1997 Rules on Civil Procedure Rule 9

2001 Edition < DRAFT COPY; Please check for errors > Effect of Failure to Plead

Rule 9
EFFECT OF FAILURE TO PLEAD

General Rule: DEFENSES AND OBJECTIONS NOT PLEADED EITHER IN A MOTION TO

DISMISS OR IN THE ANSWER ARE DEEMED WAIVED

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)

GENERAL RULE: Defenses or objections not pleaded in a motion to dismiss or on answer are
deemed waived. If you do not plead your defense, the same is deemed waived. The court has no
jurisdiction over the issues.

EXAMPLE: In a collection case against you, you did not raise the defense of payment in your
answer. But during the trial, you attempted to prove that the loan has already been paid. Now, that
cannot be done because the defense of payment is deemed waived because you did not raise it in your
answer. In other words, the court never acquired jurisdiction over the issue.

So, there is no such thing as a surprise defense because the defense must be pleaded. If you want to
surprise the plaintiff during the trial by not raising your defense in your answer, you will be the one
who will be surprised because the court will not allow you. When the parties go to court, the plaintiff
already knows what are the defenses. They are already in the answer.

EXCEPTIONS:

Q: What defenses or objections can be taken cognizance of by the court despite the fact that they are
not raised in the motion to dismiss or answer?
A: Under Section 1, Rule 9, the following:

1.) That the court has no jurisdiction over the subject matter;
2.) That there is another action pending with the same parties for the same cause (litis
pendentia;
3.) That the action is barred by prior judgment (res adjudicata); and
4.) That the action is barred by statute of limitation (prescription).

Take note that the exceptions can be raised at any time during or after the trial, or even for the first
time on appeal.

Now, the traditional rule to remember notwithstanding the SIBUNGHANOY Doctrine, is that,
when there is a defect in the jurisdiction of the court over the subject matter, the defect can be raised at
any stage of the proceeding even for the first time on appeal (Roxas vs. Raferty, 37 Phil. 957). This is
because everything is null and void. Jurisdiction over the subject matter cannot be conferred by
agreement between the parties, by WAIVER, by silence of the defendant.

LITIS PENDENTIA. You file a another case while another action is pending between the same
parties for the same cause. That is actually splitting a cause of action because there is already an action
and then you file another action. The action can be dismissed on the ground that there is a pending
action.

RES ADJUDICATA. There was already a prior final judgment then you file another case regarding
the same issue. That is also splitting a cause of action.

PRESCRIPTION is not found in the old rule but is taken from decided cases. Among which are the
cases of

Property of LAKAS ATENISTA 1

1997 Rules on Civil Procedure Rule 9
2001 Edition < DRAFT COPY; Please check for errors > Effect of Failure to Plead

PNB vs. PEREZ (16 SCRA 279)

PEPSI COLA vs. GUANZON (172 SCRA 571)

HELD: “The rule on waiver of defenses by failure to plead in the answer or in a motion
to dismiss does not apply when the plaintiff’s own allegations in the complaint show clearly
that the action has prescribed in such a case the court may motu propio dismiss the case on
the ground of prescription.”

Q: Can the court dismiss the action based on any of these grounds without the filing of a motion to
dismiss?
A: YES. It would seem so because the second sentence says, “When it appears from the pleadings or
the evidence on record … the court shall dismiss the claim.” (This is an important change)

Under the 1964 Rules, one of the grounds that you can raise at any stage of the proceeding before
judgment is failure to state a cause of action, but it disappears under the new rules. Does it mean to say
that you cannot raise it anymore? NO. It can still be raised because it can be taken care of by another
rule – Rule 33 on Demurrer.

Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred. A

compulsory counterclaim, or a cross-claim, not set up shall be barred. (4a)

See discussions on Rule 6, Sections 7 and 8 on counterclaim and cross-claims, respectively.

RULE ON DEFAULT

Sec. 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)
x x x x x x

A defending party is declared in DEFAULT if he fails to answer the complaint within the time
allowed therefor. The rule on answer is found in Rule 11. And under Rule 11 as a rule, you have 15
days to file an answer counted from the time you are furnished a copy of the complaint together with
the summons

If the period to answer lapsed and there is no answer, the plaintiff will move to declare the
defendant in default on the ground of failure to file an answer to the complaint. So, the court will issue
an order of default declaring you as a defaulted defendant.

