breakdown of Provision
1. Shall file and serve upon the latter written A. Objections to any interrogatories
interrogatories to be answered by the party served; or 1. May be presented to the court within 10 days after
2. If party served is a public or private corporation or a service thereof
partnership or association, by any officer thereof 2. With notice as in case of a motion
competent to testify in its behalf B. Answers shall be deferred until objections are resolved

191
 1. Which shall be at as early a time as practicable
Ground for Objections
1. They require the statements of conclusions of law or
answers to hypothetical questions or opinion, or mere
hearsay, or matters not within the personal knowledge of
the interrogated party
2. Frivolous interrogatories need not be answered
Notes:
- An order disallowing interrogatory is interlocutory and
remedy is to raise question of admissibility on appeal from
final judgment
- Not binding against co-parties for lack of notice
Unlike under Rule 24 where all parties are notified
SECTION 4 - Number of interrogatories.No party may, without
leave of court, serve more than one set of interrogatories to be
answered by the same party. (4)
Breakdown of Provision:
A. No party may, without leave of court
1. Serve more than one set of interrogatories to b
answered by the same party
A similar provision has been incorporated in Rule 26 for non-
availment of requests for admission by opposing party
NOTE: These 2 provisions are directed to a party who fails or refuses
to resort to the discovery procedures therein
- They should not be confused with the provisions of Rule
29
Rule 29 provides for sanctions or other consequences
upon a party who refuses or fails to comply with
discovery procedures duly availed of by his opponent
Where a party unjustifiably refuses to elicit facts material and
relevant to his case by addressing written interrogatories to adverse
party to elicit those facts, the latter may not thereafter be compelled
to testify thereon in court or give a deposition pending appeal
- The party in need of said facts have foregone the
opportunity to inquire into the same from the other party
through means available to him
- He should not thereafter be permitted to unduly burden
the latter with courtroom appearances or other
cumbersome processes
END OF RULE 25

SECTION 5 - Scope and use of interrogatories.

Interrogatories may relate to any matters that can be inquired
into under section 2 of Rule 23, and the answers may be used for
the same purposes provided in section 4 of the same Rule. (5a)

Breakdown of Provision
A. Interrogatories may relate to any matters than can be
inquired into under Sec. 2, Rule 23
B. Answers may be used for the same purposes provided in Sec.
4, Rule 23

Note: Since answers to interrogatories may be used for the same

purpose as depositions, they may also be the basis of a summary
judgment under Rule 35

SECTION 6 - Effect of failure to serve written interrogatories.

Unless thereafter allowed by the court for good cause shown and
to prevent a failure of justice, a party not served with written
interrogatories may not be compelled by the adverse party to give
testimony in open court, or to give a deposition pending appeal.
(n).

Breakdown of Provision
A. A party not served with written interrogatories:
1. May not be compelled by adverse party:
a. To give testimony in open court; or
b. To give deposition pending appeal
2. Unless:
a. Thereafter allowed by the court for good cause
shown and
b. To prevent a failure of justice

Note: The sanction adopted by the Rules is not one of compulsion in

the sense that the party is being compelled to avail of the discovery
mechanics, but one of negation by depriving him of evidentiary
sources which would otherwise have been accessible to him

This new provision encourages the use of written interrogatories by

imposing prejudicial consequences on the party who fails or refuses
to avail himself of written interrogatories without good cause

