Civ Pro Reviewer

LECTURE NOTES ON CIVIL PROCEDURE
Revised October 2009
WHAT IS CIVIL PROCEDURE
1. It is the procedure governing the filing, processing and adjudication of civil actions. It essentially is the
lawyer’s law that defines the rules of the game that lawyers and judges play.
2. It is considered as procedural law as it prescribes the method of enforcing rights and obtaining redress
for their invasion, as opposed to substantive law which creates, defines, and regulates rights and duties that
give rise to a cause of action.
2.1 The rules of procedure promulgated by authority of law bear the force and effect of law. 1
3. It is embraced in Rules 1 to 71 of the Rules of Court and after its revision, is now commonly known as the
1997 Rules of Civil Procedure. It is divided into the following topics: General Provisions (Rule 1), Ordinary Civil
Actions (Rules 2-5), Procedure in Regional Trial Courts (Rules 6-39), Appeals (Rules 40-43), Procedure in the
Court of Appeals and Supreme Court (Rule 44- 56), Provisional Remedies (Rules 57-61), and Special Civil Actions
(Rules 62-71).
4. Included within its scope are the 1991 Rules on Summary Procedure, Local Government Code provisions
on the Katarungang Pambarangay and related issuances of the Supreme Court.
PRELIMINARIES
1. Any discussion of procedural rules should always be preceded by a discussion of jurisdiction as its
presence is what gives rise to the application of the rules for the purpose of resolving the action that is brought
before a court. Simply defined it refers to the power and authority of a court or tribunal to hear, try and decide a
case. It has also been defined as the authority by which courts and judicial officers take cognizance of and
decide cases.
1.1 Absent jurisdiction, the only thing a court can do as provided by the rules is to dismiss the
action.
1.2 If a court acts without jurisdiction, all its acts are null and void. Further, any decision it may
render is not a decision in contemplation of law and cannot be executory. 2
1.3 The validity of a judgment or order of a court or quasi-judicial tribunal which has become final
and executory may be attacked when the records show that it lacked jurisdiction to render the
judgment - a void judgment may be assailed or impugned at any time either directly or
collaterally by means of a petition filed in the same or separate case, or by resisting such
judgment in any action or proceeding wherein it is invoked. In fact, even the testimony in a case
where the proceedings had been nullified for lack of jurisdiction is inadmissible as evidence. 3
2. The absence of jurisdiction as a general rule may be questioned at any stage of the proceedings, even
on appeal.
2.1 However, a party may be barred from raising it on the ground of laches or estoppel when he has
actually invoked the jurisdiction of the court by participating in the proceedings, then belatedly
questions lack of jurisdiction after judgment has gone against him. Participation in all stages
before the trial court which included invoking its authority in asking for affirmative relief,
effectively bars the party by estoppel from challenging the court’s jurisdiction. 4
2.2 The court actually does not have jurisdiction, but the law for reasons of equity, steps in to gag
the negligent party and prevents him from raising its voice about lack of jurisdiction. It does so
not because the Court has acquired jurisdiction but because of fault or negligence of a party
now estops him from raising the question of lack of jurisdiction. 5
2.3 Note likewise the rules covering actions for annulment of judgment based on extrinsic fraud or
lack of jurisdiction. If based on the latter, it can only be initiated before it is barred by laches or
estoppel.6
1
Conlu v. Court of Appeals, 106 Phil 940
2
Abbain vs. Chua, 22 SCRA 748, Estoesta vs. Court of Appeals, 179 SCRA 203, Dava vs. People, 202 SCRA 62
3
Dynamic Signmaker Outdoor Advertising Services, Inc. vs. Potongan, 461 SCRA 328
4
Heirs of the late Panfilo V. Pajarillo v. Court of Appeals, 537 SCRA 96
5
Tijam v. Sibonghanoy, 23 SCRA 29, Soliven v. FastForms, Phil. Inc., 440 SCRA 389
6
Sections, 2 and 3, Rule 49, 1997 Rules of Civil Procedure
1
2.4 It is incumbent upon the petitioner to file a motion to dismiss at the earliest opportune time to
raise the issue of the court’s lack of jurisdiction. Its failure to seasonably raise the question of
jurisdiction leads to the inevitable conclusion that it is now barred by laches. 7
REQUISITES FOR A VALID EXERCISE OF JURISDICTION
1. It must have jurisdiction over the persons of the parties. It is acquired over the plaintiff upon his filing of
a complaint.
1.1 On the other hand, it is acquired over the defendant by his voluntary appearance before the
court or the employment of the coercive power of legal process.
2. It must also have jurisdiction over the subject matter in controversy. Jurisdiction over the subject matter
of the complaint is to be determined by the allegations in the complaint and the law in force at the time of the
commencement of the action. This is the power of a court to hear and determine cases of a general class to
which the proceedings in question belong. 8
2.1 Determined by allegations in the complaint. Jurisdiction must be determined at the

commencement of the action. Since an action is commenced by the filing of a complaint, it is
also the means by which the plaintiff invokes the jurisdiction of the court. Hence, it is from it
that a determination of the existence of jurisdiction is had.
2.2 The determination is to be confined solely to the four corners of the complaint. Specifically,
what characterizes an action is not the caption of the pleading, which is just a legal conclusion
on the part of the pleader, but the allegations in the body of the complaint. 9
2.3 In case of conflict between the allegations and the reliefs, the allegations in the body shall
prevail. The prayer is a conclusion of the pleader as cause of action. The Court is not bound as it
may grant a relief, lesser or greater in amount, or totally different from that prayed for. 10
2.4 Even if the plaintiff alleges an amount that puts the case within the jurisdiction of the RTC, the
court’s jurisdiction is not affected if it later finds that the plaintiff is entitled to an amount within
the jurisdiction of an MTC. 11 Conversely, if a court has no jurisdiction, the defect will not be
cured by a finding during the trial that the amount actually due is within the jurisdiction of the
court.12
2.5 Neither can it be determined from the allegations in the answer of the defendant. If the rule
were otherwise, no action can prosper as all the defendant has to do is to allege that the
jurisdiction is vested in another court.
2.6 The only recognized exception is the defense of agricultural tenancy. 13 The court in this case
must conduct a preliminary hearing on the defense to determine if there is indeed a tenancy
relationship, as its existence shall mean that the court has no jurisdiction as the same is vested
exclusively with the DARAB.14
2.7 Determined by the law in force at the time of the commencement of the action. Jurisdiction as
used in the Constitution and statutes means jurisdiction over the subject matter 15 unless
qualified to mean another kind of jurisdiction. This jurisdiction refers to the jurisdiction of a
court over a general class of cases or the power to try and decide the class of litigation to which
the particular case belongs.16 Jurisdiction is conferred by law, where there is none; no
agreement of the parties can provide one.17
7
United Overseas Bank v. Ros, 529 SCRA 334
8
Heirs of Valeriano S. Concha, Sr. v. Lumocso, 540 SCRA 1
9
De Jesus v. Bristol Laboratories, 55 SCRA 349, Solid Homes v. Court of Appeals, 271 SCRA 157
10
Bulao v. Court of Appeals, 218 SCRA 321
11
Ratilla v. Tapucar, 75 SCRA 64
12
Mercado v. Ubay, 187 SCRA 719
13
Section 3, Rule 70, 1997 Rules of Civil Procedure
14
Concepcion v. CFI of Bulacan, 119 SCRA 222
15
Reyes v. Diaz, 73 Phil 484
16
Caluag v. Pecson, 82 Phil 8
17
Department of Health v. NLRC, 251 SCRA 700
2
2.8 Example: If an action for payment of a sum of money is filed after the effectivity of RA 7961 on
April 15, 1994, expanding the jurisdiction of the MTC and implemented by Adm. Circular 9-94 18
interest, damages of whatever kind- as long as incidental, attorney’s fees, litigation expenses
and costs (DIAL-C) are not to be considered in fixing the jurisdictional amount, but must be
specifically alleged and filing fees paid thereon. Hence, in an action for the payment of a sum of
money previous to the said date, a determination of jurisdiction would have to include the
amounts claimed by way of DIAL-C. Another is Section 5.2, RA 8799 19 that vests jurisdiction
over intra-corporate disputes in the RTC that sits as a commercial court.
2.9 When a court has already obtained and is exercising jurisdiction over a controversy, its
jurisdiction to proceed to the final determination of the cause is not affected by new legislation
placing jurisdiction over such proceedings in another tribunal unless the statute expressly
provides, or is construed to the effect that it is intended to operate on actions pending before
its enactment.20
3. Jurisdiction over the res assumes importance only in those actions where the court cannot acquire
jurisdiction over the person of the defendant because he is not a resident and cannot be found here or served
with summons.
3.1 These are quasi in rem actions. 21 The action is directed against a defendant personally, although
its object is to subject his interest in the property to the obligation or the lien. 22
PROBLEM AREAS AFFECTING JURISDICTION
1. Actions which are incapable of pecuniary estimation
1.1 Generally, it is one where the basic issue is something other than the right to recover money,
where the money claim is incidental to or is a consequence of the principal relief being sought.
1.2 It is a claim, the subject of which cannot be estimated in terms of money.
1.3 Examples: Action for specific performance – although damages are being sought but if
damages are part of an alternative prayer, jurisdiction should be based on the amount. Other
examples: Action for appointment of receivers, expropriation, interpleader, support, and
rescission.
1.4 In determining which court has jurisdiction, the applicable test is the Nature of the Action Test
which involves a determination as to whether or not the action is capable of pecuniary
estimation. If not capable, jurisdiction is with the RTC. If capable-jurisdiction is determined by
the amount claimed/value of the real or personal property but this test must yield to the
Primary or Ultimate Objective Test where notwithstanding the fact that the action appears to
be incapable of pecuniary estimation, if the primary objective is to recover real property,
jurisdiction will be determined by the assessed value of the real property.
1.5 Examples: An action for specific performance with a prayer for the issuance of a deed of sale
over a parcel of land is a real action as the object is the recovery of the land itself 23 or an action
to quiet title in which both parties are claiming ownership of the subject parcels of land is also a
real action.24 Hence, they cannot be considered as being incapable of pecuniary estimation.
2. DETERMINATION OF AMOUNTS OF THE CLAIM TO DETERMINE JURISDICTION AND PAYMENT OF

DOCKET FEES.
2.1 Filing and docketing of the complaint are not separate but are complementary. It is not simply
the filing of the complaint or appropriate initiatory pleading, but the payment of the prescribed
18
June 14, 1994
19
Securities Regulation Code of 2000
20
Palana v. People, 534 SCRA 296
21
Perkins v. Dizon, 69 Phil 186
22
Biaco v. PCRB, 515 SCRA 106
23
Gochan v. Gochan, 372 SCRA 256
24
Ferrer v. Lucas, CA G.R. No. SP 52294, July 9, 1999
3
docket fee that vests a trial court with jurisdiction over the subject matter or nature of the
action.25
2.2 The problem arises as filing is not synonymous with docketing as the complaint may be filed but
not necessarily docketed if the appropriate fees are not paid.
2.3 The purpose of docket fees is to take care of court expenses in the handling of cases in terms of
costs of supplies, use of equipment, salaries and benefits. 26
2.4 Examples in determining appropriate docket fees: (a) Foreclosure of chattel to collect PHP
100,000.00 but actual value of chattel is PHP 500,000.00, the docket fee is based on what is
sought to be collected and jurisdiction is determined by the amount claimed by the plaintiff (b)
An action to collect a sum of money that is within jurisdiction of the MTC but with accessory
prayer for damages beyond MTC jurisdiction, the damages, interest, attorneys’ fees, litigation
expenses are to be excluded in determining jurisdiction but docket fees are still to be
collected27 but if action is for damages over 400K jurisdiction is with the RTC because it is the
main cause of action or one of the causes of action.
2.5 If the docket fees are incorrect - the trial court should allow the plaintiff to pay within a
reasonable period of time before the expiration of the applicable prescriptive or reglamentary
period otherwise the defendant must move to dismiss the complaint on the ground of lack of
jurisdiction, if he does not, he may be considered to be in estoppel. 28
2.6 The court had jurisdiction over the amended complaint as it had acquired jurisdiction over the
case when the original complaint was filed and the corresponding docket fee was paid thereon.
While the payment of the prescribed docket fee is a jurisdictional requirement, even its
nonpayment at the time of filing does not automatically cause the dismissal of the case, as long
as the fee is paid within the applicable prescriptive or reglementary period. 29
2.7 When the docket fees for the main action are paid but those for related damages alleged but
not specified are not paid, the court is not prevented from proceeding with the complaint, the
trial court may expunge the claims or allow on motion, a reasonable time for amendment of the
complaint or accept payment of the requisite legal fees. 30
2.8 In a complaint for recovery of possession of real property which did not allege the assessed
value thereof, the trial court commits a serious error in denying a motion to dismiss on the
ground of lack of jurisdiction. All proceedings in said court are null and void. 31
2.9 If the claims are not specified and subsequently arise or there is an insufficiency in the payment
of docket fees, the required additional fee shall constitute a lien on the judgment and the clerk
of court must enforce and collect the difference in docket fees from the judgment that may be
rendered by the court in the case, awarding a claim no specified in the pleading or if specified is
left to its determination.32
DISTINCTIONS BETWEEN THE NATURE OF JURISDICTION EXERCISED BY THE COURTS
1. AS TO THE NATURE OF THE EXERCISE OF JURISDICTION OR KIND OF CASES THAT ARE TRIED – it is
General, meaning it is exercised over all kinds of cases or Limited, meaning it exercised over and extends only
to a particular or specified cases
2. AS TO THE NATURE OF THE CAUSE OR THE ACTION – it is Criminal when the object of the action is to
impose punishment for a crime or Civil, if otherwise.
3. AS TO THE TIMING OF ITS EXERCISE- it is Original, meaning it is exercised by courts in the first instance
or Appellate, meaning it is exercised by a superior court to review and decide a cause or action previously
decided by a lower court.
25
Proton Pilipinas Corporation v. Banque Nationale de Paris, 460 SCRA 260.
26
Serrano v. Delica, 465 SCRA 82
27
A.M. 09-94, June 14, 1994
28
NSC v. Court of Appeals, G.R. 123215, February 2, 1999
29
Pagcor v. Lopez, 474 SCRA 76, Polido v. Court of Appeals, 527 SCRA 248
30
Tacay v RTC of Tagum, Davao del Sur, 180 SCRA 433
31
Quinagoran vs. CA, GR No. 155179, August 24, 2007
32
Pascual v. Court of Appeals, 300 SCRAPascual v. Court of Appeals, 300 SCRA 214
4
4. AS TO THE EXTENT OF THE EXERCISE OF JURISIDICTION – it is Exclusive, meaning it is confined to a
particular court or Concurrent, meaning two or more courts have jurisdiction at the same time and place.
4.1 In this instance, the court which has first validly acquired jurisdiction takes it to the exclusion of
the others. This is also known as the Exclusionary Principle. This is taken together with the
Doctrine of Judicial Stability of Non-Interference which holds that court of co-equal or
coordinate jurisdiction shall have no authority to pass upon or scrutinize the exercise by another
court of its jurisdiction.
4.2 Note though the Doctrine of Hierarchy of Courts which requires litigants to initially seek proper
relief from the lower courts in those cases where the Supreme Court has concurrent jurisdiction
with the Court of Appeals and the Regional Trial Court to issue the extraordinary writs of
certiorari, prohibition or mandamus. The Supreme Court is a court of last resort and its
jurisdiction to issue extra-ordinary writs should be exercised only when absolutely necessary, or
where serious and important reasons therefor exist. 33 Neither does concurrence of jurisdiction
grant any party seeking any of the extra-ordinary writs the absolute freedom to file the petition
with the court of his choice.34
5. AS TO SITUS – it is Territorial, meaning it is exercised within the limits of the place where the court is
located or Extra-Territorial meaning it is exercised beyond the confines of the territory where the court is
located.
WHAT HAPPENS WHEN JURISDICTION IS ACQUIRED
Jurisdiction once acquired continues until the case is terminated. It is not affected by subsequent legislation
placing jurisdiction in another tribunal. 35 The exceptions are: when the law expressly provides for retroactivity, 36
when the change in jurisdiction is curative in nature, or when there is a perfected appeal. This is also known as
the Doctrine of Adherence to Jurisdiction.
DOCTRINE OF PRIMARY JURISDICTION
1. That which vests in an administrative tribunal the jurisdiction to determine a controversy requiring the
exercise of sound administrative discretion – stated otherwise – if jurisdiction is vested upon an administrative
body, no resort to courts can be made until the administrative body shall have acted on the matter.
2. In exercising its primary jurisdiction, a court has the inherent jurisdiction to determine issues incidental
to its exercise. This is known as the Doctrine of Ancillary Jurisdiction.
LEVELS OF SUBJECT MATTER JURISDICTION
1. JURISDICTION OF THE SUPREME COURT
The jurisdiction of the Supreme Court in civil cases of which it cannot be deprived and which cannot be
diminished by Congress is to review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the
Rules of Court may provide, final judgments and orders of lower courts in:
a) all cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question;
b) all cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in
relation thereto;
c) all cases in which the jurisdiction of any lower court is in issue; and
d) all cases in which only an error or question of law is involved.
The foregoing Constitutional definition is of appellate jurisdiction. Congress, however, is not prohibited
from increasing or adding to this Constitutionally-defined jurisdiction. And so Congress has given the Supreme
Court original jurisdiction over cases affecting ambassadors, other public ministers, and consuls and petitions
33
Pearson v. IAC, 295 SCRA 27
34
Ouano vs. PGTT International Investment Corporation, 384 SCRA 587
35
Mercado v. Ubay, 187 SCRA 719
36
Latchme Motoomull v. Dela Paz, 187 SCRA 743
5
for the issuance of writs of certiorari, prohibition and mandamus against the Court of Appeals. Congress has also
vested the Supreme Court with jurisdiction, concurrent with the RTCs, over petitions for the issuance of the
writs of certiorari, prohibition, habeas corpus, and in actions brought to prevent and restrain violations of law
concerning monopolies and combinations in restraint of trade.
The appellate jurisdiction in civil cases of the Supreme Court as defined in the Constitution had been
revised and expanded a little bit more by law to include all cases involving petitions for naturalization or
denaturalization, all decisions of the Auditor General, if the appellant is a private person or entity, and final
judgments or orders of the Commission on Elections.
2. JURISDICTION OF THE COURT OF APPEALS
The Court of Appeals has both original and appellate jurisdiction. Its original jurisdiction, which is
exclusive, is over actions for annulment of RTC judgments. Its original jurisdiction, which is concurrent with the
Supreme Court and the RTCs, is to issue writs of mandamus, prohibition, certiorari, habeas corpus and quo
warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction.
The appellate jurisdiction of the Court of Appeals, which is exclusive, is over final judgments or
resolutions of RTCs and quasi-judicial agencies, such as the Securities and Exchange Commission,
Sandiganbayan and the National Labor Relations Commission.
3. JURISDICTION OF REGIONAL TRIAL COURTS
The RTCs are our second-level trial courts. As the Supreme Court and the Court of Appeals, RTCs have
both original and appellate jurisdiction in civil cases.
Their original jurisdiction is concurrent with the Supreme Court and the Court of Appeals in the issuance
of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunctions but, as issued by
RTCs, these writs may be enforced only within their respective regions, and over actions affecting ambassadors
and other public ministers and consuls.
The original jurisdiction of RTCs, which is exclusive, is broad and covers the following cases:
a) All civil actions in which the subject of the litigation is incapable of pecuniary estimation;
b) All civil actions which involve the title to, or possession of, real property, or any interest therein,
where the assessed value of the property involved exceeds Two hundred thousand pesos
(P200,000.00) or for civil actions in Metro Manila, where such value exceeds Four hundred
thousand pesos (P400,000.00) except actions for forcible entry into and unlawful detainer of
lands or buildings, original jurisdiction over which is conferred upon the Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts;
c) All actions in admiralty and maritime jurisdiction where the demand or claim exceeds Two
hundred thousand pesos (P200,000.00) or in Metro Manila, where such demand or claim
exceeds Four hundred thousand pesos (P400,000.00);
d) All matters of probate, both testate and intestate, where the gross value of the estate exceeds
Two hundred thousand pesos (P200,000.00) or, in probate, both testate and intestate, where
the gross value of the estate exceeds Two hundred thousand pesos (P200,000.00) or, in probate
matters in Metro Manila, where such gross value exceeds Four hundred thousand pesos
(P400,000.00);
e) All actions involving the contact of marriage and marital relations;
f) All cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising
jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions;
g) All civil actions and special proceedings falling within the exclusive jurisdiction of a Juvenile and
Domestic Relations Court and of the Court of Agrarian Relations as then provided by law; and
h) All other cases in which the demand, exclusive of interest, damages of whatever kind,
attorney’s fees, litigation expenses, and costs or the value of the property in controversy
exceeds Two hundred thousand pesos (P200,000.00) or, in such other cases in Metro Manila,
6
where the demand, exclusive of the above-mentioned items exceeds For hundred thousand
pesos (P400,000.00).
The appellate jurisdiction of the RTCs is over all cases decided by Metropolitan Trial Courts, Municipal
Trial Courts and Municipal Circuit Trial Courts in their respective territorial jurisdiction.
The term “damages of whatever kind” has been specially defined by the Supreme Court for purposes of
determining the jurisdictional amount in respect to the jurisdiction of the RTC. This term is understood to apply
only to cases when the damages are merely incidental to or a consequence of the main cause of action, and that
therefore where the claim for damages is the main cause of action or one of the causes of action, the amount of
the claim shall be considered in determining the jurisdiction of the court.
The Supreme Court has however designated certain branches of the RTCs to handle exclusively certain
cases as corporate and intellectual property cases.
4. JURISDICTION OF METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS AND MUNICIPAL

CIRCUIT TRIAL COURTS
The MTCs are the first-level trial courts in this country. They have therefore no appellate jurisdiction and
all their jurisdiction is exclusive and encompasses the following cases:
a) all civil actions and probate proceedings, testate and intestate, including the grant of provisional
remedies in proper cases, where the value of the personal property, estate, or amount of the demand
does not exceed two hundred thousand pesos (P200,000.00) or, in Metro Manila where such personal
property, estate, or amount of the demand does not exceed Four hundred thousand pesos
(P400,000.00), exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and
costs, the amount of which must be specifically alleged: Provided, That 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 causes of action irrespective of
whether the causes of action arose out of the same or different transactions;
b) cases of forcible entry and unlawful detainer: Provided, That when, in such cases, the defendant raises
the question of ownership in his pleadings and the question of possession cannot be resolved without
deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of
possession; and
c) all civil actions which involve title to, or possession of, real property or any interest therein where the
assessed value of the property or interest therein does not exceed Two hundred thousand pesos (P200,
000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Four hundred
thousand pesos (P400, 000.00) exclusive of interest, damages of whatever kind, attorney’s fees,
litigation expenses and costs.
The MTCs may however be assigned by the Supreme Court to hear and determine certain cadastral cases and
petitions for habeas corpus.
RULE I GENERAL PROVISIONS
1. The Rules shall be known and cited as the Rules of Court. 37
2. They apply in all courts, except as otherwise provided by the Supreme Court 38 in civil, criminal and
special proceedings.39
2.1 For purposes of the subject matter, only Rules 1 to 71 or the 1997 Rules of Civil Procedure shall
be discussed herein.
2.2 A Civil Action is one by which a party sues another for the enforcement or protection of a right
or the prevention or redress of a wrong. Examples: To enforce payment of a loan or to eject an
intruder on one’s property.
2.3 Civil Actions may be considered as:
37
Section 1, Rule 1, 1997 Rules of Civil Procedure
38
Supra, Section 2, Rule 1
39
7
(a) Ordinary or Special, while both are governed by the rules for ordinary civil actions, there are
specific rules prescribed for a special civil action.
(b) In Personam, which is an action brought against a person based on personal liability to the
person bringing the action. The purpose of the action is to impose through the judgment of
a court, some responsibility or liability directly upon the person of the defendant. 40 In this
kind of action, no one other than the defendant is held liable, not the whole world.
(c) In Rem, is an action that is directed against the thing itself rather than the person, it is
directed against the thing, property or status of a person and seeks judgments with respect
thereto against the whole world.41 An example would be an action for registration of land as
the judgment thereon is binding upon the whole world.
(d) Quasi in Rem, is an action that names a person as a defendant but its object is to subject the
person’s interest in property to a corresponding lien or obligation. 42 It deals with the status,
ownership or liability of a particular property but which are intended to operate on these
questions only as between the particular parties to the proceedings and do not cut off the
rights and interests of all possible claimants. Examples are actions for partition, attachment
or foreclosure of mortgages.
2.4 Note the distinctions between actions in personam, on one hand, and actions in rem or quasi in
rem on the other, is essential as far as jurisdiction. In an action in personam, jurisdiction over
the person of the defendant is necessary for the court to validly try and decide the case. 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 that the court acquires jurisdiction over
the res. Jurisdiction over the res is acquired either (1) by the seizure of the property under legal
process, whereby it is brought into actual custody of the law; or (2) as a result of the institution
of legal proceedings, in which the power of the court is recognized and made effective. 43
3. Civil Actions can also be distinguished as:
3.1 Real Actions are those which affect title to, or possession of real property or any interest
therein.44 All others are personal actions.45
3.2 In a real action, it is founded upon the privity of real estate. That means that realty or any
interest therein is the subject matter of the action. What is essential is that as far as the real
property is concerned, the issues are title to, ownership, possession, partition, foreclosure of
mortgage or condemnation. Hence, an action for damages suffered by real property is a
personal action as it does not involve any of the listed issues.
3.3 An action to annul a contract of loan and its accessory real estate mortgage is a personal action.
In a personal action, the plaintiff seeks recovery of personal property, the enforcement of a
contract or recovery of damages. A real action is an action affecting title to real property or for
recovery of possession, or for partition or condemnation of, or foreclosure of mortgage on real
property. The rule on real actions only mentions an action for foreclosure of real estate
mortgage; it does not include an action for cancellation or annulment of a real estate
mortgage.46
3.4 The distinction between a real action and a personal action is important for the purpose of
determining the venue of the action.
3.5 An action in personam is not necessarily a personal action. Nor is a real action necessarily an
action in rem. An in personam or an in rem action is a classification of actions according to the
object of the action. A personal and real action is a classification according to foundation. It is
in rem when directed against the whole world. For instance, an action to recover, title or
possession of real property is a real action, but it is an action in personam. It is not brought
against the whole world but against the person upon whom the claim is made. 47
40
Domagas v. Jensen, 448 SCRA 663
41
Ching v Court of Appeals, 181 SCRA 9
42
Ramos v. Ramos, 399 SCRA 43
43
Biaco v. Philippine Countryside Rural Bank, GR No. 161417, February 8, 2007
44
45
46
Chua vs. Total Office Products and Services, Inc., 471 SCRA 500
47
Republic v Court of Appeals, 315 SCRA 600
8
4. Distinguishing civil actions from other kinds of actions:
4.1 Criminal Action is one by which the state prosecutes a person for an act or omission punishable
by law.
4.2 A Special Proceeding is a remedy by which a party seeks to establish a status, right or a
particular fact. In addition, a civil action is adversarial, while a special proceeding may not be so
as it may involve only 1 party. The object of a civil action is the formal demand of a right by one
against the other, while in a special proceeding; it is the declaration of a status, right or a
particular fact.
5. They do not apply to election cases, land registration, cadastral, naturalization and insolvency, and
other cases not herein provided, except by analogy or in suppletory character and whenever practicable and
convenient.48
6. The rules have retroactive application in the sense that they shall be held to apply to actions pending or
undetermined at the time of their effectuality. 49
6.1 The exceptions to retroactive application are: (a) the statute itself or by implication provides
that pending actions are excepted (b) it will impair vested rights (c) to the mind of the court, it
will work injustice (d) it would involve intricate problems of due process or impair the court’s
independence
WHEN AN ACTION IS COMMENCED
1. An action is commenced upon the filing of the original complaint in court. Filing refers to the act of
presenting the complaint to the clerk of court and the payment of the requisite docket and filing fees. Filing is
deemed done only upon payment regardless of the actual date of the filing. 50
1.1 An exception is when the plaintiff is authorized to litigate as a pauper litigant as he is exempt
from the payment of filing fees.
2. If an additional defendant is impleaded in a later pleading, it is commenced as far as the additional

defendant on the date of the filing of the later pleading, irrespective of whether the motion for its admission, if
necessary is denied by the court.51
3. Note that the commencement of the action interrupts the period of prescription as to the parties to the
action.52
HOW SHOULD THE RULES BE CONSTRUED
1. The rules shall be construed liberally in order to promote their objective of securing a just speedy and
inexpensive disposition of every action or proceeding. 53
1.1 Liberal construction is the controlling principle to effect substantial justice. Litigation should as
much as possible, be decided on their merits, and not on technicalities.
1.2 Rules must not be applied to rigidly so as not to override substantial justice. 54 Rules of
procedure must be used to facilitate not to frustrate the ends of justice. 55
1.3 It does not mean, however, that procedural rules are to be ignored or disdained at will to suit
the convenience of a party.56
2. Liberal construction of the rules should be made by the courts in cases:
48
Supra,,Section 4, Rule 1
49
Nypes v. Court of Appeals, 478 SCRA 115
50
Magaspi v. Ramolete, 115 SCRA 193
51
52
Cabrera v Tiano,8 SCRA 542
53
Supra,Section 6, Rule 1
54
De La Cruz v. Court of Appeals, GR No. 139442, December 6, 2006
55
Canton v City of Cebu, GR No. 152898, February 12, 2007
56
Vda De Toledo v Toleda, 417 SCRA 260
9
a) a rigid application will result in manifest failure or miscarriage of justice, especially if a party
successfully shows that the alleged defect in the questioned final and executory judgment is not
apparent on its face or from the recitals contained therein
b) where the interest of substantial justice will be served
c) where the resolution of the motion is addressed solely to the sound and judicious discretion of
the court
d) where justice to the adverse party is not commensurate with the degree of this thoughtlessness
in not complying with the procedure prescribed. 57
3. A party litigant should be given the fullest opportunity to establish the merits of his complaint or his
defense. He ought not to lose life, liberty or honor or property on technicalities.
3.1 Rules of procedure should be viewed as mere tools designed to facilitate the attainment of
justice. An example is the matter of the attachment of copies to petitions 58 or failure to indicate
material dates in the petition.59
4. Note that in doing so, substantial justice and equity considerations must not be sacrificed.
4.1 Periods for filing are as a matter of practice, strictly construed.
4.2 Neither can liberality of the rules be invoked if it will result in the wanton disregard of the rules
or cause needless delay in the administration of justice. 60
5. Concommitant to a liberal application of the rules of procedure should be an effort on the part of the
party invoking liberality to adequately explain his failure to abide by the rules. 61
6. The rules and procedure laid down for the trial court and the adjudication of cases are matters of public
policy.
6.1 They are matters of public order or interest which can in no wise be changed or regulated by
agreements between or stipulations by parties to an action for their singular convenience. 62
6.2 They are required to be followed except only for the most persuasive of reasons as when
transcendental matters of life, liberty or state security is involved. Litigation is not a game of
technicalities. It is equally true, however, that every case must be presented in accordance with
the prescribed procedure to ensure an orderly and speedy administration of justice. 63
7. The Supreme Court has the power to suspend or set aside its rules in the higher interest of justice. 64
Specifically, the reasons that will warrant the suspension are: (a) the existence of special or compelling reasons
(b) the merits of the case (c) a cause not entirely attributable to the fault or negligence of the party favored by
the suspension (d) a lack of showing that the review is frivolous or dilatory, and (e) the other party will not be
prejudiced thereby.65
RULE 2 CAUSE OF ACTION
CAUSE OF ACTION DEFINED
1. The basis of an ordinary civil action is a cause of action. 66
2. A cause of action is the act or omission by which a party violates a right of another. 67
57
Seapower Shipping Enterprises, Inc. v CA, 360 SCRA 173, Tan v CA, 295 SCRA 755
58
Alberto v Court of Appeals, 334 SCRA 756
59
Fulgencio v NLRC, 411 SCRA 69
60
El Reyno Homes v Ong, 397 SCRA 563
61
Sebastian v Hon. Morales, 397 SCRA 549, Duremdes v Duremdes, 415 SCRA 684
62
Republic v Hernandez, 253 SCRA 509
63
Mindanao Savings Loan Association v. De Flores, 469 SCRA 416
64
Fortica v Corona, GR No. 131457, April 24, 1998
65
Sarmiento v. Zaratan, GR No. 167471, February 5, 2007
66
67
Supra, Section 2, Rule 2, PNOC v. Court of Appeals, GR No. 165433, February 6, 2007
10
THE REQUISITES OF A CAUSE OF ACTION
1. The requisites for a cause of action are: (a) a right in favor of the plaintiff by whatever means and under
whatever law it arises or is created (b) an obligation on the part of the defendant to respect and not to violate
such right (c) an act or omission on the part of the defendant constituting a violation of the plaintiff’s right. 68
DISTINGUISHING IT FROM AN ACTION AND A RIGHT OF ACTION
1. An action is the suit filed in court for the enforcement or protection of a right, or the prevention or
redress of a wrong, while a cause of action is the basis for the filing of the action.
2. The right of action is the right to commence and maintain an action, it is a remedial right that depends
on substantive law, while a cause of action is a formal statement of the operative facts that give rise to such
remedial right which is a matter of statement and is governed by procedural law. The right of action which is
procedural in character is the consequence of the violation of the right of the plaintiff. Hence, there is no right
of action where there is no cause of action.
2.1 The distinction is best used to explain the principle that the existence of a cause of action may
only be ascertained from the allegations of the complaint. 69
HOW MANY SUITS CAN BE FILED FOR A CAUSE OF ACTION
Same Objective Test – if a party has only one objective in filing two cases, there exists identity of causes of
action and reliefs based on the same objective standard. 70
1. A party may not institute more than one suit for a single cause of action. 71
2. The practice of splitting a cause of action is discouraged because it breeds multiplicity of actions, clogs the
dockets of the courts and operates to cause unnecessary expense to the parties.
3. If a party institutes more than one suit, the filing of one or a judgment upon the merits in anyone is
available as a ground for the dismissal of the others. 72 This is also known as Splitting a Cause of Action.
3.1 The remedy of the defendant is to file a motion to dismiss. If the action is pending when the
second action is filed, the dismissal is based on litis pendentia or if a final judgment has been
rendered in the first action when the second is filed, the dismissal is based on res judicata.
3.2 Note though that the rule does not confine itself to a dismissal of the second action. As to which
action is to be dismissed would depend on judicial discretion and attendant circumstances.
4. The rule on splitting a cause of action applies not only to complaints but also to counter-claims and cross-
claims.73
5. The singleness of a cause of action is determined as follows:
5.1 In an action Ex Delicto or one arising from the fault or negligence of a defendant, the singleness
of a cause of action lies in the singleness of the delict or wrong violating the right of a person. If
however, one injury results from several wrongful acts, only one cause of action arises.
Example: A party who is injured could not maintain an action for damages based on a breach of
the contract of carriage against the owner of the vehicle in which he was riding and another
action for quasi-delict against the driver/owner of the offending vehicle. The recovery under one
remedy necessarily should bar recovery under another. This, in essence, is the rationale for the
proscription in our law against double recovery for the same act or omission which, obviously
stems from the fundamental rule against unjust enrichment. 74
5.2 In an action Ex Contractu or one arising out of or is founded on a contract, the rules are as
follows:
68
Navao v CA, 251 SCRA 545
69
Equitable Bank v CA, 425 SCRA 544
70
Clark Development Corporation v Mondragon Leisure Resorts, 517 SCRA 203
71
72
73
Mariscal v. Court of Appeals, 311 SCRA 51
74
Joseph v Bautista, 170 SCRA 540
11
(a) In a single or indivisible contract, only one cause of action arises from a single or several
breaches. Example: In a contract of sale of personal property by installments, the
remedies of the unpaid seller is alternative, they are: (1) elect fulfillment (2) cancel the
sale, should the vendee’s failure to pay cover two or more installments, and (3)
foreclose the mortgage on the thing sold if one has been constituted should the vendee
fail to pay two or more installments. 75
(b) If the contract provides for several obligations, each obligation not performed gives rise
to a single cause of action. But if upon filing of the complaint several obligations have
already matured, all of them shall be integrated into a single cause of action. Example:
Contract for delivery of goods in part or over a period.
(c) If the contract is divisible in its performance, and the future performance is not yet due,
but the obligor has already manifested his refusal to comply, the contract is entire and
the breach is total. Thus, there can only be one action. 76 This is known as the Doctrine of
Anticipatory Breach.
IF A PARTY HAS SEVERAL CAUSES OF ACTION
1. He can join his causes of action 77 as he may in one pleading assert, in the alternative or otherwise, as
many causes of action as he may have against the opposing party. It is the assertion of as many causes of action
as a party may have against another in one pleading alone.
2. It has also been defined as the process of uniting two or more demands or rights of action in one
action.78
3. Joinder is subject to the following conditions:
3.1 Party joining the causes of action shall comply with the rule on joinder of parties, which
provides that : All persons in whom or against whom any right to relief is respect to or arising
out of the same transaction 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. 79 Note that the common question of law or fact is relevant
only when there are multiple plaintiffs or defendants.
3.2 Joinder does not allow the inclusion of special civil actions or actions governed by special rules.
Example: An action for a sum of money cannot be joined with an action for iIlegal detainer
3.3 Where causes of action are between same parties but pertain to different venues or
jurisdictions, joinder may be allowed in the RTC provided one of the causes of action falls within
its jurisdiction and venue lies therein.
3.4 When the claims in all causes of action are principally for recovery of money, the aggregate
amount shall be the test of jurisdiction.
EFFECT OF MISJOINDER
1. Upon motion of a party or on the initiative of the court, a misjoined cause of action may be severed and
proceeded with separately.80
2. Misjoinder is not ground for a motion to dismiss.
RULE 3 PARTIES TO CIVIL ACTIONS
WHO MAY BE PARTIES TO A CIVIL ACTION
75
Articles 1484,1486, NCC
76
Blossom & Co v Manila Gas Corporation, 55 Phil 226
77
78
1 C.J.S., Actions 61
79
80
12
1. Only natural or juridical persons or entitles authorized by law may be parties in a civil action. 81 They are
called: Plaintiff – he is one who has interest in the subject of the action and obtaining the relied demanded. He
may be the claimant in the original complaint, the counter-claimant in the counter claim, or cross-claimant in a
cross-claim or the third party plaintiff and the Defendant – he is one who has an interest in the controversy
adverse to the plaintiff. He may be the original defending party, the defendant in a counter-claim, or cross-
defendant in a cross-claim.
1.1 For ready reference, a counter-claim is any claim which a defending party may have against an
opposing party.82A cross-claim is a 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 counter-
claim therein.83A third party claim is a claim that a defending party may, with leave of court, file
against a person not party to an action for contribution, indemnity, subrogation or any other
relief, in respect to his opponent’s claim.84
2. Juridical persons include:
2.1 The state or any of its political subdivisions, while considered as juridical entities, they can sue
but as a general rule, they cannot be sued without its consent. It is deemed to have given
consent when: (a) it enters into a private contract (b) it enters into a business operation unless it
is an incident of its primary government function (c) it sues a private party, unless the suit is to
resist a claim (d) when there is a failure to abide with what the law or contract provides.
A suit is considered as against the state when: (a) it is against the Republic of the Philippines (b)
it is against a government agency or office without juridical personality (c) it is against the
officers or agents of the government and involves a financial liability.
2.2 Corporations, institutions and entities for public interest or purpose, created by law, like
government agencies and water districts.
2.3 Corporations, partnerships, and associations for private interest or purpose to which the law
grants juridical personality, separate and distinct from that of a shareholder, partner or
member.
2.4 A partnership having capital of P 3,000.00 that fails to comply with registration requirements. 85
2.5 A dissolved corporation within a 3 year period after dissolution to settle its affairs. 86
2.6 A foreign corporation cannot be a plaintiff in suit when it is transacting business in the
Philippines without a license.
3. Entities authorized by law are (a) recognized labor organizations (b) estate of a deceased person 87 (c)
Roman Catholic Church88
4. Entities without legal personality referring to 2 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 but in their answer to the complaint, their names and addresses must be revealed. 89
4.1 It can also cover a corporation by estoppel 90 or partnership by estoppel91
5. A sole proprietorship may not be a party as it is neither a natural, juridical or entity allowed or
authorized by law. If one sues as such, the action may be dismissed on the ground of lack of capacity to sue. It
does not possess a juridical personality separate and distinct from the personality of the owner of the
enterprise.92 It cannot sue or file or defend an action in court.93
81
Supra,,Section 1, Rule 3
82
83
84
85
Article 1772 in relation to Article 1768, NCC
86
Section 122, BP 68
87
Nazareno v. Court of Appeals, 343 SCRA 637
88
Versoza v. Fernandez, 49 Phil 627
89
90
Section 21, BP 68
91
Article 1825, NCC
92
Mangila v Court of Appeals, 387 SCRA 162, Yao Ka Sin Trading v Court of Appeals, 209 SCRA 763
93
Juasing Hardware v Mendoza, 115 SCRA 783
13
WHEN PARTIES IMPLEADED ARE NOT AUTHORIZED TO BE PARTIES
1. Where the plaintiff is not a natural or juridical person, or an entity authorized by law, a motion to
dismiss may be filed on the ground that the plaintiff has no legal capacity to sue. Do not confuse it with one
who has capacity to sue but he is not the real party in interest as the ground for dismissal then is failure to state
a cause of action.94
2. Where it is the defendant who is not any of the above, the complaint may be dismissed on the ground
that the “pleading asserting the claim states no cause of action” or ‘failure to state a cause of action’, because
there cannot be a cause of action against one who cannot be a party to a civil action.
PARTIES IN INTEREST
1. A real party in interest is the party who stands to be benefited or injured by the judgment or party
entitled to the avails of the suit. Unless otherwise authorized by law of the rules, like in a class suit, all actions
must be prosecuted or defended in the name of the real party in interest. 95
1.1 A real party in interest-plaintiff is one who has a legal right, while a real party in interest-
defendant is one who has a correlative obligation, whose act or omission violates the legal
rights of the former.96 Hence, the determination of who is a real party in interest goes back to
the elements of a cause of action. Evidently, the owner of the right violated stands to be the
real party in interest as plaintiff and the person responsible for the violation is the real party in
interest defendant.97
1.2 To be a real party in interest, the interest must be real, which is a present substantial interest as
distinguished from a mere expectancy or a future, contingent, subordinate or consequential
interest. It is an interest that is material and direct, as distinguished from a mere incidental
interest in the question.98
1.3 Illustrations: (a) In a case where a lawful possessor is disturbed in his possession, it is the
possessor, not necessarily the owner, who can bring an action to recover the possession. 99 (b)
The parties to a contract are the real parties in interest in an action upon it based on the
doctrine of relativity of contracts under Article 1311, NCC, unless it conveys a benefit to a person
not a party thereto (c) Actions under Articles 1313 and 1381, NCC when the contracts are
entered into in fraud of creditors. (d) Suits by corporations must be in its name, not that of the
stockholders or members.
2. When a suit is not brought in the name of the real party in interest, it may be dismissed on the ground
that the complaint states no cause of action. 100 Note that the dismissal is not due to lack of or no legal capacity
to sue nor lack of legal personality, as the latter is not ground for dismissal for under the 1997 Rules of Civil
Procedure.
2.1 It states no cause of action because it is not being prosecuted in the name of the real party in
interest.
2.2 Lack of Legal Capacity to Sue means that the plaintiff is not in exercise of his civil rights, does
not have the necessary qualification to appear or does not have the character or representation
he claims. Example: Trustee or Minor, as distinguished from Lack of Legal Personality means
that the plaintiff is not the real party in interest. Dismissal is based on the fact that the
complaint states no cause of action
3. Legal standing means a personal and substantial interest in the case such that the party has sustained
or will sustain direct injury as a result of the act being challenged. The term interest is material interest, an
interest in issue, and to be affected by the decree, as distinguished from mere interest in the question involved,
or a mere incidental interest. Moreover, the interest must be personal and not one based on a desire to
vindicate the constitutional right of some third or unrelated party.
94
Balagtas v. Court of Appeals, 317 SCRA 69
95
96
Gan Hock v. Court of Appeals, 197 SCRA 223
97
Lee v. Romillo, 161 SCRA 589
98
Samaniego v. Aguila, 334 SCRA 438
99
Philippine Trust Company v. Court of Appeals, 320 SCRA 719
100
Tankiko v Cesar, 302 SCRA 559
14
3.1 However, the concept of ‘standing’ because of its constitutional underpinnings is very different
from questions relating to whether or not a particular party is a real party-in-interest. Although
both are directed towards ensuring that only certain parties can maintain an action, the
concept of standing requires an analysis of broader policy concerns. The question as to who the
real party-in-interest is involves only a question on whether a person would be benefited or
injured by the judgment or whether or not he is entitled to the avails of the suit. 101
3.2 Locus standi is defined as a right of appearance in a court of justice on a given question. In
private suits, standing is governed by the “real-parties-in interest” rule found in Section 2, Rule
3 of the Rules of Court which provides that every action must be prosecuted or defended in the
name of the real party-in-interest. 102 In other cases, locus standi is a party’s personal and
substantial interest in a case such that he has sustained or will sustain a direct injury as a result
of the governmental act being challenged. It calls for more than generalized grievance. The
term “interest” means a material interest, an interest in issue affected by the decree, as
distinguished from a mere interest in the question involved or a mere incidental interest. 103
Unless a person’s constitutional rights are adversely affected by the statute or ordinance, he has
no legal standing.
4. Be that as it may, we have on several occasions relaxed the application of these rules on legal standing:
“In not a few cases, the Court has liberalized the locus standi requirement when a petition raises an issue of
transcendental significance or paramount importance to the people. Recently, after holding that the IBP had
no locus standi to bring the suit, the Court in IBP v. Zamora nevertheless entertained the Petition therein. It
noted that “the IBP has advanced constitutional issues which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents.” 104
4.1 Objections to a taxpayer’s suit for lack of sufficient personality, standing or interest are
procedural matters. Considering the importance to the public of a suit assailing the
constitutionality of a tax law, and in keeping with the Court’s duty, specially explicated in the
1987 Constitution, to determine whether or not the other branches of the Government have
kept themselves within the limits of the Constitution and the laws and that they have not
abused the discretion given to them, the Supreme Court may brush aside technicalities of
procedure and take cognizance of the suit.105
4.2 There being no doctrinal definition of transcendental importance, the following determinants
formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1) the
character of the funds or other assets involved in the case; (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other party with a more direct and
specific interest in raising the questions being raised. 106
CLASSIFICATION OF REAL PARTIES IN INTEREST
1. Indispensable Party is a party without whom no final determination can be had of an action. 107 They are
those with such an interest in the controversy that a final decree would necessarily affect their rights, so that
the courts cannot proceed without their presence. Example: owners of property over which reconveyance is
asserted are indispensable parties without whom no relief is available and without whom the court can render
no valid judgment.108
1.1 Without the presence of indispensable parties to the suit, the judgment of the court cannot
attain real finality.109 Strangers to a case are not bound by the judgment rendered by the
court.110
101
Kilosbayan, Inc. vs. Morato, 246 SCRA 540
102
Baltazar vs. Ombudsman, G.R. No. 136433, December 6, 2006
103
Velarde v Social Justice Society, 392 Phil 618, IBP v Zamora, 338 SCRA 81
104
Velarde v. Social Justice Society, supra at note 22, citations omitted.
105
Bugnay Construction and Development Corporation v. Hon. Laron, G.R. No. 79983, 10 August 1989, 176 SCRA 240, 251,
citing Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, G.R. No. 81311, 30 June 1988, 163 SCRA
371, 378.
106
Francisco v. Nagmamalasakit na mga Manggagawang Pilipino, Inc., supra at note 30, citing Kilosbayan, Incorporated v.
Guingona, Jr., 232 SCRA 110 (1994)
107
108
Valenzuela v Court of Appeals, 363 SCRA 779
109
Domingo v Scheer, 421 SCRA 468
110
Lucman v Malawi, GR No. 159794, December 19, 2006
15
1.2 The essential tests of an indispensable party: (a) May relief be afforded the plaintiff without the
presence of the other party? (b) May the case be decided on the merits without impairing the
substantial rights of the other party? 111
2. Necessary Party is a party 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.112 A necessary party’s presence is necessary to adjudicate the whole controversy but
whose interests are so far separable that a final decree can be made in their absence without affecting them.
2.1 Example: If the plaintiff only sues a one of his joint debtors, the joint debtor who is not sued is
merely a necessary party. As a consequence, the plaintiff only recovers the share of the debt
due from the joint debtor defendant.
2.2 A necessary party is to be impleaded as a party for complete determination of an action, while
an indispensable party is impleaded for a final determination of an action.
3. Pro-Forma Party or nominal party is one who is joined as a plaintiff or defendant not because such party
has any real interest in the subject matter or because relief is demanded, but merely because the technical rules
of pleadings require the presence of such party on the record. 113
PERSONS WHO CAN SUE IN BEHALF OF A REAL PARTY IN INTEREST
The following may sue in behalf of a real party in interest
1. Representatives - actions are allowed to be prosecuted / defended by a representative or by one acting