And from the time a party is declared in default, he loses his standing in court, although he is still
entitled to notice of subsequent proceedings. He cannot participate in the trial. He cannot object to
plaintiff’s evidence. He cannot present his own evidence. In effect, the case will be decided only on the
basis of plaintiff’s side without anymore hearing the defendant. And of course, the plaintiff will win.
It is like a boxing bout ba where the rule is, isa lang ang mag-suntok. My golly! How can you win in
that situation? That is the effect of default.

Take note that the word ‘defending’ party applies not only to the original defendant but even to the
cross-defendant or defendant in a counterclaim.

Q: May a court declare a defendant in default without any motion?

A: NO, because the law says, “upon motion of the claiming party.”

Now, “with NOTICE to the defending party” is a new one. You must furnish a copy to the defending
party of your motion to order the defendant in default which abrogates previous rulings.

Property of LAKAS ATENISTA 2

1997 Rules on Civil Procedure Rule 9
2001 Edition < DRAFT COPY; Please check for errors > Effect of Failure to Plead

Q: Suppose the defendant filed an answer but during the trial, he failed to appear. May he be
declared in default?
A: NO, because the ground for default is failure to file an answer. The correct procedure is for the
trial to proceed without him. (Go Changjo vs. Roldan Sy-Changjo, 18 Phil. 405) That is what you call
EX-PARTE reception of evidence. Only one side will be heard.

BAR QUESTION: If the defendant is declared in default for failure to file an answer is deemed to
have admitted the allegations in the complaint to be true and correct?
A: YES, because the law NOW says, “the court shall proceed to render judgment granting such
claimant such relief as his pleading may warrant.” The reception of plaintiff’s evidence is already
dispensed with. Wala ng reception of evidence. That is the GENERAL RULE. That is the same as the
summary rules and judgment on the pleadings and the court can grant the relief without presentation
of evidence.

HOWEVER under Section 3, it is discretionary upon the court to require the claimant to submit
evidence. EX-PARTE RECEPTION of evidence is OPTIONAL for the court. And such reception of
evidence may be delegated to the clerk of court. This is related to Section 9, Rule 30:

Rule 30, Sec. 9. Judge to receive evidence; delegation to clerk of court.

The judge of the court where the case is pending shall personally receive the
evidence to be adduced by the parties. However, in default or ex parte hearings,
and in any case where the parties agree in writing, the court may delegate the
reception of evidence to its clerk of court who is a member of the bar. The
clerk of court shall have no power to rule on objections to any question or to
the admission of exhibits, which objections shall be resolved by the court upon
submission of his report and the transcripts within ten (10) days from
termination of the hearing. (n)

The reception of evidence maybe delegated to the clerk of court but the clerk of court must be a
lawyer, that is the condition. So if he is not a member of the bar, he is not authorize to conduct or hear
an ex-parte reception of evidence.

SUMMARY: Steps when the defendant fails to file an answer within the time allowed:

1.) Motion to declare defendant in default;

2.) Order of default;
3.) Judgment based on the complaint of the plaintiff UNLESS court requires the claimant to
submit evidence (ex-parte presentation of plaintiff’s evidence)

However, when should the court dispensed with the ex-parte presentation of evidence and when
should it require the claimant to submit evidence being discretionary? May ibang judges who likes
kapoy na, judgment kaagad! May iba naman, reception muna which will take time. In my personal
view, cases which are simple, presentation of evidence ex-parte can be dispensed with like collection
cases ba. Walang laban ang defendant talaga.

But in controversial cases, like recovery of a piece of land – medyo mahirap yan. The judge will not
automatically decide in your favor simply because of failure to answer by the defendant. The judge
may still want to hear plaintiff’s evidence. To my mind, that should be the policy regarding this rule.