192
NOTES ON RULE 25

193

RULE 26
ADMISSION BY ADVERSE PARTY
Rule 26, as a mode of discovery, contemplates interrogatories
seeking clarification in order to determine the truth of the allegation
in a pleading.
SECTION 1 - Request for admission.At any time after issues have
been joined, a party may file and serve upon any other party a
written request for the admission by the latter of the genuineness
of any material and relevant document described in and exhibited
with the request or of the truth of any material and relevant
matter of fact set forth in the request. Copies of the documents
shall be delivered with the request unless copies have already
been furnished. (1a)
Breakdown of Provision
A. A party may file and serve upon any other party
1. A written request
a. For the admission by the latter of the genuineness
of any material and relevant document described
in and exhibited with the request, or
b. Of the truth of any material and relevant fact set
forth in the request
2. At any time after the issues have been joined
B. Copies of the documents shall be served with the request
1. UNLESS copies have already been furnished
Note: As in the case of written interrogatories, the rule now requires
that written request for admission and the answers thereto be filed
in court and served on any other party
Sec. 1 specifically requires that the facts sought to be admitted by the
adverse party must be both material and relevant to the issues
- The same requirements of both materiality and relevancy
have likewise been specified in Rule 25 on requests for
admission
- Note that the fact in question may be relevant if it has a
logical tendency to prove a factual matter in the case but it
may be immaterial if that factual matter is no longer in
issue
Request for Admission v. Actionable Document
REQUEST FOR ADMISSION ACTIONABLE DOCUMENT
Proper when the genuineness
Must be attached to the
of an evidentiary document is
complaint or copied therein.
sought to be admitted.
Its genuineness and due
If not denied under oath, its
execution is deemed impliedly
genuineness is deemed
admitted unless specifically
impliedly admitted.
denied under oath by adverse
Essentially a mode of
party
discovery.
Purpose of Written Request for Admission To expedite trial and
relieve the parties of the costs of proving facts which will not be
disputed on trial and the truth of which can be ascertained by
reasonable inquiry
When Request May be Made at any time after the issues have been
joined (After the responsive pleading has been served)
What Request May Include:
1. Admission of the genuineness and material and relevant
document described in and exhibited with the request
194
2. Admission of the truth of any material and relevant
matter of fact set forth in the request; or
3. Under this rule, a matter of fact not related to any
documents may be presented to the other party for
admission or denial
The request for admission must be served directly upon the party
- Otherwise, the party to whom the request is directed
cannot be deemed to have admitted the genuineness of
any relevant document described in and exhibited
Party need not make a second denial of what was already denied in
the Answer
- A party should not be compelled to admit matters of fact
already admitted by his pleading and concerning which
there is no issue
- Nor should he be required to make a second denial of
those already denied in his answer
- A request for admission
Is not intended to merely reproduce or reiterate the
allegations of the requesting partys pleading
But it should set forth relevant evidentiary matters of
fact, or documents described in and exhibited with
the request
As held in Briboneria v. CA Admissions by an adverse party as a
mode of discovery contemplates of interrogatories that would clarify
and tend to shed light on the truth or falsity of the allegations in a
pleading, and does not refer to a mere reiteration of what has
already been alleged in the pleadings. Otherwise, it constitutes an
utter redundancy and will be useless, pointless process which
defendant should not be subject to
Sec. 1 provides that the request for admission should be served on
the party to whom admission is requested
- Where a copy of the request was served only upon the
counsel, it was held in Duque v. CA that there was
insufficient compliance with Rule 26
Hence, the request was not validly served and that
party cannot be deemed to have admitted the truth of
the matters of which admissions were requested
- General rule that notices shall be served on the counsel
cannot apply where the Rules expressly provide that it
should be served on a definite person
- Note however, an answer to a request for admission
PROPERLY SERVED, which was signed and sworn to by
counsel of the party so requested, is sufficient compliance
with Rule 26 (Lanada v. CA, et al.)
Especially in light of counsels authority in Sec. 21 and
23 under Rule 138
SECTION 2 - Implied admission.Each of the matters of which an
admission is requested shall be deemed admitted unless, within a
period designated in the request, which shall not be less than
fifteen (15) days after service thereof, or within such further time
as the court may allow on motion, the party to whom the request
is directed files and serves upon the party requesting the
admission a sworn statement either denying specifically the
matters of which an admission is requested or setting forth in
detail the reasons why he cannot truthfully either admit or deny
those matters.
Objections to any request for admission shall be submitted
to the court by the party requested within the period for and
prior to the filing of his sworn statement as contemplated in the
preceding paragraph and his compliance therewith shall be
deferred until such obligations are resolved, which resolution
shall be made as early as practicable. (2a)