in a fiduciary capacity but the beneficiary shall be included in the title and shall be deemed to be the real party
in interest.114 Examples of representatives are: (a) trustee of an express trust (b) a guardian, executor or
administrator, or (c) a party authorized by law or the Rules.
1.2 An agent acting in his own name and for the benefit of an unknown principal may sue or be
sued without joining the principal except when the contract involves things belonging to the
principal. This refers to an agency with an undisclosed principal.115
2. Husband and Wife - as a general rule shall sue or be sued jointly, except as provided by law. 116 Non
joinder of party’s husband is not fatal. It is a mere formal defect. 117
2.1 They are required to sue and be sued jointly as they are joint administrators of the Absolute
Community or the Conjugal Partnership.118
2.2 The exceptions provided by law are when the property relations of husband and wife are
governed by the rules on separation of property 119 or one is disposing of exclusive property. 120
2.3 Note that the legal provision against the disposition of conjugal property by one spouse
without the consent of the other has been established for the benefit, not of third persons, but
only for the spouse for whom the law desires to save the conjugal partnership from damages
that might be caused. No other party can avail of the remedy other than the aggrieved
spouse.121
3. Minors or Incompetents may sue or be sued with the assistance of father, mother, guardian or, if he has
none, a guardian ad litem.122
3.1 A guardian ad litem is a special guardian appointed by the court in which a particular litigation is
pending to represent or assist a minor or an incompetent person involved in or has interest in
111
PNB v. Militar, 467 SCRA 377
112
113
Samaniego v. Aguila, 334 SCRA 438
114
115
Article 1883, NCC
116
117
Miranda v Besa, 435 SCRA 532
118
Articles 96 and 124, Family Code
119
Article 145, Family Code
120
121
Villaranda v Villaranda, 423 SCRA 571
122
16
the property subject of litigation. His status as such exists only in that particular litigation in
which the appointment occurs.
3.2 Note that the appointment of a guardian ad litem may occur in the following: for minor heirs
when substituting for a deceased party 123, incompetency or incapacity of a party 124, service of
summons on a minor or incompetent125, and when the best interest of the child require it. 126
JOINDER OF PARTIES
Joinder of Parties refers to the act of uniting several parties in a single suit either as plaintiffs or defendants.
1. The rule on joinder of parties states that: All persons in whom or against whom any right to relief in
respect to or arising out of the same transaction 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.127
2. Joinder of Parties, as a rule, is permissive when there is a question of law or fact common to all the
plaintiffs or defendants. This means that the right to relief or to resist the action arises out of the same
transaction or event or series of transactions or events. Example: action by passengers of a common carrier for
injuries sustained in an accident, there is no community of interest, the extent of the interest is limited to the
extent of damages being claimed by each.
3. It becomes compulsory when the parties to be joined are indispensable parties. 128
4. The exception to compulsory joinder of parties is when the subject of the action is proper for a class
suit. The subject matter of the controversy is proper for a class suit when it is one of common or general interest
to many persons so numerous that it is impractical to join all as parties. 129 All the parties who are interested in
the action as plaintiffs or defendants are all indispensable parties but not all need to be joined.
5. The three requisites of a class suit are:
5.1 The subject matter of the controversy is one of common or general interest to many persons.
There must be an indivisible right affecting many individuals whose particular interest is of
indeterminable extent and is incapable of separation. This requires that the benefit to one is a
benefit to all. Example: A suit filed by minors represented by their parents, in behalf of
themselves and others equally concerned with the preservation of the country’s resources, their
generation as well as generations yet unborn to compel the DENR Secretary to cancel all timber
license agreements and to cease and desist from receiving, accepting, processing, renewing or
approving new timber license agreements 130. The interest must be common and not
independent of each member of the class and should not conflict with each other. For this
reason, owners of subdivision lots in a subdivision cannot sue as a class because their interest is
only in their respective lots.131
5.2 The parties affected are so numerous that it is impracticable to join all as parties
5.3 The parties bringing or defending the class suit are found by the court to be sufficiently
numerous and representative as to fully protect the interest of all.
5.4 To comply with the 2nd and 3rd requisite, the Complaint most allege: (1) existence of a subject
matter which is of common or general interest to many persons, and (2) existence of a class and
the number of persons belonging to that class
123
124
125
126
127
128
129
130
Oposa v Factoran, 224 SCRA 792
131
Tuason v. Register of Deeds, 157 SCRA 613
17
6. Improper for a class suit is when a claimant is interested only in collecting his claims and has no concern
in protecting the interests of the others 132 or each of the plaintiffs has a separate claim or injuries not shared in
common by the others. Hence, each must prove his own damages. 133
7. It can be brought by the plaintiffs as a class or may be filed against the defendants as a class
7.1 Any party in interest shall have the right to intervene to protect his individual interest.
7.2 The general rule is that the party bringing the suit in his own name and that of others similarly
situated has the right to control the suit, but, it shall not be dismissed or compromised without
the approval of the court.134
EFFECTS OF FAILURE TO JOIN AN INDISPENSABLE PARTY OR A NECESSARY PARTY
1. If there is a failure to join an indispensable party, the court must order the plaintiff to amend his
complaint for the purpose of impleading the indispensable party.
1.1 If the plaintiff fails, refuses or the party cannot be sued because he is a non-resident defendant
in a personal action, the complaint must be dismissed. 135
2. If there is a failure to join a necessary party, the pleader in the pleading in which a claim is asserted
without joining a necessary party shall (a) set forth the name of the necessary party, if known and (b) state the
reason for omission.
2.1 If the court finds the reason for the omission is not meritorious, it may order the inclusion of the
omitted necessary party if jurisdiction over his person is obtained.
2.2 If pleader fails to comply with order for inclusion without justifiable cause, it shall be deemed a
waiver of the claim against the party, but the non-inclusion does not prevent the court from
proceeding with the action, and the judgment therein shall be without prejudice to rights of
such necessary party.136
3. Misjoinder of parties is not a ground for dismissal. 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 that are just.
Any claim against a misjoined party may be severed and proceeded against separately. 137
3.1 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.
3.2 While misjoinder or non-joinder is not a ground for dismissal, the failure to obey the order of
the court to drop or add a party is a ground for dismissal. 138
IF A PARTY TO BE JOINED AS A PLAINTIFF DOES NOT CONSENT OR CANNOT BE OBTAINED
1. The non-consenting party may be made a defendant and the reason therefor shall be stated in the
complaint.139He will be known as the unwilling co-plaintiff.
WHO WILL PLAINTIFF SUE IF HE IS UNCERTAIN
1. If the plaintiff is uncertain against whom 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.140
2. An example is in an action where the owner of goods is not sure whether they were lost in transit or
while it was on deposit in the warehouse of the arrastre operator. He may sue the shipper or the operator of the
warehouse in the alternative although the right against the shipper is based on admiralty while that against the
operator is based on contract. Another is an action for damages arising from loss of goods due to a collision.
132
Cadalin v POEA Administrator, 238 SCRA 721
133
Newsweek Inc. v. IAC, 142 SCRA 171
134
135
NDC v Court of Appeals, 211 SCRA 422
136
137
138
139
140
18
IF THE IDENTITY/NAME OF THE DEFENDANT IS UNKNOWN
1. He may be sued as the unknown owner, heir, devisee or by such other designation as the case may
require, when the identity or name is discovered, the pleading must be amended accordingly. 141 An example is
an action to recover real property from several unknown heirs of a common ancestor.
EFFECT OF DEATH OF A PARTY
1. When a party dies and his claim is not extinguished, it shall be the duty of counsel of the deceased party
to inform the court within 30 days after such death of the: (a) fact of death (b) name and address of the legal
representative of the deceased party. 142. If counsel fails to comply, he may be subject to disciplinary action.
1.1 Once notice is given, the court shall order the legal representative to appear and be substituted
within 30 days from notice.
1.2 Examples of actions that survive are those arising from delict, 143 tortuous conduct,144recovery of
real or personal property145 recovery of money arising from a contract, express or implied
1.3 Examples of actions that do not survive are personal actions of support, annulment and legal
separation. The court in this instance will just dismiss. No substitution is required. The remedy is
to file a claim before the probate court under Rule 86.
2. The purpose of substitution is the protection of the right of every party to due process. 146The non
compliance renders the proceedings infirmed because the court acquires no jurisdiction over the person of the
legal representative of the deceased.147
2.1 If no substitution occurs despite knowledge or notice of the death of a party the proceedings
undertaken shall be considered null and void as it amounts to a lack of jurisdiction as the need
for substitution is based on the right of a party to due process.
2.2 Note though that in an ejectment case, the non substitution of the deceased by his legal
representatives because of the failure of counsel to inform the court does not deprive it of
jurisdiction. The judgment may be enforced not only against the defendants but also against
the members of their family, their relatives, or privies who derived their right of possession
from the deceased defendant.148
3. Note that heirs may be allowed to be substituted for the deceased without requiring the appointment
of an executor or administrator and the court can appoint a guardian ad litem for minor heirs. When the
defendant does not have any heirs, the court shall require the opposing party to procure the appointment of an
executor or administrator. This can also occur when no legal representative is named or if one is named, he fails
to appear within the specified period. The expenses if any, can be recovered as costs.
3.1 Heirs may designate one or some of them as their representative before the trial court. 149
4. There is no requirement for summons as it is the order of substitution and its service that effects the
substitution of the deceased by his representative.
5. The effect of death is to terminate the attorney-client relationship. A deceased client has no personality
and cannot be represented by an attorney. 150Neither does he become counsel for the heirs of the deceased
unless his services are engaged by the heirs. 151
DEATH/SEPARATION OF A PUBLIC OFFICER
141
142
143
Aguas v Llamas, 5 SCRA 959
144
Melgar v. Buenviaje, 179 SCRA 196
145
Board of Liquidators v Kalaw, 20 SCRA 987
146
Torres v Court of Appeals, 278 SCRA 79
147
Brioso v Mariano, 396 SCRA 549
148
Florendo v. Coloma, 129 SCRA 304
149
San Juan v. Cruz, G.R. No. 167321, July 31, 2006
150
Lavina v. Court of Appeals, 171 SCRA 691
151
Lawas v Court of Appeals, 146 SCRA 173
19
1. If sued in his public capacity and he dies, resigns or otherwise ceases to hold office. The action may be
maintained and continued by or against his successor, if within 30 days after successor assumes the office or
such time as granted by the court – it is satisfactorily shown by a party that there is a substantial need for
continuing and maintaining it and that the successor adopts or continues or threatens to continue the action of
his predecessor.152
2. Before substitution and there is no express assent, the public officer shall be given reasonable notice of
the application and be accorded an opportunity to be heard.
3. The requisites for a valid substitution of a public officer who has sued or been sued in his official
capacity are: (a) satisfactory proof by any party that there is a substantial need for continuing or maintaining
the action (b) the successor adopts or continues or threatens to adopt or continue the acts of his predecessor (c)
the substitution is effected within 30 days after the successor assumes office or within the time granted by the
court, and (d) notice of the application to the other party. 153
4. The failure to make the substitution is ground for the dismissal of the action.
EFFECT OF DEATH OF THE DEFENDANT ON A CONTRACTUAL MONEY CLAIM
1. If the action is for the recovery of money that arises from a contract, express or implied, and the
defendant dies before entry of a final judgment the rule is – it will not be dismissed but shall be allowed to
continue until entry of judgment, a favorable judgment obtained shall be enforced in the manner provided by
the rules for prosecuting claims against the estate of a deceased person.154
2. Hence, in case of the death of the obligor the rules are: (a) If he dies before the action is filed, a money
claim must be filed in the testate or intestate proceedings (b) if he dies during the pendency of an action, the
action continues until entry of judgment, and the judgment claim is then filed with the testate or intestate
proceedings. It must be noted that a money claim judgment need not be proven because it is conclusive. Note
further, that if property has been levied upon before death, it can disposed of in the manner provided by the
rules on execution of judgments because it has already been segregated from the estate. If there is a deficiency,
a money claim can be filed subsequently.
2. If the claim does not arise from a contract, like claims for recovery, enforcement of a lien or torts, the
rules are: (a) if he dies before the action is filed, it may be filed against the executor or administrator (b) if
already filed, it continues to final judgment and may be executed on as against the executor or administrator. 155
3. In a case for ejectment where the defendant died before the case could be decided and without being
able to testify on his counterclaim for damages. The trial court dismissed the ejectment suit and ordered the
plaintiff to pay the wife of the defendant moral damages and attorney’s fees. The plaintiff contends on appeal
that the counterclaim should have been dismissed pursuant to Rule 3, Section 21 (old rule). Held: The argument
is misplaced, defendant was the plaintiff in his counterclaim, the rule is not applicable as it pertains to a
defendant who dies before final judgment. In this case, it is the plaintiff who died and all that is required is a
timely motion for substitution. No recovery though can be allowed as no evidence was adduced. 156
4. If a claim involves a conjugal debt that was not brought and one of the spouses die before filing, the
claim must be brought in the testate or intestate proceedings of the deceased spouse. 157
5. If it is the plaintiff who dies, the rules are: (a) if action is purely personal to him, the action is abated (b) if
action is not purely personal, it continues but counsel must give notice of death.
EFFECT ON INCOMPETENCY/INCAPACITY ON AN ACTION
1. The court, upon motion with notice, may allow the action to be continued by or against the
incompetent or incapacitated person assisted by his guardian or guardian ad litem. 158
EFFECT OF A TRANSFER OF INTEREST PENDING LITIGATION
152
153
Rodriguez vs. Jardin, G.R. No. 141834, July 30, 2007
154
155
156
UST v Court of Appeals, GR No. 124250, October 18, 2004
157
Alipio v Court of Appeals, GR No. 134100, September 29, 2000
158
Supra, Section 3 and 18, Rule 3
20
1. The action may be continued by or against the original party, unless the court upon motion directs the
person to whom interest is transferred to be substituted in the action or joined with the original party. 159
2. The rule refers to a transfer pendente lite. The transferee pendente lite shall stand exactly in the shoes
of the transferor. Consequently, any judgment will be binding upon him.
3. A transferee pendent elite does not have to be included or impleaded by name in order to be bound by
the judgment because the action or suit may be continued for or against the original party or the transferor and
still binding on the transferee.160
4. In a case on appeal where the transferee pendente lite did not appeal, he nevertheless was benefited by
the appeal of the transferor pendent lite.161
INDIGENT/PAUPER LITIGANT
1. An indigent or pauper litigant is one who litigates on a claim that he has no money, or property
sufficient and available for food, shelter and basic necessities for himself and his family. 162
2. An indigent or pauper litigant must file an ex-parte application for authority to litigate as an indigent
that is too be resolved by the court after hearing.
2.1 Attached to the motion is an affidavit attesting to the fact that he does not earn a gross income
of PHP 4,000.00 in Metro-Manila, or PHP 3,000.00 elsewhere and has no real property with a
fair market value of PHP 50,000.00.
2.2 Said affidavit must be supported by another affidavit of a disinterested person. Note that
recently, an indigent litigant has been defined as one (a) whose gross income and that of their
immediate family does not exceed an amount double the monthly minimum wage of an
employee and (b) who does not own real property with a fair market value as stated in the
current tax declaration of more than PHP 300,000.00.
2.3 If there is any falsity in the affidavit or that of the disinterested person, it shall constitute
sufficient ground to dismiss the action or strike out the pleading, without prejudice to whatever
criminal liability is incurred.163
3. The effect of being allowed to litigate as an indigent or pauper litigant are: (a) exemption from the
payment of docket fees and other lawful fees (b) exemption from TSN fees which the Court may order to be
furnished but, the amounts due shall be a lien on a favorable judgment unless the Court orders otherwise.
4. The allowance to litigate as an indigent or pauper litigant can be contested at any time before
judgment is rendered by any adverse party. If found to be meritorious, the proper fees are assessed and are to
be collected. If it is not paid, execution shall issue on the payment thereof without prejudice to other sanctions.
5. On appeal, a motion to litigate as an indigent or pauper litigant is allowed.
WHEN SOLICITOR GENERAL IS REQUIRED TO APPEAR
1. In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree,
rule or regulation, 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. 164
RULE 4 – VENUE OF ACTIONS
VENUE DEFINED AND DISTINGUISHED
1. Venue is the place where the action is to be commenced and tried. It has also been defined as the
proper location for the trial of a case.
159
160
State Invetsment House, Inc. v Court of Appeals, 318 SCRA 47
161
Jocson v Court of Appeals, GR 88297, March 22, 1990
162
Supra, Section 21
163
Section 19, Rule 141, Rules of Court
164
21
2. Distinguishing it from jurisdiction: (a) venue is the place where action is commenced and tried,
jurisdiction is the authority of a court to hear and decide the action (b) venue may be waived, jurisdiction
over the subject matter cannot be waived, but that over the person can be waived (c) venue may be the subject
of a written agreement, jurisdiction cannot be subject of a written agreement 165 (d) a court cannot motu-
propio dismiss on improper venue, while if it has no jurisdiction, a court can motu-propio dismiss the action.
3. Venue establishes a relation between the plaintiff and defendant, while jurisdiction establishes a
relation between the court and subject matter.
4. Improper venue is not jurisdictional. To illustrate: If a case for illegal detainer is filed in the MTC-Manila
but should have been filed in the MTC-Baguio as the property is located in Baguio, the dismissal is due to
improper venue as every MTC has jurisdiction over illegal detainer cases. Territorial jurisdiction applies only in
criminal cases where venue is also jurisdictional.
RULES ON VENUE
1. If it is a Real Action or one that affects title to or possession of real property, or an interest therein, it
shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property
involved or a portion thereof is situated. Forcible Entry and Detainer actions are to be commenced and tried in
the Municipal Trial Court which has jurisdiction over the area wherein the real property involved, or any portion
thereof, is situated.166
1.1 Is the complaint for cancellation of a real estate mortgage with damages, a real or personal
action? It is a real action; the controlling factor in determining venue of such a case is the
primary objective for which it is filed. An action for cancellation of a real estate mortgage is
necessarily an action affecting title to real properties since the primary objective is to recover
the properties that the bank had foreclosed on. 167
2. If it is a Personal Action or one that is brought for the recovery of personal property, for the
enforcement of a contract or recovery of damages for its breach of for the recovery of damages due to injury to
person or property or such all other actions shall be commenced or tried where the plaintiff or any of the
principal plaintiffs reside or any of the defendants reside, or if a non-resident defendant, where he may be
found at the election of the plaintiff168
2.1 Reside means the place of abode, whether permanent or temporary, as distinguished from
domicile or the fixed permanent residence, where if one is absent he intends to return.
2.2 In personal actions, it is the residence of the proprietor, not the business address of the sole
proprietorship that is considered to determine venue as a sole proprietorship has no legal
personality.169
2.3 R engaged the services of L as geodetic surveyor to subdivide two parcels of land located in
Batangas. As payment for L’s services, R agreed to given him one lot. After the survey, R
delivered to L possession of one lot as payment for his services. However, R failed to deliver to L
the tile of the lot. L, who resides in Quezon City, filed with the RTC of Quezon City an action
against R for specific performance to compel R to deliver to him the title to the lot. R moved to
dismiss on the ground of improper venue, contending that since his is a real action, the
complaint must be filed in the RTC of Batangas where the lot is situated. Is R correct? No, R is
not correct. This action for specific performance is a personal action. The venue therefore, was
properly laid in Quezon City where the plaintiff resides. It is not a real action because plaintiff L
is not seeking the recovery of the lot as he is already in possession thereof. He is merely asking
the delivery of the title to him, which is a personal action. 170
3. If the defendant is a non-resident or one who 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 ,
165
NOcum v Tan, 470 SCRA 639
166
167
Go v UCPB, GR No. 156187, November 11, 2004
168
169
Mangila v Court of Appeals, 387 SCRA 162
170
Dimo Realty & Development, Inc. et al. v.
Dimaculangan, G.R. NO. 130991, March 11, 2004
22
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. 171
3.1 Actions affecting the personal status of the plaintiff refers to personal actions of annulment of
marriage, nullity of marriage, legal separation, declaration of presumptive death
3.2 The provision refers to a Quasi in Rem action in which an individual is named as a defendant,
and the purpose of the action is to subject his interest therein to an obligation or lien burdening
the property.
3.3 A non-resident alien who cannot be found can sue and be sued as by filing his complaint, he
submits to the jurisdiction of the Court, even if he has never been able to enter the
Philippines.172
THE RULES ON VENUE ARE NOT APPLICABLE
1. In cases where a specific rule or law provides otherwise as below illustrated:
1.1 Quo Warranto proceedings may be instituted in the Supreme Court, Court of Appeals or the
Regional Trial Court exercising territorial jurisdiction over the area where the respondent/s
resides. If the Solicitor General commences the action, he may do so in the Supreme Court,
Court of Appeals or the Regional Trial Court of Manila. 173
1.2 The criminal or civil action for damages due to libel can only be instituted either in Regional Trial
Court of the place where he holds office or in the place where the alleged libelous article was
printed and first published; and if the offended parties are private individuals, the venue shall be
in the Regional Trial Court of the place where the libelous article was printed and first published
or where any of the offended parties actually resides at the time of the commission of the
offense.174
1.3 Intracorporate Controversies are to be filed in the Regional Trial Court where the principal office
of the corporation is located.175
2. Where the parties have validly agreed in writing before the filing of the action as to exclusive venue. 176
2.1 Any agreement as to venue must be in writing and for exclusivity, the intent must be clear,
otherwise, it will be interpreted to allow for an additional venue.
2.2 The freedom of the parties to stipulate on the venue is however subject to the usual rules on
contract interpretation. Where the provision appears to be one-sided as to amount to a
contract of adhesion, the consent of the parties thereto may well be vitiated and the venue
stipulation will not be given effect.177
2.3 The rule on venue is party oriented. It looks to the convenience of the parties. Thus the rule on
venue as to real actions presumes that the place where the subject real property is located is
convenient to the parties. Hence, the rule as to venue can yield to an agreement as to exclusive
venue. Section 4, Rule 4 applies to both real and personal actions as long as the requisites are
met.
2.4 Venue as stipulated in the promissory note shall govern notwithstanding the absence of a
stipulation as to venue in an accompanying surety agreement as the latter can only be enforced
in conjunction with the former.178
HOW VENUE IS QUESTIONED
171
172
Dilweg v Philipps, 12 SCRA 243
173
174
Article 360, Revised Penal Code
175
RA 8799, and A.M. 01-02-04-CS, March 13, 2001
176
177
Sweet Lines v Teves, 83 SCRA 361
178
Philippine Bank of Communications v Lim, 455 SCRA 714
23
1. Venue may be questioned in (a) in a motion to dismiss 179, or (b) in an answer by way of an affirmative
defense180. If it is not questioned, it is deemed waived.
RULE 5 - UNIFORM PROCEDURE IN TRIAL COURTS
1. The procedure in Municipal Trial Court shall be the same as in the Regional Trial Court, except when (a) a
provision applies only, expressly or impliedly, to a particular court, or (b) In civil cases covered by the Rules on
Summary Procedure
2. An example of a provision that applies only to a Municipal Trial Court is that which refers to an appeal
taken from an order of the lower court dismissing the case without trial on the merits. 181
PROCEDURE IN REGIONAL TRIAL COURTS
RULE 6- KINDS OF PLEADINGS
PLEADING DEFINED
1. It is a written statement of the respective claims and defenses of the parties submitted to the court for
appropriate judgment.182
1.1 Pleadings are necessary to secure the jurisdiction of the court so that the subject matter can be
presented for its consideration in the manner sanctioned by the rules of procedure.
1.2 They are intended to secure a method by which the issues may be properly laid before the
court.183
1.3 They are designed to present, define and narrow the issues, to limit proof to be submitted in
the trial, to advise the court and the adverse property of the issues and what are relied upon as
causes of action or defenses.
2. The pleadings that are allowed are: (a) Claims of a party are asserted in the complaint, counterclaim,
cross-claim, 3rd party complaint (4th…..), or complaint in intervention (b) Defenses of a party are alleged in the
answer to the pleading asserting a claim against him (c) Reply to the answer 184
2.1 Under the Rules on Summary Procedure, the only pleadings allowed are the complaint,
compulsory counterclaim, cross claim pleaded in the answer, and the answers thereto.
CONSTRUCTION OF PLEADINGS
1. All pleadings are to be liberally construed so as to do substantial justice. 185
2. While such is the rule, a party is strictly bound by the allegations, statements or admissions made in his
pleadings and cannot be permitted to take a contradictory position. 186
2.1 In case there are ambiguities in pleadings, the same must be construed most strongly against
the pleader and that no presumptions in his favor are to be indulged in. This rule proceeds from
the theory that it is the pleader who selects the language used and if his pleading is open to
different constructions, such ambiguities are at his peril.
SPECIFIC KINDS OF PLEADINGS
1. Complaint- which is the pleading alleging the plaintiff’s cause of action or causes of action.
1.1 The names/residences of the plaintiffs and defendants must be stated in the complaint 187
179
Supra, Section 1 (c) ,Rule 16
180
181
182
183
Santiago v. De Los Santos, 61 SCRA 146
184
185
Concrete Aggregates Corporation v. Court of Appeals, 266 SCRA 88
186
Santiago v. De Los Santos, 61 SCRA 146
187
24
2. Answer- which is a pleading in which a defending party sets forth his defenses 188.
2.1 Its essential purpose is to secure joinder of the issues and not to lay down evidentiary matter. 189
2.2 The following are the kinds of defenses 190 that may be interposed in an answer are:
(a) Negative Defense which is a specific denial of a material fact or facts alleged in the
pleading of a claimant essential to his cause/s of action. A specific denial is made by 191:
(1) Specifically denying the material averment in the pleading of the adverse party and
setting forth the substance of the matter upon which he relies for such denial (2)
Deny only a part of the averment by specifying that so much of it is true and
deny the remainder (3) Allegation of lack of knowledge or information sufficient to form
a belief as to the truth of the material averment in the pleading of the adverse party.
(b) Affirmative Defense which is an allegation of new matter, which although

hypothetically admitting the material allegations in the pleading would nevertheless
bar or prevent recovery. They include fraud, statute of limitations, release, payment,
illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, or any
other matter by way of confession and avoidance.
2.3 The purpose of requiring the defendant to make a specific denial is to make him disclose the
matters alleged in the complaint which he succinctly intends to disprove at the trial, together
with the matter which he relied upon to support the denial. 192
2.4 Note that the rule that a defending party who sets up an affirmative defense hypothetically
admits the allegations does not apply if the defense set up is any of the grounds for
extinguishment of the obligation. The effect is that the defending party is deemed to have
admitted the validity of the obligation, and if the motion to dismiss is denied, what is left to be
proven is the fact of payment or non-payment.
2.5 Any of the grounds for a motion to dismiss may be pleaded as an affirmative defense. He may
then move for a preliminary hearing as if a timely motion to dismiss has been filed. 193
3. Counterclaim- which is any claim which a defending party may have against an opposing party. 194
3.1 Counterclaims may be compulsory or permissive. They are distinguished as follows:

a) In a compulsory counterclaim, it arises out of or is connected with the transaction or
occurrence constituting the subject matter of the opposing party’s claim, while in a
permissive counterclaim, it does not arise out of or is connected with the transaction or
occurrence constituting the subject matter of the opposing party’s claim
b) A compulsory counterclaim is barred if not set up in the answer, while a permissive
counterclaim is not barred even if not set up
c) The plaintiff is not required to answer a compulsory counterclaim and he cannot be in
default, while a permissive counterclaim must be answered after payment of docket
fees, otherwise a party may be held in default
d) A compulsory counterclaim is not an initiatory pleading so as to require a certification
as to non-forum shopping, while a permissive counterclaim is an initiatory pleading.
3.2 The requisites of a compulsory counterclaim are:

a) It arises out of or is necessarily connected w/the transaction or occurrence that in the
subject matter of the party’s claim
b) It does not require for adjudication the presence of 3 rd parties over whom the court
cannot acquire transaction
c) It must be cognizable by the regular courts of justice
d) It must be within the jurisdiction of the court both as to amount and the nature thereof,
except that in an original action before the RTC, counterclaim is considered compulsory
regardless of amount
188
189
Naga Development Corporation v Court of Appeals, 41 SCRA 105
190
191
192
Aquintey v. Tibong, GR No. 166704, December 20, 2006
193
194
25
e) It must already be existing at the time defending party files his answer 195
3.3 The requisites of a permissive counterclaim are:

a) It does not require for adjudication the presence of 3 rd parties over whom the court
cannot acquire jurisdiction
b) It must be cognizable by the regular courts of justice
c) It must be within the jurisdiction of the court both as to amount and the nature thereof,
except that in an original action before the RTC, counterclaim is considered compulsory
regardless of amount
3.4 To determine whether a counterclaim is compulsory or not, the Court has devised the following
tests: (a) are the issues of fact or law raised by the claim and counterclaim largely the same? (b)
Would res judicata bar a subsequent suit on defendant’s claim absent a compulsory
counterclaim? (c) Will substantially the same evidence support or refute plaintiff’s claim as well
as defendant’s counterclaim? And (d) is there any logical relation between the claim and
counterclaim. If the answers are all in the alternative, it is a compulsory counterclaim. 196 Item (d)
is also known as the “compelling test of compulsoriness” as conducting separate trials of the
respective claims of the parties would entail a substantial duplication of effort and time by the
parties and the court.197
3.5 Illustrations of compulsoriness are: (a) expenses for cultivation even if inconsistent with the
defense of ownership in an action to recover real estate 198 (b) expenses for the preservation of
property in action for annulment of title on the ground of fraud 199(c) damages for usurpation of
the produce in action to quiet title 200 (d) cost of improvements in an action for recovery of
ownership or possession201
3.6 A compulsory counterclaim that is not yet in existence at the time of the filing of an answer may
be presented or set-up by a supplemental pleading before judgment. 202
3.7 A compulsory counterclaim may implead persons not parties to the original complaint as their
presence is required for granting complete relief in the determination of a counter-claim or
cross claim, the court shall order them brought in as defendants, if jurisdiction over them can be
obtained.203 Summons must thus be served upon them as they must answer the counterclaim as
they cannot rely on the rule that the defendant in the counterclaim is deemed to have adopted
the allegations of the complaint in his answer. 204
4. A cross claim is a claim by one party against a co-party arising out of a transaction/occurrence that is
the subject matter either of the original action or the counter-claim. It may include a claim that a 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. 205
4.1 Note that counterclaims may be asserted against an original counter-claimant and that cross-
claims may also be filed against an original cross-claimant. 206
5. 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 an issue as to such matters.
5.1 If a reply is not filed, all new matters are deemed controverted. If plaintiff wishes to interpose
any claims arising out of the new matters so alleged, such claims shall be set forth in an
amended/supplemental complaint.
5.2 If the defense is based on an actionable document, it must be replied to, otherwise it is
admitted.
195
Supra, Section 7, Rule 6, Section 8, Rule 11
196
Reyes De Leon v. Del Rosario, 435 SCRA 232
197
Quintanilla v. Court of Appeals, 279 SCRA 397
198
Camara v. Aguilar, 94 Phil 527
199
Maclan v. Garcia, 97 Phil 119
200
Doliente v. Blanco, 87 Phil 67
201
Baclayan v. Court of Appeals, 182 SCRA 761
202
Supra, Section 9, Rule 11, Intramuros Administration v Contacto, 402 SCRA 581
203
204
Lafarge Cement Philippines, Inc. v Luzon Continental Land Corporation, 443 SCRA 522
205
206
26
6. A 3rd Party Complaint is a claim that a defending party may, with leave of court, file against a person, not
a party, called 3rd party defendant for contribution, indemnity, subrogation or any other relief in respect of his
opponent’s claim.207
6.1 Examples: (a) Contribution - A sues X for collection of money based on a promissory note
signed jointly and severally with Y. X may file a complaint against Y for contribution (b)
Indemnity- S, as surety, is sued for recovery of the obligation of M. S may file a complaint
against M for whatever amount he may be adjudged to pay as surety (c) Subrogation- X, as
lessor, sues Y, as lessee for repairs. Y may file a complaint against his sub-lessee who filed to
comply with the obligation to repair (d) Other Relief- X bought land from Y. Later X is sued by A
for recovery of the land. X may file a complaint against Y for his warranty against eviction.
6.2 An answer to a 3rd party complaint may include (a) defenses, counterclaims or cross-claims,
including such defenses that the 3rd Party Plaintiff may have against the original plaintiff’s claim,
and (b) In proper cases, he may assert a counter-claim against the original plaintiff in respect to
his claim against the 3rd party plaintiff.208 An example is: a reinsurer (3 rd party defendant) may
set up in his answer the defense alleged by defendant insurer that loss is caused by plaintiff
insured. However the 3rd party defendant cannot file a counterclaim against the original plaintiff
as there is no privity of contract between them.
WHEN NEW PARTIES CAN BE BROUGHT
1. If the presence of others besides the parties is required for the granting of full relief in the
determination of a counter-claim or cross- claim the court shall order them to be brought in as defendants, if
jurisdiction over them can be obtained209.
RULE 7 – PARTS OF A PLEADING
PARTS OF A PLEADING
1. The parts of a pleading are Caption, Body, Signature, Address, Verification and Certification against
Forum Shopping.
SPECIFICS OF THE PARTS OF A PLEADING
1. The Caption sets forth the (a) Name of the court (b) Title of the action, this includes an indication of the
name of the parties, who are required to be named in the original complaint/petition. In subsequent pleadings,
the name of the first party on each side is sufficient with an appropriate indication when there are other parties.
(c) Docket Number , if one has already been assigned.210
1.1 In an appeal, the rules211 requires all names to be indicated in the Notice of Appeal and Record
on Appeal
1.2 In case of a variance between the caption and allegations, the latter will prevail. The court may
grant a relief warranted by the allegations and proof even if no such relief is prayed for. 212
2. The Body sets forth its designation, the allegations or a party’s claims / defenses, the relief prayed for,
and the date of the pleading.
2.1 The allegations in the body shall be divided unto paragraphs so numbered to be readily
identified. Each shall contain Statement of a single set of circumstances so far as it can be done
with convenience. A paragraph may be referred to by its number in all succeeding pleadings.
2.2 Headings must be used when 2 or more causes of action are joined, the statement of the first
shall be prefaced by: First Cause of Action etc. When: 2 or more paragraphs are addressed to
one or several causes of action in the complaint, they shall be prefaced by: Answer to the First
207
208
209
210
211
Supra, Sections 5 and 6, Rule 41
212
Lorbes v. Court of Appeals, 351 SCRA 716
27
Cause of Action and so on. If it addresses several causes of action, the paragraphs shall be
prefaced accordingly.
2.3 Relief should be specified but it may add a general prayer for such further or other relief as may
be deemed just and equitable. The relief does not constitute a part of the statement of the
cause of action. It does not serve to limit or narrow the issues presented. 213It is the material
allegations, not the legal conclusions that determine the relief that a party is entitled to. 214A
court may grant a relief not prayed for as long as warranted by the allegations and the
presented proof.
2.4 Every pleading is required to be dated.
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.
3.1 Note the word “or” because a party may litigate / defend Pro Se or for himself without aid or
counsel. This applies even if a party is already represented by counsel.
3.2 Only the signature of either party operates to validly convert a pleading from one that is
unsigned to one that is signed.215
3.3 Significance of Counsel’s Signature – it is a Certificate by him that: (a) He has read the pleading
(b)To the best of his information, knowledge and belief there is good ground to support it (c) It
is not interposed for delay
3.4 If the pleading is unsigned it produces no legal effect. However, the court in its discretion can
allow the deficiency to be remedied if it shall appear that it was due to inadvertence and not
intended for delay.216
3.5 An address is required for service of pleadings or judgments
3.6 Disciplinary action may be imposed on counsel in relation to the rule when (a) He deliberately
files an unsigned pleading (b) Signs a pleading in violation of the Rule (c) Alleges scandalous
or indecent matter (d) Fails to promptly report to the court a change in his address
4. A Verification is an affidavit that the affiant has read the pleading and that the allegations therein are
true and correct of his personal knowledge and/or is based on authentic records..
4.1 The verification requirement is intended to secure an assurance that the allegations in the
pleading are true and correct and not the product of the imagination or a matter of speculation
and that it is being filed in good faith. 217
4.2 If a pleading that is required to be verified is not verified or contains a verification that does not
comply with what is required by the rules, it shall be treated as an unsigned pleading.
4.3 The court may order the correction of the pleading or act on an unverified pleading if the
attending circumstances are such that strict compliance would not fully serve substantial
justice, which after all, is the basic aim of the rules of procedure. 218
4.4 A pleading need not be verified, except when otherwise specifically required by law or the
rules219.
4.5 A Verification is required under rules governing (a) cases covered by the Rules on Summary
Procedure (b) Petition for relief from judgment / order 220 (c) Petition for review221 (d) Appeal by
213
UBS v. Court of Appeals, 332 SCRA 534
214
Banco Filipino Savings and Mortgage Bank v. Court of Appeals, 332 SCRA 241
215
Republic v. Kenrick Development Corporation, 351 SCRA 716
216
217
Sarmiento v. Zaratan, GR No. 167471, February 5, 2007
218
Robert Development Corporation v. Quitain, 315 SCRA 150
219
220
221
28
certiorari222 (e)Petition for annulment of judgment 223 (f) Injunction224 (g) Receivership225 (h)
Support226 (i) 69) Certiorari, Prohibition or Mandamus 227 (j) Quo Warranto228 (k) Expropriation229
(l) Forcible Entry / Detainer 230 (m) Indirect Contempt 231(n) Petition for a writ of habeas corpus,
writ of amparo, writ of habeas data (o) Petition for cancellation or correction of entries in the
Civil Registry (p) Petition for the constitution of a family home (q) Petition for Declaration of
Absolute Nullity of Marriage, Annulment of a Voidable Marriage, Legal Separation (r) Petition
for Guardianship (s) Applications for TRO or Injunction.
5. Certification against Forum Shopping is executed by the plaintiff or principal party who shall certify
under oath in the Complaint or Initiatory Pleading asserting a claim or relief or in sworn certification annexed
thereto and simultaneously filed therewith : (a) That he has not therefore 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 claim or action is pending therein (b) If there is such other pending action or claim, a complete
statement of the present status thereof (c) That if he should thereafter learn that the same or similar action has
been filed or is pending, he shall report that fact within 5 days therefrom to the court wherein his complaint /
initiatory pleading has been filed.232
5.1 The lack of a certification is not curable by amendment, but such shall be cause for dismissal of
the complaint. The dismissal shall be without prejudice unless otherwise provided, upon motion
and after hearing.233
5.2 The non-compliance with any of the undertakings or the submission of a false certificate shall
constitute indirect contempt without prejudice to corresponding administrative and criminal
actions. Provided, that if the acts of the party or counsel clearly constitute will and deliberate
forum shopping, it shall then be ground for summary dismissal with prejudice, and shall
constitute direct contempt as well as cause for administrative sanctions.
5.3 Forum Shopping exists when as a result of an adverse opinion in one forum, a party seeks a
favorable opinion, other than by appeal or certiorari, in another, or when he institutes two or
more actions or proceedings grounded on the same cause, on the gamble that one or the other
court would make a favorable disposition. The most important factor in determining the
existence of forum shopping is the vexation caused the courts and parties-litigants by a party
who asks different courts to rule on the same or substantially the same reliefs. 234
5.4 It also occurs when a party attempts to have his action tried in a particular court or jurisdiction
where he feels he will receive the most favorable judgment.
5.5 It has been said to exist also where the elements of litis pendentia are present or where a final
judgment in one case will amount to res judicata in another. Hence, the following requisites
concur: (a) identity of parties, or at least such parties represent the same interests in both
actions (b) identity of rights asserted and relief prayed for, the relief being founded on the same
facts, and (c) identity of the two preceding particulars is such that any judgment rendered in the
other action will, regardless, of which party is successful, amount to res judicata in the action
under consideration. 235
5.6 The purpose of the certification against forum shopping is to prohibit and penalize the evils of
forum shopping.236 Forum Shopping is a deplorable practice because it results in unnecessarily
clogging of the already heavily burdened docket of the courts. 237
222
223
224
225
226
227
Supra, Sections 1,2,3, Rule 65
228
229
230
231
232
233
Castillo v Court of Appeals, 426 SCRA 369
234
Benguet Electric Cooperative, Inc. v Flores, 287 SCRA 449
235
TADI v Solilapsi, 394 SCRA 269
236
BA Savings Bank v Sia, 336 SCRA 484
237
Ruiz v Drilon, 209 SCRA 695
29
5.7 The execution of the certification is required to be accomplished by the petitioner himself as it
is the petitioner himself who has actual knowledge of whether or not he has initiated similar
actions or proceedings in different courts or agencies.
5.8 If there are several plaintiffs, the general rule is that all of them must sign but it must be noted
that there is jurisprudence to the effect that: (a) the execution by one of the petitioners or
plaintiffs in a case constitutes substantial compliance where all the petitioners, being relatives
and co-owners of the properties in dispute, share a common interest in the subject matter of
the case.238 (b) the case is filed as a collective raising only one cause of action or defense 239 (c)
the signing by 1 spouse substantially complies as they have a common interest in the
property240 or is signed by husband alone is substantial compliance as subject of case is recovery
of conjugal property241 (d) 2 of the parties did not sign as they were abroad. It was considered
reasonable cause to exempt them from compliance with the requirement that they personally
execute the certificate242
5.9 If the plaintiff or petitioner is a juridical person, it can only execute the certification through
properly delegated individuals. 243 Note though that there are corporate officers who may sign
the certification without need of a board resolution, namely: (a) Chairperson of the Board (b)
President (c) General Manager or Acting General Manager (d) Personnel Officer, and (e)
Employment Specialist in a labor case.244 The submission in the motion for reconsideration of
the authority to sign the verification and certification constitutes substantial compliance with
procedural requirements.245
5.10 Counsel has been allowed to sign the certification in the following instances: (a) Where the
counsel is the Solicitor General has been deemed to be substantial compliance 246 (b)
Certification by acting regional counsel of NPC was accepted because it was his basic function
to prepare pleadings and to represent NPC – Mindanao – as such he was in the best position to
know and certify if a similar action was pleading or had been filed 247 (c) Certification was signed
by counsel. The procedural lapse may be overlooked in the interest of substantial justice. 248 (d)
Certification was executed by an in house counsel is sufficient compliance with the Rules 249 (e)
With respect to a corporation, the certification against forum shopping may be signed for and
its behalf by a specifically authorized lawyer who has personal knowledge of the facts required
to be disclosed in such document.250
5.11 The Supreme Court has gone to the extent of invoking the power to suspend the rules by
disregarding the absence of the certification in the interest of substantial justice. 251
5.12 As a general rule, the certification cannot be filed at a later date. However, in some instances
the Supreme Court has allowed the late filing when special or compelling reasons justify the
same, such a the substantive merit of the case.252
5.13 Problem: The rule in Section 1, Rule 17 is that the plaintiff may dismiss his complaint by filing a
notice of dismissal at any time before service of the answer or of a motion for summary
judgment. As a general rule, such dismissal is without prejudice. Suppose P filed a complaint
against D, and before service of the answer or of motion for summary judgment, P caused the
dismissal of his complaint by filing a notice of dismissal. Months later, P filed the same
complaint against D. In the certification on non-forum shopping appended to the second
complaint, P failed to mention about the prior filing and dismissal of the first case. Is P’s failure
to mention about the prior filing and dismissal of the first case fatal?
238
Cavile v Heirs of Clarito Cavile, 400 SCRA 255, Gudoy v Guadalquiver, 429 SCRA 722
239
HCC Construction and Development Corporation v Emily Homes Subdivision Homeowners Association, 411 SCRA 504
240
Dar v Alonso Legasto, 339 SCRA 306
241
Docena v Lapesura, 355 SCRA 658
242
Hamilton v Levy, 344 SCRA 821
243
National Steel Corporation v. Court of Appeals, 388 SCRA 85
244
Cagayan Valley Drug Corporation vs. Commissioner of Internal Revenue, 545 SCRA 10
245
Asean Pacific Planners vs. City of Urdaneta, 566 SCRA 219
246
Commissioner of Internal Revenue v SC Johnson, 309 SCRA 87
247
Robern Development Corporation v Quitain, 315 SCRA 150
248
Sy Chin v Court of Appeals, 345 SCRA 673
249
Mercury Drug Corporation v Libunao, 434 SCRA 404
250
Athena Computers, Inc. v Reyes, 532 SCRA 343 (September 5, 2007)
251
De Guia v. De Guia, 356 SCRA 287
252
Loyola v. Court of Appeals, 245 SCRA 477, Roadway Express v. Court of Appeals, 264 SCRA 696, Sy v. Landbank, 336
SCRA 419, Shipside Incorporated v. Court of Appeals,352 SCRA 334, Ateneo De Naga v. Manalo, 458 SCRA 325
30
No. An omission in the certification on non-forum shopping about any event or case which
would not constitute res judicata or litis pendentia is not fatal. In the problem presented, the
dismissal of the first case would not constitute res judicat253a precisely because such dismissal is
without prejudice to the refilling of the case. 254
5.14 Also, a case pending before the Ombudsman cannot be considered for purposes of determining
forum shopping as the power of the Ombudsman is only investigative in character and its
resolution cannot constitute a valid and final judgment because its duty is to file the appropriate
case before the Sandiganbayan.
DISTINGUISH BETWEEN VERIFICATION / CERTIFICATION
1. The distinctions are:
a) A verification is a sworn statement that the allegations are true and correct based on personal
knowledge and/or authentic records, while a certification states that no action or claim
involving the same issues have been filed or is pending
b) A verification is required in complaints, initiatory pleadings and some responsive pleadings,

while a certification is required only in complaints and initiatory pleadings
c) A defect in a verification is curable by amendment or an order to verify, while that in a

certification cannot be cured by amendment
d) A defect in the verification does not immediately give rise to a ground for dismissal, while a
defect in a certification gives rise to a ground for dismissal
e) A verification may be signed by counsel, while a certification must be signed by a party.
RULE 8 – MANNER OF MAKING ALLEGATIONS IN PLEADINGS
HOW ALLEGATIONS ARE MADE IN A PLEADING
1. In general, a pleading must 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 255
1.1 Ultimate facts are the essential facts constituting the plaintiff’s cause of action. A fact is
essential if it cannot be stricken out without leaving the statement of the cause of action
insufficient.
1.2 Examples of ultimate facts: (a) That an obligation has been constituted, that party must
comply, that there is no compliance (b) That party is the owner of property, that he has a right
to its use/possession, that he has been dispossessed
1.3 A pleading must only aver ultimate facts as no conclusions are supposed to be averred.
Conclusions are for the court to make.
2. Mere evidentiary facts or those that are necessary for the determination of the ultimate facts are to be
omitted. Evidentiary facts are the premises upon which conclusions of ultimate facts are based.
2.1 Examples of evidentiary facts are: (a) That the obligation as covered by a promissory note was
executed before specified persons or that defendant has several letters indicating intention
to/or not to pay (b) How property was acquired
2.2 They are not supposed to be averred as evidentiary matters must be presented to the court
during the trial of the case, not in the pleadings.
3. Laws may be pleaded only if the pleading is an Answer.
PLEADING ALTERNATIVE CAUSES OF ACTION OR DEFENSES
253
Sevilleja v. Laggui, 362 SCRA 715
254
Roxas v. Court of Appeals,363 SCRA 207
255
31
1. A party may set forth two or more statements of a claim or a defense alternatively or hypothetically,
either in one cause of action or defense or in separate causes of actions or defenses. If two or more statements
are made in the alternative and if 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. 256
2. The provision recognizes the possibility that the liability of the defendant may possibly be based on two
causes of action or that the defendant may possibly have alternative defenses, even if they may conflict with
each other.
2.1 Examples of alternative causes of actions: (a) allegations for breach of contract of carriage and
tort, or (b) allegations for breach of contract and fraud, while examples of alternative defenses
are: (a) defense of failure to repurchase by plaintiff and that property was inherited, or (b) debt
has been paid or that it has prescribed, or (c) fraud attended the execution of the contract, but
even assuming that the contract is valid, the action has prescribed.
3. The object of the provision is to relieve a party from making a definite election in cases where his claim
or defense might fall within two different substantive classes. Hence, a party may state as many
claims/defenses as he has regardless of inconsistency.
3.1 It does not require that all the alternative causes of action/defenses be sufficient for the
plaintiff/defendant to be entitled to relief. It is enough that one of them if made independently
would be sufficient to support a cause of action or defend against it. Hence, the pleading is not
made insufficient by the insufficiency of one or more of the alternative statements.
3.2 Overruling of one does not bar other defenses. However, if not set up, determination of one
shall bar the determination of the other.
HOW TO PLEAD CONDITIONS PRECEDENT
1. A condition precedent as determined by common usage are matters which must be complied with
before a cause of action of action arises.
2. Hence, a general averment of the performance or occurrence of all conditions precedent is required. 257
3. Examples of conditions precedent are: (a) tender of payment is required before consignation 258 (b)
exhaustion of administrative remedies before resort to judicial action (c) that earnest efforts at a compromise
have been exerted, the suit being one between members of the same family (d) that prior resort to conciliation
has been undertaken to no avail
4. The failure to comply is an independent ground for a motion to dismiss. 259
PLEADING CAPACITY TO SUE AND TO BE SUED
1. The following must be averred: (1) capacity to sue or be sued (2) authority of a party to sue or be sued in
a representative capacity (3) legal existence of an organized association of persons that is made a party. 260
1.1 Note the cross reference to Sections 1 and 3, Rule 3 referring to who may be parties and
representative parties, and to Section 1(d), Rule 16 referring to a motion to dismiss on the
ground of lack of legal capacity to sue, meaning that a party is not in possession of his civil
rights, does not have the qualification to appear, or does not have the character or
representation claimed.
2. A party desiring to raise the issue of lack of legal capacity shall do so by specific denial, which shall
include such supporting particulars as peculiarly within the pleader’s knowledge.
HOW TO AVER FRAUD, MISTAKE, AND CONDITION OF MIND
256
257
258
Article 1256, NCC
259
Supra, Section 1(j), Rule 16
260
32
1. Fraud and mistake must be stated with particularity. It is not enough for the pleading to just allege
fraud.
1.1 It must state the time, place and specific acts constituting the fraud.
2. Condition of mind, such as malice, intent, knowledge may be averred generally. 261
2.1 Based on human experience, it is difficult to state the particulars of a condition of the mind.
HOW TO AVER/ PLEAD A JUDGMENT/DECISION OF A DOMESTIC/FOREIGN COURT, JUDICIAL/QUASI-

JUDICIAL OFFICER TRIBUNAL BOARD
1. It is sufficient that a general allegation of the existence of the judgment is made, without setting forth
matter showing jurisdiction to render it.262
1.1 Jurisdiction in this case is presumed.
IF ACTION/DEFENSE IS BASED ON AN ACTIONABLE DOCUMENT
1. Where the action or defense is based on an actionable document or the written document upon which
the plaintiff or defendant relies for his claim or defense, it is pleaded by (a) setting forth the substance of such
document in the pleading and attaching the original/copy as an annex or (b) setting it forth verbatim in the
pleading.263
2. It is contested by specifically denying it under oath and setting forth what he claims to be the fact.
2.1 A mere denial is insufficient as the same must be under oath or verified.
2.2 The requirement does not apply if: (a) adverse party is not/does not appear to be a party to the
actionable document. Example: Heirs are sued on a document executed by a person they will
inherit from (b) when compliance with an order for an inspection of the original document is
refused.264 (c) when the document is not an actionable document but is merely evidence of the
claim or existence of the actionable document . Example: demand letters (d) when the party
who has the benefit of an implied admission waives the benefit. Example: he presents evidence
as to genuineness and due execution
3. The effect of not specifically denying an actionable document under oath lead to the admission of its
genuineness and due execution. It thus means that the party executed the document or was executed by
someone authorized by him, it was in the words/figures set forth in the pleading, and that the formal
requirements of law have been observed. Thus, there is no need to present it formally in evidence because it is
an admitted fact.
3.1 A party though is not barred from interposing other defenses as long as it is not inconsistent
with the implied admission. Examples of inconsistent defenses are: forgery, lack of authority to
execute the document that it was signed in another capacity, it was not delivered or the
words/figures as pleaded are not the same as when the document was signed. On the other
hand, consistent defenses are: fraud, payment, want or illegality of consideration, usury,
prescription, release or waiver or estoppel.
HOW ARE OFFICIAL ACT/DOCUMENTS AVERRED
1. It is sufficient to aver that document was issued or the act is done in compliance with law. 265 Example:
Issuance of Certification to file action by Lupon Tagapayapa chair.
HOW ARE SPECIFIC DENIALS MADE
261
262
263
264
265
33
1. A specific denial is made266 by: (a) Specifically denying the material averment in the pleading of the
adverse party and setting forth the substance of the matter upon which he relies for such denial, this is known
as an absolute denial (b)Deny only a part of the averment by specifying that so much of it is true and deny the
remainder, this is known as partial denial (c) Allegation of lack of knowledge or information sufficient to
form a belief as to the truth of the material averment in the pleading of the adverse party, this is known as
denial by disavowal of knowledge.
A negative pregnant denial is a denial pregnant with an admission of the substantial facts alleged in the
pleading.267
1.1 If the denial is a mere repetition of the allegations in the complaint it is considered a negative
pregnant denial which is conceded to actually be an admission. Example: A complaint alleges:
“Plaintiff extended a loan to Defendant in the amount of P500, 000.00 on July 27, 2006 in
Baguio City.” The defendant in his answer alleges: “Defendant specifically denies that Plaintiff
extended a loan to Defendant in the amount of P500, 000.00 on July 27, 2006.” The answer is a
mere repetition of the allegations made in the complaint. The answer is vague as to what it
really denies. Is it the existence of a loan that is denied? Is it the amount? The date? The place?
1.2 When the complaint alleges that: “the sum of PHP 10,000.00 is a reasonable sum to be allowed
plaintiff as and for attorney’s fees. If the defendant’s denial is a mere repetition, then it is an
admission that any sum less than PHP 10,000.00 is reasonable.
1.3 If allegations are not denied in the prescribed manner, a party is deemed to have made a
general denial which is tantamount to an admission.268
1.4 A denial by disavowal of knowledge will amount to an admission, if to the knowledge of the
court; it is so plainly and necessarily within the defendant’s knowledge that the averment of
ignorance must be untrue.
1.5 Exceptions to the rule that matters are admitted by the failure to make a specific denial are: (a)
the amount of unliquidated damages 269 (b) conclusions which are not required to be denied as
only ultimate facts must be alleged, and (c) non-material allegations as only those that are
material have to be denied.
1.6 Note that when the allegations pertain to (a) allegations of usury in a complaint to recover
usurious interest, or (b) genuineness and due execution of an actionable document, the specific
denial is required to be made under oath otherwise they are admitted.
STRIKING OUT OF A PLEADING OR MATTER CONTAINED THEREIN
1. If the pleading or any matter therein is sham, false, redundant, immaterial, impetinent or scandalous,
the court can order the pleading or matter contained therein to be stricken therefrom (a) upon motion made by
a party before responding to a pleading (b) if no responsive pleading is allowed / permitted by the Rules, upon
motion by a party within 20 days after service of the pleading, or (c) upon the Court’s own initiative 270
RULE 9 – EFFECTS OF FAILURE TO PLEAD
1. The general effect of the failure to plead is that the defenses / objections not so pleaded in an Answer or
a Motion to Dismiss are deemed waived.
1.1 However, if it appears from the pleadings or evidence on record that (a) the Court has no
jurisdiction over the subject matter (b) there is another action pending between the same
parties for the same cause, or (c) the action is barred by prior judgment or statute of limitations,
the court shall dismiss the claim.271 These defenses are not barred if not set up
2. A compulsory counterclaim or a cross-claim not set up shall also be barred. 272 Note that this is in
consonance with the requirement of the Rules that a compulsory counterclaim or cross claim existing at the
266
267
Caneland Sugar Corporation v. Alon, 533 SCRA 28, (September 12, 2007)
268
269
270
271
272
34
time of the filing of the answer must be contained therein 273 but if it arises after the filing of an answer, it may be
set up in a supplemental pleading before judgment 274 or if failure is due to oversight, inadvertence, excusable
neglect or when justice requires, it may be set up by amendment with leave of court before judgment. 275
WHAT RESULTS IF DEFENDANT / DEFENDING PARTY FAILS TO ANSWER WITHIN THE TIME ALLOWED
1. If there is failure to plead within the time allowed, the defendant may be declared in default upon
compliance with the following: (a) the plaintiff must file a motion to declare the defendant in default (b) serve
notice of his motion to defendant, which must include a notice of hearing (c) at the hearing, show proof of
failure on the part of the defendant to file his answer within the reglementary period. 276
1.1 A court cannot motu propio declare a defendant in default.
2. Default is a procedural concept that occurs when the defending party fails to file his answer within the
reglementary period.
2.1 It does not occur from the failure of the defendant to attend the pre-trial, where absence is a
cause for the court to order presentation of evidence ex-parte or at the trial, where absence will
be construed as a waiver to assail the evidence against him or is a waiver of the right to adduce
evidence.
2.2 Note the exceptions to the concept that default is triggered by the failure of the defending
party to file the required answer, as a default judgment has been held to lie if (a) a party refuses
to obey an order requiring him to comply with the various modes of discovery 277, or (b) if a party
or managing agent of a party willfully fails to appear before the officer who is to take his
deposition.278
3. It is an error to declare a defendant in default where an answer has already been filed. 279
4. Note that the rule is different if covered by the Rules on Summary Procedure, where a motion to
declare defendant in default is prohibited. 280
4.1 Instead, the court can motu proprio or upon a motion render judgment as may be warranted by
the facts alleged in the complaint and limited to what is prayed for. 281
5. A declaration in default is not an admission of the truth or the validity of the plaintiff’s claims. 282
ONCE DECLARED IN DEFAULT
1. The court has two options, it: (a) can proceed to render judgment granting the claimant such relief as
his pleading may warrant, unless, (b) the Court in its discretion requires the claimant to submit the evidence.
Such reception may be delegated to the Clerk of Court, who must be a member of the Bar.
2. The extent of the relief that may be awarded shall not exceed the amount or be different in kind from
that prayed for nor award unliquidated damages.283
2.1 Hence, even if there is proof to indicate a greater relief, the court will refrain from awarding it.
3. The defaulted defendant is nevertheless entitled to notice of subsequent proceedings but he cannot
take part in the trial.284
273
274
275
276
277
Supra, Section 3 (c), Rule 29
278
279
Cathay Pacific Airways v. Romillo, Jr., 141 SCRA 451
280
Section 19 (h), 1991 Rules of Summary Procedure
281
Section 6, II, 1991 Rules of Summary Procedure
282
Monarch Insurance v. Court of Appeals, 333 SCRA 7
283
Supra, Section 3 (d), Rule 9, Vlason v. Court of Appeals, 310 SCRA 26
284
Supra, Section 3 (a), Rule 9
35
4. Effect of Partial Default, where a pleading asserting a claim states a common cause of action against
several defending parties, some of whom answer while others do not, the court shall try the cause against all
upon the answers thus filed and render judgment upon the evidence presented. 285
4.1 It is not within the authority of the court to divide a case by first hearing the case ex parte as
against the defaulted defendants and render a judgment against them, then proceed to hear
the case as against the non-defaulted defendants. 286
WHAT ARE THE REMEDIES OF A DEFAULTED DEFENDANT
1. The available remedies of a defendant who is declared in default are as follows:
1.1 Motion to Set Aside Order of Default under oath, filed at any time after notice of declaration in
default and before judgment. Defendant must show by an Affidavit of Merit stating that failure
to file an answer was due to FAME and that he has a meritorious defense
1.2 Motion for New Trial on the ground of FAME if the trial court has rendered judgment but it has
not yet become final
1.3 Appeal the judgment by default, not the order as it is interlocutory, and cannot be appealed,
within 15 days from notice of judgment.
Note that if in the meantime, a motion to set aside order of defendant has been denied, it can
be assigned as an error in the appeal. The non- filing of a motion to set aside or for a new trial
does not bar an appeal.
On appeal, the judgment may be assailed on the ground that the judgment is excessive or is
different in kind from that prayed for or that the plaintiff failed to prove his material allegations
or that the decision is contrary to law. However, he is prohibited from seeking a reversal or
modification on the basis of evidence submitted before the appellate court, as to allow it would
mean that he is retaining the right to adduce evidence, which he lost in the trial court. 287
1.4 Petition for Relief from Judgment based on FAME, provided no appeal has been taken within 60
days from notice and 6 months from entry of judgment. 288
1.5 Action to Annul Judgment based on extrinsic or collateral fraud , which is such that a party is
induced or prevented from presenting his case or having a full and fair trial, within 4 years from
discovery of the fraud.
1.6 Certiorari, if improperly declared in default or motion to set aside was denied and is tainted
with grave abuse of discretion, which is filed within 60 days from notice or judgment order
resolution or 60 days from notice of the denial of a motion for reconsideration. 289
2. If despite a declaration in default, the court subsequently acts on motions for extension or a motion for
a bill of particulars, the effect is that the order of default is deemed lifted. The trial court is not considered to
have acted with grave abuse of discretion.290
CASES WHERE NO DEFAULT LIES
1. In the following cases, default does not lie: (a) annulment of marriage (b) declaration of nullity of
marriage (c) legal separation (d) expropriation, and (e) forcible entry, illegal detainer and the other actions
covered by the Rules on Summary Procedure.
1.1 Regarding items (a) to (c), the court shall order the prosecuting attorney to investigate whether
or not collusion exists, and if there is no collusion, to intervene for the state in order to see that
the evidence so presented is not fabricated.291
285
286
Heirs of Mamerto Manguiat, et al. v. Court of Appeals, G.R. No. 150768, August 20, 2008
287
Rural Bank of Sta. Catalina, Inc. vs. Land Bank of the Philippines, G.R. No. 148019, July 28, 2004
288
Supra, Rule 38
289
Supra, Rule 65
290
Republic of the Philippines vs. Sandiganbayan, G.R. No. 148154, December 17, 2007
291
Supra, Section 3,(e), Rule 9
36
RULE 10 – AMENDED AND SUPPLEMENTAL PLEADINGS
WHAT ARE AMENDMENTS
1. Amendments consist of: (a ) Adding or striking out an allegation or the name of any party (b)
Corrections of mistakes in the name of a party or mistaken or inadequate allegation or description in any other
respect.
1.1 The purpose for allowing amendments is so that the actual merits of the controversy may
speedily be determined without regard to technicalities and in the most expeditious and
inexpensive manner. 292
2. The kinds of amendments are:
2.1 Formal Amendments which are defects in the designation of the parties, other clerical or
typographical errors that may summarily be corrected provided no prejudice is caused the
adverse party and are allowed at any stage, at the Court’s own initiative or on motion. 293
2.2 All other amendments are considered Substantial Amendments
WHEN AMENDMENTS CAN BE MADE
1. Formal and Substantial amendments can be made once as a matter of right before a responsive
pleading is served, or in case of a Reply, at any time within 10 days after it is served. 294
1.1 Prior to the filing of an answer, the plaintiff has the absolute right to amend the complaint
whether a new cause of action or change in theory is introduced. 295
1.2 Note that the filing of a motion to dismiss does not bar an amendment as it is not a responsive
pleading and does not preclude the right to the plaintiff to amend his complaint. 296
1.3 In fact, even if the motion to dismiss has been granted, the plaintiff can still amend his
complaint before the dismissal becomes final as long as no answer has of yet been served and
the order dismissing the complaint has not yet become final. 297
2. After the filing of a responsive pleading, Substantial amendments require leave of court, but leave may
be refused if it appears to the court that the motion was on made with intent to delay. Orders related to leave
shall be made upon motion filed in court, with notice to the adverse party and opportunity to be heard. 298
2.1 That the amendments should not substantially alter the cause of action or defense is no longer
the rule as the Rules now allow the pleading of alternative causes of action/defenses 299 and that
all such causes or defenses must be pleaded in accordance with the rule on waiver. 300
2.2 The Trial Court may refuse leave or amendments when: (a) A responsive pleading has been filed
and the motion for leave to amend is made with intent to delay (b) The purpose is to confer
jurisdiction as the court must first acquire jurisdiction before it can act. 301 Note the instance
when the amendment is made as a matter of right (c) The purpose is to cure the defect of a non-
existent cause of action. Example: An amendment of the complaint to correct its having been
filed prematurely or when the obligation was not yet due.
2.3 If no leave is obtained, the pleading has no standing and may be stricken from the records
2.4 Problem: Complaint is filed against several defendants. Some defendants answer, the others
have not yet filed their answers. Amendments will be allowed as a matter of right against those
292
293
294
295
Remington Industrial Sales Corporation v Court of Appeals, 382 SCRA 499
296
Remington Industrial Sales v. Court of Appeals, 382 SCRA 499
297
Bautista v. Maya-Maya Cottages, Inc., 476 SCRA 416
298
299
300
301
Tirona v Alejo, 367 SCRA 17, Gaspar v Dorado, 15 SCRA 331
37
who have not filed answers, and with leave of court, as against those who have filed their
answers.302
3. Substantial amendments can also be made when it is necessary to conform to the evidence. This occurs
when issues are tried with the express or implied consent of parties. If such, they are treated in all respects as if
they have been raised in the pleadings 303, thus paving the way for an amendment of the pleadings to conform to
the evidence. This is made upon motion of any party, even after judgment though the failure to amend does not
affect the result of the trial. Example: Increased claim for the payment of damages or made to authorize
presentation of evidence. This occurs when 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 amended and shall do so with liberality to
authorize presentation of evidence.304
3.1 Thus, the failure of a complaint to state a cause of action may be cured by (a) Presentation of
evidence to prove that cause of action followed by an amendment to conform to evidence, or
(b) Evidence is objected to and the trial court sustains the objection, this is then followed by an
amendment with leave of court to authorize presentation of evidence. Same remedies may be
resorted to when a party fails to raise a defense in his pleading.
THE EFFECTS OF AN AMENDED PLEADING
1. It supersedes the pleading that it amends
2. Admissions in the superseded pleading may be received in evidence against the pleader because it is
not expunged from the records and admissions in the superseded pleading are in the nature of judicial
admissions made by a party in the course of the proceedings which do not require proof and ordinarily cannot
be contradicted except by showing that it was made through palpable mistake or that no such admission was
made.305
3. Claims or defenses alleged in the superseded pleading but not incorporated in the amended pleading
shall be deemed waived.306
HOW IS AN AMENDED PLEADING FILED
1. A new copy of the entire pleading incorporating the amendments which shall be indicated by
appropriate marks shall be filed.307
1.1 Note that the date of filing of amended pleadings does not retroact to the date of the filing of
the original pleading. Hence, the statute of limitations runs until the filing of the amendment,
but, an amendment that 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 that expired after service of the original complaint. Example: The
statement of a cause of action is imperfect and is corrected by an amended complaint, the plea
of prescription relates to the time of filing but the rule will not apply if a new defendant is
impleaded in the amended complaint and prior to its filing prescription has set in.
WHAT IS A SUPPLEMENTAL PLEADING
1. A supplemental pleading setting forth transactions, occurrences or events which have happened since
the date of the pleading sought to be supplemented Example: Setting up counterclaims after an answer has
been filed.308
2. A supplemental pleading is always upon motion, and on such terms as are just and upon reasonable
notice and the adverse party is given 10 days from notice of order admitting the supplemental pleading to plead
thereto.309
302
Siasoco v Court of Appeals, 303 SCRA 186
303
Bernardo v Court of Appeals, 263 SCRA 660
304
305
306
307
308
Supra, Section 9, Rule 11 and Section 2, Rule 9
309
38
3. A supplemental pleading is meant to supply deficiencies in aid of an original pleading, not to entirely
substitute the latter.310 Thus, when the cause of action stated in the supplemental complaint is different from
the cause of action mentioned in the original complaint, the court should not admit the supplemental
complaint.311
DISTINCTIONS BETWEEN AN AMENDED PLEADING AND A SUPPLEMENTAL PLEADING
The distinctions are:
a) An amended pleading is filed either as a matter of right or with leave, a supplemental pleading is always
with leave
b) An amended pleading alleges matters occurring before the filing of the original pleading, while a
supplemental pleading alleges matters occurring after the filing of the original pleading
c) An amended pleading supersedes the original pleading, while a supplemental pleading allows the
original pleading to stand.
RULE 11: WHEN RESPONSIVE PLEADINGS ARE TO BE FILED
RESPONSIVE PLEADING DEFINED
1. A responsive pleading is one which seeks affirmative relief and/or set up defenses. 312
2. However, a motion to dismiss is not considered a responsive pleading.
ANSWER TO THE COMPLAINT
1. Within 15 days after service of summons unless a different period is fixed by the Court. 313
1.1 The same period applies to third party complaints. 314
2. If covered by the Rules on Summary Procedure, it is 10 days
3. If the complaint is amended: (a) as a matter of right, within 15 days from being served with a copy (b) if
with leave of court, within 10 days from notice of order admitting the same. If no new answer is filed, a
previously filed answer may serve as the answer. The same period holds for answers to amended counter-
claims, cross claims, third party complaints and complaints in intervention.315
4. If defendant is a foreign private juridical entity, within 15 days if service of summons is made on the
resident agent or within 30 days from receipt of summons by the entity at its home office if received by the
government office designated by law.316
5. If it is a complaint – in - intervention, within 15 days from notice of the order admitting the complaint in
intervention
6. If it is a supplemental complaint, within 10 days from notice of the order admitting the supplemental
complaint. The answer to the complaint shall serve as the answer to the supplemental complaint if no new or
supplemental answer is filed.317
7. If it involves a complaint served on a non-resident defendant who is not in the Philippines through any
of the modes of extra-territorial service, including by publication, within a reasonable time which shall not be
less than 60 days after notice as the court may specify in its order granting leave to effect extra-territorial
service of summons
310
Shoemart, Incorporated v Court of Appeals, 190 SCRA 189
311
APT v Court of Appeals, 324 SCRA 533
312
Marcos-Araneta vs. Court of Appeals, 563 SCRA 41
313
314
315
316
Supra, Section 2, Rule 11, Section 128, Corporation Code
317
39
8. If it involves corporate election contests or inspection of corporate books and records disputes, within
10 days from service of summons and the complaint. 318
ANSWER TO A CROSS CLAIM OR COUNTER CLAIM
1. The answer to a cross claim or a counter-claim shall be filed within 10 days from service. 319
2. Note that compulsory counterclaims need not be answered unless it raises issues not covered by the
complaint.
2.1 It is required that a compulsory counterclaim or a cross claim existing at the filing of defendant’s
answer must be included therein but, if it matures / or is acquired after serving of answer, it may
with the court’s permission be presented as such in a supplemental pleading. If already existing
and not set up through oversight, inadvertence, or excusable neglect, it may, by leave of court
be set up as such by amendment before judgment. 320
REPLY
1. It must be filed within 10 days from service of the pleading responded to. 321
2. Note though that the filing of a reply is optional as if one is not filed, all new matters are deemed
controverted.322
3. The exceptions are pleaded actionable documents and allegations as to usury.
MAY THE TIME TO PLEAD BE EXTENDED
1. Upon motion and on terms as may be just, the Court it may extend or allow it to be filed after the time
fixed by the Rules.323 The court may also, upon like terms, allow an answer or other pleading to be filed after the
time fixed by these Rules.
2. In cases covered by the Rules on Summary Procedure, the period cannot be extended nor shortened.
3. In quo warranto cases, the period may be shortened. 324