Q: If a defendant files an answer but did not furnish a copy of the answer to the plaintiff, can the
plaintiff move to declare the defendant in default?
A: YES, because the answer is deemed to have not been legally filed. It was not in accordance with
the Rules of Court. (Gonzales vs. Francisco, 49 Phil. 47) So the defendant must furnish the plaintiff a
copy of the answer because in the case of

RAMIREZ vs. COURT OF APPEALS

187 SCRA 153

HELD: “The failure to furnish a copy of the answer to the adverse party in itself is
sufficient or valid basis for defendant’s default.”

Property of LAKAS ATENISTA 3

1997 Rules on Civil Procedure Rule 9
2001 Edition < DRAFT COPY; Please check for errors > Effect of Failure to Plead

Q: May a defendant be declared in default while a motion to dismiss (Rule 16) or a motion for bill
of particulars (Rule 12) remains pending and undisposed of?
A: NO, because under 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 he receives the order denying
his motion to dismiss or for bill of particulars. (Hernandez vs. Clapis, 87 Phil. 437)

In the case of
DEL CASTILLO vs. AGUINALDO
212 SCRA 169 [1992]

FACTS: The defendant filed a motion to dismiss under Rule 16 but his motion to dismiss
did not contain notice of time and place of hearing and the motion was denied. Can he file
an answer after filing the motion to dismiss?

HELD: NO. He can be ordered in default. The motion is a useless piece of paper with no
legal effect.
“Any motion that does not comply with Rule 16 should not be accepted for filing and if
filed, is not entitled to judicial cognizance and does not affect any reglementary period. Not
having complied with the rules, the motion to dismiss filed by the defendant did not stay
the running of the reglementary period to file an answer.”

GOLDEN COUNTRY FARM, INC. vs. SANVAR DEV’T CORP.

214 SCRA 295 [1992]

FACTS: Because of the filing of the motion to dismiss is 15 days, the defendant filed a
motion to dismiss on the 8th day. It was denied. So there is still 7 days to file an answer. On
the 15th day, instead of filing an answer, he filed a motion for reconsideration and the such
motion was denied. Then he filed an answer.

HELD: NO MORE. The filing of the motion to dismiss interrupted the period to file an
answer. When you receive an order, you still have the balance to file your answer. And you
did not file an answer instead, you file a motion for reconsideration. You took the risk. So
defendant’s motion for reconsideration which merely reiterated his ground in the motion to
dismiss did not stay the running of the period to file an answer.

(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)

So if you are declared in default, you cannot take part in the trial. You lose your standing, you
cannot cross-examine the witness of the plaintiff assuming there is a reception of evidence. You cannot
object to his evidence. You cannot even present your own evidence when you are in default.

But what is NEW here is that, you are entitled to notice of subsequent proceedings which abrogates
the old rule. Under the old rules, you are not entitled to service of notice, orders, except substantially
amended pleadings, supplemental pleadings, final orders or judgments or when you file a motion to
set aside an order of default.

But NOW, wala na yan. You are now entitled to service of everything. You only lose you standing
in court but for the purpose of notice, you are entitled to service of every motion, every pleading, every
order.

HOW TO LIFT ORDER OF DEFAULT

(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

Property of LAKAS ATENISTA 4

1997 Rules on Civil Procedure Rule 9
2001 Edition < DRAFT COPY; Please check for errors > Effect of Failure to Plead

terms and conditions as the judge may impose in the interest of justice. (3a,
R18)

Q: What is the remedy of a defendant who has been declared in default?

A: One remedy under Section 3 paragraph [b] is that, provided there is still no default judgment, he
can still file a motion to set aside the order of default upon a proper showing that his failure to answer
was due to F.A.M.E. (Fraud, Accident, Mistake, or Excusable negligence) and that he has a meritorious
defense. [The discussions on FAME is in Rule 37 – New Trial or Reconsideration]

Meaning, even if you are a victim of FAME, if you have no meritorious defense, the court will not
lift the order of default. You are wasting my time. Kahit na pagbigyan kita, talo ka pa rin. There is no
chance for you to win anyway. But if you have a meritorious defense, there is no guarantee that you
will win but at least you have a fighting chance ba that your standing will be restored.

Upon proof, the court will set aside or lift the order of default and will give the defendant an
opportunity to answer, where he will plead his supposed meritorious defenses. In effect, he regains his
standing in court.