Breakdown of Provision
A. Each of the matters which an admission is requested shall be
deemed admitted
1. UNLESS the party to whom the request is directed files
and serves upon the party requesting admission a
sworn statement:
a. Stating either:
(1) Denying specifically the matters of which an
admission is requested, or
(2) Setting forth in detail the reasons why he
cannot truthfully either admit or deny those
matters
b. Within a period designated in the request
(1) Which shall not be less than 15 days after
service thereof, or
(2) Within such further time as the court may
allow on motion
B. Objections to any request for admission
1. Shall be submitted to the court by the party requested
a. Within the period for and prior to the filing of his
sworn statement as contemplated in the
preceding paragraph
2. His compliance therewith shall be deferred until such
obligations are resolved
3. Which resolution shall be made as early as practicable
Notes:
- A party is allowed the full number of days after service of
the request before answer can be requested
Refusal to admit on a constitutional privilege does not
constitute a presumptive admission against the party
asserting his privilege
- A request for admission addressed to a party should be
directly served to and answered by the party whose
admission is requested
Note however that the answer to a request for
admission under Rule 26 may be made by the lawyer
of the party and not necessarily the party himself
- Implied Admissions
Each matter must be denied specifically under oath
setting forth in detail the reason why he cannot
truthfully admit or deny
Silence of defendant on plaintiffs request for
admission amounts to an implied acceptance of facts
set forth therein with the effect that plaintiffs claim
stood undisputed
- Motion for extension of time to answer the request for
admission
Should be served on the adverse party
But need not be set for hearing
- There is no implied admission if the denial turn out to be
false or invalid
Only penalty to which he may be subjected is
payment of the costs for proving such fact
Where the plaintiff failed to answer a request for admission filed
under this Rule, based on its allegations in its original complaint,
- The legal effects of its implied admission of the facts stated
in the request cannot be set aside by its subsequent filing
of an amended complaint
- He should have filed a motion to be relieved of the
consequences of said implied admission
SECTION 3 - Effect of admission.Any admission made by a
party pursuant to such request is for the purpose of the pending
action only and shall not constitute an admission by him for any
other purpose nor may the same be used against him in any other
proceeding. (3)
195
Breakdown of Provision
A. Any admission made by a party pursuant to such request
1. Is for the purpose of the pending action only
2. It shall not:
a. Constitute an admission by him for any other
purpose; nor
b. Be used against him in any other proceeding
Note: An admission under this Rule is for the purpose of the pending
action only and cannot be used in other proceedings
SECTION 4 - Withdrawal.The court may allow the party making
an admission under this Rule, whether express or implied, to
withdraw or amend it upon such terms as may be just. (4)
Breakdown of Provision
A. The court may allow the party making an admission under
this rule, express or implied, to:
1. Withdraw, or amend it
a. Upon such terms as may be just
SECTION 5 - Effect of failure to file and serve request for
admission.Unless otherwise allowed by the court for good cause
shown and to prevent a failure of justice, a party who fails to file
and serve a request for admission on the adverse party of
material and relevant facts at issue which are, or ought to be,
within the personal knowledge of the latter, shall not be
permitted to present evidence on such facts.
Breakdown of Provision
A. A party who fails to file and serve a request for admission on
the adverse party of material and relevant fact at issue
which are, or ought to be, within the personal knowledge of
the latter:
1. He shall not be permitted to present evidence on such
facts
a. UNLESS otherwise allowed by the court:
(1) For good cause and
(2) To prevent a failure of justice
This provision is similar to the provision on unjustified failure of a
party to avail of written interrogatories as a mode of discovery
under Sec. 6, Rule 25
1. Under Sec. 6, Rule 25 the sanction consists in allowing
the adverse party to refuse to give testimony or make a
deposition on appeal respecting the facts involved
2. Under Sec. 5, Rule 26 the party who fails or refuses to
request the admission of the facts in question is himself
prevented from thereafter presenting evidence thereon
Note that in both cases, the court shall determine on a case to
case basis whether or not the non-availment of the 2 modes of
discovery was justified or the negative sanctions will unjustly
prejudice the erring party
Herrera notes that Sec. 5 admits of some difficulty
- It leaves to a party the determination of what are the
relevant facts at issue which are, or ought to be within the
peculiar knowledge of the adverse party
Under the Rule on Specific Denials (Rule 8)
- The denial must only refer to matters which are plainly
and necessarily within defendants knowledge
It must be done in good faith
Otherwise, it shall be deemed to be as an admission
- A mere allegation of ignorance of facts alleged in the
complaint is insufficient to raise an issue
The defendant must positively state how it is that he
is ignorant of the facts as alleged
- A profession of ignorance about a fact which is patently
and necessarily within the pleaders knowledge or means
of knowing is ineffective
It is as if there is no denial at all
It is deemed an admission even without a request for
admission