4. A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda, or briefs, let the
period lapse without submitting the same or offering an explanation for failure to do so. 325
WHEN A COMPLAINT SHOULD BE FILED
1. A complaint is not a responsive pleading. It is to be filed upon accrual of the cause of action or any time
thereafter but before it is barred by prescription.
RULE 12 – BILL OF PARTICULARS
BILL OF PARTICULARS DEFINED
1. It is a definitive statement of any matter which is not covered with sufficient definiteness or
particularity to enable him to properly prepare his responsive pleading. 326
2. The purpose of which is to make more particular or definite the ultimate facts in a pleading and is not
intended to supply evidentiary matters.
3. It is to be resorted to when the complaint is deficient in details with respect to the factual basis of each
and every item claimed, but such deficiency is not such as to amount to a failure to state a cause of action as the
remedy then is to file a motion to dismiss. 327
318
Section 5, Rule 6 and Section 4, Rules 7, A.M. 01-2-04, SC
319
320
Supra, Sections 8,9, and 10, Rule 11
321
322
323
324
325
Rabanal v Tugade, 383 SCRA 484
326
327
Sabangan v Manila Railroad Company, 28 SCRA 772
40
WHEN SHOULD IT BE FILED
1. Before filing or responding to a pleading or before filing an answer.
2. If pleading is a reply, within 10 days from service thereof
ACTION OF THE COURT
1. Upon filing of the motion that points out the defects complained of, the paragraphs wherein they are
contained, and the details desired.
1.1 It is a litigated motion, thus requires a notice of hearing.
2. The clerk of court must immediately bring it to the attention of the court, which may deny or grant the
motion outright or allow the parties an opportunity to be heard. 328
2.2 If granted, whether in whole or in part, the compliance therewith must be effected within 10
days from notice of order, unless a different period is fixed by the Court.
3. In compliance, the bill of particulars may be filed either in a separate or in an amended pleading, serving
a copy on the adverse party.329
3.1 Once filed, it becomes part of the pleading for which it is intended. 330
EFFECT OF NON - COMPLIANCE WITH ORDER
1. In case of failure to obey or insufficient compliance, the Court may order the pleading or portions
thereof to which the order was directed to be stricken out or make such order as it deems just. 331 Hence, it may
also dismiss for failure of the plaintiff to obey order of the Court. 332
2. The striking out of a complaint by the lower court upon motion of the defendant for failure of the
plaintiff to comply with an order requiring him to submit a bill of particulars as a ground for dismissal is
equivalent to an adjudication on the merits unless otherwise provided by the court. 333
WHEN MUST A RESPONSE / ANSWER BE FILED
1. After service of a bill / definitive pleading or notice of denial of the motion for a bill of particulars, the
moving party has the remaining period that he was entitled to at the time of the filing of the motion, which
shall not be less then 5 days in any event.334
RULE 13 – FILING / SERVICE OF PLEADINGS JUDGMENTS / OTHER PAPERS
1. The Rule applies to all pleadings / papers as well as service thereof, except those for which a different
mode of service is prescribed.335
FILING / SERVICE DEFINED
1. Filing is the act of presenting the pleading or other paper to the clerk of court.
2. Service is the act of providing a party with a copy of the pleading / paper.
2.1 If a party is represented by counsel, service is made upon counsel or one of them unless service
is ordered to be made upon the party by the Court. If there is one counsel for several parties, he
is entitled to only one copy served by the opposite side. 336
328
329
330
331
332
333
Vda. De Quillosa v Salazar, 14 SCRA 656
334
335
336
41
2.2 Service may also be made on a party with counsel: (a) if counsel cannot be located or changed
his given address (b) when his deposition is to be taken, or is required to answer a written
interrogatory or when a request for admission is made, and (c) if party is ordered to show
cause why he should be punished for contempt
MODES OF FILING
1. The modes of filing are (a) Presenting the original copies of pleadings, appearances, motions, notices,
orders, judgments and all other papers to the clerk of court, or (b) By registered mail. 337
1.1 The clerk of court shall if filing be personal, endorse on the pleading, the date and the hour of
filing.
1.2 If it by mail, the date appearing on the post office stamp / registry receipt shall be date of the
filing / deposit of court. The envelope shall be attached to the record. It bears stressing that it is
the date of mailing, not the date of receipt of the mail matter, which shall be considered as the
date of filing.338 This has been the practice since mail is considered an agent of the
Government.339This is also known as the Mailbox Rule.
2. The papers that are to be filed or served upon affected parties are judgments, resolutions, order,
pleadings subsequent to the complaint, written motions, notices, appearances, remand, offer of judgment or
similar papers.340
WHAT ARE THE MODES OF SERVICE
1. The general rule is that pleadings, motions, notices, orders, judgments and other papers shall be served
personally or by mail.341
2. If personally served, it may done: (a) by delivering personally a copy to party or his counsel, or (b)
leaving it in his office with a clerk or person having charge thereof, or (3) if no person is found in the office or he
has no office, by leaving a copy between the hours of 8am to 6pm at party’s / counsel’s residence, if known, with
a person of sufficient age and discretion residing therein. 342
3. If by mail, by depositing a copy in the post office in a sealed envelope, plainly addressed to the party or
counsel, if known, at his address / office, otherwise, at his residence, if known, postage prepaid and with
instructions to the postmaster to return the mail to sender after 10 days if undelivered.
3.1 If no registry service is available in the locality of the addressee or sender, service may be by
ordinary mail.343
4. If mailed by private carrier, the date of actual receipt by the court of such pleading and not date of
delivery to the carrier is deemed the date of filing of that pleading. 344
5. It is required that judgments, final orders or resolutions shall be served personally or by registered mail.
5.1 If a party is summoned by publication, and he has failed to appear, judgments, final orders /
resolutions shall also be served upon him by publication at the expense of the prevailing
party.345
6. If service cannot be made personally or by mail, substituted service may be availed of as long as the
office and place of residence of the party or his counsel is also unknown, service may be made by delivering a
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.346
337
338
Ansel v Aledo, 420 SCRA 645
339
Supra, Mintu v Court of Appeals, 53 SCRA 114
340
341
342
343
344
Industrial Timber Corporation v NLRC, 233 SCRA 597, Beneco v NLRC, 209 SCRA 55
345
346
42
WHEN SERVICE IS COMPLETE
1. Service will be deemed complete: (a) Upon actual delivery if undertaken personally (b) Upon expiration
of 10 days after mailing, unless the Court orders otherwise if undertaken by ordinary mail (c) Upon actual
receipt by addressee or after 5 days from the date he received the 1 st notice of the postmaster, whichever date
is earlier, if undertaken by registered mail 347 (d) At the time of delivery to the clerk of court, if undertaken by
substituted service
WHAT IS THE RULE ON PRIORITY OF SERVICE
1. Whenever practicable, service and filing of pleadings and other papers shall be done personally except,
with papers emanating from the court. A resort to other modes must be accompanied by an explanation why
service or filing was not done personally. If not, it may be cause to consider the paper as not filed. 348
1.1 Where the address of the respondent’s counsel is 83 kilometers away from the address of
petitioner’s counsel, such distance makes personal service impracticable, and a written
explanation why service was not done personally might have been superfluous. Liberal
construction has been allowed in cases where the injustice to the adverse party is not
commensurate with the degree of thoughtlessness in not complying with the procedure
prescribed.349
WHAT CONSTITUTES PROOF OF FILING
1. Proof of filing is shown by: (a) existence of the pleading or other paper in the records of the case (b) If
not in the record, but is claimed to be: (1) filed personally by the written / stamped acknowledgment of its filing
by the Clerk of Court on a copy, and (2) filed by registered mail by the registry receipt and the affidavit of the
person who did the mailing containing a full statement of: (a) Date and place of depositing in the post office in a
sealed envelope addressed to the Court, with postage prepaid, and (b) Instructions are given to the postmaster
to return the mail to sender after 10 days, if undelivered. 350
WHAT CONSTITUTES PROOF OF SERVICE
1. Proof of service is shown by: (a) Written admission of the party served or official return of the server, or
affidavit of the party serving, containing a full statement of the date, place, manner of service if served
personally (b) An affidavit of the person mailing of facts showing compliance with Section 7 of the Rule if served
by ordinary mail (c) An affidavit and 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, the unclaimed letter together of the sworn /
certified copy of the notice given by the postmaster to the addressee. 351
2. If service is by registered mail, proof of service consists of the affidavit of the person mailing and the
registry receipt, both of which must be appended to the motion. Absent one or the other, or both, there is no
proof of service.352
3. Late filing of the affidavit of service may be considered as substantial compliance with the Rules. 353
4. Failure of a party to comply with the required proof of service may be excused where the motion is not
a contentious motion and therefore, no right of the adverse party would be affected by the admission
thereof.354
NOTICE OF LIS PENDENS
1. Is an announcement to the world that a particular property (real) is in litigation, serving as a warning
that one who acquires the property or an interest therein does at his own risk which is filed with the Office of
the Register of Deeds of the place where the property is located.
347
348
349
Maceda v. De Guzman vda de Macatangay, 481 SCRA 415
350
351
352
Cruz v Court of Appeals, 388 SCRA 72
353
Ace Navigation, Inc v Court of Appeals, 338 SCRA 70
354
PEA v Caoibes, Jr., 312 SCRA 767
43
1. It shall contain (a) the names of the parties (b) object of the action or defense (c) description of the
property.355
2. It is only from the time of the filing of the 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 parties designated by their real names
3. It is available only in an action affecting title or right of possession of real property. Specifically in
actions (a) to recover possession of real estate (b)to quiet title (c) to remove a cloud (d) for partition (e)
other proceeding of any kind in court directly affecting title to the land or the use or occupation thereof or
buildings thereon.356
4. There is no such action called “annotation of lis pendens” A notice is ordinarily recorded without the
court’s intervention. The annotation of a notice is not proper if the action is in personam. For it to be proper, the
action must be one affecting real property.357
WHO MAY AVAIL OF IT
1. The plaintiff or the defendant – when affirmative relief is claimed in the answer
WHEN MAY IT BE CANCELLED
1. Upon order of the court when: It is shown that it has for the purpose of molesting the adverse party or it
is not necessary to protect the rights of the party who caused it to be recorded. 358
RULE 14 – SUMMONS
SUMMONS DEFINED
1. It is a writ issued sealed and signed by the clerk of court upon filing of a complaint and payment of
requisite legal fees359 issued to and directed to the defendant containing the following: (a) name of the court
and of the parties (b) a direction that the defendant answer within the time fixed by the Rules, and (c) notice
that unless defendant answers, plaintiff will take judgment by default and may be granted the relief prayed for.
1.1 To be attached thereto is a copy of the complaint and the order for the appointment of a
guardian ad litem, if any.360
2. It shall also contain a reminder to the defendant to observe restraint in filing a motion to dismiss and
instead allege the grounds thereof as defenses in the answer. 361
WHO SERVES SUMMONS
1. The sheriff, his deputy, or other proper Court Officer, or for justifiable reasons by any suitable person
authorized by the court issuing the summons. 362
2. An Officer having management of a jail or institution, if a defendant is a prisoner therein is deputized as

a special sheriff for service of summons. 363
SIGNIFICANCE OF SUMMONS
355
356
Viewmaster Construction Corporation v Maulit, 326 SCRA 821, Alberto v Court of Appeals, 334 SCRA 756
357
AFP Mutual Benefit Assocation v Court of Appeals, 327 SCRA 203
358
Lim v Vera Cruz, 356 SCRA 386
359
360
361
A.M. No. 03-1-09-SC
362
363
44
1. The significance of summons is that it is the primary means by which a Court is able to acquire
jurisdiction over the person of the defendant and to give notice that an action has been commenced against
him. It is the writ by which a defendant is notified of the action brought against him. 364
2. Jurisdiction cannot be acquired over the person of the defendant even if he knows of the case against
him unless he is validly served with summons 365 or the defendant voluntarily appears in the action.
3. Voluntary appearance 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.366
3.1 The rule abandons previous rulings of the Supreme Court that a motion to dismiss on the
ground of lack of jurisdiction over the person be based solely on that ground, otherwise, it is a
voluntary appearance. This is so because of the omnibus motion rule367 that all objections then
available be included otherwise they are waived, as the only exceptions are (a) the Court has no
jurisdiction over the subject matter; (b) there is another action pending between the same
parties for the same cause; (c) or, the action is barred by prior judgment or statute of
limitations.368 These defenses are not barred if not set up.
WHAT ARE THE MODES OF SERVICE
1. Service in person on the defendant by handling a copy thereof to the defendant in person, or if he
refuses to receive and sign for it, by tendering it to him 369
2. Substituted service by leaving a copy of the summons at defendant’s residence with some person of
suitable age and discretion, then residing therein or leaving it at defendant’s office or regular place of business
with some competent person in charge thereof. 370
2.1 The rule presupposes that a relation of confidence exists between the parties with whom the
copy is left and the defendant, and, therefore, assumes that such person will deliver the process
to the defendant or in some way give him notice thereof.
2.2 But, it may only be resorted to, if for justifiable causes, the defendant cannot be served
personally within a reasonable time. The impossibility of service in person must be indicated in
the return; otherwise, substituted service is void. 371
2.3 Within a reasonable time has been interpreted to contemplate a period of time longer than that
demarcated by the word “prompt” and presupposes a prior attempt at personal service that
failed.372 In a later case 373 it was defined as so much time as necessary under the circumstances
for a reasonably prudent and diligent man to do, conveniently, what the contract or duty
requires to be done. One month from issuance of summons can be considered as reasonable.
Several attempts (at least 3) at personal service must be made, preferably on separate dates. In
addition the sheriff must cite why efforts were unsuccessful.
2.4 Service of summons on the defendant shall be by personal service first and only when the
defendant cannot promptly be served in person will substituted service be availed of. 374
3. Service by publication with leave of court, obtained by the filing of a motion in writing, supported by an
affidavit of the plaintiff or some person in his behalf, setting forth the ground that allows resort to it. 375
364
Cano-Gutierrez v. Gutierrez, 341 SCRA 670
365
UCPB v Ongpin, 368 SCRA 464
366
Supra, Section 20, Rules 14
367
368
369
370
371
Hamilton v Rey, GR 139283, November 15, 2000
372
Laus v Court of Appeals, 219 SCRA 688
373
Manotoc v Court of Appeals, GR No. 130974, August 16, 2006
374
Samartino v Raon, 383 SCRA 664
375
45
3.1 The grounds that allow service of summons by publication are: (a) Identity of the defendant is
unknown or whereabouts of the defendant is unknown and cannot be ascertained by diligent
inquiry376 (b) Defendant does not reside and is not found in the Philippines but the suit can
be maintained against him because it is in rem or quasi in rem377 (c) Defendant is a Philippine
resident but is temporarily out of the country. 378 Note the cross reference with Section 15 and
the fact that substituted service may also be availed of.
4. Extra-Territorial Service is allowed in suits against a non-resident defendant not found in the Philippines
can be made by:
4.1 (a) Personal service (b) 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 (c) Or any other manner the court
may deem sufficient.379 Resort to registered mail has been deemed appropriate. 380
4.2 Extra-Territorial Service can be availed of when: (a) Action affects the personal status of the
plaintiff (b) 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 (c) When the relief
demanded, in whole or in part consists of excluding the defendant from any interest in property
located in the Philippines (d) When the defendant’s property has been attached in the
Philippines.381
4.3 Resort to extra-territorial service requires leave of court.
UPON WHOM MAY SERVICE OF SUMMONS BE MADE
1. Service of summons is to be made upon the defendant.
1.1 If the defendant is: (a) Entity without juridical personality it is to be served upon any one of
them or upon person in charge of the office or place of business maintained in such name BUT
such shall not bind individually any person whose connection with the entity has, upon due
notice, been severed before the action was brought 382 (b) A minor, insane or otherwise
incompetent it is to be served upon him personally and his guardian / or guardian ad litem. In
addition, in case of a minor, service may also be made on his father or mother 383 (c) Republic of
the Philippines it is to be served on the Solicitor General 384 (d) Province, City, Municipality or
similar public corporation it is to be served on the executive head, or on such other officers as
the law or court may direct385 (e) Domestic Private Juridical Entity is to be served on the
president, managing partner, general manager, corporate secretary, treasurer or in house
counsel.386 Note the abandonment of doctrine of substantial compliance. 387 Basic is the rule that
strict compliance with the mode of service is necessary to confer jurisdiction of the court over a
corporation.388 (f) Foreign Private Juridical Entity is to be served upon its resident agent. If there
be no resident agent, the Government official designated by law such as the SEC, Insurance
Commissioner, Superintendent of Banks. If none, any of its officers or agents in the Philippines.
Note the required sequence of service. In addition, if a lawyer enters an appearance without
proof of having been engaged by the foreign corporation, no voluntary appearance can be
inferred.389
AFTER SERVICE IS COMPLETE, WHAT MUST SERVER DO
376
377
378
379
Supra, Section 15, Rule 14, Valmonte v Court of Appeals, 252 SCRA 92
380
Cariaga v Malaya, 143 SCRA 441
381
382
383
384
385
386
387
Mason v Court of Appeals, 413 SCRA 303, E.B. Villarosa and Partner Co, Ltd v. Benito, 312 SCRA 65
388
Santiago Sr. vs. Bank of the Philippine Islands, 566 SCRA 435
389
Litton Mills v Court of Appeals, 256 SCRA 696
46
1. Within 5 days after completion, a copy of the return must be served, personally or by registered mail, to
plaintiff’s counsel, and he shall return the summons to the clerk of court who issued it together with proof of
service.390
2. Proof of service is the writing executed by the server setting forth (1) the manner, place and date of
service; (2) the paper/s which have been served with the process and name of the person who received the
same. It is required to be sworn to if made by a person other than the sheriff or his deputy. 391
2.1 If summons is by publication, proof of service consists of: (a) Affidavit of printer, foreman,
principal clerk editor, business manager or advertising manager, copy of the publication
attached, and (b) 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 at /
to his last known address.392
RULE 15 – MOTIONS
DEFINED
1. A motion is an application for relief other than a pleading. 393
REQUISITES OF A VALID MOTION
1. Shall be in writing except when made in open court or in the course of the hearing or trial. 394 Example: a
motion for continuance made in presence of adverse party.
2. It must state the relief sought to be obtained and the grounds on which it is based, and if required by
the rules or necessary to prove facts alleged therein, it shall be supported by affidavits or other papers. 395
3. It shall be set for hearing by the applicant except when the motion can be acted upon by the court
without prejudicing the rights of the adverse party. 396 Example: Motion for extension of time to plead
4. It must contain a notice of hearing addressed to all parties concerned, specifying the time, date of the
hearing which must not be later than 10 days after the filing thereof. 397
4.1 A motion without a notice of hearing is pro-forma or a mere scrap of paper. It presents no
question which the court should decide. The rationale behind the rule is plain: unless the
movant sets the time and place of hearing, the court will be unable to determine whether the
adverse party agrees or objects to the motion, and if he objects, to hear him on his objection.
The objective is to avoid a capricious change of mind in order to provide due process to both
parties and ensure impartiality.398
4.2 The absence of the notice of hearing will not toll the running of the reglementary period for
appeal.399 It is considered a pro-forma motion.400
5. It must be served, together with the notice of hearing on the adverse party at least 3 days before the
date of hearing unless the court for good reason sets the hearing earlier. 401
5.1 The purpose of the three day notice rule is to avoid surprise upon the opposite party and to give
him time to study and meet the arguments of the motion. 402
6. There must be proof of service of every written motion set for hearing otherwise it shall not be acted
403
upon.
390
391
392
393
Supra, Section 1, Rule 15,
394
395
396
397
398
Fajardo v Court of Appeals, 354 SCRA 736
399
Cledera v Sarmiento, 39 SCRA 553
400
Jehan Shipping Corporation v NFA, GR No. 159750, December 14, 2005
401
402
Remonte v. Bonto, 16 SCRA 257
403
47
6.1 As a general rule, proof of service is mandatory. 404
6.2 A judge can act ex-parte on a motion where the rights of the adverse party are not affected. 405
WHEN SHOULD MOTIONS BE SET
All motions must be scheduled for hearing on Friday afternoons or if it be a non-working holiday, in the
afternoon of the next working day unless the motion requires immediate action.406This day is Motion Day.
WHAT SHOULD A MOTION CONTAIN
1. A motion attacking a pleading referring to a motion to dismiss, or attacking an order, judgment, or

proceedings referring to a motion for reconsideration shall include all objections then available, and all
objections not so included are deemed waived except the defenses of Lack of Jurisdiction, Litis Pendentia, Res
Judicata, Statute of Limitations.407
1.1 This is the Omnibus Motion Rule.408
1.2 The purpose of the Rule is to obviate multiplicity of motions as well as discourage dilatory
pleadings.409 Litigants should not be allowed to reiterate identical motions speculating on the
possible change of opinion of the court or judges thereof. 410
1.3 It requires the movant to raise all available exceptions in a single opportunity to avoid multiple
piecemeal objections. But to apply the statutory norm, the objections must be available to the
party at the time the motion was filed.411
2. If motion is one for leave to file a pleading or a motion, it shall be accompanied by the pleading or
motion sought to be admitted.412 Example: Motion for leave to admit amended complaint.
3. As to form, the Rules applicable to pleadings shall apply to written motions as far as it concerns
captions, designation, signature and other matters. 413
RULE 16 – MOTION TO DISMISS
WHEN AND HOW IT CAN BE FILED
1. By Motion, within the time for the filing of an answer but before the filing of an answer.
1.1 The rule is not absolute as a motion to dismiss may still be filed after answer on the ground of
(a) lack of jurisdiction (b) litis pendentia (c) lack of a cause of action, and (d) discovery during
trial of evidence that would constitute ground for dismissal. 414
2. As an affirmative defense in the answer, and in the discretion of the court, a preliminary hearing may be
had as if a motion to dismiss has been filed. If the action is dismissed, it shall be without prejudice to the
prosecution in the same / separate action of a counter-claim pleaded in the answer. 415
WHAT GROUNDS ARE AVAILABLE
A motion to dismiss may be made on any of the following grounds: 416
1. The court has no jurisdiction over the person of the defending party
404
Cruz v Court of Appeals, 388 SCRA 72
405
Sumadchat v Court of Appeals, 111 SCRA 488
406
407
408
409
Dacanay v Alvendia, 30 SCRA 31
410
Miranda v Court of Appeals, 71 SCRA 295
411
PH Credit Corporation v Court of Appeals, 370 SCRA 155
412
413
414
Panganiban v Pilipinas Shell Petroleum Corporation, 395 SCRA 624
415
416
48
2. The court has no jurisdiction over the subject matter of the claims
3. Venue is improperly laid
3.1 An objection to improper venue must be made before a responsive pleading is filed, otherwise
it is deemed waived.417
4. Plaintiff has no legal capacity to sue
4.1 This means that he is not in exercise of his civil rights, or does not have the necessary
qualification to appear or does not have the character / representation he claims as opposed to
the lack of personality to sue which means that he is not the real party in interest, and the basis
for dismissal then is no cause of action or failure to state a cause of action.418
5. There is another action pending between the same parties for the same cause
5.1 This is known as litis pendentia
5.2 The requisites for its application are: (a) Identity of the parties, or at least such as representing
the same interests in both actions (b) Identity of rights asserted and reliefs prayed for, the relief
being founded on the same facts. Identity in both cases, is such that judgment in the pending
case would, regardless of which party is successful amount to res judicata in the other. 419
5.3 As between the first and second or latter actions, apply the “priority in time rule”, but the rule
must yield to the “more appropriate action rule. Example: An action for declaratory relief to
interpret a lease contract was filed before an ejectment case, where the Supreme Court held
that the ejectment case is the more appropriate action. 420
5.4 There is a 3rd test: Interest of Justice Rule which is a determination of which court would be in a
better position to serve the interest of justice considering : (a) nature of the controversy; (b)
comparative accessibility of the court to the parties; (c) other similar factors. 421
5.5 Three relevant conditions to determine which action should be dismissed on the ground of litis
pendentia : (a) date of filing, with preference generally given to the first action filed to be
retained (b) whether the action sought to be dismissed was filed merely to preempt the later
action or to anticipate its filing and lay the basis for its dismissal, and (c) whether the action is
the appropriate vehicle for litigating the issues between the parties. 422
5.6 Where the litigant is engaged in forum shopping, the other party may ask for the summary
dismissal of the two cases. The well entrenched rule is that a party cannot, by varying the form
of the action or adopting a different method of presenting his case, escape the operation of the
principle that one and the same cause of action shall not be twice litigated. 423
6. The cause of action is barred by a prior judgment or by the statute of limitations
6.1 This is known as Res Judicata, whose requisites are: (a) The existence of a former judgment that
must be final (b) Rendered by a court having jurisdiction over the subject matter and the parties
(c) It must be a judgment or order on the merits (d) There must be between 1 st / 2nd action,
identity of parties / subject matter / causes of action.
6.2 The doctrine is founded on 2 grounds: (a) Public policy and necessity which makes it in the
interest of the state that there should be an end to litigation (b) Litigant should be spared the
hardship of being vexed twice for the same cause
6.3 Note that there can be no res judicata in support cases as future support cannot be
compromised.424
417
Fernandez v ICB, 316 SCRA 326
418
Columbia Pictures, Inc. v Court of Appeals, 261 SCRA 144, Travelwide Assn of the Phil. v. Court of Appeals, 199 SCRA
205
419
Victronics Computer v RTC, 217 SCRA 517
420
Teodoro v Mirasol, 99 Phil 150
421
Roa-Magsaysay v Magsaysay, 98 SCRA 592
422
UCPB vs. Beluso, G.R. No. 159912, August 17, 2007
423
PCIB vs. Court of Appeals, G.R. No. 114951, July 18, 2003
424
De Asis v Court of Appeals, 303 SCRA 176
49
6.4 A dismissal of a complaint on the ground that the plaintiff failed to prosecute his action because
of failure to cause service of summons by publication within a reasonable time does not
constitute res judicata as the court cannot be said to have acquired jurisdiction over the person
of the defendant.425
6.5 A previous final judgment denying a petition for declaration of nullity on the ground of
psychological incapacity shall bar a subsequent petition for annulment on the ground of lack of
a marriage license as the cause of action is the same, although the ground on which the action
is predicated has been varied. A party cannot avoid the application of res judicata by varying the
form of the action or adopting a different method of presenting his case. 426
6.6 Statute of Limitations or prescription is a statute establishing a period of time from the accrual
of a cause of action within which a right of action must be exercised. If the action is not brought
within the period, then it is barred.
7. The pleading asserting the claim states no cause of action.
7.1 The Test of the Sufficiency of a Cause of Action is: Whether accepting the veracity of the facts
alleged in the complaint, the Court can render a valid judgment upon the same in accordance
with the prayer in complaint.
7.2 No presentation of evidence is required as there is a “hypothetical admission” of the facts

alleged in the complaint. The court can properly dismiss without a hearing by taking into
consideration the discussion in the motion and the opposition thereto. 427
7.3 Distinguishing a failure to state a cause of action/no cause of action from lack of a cause of
action428: (a) The former refers to insufficiency of allegations, while the latter refers to
insufficiency of factual basis (b) The former is raised only in a in a motion to dismiss before
responding to a complaint, while the latter can be raised at any time (c) The former allows
dismissal to be had at the early stages of the action, while the latter allows dismissal after
questions of fact have been resolved after evidence is presented or stipulations / admissions are
had.
8. Claim or demand set forth in plaintiff’s pleading has been paid, waived, abandoned, or otherwise
extinguished
9. Claim on which the action is founded is unenforceable under the provisions of the statute of frauds.
9.1 Statute of Frauds is statute/s that deals with the enforcement and requirements of agreements
in particular circumstances. It is descriptive of statutes which require certain classes of contracts
to be in writing.429
10. A condition precedent for filing the claim has not been complied with
10.1 In certain cases, referral of a case to the Lupon is a condition precedent for filing a complaint in
court. It is not jurisdictional. 430 It may be waived if not raised seasonably in a motion to
dismiss.431
RESOLUTION OF A MOTION TO DISMISS
1. It shall be heard432, at the hearing, the parties shall submit arguments on the questions of law and
evidence on the questions of law and fact involved except those not available at that time. Should the case
eventually go to trial, the evidence during the hearings shall automatically be part of the evidence of the party
presenting the same.
425
Gardose vs. Tarroza, G.R. No. 130570, May 19, 1998
426
Maillon vs. Alcantara, G.R. No. 141528, October 31, 2006
427
Nadela v. City of Cebu, 411 SCRA 315
428
Supra, Rule 33
429
Litonjua v Fernandez, 427 SCRA 478
430
Junson v martinez, 405 SCRA 390
431
Banares v Balising, 328 SCRA 36
432
50
2. After the hearing, Court shall either dismiss the action, deny the motion or order amendment of the
pleading, stating clearly and distinctly the reasons for the action taken. 433
2.1 It is now mandated that the Court cannot defer resolution of the motion based on the reason
that the ground relied upon does not appear to be indubitable or sure
3. If the motion is denied, the movant shall file an answer within the balance of the period prescribed by
Rule 11, which he was entitled to at the time of serving the motion, but not less than 5 days in any event,
counted from notice of denial.
3.1 If ordered amended, an answer is to be filed within period prescribed by Rule 11, counted from
service of amended pleading, unless the court provides a longer period. Note that it is 15 days
as no answer has of yet been filed. Hence the amendment is one that is a matter of right. 434
3.2 The effect of dismissal is that subject to the right to appeal, an order granting a motion to
dismiss on the grounds of (a) prior judgment or statute of limitations (b) claim / demand has
been paid, waived abandoned or otherwise extinguished, or (c) is unenforceable under the
statute of frauds shall bar a re-filing of the same.435
RULE 17 - DISMISSAL OF ACTIONS
PLAINTIFF DISMISSAL OF HIS OWN COMPLAINT
1. A plaintiff may cause the dismissal of his complaint by:
1.1 Filing of a notice of dismissal at anytime before service of an answer or motion for summary
judgment. Once filed, the court shall issue an order confirming the dismissal, which is without
prejudice, unless stated otherwise but, such dismissal will operate as adjudication on the merits
when filed by a plaintiff who has once dismissed in a competent court, his action based on or
including the same claim.436 This is known as the 2 dismissal rule.
1.2 The action of the court is to confirm the dismissal. Hence, upon filing of the notice, the
complaint is considered as dismissed. 437
2. Or, by filing a motion to dismiss if an answer or a motion for summary judgment has been served but
such will not result in dismissal without the approval of the court and upon terms and conditions as the court
deems proper.
2.1 If a counterclaim has been pleaded before service of motion to dismiss – the dismissal is limited
to the complaint. It shall be without prejudice to the right of the defendant to prosecute his
counterclaim in a separate action unless within 15 days from notice of the motion he manifests
a preference to have it resolved in the same action.
2.2 Unless specified, a dismissal is without prejudice.
2.3 Note also that a class suit shall not be dismissed or compromised without the approval of the
Court.438
COURT DISMISSAL ON ITS MOTION OR THAT OF DEFENDANT
1. The court can motu propio or upon motion of the defendant dismiss a complaint when: (a)If, for no
justifiable reason, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the
complaint (b) If, for no justifiable reason, plaintiff fails to prosecute his action for an unreasonable length of time
(c) If, for no justifiable reason, plaintiff fails to comply with Rules of Court or any order of the Court.
1.1 A dismissal shall have the effect of an adjudication on the merits, unless otherwise declared by
the court.
433
434
435
436
437
Bar, 1989
438
51
1.2 Dismissal is without prejudice to the right of the defendant to prosecute his counterclaim in the
same or a separate action and shall have the effect of an adjudication on the merits unless
otherwise declared by the court.439
2. The remedies of a plaintiff are: (a) Appeal the dismissal as it is a final order, or (b) If without prejudice,
refile the action as an order dismissing without prejudice is not subject to appeal.
3. At the pre-trial, the court ordered the parties to submit a compromise agreement within a ten day
period. The parties were unable to submit the compromise agreement, thus leading to a dismissal. There is
nothing in the rules that imposes a sanction for failure to submit a compromise agreement. 440
APPLICABILITY OF THE RULE
1. The Rule also applies to dismissal by the defendant of his counterclaims cross-claims or 3rd party claims.
1.1 Voluntary dismissal by the claimant by notice as under Section 1 of the Rule shall be made
before a responsive pleading, motion for summary judgment is served, or if there be none,
before introduction of evidence at the trial or hearing. 441
RULE 18 – PRE-TRIAL
WHAT IS PRE-TRIAL
1. It is a procedural devise intended to clarify and limit the basic issues between the parties. Its main
objective is to simplify, abbreviate and expedite trial, or otherwise dispense with it. 442
2. It is a conference or hearing at which the court, with the cooperation of the parties, seeks to determine
definitively what precisely the factual issues to be tried are and how each party intends to establish his position
on each disputed factual issue.
WHEN CONDUCTED
1. After the last pleading has been served and filed. It shall be the duty of the plaintiff to move ex-parte
that the case be set for pre-trial.443
1.1 SC Adm. Circular 3-99 dated January 15, 1999 defined promptly as 5 days.
1.2 SC Administrative Matter No. 03-1-09, SC, Section A (1.2) Should the plaintiff fail to move ex-
parte to set case for pre-trial, the branch clerk of court should issue a notice of pre-trial.
1.3 The same circular also requires that the presiding judge direct the parties to mediation, if
possible. If it fails, it will schedule the pre-trial but it may also schedule a preliminary conference
before the branch clerk of court to assist them in (a) reaching a settlement (b) pre-marking of
documents and exhibits (c) consider other matters that will aid in the prompt disposition of the
case.
1.4 The judge is also directed to consider assisting the parties in effecting a settlement given the
evidence of the parties.
2. The last pleading is the answer to the original complaint, cross claim, or, third party complaint and the
reply.
NATURE AND PURPOSE
1. Pre-trial is by nature mandatory and the purpose for its conduct is to take up the following matters: 444
439
440
Ruiz, Jr v CA, 212 SCRA 660
441
442
Interlining v Philippine Trust Company, 378 SCRA 521
443
444
52
1.1 Possibility of amicable settlement / or submission to alternative modes of dispute resolution.
The alternative modes are: (a) arbitration (b) mediation (c) conciliation (d) early neutral
evaluation (e) mini-trial, or (f) any combination of the foregoing. 445
1.2 Simplification of the issues
1.3 Necessity / desirability of amendment to the pleadings
1.4 Possibility of obtaining stipulations or admissions of fact and of documents to avoid

unnecessary proof
1.5 Limitation of number of witnesses
1.6 Advisability of a preliminary reference of issues to a commissioner
1.7 Propriety of judgment on the pleadings, summary judgment, or dismissing the action if a valid
ground therefor be found to exist.
Hence, a motion for judgment on the pleadings or summary judgment must be filed as in a pre-
trial the court merely determines its propriety.
1.8 Advisability of suspending the proceedings
1.9 Such other matters as may aid in the prompt disposition of the action
UPON WHOM NOTICE OF PRE-TRIAL IS TO BE SERVED
1. It shall be served on counsel, or party if not represented by counsel.
1.1 Counsel is charged with the duty to notify the party. 446
2. Notice is so important that it would be grave abuse of discretion for the court to allow plaintiff to
present his evidence ex parte for failure of the defendant to appear before the pre-trial who did not receive
through counsel a notice of pre-trial.
2.1 Accordingly, there is no legal basis to consider a party notified of the pre-trial and to consider
that there is no longer any need to send a notice because it was counsel who suggested the
date of pre-trial.447
WHOSE PRESENCE IS REQUIRED AT PRE-TRIAL
1. The parties and counsel are required to be present during the pre-trial. A party may be excused if: (a) A
valid cause is shown therefore (b) A representative shall appear duly authorized in writing to do the following:
(1) enter into amicable settlement; (2) submit to alternative modes of dispute resolution; (3) enter into
stipulations / admissions of fact / documents. 448
EFFECT OF FAILURE TO APPEAR
1. If plaintiff fails to appear despite due notice, he may be declared non-suited and the complaint is
dismissed. The dismissal shall be with prejudice, unless otherwise ordered by the court.
1.1 His remedy is to appeal order of dismissal because it is a final resolution. If dismissed without
prejudice, he can refile the complaint
2. If defendant fails to appear despite due notice, plaintiff is allowed to present his evidence ex-parte and
the court may render judgment on the basis thereof. 449
3. What is penalized is the failure to appear of either the plaintiff or the defendant, and not their
respective counsel.450
445
RA 9285, Alternative Dispute Resolution Act of 2004
446
447
Agulto v Tecson, 476 SCRA 395
448
449
450
Paredes v. Verano
53
4. As a rule, there can be no second pre-trial unless both parties consent. 451
WHAT MUST BE FILED BEFORE PRE-TRIAL
1. A pre-trial brief must be filed and served on the adverse party at least 3 days before the pre-trial
containing:452
1.1 Statement of willingness to enter into an amicable settlement, the desired terms or to submit
to alternative modes of dispute resolution
1.2 Summary of admitted facts / proposed stipulation of facts
1.3 Issues to be tried or resolved
1.4 Number of witnesses / names, abstract of testimonies, approximate number of hours that will
be required for presentation of their respective evidence
1.5 Copies of all documents intended to be presented which statement of the purposes of their
offer
1.6 Manifestation of their having availed of or their intention to avail of discovery procedure, or
need for referral of any issues to commissioners
1.7 Applicable law / jurisprudence
1.8 Available trial dates of counsel for complete presentation of evidence which must be within a
period 3 months from the first day of trial.453
2. Note that the failure to file a brief shall have the same effect as failure to appear.
3. Neither can the court conduct a pre-trial without the parties filing their pre-trial briefs. 454
PRE-TRIAL ORDER
1. Proceedings shall be recorded. Upon termination, court shall issue an order which shall recite in detail:
(a) matters taken up (b) action taken thereon (c) amendments allowed to the pleadings (d) agreements /
admissions made by the parties as to any of the matters taken which shall be binding and conclusive upon the
parties455 (e) explicitly defining and limiting the issues to be tried.
2. Pre-trial is primarily intended to make certain that all issues necessary to the disposition of a case are
properly raised. Thus, to obviate the element of surprise, parties are expected to disclose at a pre-trial
conference all issues of law and fact which they intend to raise at the trial, except such as may involve privileged
or impeaching matters. The determination of issues at a pretrial conference bars the consideration of other
questions on appeal.456
2.1 The object of a pre-trial order is to control the subsequent course of the action as trial shall be
limited to the issues stated in the pre-trial order, 457, unless modified to prevent manifest
injustice. 458
2.2. Notwithstanding, courts are not required to resolve all issues raised in pleading unless
necessary for the resolution of the case. 459
RULE 19 – INTERVENTION
WHO MAY INTERVENE