Q: When can the defendant avail of this remedy?

A: He may file a motion to set aside the order of default at any time after notice thereof and before
judgment.

SUMMARY: Steps the defendant should take to set aside the order of default:
1.) File a motion to lift or set aside the order of default. The motion must be verified and under
oath;
2.) He must explain why he failed to file an answer due to FAME; and
3.) He must also show that he has a meritorious defense.

PARTIAL DEFAULT

(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)

This presupposes that there are two or more defendants. Say, one or some of the defendants made
an answer and the others did not. So, one or some of the defendants were declared in default, the
others were not.

EXAMPLE: Gary sued Bentong and Bayani. Bentong filed an answer. Bayani did not. Bayani was
declared in default but there can be no judgment against Bayani in the meantime because under
paragraph [c], the case will go to trial based on the answer of Bentong. The case will be tried against
both Bentong and Bayani based on the answer of Bentong.

The principle here is that, the answer filed by the answering defendant will automatically benefit
the non-answering defendant. The defense of Bentong will also be Bayani’s defense. Anyway there is a
common or identical cause of action. The best example would be a promissory note signed by both
Bentong and Bayani and they bound themselves solidarily. Both of them were sued. Bentong answered
while Bayani did not, hence he is in default. Can there be a default judgment against Bayani? NO, there
will still be a trial based on the answer of Bentong. In effect, Bentong will defend not only himself but
also Bayani.

Q: Suppose during the trial, Bentong proved that the obligation has been extinguished, which is
also applicable to Bayani, and the complaint is dismissed, what is the effect?
A: Both Bentong and Bayani will win the case. So Bayani will be benefited by the answer of his co-
defendant Bentong. Hence, there is still a possibility that a defaulted defendant can win based on our
example.

On the other hand it is absurd if the answer of Bentong will not benefit the defaulting defendant.
EXAMPLE: Gary filed a case against Bentong and Bayani based on a promissory note on a loan secured
Property of LAKAS ATENISTA 5
1997 Rules on Civil Procedure Rule 9
2001 Edition < DRAFT COPY; Please check for errors > Effect of Failure to Plead

by both, and Bayani defaulted. Bentong answered alleging payment. Suppose, Bentong proved such
defense, the effect is both Bentong and Bayani are absolved. If you say that Bayani should lose because
the answer of Bentong will not benefit Bayani, there will be two conflicting decisions: “Bayani is in
default and thus, should pay the loan; and there is no more loan as far as Bentong is concerned.” Do
you mean a loan is paid and at the same time unpaid? That’s absurd!

But take NOTE that to apply the principle, there must be a common cause of action. If there is no
cause of action, while there may be a trial, the answer of Bentong is only for him. After the trial,
Bentong might be absolved from liability but the defaulting defendant Bayani will be held liable
because Bentong’s answer does not cover Bayani. That is when there is no common cause of action. In
the case of

CO vs. ACOSTA (134 SCRA 185 [1985])

reiterating the case of
LIM TANHU vs. RAMOLETE (66 SCRA 425)

FACTS: Bentong and Bayani were (solidary debtors) sued by Gary for a loan evidenced
by a promissory note. Bentong filed an answer but Bayani defaulted. The case was tried
based on Bentong’s answer. Gary move to drop Bentong from the case but retained Bayani,
the defaulted defendant so that Gary can secure an immediate judgement.

ISSUE: Is the motion of Gary proper?

HELD: NO. When there is a common cause against two or more defendants, if you drop
the case against one, you drop the case against all. Selection is not allowed. To drop Bentong
means that the cause of action against him is weak. Why should one drop somebody if a
case against such person is meritorious? If such is the fact, necessarily the cause of action
against the other is also weak the fact there is actually a common cause of action.