END OF RULE 26

196
NOTES ON RULE 26

197

RULE 27
PRODUCTION OR INSPECTION
OF DOCUMENTS OR THINGS
Rule 27 applies only to a PENDING ACTION and the documentary
things subject of the motion must be only WITHIN the possession,
control, or custody of a party
Distinctions
PRODUCTION OR INSPECTION
SUBPOENA DUCES TECUM
OF DOCUMENTS OR THINGS
A means of compelling
Essentially a mode of discovery
production of evidence
Rules is limited to the parties It may be directed to a person
of the action whether a party or not
The order under this Rule is
It may be issued upon an ex
issued only upon motion with
parte application
notice to the adverse party
The production of documents affords more opportunity for
discovery than a SDT
- However, the rule is not intended to use as a dragnet or
any fishing expedition
SECTION 1 - Motion for production or inspection; order. Upon
motion of any party showing good cause therefor, the court in
which an action is pending may (a) order any party to produce
and permit the inspection and copying or photographing, by or on
behalf of the moving party, of any designated documents, papers,
books, accounts, letters, photographs, objects or tangible things
not privileged, which constitute or contain evidence material to
any matter involved in the action and which are in his possession
custody or control; or (b) order any party or permit entry upon
designated land or other property in his possession or control for
the purpose of inspecting, measuring, surveying, or
photographing the property or any designated relevant object or
operation thereon. The order shall specify the time, place and
manner of making the inspection and taking copies and
photographs, and may prescribe such terms and conditions as are
just. (1a)
Breakdown of Provision
A. The court in which an action is pending:
1. Upon motion of any party showing good cause therefor
2. May:
a. Order any party to produce and permit the
inspection and copying or photographing,
(1) By or on behalf of the moving party
(2) Of any designated documents, papers, books,
accounts, letters, photographs, objects or
tangible things, not privileged, which
constitute or contain evidence material to
any matter involved in the action
(3) And which are in his possession, custody or
control
b. Order any party to permit entry upon designated
land or other property in his possession or control
(1) For the purpose of inspecting, measuring,
surveying, or photographing, property or any
designated relevant object or operation
thereon
198
3. The order:
a. Shall specify the time, place, and manner of
making the inspection and taking copies and
photographs, and
b. May prescribe such terms and conditions as are
just
Acts Permitted under this Rule
1. Produce and permit inspection, copying or photographing
of any designated papers, books of accounts, letters
photographs, object or tangible things
2. Permit entry upon designated land, or other property
inspecting, measuring, surveying or photographing
Notes:
- In a petition for the production of papers and documents,
they must be sufficiently described and identified
Otherwise, the petition cannot prosper
- This mode of discovery does not authorize the opposing
party or the clerk or other functionaries of the court to
deprive the person who produced the articles of their
possession, even temporarily
Production or Inspection of Documents or Things; Requisites:
1. Motion with notice to all parties showing good cause
2. Subject matter:
a. Not privileged
b. In the possession, custody, or control of party
addressed
3. Description with sufficient certainty
Notes:
- The subject matter constitutes or contains evidence
material to any matters involved in the action
- Provision applies only in a suit pending in court
- Right generally available only as between opposing parties
to an action
- Literal accuracy of description is not necessary
Designation of documents demanded for inspection is
sufficiently definite if it informs the adverse party
what it is required to produce
- The rule also applies even if documents are already
exhibited in court
Good Cause does not relate to the substance in the documents,
but to the reason for producing relevant or material matters, therein
- The enforcement of the rule entails exercise of sound
judicial discretion
- The burden is on the moving party to demonstrate the
need for the documents sought beyond the relevancy or
materiality of the substance thereto
Test to be applied by the trial judge in determining the relevancy of
documents and the sufficiency of their description is one of
reasonableness and practicability
Note also that possession, custody, or control is sufficient
- Need not necessarily be actual possession
Safeguards
- Specify the time and place and manner upon such terms
and conditions as are just
- On the ground of public policy, the rules do not authorize
the production or inspection of privileged matter
- In passing on a motion for discovery of documents, the
courts should be liberal in determining whether or not
documents are relevant to the subject matter of action
 - Note also that the rule is not to distrain without the
knowledge of their lawful owner and possessor