451
Young v Court of Appeals, 204 SCRA 584
452
453
Section 6, SC Adm. Circular 3-99, January 15, 1999
454
Vera vs. Rigor, et al. G.R. No. 147377, August 10, 2007
455
Heirs of Conahap v Regana, 458 SCRA 741
456
Son vs. Son, 251 SCRA 556; PPA vs. City of Iloilo, 406 SCRA 88
457
458
459
IBAA vs. IAC, 167 SCRA 450
54
1. A person who has a (a) legal interest in the matter in litigation (b) has legal interest in the success of
either of the parties (c) has an interest against both or (d) is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the court or an officer thereof. 460
1.1 Examples are (a)an action for payment of money, where personal property of the defendant is
attached, a 3rd person claiming the attached property can intervene (b) action by alleged owners
of the land sought to be foreclosed.
1.2 The interest which entitles a person to intervene in a suit must be in the matter in litigation and
of such direct and/or immediate character that intervenor will either gain or lose by direct legal
operation and effect of judgment. 461
2. Intervention does not lie for a transferee pendente lite. 462
HOW AND WHEN CAN A PERSON INTERVENE
1. Filing of a motion for leave of court to intervene, attaching thereto a copy of the pleading in
intervention, which is then served on the original parties at any time before rendition of judgment by the trial
court.463
1.1 The court may refuse leave when (a) It will unduly delay or prejudice the adjudication of the
rights of the original parties. Example: Delay or laches in bringing intervention, or (b)
Intervenor’s rights may be fully protected in a separate proceeding. Example: Attachment of
real property subject of a mortgage
2. The pleadings in intervention are (a) Complaint in Intervention, if he asserts a claim against either or all
of the original parties, or (b) Answer in Intervention, if he unites with the defending party in resisting the claim
of the plaintiff. 464
3. If granted, a complaint in intervention is to be replied to within 15 days from notice of the order
admitting the same unless a different period is fixed by the court.
4. No intervention is allowed in a land registration case as the remedy is to file an opposition.
4.1 Neither is it allowed in cases covered by the Rules on Summary Procedure.
5. Intervention is merely collateral or accessory or ancillary to the principal action and not an independent
proceeding. Hence, with the final dismissal of the original action, the complaint in intervention can no longer be
acted upon.465
6. An order denying a motion for intervention is appealable. 466
RULE 20 – CALENDAR OF CASES
MAINTENANCE OF THE COURT CALENDAR
1. The clerk of court, under the direct supervision of a judge, shall keep a calendar for (a) pre-trial (b) trial
(c) trials that were adjourned or postponed (d) those with motions set for hearing.
2. In fixing the calendar, preference is given to habeas corpus, election cases, special civil actions and
those required by law.467
ASSIGNMENT OF CASES
460
461
Roxas v Dinglasan, 28 SCRA 430
462
463
464
465
Barangay Matictic v Elbinias, 148 SCRA 83
466
Foster-Gallego v Galang, 435 SCRA 275
467
55
1. The assignment of cases shall always by raffle done in open session of which adequate notice shall be
given to afford interested parties the opportunity to be present. 468 The purpose is to obviate public suspicion
regarding assignment of cases to predetermined judges. 469
RULE 21 – SUBPOENA
WHAT IS A SUBPOENA
1. A process directed to a person requiring him to attend and testify at the hearing or trial of an action, or
at any investigation conducted by competent authority, or the taking of his deposition
KINDS OF SUBPOENA
1. The kinds of subpoena are: (a) Subpoena Ad Testificandum if it directs and requires a person to attend
and testify, or (b) Duces Tecum if it requires him to bring books/documents/or other things under his control. 470
BY WHOM ISSUED
1. A subpoena is issued by (a) The court before whom the witness is required to attend (b) The court where
deposition is to be taken (c) Officer or body authorized by law to do so in connection with investigations that it
may conduct (d) Any justice of the Supreme Court/Court of Appeals in any case or investigation pending within
the Philippines471
1.1 A request by a party for the issuance of a subpoena does not require notice to other parties to
the action.472
2. In taking depositions, the clerk of court shall not issue a subpoena duces tecum without a court order. 473
3. Absent any proceeding, suit or action, commenced or pending before a court, a subpoena may not
474
issue.
WHEN IS A WITNESS NOT BOUND BY A SUBPOENA
1. Witness resides more than 100 kilometers from his residence to the place where he is to testify by the
ordinary course of travel.475 This is also called the viatory right of the witness or the right not to be compelled to
testify in a civil case if he lives more than 100 kilometers from his residence to the place where he is to testify by
ordinary course of travel.
1.1 If the viatory right is invoked, a witness can still be compelled to testify by the taking of his
deposition in a place within 100 kilometers from where he resides, observing the following
steps: (a) Party desiring to take deposition shall give reasonable notice in writing to every other
party in the action stating the time, place, name and address of the person whose deposition is
to be taken. There should be proof of service of the notice (b) Proof of service of notice to take
deposition shall be presented to the clerk of court of the place where deposition is to be taken
(c) On the basis of such proof of service, the clerk upon authority and under seal of the court,
shall issue the subpoena but a subpoena duces tecum cannot be issued without an order of the
Court (d) Subpoena is to be served on witness whose deposition is to be taken. 476
2. Witness is a detention prisoner, if no permission of the court in which his case is pending is obtained or
if the witness is a prisoner sentenced to death, reclusion perpetua or life imprisonment and is confined in a
penal institution, if authority of the Supreme Court to bring out the prisoner has not been obtained. The court
should examine and study the application properly to determine if it is being made for a valid purpose. 477
FORM AND CONTENTS OF SUBPOENA
468
469
Ang v Bello, 163 SCRA 358
470
471
472
Adorio v Bersamin, 273 SCRA 217
473
474
Collado v Bravo, 356 SCRA 411
475
476
477
56
1. A subpoena must contain the following: (a) Name of the court (b) Title of action/investigation and is to
be directed to the person whose attendance is required. If duces tecum, in addition, it must contain a
reasonable description of the books, documents, things demanded which is must appear to the Court to be
prima facie relevant.478
WHAT ARE THE GROUNDS TO QUASH A SUBPOENA
1. If duces tecum, it may be quashed on the following grounds: (a) It is unreasonable and oppressive (b)
Relevancy of the books, documents or things do not appear (c) Person in whose behalf subpoena is
issued fails to advance the reasonable costs of the production thereof (d) The witness fees and kilometrage
allowed by the rules were not tendered when subpoena was served. Under A.M. No. 04-2-04-SC, witness fees
shall be PHP 200.00 a day inclusive of all expenses
2. If ad testificandum, it may be quashed on the following grounds: (a) Witness is not bound by the
subpoena (b) Witness fees and kilometrage allowed by rules were not tendered when the subpoena was
served.479
HOW IS A SUBPOENA SERVED
1. In the same manner as personal or substituted service of summons, original is to be exhibited and
delivered to person on whom it is served – tendering the fees for one day attendance at the kilometrage
allowed by Rules except if subpoena is issued by or on behalf of the Republic of the Philippines or an officer or
agency thereof. Tender must be made so as to allow the witness a reasonable time for preparation or travel to
the place of attendance.480
1. If duces tecum, the cost of production of books, papers or things must also be tendered.
2. Under A.M. No. 04-2-04-SC, the fee for service of summons is PHP 100.00 per witness.
CAN A PERSON BE COMPELLED TO APPEAR AND TESTIFY WITHOUT A SUBPOENA
1. Yes, when he is present in court, in which event it is as if he were in attendance upon subpoena issued
by the Court.481
WHAT ARE THE CONSEQUENCES OF DISOBEDIENCE TO A SUBPOENA
1. The consequences of disobedience are: (a) He may be arrested and brought before the Court where his
attendance is required, the cost of warrant and seizure shall be paid by the witness if the Court finds
disobedience to be willful and without just excuse. 482 (b) Citation in contempt by the court from which the
subpoena is issued. It not issued by a Court, then in accordance with the applicable rule / law. 483
RULE 22 – COMPUTATION OF TIME
HOW COMPUTED
1. The day of the act / event from which the designated period of time begins to run is excluded and date
of performance included.
2. If the last day falls on a Saturday, Sunday or legal holiday in the place where the Court sits, the time
shall not run until the next working day. 484
2.1 Should a party desire to file any pleading, even a motion for extension of time to file a pleading,
and the last day falls on a Saturday, Sunday or a legal holiday, he may do so on the next working
day. In case the motion for extension is granted, the due date for the extended period shall be
counted from the original due date, not from the next working day on which the motion for
extension was filed.485
478
479
480
481
482
483
484
485
Dela Cruz vs. Maersk Filipinas Crewing, Inc., 551 SCRA 284, AM No. 00-2-14-SC
57
EFFECT OF INTERUPTIONS
1. Allowable period after interruption shall start to run on the day after, notice of the cessation of the
cause thereof. The day of the act that caused cessation shall be excluded in the computation of the period.
2. Rule on computation of time dies not apply to prescription of offenses or causes of action. Hence, if the
last day falls on a Saturday, Sunday or legal holiday, it prescribes on the said date.
RULES 23 TO 29 – MODES OF DISCOVERY
WHAT IS DISCOVERY
1. The methods used by the parties to a civil action to obtain information held by the other party that is
relevant to the action.
PURPOSES OF DISCOVERY
1. The purposes of resort to discovery are: (a) It is a device to narrow down / clarify the basic issues
between the parties (b) It is a device to ascertain the facts relevant to the issues.
1.1 Relevancy is determined by its logical tendency to prove or disprove a fact or to make the fact
more or less probable.
WHAT ARE THE MODES OF DISCOVERY
1. The modes of discovery (a) Deposition pending action 486 (b) Deposition before action or pending appeal
487
(c) Interrogatories to parties488 (d) Request for admission by adverse party489 (e) Production or
inspection of documents / things490 (f) Physical / mental examination of persons 491
WHAT IS A DEPOSITION
1. A deposition is the taking of the testimony of any person, whether he be a party or not, but at the
instance of a party to the action.
1.1 This testimony is taken out of court by oral examination or written interrogatory.
WHEN CAN DEPOSITIONS PENDING ACTIONS BE TAKEN
1. With leave of court, after jurisdiction has been acquired / obtained over any defendant or over property
which is the subject of the action as the issues are not yet joined and disputed facts are not yet clear or if a
person is confined in a prison with leave of court only, on such terms that the Court may prescribe.
2. Without leave of court, after an answer has been served.492

WHOSE DEPOSITION MAY BE TAKEN, HOW TAKEN, BY WHOM
1. Any person, whether a party or not, upon oral examination or written interrogatory upon the initiative
of any party.
SCOPE OF A DEPOSITION
1. The deponent may be examined regarding any matter, not privileged , which is relevant to the subject
of the pending action whether it relates to a claim or a defense of any other party.
486
Supra, Rule 23
487
Supra, Rule 24
488
Supra, Rule 25
489
Supra, Rule 26
490
Supra, Rule 27
491
Supra, Rule 28
492
58
1.1 Including the existence, description, nature, custody, condition, location of any books,
documents or other tangible things and the identity and location of persons having knowledge
of relevant facts.493
2. The taking and scope of a deposition after notice is served for its taking by oral examination may be
limited.
2.1 Upon motion seasonably filed, by a party or the person to be examined, and for good cause
shown, the court in which the action is pending may order: (a) Deposition not be taken (b)It be
taken only at some designated place other than that stated in the notice (c)It be taken only on
written interrogatories (d) That certain matters shall not be inquired into (e) That scope of
the examination shall be held without anyone present except the parties to the action, and their
officers of counsel (f)That after depositions are sealed, they shall be opened only by order of the
court (g)That secret processes, developments or research need not be disclosed (h)That parties
shall simultaneously file specified documents or information enclosed in sealed envelopes to be
opened as directed by the Court (i) That court may make any order which justice requires to
protect the party or witnesses from annoyance embarrassment or oppression. 494
3. During the taking of the deposition, it shall be taken subject to the additional limitations:
3.1 During the taking of the deposition, on motion or petition of any party or the deponent upon
showing that the examination is being conducted in bad faith or in such manner as to
unreasonably annoy, embarrass or oppress the deponent or a party, the court where the action
is pending or the RTC of the place where deposition is being taken may order the officer taking
the examination to cease forthwith or limit the scope as provided in Section 16.
3.2 If terminated, it shall be resumed thereafter only upon order of the Court in which the action is
pending. Upon demand of the objecting party/deponent, the taking shall be suspended for the
time necessary to make a notice for an order. In granting/refusing such order, the court may
impose upon either party or upon the witness the requirement to pay costs/expenses as the
Court may deem reasonable.495
BEFORE WHOM MAY DEPOSITIONS BE TAKEN
1. Within the Philippines: a judge, notary public, or person authorized to administer oaths, at any time or
place if so stipulated in writing by the parties. 496
2. In foreign countries: On notice before a secretary of the embassy or legation or the diplomatic minister
and his staff, consul general, consul, vice consul or consular agent of the Republic of the Philippines, or before
such person or officer as may be appointed by commission or letters rogatory. 497
2.1 A Commission is an instrument issued by a court of justice or other competent tribunal to

authorize persons to take a deposition or do any other act by authority of such court or tribunal.
A Commission is addressed to officers designated by name or descriptive title.
2.2 Letters Rogatory is an instrument sent in the name and by authority of a judge or court to
another, requesting the latter to cause to be examined, upon interrogatories filed in a case
pending before the former, a witness who is within the jurisdiction of the judge or court to
whom such letters are addressed. Letters Rogatory are addressed to a judicial authority in a
foreign country and may be applied for and issued only after a commission has been returned
unexecuted.
WHO ARE DISQUALIFIED TO TAKE DEPOSITIONS
1. A Person who is a relative within the 6 th degree of consanguinity / affinity or employee or counsel of any
of the parties or relative within the same degree or employee of counsel or is financially interested in the
action.498
TAKING OF A DEPOSITION UPON AN ORAL EXAMINATION

493
494
495
496
497
Supra, Sections 11, 12, and 14, Rule 23
498
59
1. The taking is initiated by the giving of reasonable notice in writing to every other party to the action ,
which must state the time / place of the taking of the deposition and the name and address of the person to be
examined, if known, If not known, a general description sufficient to identify him or the particular class or group
to which he belongs.
1.1 On motion of a party upon whom notice is served, the court, for cause, may enlarge or shorten
the time.499
2. Officer taking the deposition shall put the witness under oath and shall personally, or by someone
acting under his direction and his presence record the testimony of the witness stenographically unless the
parties agree otherwise.
3. All objections as to the qualifications of the officer taking the deposition, the manner of taking the
evidence presented, conduct of the parties or any other objection shall be noted. Any evidence objected to shall
be taken subject to the objections.
4. Parties served with notice, in lieu of participating in the taking of the deposition, may submit written
interrogatories, which the officer taking the deposition shall propound to the witness and record the answers
verbatim.500
5. After the taking of the deposition, and testimony is transcribed, it is submitted to the witness for
examination and shall be read to or by him, unless such is waived by the witness and the parties. If there are
changes, in form or substance which the witness desires to make, it shall be entered upon the deposition by the
officer with a statement as to the reason given by the witness as why they are being made.
6. The deposition is then 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.
7. If not signed, the officer shall sign it and state on the record why it was not signed together with
reasons. If there is refusal to sign, the effect is that the deposition then may be used fully as though signed,
unless on a motion to suppress under Sec 29 (f) , pertaining to errors or irregularities in preparation, the Court
holds that the reason for refusal to sign require rejection of the deposition in whole or in part. 501
8. Once signed, 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 of the witness. He shall then securely seal the deposition in
an envelope endorsed with the title of the action and marked “deposition of _______” to be promptly filed with
the court where the action is pending or sent by registered mail to the clerk thereof for filing. 502
9. Notice of filing shall then promptly be given by the officer to all parties 503 and upon payment of
reasonable charges; he is to furnish copies of the deposition to any party or the deponent. 504
TAKING OF A DEPOSITION UPON WRITTEN INTERROGATORIES
1. Party desiring to take the deposition upon written interrogatories shall serve them upon every other
party with notice stating: (a) name and address of the person who will answer them (b) descriptive title and
address of the person who will take the deposition (c) Within 10 days, party served may serve cross-
interrogatories on the party proposing to take the deposition (d) Within 5 days thereafter, the latter may serve
re-direct interrogatories upon the party serving cross–interrogatories (5) within 3 days after being served of re-
direct interrogatories, a party may serve re-cross interrogatories upon party proposing to take deposition. 505
2. A copy of the notice and copies of all interrogatories shall be delivered by the party taking the
deposition to officer designated in the notice, who shall proceed promptly in the manner provided by Sections
17, 19 and 20 to take the testimony of the witness in response to the interrogatories and to prepare, certify, and
file / mail the deposition attaching copies of the notice and interrogatories. 506
499
500
501
502
503
504
505
506
60
3. Officer must promptly give notice of filing / and may furnish copies to parties and deponent upon
payment of reasonable charges.507
4. Note that Sections 15, 16 and 18 are applicable and that by motion, it can be asked that the deposition
be upon oral examination.
EFFECT OF NON-APPEARANCE
1. If party giving notice fails to appear and another attends in person or by counsel , the Court may order
the party giving notice to pay reasonable expenses incurred to attend, including reasonable attorney’s fees. 508
2. If party giving notice does not serve subpoena and the witness does not appear, court can order party
giving notice to pay reasonable expenses for attendance plus attorney’s fees to a party who appears in person
or by counsel509
TAKING OF DEPOSITIONS BEFORE ACTION OR PENDING APPEAL OR DEPOSTIONS IN PERPETUAM REI

MEMORIAM
1. A deposition before action is initiated by the filing of a verified petition by a person desiring to
perpetuate his testimony or that of any person in relation to any matter cognizable in any court in the
Philippines in the Court in the place of residence of the expected adverse party. 510
1.1 The contents of the petition which shall be entitled in the name of the petitioner and should
show: (a) That petitioner expects to be a party to an action in a Court in 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 that he desires to establish by the proposed
testimony and his reasons for desiring to perpetuate it (d) The names or description of the
person he expects will be adverse parties and their addresses so far as known (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 then 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.511
1.2 To Perpetuate means to preserve or make available testimony for later use at a trial by means
of deposition.
2. After the petition is completed, 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: he will apply to the
Court at a time and place stated therein, for the order described in the petition.
2.1 At least 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.512
3. If the Court is satisfied that the perpetuation of testimony may prevent a failure of justice or delay of
justice, it shall make an order designating or describing the persons whose depositions are to be taken,
specifying the subject and whether it will be upon oral execution or written interrogatories under Rule 23. 513
3.1 For purposes of applying Rule 23, references to the court in which the action is pending shall be
deemed to refer to the court in which petition for such deposition is filed. 514
4. A deposition taken under the Rule or although not so taken, it would be admissible in evidence; it may
be used in any action involving the same subject matter contained in petition subsequently brought in
accordance with Sections 4 and 5 of Rule 23. 515
507
508
509
510
511
512
513
514
515
61
5. A deposition pending appeal can be had If appeal is taken from a judgment of a Court including the CA
in proper cases or before the taking of an appeal if the time therefore has not yet expired.
5.1 The Court in which judgment was rendered may allow taking of depositions of witnesses to
perpetuate their testimony for use in the event of further proceedings in the said Court.
5.2 It is initiated by a party making a motion in said Court for leave to take depositions – upon the
said notice and service thereof as if the action was pending therein, the motion should state: (a)
name and addresses of persons to be examined and substance of testimony to be elicited (b)
reasons for perpetuating testimony.
5.3 If Court finds that it is proper to avoid failure or delay of justice, it may allow the depositions to
be taken and used in the same manner and under same conditions as prescribed for depositions
in pending actions.516
EFFECT OF TAKING AND USING DEPOSITIONS
1. A party shall not be deemed to make a person his own witness by taking his deposition.517
2. If introduced in evidence in whole/part for any purpose other than contradicting or impeaching the
deponent, such makes the deponent the witness of the party introducing the deposition.
2.1 But it does not apply to the use of an adverse party of a deposition as described in Par. (b)
Section 4 of Rule 23.518
USE OF DEPOSITION
1. A deposition can be used at the trial, upon the hearing of a motion or an interlocutory proceeding.
1.1 Any part of 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 or had due notice thereof, in
accordance with the following:
a. May be used by any party for the purpose of contradicting or impeaching the testimony
of deponent as a witness
b. Deposition of a party or anyone who at the time of the taking was an officer, director, or
managing agent of a public/private corporation partnership/association which is a party
may be used by an adverse party for any purpose
c. Deposition of a witness, party or not, may be used by any party for any purpose if the
court finds that: (1) witness is dead (2)witness resides more than 100 kilometers from
the place of trial/hearing or is out of the Philippines unless, it appears that his absence
is procured by the party offering the deposition (3) witness is unable to attend/testify
because of age, sickness, infirmity or imprisonment (4) party offering the deposition
has been unable to procure the attendance of the witness by subpoena (5) upon
application and notice, 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
witness in open court, to allow the deposition to be used.
d. If only a part of the deposition is offered in evidence by a party, the adverse party may
require him to introduce all of which is relevant to the part introduced, and any party
may introduce the other parts.519
WHEN DOES THE DEPOSITION BECOME EVIDENCE OR WHEN CAN IT BE USED AS EVIDENCE
1. If the deponent is a party, the opposing party can use it to prove his claim or defense.
516
517
518
519
62
1.1 It may also be used to impeach or contradict the party deponent if he testifies.
2. If the deponent is only a witness, his deposition can only be used to impeach/contradict him if he
testifies but if Paragraph (c ) of Section 4 applies, it can be used for any purpose.
RESOLUTION OF OBJECTIONS WHEN DEPOSITIONS ARE PRESENTED
1. Subject to the provisions of Section 29, objections may be made at the trial or hearing to receive 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.
2. Specific objections are resolved as follows:
2.1 As to notice, they are waived unless written objection is promptly served upon the party giving
the notice
2.2 As to disqualification of the officer, it is waived unless made before the taking of the deposition
or as soon thereafter as the disqualification becomes known or could be discovered with
reasonable diligence.
2.3 As to competency relevancy of evidence, as to competency of the witness or competence,

relevancy or materiality of the evidence/testimony, they are not waived by the 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
2.4 As to oral examination and other particulars – Errors and irregularities occurring at the oral
examination in the manner of taking, the form of the questions and answers, in the
oath/affirmation, or the conduct of the parties and errors of any kind which might be obviated,
removed or cured it promptly, prosecuted, are waived, unless reasonable objection thereto is
made at the taking of the deposition.
2.5 As to the form of written interrogatories, the objections are waived unless served in writing
upon party propounding them within the time allowed for the serving of succeeding cross or
other interrogatories and within 3 days after service of the last interrogatory authorized.
2.6 As to manner of preparation, objections as to 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 are waived, unless a motion to suppress the deposition or part thereof
is made with reasonable promptness after such defect is, or with due diligence, might have
been ascertained.520
HOW IS A DEPOSITION ACTUALLY USED AND ONCE A DEPOSITION HAS BEEN USED, WHAT CAN ADVERSE/
OTHER PARTIES DO
1. Generally, the deponent is called to testify. Hence he may be examined/cross-examined as permitted at

the trial under Sections 3 to 18, Rule 132. 521
2. 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. 522 This is called rebutting a deposition.
IS USE OF THE DEPOSITION LIMITED TO THE ACTION/PENDING ACTION WHEN IT WAS TAKEN
1. No, because substitution of parties does not affect the right to use depositions previously taken, when
the action is 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. 523
WRITTEN INTERROGATORIES
1. The purpose of a written interrogatory is to enable any party desiring to elicit material facts / relevant
facts from any adverse party by the filing and service upon the latter of a written interrogatory to be answered
520
521
522
523
63
by the party served or if party is public / private corporation or a partnership / association by any officer thereof
competent to testify in its behalf.524
2. An interrogatory is allowed under the same conditions as specified in Section 1, Rule 23 as to when it is
to be had.
HOW AND WHEN ANSWERED
1. Responses, which must be signed and sworn to, must be filed within 15 days from service, unless the
Court on motion and for good cause shown extends or shortens the time 525
2. Objections, if any, may be presented to the court within 10 days after service of notice as in the case of
a motion, answers shall then be deferred until objections are resolved, which shall be as early a time as is
practicable.526
HOW MANY INTERROGATORIES
1. No party may, without leave of court, serve more than one set of interrogatories to be answered by the
same party.527
SCOPE AND USE
1. It may relate to any matters that can be inquired into under Section 2, Rule 23 and the answers used for
the same purpose provided for by Section 4, Rule 23. 528
EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES
1. Unless thereafter allowed by the court for good cause shown and to prevent 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 give a deposition pending appeal.529
DISTINGUISHING DEPOSITION UPON WRITTEN INTERROGATORIES AND WRITTEN INTERROGATORIES
1. Any person, party or not can be required to or compelled to give a deposition upon written
interrogatories, while only the adverse party may be compelled to answer a written interrogatory.
2. A deposition upon written interrogatory is taken before an officer, while an adverse party without
appearing before an officer shall answer them in writing and under oath.
RULE 26 – REQUESTS FOR ADMISSIONS
WHAT IS A REQUEST FOR ADMISSION
1. It is a written request for the (1) admission of the genuiness of any material and relevant document
described in and exhibited with the request or (2) the truth of any material or relevant matter of fact set forth in
the request.
2. A party may file and serve a request for admission upon any other party at any time after the issues
have been joined.530
EFFECT OF FILING AND SERVICE UPON ANY OTHER PARTY
1. 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 15 days after service thereof or such period which
the Court will allow on motion, the party served files and serves upon the requesting party a sworn statement,
either denying specifically the matters is setting forth in detail the reason why he cannot truthfully either
admit / deny.
524
525
526
527
528
529
530
64
2. Objections, if any shall be submitted to the Court within the period for complying and prior to filing of
the Sworn Statement.
2.1 Compliance is then deferred until objections are resolved which should be done as early as
practicable.531
EFFECT OF ADMISSIONS
1. It is for the purpose of the pending action only and shall not constitute an admission by him for any
purpose or used against him in any other proceeding532
1.1 Although any admission, express or implied may be allowed by the court to be withdrawn or
amended upon such terms as may be just.533
EFFECT OF FAILURE TO SERVE
1. Unless otherwise allowed by the Court for good cause and to prevent failure of justice, a party who fails
to serve a request for admission of material / relevant facts at issue on the adverse party, which are or ought to
be within the latter’s personal knowledge, shall not be permitted to present evidence on such facts. 534
RULE 27 – PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
HOW AVAILED OF
1. On motion of any party showing good cause, the court where the action is pending may order,
specifying the time, place and manner and prescribing such terms and conditions as are just, that:
1.1 Any party to produce and permit the inspection, copying, photographing, by or on behalf of a
having 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 which are in his possession and control.
1.2 Or, permit entry upon designated land or other property in his possession / control for the
purpose of inspecting, measuring, surveying or taking photographs of the property or any
designated relevant object or operation thereon. 535
2. This mode of discovery is resorted to determine the contents or status of documents or things and/or
the preservation of the same.
3. The requisites that have to be complied with to compel the other party to produce or allow the inspection
of documents or things are: (a) the party must file a motion showing good cause (b) notice of the filing of
the motion must be served on all parties (c) the motion must designate the papers or things that are to
be produced and inspected (d) such papers or things are not privileged (e) that they constitute or contain
evidence material to any matter involved in the litigation, and (f) that they are in possession, control or
custody of the other party.536
RULE 28 – PHYSICAL / MENTAL EXAMINATION OF PERSONS
WHEN AVAILED OF
1. In an action in which the mental or physical condition of a party is in controversy, a court in its
discretion, can order him to submit to physical / mental examination by a physician. 537
1.1 It can be ordered only upon motion for good cause shown, with notice to the party to be
examined and to all other parties, specifying the time, place, manner, condition and scope of
the examination and person/s by whom it is to be made. 538
531
532
533
534
535
536
Solidbank Corporation vs. Gateway Electronics Corporation, 553 SCRA 256
537
538
65
2. Once the examination is completed, the party examined may request that a detailed written report of
the examining physician setting forth his findings / conclusions.
2.1 If requested and delivered, the party causing examination to be made is entitled to request and
receive from examined party a like report of the same mental / physical examination / condition
previously or thereafter made.
2.2 If request is refused, the court on motion may order delivery by the party examined on such
terms as are just. If the physician fails / refuses to make such report, his testimony may be
excluded if his testimony is offered at trial. 539
2.3 Note that a waiver of privilege is caused by requesting and obtaining a report of the
examination 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 / physical examination. 540 This refers primarily to the privilege
between doctor and patient.
RULE 29 – REFUSAL TO COMPLY WITH MODES OF DISCOVERY
EFFECTS OF THE REFUSAL TO COMPLY
1. If he refuses to answer upon being directed to do so or refuses to be sworn, it will constitute contempt
of court. A citation in contempt shall ensue after the following steps have been followed or observed:
1.1 If the party/deponent refuses to answer any question upon oral examination, the deposition
may be completed on other matters or adjourned as the proponent may prefer.
1.2 The proponent may then apply for an order to compel an answer in the proper court where the
deposition is being taken. This is also applicable to interrogatories.
1.3 If granted, the court can order that answer be made and if it finds that refusal is without
substantial justification – it may impose upon deponent / counsel advising that no answer be
given or both – reasonable expenses and attorney’s fees in obtaining the order. If denied and
the court finds application was filed without substantial justification proponent / counsel
advising application or both may in the same manner be sanctioned. 541
2. Other consequences that are applicable to Sec 1, Rule 29, Rule 27 and Rule 28, the Court may issue an:
2.1 Order that the matters regarding which the questions are asked, character / description of thing
or land / contents of a paper or physical / mental condition of a party shall be taken to be
established in accordance with the claim of the party obtaining the order.
2.2 Order refusing to allow the disobedient party to support / oppose designated claims / defenses
– or prohibiting him from introducing in evidence the designated things / documents or items of
testimony or from introducing evidence of physical / mental condition.
2.3 Order striking out pleadings or parts thereof or staying proceedings until the order is obeyed,
dismissing the action or proceeding or any part thereof, or rendering judgment by default
against the disobedient party.
2.4 In lieu or in addition to orders, the disobedient party can be ordered arrested except in relation
to a physical / mental examination.542
OTHER SANCTIONS
1. Expenses on refusal to admit, if requested party serves a sworn denial and party serving request proves
genuineness / truth, he may apply for an order directing the requested party to pay expenses incurred in making
539
540
541
542
66
proof plus attorney’s fees. Order is issued except if court finds good reasons for denial or admissions were of no
substantial importance. 543
2. Failure of a party to willfully appear before the officer taking the deposition, after being served with a
proper notice, or fails to serve answers to written interrogatories properly served, court may on motion and
notice: (a)Strike out all or any part of the pleading of that party (b) Dismiss the action / proceeding / part thereof
(c) Enter judgment by default against that party, (d) and ,in its discretion, order payment of reasonable
expenses and attorney’s fees544 but no expenses or fees are to be assessed against the Republic of the
Philippines. 545
RULE 30 – TRIAL
NOTICE OF TRIAL
1. Upon entry of a case in the trial calendar – the clerk shall notify the parties of the date of the trial in
such manner as to ensure receipt of the notice at least 5 days before such date. 546
MAY TRIAL BE POSTPONED / ADJOURNED
1. Courts may adjourn a trial from day to day, and to any stated time – as the expeditious and convenient
transaction of business may require – but it shall have no power to adjourn for a longer period than one month
for each adjournment, nor more than three months in all, except when authorized in writing by the Court
Administrator of the Supreme Court.547
IF MOTION TO POSTPONE IS DUE TO ABSENCE OF EVIDENCE
1. Can only be granted upon affidavit showing the materiality / relevancy of the evidence and that due
diligence has been used to procure it, BUT, if the adverse party admits the facts to be given in evidence, or even
if he objects or reserves the right to object to their admissibility, the trial shall not be postponed. 548
IF DUE TO ILLNESS OF PARTY OR COUNSEL
1. May be granted, if it appears upon affidavit or sworn certification that the presence of party / counsel at
the trial is indispensable and that character of illness is such as to render non-appearance excusable. 549
WHAT IS THE ORDER OF TRIAL
1. Subject to Section 2, Rule 31 on separate trials and unless the court orders for special reasons, it shall be
limited to the issues stated in the pre-trial order and shall proceed as follows:
1.1 Plaintiff adduces evidence in support of his complaint
1.2 Defendant adduces evidence in support of his defense, counterclaim, crossclaim and 3 rd party
complaint
1.3 Third party defendant, if any, shall adduce evidence of his defense, counterclaim, crossclaim
and 4th party complaint.
1.4 Fourth party, and so forth, if any, shall adduce evidence of the material facts pleaded by them.
1.5 Parties against whom any counterclaim/ cross-claim has been pleaded shall adduce evidence in
support of their defense, in the order prescribed by the Court.
1.6 The parties may then respectively adduce rebutting evidence, unless the Court, for good
reasons and in the furtherance of justice, permits them to adduce evidence upon their original
case.
543
544
545
546
547
548
549
67
1.7 Upon admission of the evidence, the case shall be deemed submitted for decision, unless the
court directs the parties to argue or submit memoranda or any further pleadings.
TRIAL OF ISSUES
1. The trial of issues shall be limited to the issues stated in the pre-trial order, unless the court directs
otherwise for special reasons.
2. If several defendants or 3rd party defendants and so forth, having separate defenses appear by different
counsel, the court shall determine the relative order of presentation of their evidence. 550
MAY THERE BE AN AGREEMENT UPON THE FACTS AND SUBMISSION OF THE CASE FOR JUDGMENT
WITHOUT INTRODUCTION OF EVIDENCE
1. Yes, provided that the agreement be in writing.
2. If the parties agree only on some facts, trial shall be held as to the disputed facts 551
3. There cannot be a judgment based on stipulation of facts in legal separation, annulment of marriage
and declaration of nullity.
3.1 Note that in the same cases neither is there judgment by default, judgment on the pleadings,
summary judgment, judgment upon confession, judgment upon compromise, judgment based
on stipulation of facts.
WHAT ARE TO BE MADE OF RECORD
1. All proceedings, including any statement made by the judge with reference to the case, or to any of the
parties, witnesses or counsel shall be made of record in the stenographic notes. 552
WHO IS TO RECEIVE EVIDENCE
1. The judge is required to personally receive the evidence. But in default / ex-parte or when parties agree
in writing it may be delegated to the clerk of court who should be member of the bar though he has no power to
resolve objections to any question or admission of exhibits . Such shall be resolved by the court upon
submission of his report and transcripts within 10 days from termination of the hearing. 553
CAN ACTIONS BE SUSPENDED
1. Actions may be suspended as governed by the provisions of the Civil Code 554: (a) if willingness to discuss
a compromise is expressed by one or both parties (b) if it appears that one of the parties, before the
commencement of an action / proceeding, offered to discuss a possible compromise but the other party refused
the offer.555
RULE 31 – CONSOLIDATION OR SEVERANCE
WHEN CAN CONSOLIDATION TAKE PLACE
1. When actions involving a common question of law or fact are pending before the court, it may order
joint hearing or trial of any or all the matters in issue in the actions, it may order all actions consolidated. Then it
may make such orders concerning proceedings therein as may tend to avoid unnecessary costs / delay 556
2. The rationale for consolidation is to have all cases, which are intimately related, acted upon by one
branch of the court to avoid the possibility of conflicting decisions being rendered. 557
MAY THERE BE CONSOLIDATION ALTHOUGH ACTIONS ARE PENDING IN DIFFERENT COURTS
550
551
552
553
554
555
Civil Code, Article 2030
556
557
Philippine Airlines, Inc. vs. Zamora, 564 SCRA 50
68
1. Yes, involving the consolidation of civil action with criminal action, if filed before criminal action and
trial has not yet commenced.558
PURPOSE OF ALLOWING CONSOLIDATION
1. The purpose of allowing consolidation is to avoid multiplicity of suits, guard against oppression or
abuse, prevent delay, clearing of dockets, simplify the work of trial court, save unnecessary expenses / costs.
2. Note though that if actions involve a common question of law or fact because they arise from a single
cause of action between the same parties, the remedy is dismissal on litis pendentia, not consolidation.
3. A petition for the issuance of a writ of possession cannot be consolidated with an action to annul the
foreclosure notwithstanding the argument that the former case would become groundless as the latter case is
contesting the presumed ownership on which the petition for a writ of possession is based. Strictly speaking the
petition for the issuance of a writ of possession is not a judicial process, it is a non-litigious process that is
summary in nature. In contract, the action for annulment of foreclosure is an ordinary civil action and is
adversarial in character. The right of the petitioner in the writ of possession case will be prejudiced by the
consolidation with the annulment of foreclosure case. 559
WHEN CAN SEPARATION TAKE PLACE AND WHAT DOES IT COVER
1. Covers any claim, cross-claim, counterclaim or third party claim or any separate issue or of any number
of claims, cross-claims, counter claims, third party complaints, or issues in furtherance of convenience or to
avoid prejudice.560
RULE 32 – TRIAL BY COMMISSIONER
WHEN RESORTED TO
1. Trial by commissioners may be resorted to upon order of the court, which will then refer any or all issues
when:
1.1 Parties agree in writing and the commissioner may either be agreed upon or appointed by the
Court
1.2 When parties do not consent, on court’s own motion or upon application of either party, if may
be directed in the following: (a) Trial of an issue of fact requires examination of a long account
(b) The taking of an account is necessary for the information of the court before judgment or for
carrying judgment / or order into effect (c) A question of fact, other than upon the pleadings
arises upon motion or otherwise, in any stage of the case, or for carrying a judgment or order
into effect.561
2. The term commissioner may include a referee, an auditor or examiner 562
3. A commissioner is designated or authorized by an order of reference which will specify or limit his
powers, direct him to report only on or upon particular issues or do or perform particular acts, receive or report
evidence only and fix date for beginning / closing hearings and for the filing of the report.
3.1 He shall then have and exercise the power to: (a) Regulate the proceeding before him (b) Do all
acts and take all measures necessary or proper for the efficient performance of his duties upon
the order (c)Issue subpoenas (d) Swear witnesses (e) Unless otherwise provided, rule upon the
admissibility of evidence563
3.2 The trial shall then proceed before the commissioner/s in all respects as it would be held in
court.
PROCEDURE
558
Section 1, Rule 111 of the Rules on Criminal Procedure
559
PNB vs. Gotesco, GR 183211, June 5, 2009
560
561
562
563
69
1. Commissioner takes oath and be sworn to a faithful and honest performance of his duties 564
2. Upon receipt of the Order of Reference, and unless otherwise stipulated he shall forthwith set a time
and place for the first meeting of the parties and counsel within 10 days after the date of the order of reference,
and shall notify parties / counsel565
3. If parties / counsel fail to appear, he may proceed ex-parte or in his discretion, adjourn the proceedings,
giving notice to the absent party or counsel of the adjournment 566
4. He shall avoid delay as he is duty bound to proceed with all reasonable diligence. Either party on notice
to other parties and the commissioner may apply for a court order to expedite proceedings / report 567
5. If witness refuses to obey a subpoena or give evidence. It shall constitute contempt of the appointing
court 568
6. Upon completion of trial / hearing / proceeding – he shall file with the court has report in writing upon
the matters submitted to him by the order of reference. When powers are not specified or limited, he shall set
forth his findings of fact and conclusions of law in his report. He shall also attach all exhibits, affidavits,
depositions, paper and transcripts of the testimonial evidence given 569
7. Notice is then given by the clerk to the parties of the filing of the report, they shall then be allowed 10
days within which to signify objections to the findings in the report, is so desired.
7.1 Objections to the report based on grounds available to the parties during the proceedings
before the commissioner, other than as to the findings / conclusions, shall not be considered
unless made before the commissioner.570
8. Upon expiration of the period, the report shall be set for hearing, after which the court shall issue an
order – adopting, modifying, or rejecting the report in whole or in part or recommitting it with instructions or
requiring the parties to present further evidence to the commissioner 571
9. If the parties stipulate that the commissioner’s findings of facts shall be final, only questions of law shall
be thereafter considered. 572
9.1 Note that the findings of the commissioner are merely advisory and are not absolutely binding
upon the court.573
EXPENSES / COMPENSATION
1. They shall be reasonable as warranted by the circumstances and are to be taxed as costs against the
defeated party or apportioned as justice requires 574
WHEN REFERENCE TO COMMISSIONERS IS REQUIRED BY THE RULES
1. Reference to commissioners is required in the following cases: (a) Expropriation under Rule 67 to
determine just compensation (b) Partition under Rule 69, when parties cannot agree as to the manner of
partition.
RULE 33 – DEMURRER TO THE EVIDENCE
WHO FILES AND WHEN FILED
1. The defendant is the party who may move for the dismissal of the action after presentation by the
plaintiff of evidence on the ground that upon the facts and the law, plaintiff has shown no right to relief. 575
564
565
566
567
568
569
570
571
572
573
Eternal Gardens Memorial Park Corporation v Court of Appeals, 282 SCRA 553
574
575
70
EFFECTS OF FILING AND RESOLUTION
1. If granted, the action is dismissed, but if appealed and reversed, he loses his right to prevent evidence
and judgment is rendered in favor of the plaintiff 576
1.1 An order dismissing a case for insufficiency of evidence is a judgment on the merits, it is
imperative that it be a reasoned decision and distinctly stating therein the facts and the law on
which it is based.577
2. If denied, defendant may present his evidence as it does not constitute a waiver of right to do so.
2.1 The court should set a date for reception of the evidence of the defendant. It should not
proceed to grant the plaintiff relief. 578
2.2 The order of denial is an interlocutory order and is therefore not appealable.
2.3 It may however be questioned by certiorari in case of grave abuse of discretion. 579
3. It is an error on the part of the appellate court to order a remand, if dismissal is elevated to it on appeal,
it must decide on the evidence adduced by the plaintiff. 580
DISTINGUISHED FROM A MOTION TO DISMISS
1. A motion to dismiss is usually filed before service and filing of an answer, while a demurrer is made after
the plaintiff rests his case.
2. A motion to dismiss is based on several grounds, while a demurrer is based only on the failure of the
plaintiff to show a right to relief.
3. A denial of the motion to dismiss will require the subsequent filing of an answer, while the denial of a
demurrer requires the subsequent presentation of evidence.
DISTINGUISHED FROM CRIMINAL CASES
1. In both civil and criminal actions, the basis for both is the insufficiency of evidence.
2. In a civil action, dismissal by demurrer is by motion only, while in a criminal action, dismissal by
demurrer is upon the court’s initiative or motion giving the prosecution an opportunity to be heard.
3. In a civil action, leave is not required prior to filing, while in a criminal action, leave may / may not be
obtained. If obtained, there is no waiver of right to present evidence. If denied and if there is no leave, it is a
waiver
4. In a civil action, if granted, plaintiff’s remedy is appeal, while in a criminal action, if granted, there is no
appeal as such will constitute double jeopardy.
RULE 34 – JUDGMENT ON THE PLEADINGS
JUDGMENT ON THE PLEADINGS
1. Can be had if the answer fails to tender an issue or otherwise admits the material allegations of the
complaint 581
1.1 There is no motu propio rendition of judgment as it is always by motion.