However, the ruling in ACOSTA should not be confused with the ruling in

IMSON vs. COURT OF APPEALS [1996 BAR]

239 SCRA 58 [1994]

FACTS: Imson was driving a Toyota Corolla when he was bumped by a Hino Truck
causing injury to Imson and totally wreaking his car. So he filed an action for damages
against several defendants. He impleaded all of them – the driver, the bus company owner
and the insurance company. The insurance company filed an answer but the owner and the
driver did not. So both the owner and the driver were declared in default.
Subsequently, lmson and the insurance company entered into a compromise agreement
wherein the latter paid him P70,000 which was its total liability under the insurance
contract. The claim was very big so the insurance company offered to give the amount,
“Bahala ka sa sobra.”
So when the case (between Imson and the insurance company) was eventually
dismissed because of the compromise agreement, the bus company owner also moved to
dismiss the case against him and the driver, arguing that since they are all indispensable
parties under a common cause of action, the dismissal of the case against the insurance
company should likewise result to the dismissal of the case against them citing the case of
ACOSTA and RAMOLETE.

ISSUE #1: Is there a common cause of action among the three of them?
HELD: The owner is wrong. There is NO common cause of action. The cause of action
against the driver is based on quasi-delict under Article 2178 of the Civil Code. The liability
against the owner is also based on quasi-delict but on another provision of the Civil Code –
Article 2180 (the liability of the employer for the delict or wrong of the employee) So, the
liability of the owner and the driver is based on quasi -delict but under separate provisions
of the Civil Code.

Property of LAKAS ATENISTA 6

1997 Rules on Civil Procedure Rule 9
2001 Edition < DRAFT COPY; Please check for errors > Effect of Failure to Plead

Now, the cause of action against the insurance company is not based on quasi-delict but
based on contract because he seeks to recover liability from the insurance company based on
the third-party liability clause of the insurance contract with the company.
So, there no common cause of action among them. Yaaann!

ISSUE #2: Is the insurance company an indispensable party? Because if it is so and he is

removed from the case, the case cannot proceed without him.
HELD: NO. The insurance company is not an indispensable party.
“It is true that all of Imson’s claims in civil case is premised on the wrong committed by
defendant truck driver. Concededly, the truck driver is an indispensable party to the suit.
The other defendants, however, cannot be categorized as indispensable parties. They are
merely necessary parties to the case. It is easy to see that if any of them had been impleaded
as defendant (meaning, the insurance company or the owner were impleaded), the case
would still proceed without prejudicing the party not impleaded.”
“Thus, if petitioner did not sue the insurance company, the omission would not cause
the dismissal of the suit against the other defendants. Even without the insurer, the trial
court would not lose its competency to act completely and validly on the damage suit. The
insurer, clearly, is not an indispensable party.” It is a necessary party.

(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)

This is what we call LIMITATIONS on a default judgment:

1.) The default judgment should not exceed the amount prayed for in the complaint;
2.) The default judgment should not be different in kind from that prayed for in the complaint;
3.) The default judgment should not award unliquidated damages.

Q: In the complaint, the claim is P300,000. The defendant defaulted. The court required the plaintiff
to present his evidence and during the trial, the latter proved P500,000 total claim. Can the court award
P500,000 claim as proved?
A: NO. It should only be P300,000 as prayed for in the complaint.

Q: Suppose during the trial, only P200,000 was proved. What should be the amount of the default
judgment?
A: Only P200,000 as proved because it did not exceed the amount prayed for in the complaint.

Therefore, the rule is, the default judgement cannot exceed the amount prayed for in the complaint
although it may be less than it. Yaannn!

FUNDAMENTAL REASON ON THE RULE ON DEFAULT

What is the reason behind this? You have to know the philosophy on default to understand the
reason behind paragraph [d]. Default means the defendant failed to file an answer despite the fact that
he was properly summoned.

Q: If a defendant failed to file an answer, what may be the reasons behind that? Why did he not
file an answer?
A: In the case of LIM TOCO vs. GO FAY, (80 Phil 166), there are two (2) possible reasons:

1.) Defendant deliberately did not answer because he believed that he had no good defense,
and that the claim is fair. And if he will make an answer, still he will not win and would just
incur expenses;
2.) He had a meritorious defense and he wanted to answer but for one reason or another
beyond his control, he failed to file his answer.