Effect of Refusal
- Certiorari available
- Sanctions in Sec. 3, Rule 29
- Sec. 3, Rule 17 may also apply

END OF RULE 27

199
NOTES ON RULE 27

200

RULE 28
PHYSICAL AND MENTAL EXAMINATION
OF PERSONS
SECTION 1 - When examination may be ordered.In an action in
which the mental or physical condition of a party is in
controversy, the court in which the action is pending may in its
discretion order him to submit to a physical or mental
examination by a physician. (1)
Breakdown of Provision
A. In an action in which the mental or physical condition of a
party is in controversy,
1. The court in which the action is pending, may in its
discretion
a. Order him to submit to a physical or mental
examination by a physician
The action must be one in which the mental and physical condition
of a party is in controversy
- It must be the ultimate issue and not merely collateral or
preliminary
- Examples:
Action for annulment of marriage on the ground of
impotency
In an action against an insurer for accident or
disability benefits
A blood grouping test may be ordered and conducted
under this rule on a child subject of a paternity suit
a. While the rule speaks of an examination of a
party, such child is considered a party for the
purposes thereof as the action is brought for its
benefit
Mental condition is in controversy in proceedings for
guardianship over an imbecile or insane
Physical condition of the party is generally involved
in physical injury cases
Note: Since the results of the examination are intended to be made
public, the same are not covered by physician-patient privilege (Sec.
24b, Rule 130)
SECTION 2 - Order for examination.The order for examination
may be made only on motion for good cause shown and upon
notice to the party to be examined and to all other parties, and
shall specify the time, place, manner, conditions and scope of the
examination and the person or persons by whom it is to be made.
(2)
Requisites to Obtain an Order for Examination
1. A motion must be filed for the physical and mental
examination
2. The motion must show good cause for the examination
3. Notice to the party to be examined and to all other parties;
and
4. The motion shall specify the time, place, manner,
conditions, and scope of the examination and the person
or persons by whom it is made
SECTION 3 - Report of findingsIf requested by the party
examined, the party causing the examination to be made shall
deliver to him a copy of a detailed written report of the examining
physician setting out his findings and conclusions. After such
201
request and delivery, the party causing the examination to be
made shall be entitled upon request to receive from the party
examined a like report of any examination, previously or
thereafter made, of the same mental or physical condition. If the
party examined refuses to deliver such report, the court on
motion and notice may make an order requiring delivery on such
terms as are just, and if a physician fails or refuses to make such a
report the court may exclude his testimony if offered at the trial.
(3a)
Breakdown of Provision
A. If requested by the party examined:
1. The party causing the examination to be made shall
deliver to him a copy of a detailed written report of the
examining physician setting out his findings and
conclusions
B. After such request and delivery:
1. The party causing the examination to be made shall be
entitled upon request to receive from the party
examined a like report of any examination, previously
or thereafter made, of the same mental or physical
condition
C. If the party examined refuses to deliver such report
1. The court on motion and notice may make an order
a. Requiring delivery on such terms as are just
2. And if a physician fails or refuses to make such a report
the court may exclude his testimony if offered at the
trial
SECTION 4 - Waiver of privilege.By requesting and obtaining a
report of the examination so ordered or by taking the deposition
of the examiner, the party examined waives any privilege he may
have in that action or any other involving the same controversy,
regarding the testimony of every other person who has examined
or may thereafter examine him in respect of the same mental or
physical examination. (4)
Where the party examined requests and obtains a report on the
results of the examination, the consequences are:
1. He has to furnish the other party a copy of the report of
any previous or subsequent examination of the same
physical and mental condition; AND
2. He waives any privilege he may have in that action or any
other involving the same controversy regarding the
testimony of any other person who has so examined him
or may thereafter examine him
END OF RULE 28
NOTES ON RULE 28