576
Quebral v Court of Appeals, 252 SCRA 353
577
Nicos Industrial Corporation v Court of Appeals, 206 SCRA 127
578
Northwest Airlines v. Court of Appeals, 284 SCRA 408
579
Katigbak v. Sandiganbayan, 405 SCRA 558
580
Radiowealth Finance Company v Del Rosario, 335 SCRA 288
581
71
2. An answer fails to tender an issue when it fails to comply with the requirements of specific denial or is
deemed to have admitted the allegations in the complaint .582
2.1 An answer admits the material allegations when it expressly confesses the truthfulness thereof
or where it omits to deal with them all.
3. Note that when an answer raises factual issues involving damages, it is not proper to render judgment
on the pleadings as presentation of evidence is required.
WHO MAY MOVE FOR JUDGMENT ON THE PLEADINGS
1. Only the plaintiff in original complaint, or of the counter-claim, or of the cross claim, or of the third
party complaint may so move for judgment on the pleadings.
2. When a party moves for a judgment on the pleadings, and the same is granted by the trial court, he
hereby waives presentation of evidence.583
WHEN NOT ALLOWED
1. Judgment on the pleadings is not allowed in cases of: (a) Declaration of nullity of marriage (b)
Annulment of marriage (c) Legal separation.
1.1 In these cases, the plaintiff is required to prove the material facts regardless of whether the
answer tenders an issue or not.
RULE 35 – SUMMARY JUDGMENT
WHAT IS SUMMARY JUDGMENT
1. Is a devise for weeding out sham claims or defenses at an early stage of the litigation thereby avoiding
the expense / loss of time involved in a trial.
1.1 Its very object is to separate what is formal or pretended in denial or averment from what is
genuine and substantial so that only the latter may subject a suitor to the burden of trial.
1.2 This is also known as Accelerated Judgment584
WHO MAY MOVE FOR SUMMARY JUDGMENT AND WHEN
1. Either plaintiff or defendant may move for a summary judgment:
2. If plaintiff or a claimant in the original complaint / counterclaim / cross-claim, he may file the motion at
any time after the pleading in answer to his claim has been filed on the ground that although there is an
apparent issue, the same is sham or false.585 .
2.1 Example: Answer admits obligation but states that the amount is wrong or less than that
claimed. If plaintiff has proof that there is written acknowledgment that as of a date or period
prior to that of the filing, the defendant was aware of the true amount, there can be summary
judgment.
3. If movant is the defending party, he may file the motion at any time before or after he files his answer
on the ground that plaintiff’s claim against him is sham or false 586
3.1 An issue is sham or false if it is not genuine. Genuine means that the issue of fact is one that
calls for the presentation of evidence.587
4. In either case, the motion must be filed along with supporting affidavits, depositions or admissions.
582
Supra, Sections 8,9 and 11, Rule 8
583
Alfarero v. Sevilla, 411 SCRA 387
584
Monterey Foods Corporation v Eserjose, 410 SCRA 627, Puyat v Zabarte, 352 SCRA 738
585
586
587
Excelsa Industries v Court of Appeals, 247 SCRA 560
72
5. The procedure for the filing and resolution of a motion for summary judgment is as follows:
5.1 Plaintiff/Defendant serves on the defendant/plaintiff a copy of the motion at least 10 days
before the date of hearing specified in the motion.
5.2 The defendant/plaintiff may serve opposing affidavits, depositions or admissions at least 3 days
before the date of the hearing.
5.3 Court hears the motion.
6. If after hearing, it finds that the motion filed by plaintiff justified, thus there is no genuine issue as to
any material fact, it will render summary judgment for the plaintiff.
6.1 If not, it will deny, set the case for pre-trial, then trial.
6.2 If filed by the defendant and is justified, the complaint is dismissed, otherwise the case
proceeds with the filing of answer or pre-trial is set and conducted.
FORM OF AFFIDAVITS / SUPPORTING DOCUMENTS
1. They shall be made on personal knowledge, setting forth such facts as would be admissible in evidence
and shall show affirmatively that the affiant is competent to testify to the matters stated therein.
1.1 Certified copies of all papers / parts thereof shall be attached and served therewith. 588
2. If affidavits have been determined to the satisfaction of the court that they are presented in bad faith or
solely for the purpose of delay, the Court may forthwith order the offending party to pay reasonable expenses
which may have been incurred by the other party, including attorney’s fees. It may also find / adjudge, after
hearing, that attending party / counsel are guilty of contempt. 589
EFFECT OF THE RENDITION OF SUMMARY JUDGMENT
1. The aggrieved party may appeal the summary judgment as such is final judgment as defined by Section
1, Rule 41.
2. If denied, it is not appealable as order of denial of motion is interlocutory.
2.1 Certiorari may lie if the rendering of a summary judgment is clear, plain and patent but the
court refuses or declines to render it.
WHEN CAN THERE BE A PARTIAL SUMMARY JUDGMENT
1. There can be a partial summary judgment when the Court finds that a judgment cannot be rendered
upon the whole case or for all the reliefs because there are controverted facts which require trial.
1.1 A partial summary judgment is not appealable and shall be taken together with the judgment
that a trial court will render after trial. Thus, it cannot be executed. 590
DISTINGUISHED FROM JUDGMENT ON THE PLEADINGS
1. Summary judgment is distinguished from a judgment on the pleadings as follows:
a) A Judgment on the Pleadings is available when there is no genuine issue as answer fails to tender an
issue or otherwise admits material allegations, while Summary Judgment is available when there is
an apparent issue but is a sham, fictitious or false
b) A Judgment on the Pleadings is based exclusively on the pleadings (complaint / answer), while
Summary Judgment is based not only on pleadings but also on affidavits, depositions and
admissions, showing that except as to damages there is no genuine issue
588
589
590
73
c) A Judgment on the Pleadings can be filed only after an answer has been filed, while in Summary
Judgment, there may or may not be an answer
d) A Judgment on the Pleadings can only be had by the plaintiff, while in Summary Judgment, either
plaintiff or defendant may move for it
e) A motion for Judgment on the Pleadings is required to be served on adverse party at least 3 days
prior to the hearing, while a motion for Summary Judgment requires service at least 10 days prior to
the hearing
2. Judgment on the Pleadings is a judgment on facts as pleaded, Summary Judgment is a judgment as

summarily proven by affidavits, depositions, admissions. If an answer tenders an issue, there can be no
Judgment on the Pleadings but there can be Summary Judgment, if issue/s is later shown to be false, sham or
fictitious.
RULE 36 – JUDGMENTS, FINAL ORDERS, AND ENTRY THEREOF
WHAT IS A JUDGMENT
1. A judgment is a final ruling by a court of competent jurisdiction regarding the rights or other matters
submitted to it in an action or proceeding. 591
2. It is the court’s official and final consideration and determination of the rights and obligations of the
592
parties.
REQUISITES OF A JUDGMENT/FINAL ORDER
1. The requisites of a judgment or final order are: (a) It must be in writing (b) It must be personally and
directly prepared by the judge (c) It must state clearly and distinctly the facts and the law on which it is
based (d) It must be signed by the judge (e) It must be filed with the clerk of court. 593
1.1 Note that a judge who has been reassigned can pen a decision as long he is still an incumbent
judge.594
1.2 A decision penned by the judge after his retirement cannot be validly promulgated and cannot
acquire binding effect. In the like manner, a decision penned during his incumbency cannot be
promulgated after his retirement. When a judge retires, all his authority to decide a case and
write, sign and promulgate the decision has also retired with him. 595
1.3 It is not necessary that the judge who pens the decision is the one who heard and tried the
case.596
2. A decision that does not state clearly and distinctly the facts and law on which it is based leaves the
parties in the dark as to how it was reached and is especially prejudicial to the losing party who is unable to
pinpoint errors for review upon an appeal. A decision without anything to support it is a patent nullity.597A void
judgment has no legal and binding effect, force or efficacy for any purpose. 598
2.1 There is no need though for a statement of all the facts and evidence presented. What is
required is that the factual and legal basis be distinctly and clearly set forth. 599
2.2 The rule is also applicable to the denials of a petition for review or of a motion for
reconsideration600 and the resolution of a motion to dismiss. 601
591
Macahilig v. Magalit, 344 SCRA 838
592
46 Am Jur 2d, Judgments
593
594
ABC Davao Auto Supply v Court of Appeals, GR 113296, January 16, 1998
595
Nazareno v Court of Appeals, 378 SCRA 28
596
Serna v Court of Appeals, 308 SCRA 527, Citibank NA v Sabeniano, GR 156132, October 12, 2006
597
Miguel v JCT Group Inc, 453 SCRA 529
598
Guevarra v Sandiganbayan, 454 SCRA 372
599
Chan v Court of Appeals, 457 SCRA 502
600
Section 14, Article VIII, Constitution
601
Barrazona v RTC of Baguio, GR No. 154282, April 7, 2006
74
2.3. Resolutions of the Supreme Court denying petitions for review of the Court of Appeals are not
decisions within the purview of the Constitution 602, neither are minute resolutions. 603 When such
is issued, it is understood that the challenged decision or order, together with the findings of
fact and legal conclusions are deemed sustained. 604
3. A Memorandum Decision is one which adopts by references findings of facts and conclusions of law
contained in the decision of an inferior tribunal. Note that this does not violate the rule as to statement of the
facts and law. This kind of a decision can only be rendered by an appellate court.
4. A Sin Perjuicio Judgment is one which is without a statement of facts and is to be supplemented later by
the final judgment. Such a judgment is void. It contains only the dispositive portion and reserves the making of
findings in a subsequent judgment. This shall have no effect. 605
5. A conditional judgment is one the effectivity of which depends on the occurrence or non-occurrence of
an event. Such a judgment is void because of the absence of a disposition and cannot be executed. 606
5.1 Where the judgment is for a sum of money to be determined by another, it is an incomplete judgment
which cannot be executed.607
PARTS OF A JUDGMENT
1. A judgment has two parts: (a) body of the decision or the ratio decidendi, and (b) the dispositive portion
or the fallo. It is the latter that is subject to execution as it should settle and declare the rights and obligations of
the party, finally, definitively, and authoritatively. 608
1.1 In case of conflict, the fallo prevails, but if the inevitable conclusion from the body is so clear
that there is a mistake in the dispositive portion, the body will prevail. 609
1.2 An ambiguity in the judgment is best addressed by a motion for a clarificatory judgment
WHEN IS JUDGMENT RENDERED
1. Ordinarily after trial, except in judgment on the pleadings, summary judgment, judgment by
compromise, judgment based on stipulation of facts, judgment upon confession, order of dismissal in instances
when it considered as an adjudication on the merits, judgment in cases covered by the Rules of Summary
Procedure.
1.1 The periods for a court to render judgment is within 24 months from date of submission for
decision for the Supreme Court, within 12 months for lower collegiate courts, within 3 months
for all other lower courts.610
1.2 Extensions may be obtained from the Supreme Court on account of a heavy caseload or other
reasonable excuse. Without any extension, a delay in disposition is tantamount to gross
inefficiency.611
2. It is the filing of the judgment or final order with the clerk of court that constitutes rendition of
judgment, not the date of the writing of the decision or judgment, nor the signing thereof or even promulgation
thereof.612
DUTY OF THE CLERK OF COURT WHEN JUDGMENT BECOMES FINAL
1. If no appeal or motion for reconsideration or new trial is brought within the time provided, the
judgment / final order shall forthwith be entered by the clerk in the Book of Entries of Judgment.
602
Novino v Court of Appeals, 8 SCRA 279
603
Commercial Union Assurance,Ltd. V Lepanto Consolidated Mining Company, 86 SCRA 79
604
Complaint of Rogelio Arrienda v Justices Puno, et al, 460 SCRA 1
605
Dizon v Lopez, AM-RTJ-96-1388, 278 SCRA 483
606
Pascua v Simeon, 161 SCRA 1, Cu Unjieng v Mabalacat Sugar Company, 70 Phil 384
607
DBP v. Tanada, 56 SCRA 470
608
LRTA v Court of Appeals, 444 SCRA 125
609
Poland Industrial Limited v. NDC, 467 SCRA 500
610
Article VIII, Section 15, Constitution
611
Arap v Mustafa, A.M. No. SCC-017, March 12, 2002
612
Castro v Malazo, 99 SCRA 164
75
1.1 The date of finality shall be deemed the date of entry and shall contain the dispositive portion
and signed by the clerk which a certificate that such judgment / final order has become final and
executory.613
1.2 Note that date of entry retroacts to date of finality. Hence, both occur simultaneously by
operation of law.
2. Judgments that are final and executory can be corrected if they pertain to: (a) clerical errors (b) nunc pro
tunc, meaning then for now, entries or those intended to show what the judicial action was but was then
omitted from the records614 (c) whenever circumstances transpire after finality rendering its execution unjust 615
and (d) in cases of special and exceptional nature as when facts and circumstances transpire which render
execution impossible or unjust, when necessary to harmonize the disposition with prevailing circumstances. 616
3. Correction or amendment is also allowed if the purpose is to clarify an ambiguity caused by an omission
or mistake, judgment / final order.
4. A compromise after finality of a judgment is allowed. The basis of the allowance is the principle of
novation, which is a mode of extinguishing an obligation. 617
5. Petition for extraordinary relief- GR 167651, San Pablo vs. marina May 10, 2005
FOR WHOM JUDGMENTS MAY BE RENDERED
1. They may be given for or against one or more several plaintiffs or for or against one or more several
defendants.
2. Courts, when justice demands can require parties on each side to file adversary proceedings as between
themselves to determine their ultimate rights / obligations. 618
3. In an action against several defendants, the courts if proper may render judgment against one or more,
leaving the action to proceed against the others. 619 This is a several judgment. Example: Judgment against a
surety for its admitted liability.
4. Separate judgments may be rendered when more than one claim for relief is presented, the court at
any stage – upon determination of the issues material to a particular claim and all counter claims arising
therefrom – may render a separate judgment disposing of the claim and proceeding with the others but, it may
stay execution or enforcement until rendition of subsequent judgment/s and may prescribe such conditions to
secure benefit thereof to the party in whose favor the judgment is rendered. 620 An example is when causes of
action have been joined
5. Judgment against entity without juridical personality it shall set forth the individual names / proper
names if known of persons composing it.621
RULE 37 – NEW TRIAL OR RECONSIDERATION
WHEN FILED
1. A motion for new trial or reconsideration may be filed within the period for taking an appeal. 622
GROUNDS FOR A MOTION FOR NEW TRIAL
1. Fraud, Accident, Mistake, Excusable Negligence which ordinary prudence could not have guarded
against and by reason of which the aggrieved party was probably impaired in his rights.
613
614
Briones v Vasquez, 450 SCRA 482
615
Siy v NLRC, GR No. 158971, January 25, 2006
616
Industrial Timber Corporation vs. Ababon, GR No. 164518, January 25, 2006
617
Magbanua v. Uy, 458 SCRA 185
618
619
620
621
622
76
1.1 Fraud should be extrinsic or collateral, which refers to such acts that prevent a party from
having a trial / presenting his case in court. It refers to all kinds of deceptions, whether through
insidious machination, manipulation or concealment or misrepresentation that leads another
party to error.623 Examples are: false promise to compromise or connivance of lawyer with
adverse party. This does not include intrinsic fraud or acts of a party at trial that prevents fair
determination. Examples are: perjury, falsification.
1.2 Accident is a fortuitous event, circumstance, or happening; an event happening without any
human agency or if happening wholly or partly through huma n agency, is an event which under
the circumstances is unusual or unexpected by the person to whom it happens. 624 Examples are
sickness of a party, lack of notice, when the same is sent to another address.
1.3 Mistake refers to some unintentional act, omission, or error arising from ignorance, surprise,
imposition, or misplaced confidence. It pertains generally to mistake of fact, not of
law.625Examples are failure to answer / act because he believed it unnecessary because of a
compromise or other document.
1.4 Excusable Negligence626 is an excusable omission to do something which a reasonable man,

guided by those considerations which ordinarily regulate the conduct of human affiants, would
do; or the reasonable doing of something which a prudent or reasonable man would not do. The
failure here is really that of the party or counsel, such as a non submission on time because of
distance traveled.
2. Newly Discovered Evidence, which the aggrieved party could not with reasonable diligence, have
discovered or produced at the trial and which would probably alter the result.
2.1 Hence, the requisites are: (a)Evidence is discovered after trial (b)Such could not have been
discovered and produced at the trial with reasonable diligence (c) Evidence is material,
not cumulative, corroborative, or impeaching, and is of such weight that, if admitted, could
probably change the judgment.627
GROUNDS FOR MOTION FOR RECONSIDERATION
1. The grounds for a motion for reconsideration are: (a) Award of excessive damages (b)
Insufficiency of evidence to justify the decision or final order (c) Decision / final order is contrary to law
HOW FILED / CONTENTS
1. It shall be made in writing stating the ground/s, written notice of which shall be served by the movant
on the adverse party.
2. If the Motion for New Trial is based on Fraud, Accident, Mistake or Excusable Negligence, it should be
supported by affidavits of merit, which may be rebutted by affidavits.
2.1 The requirement of an affidavit is essential because obviously a new trial would be a waste of
the court’s time if the complaint turns out to be groundless or the defense ineffective. 628
3. If based on newly discovered evidence it should be supported by affidavits of the witnesses by whom
such evidence is expected to be given or by duly authenticated documents which are proposed to be introduced
as evidence.
4. If it is a motion for reconsideration, it should point out specifically the finding / conclusions which are
not supported by the evidence / contrary to law, making express reference to testimonial / documentary
evidence or provisions alleged to be contrary to such findings or conclusions.
4.1 If not, the motion is considered a pro-forma motion. It does not toll the reglementary period of
appeal.629
623
Maestrado v Court of Appeals, 327 SCRA 678
624
Jarco Marketing v Court of Appeals, 321 SCRA 375
625
Agan v Heirs of Sps. Andres and Diosdada Nueva, 418 SCRA 421
626
Mckee v Intermediate Appellate Court, 211 SCRA 517
627
Marikina Valley Development Corporation v Court of Appeals, 294 SCRA 273
628
Yap v Tanada, 163 SCRA 464
629
Marina Properties Corporation v Court of Appeals, 294 SCRA 273, Cledera v Sarmiento, 39 SCRA 552
77
4.2 Note also that such a motion without notice of hearing and proof of service has the same
effect630
IF A MOTION FOR NEW TRIAL IS FILED, WHAT ENSUES
1. Court may either deny or set aside the judgment or final order and grant a new trial 631
1.1 If denied, another motion may be filed, if it is based on a ground not existing nor available,
when the first motion has filed.632
1.2 Note that a motion for new trial is an omnibus motion, thus it should include all grounds then
available as those not included are deemed waived.
2. IF granted, the effects are (a) original order / judgment is vacated (b) the action shall stand trial de novo
(c) recorded evidence, insofar as material or competent to establish the issues, shall be used at the new trial
without need to for it to retaken.633
IF MOTION FOR RECONSIDERATION IS FILED – WHAT ENSUES
1. Court may deny or amend its judgment / final order if it finds that excessive damages are awarded, or
that it is contrary to the evidence or the law634
2. If denied, no second motion for reconsideration is allowed of the judgment or final order.
2.1 The filing of a second motion for reconsideration is a prohibited pleading. Thus it does not toll
the running of the reglementary period of appeal. 635
3. Note though that if the subject is not a judgment / final order or is an interlocutory order which does not
dispose of a case completely but leaves something more to be done upon its merits, a 2 nd motion for
reconsideration may be allowed.
OTHER MATTERS PERTAINING TO SUBJECT MOTIONS
1. The periods for resolving the motions are: (a) MTC / RTC within 30 days from the time it is submitted for
resolution636 (b) Court of Appeals within 60 days after if declares it submitted for resolution (c) Supreme Cour-
no period is prescribed
2. The denial of both motions is not appealable, it is the judgment or final order that is appealable. 637
3. A motion for reconsideration is a pre-condition to an appeal in cases of (a) habeas corpus in relation to
custody of minors (b) annulment of marriage (c) declaration of nullity of marriage, (d) legal separation.
RULE 38 – RELIEF FROM JUDGMENT, ORDERS OR OTHER PROCEEDINGS
GROUNDS UPON WHICH IT IS TO BE BASED
1. Judgment / final order is entered, or proceeding is thereafter taken against him through fraud, accident,
mistake or excusable negligence.
1.1 These grounds likewise support the petition when there is a failure to take an appeal.
2. The object to the petition is that the judgment, order, or proceeding be set aside or that the appeal be
given due course.
2.1 The petition must be verified.638
630
Firme v Reyes, 92 SCRA 713
631
632
633
634
635
Hongria v Hongria-Juarde, 425 SCRA 504
636
637
Barnes v Reyes, 411 SCRA 538
638
78
3. The other ways by which a final and executory judgment may be set aside is by Petition for Certiorari
under Rule 65 and by Annulment of Judgment under Rule 47. 639
4. The petition is premised on equity. It should therefore be granted only in exceptional cases.
4.1 Petitioner must be able to prove fraud, accident, mistake or excusable negligence and the
existence of a good and substantial cause of action or defense, as the case may be. 640
5. It cannot be availed of if there is another remedy in law 641and is available only against a final and
executory judgment.642
6. Note though that if the case is covered by the Rules on Summary Procedure, a petition for relief is a
prohibited pleading.643
WHEN AND WHERE FILED
1. It is to be filed within 60 days after he learns of the judgment final order / proceeding but not more than
6 month after such judgment / final order was entered or such proceeding taken. 644
1.1 A few days after expiration of the 60 day period is not entirely fatal as long as it is still filed
within the 6 months period.645
1.2 But if it is a judgment by compromise, the 6 months period runs from date of rendition, because
a judgment upon a compromise is immediately executory and considered to have been entered
on the date it was approved by the trial court.646
1.3 The 6 months period is reckoned from entry of judgment or final order, not from its rendition. 647
The phrase “from learning” means from notice of judgment or final order 648
2. It is to be filed in the same case and in the same court where the judgment / final order was entered or
where proceeding is taken.
2.1 A petition for relief from judgment is not an available remedy in the Supreme Court nor in the
Court of Appeals. This is the rule notwithstanding the statement that a party in any court may
file a petition. The phrase applies only to a Municipal Trial Court or a Regional Trial Court. 649
PROCEDURE
1. Filing of verified petition accompanied by affidavits showing the ground and the facts showing the
petitioner’s good and substantial cause of action or defense, as the case may be.
2. Order issued requiring adverse party to answer within 15 days from receipt 650
2.1 If warranted a writ of preliminary Injunction may be issued as may be necessary for the
preservation of the rights of the parties, upon the filing by the petitioner of a bond to indemnify
the respondent for all damages and costs incurred if the petition is dismissed or the petitioner
fails on the trial on the merits.
2.2 However, such injunction shall not operate to discharge or extinguish any lien which the
adverse party may have acquired upon property of the petitioner. 651
3. Adverse party answers, but if he does not, he cannot be declared in default.