Q: In the second possibility – the defendant had a defense and wanted to file an answer but failed
to file an answer, what is the remedy of such defendant?
Property of LAKAS ATENISTA 7
1997 Rules on Civil Procedure Rule 9
2001 Edition < DRAFT COPY; Please check for errors > Effect of Failure to Plead

A: It is paragraph [b] – file a motion to lift the order of default and state the reasons beyond one’s
control – fraud, mistake, accident, or excusable negligence (FAME) and that there is a meritorious
defense.

Now suppose he did not answer because he thinks the claim is fair and so he will just pay. Then,
the contingency is paragraph [d] – rest assured that the judgment will not exceed the amount or be
different in kind from that prayed for. At least, you will not be surprised.

Just imagine, if you file a case against me for P200,000 damages and then I thought its fair. So I
allowed myself to be defaulted because anyway its only P200,000 because if I file my answer, the costs
could increase. And then during the trial, you proved that the damages were in fact P2 million. So,
when I received the judgment it was already P2 million when the complaint was only for P200,000.
Now, if you knew that would be the case, then you would have fought it out. In other words, its unfair.
Hence, the reason.

Q: If the defendant filed an answer but failed to appear during trial, what will happen?
A: The case will proceed and there will be a presentation of evidence EX-PARTE.

Now if a person is declared in default, it is also possible that an Ex Parte presentation of evidence
will be ordered.

MANGELIN vs. COURT OF APPEALS

215 SCRA 230 [1992]

ISSUE: What is the difference between ex-parte presentation of evidence by virtue of

default judgment AND ex-parte presentation of evidence by failure to appear during the
trial

HELD: In reception of evidence due to DEFAULT ORDER, paragraph [d] applies – the
judgment cannot exceed the amount or be different in kind from that prayed for in the
complaint.
BUT if there’s an ex-parte reception of evidence against a defendant who filed an answer
but FAILED TO APPEAR during the trial, the limitations in paragraph [d] does not apply.
Therefore in this case, a greater amount than that prayed for in the complaint, or a different
nature of relief may be awarded so long as the same are proved.
“It may be pointed out that there is a difference between a judgment against a defendant
based on evidence presented ex-parte pursuant to a default order and one based on
evidence presented ex-parte and against a defendant who had filed an answer but who
failed to appear at the hearing. In the former, Section 3 [d] of Rule 9 provides that the
judgment against the defendant should not exceed the amount or be different in kind from
that prayed for. In the latter, however, the award may exceed the amount or be different in
kind from that prayed for.”

This is because when there is an ex parte presentation of evidence due to failure to appear in trial,
one’s standing in court is not lost. HE can still present evidence later to refute the plaintiff’s evidence.
He simply waived the rights attached on particular hearing but not to all subsequent trials. In
judgement by default, he actually loses his standing in court.

They added new (third) limitation – Unliquidated damages cannot be awarded in default
judgment. Obviously liquidated ones can be.

Q: What is the difference between UNLIQUIDATED damages and LIQUIDATED damages?

A: UNLIQUIDATED DAMAGES are those which are still subject to evidence before it can properly
be awarded such as the presentation of receipts in terms of actual damages, or taking of testimonies to
determine mental anguish or besmirched reputation in cases of moral damages.
LIQUIDATED DAMAGES are those which are already fixed and proof or evidence to establish the
same are not required. An example is an obligation with a penal clause like an agreement to construct a
house and upon failure to finish the same within a stipulated period, the contractor is liable for P10,000

Property of LAKAS ATENISTA 8

1997 Rules on Civil Procedure Rule 9
2001 Edition < DRAFT COPY; Please check for errors > Effect of Failure to Plead

for every day of delay. The amount is already fixed based on the contract price and the penalty
provided and such other circumstances as stipulated.

Now, this third limitation is one of the provisions that I criticized. It should not be here. Something
is wrong here. Last September 1997 during the BAR exams, the secretary of the committee which
drafted this, the former clerk of court of the SC, Daniel Martinez asked for comments on the New
(1997) Rules. I told him about the new Rules on Default, asking him who placed the provision there. He
said it was Justice Feria’s idea.