202

RULE 29
REFUSAL TO COMPLY WITH
MODES OF DISCOVERY
SECTION 1 - Refusal to answer.If a party or other deponent
refuses to answer any question upon oral examination, the
examination may be completed on other matters or adjourned as
the proponent of the question may prefer. The proponent may
thereafter apply to the proper court of the place where the
deposition is being taken, for an order to compel an answer. The
same procedure may be availed of when a party or a witness
refuses to answer any interrogatory submitted under Rules 23 or
25.
If the application is granted, the court shall require
the refusing party or deponent to answer the question or
interrogatory and if it also finds that the refusal to answer was
without substantial justification, it may require the refusing party
or deponent or the counsel advising the refusal, or both of them,
to pay the proponent the amount of the reasonable expenses
incurred in obtaining the order, including attorneys fees.
If the application is denied and the court finds that it was
filed without substantial justification, the court may require the
proponent or the counsel advising the filing of the application, or
both of them, to pay to the refusing party or deponent the amount
of the reasonable expenses incurred in opposing the application,
including attorneys fees. (1a)
Consequences of Refusal to Answer
1. Under Rule 29, if a party or other deponent refuses to
answer any question upon oral examination:
The examination may be completed on other matters
Or adjourned as the proponent of the question may
prefer
2. The proponent may thereafter apply to the proper court,
for an order to compel an answer
The same procedure may be availed of when a party
or a witness refuses to answer any interrogatory
submitted under Rule 23 or 25
3. If application is granted:
a. Court shall require refusing party or deponent to
answer the question or interrogatory
b. If it finds that the refusal to answer was without
substantial justification, it may require the refusing
party or deponent or counsel advising refusal, or
both, to pay the proponent of the amount of
reasonable expenses incurred in obtaining the order,
including attorneys fees
4. If application is denied
a. If court finds that it was filed without substantial
justification, the court may require the proponent or
counsel advising the filing, or both, to pay the
refusing party or deponent the amount of reasonable
expenses incurred in opposing the application,
including attorneys fees
SECTION 2 - Contempt of court.If a party or other witness
refuses to be sworn or refuses to answer any question after being
directed to do so by the court of the place in which the deposition
is being taken, the refusal may be considered a contempt of that
court. (2a)
203
Breakdown of Provision
A. The court of the place in which the deposition is being taken
may consider the following a contempt of that court:
1. If a party or other witness refuses to be sworn
2. Or refuses to answer any question after being directed
to do so
SECTION 3 - Other consequences.If any party or an officer or
managing agent of a party refuses to obey an order made under
section 1 of this Rule requiring him to answer designated
questions, or an order under Rule 27 to produce any document or
other thing for inspection copying or photographing or to permit
it to be done, or to permit entry upon land or other property, or
an order made under Rule 28 requiring him to submit to a
physical or mental examination, the court may make such orders
in regard to the refusal as are just, and among others the
following:
(a) An order that the matters regarding which the
questions were asked, or the character or description of
the thing or land, or the contents of the paper, or the
physical or mental condition of the party or any other
designated facts shall be taken to be established for the
purposes of the action in accordance with the claim of
the party obtaining the order;
(b) An order refusing to allow the disobedient party to
support or oppose designated claims or defenses or
prohibiting him from introducing in evidence
designated documents or things or items of testimony,
or from introducing evidence of physical or mental
condition;
(c) An order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part thereof
or rendering a judgment by default against the
disobedient party; and
(d) In lieu of any of the foregoing orders or in addition
thereto, an order directing the arrest of any party or
agent of party for disobeying any of such orders except
an order to submit to a physical or mental examination.
(3a)
Breakdown of Provision
A. If any party or an officer or managing agent of a party
refuses to obey an order, the court may make such orders in
regard to the refusal as are just:
1. An order made under Sec. 1, Rule 29 requiring him to
answer designated question
2. An order under Rule 27 to produce any document or
other thing for inspection, copying, or photographing
or to permit it to be done, or to permit entry upon land
or other property
3. An order made under Rule 28 requiring him to submit
a physical or mental examination
B. The court may issue an order, among others as enumerated