639
Arcelona v Court of Appeals, 280 SCRA 20
640
Torno v Intermediate Appellate Court, 166 SCRA 742
641
Alquesa v Cavada, Jr. 3 SCRA 428
642
Valencia v Court of Appeals, 352 SCRA 72
643
Sta Lucia Realty and Development Corporation v Court of Appeals, 343 SCRA 214
644
645
Mago v Court of Appeals, 303 SCRA 600
646
Manipor v Ricafort, 407 SCRA 298
647
Bayog v Natino, 258 SCRA 378
648
Prudence Realty and Development Corporation v Court of Appeals, 231 SCRA 379
649
Pucson Jr. vs. MRM Philippines, Inc. G.R. No. 182718, September 26, 2008
650
651
79
4. Court hears and may grant relief if the allegations are true or deny if not true.
4.1 If granted, the assailed final order / judgment / proceeding is set aside and proceedings taken as
if a timely motion for new trial has been granted. 652 There are in effect two hearings: the first is
as to the merits of the petition, the second is as the merits of the principal case.
4.2 If denied, the order is not appealable 653 but may be subject of certiorari under Rule 65.
5. Court hears the case as if a timely motion for new trial or reconsideration has granted.
5.1 If the subject is denial of an appeal, the lower court shall be required to give due course to the
appeal and elevate the records as if a timely and proper appeal has been made. 654
6. Judgment is rendered and is appealable
DISTINGUISHED FROM A MOTION FOR NEW TRIAL
1. They are distinguished as follows:
a) a motion for new trial is filed before judgment becomes final, while a petition for relies if filed after a
judgment becomes final
b) a motion for new trial applies to judgments / final orders, while a petition for relief includes proceedings
c) the grounds for a motion for new trial includes newly discovered evidence, while a petition for relief is
limited to FAME
d) a motion for new trial is filed within the period for perfecting an appeal, while a petition for relief is filed
within 60 days from knowledge but within 6 months from entry of judgment
e) a motion for new trial if denied allows an appeal, while a petition for relief from judgment does not
allow an appeal
f) a motion for new trial is a legal remedy, while a petition for relief is a remedy in equity
g) a motion for new trial requires no verification, while a petition for relief needs to be verified.
RULE 39 – EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS
EXECUTION DEFINED
1. It is the remedy afforded for the satisfaction of a judgment. 655It is the fruit and end of a suit.656
TWO KINDS OF EXECUTION
1. Compulsory Execution is one which issues as a matter of right, on motion, upon a judgment or order
that disposes of the action or proceeding upon expiration of the period to appeal, if no appeal is taken or is
perfected.
1.1 It also issues when appeal is duly perfected and finally resolved.
1.2 It may be applied for in the court of origin, on motion of judgment obligee – submitting
certified true copies of the judgment / final orders / orders sought to be enforced and entry
thereof, with notice to the adverse party. There is no need for return of records.
652
653
Supra, Section 1(b), Rule 41
654
655
Cagayan De Oro Coliseum v Court of Appeals, 320 SCRA 731
656
Ayo v Violago Isnani, 380 SCRA 543
80
1.3. It may also be applied for in the appellate court, on motion in the same case, when the interest
of justice so requires, direct the court of origin to issue the writ of execution in the event of the
refusal of the court of origin to issue the writ. 657
1.4. A motion is required as there may be questions / disputes as to finality or amounts to be stated
in the writ.
2. Discretionary Execution is one that is issued, on motion, of the prevailing party for good reasons. This is
also known as execution pending appeal or exceptional execution 658
2.1 It is filed in the trial court while it has jurisdiction over the case and is in possession of either the
original record or the record on appeal, as the case may be, at the time of the filing of the
motion.659 The court, may, in its discretion, order execution of judgment / final order even
before the expiration of the period to appeal.
2.2 If the trial court has lost jurisdiction, it is to be filed with the appellate court. A court loses
jurisdiction when there is perfected appeal and the period to appeal has expired. When a record
on appeal is required, it loses jurisdiction over the subject of the appeal upon perfection of the
appeal and expiration of the period to appeal.
2.3 The requisites of execution pending appeal are: (a) A motion by the prevailing party with notice
to the adverse party (b) There must be good reason for execution pending appeal (c) The
good reason must be stated in a special order. They must constitute superior circumstances
demanding urgency which will outweigh the injury or damage should the losing party secure a
reversal of the judgment on appeal.660
2.4 Examples of good reasons are: proven insolvency of the debtor 661 deterioration of the goods 662,
prevailing party’s inability to enjoy the decision, or it’s becoming illusory. In a recent case, old
age was found to be a good reason663
2.5 Stay of discretionary execution can be had upon approval by the proper court of a sufficient
supersedeas bond filed by the party against whom it is directed conditioned upon performance
of the judgment or final order allowed to be executed in case finally sustained in whole in part.
The bond may then be proceeded against on motion with notice to the surety 664 but, the mere
filing of a bond by a successful party allow execution pending appeal nor constitute good
ground.665
3. There are judgments not stayed by appeal such as judgments in injunction, to include a judgment
dissolving it666 receivership, accounting and support and such other judgments as are now or hereafter be
declared to be immediately executory, shall be enforceable upon their rendition, they shall not be stayed by an
appeal taken therefrom, unless otherwise ordered by the trial court.
3.1 If stayed, it shall be upon such terms as to bond or otherwise as may be considered proper for
the security / protection of the rights of the adverse party. On appeal though, the appellate
court may make an order – suspending, modifying, restoring or granting the injunction,
receivership, accounting or award of support. 667
3.2 Judgments in Forcible Entry / Illegal Detainer, if against the defendant are immediately
executory.668 The same is true of a judgment by compromise. 669
4. Separate, Several or Partial Judgments may executed under the same terms and conditions as
execution of a judgment / final order pending appeal. 670
657
658
659
Philippine Nails & Wires Corpoation v Malayan Insurance Company, 397 SCRA 431
660
Jaca v Davao Lumber Company, 113 SCRA 107
661
Lao v Mencias, 21 SCRA 1021
662
Intramuros Tennis Club, Inc. v Court of Appeals, 341 SCRA 90
663
FEBTC v Toh, Sr. 404 SCRA 590
664
665
International School v. Court of Appeals, 309 SCRA 474
666
ITC v PTA, 341 SCRA 90
667
668
669
Litton v Court of Appeals, 263 SCRA 40, AFPMBAI v Court of Appeals, 311 SCRA 143
670
Supra, Section 2 (b), Rule 39
81
4.1 If execution is granted by the judgment/final order is reversed on appeal or totally / partially or
annulled, on appeal or otherwise, the trial court, on motion, may issue orders of reparation or
restitution of damages as equity and justice may warrant under the circumstances. 671
4.2 The phrase “or otherwise” applies to reversal after a petition for relief has been granted under
Rule 38 and upon a favorable judgment in a petition for annulment of judgment under Rule 47
5. The Court of Appeals has no authority to issue immediate execution pending appeal of its own decision.
Discretionary execution applies only to a judgment or final order of the trial court. 672
WHAT ARE / OR MAY BE THE SUBJECT OF EXECUTION
1. Only judgments or final orders, or one which disposes of the whole subject matter or terminates a
particular proceeding or action, leaving nothing to be done but to enforce by execution that which has been
determined.
1.1 Distinguishing a “final judgment or order” from one which has become “final and executory”. A
final judgment is one that finally disposes of a case, leaving nothing more to be done by the
court in respect thereto. It is adjudication on the merits. Once rendered, the task of the court is
ended, as far deciding the controversy or determining rights and liabilities of litigants. Nothing
more is to be done but to await the parties’ next move, and ultimately, to cause execution of
the judgment once it becomes final and executory. 673
1.2 An exception for the need to await a final judgment or order is a judgment for support
pendente lite.674 The principal case in this instance still continues.
1.3 As a rule, after a judgment becomes final and executory, execution becomes a ministerial duty
of the court.675
1.4 Execution may however be denied when: (a) judgment has been complied with voluntarily 676(b)
When the judgment has been novated (c) When a petition for relief has been filed and a writ of
injunction is granted (d) When execution is sought more than five years from entry of judgment
(e) When execution is sought against exempt property (f) when the judgment is conditional
HOW CAN A FINAL JUDGMENT / ORDER BE ENFORCED
1. A final and executory judgment may be enforced by (a) By motion within 5 years from date of entry of
judgment (b) By action after the lapse of 5 years from date of entry of judgment but before barred by statute
of limitations, which is 10 years. This is known as “action to revive judgment”. 677
2. The revived judgment may also be enforced by motion within 5 years from date of entry, and thereafter
by action before it is barred by the statute of limitations. The purpose of the action is not to re-examine the
issues as the cause of action is the judgment itself and not the merits of the original action. 678
The proper venue of an action for revival of judgment depends on the determination of whether the present
action for revival is a real or personal action.679
3. Reconciling the actions upon a judgment under Article 1144 of the Civil Code, which prescribes in 10
years, there is no conflict as the Rules of Court refer to the manner of execution of the judgment.
3.1 Note that this is not applicable in land registration cases or other special proceedings but only
in civil actions.
671
672
Heirs of the late Justice JBL Reyes v Demetria, 374 SCRA 206
673
Denso Philippines, Incorporated v IAC, 148 SCRA 280
674
675
Fideldia v. Songcuan, 465 SCRA 218
676
Cunanan v Court of Appeals, 25 SCRA 263
677
678
Laperal v Ocampo, 410 SCRA 339
679
Infante v Aran Builders, 531 SCRA 123 (August 24, 2007)
82
4. There are however instances when judgment / final order can still be enforced by motion even after
lapse of 5 years when the delay is caused or occasioned by the actions of the judgment obligee or incurred for
his benefit or advantage.680
4.1 The liberal construction of the rule resulting in non inclusion of the period of delay occasioned
by the acts of the judgment obligee in the counting of the period was resorted to as strict
adherence to the letter of the law would result in absurdity and manifest injustice. 681
ISSUANCE, FORM, CONTENTS OF A WRIT OF EXECUTION
1. A writ of execution shall (a) Issue in the name of the Republic of the Philippines from the Court that
granted the judgment (b) State the name of court, case number, title, and dispositive portion (c) Require
the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms.
2. The terms or manner so provided is as follows: (a) execution be against property of judgment obligor, to
satisfy judgment with interest, out of his real or personal property (b) if against real or personal property, in
the hands of personal representatives, heirs, devisees, legatees, tenants trustees of the judgment obligor, to
satisfy the judgment, with interest, out of such property (c) if it be for sale of real / personal property, to sell it,
describing it, and apply the proceeds in conformity with the judgment, the material parts of which shall be
recited in the writ (d)if it be for delivery of the possession of real / personal property, to deliver the possession of
the same, describing it, to the party entitled thereto and to satisfy any costs, damages, rents, profits covered by
the judgment out of the personal property of the person against whom it was rendered, and if no sufficient
personal property be present, out of real property (e) in all cases, the writ shall specifically state the amount of
interest, costs damages, rents, profits due as of the date of issuance of the writ aside from the principal
obligation under judgment682
IF EXECUTION IS FOR SUMS OF MONEY
1. Immediate payment on demand from judgment obligor payable in cash of certified bank check payable
to the obligee or any form acceptable to him plus lawful fees to be turned over to the clerk of court of the court
that issued the writ.
1.1 If judgment obligee is not present to receive the amounts, it shall be delivered by judgment
obligor to the sheriff, turning in all amounts on the same day to the clerk of court or if not
practicable, to deposit in the nearest government depository bank of Regional Trial Court in the
locality, then arrangements are then made for remittance to clerk of court issuing the writ for
delivery to the judgment obligee. In no case shall the sheriff demand payment by check payable
to him.
2. Satisfaction by Levy, if not paid in cash, the sheriff shall levy on the properties of judgment obligor of
any kind / nature which may be disposed of for value and not otherwise exempt from execution.
2.1 The obligor is given the option to immediately choose which property or part thereof may be
levied upon to satisfy judgment. If not, sheriff shall levy on personal properties first, if any, then
on real properties if insufficient to answer for judgment.
2.2 Sheriff can only sell sufficient portion of the personal / real property levied upon when there is
more property then is sufficient to satisfy judgment, on so much of it to satisfy judgment is to
be sold. The conduct of the sale shall be the same as that of execution for the sale of property.
2.3 The effect of a levy is that it shall create a lien in favor of the judgment obligee over the right,
title and interest of the judgment obligor in such property at the time of levy, subject to liens /
encumbrances then existing. Hence, the effect then on 3 rd persons will be dependent on when
their liens / encumbrances, if any, was annotated or interposed. 683
2.4 If a levy is made beyond the period of 5 years from entry of judgment. The same is not valid as
lifetime or a writ of execution is 5 years from date of entry of judgment. 684
680
Camacho v Court of Appeals, 287 SCRA 611
681
Republic v Court of Appeals, 260 SCRA 344
682
683
684
83
3. Garnishment of debts and credits. The officer may levy on debts due the judgment obligor and other
credits. Examples: bank deposits, financial interests, royalties, commissions, and other personal property.
These are not capable of normal delivery and are in the possession and control of third parties.
3.1 Levy shall be made by serving notice on the person owing such debts or having in his possession
or control such credits to which the judgment obligor is entitled.
3.2 The garnishee, shall then make a written report to the court from service of notice stating
whether or not the judgment obligor has sufficient funds or credits to satisfy the judgment. The
garnished amount shall then be delivered directly to the judgment obligee within 10 working
days from service of notice on him requiring delivery, less lawful fees to be paid directly to the
Court.
3.3 If there are 2 or more garnishees, the judgment obligor shall have the right to indicate the
garnishee/s who shall deliver, otherwise it shall be the choice of the judgment obligee. 685
4. Writ is to be returned to the Court issuing it immediately after judgment has been satisfied in part or in
whole. If not / cannot be satisfied in full within 30 days from receipt of the writ, the officer shall report to the
court and state the reason therefor. Such writ will continue to be in effect during the period within which
judgment may be enforced by motion, the officer shall then make a report to the Court every 30 days on the
proceedings taken thereon until the judgment is satisfied in full or its effectivity expires. The returns / reports
shall set forth the proceedings taken, filed with the court and copies promptly furnished parties. 686
EXECUTION FOR SPECIFIC ACTS687
1. If conveyance, delivery of deeds or other specific acts are required, a party is directed to comply if he
fails to do so within the period specified, court may direct the act to be done at the cost of the disobedient
party, by some other person appointed by the court and when so done it is as if done by the disobedient party. If
it involves real / personal property located in the Philippines, the court in lieu of directing a conveyance thereof
may by an order divest title and vest it in others, which shall have the force and effect of a conveyance executed
in due form of law.
IF EXECUTION IS FOR THE SALE OF REAL/PERSONAL PROPERTY
1. The property is to be sold, describing it, and applying the proceeds in conformity with the judgment.
2. Notice must be given as follows: (a) Perishable property – posting of written notice(of time, place, sale
in 3 public places preferably in conspicuous areas of the municipal/city hall, post office, public market, for such a
time as may be reasonable depending on circumstances (b) Personal property – posting of written notice in
3 public places for not less than 5 days (c) Real property – posting of written notice in 3 public places for at least
20 days, describing the property, where it is to be sold, and if assessed value is in excess of PHP 50,000.00,
publishing the notice in a newspaper of general circulation once a week for 2 consecutive weeks. In all cases –
written notice is also given to judgment obligor at least 3 days before the sale except in (a) notice is given at any
time in the same manner as personal service of pleadings. 688
2.1 The contents of the notice are the place, date exact time not earlier than 9:00 am or later than
2:00 pm. The place may be agreed upon. If not agreed upon: (a) Real/Personal property not
capable of manual delivery shall be sold at the Office of the Clerk of Court of Regional or
Municipal Trial Court issuing the writ (b) If capable of manual delivery, where personal property
is located.
2.2 If there is a sale without notice, the officer is liable for punitive damages in the amount of PHP
5,000.00 in addition to actual damages sustained by injured person. If the notice is defaced or
removed before the sale / satisfaction of the judgment, the person so defacing or removing
shall be liable to pay PHP 5,000.00 plus actual damages. These are recoverable upon motion. 689
3. The manner of sale shall be by public auction. This applies also when property is levied upon.
3.1 Sale is made to the highest bidder, to start at the exact time stated in the notice.
685
686
687
688
689
84
3.2. If sufficient property has been sold, no more shall be sold and any excess property / proceeds
shall be delivered to the judgment obligor or his representative, unless otherwise directed by
the court. Like when other debts due to be paid
3.3 If sale is of real property consisting of several known lots, they must be sold separately or if
claimed by a 3rd person, he may require it to be sold separately.
3.4 Personal property capable of manual delivery must be sold within view of those attending and
in such parcels so as to bring the highest price.
3.5 The judgment obligor, if present may direct the order in which the property is to be sold when
such property consists of several parcels / known lots which can be sold to advantage
separately.
3.6 No officer or his deputies, can be a purchaser, nor be interested directly or indirectly in any
purchase at such sale.690
3.7 By written consent of both judgment obligor / obligee or their duly authorized representatives,
the auction sale may be adjourned to any date or time agreed by them. Without an agreement
– officer may adjourn from day to day if it becomes necessary. 691
3.8 When a purchaser refuses to pay , the officer may again sell the property to the highest bidder
and shall not be responsible for any loss occasioned thereby, like when it is resold for less. But,
the court may order the refusing purchaser to pay unto the Court such loss, and punish him with
contempt if he disobeys. Payment shall inure to the benefit of party entitled to execution,
unless he has been satisfied, in which case to the judgment obligor. In addition, officer may
thereafter reject all bids of such purchaser. 692
3.9 The judgment obligee can be a purchaser, and if no 3rd party claim has been filed, he need not
pay the amount if it does not exceed the amount of his judgment. If it does he shall only pay the
excess. 693
3.10 If the judgment obligor pays the judgment before sale, the sale is prevented by the payment
required by execution and cost incurred therein 694
3.11 A third party claimant is one who claims title to, or right of possession of the property levied
upon by the sheriff. Note that there may be a 3 rd party claimant in execution, preliminary
attachment and replevin.
3.12 A third party claimant can file a 3rd party claim or a terceria by executing an affidavit showing
his title thereto, or right of possession over the property being levied upon, stating therein the
grounds of such title or right, serving a copy thereof to the sheriff and judgment obligee. If filed,
sheriff is not obliged to proceed unless the judgment obligee files an indemnity bond in an
amount not less than value of the property. No action on the bond may enforced by the third
party claimant unless filed within 120 days from date of the filing of the bond. If bond is filed, a
3rd party claimant may vindicate his claim within the period or he may institute a separate
action to vindicate his claim but nothing also prevents the judgment obligee from claiming
damages in the same or separate action against a 3 rd party claimant who files a frivolous /
spurious claim. Note that if writ is issued in the name of the Republic of the Philippines, no bond
is required. Officer is to be represented by the Solicitor General, and if damages are assessed, it
is to be paid out of the National Treasury. 695
4. After a sale, a conveyance is to be made as follows:
4.1 Real Property – a certificate of sale is given stating the description of the property, price paid for
each distinct lot / parcel, whole price paid and a statement that the right of redemption shall or
will expire one year from date of registration of the certificate 696 making mention of the
690
691
692
693
694
695
696
85
existence of a 3rd party claim, if any. 697 Note: the requirement of mentioning a 3 rd party claim, if
any, applies also to conveyance over personal property.
4.2 The parties entitled to redeem are: (a) Judgment obligor, or his successor in interest, in whole
or any part of the property, or (b) A creditor having a lien by virtue of an attachment, judgment,
mortgage on the property sold or on some part thereof, subsequent to the lien under which the
property is sold. Such redeeming creditor is called a redemptioner.698
4.3 The judgment obligor / redemptioner may redeem the property from the purchaser at any time
within 1 year from registration by paying the amount of purchase, plus 1% interest per month at
the time of redemption, together with the amounts of assessments / taxes paid at the purchase
and interest on the same at the same rate, and, if the purchaser be also a creditor having a prior
lien to that of the redemptioner, other than the judgment, the amount of the lien plus interest.
4.4 Property so redeemed may be redeemed within 60 days after the last redemption upon
payment of the sum paid, w/ 2% interest thereon plus taxes / assessments paid, and amount of
liens held by redemptioner prior to his own, and so forth.
4.5 Written notice however of redemption must be given to the officer who made the sale and
duplicate with the Registry of Deeds and if any assessments / taxes / prior liens are paid, notice
must also be given to above parties otherwise, redemption can be effected without paying
taxes / assessments / liens. Note: Proof required of redemption under Section 30
4.6 Proof of Redemption-A redemptioner must produce to the officer, or person from whom he
seeks to redeem, and serve with notice to the officer, a copy of judgment or final order, certified
by the clerk of court or the mortgage / other lien, certified copy by the Register of Deeds / or
memorandum thereof and affidavit showing amount due on the lien. 699
4.7 If the Judgment Obligor redeems, -He must make all the payments required to effect a
redemption by a redemptioner. Thereupon, no further redemption is allowed and he is restored
to his estate. The person upon whom redemption payment is made shall execute a Certificate of
Redemption after payment. Certificate is then filed with the Office of the Registry of Deeds. 700
4.8 Pending redemption, use of the real property shall remain with the person in possession at the
time of sale or entitled to possession afterwards may continue to use it in the same manner as it
was previously used, or to use in the ordinary course of husbandry or to make necessary repairs
to buildings thereon while he occupies the property, but the court in proper cases, may restrain
the commission of waste on the property by injunction on the application of the purchaser /
judgment obligee with or without notice. 701
4.9 Rents, earnings and income shall belong to the judgment obligor until the expiration of his
period for redemption. Neither shall the purchaser or judgment obligee be entitled to the same
when such property is in the possession of a tenant. 702
4.10 If no redemption is made within one year from date of registration, the purchaser is entitled to
possession and conveyance or if so redeemed – whenever 60 days has elapsed and no other
redemption is made and the time for redemption has expired, the last redemptioner is entitled
to possession and conveyance but, in all cases the judgment obligor is entitled to have the
entire period of one year.
4.11 Officer shall execute the deed / or his successor in interest with the same effect. Once done, the
purchaser / redemptioner shall be substituted to and acquire all the rights title and interest and
claim of the judgment obligor to the property as of the time of the levy. Possession shall then
be given unless property is held by a 3 rd party adverse to the judgment obligor. 703 Manner of
effecting transfer of possession is by writ of possession. 704
697
698
699
700
701
702
703
704
Cometa v IAC, 151 SCRA 563, AutoCorp Group v Court of Appeals, 437 SCRA 678
86
4.12 If the sale is rendered ineffective as when the purchaser of real property or his successor in
interest fails to recover possession or is evicted therefrom as a consequence of: irregularities in
the proceedings concerning the sale, judgment has been reversed or set aside pursuant to a
petition for relief,property is exempt from execution , or that 3 rd person has vindicated his right
to the property. He may on motion in the same action or in a separate action recover from the
judgment obligee the price paid with interest, or so much thereof as has not been delivered to
the judgment obligor or he may on motion have the judgment revived in his name, if a
redemptioner for the whole price with interest, or so much thereof as has been delivered to the
judgment obligor. The judgment revived shall have the same force and effect as an original
judgment would have as of the date of revived and no more. 705
4.13 If it involves personal property that is capable of Manual Delivery, the officer must deliver the
property and if desired, execute and deliver a certificate of sale, which shall conveys all right
with the judgment obligor had in such property as of date of levy on execution or preliminary
attachment. 706
4.14 If Incapable of Manual Delivery, the officer must execute and deliver a certificate of sale and
such shall convey all rights to purchaser as of the date of levy on execution or preliminary
attachment. 707
EXECUTION IS FOR DELIVERY OR RESTITUTION OF REAL PROPERTY
1. The officer shall demand of the person against whom judgment is rendered and all persons claiming
rights under him to peaceably vacate the property within 3 working days and restore possession thereof to the
judgment oblige otherwise the officer shall oust all such persons thereon, with assistance from peace officers
employing reasonable means and place the judgment obligee in possession.
1.1 Any costs, damages, rents, profits shall be satisfied in the same manner as a judgment for
money.
EXECUTION IS FOR REMOVAL OF IMPROVEMENTS
1. The officer shall not destroy, demolish or remove except upon special order of the court, issued upon
motion / hearing and after the judgment obligee had failed to remove within a reasonable time fixed by the
rules.
EXECUTION IS FOR DELIVERY OF PERSONAL PROPERTY
1. The officer shall take possession and forthwith deliver it to party entitled thereto and satisfy any
judgment for money as herein provided. 708
EXECUTION OF SPECIAL JUDGMENTS
1. Performance of an act other than those enumerated in Section 9 and 10, a certified copy of the
judgment shall be attached to the writ of execution and served upon party against whom it is rendered, or upon
any person required thereby, or by law, to obey the same.
1.1 If such party / person disobey, they may be punished for contempt. 709
2. Examples of special judgments are judgments in cases for Injunction or Quo warranto
WHAT ARE THE PROPERTIES EXEMPT FROM EXECUTION
1. Except as otherwise expressly provided by law, the following property, and no other, shall be exempt
from execution:
a. The judgment obligor’s family home as provided by law, or the homestead in which he resides,
and land necessarily used in connection therewith;
705
706
707
708
709
87
b. Ordinary tools and implements personally used by him in his trade, employment, or livelihood;
c. Three horses, or three cows, or three carabaos, or other beasts of burden, such as the judgment
obligor may select necessarily used by him in his ordinary occupation;
d. His necessary clothing and articles for ordinary personal use, excluding jewelry;
e. Household furniture and utensils necessary for housekeeping, and used for that purpose by the
judgment obligor and his family, such as the judgment obligor may select, of a value not
exceeding one hundred thousand pesos;
f. Provisions for individual libraries and equipment of judges, lawyers, physicians, pharmacists,
dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding
three hundred thousand pesos in value;
g. One fishing boat and accessories not exceeding the total value of one hundred thousand pesos
owned by a fisherman and by the lawful use of which he earns his livelihood;
h. So much of the salaries, wages, or earnings of the judgment obligor for his personal services
within the four months preceding the levy as are necessary for the support of his family;
i. Lettered gravestones;
j. Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life
insurance;
k. The right to receive legal support, or money or property obtained as such support, or any
pension or gratuity from the Government;
l. Properties specially exempted by law.
2. But no article or species of property mentioned in this section shall be exempt from execution issued
upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon. 710
3. Claims for exemption from execution of properties must be presented before its sale on execution by
the sheriff.711
WHAT HAPPENS TO EXECUTION UPON THE DEATH OF A PARTY
1. It may issue or be enforced:
1.1 In case of death of judgment obligee, upon application of his executor or administrator
1.2 In case of death of judgment obligor, against his executor, administrator, or successor in
interest, IF it be for recovery of real or personal property or enforcement of a lien.
1.3 Death of judgment obligor after execution is actually levied upon any of his property, the same
may be sold for the satisfaction of the judgment obligation and the officer must account to the
executor or administrator for any surplus, if any. 712
AS BETWEEN SEVERAL PERSONS AGAINST WHOM EXECUTION IS DIRECTED
1. There is a right to contribution or reimbursement if: more than a due portion of the judgment is
satisfied out of the proceeds of the sale of the property of one of them, or, one pays, without sale, more than
his proportion.
1.1 If judgment is upon an obligation of one of them, as security for another, and the surety pays
the amount, or any part thereof, either by sale of property or before a sale, he may compel
repayment from the principal.713
710
711
Gomez v Gealone, 203 SCRA 474
712
713
88
WHAT ARE THE OTHER REMEDIES OF THE JUDGMENT OBLIGEE IF EXECUTION IS NOT CARRIED OUT OR
JUDGMENT IS NOT SATISFIED
1. Examination of the judgment obligor concerning his property and income before the court or a
commissioner – and proceedings may thereafter may be had for the application of his property or income
towards satisfaction of judgment but no obligor can be required to appear before a court or commissioner
outside the province or city where he resides. 714
2. Examination of the obligor of the judgment obligor upon proof shown to the satisfaction of the court
that a person, corporation or other juridical entity has property of the judgment obligor or is indebted to him,
the Court may by order require the person, corporation or juridical entity to appear before the Court /
commissioner and be examined concerning the same.
2.1 The service of the order shall bind all credits due the judgment obligor and all money / property
of the judgment obligor in the possession / control of the person, corporation or juridical entity.
2.2 Notice of all proceedings may also be required by the court. 715
2.3 Obligor of judgment obligor may thereafter pay after writ of execution on property has been
issued, the amount of his debt or so much thereof as may be necessary to satisfy the judgment
and the sheriff’s receipt shall constitute sufficient discharge for the amount so paid or directed
to be credited by the judgment obligee on the execution 716
2.4 In relation to both remedies – party or other person may be compelled to appear by subpoena
and failure to obey an order, subpoena or be sworn or answer as a witness or subscribe to a
deposition is punishable by contempt. 717
3. Order for application of property and income to satisfaction of judgment. – it may include his property
or money due the judgment obligor, not exempt from execution, in his hands or other person, corporation or
juridical entity may be applied to satisfaction of judgment subject to any prior rights over such property.
3.1 Also, if upon investigation of current income and expenses, the earnings of judgment obligor
are more than necessary for the support of his family, the court may order that judgment be
paid by monthly installments, failing in which he may be punished for indirect contempt. 718
4. Appointment of a receiver – for the property of the judgment obligor, it may also forbid a transfer or
other disposition of or interference with the property of the judgment obligor not exempt from execution. 719
4.1 Thereafter, there can be a sale by the receiver upon order of ascertainable interest (or the real
estate itself) of a judgment obligor in real estate in the place where proceedings are had as
mortgagor / mortgagee or otherwise and if his interest can be ascertained without controversy,
the receiver may be ordered to sell and convey such interest or real estate or the interest of the
obligor therein. All proceedings to be approved by the Court before execution of the deed. 720
5. In relation to the foregoing, if it appears that a person or corporation, alleged to have property of the
judgment obligor denies or claims an interest in the property adverse to him, the court may: (a) order judgment
obligee to institute an action against such person or corporation for the recovery of such interest or debt (b)
forbid a transfer / disposition of such interest / debt within 120 days from notice of the order (c) punish
disobedience of such order as for contempt. The order may be modified or vacated at any time by the court that
issued it, or by the court in which the action is brought, upon terms as may be just. 721
WHAT IS TO BE DONE AFTER JUDGMENT IS SATISFIED
1. Entry of satisfaction of judgment by the Clerk of Court in Court Docket and Execution Book upon a
return of the writ indicating satisfaction or admission of satisfaction by the judgment oblige or counsel. 722
714
715
716
717
718
719
720
721
722
89
2. It can also be entered upon demand of judgment obligor when judgment is satisfied in fact or upon
notice / motion, the court may order entry without admission 723
EFFECT OF JUDGMENTS OR FINAL ORDERS
1. The effect of a judgment / final order rendered by a court in the Philippines, having jurisdiction to
pronounce the same.
a. In case of a judgment / final order against a specific thing, or in respect to probate of a will or
administration of the estate of a deceased person, or in respect to personal, political or legal
condition / status of a particular person or his relationship to another, the judgment or final
order is conclusive upon the title to the thing, the will, administration status or relationship of
the person. However, probate or granting of letters of administration shall only be prima facie
evidence of the death of the testator.724
b. Other cases, judgment / final order is with RESPECT TO THE MATTER DIRECTLY ADJUDGED
OR AS TO ANY MATTER THAT COULD HAVE BEEN RAISED IN RELATION THERETO is
CONCLUSIVE BETWEEN THE PARTIES AND THEIR SUCCESSORS IN INTEREST BY TITLE
SUBSEQUENT TO THE COMMENCEMENT OF THE ACTION OR SPECIAL PROCEEDING
LITIGATING FOR THE SAME THING, UNDER THE SAME TITLE AND IN THE SAME CAPACITY.725
c. In any other litigation between the same parties or their successors in interest, that only is
deemed to have been adjudged in a former judgment / final order which appears on its face to
have been so adjudged or which was actually and necessarily included therein or necessary
thereto.726
1.1 Paragraphs (a) and (b) are illustrative of the concept of res judicata that is also known as “bar by
prior judgment”. This exists when between the first case where judgment is rendered, and the
second case where such judgment is invoked, there is identity of parties, subject matter, and cause
of action. When all three are present, the judgment on the merits rendered in the first constitutes
an absolute bar to the subsequent action.
1.2 Paragraph (c) is illustrative of what is known as “conclusiveness of judgment”, when between the
first case wherein judgment was rendered and the second case wherein such judgment is invoked,
there is only identity of parties, but there is no identity of cause of action, the judgment is thus
conclusive in the second case, only as to the matters actually and directly controverted and
determined, and not as to matters merely involved therein. 727
1.3 CONCLUSIVENESS OF JUDGMENT, also known as PRECLUSION OF ISSUES or COLLATERAL