J. Feria said, “Kawawa naman kasi yung tao, na-default na titirahin mo pa ng unliquidated
damages.” But I said that there is something wrong here. For EXAMPLE: You filed a case against me na
puro damages – compensatory , moral , etc. and I believe I will lose the case if I go to trial. So, my
strategy now would to have myself declared in default because anyway, those unliquidated damages
cannot be awarded by default.

In other words, they have placed the defaulted defendant in a better position when he will file an
answer because if he files an answer and goes to trial, he might lose. So, if he allows himself to be
defaulted, the court can never award the damages. This is the effect of the new limitation. That is why
I’m against this change here.

So, in an action for damages, I will never answer para pag ma-default ako, the court can never
award those damages. Because if I will answer, eh baka ma-award pa. In other words, I will win the
case simply because there is no way for the court to award the damages. And most damages are
usually those unliquidated damages.

(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)

This refers to marital relations referred to in the Family Code: Annulment of marriage; Declaration
of nullity of marriage; Legal Separation. And the policy of the State is to preserve the marriage and not
encourage break-ups.

Now, in the absence of this provision, husband and wife quarrels and then they decide to separate.
Wife will file a case for legal separation with the agreement that the husband will not answer. Being in
default, there will be a judgement in default and in a month’s time marriage will be severed for the
meantime. The provision then prohibits default in marital relations cases to preserve and uphold public
policy.

Q: What if the party did not really file an answer?

A: The court is bound to find out whether there is a collusion between the parties – whether the act
is deliberate without agreement. We already know that there should be presentation of evidence. And
the law requires the State to intervene. The fiscal is responsible to see to it that the evidence is not
fabricated, the same is legitimate.

Relate this provision of the rule to Articles 48 and 60 of the Family Code:

Family Code, Art. 48. In all cases of annulment or declaration of absolute

nullity of marriage, the court shall order the prosecuting attorney or fiscal
assigned to it to appear on behalf of the State to take steps to prevent
collusion between the parties and to take care that the evidence is not
fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be
based upon a stipulation of facts or confession of judgment.

Family Code, Art. 60. No decree of legal separation shall be based upon a
stipulation of facts or a confession of judgment.
In any case, the court shall order the prosecuting attorney or fiscal
assigned to it to take steps to prevent collusion between the parties and to
take care that the evidence is not fabricated or suppressed.

Property of LAKAS ATENISTA 9

1997 Rules on Civil Procedure Rule 9
2001 Edition < DRAFT COPY; Please check for errors > Effect of Failure to Plead


published by

LAKAS ATENISTA 1997 – 1998: FOURTH YEAR: Anna Vanessa Angeles • Glenda Buhion • Joseph
Martin Castillo • Aaron Philip Cruz • Pearly Joan Jayagan • Anderson Lo •
Yogie Martirizar • Frecelyn Mejia • Dorothy Montejo • Rowena Panales • Regina Sison •
Ruby Teleron • Marilou Timbol • Maceste Uy • Perla Vicencio • Liberty Wong • Jude Zamora •
Special Thanks to: Marissa Corrales and July Romena

SECOND YEAR: Jonalyn Adiong • Emily Aliño • Karen Allones • Joseph Apao •
Melody Penelope Batu • Gemma Betonio • Rocky Cabarroguis • Charina Cabrera •
Marlon Cascuejo • Mike Castaños • Karen de Leon • Cherry Frondozo • Jude Fuentes • Maila Ilao
• Ilai Llena • Rocky Malaki • Jenny Namoc • Ines Papaya • Jennifer Ramos • Paisal Tanjili

LAKAS ATENISTA 2001–2002: REVISION COMMITTEE: Melissa Suarez • Jessamyn Agustin •

Judee Uy • Janice Joanne Torres • Genie Salvania • Pches Fernandez • Riezl Locsin •
Kenneth Lim • Charles Concon • Roy Acelar • Francis Ampig • Karen Cacabelos •
Maying Dadula • Hannah Examen • Thea Guadalope • Myra Montecalvo • Paul Ongkingco •
Michael Pito • Rod Quiachon • Maya Quitain • Rina Sacdalan • Lyle Santos • Joshua Tan •
Thaddeus Tuburan • John Vera Cruz • Mortmort

Property of LAKAS ATENISTA 10