in Sec. 3
SECTION 4 - Expenses on refusal to admit.If a party after being
served with a request under Rule 26 to admit the genuineness of
any document or the truth of any matter of fact, serves a sworn
denial thereof and if the party requesting the admissions
thereafter proves the genuineness of such document or the truth
of any such matter of fact, he may apply to the court for an order
requiring the other party to pay him the reasonable expenses
incurred in making such proof, including attorneys fees. Unless
the court finds that there were good reasons for the denial or that
admissions sought were of no substantial importance, such order
shall be issued. (4a)
Breakdown of Provision SUMMARY
A. If a party:
1. After being served with a request under Rule 26 to REFUSAL TO
admit the genuineness of any document or truth of any COMPLY WITH
SANCTIONS
matter of fact MODES OF
2. Serves a sworn denial thereof DISCOVERY
B. And if the party requesting admission thereafter proves the 1. The court may, upon proper application,
genuineness of such document or truth of any such matter of compel a refusing deponent to answer
fact: (Sec. 1)
1. He may apply to the court for an order: a. If granted, and refusal to answer is
a. Requiring the other party to pay him the without substantial justification,
reasonable expenses incurred in making such court may require the refusing
proof, including attorneys fees party to pay proponent the
(1) UNLESS the court finds that: Refusal to answer reasonable expenses incurred in
(a) there were good reasons for the denial any question obtaining the order
or (Sec. 1 and 2) b. If denied, and filed without
(b) that admissions sought were of no substantial justification, court may
substantial importance require proponent to pay refusing
party the reasonable expenses
incurred in obtaining the order
SECTION 5 - Failure of party to attend or serve answers.If a 2. A refusal to answer after being directed
party or an officer or managing agent of a party willfully fails to by court to do so may be constituted as
appear before the officer who is to take his deposition, after being contempt of court
served with a proper notice, or fails to serve answers to Refusal to be Cite the disobedient deponent in contempt of
interrogatories submitted under Rule 25 after proper service of Sworn (Sec. 2) court
such interrogatories, the court on motion and notice, may strike The court may make the following orders:
out all or any part of any pleading of the party, or dismiss the 1. Prohibit the disobedient party to
action or proceeding or any part thereof, or enter a judgment by introduce evidence of physical or mental
default against the party, and in its discretion, order him to pay Refusal to answer condition
reasonable expenses incurred by the other, including attorneys designated 2. Refuse to allow the disobedient party to
fees. (5) questions or support or oppose claims or defenses
refusal to 3. Strike out pleadings or parts thereof
Breakdown of Provision produce 4. Stay further proceedings
A. If a party or an officer or managing agent of a party: documents or to 5. Dismiss the action or proceeding or any
1. Willfully fails to appear before the officer who is to take submit to part thereof
his deposition physical or 6. Render a judgment by default against
a. After being served with a proper notice mental disobedient party
2. Or fails to serve answers to interrogatories submitted examination 7. Direct the arrest of any party disobeying
under Rule 25 (Sec. 3) any of such orders except an order to
a. After proper service of such interrogatories submit to a physical or mental
B. The court on motion and notice: examination
1. May strike out all or any party of any pleading of the 8. Other orders as may be just
party; or The court, upon proper application, issue an
2. Dismiss the action or proceeding or any part thereof; or Refusal to admit
order requiring the other party to pay him
3. Enter a judgment by default against the party; under Rule 26
reasonable expenses incurred, including
4. And in its discretion, order him to pay reasonable (Sec. 4)
attorneys fees
expenses incurred by the other The court on motion and notice may:
a. Including attorneys fees 1. Strike out all or any part of any pleading
Failure of party to of disobedient party
attend or serve 2. Dismiss the action or proceeding or any
SECTION 6 - Expenses against the Republic of the Philippines. answers to part thereof
Expenses and attorneys fees are not to be imposed upon the written 3. Enter a judgment by default against
Republic of the Philippines under this Rule.(6) interrogatories disobedient party
(Sec. 5) 4. Order payment of reasonable expenses
Notes: incurred by the other including
- If a party refuses to answer the whole written attorneys fees
interrogatories, Sec. 5, Rule 29 applies
- Where a party refuses to answer a particular question, in
the set of written interrogatories, and despite an order END OF RULE 29
compelling him to answer, still refuses to obey, Sec. 3(c)
will apply
- Expenses and attorneys fees are nor to be imposed upon
the Republic under this Rule

204
NOTES ON RULE 29

205
 END OF PART 1

206