ESTOPPEL OR IMMUTABILITY OF JUDGMENTS espouses that issues actually and directly resolved
in a former suit cannot again be raised in any future case between the same parties involving a
different cause of action.728Once a case is decided with finality, the controversy is settled and the
matter is laid to rest. The prevailing party is entitled to enjoy the fruits of victory while the other
party is obliged to respect the court’s verdict and comply with it. 729
1.4 The doctrine of “The law of the case” states that whatever has once been irrevocably established as
the controlling legal rule of decision between the same parties, whether correct on general
principles or not, so long as the facts on which the decision was predicated continue to be the facts
of the case before the court. 730 This principle generally finds application in cases where an appellate
court passes on a question and remands the case to the lower court for further proceedings. The
question thus settled by the appellate court becomes the law of the case upon a subsequent appeal.
Consequently, the court reviewing the succeeding appeal will not re-litigate the case but instead
apply the ruling in the previous appeal. 731
2. Effect of a foreign judgment/final order: (a) If upon a specific thing, the judgment / final order is
conclusive upon title to the thing (b) If against a person – it is presumptive evidence of a right between the
723
724
Supra, Section 47 (a), Rule 39
725
Supra, Section 47 (b), Rule 39
726
727
Oropeza Marketing Corporation v Allied Banking Corporation, 393 SCRA 278
728
Tan v Court of Appeals, 363 SCRA 444
729
Siy v NLRC, GR No. 158971, August 25, 2005
730
Boiser v NTC, 169 SCRA
731
RCPI v Court of Appeals, GR No. 139763, April 26, 2006
90
parties and their successors in interest by subsequent title (c) In either case, judgment / final order may be
repelled by evidence of want of jurisdiction, want of notice, collusion, fraud, clear mistake of fact / law. 732
3. Effect of judgment against a surety: When a judgment is rendered against a party who stands as surety
for another, the latter (principal) is also bound from the time he has notice of the action or proceeding, and an
opportunity at the surety’s request to join in the defense. 733
APPEALS
PRELIMINARIES
1. As a general rule, the remedy to obtain a reversal or a modification of judgment on the merits is appeal.
This is true even if the error ascribed to the court is lack of jurisdiction over the subject matter, or exercise of
power in excess thereof, or grave abuse of discretion in the findings of law or fact set out in the decision. 734
2. The right to appeal is not part of due process but is a mere statutory privilege that has to be exercised
only in the manner and in accordance with the provisions of law. 735
3. Where the judgment or final order is not appealable, the aggrieved party may file the appropriate civil
action under Rule 65. An example is a judgment in summary proceeding case under the Family Code.
4. On appeal, a party may not change his theory of the case. 736 Hence, defenses not pleaded in the answer
may not for the first time be raised on appeal.737
4.1 A basic appellate rule is that the court shall not consider no error unless stated in the
assignment of errors.738
4.2 The exceptions to the rule are: (a) it is an error that affects jurisdiction over the subject matter
(b) it is an error that affects the validity of the judgment appealed from (c) it is an error that
affects proceedings (d) it is an error closely related to or dependent on an assigned error and
properly argued in the brief, or (e) it is a plain and clerical error.
4.3 The Supreme Court is clothed with ample authority to review matters, even if they are not
assigned as errors on appeal if it finds that their consideration is necessary in arriving at a just
decision of the case.739
5. Payment of docket fees is mandatory for the perfection of an appeal.
5.1 Without payment, the court does not acquire jurisdiction over the subject matter of the action
and the decision sought to be appealed becomes final and executory. 740
5.2 However, the rule is qualified: (a) the failure to pay appellate docket fees within the
reglementary period only allows discretionary dismissal, not automatic dismissal of the appeal,
(b) such power should be used in the exercise of the court’s sound discretion in accordance with
the tenets of fair play and with great deal of circumspection considering all attendant
circumstances.
RULE 40- APPEALS FROM THE MTC TO THE RTC
WHERE CAN AN MTC DECISION BE APPEALED
1. A judgment / final order of the Municipal Trial Court is appealable to the Regional Trial Court exercising
jurisdiction over the area to which the Municipal Trial Court pertains.
732
733
734
Association of Integrated Security Force of Bislig-ALU v Court of Appeals, 467 SCRA 483
735
Cu-Unjieng v Court of Appeals, 479 SCRA 594
736
737
Commissioner of Internal Revenue v Migrant Pagbilao Corporation, GR No. 159953, October 12, 2006
738
739
Boston Bank of the Philippines v Manalo, GR No. 158149, February 9, 2006
740
Regalado v Go, GR No. 167988, February 6, 2007
91
2. In the appeal, the case title remains, but party appealing is designated as appellant, while the adverse
party is designated as the party-appellee.741
WHEN CAN APPEAL BE TAKEN
1. 15 days after notice to the appellant. If record on appeal is required 30 days after notice but the period
can be interrupted by a motion for reconsideration or for new trial, although no motion to extend time for its
filing is allowed. 742
2. Note the “fresh period rule” that is now applicable to an appeal under Rule 40, Rule 41, Rule 43 and Rule
45, which allows a party intending to appeal another 15 days from receipt of an order denying a motion for
reconsideration or new trial to file an appeal 743
HOW IS APPEAL TAKEN
1. By notice of appeal indicating parties, judgment or final order appealed from statement of the material
dates showing timeliness of the appeal.
2. By record on appeal, in special proceedings or cases allowing for multiple appeals, like probate or
partition. The record on appeal shall contain the following:
a. Full name of the parties stated in the caption including the judgment / final order from which
appeal is taken
b. In chronological order, copies of all pleadings, petitions, motions, and all interlocutory orders as
are related to the appealed judgment / final order for proper understanding of the issue.
c. Data to show that appeal was filed on time
d. If issue of fact is to be raised, it should include reference the documentary evidence by exhibit
taken on the issue – specifying the documentary evidence by exhibit nos. or letters and
testimonial evidence by the names of the witnesses. If the whole of it is included, a statement
to such effect is sufficient.
e. If more than 20 pages include a subject index 744
3. Note that the requirement for a Approval of record on appeal 745 – the trial court may approve it, if no
objection is filed by the appellee – or upon its motion / appellee direct its amendment by the inclusion of
omitted matters which are deemed essential to the determination of the issue of law or facts involved in the
appeal. If amendment is ordered, which the appellant must comply with within the period stated, any extension
or if none, within 10 days, submitting the redrafted record for the approval of the Court. Where both parties are
appellants, they may file a joint record on appeal.746
4. Regardless of the mode of appeal, the adverse party is to be furnished with a copy.
WHEN PERFECTED
1. Perfection is determined by Section 9, Rule 41:
1.1 If by notice of appeal, it is perfected upon the filing of the notice in due time. The court loses
jurisdiction upon perfection and expiration of the time of appeal of other parties.
1.2 If by record on appeal, it is perfected upon approval of record on appeal filed in due time. Court
loses jurisdiction upon approval and expiration of time to appeal of other parties.
2. In either case, prior to transmittal of the records, the court may issue orders: (a) protection and
preservation of the rights of the parties not involving any matter litigated by the appeal (b) approve
741
742
743
Neypes v Court of Appeals, GR 141524, September 14, 2005
744
745
746
92
compromises (c) permit appeals of indigent litigants (d) order execution pending appeal (e) allow withdrawal of
appeal.747
2.1 This is power is known as “residual jurisdiction”. This is also known as retained jurisdiction which
is an extension of the original jurisdiction of the court for certain specific purposes after
perfection of the appeal but before transmittal of the records or record on appeal.
3. In both cases, docket fees and other fees are also to be paid to the clerk of court of the court that
rendered judgment. Proof payment of the same shall be transmitted to the appellant court together with the
records / record on appeal. 748
3.1 Late payment of docket fees may be admitted when a party shows a willingness to abide by the
Rules by immediately paying the docket fee six days after filing a notice of appeal and beyond
the period for perfecting an appeal.749
3.2 Where delay in the payment of docket fee was not due to a desire to delay or defeat the ends of
justice, late payment thereof which causes no prejudice to anyone should not result in the
dismissal of the appeal.750
4. The record or record on appeal is transmitted by the clerk of court within 15 days from perfection,
together with transcripts / exhibits, which he will certify as complete.
4.1 A copy of the transmittal shall be furnished the parties. 751
WHAT HAPPENS UPON TRANSMITTAL TO THE RTC
1. Within 15 days from notice, appellant shall submit a memorandum briefly discussing errors imputed to
the lower court, copy furnished the adverse party. Within 15 days from receipt of appellants’ memorandum,
appellee may file his own memorandum. Failure of appellant shall be ground for dismissal of the appeal. Upon
filing / expiration, the case is submitted for decision on the basis of the record in Municipal Trial Court and the
memoranda submitted by the parties. 752
2. When an appeal is taken from an order of the lower Court dismissing the case without trial on the
merits, the Regional Trial Court may affirm or reverse it as the case may be:
2.1 In case it is affirmed and ground of dismissal is lack of jurisdiction over the subject matter of the
case, the Regional Trial Court, if it has jurisdiction, shall try the case on the merits as if the case
was originally filed with it. In case of reversal, it shall be remanded back for further proceedings.
2.2 If it was tried on the merits, without jurisdiction, the Regional Trial Court on appeal shall not dismiss the
case if it has original jurisdiction, but shall decide the case in accordance with Section 7, without
prejudice to the admission of amended pleadings and additional evidence in the interest of justice. 753
RULE 41 – APPEALS FROM REGIONAL TRIAL COURTS
1. An appeal may be taken from a judgment /final order that completely disposes of a case, or a particular
matter therein when declared by the Rules to be appealable but no appeal can be taken from:
(a) Order denying a motion for new trial or reconsideration. An appeal of judgment/final order is remedy or
certiorari under Rule 65. Note that this has been omitted as of December 27, 2007 754
(b) Order denying a petition for relief from judgment or similar motion. Certiorari under Rule 65 is remedy
747
748
749
Mactan Cebu International Airport Authority v Mangubat, 312 SCRA 466
750
Lopez v Court of Appeals, 75 SCRA 401
751
752
753
754
A.M. No. 07-7-12-SC
93
(c) Interlocutory order. Certiorari under Rule 65 or mandamus is remedy
(d) Order disallowing or dismissing an appeal. Mandamus or petition for relief from judgment is the
remedy
(e) Order denying a motion to set aside judgment by consent confession, compromise on the ground of
fraud, mistake, duress or any ground vitiating consent. A petition for relief or a petition to annul judgment
under Rule 47 or Certiorari under Rule 65 is the remedy
(f) Order of execution. Certiorari under Rule 65 is the remedy
(g) Judgment / final order in separate claims, counterclaims, cross claims – 3 rd party claims, while main case
is pending, unless the court allows an appeal therefrom. The object is facilitate the trial of all issues.
(h) Order dismissing an action without prejudice. The remedy is to refile or certiorari under Rule 65. 755
2. That declaration of presumptive death is not appealable by the state or the other party.
2.1 Remedy of the spouse declared presumptively dead is to file affidavit of reappearance. 756
WHAT ARE THE MODES OF APPEAL OF A JUDGMENT OR FINAL ORDER OF A REGIONAL TRIAL COURT757
1. Ordinary appeal refers to an appeal by notice of appeal of the decision of the Regional Trial Court in
cases decided in the exercise of its original jurisdiction raising question of fact or mixed questions of law and
fact
1.1 The period of ordinary appeal is 15 days from notice of judgment / final order appealed from. If
requiring a record on appeal, it is 30 days. Said periods are interrupted by a motion for new trial
or reconsideration but no extension of time for their filing is allowed. Note that in habeas
corpus cases the period is 48 hours from notice of judgment or final order 758 Note also the
application of the “fresh period rule”.
1.2 Appellate court docket fees / lawful fees shall be paid within the period for taking an appeal to
the clerk of court of the court that rendered judgment but failure to pay is a ground for
dismissal of the complaint759
1.3 If Appeal is by Notice of Appeal, it must indicate parties, judgment or final order appealed from,
and include a statement of the material dates showing timeliness of the appeal. 760 or if by
Record on Appeal it must comply with the requirements as previously discussed in an appeal
from the Municipal Trial Court to the Regional Trial Court. 761
1.4 Perfection of Appeal is as discussed under Rule 40.762 Subsequently, it is the duty of the clerk of
court of the lower court within 30 days after perfection of all appeals to: (a) verify correctness of
the original record / record on appeal and make a certification as to correctness (b) verify
completeness of records transmitted to appellate court (c) If incomplete, take necessary
measures as may be required to complete the records, availing of the authority that he or the
court may exercise for this purpose. (d) transmit the records to the appellate court. (e) then
furnish parties of his transmittal. 763
1.5 If efforts to complete fail, it shall be indicated in the letter of transmittal which exhibits /
transcripts are not included, the reasons why they were not transmitted and the steps taken to
make them available.
1.6 It is likewise required that the transcripts be transcribed 764 and that the transmittal to include
proof of payment of docket fees.
755
756
757
758
759
760
761
Supra, Sections 6,7,8, Rule 41
762
763
764
Supra, Section 11 and 12, Rule 41
94
1.7 Prior to transmittal of record / record on appeal, the court may motu propio or on motion to
dismiss the appeal for having been take out of time or for non payment of docket and other
lawful fees within the reglementary period.765 If transmitted already, the Court of Appeals may
dismiss.
1.8 Other procedural requirements and disposition of the appeal are governed by Rule 44:
1.9 The title of the case shall remain, party appealing shall be referred to as appellant / adverse
party-appellee.766 Counsel / guardians ad litem of parties shall likewise be considered as such in
Court of Appeals, when others appear or are appointed, notice shall be filed and furnished
adverse parties.767
1.10 If the records are not transmitted to the Court of Appeals within 30 days after perfection of the
appeal, either party may file a motion with the Regional Trial Court, with notice to the other, for
transmittal.768
1.11 Upon receipt by the Court of Appeals, the clerk shall docket the case and notify the parties. If
appeal is by record on appeal, within 10 days from receipt of notice, appellant must file with the
clerk of court 7 clearly legible copies of approved record on appeal and proof of service thereof
to adverse party of 2 copies. Any unauthorized, alteration, omission or addition shall be ground
for dismissal of the appeal.769
1.12 The Clerk of the Court of Appeals should also ascertain the completeness of the records. If
incomplete, he shall inform the court and recommend measures to complete the record within
the shortest possible time but if it cannot be completed due to insuperable or extremely
difficult circumstances. The court, on its own or upon motion, may declare the record sufficient
to decide issues and explain reason for such declaration. 770
1.13 Once done, Briefs are to be filed: (a) The Appellant’s Brief must be filed within 45 days from
notice that all evidence, documentary / testimonial are attached to the record, 7 copies of the
brief are to be filed attaching proof of service of 2 copies to adverse party. 771 Where there are
several parties, each counsel representing one or more but not all may be served with 1 copy. If
several counsels represent one party, service may be made on any one of them. 772 The contents
of the appellant’s brief are: (a) subject index (b) assignment of errors (c) statement of the case
(d) statement of facts (e) statement of issues (f) arguments (g) relief (f) if not by record on
appeal, an appendix, copy of judgment / final order appealed. 773
1.14 The Appellee’s Brief is to be filed within 45 days from receipt of Appellant’s Brief. It is required
that 7 copies be filed with proof of service of 2 copies on appellant. The contents of the
appellee’s brief are: (a) subject index (b) statement of facts, either a statement of acceptance or
counter-statement of facts (c) Arguments774
1.15 A Reply Brief may be filed by appellant within 20 days from receipt of the Appellee’s Brief. 775 No
extension of time to file briefs is allowed except for good and sufficient cause, and only if filed
before expiration of the time sought to be extended 776 In lieu of briefs, memoranda may be
required is required in certiorari, prohibition, madamus, quo warranto, hebeas corpus within a
non-extendible period of 30 days from notice that all evidence is attached to the record. Failure
of appellant to file his memoranda is ground to dismiss the appeal. 777
1.16 Questions of law or fact may be raised in the appeal, whether or not a motion for new trial has
been filed and must within the issues framed by the parties. 778 As a rule, a party who
765
766
767
768
769
770
771
772
773
774
775
776
777
778
95
deliberately adopts a certain theory upon which the case is tried and decided by the lower court
will not be permitted to change his theory on appeal. Points of law, theories, issues, and
arguments not brought to the attention of the lower court need not be, and ordinarily not be,
considered by a reviewing court, as these cannot be raised for the first time at such late stage.
Basic considerations of due process underlie this rule. 779
1.17 In Criminal Cases, note the possibility of the filing of two notices of appeal when the penalty
imposed by the Regional Trial Court is life imprisonment or reclusion perpetua, appeal is by
notice to the Court of Appeals, and by notice again to the Supreme Court. If the penalty is
death,it is automatically reviewed by the Supreme Court, but such shall be made by the Court of
Appeals, which shall render judgment, then certify it to the Supreme Court, who will then enter
the same.780
2. Petition for Review is an appeal to the Court of Appeals of judgment / final order of the Regional Trial
Court in the exercise of its appellate jurisdiction under Rule 42
2.1 It is initiated by the filing of a Verified Petition for Review with the Court of Appeals, paying at
the same time to the Clerk of Court of Appeals the corresponding docket fees and lawful fees,
depositing 500 for costs, furnishing the Regional Trial Court and adverse party with a copy of the
Petition.
2.2 It is to be filed within 15 days from notice of decision sought to be reviewed or denial of motion
for new trial or motion for reconsideration. Upon payment of docket fees and deposit for costs
and before the expiration of the period, the Court of Appeals may grant an extension of 15
days. No further extension can be given unless for the most compelling reason, but in no case to
exceed 15 days. 781
2.3 FORM, CONTENTS, NUMBER OF COPIES. 7 copies are to be filed, indicating the original copy
intended for the Court of Appeals containing (a)full names of parties, without impleading the
lower court / judges (b)specific material dates indicating that it is filed on time (c) statement of
matters, issues, specification of errors of fact / law and reasons / arguments relied upon
(d)accompanied by clearly legible duplicate copies or true copies of judgment of the lower
courts, certified correct by Regional Trial Court clerk of court, pleadings and other material
portions supporting the allegations of the petition (e) certification against forum shopping /
verification. NOTE: Failure to pay fees or comply with the requirements shall be sufficient
ground for dismissal.782
2.4 The appeal is deemed PERFECTED upon timely filing of the petition and payment of docket
fees. The RTC loses jurisdiction upon perfection of the appeal and lapse of time to appeal by the
other parties. The Regional Trial Court continues to have RESIDUAL JURISDICTION until the
same has been given DUE COURSE.783
2.5 Note that except in cases covered by the Rule on Summary Procedure, appeal shall stay the
judgment / final order unless Court of Appeals or the Rules provide otherwise
2.6 ONCE FILED, the Court of Appeals may: (a) Require the respondent to file a comment, not a
motion to dismiss, within 10 days from notice (b)Dismiss the petition if found to be patently
without merit, prosecuted manifestly for delay, or questions raised therein are too
unsubstantial to require consideration.784
2.7 The COMMENT should be filed in 7 copies, accompanied by certified true copies of such
MATERIAL PORTIONS OF THE RECORD AND OTHER SUPPORTING DOCUMENTS, stating:
(a)Statement of whether or not he accepts the statement of matters (b) Point out the
insufficiencies / inaccuracies (c) State reasons why it should not be given due course. Copy of
which must be served on adverse party.785
2.8 A petition is given DUE COURSE when upon the filing of the comment or expiration of the
period to file; the Court of Appeals finds PRIMA FACIE that the lower court has committed an
779
BPI v Leobrera, 416 SCRA 15
780
People v. Mateo, 433 SCRA 640, AM No. 00-5-03-SC, October 15, 2004
781
782
783
784
785
96
error of fact / law that will warrant a reversal / dismissal. CONSEQUENTLY, the Court of
Appeals, if it deems necessary, will order the elevation by the clerk of the Regional Trial Court of
the entire record within 15 days from notice. 786
2.9 IT IS SUBMITTED FOR DECISION after the filing of last pleading or memorandum. Prior to that
though, the Court of Appeals may set it for oral argument / or require memoranda to be
submitted within a period of 15 days from notice. 787
3. Appeal by Certiorari or Petition for Review on Certiorari which should involve a pure question of law
direct to the Supreme Court under Rule 45
3.1 A Question of Law is one that requires interpretation or application of a law, while a Question of
Fact is one that pertains to a resolution of a factual dispute.
3.2 There is a question of law in a given case when the doubt or difference arises as to what the law
is pertaining to a state of acts, and there is a question of fact when the doubt arises as to the
truth or falsity of alleged facts. 788
3.3 This is initiated by the filing of a Verified Petition for Review on Certiorari raising only questions
of law. This mode of appeal is available to question judgment / resolutions of the Court of
Appeals, the Sandiganbayan, a Regional Trial Court, and other Courts whenever authorized by
law.789
3.4 The TIME FOR FILING is 15 days from notice of the judgment, final / order, or resolution or of
denial of petitioner’s motion for new trial / reconsideration. On motion and with full payment of
docket fees and deposit of costs, the Supreme Court on justifiable reason may grant an
extension of 30 days within which to file the petition.
Docket fees and proof of service of the petition on the lower court and adverse party must
accompany the filing of the petition.790
3.5 18 copies of the petition are required to be filed, indicating the original copy for the court. It
should contain: (a) full names of parties (petitioner / respondent) without impleading court /
judge (b) indicate material dates (c) concise statements of the matters involved and the reason /
arguments relied upon for the allowance of the petition (d) clearly legible copies of judgment /
final order / reconsideration or certified true copy and other material portion supporting the
record (e) Certificate against forum shopping and verification 791
3.6 UPON FILING, the Supreme Court can:
(a) DISMISS – (1) for failure to comply with the requirements regarding payment, proof of
service, contents and documents (2) on its own initiative because it is without merit,
prosecuted for delay, or issues are too unsubstantial to require consideration, OR
(b) ALLOW REVIEW, which is not a matter of right but is discretionary, when there are
special / important reasons therefor: EXAMPLES- (1) when the court a quo has decided
a matter of substance not therefore determined by the Supreme Court or decided in a
way not in accord with the law or applicable decisions of the Supreme Court (2) when
court a quo has so far departed from the accepted and usual course judicial
proceedings, or so far sanctioned such departure by a lower court, as to call for an
exercise of the power of supervision.792
3.7. If given DUE COURSE, the Supreme Court can: (a) Require elevation of the records / or specified
portions thereof within 15 days from notice 793 (b) Require filing of pleadings, briefs, memoranda
or documents as it may deem necessary within periods / conditions it may consider appropriate
and impose sanctions for non-filing / non-compliance or unauthorized filing. This ALSO applies
786
787
788
Manila Bay Club Corporation v Court of Appeals, 245 SCRA 715
789
790
791
792
793
97
to a determination as to whether it should be dismissed or denied. 794 The RULE APPLIES TO
BOTH CIVIL / CRIMINAL ACTIONS, except in cases where penalty is death, reclusion perpetua /
life imprisonment.795
3.8 The exceptions to the general rule that only questions of law may be raised in a petition for
review are:(a) when the conclusion is a finding grounded entirely on speculation, surmises, or
conjectures; (b) when the inference made is manifestly mistaken, absurd, or impossible; (c)
where there is a grave abuse of discretion; (d) when the judgment is based on a
misapprehension of facts; (e) when the findings of fact are conflicting; (f) when the Court of
Appeals, in making its findings, went beyond the issue of the case and the same is contrary to
the admissions of both appellant and appellee; (g) when the findings of the Court of Appeals are
contrary to those of the trial courts; (h) when the findings of facts 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 petitioner’s main and reply briefs are not disputed by the respondents; (j) when
the finding of fact of the Court of Appeals is premised on the supposed absence of evidence but
is contradicted by the evidence on record; and (k) when the Court of Appeals manifestly
overlooked certain relevant facts not disputed by the parties and which, if properly considered,
would justify a different conclusion.796
4. By Petition for Review under Rule 43 in a case decided by the Regional Trial Court sitting as a
commercial court.797
4.1 Applies primarily to appeals from the Court of Tax Appeals and other quasi-judicial agencies to
the Court of Appeals, but is not applicable to judgments / final orders under the Labor Code. 798
4.2 The appeal can include questions of fact, law or mixed questions of law and fact. 799
4.3 The appeal shall be taken within fifteen (15) days from notice if the award, judgment, and final
order of resolution, or from the date of its last publication, if publication is required by law for
its effectivity, or of the denial of the petitioner’s motion for new trial or reconsideration duly
filed in accordance with the governing law of the court or agency a quo. Only one (1) motion for
reconsideration shall be allowed. Upon proper motion and the payment of the payment of the
full amount of the docket fee before the expiration of the reglementary period, the Court of
Appeals may grant an additional period of fifteen (15) days only within which to file the petition
for review. No further extension shall be granted except for the most compelling reason and in
no case to exceed fifteen (15) days.800
4.4 All other procedural matters and requirements are similar to a Petition for Review under Rule 42
EXCEPT that an appeal under this Rule shall not stay the award, judgment, final order or
resolution unless the Court of Appeals deems otherwise. 801
4.6 In summary judicial proceedings under the Family Code, there is no reglementary period within
which to perfect an appeal, precisely because judgments rendered thereunder, by express
provision of Section 247 of the Family Code, are immediately final and executory. 802 Appeal by
notice of appeal is erroneous. The Court of Appeals should have dismissed as it had no
jurisdiction to review on appeal. Per Justice Panganiban, Certiorari under Rule 65 is the remedy
of the State.
PROCEDURE BEFORE THE COURT OF APPEALS
RULE 46 – ORIGINAL CASES FILED WITH THE COURT OF APPEALS
794
795
796
Martinez v Court of Appeals, 358 SCRA 38
797
A.M. No. 04-9-07-SC, September 14, 2004
798
799
800
801
802
Republic v Bernardez-Lorino, 449 SCRA 57
98
1. Parties are to be designated as petitioner / respondent 803 and is to apply to cases of Certiorari,
Prohibition, Mandamus, Quo Warranto and to petitions for annulment of judgment under Rule 47 804
CONTENTS OF PETITION – FILING – EFFECTS OF NON COMPLIANCE
1. Petitions filed before the Court of Appeals must contain the following: (a) identification of the parties, a
concise statement of matters involved, the factual background of the case, and the grounds relied upon for the
relief prayed for (b)statement of material dates, and in a Rule 65 Petition, material dates are dates of notice of
judgment or final order, when a motion for new trial or reconsideration was filed, if any, and when notice of
denial was received (c) clearly legible duplicate originals or certified true copy of the attachments
(d)certification against forum shopping (5)docket fees / deposit for cost. 805
1.1 Failure to comply is sufficient ground for dismissal of the petitions.
2. A certified true copy is one the certification of which is made by the proper clerk of court or his duly
authorized representative.806
HOW DOES THE COURT ACQUIRE JURISIDICTION
1. Jurisdiction over the person or the respondent is acquired by service of order or resolution indicating
initial action on the petition or voluntary submission to jurisdiction. 807
ACTION TO BE TAKEN BY THE COURT OF APPEALS
1. The court may dismiss the petition outright with specific reasons OR require the filing of a comment
within 10 days from notice.
1.1 Only pleadings required to be filed may be filed. Other pleadings will require leave of court. 808
2. If factual issues are to be resolved, the Court of Appeals can conduct hearings or delegate reception of
evidence on such issues to any of its members or to an appropriate court / agency / office. 809
3. If comment is not filed, it may be decided on the basis of the record without prejudice to any
disciplinary action against disobedient party. 810
4. The court, if the petition is not dismissed outright:
4.1 Can call the parties / counsel to a preliminary conference, the object of which is to : (a) consider
compromise agreements, except when case is not allowed to be compromised (b) define,
simplify and clarify issues (c)formulate stipulation of facts and admissions of documentary
exhibits, limit the number of witnesses in cases falling within its original jurisdiction or those
within its appellate jurisdiction where a motion for new trial is granted on newly discovered
evidence (d) other matters that may aid in prompt disposition of the case. 811
4.2 Record of proceedings is made and a Resolution embodying actions shall be issued 812 which
shall be binding upon parties and control subsequent proceedings unless within 5 days from
notice, it can be shown by valid cause why it should not be followed or there is need for
modifications to prevent manifest injustice813
4.3 At its own instance or by motion, to hear the parties in oral argument on the merits of the case
or on any material incident and is limited to such matters as the court may specify in its order or
resolution.814
803
804
805
806
Paras v Baldado, 354 SCRA 141
807
808
809
810
811
812
813
814
99
4.4 In the conduct of oral arguments, unless authorized, only 1 counsel may argue for a party.
Duration, sequence and all related matters shall be as directed by the Court. 815
4.5 Motions are not set for hearing, and unless directed by the court, no hearing or oral arguments
shall be allowed in support thereof. The adverse party may file objections within 5 days from
notice. Upon expiration of the period, it is submitted for resolution. 816
RULE 47-ANNULMENT OF JUDGMENT
1. Annulment of judgment covers judgments of the Regional Trial Court for which the ordinary remedies
of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of
the petitioner817
1.1 An important condition for the availment is that the petitioner failed to move for new trial, or
appeal from, or file a petition for relief against, or take other appropriate remedies through no
fault attributable to him.
1.2 If he failed to avail of the other remedies through his own fault, he would then benefit from his
inaction or negligence.818
1.3 He must allege non availment of other remedies through no fault of the petitioner, otherwise
the petition will be dismissed.819
1.4 Note that the correctness of the judgment is not in issue in a petition for annulment of
judgment.820
2. It is a remedy that may be availed of by those who are not even parties to the judgment or to annul
even judgments that have been fully executed.821
3. It is available only on grounds of: (a) Extrinsic Fraud but only when it was not availed of or could have
been availed of in a motion for new trial or petition for relief or (b) Lack of Jurisdiction
3.1 There is extrinsic fraud when the unsuccessful party had been prevented from exhibiting fully
his case, by fraud or deception practice upon him by his opponent, as keeping him away from
the court, or where the defendant never had knowledge of the suit, being kept in ignorance by
the acts of the plaintiff.822
4. The period for its filing if based on extrinsic fraud is within 4 years from its discovery, or if based on lack
of jurisdiction before it is barred by laches or estoppel. 823
FILING / CONTENTS OF THE PETITION
1. Filing is by verified petition alleging therein with particularity, the facts and the law relied upon for
annulment as well as supporting petitioner’s good and substantial cause of action / defense, as the case may be.
Containing (a) certified true copy of judgment / final order / resolution shall be attached to the original copy
intended for the court (b) affidavits of witnesses (c) certification against forum shopping 824
WHAT THE COURT OF APPEALS WILL DO UPON FILING
1. If no substantial merit, it will be dismissed outright with specific reasons for such dismissal.
2. If prima facie merit be found, it shall be given due course and summons shall be served on the
respondent. If so, procedure in ordinary civil cases shall be followed but reception may be referred to a member
of the Court or a Regional Trial Court judge.825
815
816
817
818
Manipor v Ricafort, 407 SCRA 298
819
Ancheta v Ancheta, 424 SCRA 725
820
Republic v Heirs of Sancho Magdato, 340 SCRA 115
821
Malolos v Dy, 325 SCRA 827
822
Leonardo v ST Best, 422 SCRA 347
823
824
825
100
EFFECT OF JUDGMENT IN A PETITION FOR ANNULMENT
1. It shall set aside the questioned judgment / final order / resolution and render the same null and void,
without prejudice to the re-filing of the original action in the proper court .
1.1 However, where it is set aside by reason of extrinsic fraud, the court on motion, may order the
trial court to try the case again as if a timely motion for new trial has been granted therein. 826
1.2 The prescriptive period for the re-filing of the original action shall be deemed suspended from
the filing of such original action until finality of the judgment of annulment. However, the
prescriptive period is or shall not be suspended where extrinsic fraud is attributable to the
plaintiff is original action.827
SCOPE OF RELIEF
1. It may include award of damages, attorney’s fees and other relief. If already executed, restitution or
other relief as justice / equity may warrant.828
2. It also applies to a petition for annul the judgment of an MTC but is to be filed with the RTC and treated
as an ordinary civil action.829
2.1 All sections except Section 5 pertaining to dismissal or determination of prima facie merit shall
apply.
RULE 50 - GROUNDS FOR DISMISSAL BY THE COURT OF APPEALS
1. In all cases that come before it, and besides on a finding that the case is without merit, prosecuted for
delay or issue is too unsubstantial to merit consideration, on motion of the court or the appellee, it may dismiss
the petition on the basis of:
1.1 Failure of record on appeal to show on its face that appeal was taken within period fixed by the
Rules.
1.2 Failure to file notice of appeal or record on appeal within period within the period prescribed by
the Rules.
1.3 Failure to pay docket fees as provided under Section 5, Rule 40 and Section 4, Rule 41.
1.4 Unauthorized alterations, omissions, additions on record on appeal as provided under Section
4, Rule 44
1.5 Failure of appellant to serve and file required number briefs or memoranda within provided
time by these Rules
1.6 Absence of specific assignment of errors or page references to the record as required by Section
13, paragraphs(a),(c),(d), and (f) of Rule 44
1.7 Failure of appellant to take necessary steps for the correction or completion of the records
within time limited by the Court
1.8 Failure to appear at preliminary conference under Rule 48, or comply with orders, circulars or
directives of the Court without justifiable cause
1.9 The fact that order / judgment appealed from is not appealable. 830
DISMISSAL OF IMPROPER APPEAL
826
827
828
829
830
101
1. An appeal under Rule 41 from the Regional Trial Court to the Court of Appeals raising only questions of
law shall be dismissed as issues purely of law are not reviewable by the Court of Appeals
2. An appeal by notice of appeal instead of petition for review from a Regional Trial Court exercising
appellate jurisdiction shall be dismissed
3. An appeal erroneously taken to Court of Appeals shall not be transferred but shall be dismissed
outright.831
WITHDRAWAL OF AN APPEAL
1. An appeal may be withdrawn as of right at any time before the filing of the appellee’s brief.
1.1 Thereafter, only upon discretion of the Court. 832
RULE 51 - JUDGMENT
WHEN SUBMITTED FOR JUDGMENT
1. In Ordinary Appeals:
1.1 Where no hearing on merits is held, upon filing of the last pleading, brief, memoranda or
expiration of period to file.
1.2 Where a hearing is held, upon termination of hearing or upon filing of the last pleading,
memoranda as may be required or permitted, or expiration of period to file
2. In Original Actions or Petitions for Review
2.1 Where no comment is filed, upon expiration of the period to file comment
2.2 Where no hearing, same as 1.1
2.3 Where hearing is held, same as 1.2833
HOW JUDGMENT IS RENDERED
1. Judgment is rendered by members of the court who participated in the deliberations on the merits
before assignment to a member for writing of the decision. 834
2. Participation of all 3 justices shall be necessary at deliberation and unanimous vote shall be required for
pronouncement. If not, the clerk shall enter the vote of dissenting justices in the record. Thereafter, Chairman
of the division refers it to the Presiding Justice, who will designate 2 justices by raffle to sit temporarily and to
form a special division of five (5) justices. The participation of all is required for deliberation. Concurrence of
majority is required for pronouncement.835
2.1 Note that in rendering judgment, harmless errors or those which do not affect the substantial
rights of the parties836 or errors that are not assigned will not be considered unless they affect
jurisdiction, validity of judgment, and of proceedings. 837
2.2 Harmless Error Doctrine means that any error or defect which does not affect substantial rights
will be disregarded by the reviewing court or tribunal. It is followed to deal with evidence
improperly admitted during trial wherein its damaging quality and impact to the substantial
831
832
833
834
835
836
837
102
rights of the litigant are examined. If deemed slight and insignificant, the error is disregarded. 838
It is not a ground for granting of a new trial or for setting aside, modifying, or disturbing a
judgment or final order unless the refusal appears to the Court inconsistent with substantial
justice.
3. Judgments of the Court of Appeals in the exercise of appellate jurisdiction may affirm, reverse, or
modify the judgment or final order appealed from. It may also order or direct a new trial to be held or that
further proceedings be taken.839 The decision must state clearly and distinctly the findings of fact and
conclusions of law on which it is based, which may be contained in the resolution itself or adopted from those
set forth in the judgment, final order appealed from. 840
PROCEDURE AFTER JUDGMENT
1. After signing by the justices, it shall be delivered to the clerk of court, who shall indicate thereon the
date of promulgation and cause true copies thereof to be served upon the parties or counsel. 841
2. If no appeal, or motion for new trial or reconsideration is filed within the period, the judgment or final
resolution shall be entered in the book of Entries of Judgment. Judgment or final resolution shall be deemed
executory as of the date of entry. The record shall contain the dispositive portion, signed by the clerk with a
statement that it is final and executory.842
3. Execution shall as a rule issue upon a motion in the proper court upon its entry. In appealed cases,
where the motion is filed with the Court of Appeals at the time that it is in possession of the original records or
record on appeal, the resolution granting the motion shall be transmitted to the lower court from which the
case originated, together with certified copy of the judgment to be executed, with a directive to said court to
issue the proper writ for its enforcement. In original actions, the writ shall be accompanied by a certified true
copy of the entry of judgment and addressed to appropriate officer for enforcement. 843
RULE 52- MOTIONS FOR RECONSIDERATION BEFORE THE CA
1. Judgments of the Court of Appeals can be the subject of reconsideration within fifteen (15) days from
notice thereof, with proof of service to the adverse party. 844
2. No second motion for reconsideration will be entertained. 845
3. It is to be resolved within sixty (60) days from submission for resolution 846 and while pending, shall stay
the execution unless for good reason, court directs otherwise. 847
RULE 53- MOTION FOR NEW TRIAL
1. It can be filed at any time after appeal from the lower court has been perfected and before the Court of
Appeals loses jurisdiction, on the ground of newly discovered evidence which could not have been discovered
prior to the trial in the court below by the exercise of due diligence and which is of such a character as would
probably change the result. The motion must be accompanied by affidavits showing the facts constituting the
grounds and the newly discovered evidence.848
2. The Court of Appeals shall then consider the evidence and that adduced at the trial, to determine if it
will grant or refuse a new trial, or make such order, with notice to both parties, as to the taking of further
testimony, either orally in court, by depositions, or render such other judgment as ought to be rendered upon
terms it may deem just.849 If granted, the procedure shall be the same as that granted by a Regional Trial
Court.850
838
People v Teehankee, 269 SCRA 54.
839
840
841
842
843
844
845
846
847
848
849
850
103
2.1 Motion should be resolved within 90 days from the date it is declared to be submitted. 851
OTHER MATTERS
RULE 54 – INTERNAL BUSINESS
1. Allotment of cases shall be among the different divisions for hearing and decision.
2. The Court of Appeals En Banc shall make proper orders or rules to govern allotment, the constitution of
such divisions, the regular rotation of justices, filling of vacancies, and other matters. Such will continue in force
and repealed or altered by it or the Supreme Court. 852
3. A majority of the court shall constitute a quorum for sessions en banc and a majority of the members
present shall be necessary to pass a resolution. Three members of a division shall constitute a quorum for
sessions of a division and the affirmative vote of three members shall be necessary for pronouncement of
judgment/resolution, which shall be reached in consultation among them before the writing of the opinion by
any member of the division.853
RULE 55 – PUBLICATION OF JUDGMENT/FINAL ORDER/RESOLUTIONS
1. Judgments and Final Resolutions shall be published in the Official Gazette and in the Reports officially
authorized by the Court, in the language originally written, together with a syllabi. If not so published, a
memoranda shall be made and published in the like manner. 854
1.1 The publication is to be prepared by the Reporter. 855
1.2 Those of the Supreme Court are called Philippine Reports, while those of the Court of Appeals
are called Court of Appeals Reports. 856
RULE 56 – PROCEDURE IN THE SUPREME COURT
ORIGINAL CASES
1. The cases cognizable by the Supreme Court are Certiorari, Mandamus, Prohibition, Quo Warranto,
Habeas Corpus, Disciplinary Actions against members of the Judiciary and Attorneys, Cases affecting
Ambassadors, Public Ministers or Consuls. 857
2. In resolving the cases, applicable rules in the Court of Appeals are also applicable in the Supreme
Court.858
APPEALED CASES
1. The only mode of appeal to the Supreme Court is by Petition for Review on Certiorari, except in criminal
cases where the penalty is death, reclusion perpetua, and life imprisonment 859
1.1 Except in appeal of criminal cases where penalty is death, reclusion perpetua, life
imprisonment, appeal by Notice of Appeal, will be dismissed 860
2. If by certiorari from the Regional Trial Court to the Supreme Court, raising issues of fact may be referred
to the Court of Appeals for decision or appropriate action. Determination of the Supreme Court as to whether or
not there are issues of fact is final.
3. All appealed cases shall be governed by and disposed of in accordance with the applicable provisions of
the Constitution, Rule 45 (Petition for Review on Certiorari) Rule 48 (Preliminary Conference), Sections 1 (When
851
852
853
854
855
856
857
858
859
860
104
submitted) 2 (Who renders judgment) and 5 to 11 ( Form to Execution) Rule 51, Rule 52 (Motion for
Reconsideration) and Rule 56.861
GROUNDS FOR DISMISSAL OF AN APPEAL
1. An appeal may, motu propio or upon motion of respondent, be dismissed on

a. failure to take appeal within the reglementary period
b. lack of merit
c. failure to pay docket and lawful fees
d. failure to comply with requirements of proof of service and documents
e. failure to comply with any circular, directive or order of the Supreme Court without justifiable
cause
f. error in the choice or mode of appeal
g. that it is not appealable to the Supreme Court862
IF SUPREME COURT OPINION IS EQUALLY DIVIDED OR NECESSARY MAJORITY CANNOT BE OBTAINED
1. It will be deliberated further. If after deliberation, no decision is reached, the original action commenced
in the court shall be dismissed. If appealed, it shall stand affirmed. If on incidental matters, it shall be denied. 863
PROVISIONAL REMEDIES
PRELIMINARIES
1. Provisional Remedies are temporary, auxiliary and ancillary remedies available to a litigant for the
protection and preservation of his rights pending the main action.
1.1 They are issued in the form of writs or processes and they presuppose the existence of a
principal action, although the remedies of Injunction, Receivership and Replevin have been
allowed to exist as principal actions in proper cases.
1.2 These remedies are to be granted by the court where the principal action is pending. Hence, an
MTC has the power to grant a provisional remedy. The exception being support pendente lite in
an action for support as this is incapable of pecuniary estimation and is thus only within the
jurisdiction of an RTC.
2. The purpose for resort to provisional remedies are: (a) preserve and protect rights or interests while the
main action is pending (b) secure the judgment (c) preserve the status quo (d) preserve the subject matter of
the action.
3. The enumeration of provisional remedies is not exclusive as there is jurisprudence to allow the court to
exercise its equity jurisdiction when the law is silent, obscure or insufficient. Examples are the grant of visitation
rights or temporary custody of a child 864or deposit of amount paid in an action for rescission to prevent its
dissipation.865
RULE 57 – PRELIMINARY ATTACHMENT
Rule 57 does not provide any lifetime for a writ of preliminary attachment unlike a writ of execution (See: Roque
vs. CA, 93 SCRA 540). What the law provides are enforcing the writ without delay and making sheriff’s return
thereon without delay.
Preliminary attachment shall be discharged in any of the following instances:
1. property attached is exempt from execution, hence, it is also exempt from preliminary
attachment (Sections 2 and 5, Rule 57);
2. applicant has made cash deposit or filed counter bond in court (Section 12, Rule 57);
3. attachment was improperly or irregularly issued or enforced (Section 13, Rule 57);
4. attachment bond is insufficient (Section 13, Rule 57);
5. attachment affidavit is defective (Section 13, Rule 57);
6. attachment is excessive, but discharge is limited to the excess (Section 13, Rule 57); and
7. judgment in the main case is rendered against the attaching party (Section 19, Rule 57)
861
862
863
864
Tan v Adre, 450 SCRA 145
865
Reyes v Lim, 408 SCRA 560
105
When the preliminary attachment is issued upon a ground which is at the same time the
applicant’s cause of action: ie., an action against a party who has been guilty of fraud in
contracting the debt or incurring the obligation upon which the action is brought, the only way
it can be dissolved is by a counter-bond. (FCY Const., Group Inc. vs. CA, 324 SCRA 270)
The merits of the complaint are not triable in a motion to discharge an attachment. (CBTC vs. CA, 197 SCRA
663)
WHAT IS PRELIMINARY ATTACHMENT
1. It is a provisional remedy issued upon order of the court where the action is pending to levy upon the
properties of the defendant therein, the same to be held thereafter by the sheriff as security for the satisfaction
of whatever judgment might be rendered in favor of the attaching creditor.
2. It can also extend to property of the defendant in the hands of 3 rd persons or money owed by 3rd persons
to the defendant. This is also known as garnishment.
3. If judgment has become final and executory, there is a final attachment which is also known as Levy on
Execution
4. It can be availed of at any time before entry of judgment.
DISTINCTIONS BETWEEN PRELIMINARY ATTACHMENT AND GARNISHMENT
1. In Preliminary Attachment there are two parties, the plaintiff or proper party and the defendant, while
in Garnishment, there is an additional party in the person of the garnishee. In the former, property is actually
seized and a lien is created thereon, while in the latter, there is no actual seizure.
GROUNDS FOR ATTACHMENT
1. Action for recovery of money or damages other than moral / exemplary, on a cause of action that arise
from law, contract, quasi – contract, delict, or quasi-delict against a party who is about to depart from the
Philippines with intent to defraud creditors.
1.1 It is required that the movant be able to show that the defendant is about to depart from the
Philippines with intent to defraud creditors. 866
1.2 It cannot issue when the amount of money or damages is not specified. 867
2. Action for money or property embezzled or fraudulently misapplied or converted to his own use by a
public officer, an officer of a corporation, or an attorney, factor, broker, agent or clerk in the course of his
employment as such, or by any person in a fiduciary capacity, or for willful violation of such duty.
2.1 Examples are when an officer of a corporation who has control of its funds will utilize the same
for his personal use or when a person appropriates the entire property knowing that a portion
thereof does not belong to him.
3. Action to recover possession of property unjustly or fraudulently taken, detained or converted when the
property, or any part thereof, has been concealed, removed or disposed of to prevent its being found or taken
by the applicant or authorized person.
3.1 The property referred to may be either real or personal property.
3.2 Distinguishing it from replevin: the object is to attach real or personal property belonging to the
defendant to secure satisfaction of his judgment for recovery, while in replevin, the object of
the movant is the recovery of his own property.
4. Action against a party guilty of fraud in contracting the debt or incurring the obligation upon which the
action is brought or in the performance thereof.
866
K.O. Glass Construction Co. Inc. v. Valenzuela, 116 SCRA 563
867
Peregrina v Panis, 133 SCRA 71
106
4.1 The fraud should be committed either upon contracting the debt or incurring the obligation
sued upon or in the performance thereof. A debt is fraudulently contracted if at the time of
contracting it, the debtor has a preconceived plan or intention not to pay. 868
5. Action against a party who has removed or disposed of his property, or is about to do so, with intent to
defraud creditors.
5.1 Mere removal or disposition, by itself, is not ground for the issuance of a writ of preliminary
attachment, notwithstanding the insolvency of the defendant or the absence of security for the
satisfaction of any judgment is alleged against the defendant. 869
5.2 Where fraudulent disposal is put in issue, the parties should be given the opportunity to prove
their claims, or at the very least, the defendant should be given the chance to show that he has
not been disposing of his property in fraud of creditors. 870
6. Action against a party who does not reside and is not found in the Philippines or on whom summons
may be served by publication.871
HOW APPLIED FOR
1. Generally, by motion or is incorporated in the complaint, accompanied by an affidavit, containing the

following: (a) It is executed by the applicant / or some person who is aware or personally knows the facts (b)
A sufficient cause of action exists (c) That a ground/s as stated in Section 1 exists (d) There is no other
sufficient security for the claim sought to be enforced by the action (e) The amount due the applicant or value of
the property that he is entitled to recover, is as much as the sum for which the Order is granted, above all legal
counterclaims872
1.1 An ordinary creditor appointed as administratror of the estate of the deceased cannot file a
petition for preliminary attachment as that would constitute him as a preferred creditor. 873
2. A bond must then be executed to the adverse party in the amount fixed by the court, conditioned that
the latter will pay all costs which may be adjudged and all damages sustained by reason of the attachment, if
the court shall finally adjudge that the applicant was not entitled thereto. 874
WHEN ISSUED / BY WHOM
1. Either ex parte or on motion with notice and hearing, by the court in which
action is pending, by the Court of Appeals or the Supreme Court and must require the Sheriff to attach so much
of the property in the Philippines of the party against whom it is issued not exempt from execution as may be
sufficient to satisfy the claim unless the other party makes a deposit or gives a bond in an amount equal to that
fixed in the order, exclusive of costs.
1.1 Several writs may be issued at the same time to the sheriffs of the courts of different judicial
regions.875
2. It is issued ex-parte when the ground is justified further by the fact that the defendant might abscond or
dispose of his property before the writ is issued. It can take place even before he is summoned but note that it
cannot be enforced unless it is preceded or contemporaneously accompanied by service of summons, together
with complaint, application for attachment, affidavit, bond, order and the writ itself.
2.1 This is the Prior or Contemporaneous Rule.
2.2 Note that an Alias Summons belatedly filed cannot be deemed to have cured the fatal defect in
the enforcement of the writ of preliminary attachment. 876
868
FCY Construction Group Incorporated v Court of Appeals, 324 SCRA 270
869
Peoples Bank and Trust Company v Syvel’s Incorporated, 164 SCRA 247
870
Adlawan v. Torres, 233 SCRA 645
871
872
873
Gruenberg v Court of Appeals, 138 SCRA 471
874
875
876
Mangila v Court of Appeals, 387 SCRA 162
107
2.3 The prior or contemporaneous rule does not apply when: (a) Summons could not be served
personally or by substituted service despite diligent efforts (b) Defendant is a resident but
temporarily out of the PhiIippines (c) Defendant is a non-resident of the Philippines (d) It is an
action in rem or quasi in rem
BY WHOM / HOW ENFORCED
1. By the sheriff, without delay and with all reasonable diligence
1.1 Note that Rule 57 does not provide any lifetime for a writ of preliminary attachment unlike a
writ of execution. 877 What the law provides for are the enforcement of the writ without delay
and making sheriff’s return thereon without delay.
2. He may attach only such property not exempt from execution, as may be sufficient to satisfy the
demand unless the defendant makes a deposit or gives a counter bond in an amount equal to the bond fixed by
the court or to the value of the property attached. 878
2.1 Note that the attachment shall proceed nevertheless until there have been proceedings
undertaken to discharge the attachment. If found to be insufficient / or is not filed, a new order
of attachment may be applied for.879
3. Attachment should be in accordance with the following:
(a) If real property, it requires the filing with the Office of the Register of Deeds of a copy of the order
together with notice that property or interest therein is attached.
(b) If personal property capable of manual delivery taking it and safely keeping it in custody after issuance
of proper receipt.
(c) If stocks / shares / interest in companies, by leaving with the president or managing agent a copy of the
writ and notice.
(d) If debts, credits, bank deposits and other like personal properties not capable of manual delivery –
leaving with such persons owing debt, holding credits or in possession a copy of the writ and notice.
(e) If interest is in the estate of a decedent, by virtue of his being an heir, legatee, or devisee, by serving the
writ / notice on executor or administrator.
(f) If in custodia legis – copy of writ is filed if the proper court or quasi-judicial agency and notice served on
the custodian of the property. 880
3.1 Effect of attachment of debts, credits and similar personal property – persons who have them
are liable to the applicant for the amount of such credits until the attachment is discharged,
judgment is satisfied or debts are paid881
3.2 Effect if on property belonging the estate of the decedent, it will not impair the powers of the
executor / administrator or representative – BUT they shall report the attachment to the court
when any petition for distribution is filed – and in the order made upon such petition – the
property may be awarded to the heir / legatee / devisee , but the property attached shall be
delivered to the sheriff, subject to the claim of the heir, legatee, devisee or person claiming
under him.882
3.3 There can also be an examination of the listed persons to determine if there are properties in
their possession that may be attached.883
877
Roque v Court of Appeals, 93 SCRA 540
878
879
880
881
882
883
108
4. Sheriff shall also make a return without delay, containing a full statement of his proceedings under the
writ and a complete inventory of property attached, together with a copy of a counter-bond if one has been
filed, furnishing copies thereof on the applicant. 884
5. Property is to be held and disposed of in the following manner:
5.1 If judgment is recovered by the attaching party
(a) Paying to obligee proceeds of all sales of perishable property or others sold pursuant to
order of the court as shall be necessary to satisfy the judgment.
(b) If there is a balance, selling so much of the real or personal property as may be
necessary to satisfy the balance, if enough for that purpose, remains in the hands of the
sheriff or clerk of court. Note that there can be an EARLY SALE if it is made to appear to
the court in which the action is pending that the property attached is perishable, or that
the interest of all the parties to the action will be subserved by the sale of the properties
at public auction, the proceeds to be deposited with the court to abide the judgment. 885
(c) Collecting from all persons having in their possession credits belonging to the obligor or
debts due him
(d) If there be a balance, he proceeds to collect as upon ordinary execution. If there be a

surplus, it must be returned.
(e) If judgment becomes executory, the surety/ies shall become charged on the counter-
bond and bound to pay the judgment obligee upon demand, the amount due on the
judgment, which amount can be recovered after notice and summary hearing in the
same action.886
(f) If money was deposited in lieu of a bond, it is applied under direction of the Court and if
judgment is against attaching party, the whole sum deposited is refunded. 887
A Report or Return of all proceedings must be filed with the court and copies furnished
all parties.888
5.2 If judgment is for adverse party –
(a) All proceeds of sales or money collected by the sheriff and property attached shall be
delivered to the party whose properties were attached and the order of attachment
discharged.
(b) Claim for damages before trial, perfection of appeal, or judgment becomes executory,
with due notice to the attaching party and surety setting forth the facts showing his
right to damages in instances where there is improper, irregular or excessive
attachment, are to be awarded after hearing and is to be included in the judgment in
the main case.
(c) If the judgment favorable to him is rendered by the appellate court, he must claim the
damages during the pendency of the appeal by filing the application in the appellate
court, before the judgment becomes executory. The appellate court may allow the
application to be heard and decided by the trial court.
(d) Nothing, likewise, prevents the party against whom attachment is issued from
recovering in the same action the damages awarded to him from any property of the
attaching party not exempt from execution should the bond or deposit be
insufficient.889
WHAT ARE THE REMEDIES OF A PARTY WHOSE PROPERTIES ARE ATTACHED

884
885
886
887
888
889
109
1. Discharge the attachment by making a cash deposit or counter bond. 890 Note that bond may be subject
to recovery by attaching party;
1.1 A motion to discharge / dissolve is not allowed if the preliminary attachment is issued on a
ground which is at the same time the applicant’s cause of action as that is tantamount to a trial
on the merits. Example: action for money, property embezzled, party guilty of fraud in incurring
the obligation
2. Discharge or set aside the attachment on the ground that it was improperly issued or irregularly
enforced, or bond is insufficient or what has been attached is excessive, the discharge is only for the excess. 891
3. Claim for damages on account of improper, irregular, or excessive attachment. 892
WHAT HAPPENS IF PROPERTY IS CLAIMED BY A 3RD PERSON
1. Claim is to be initiated by affidavit.
1.1 Upon filing, the sheriff not under obligation to keep the property, unless attaching party files a
bond.
1.2 No claim for damages for the taking or keeping of the property may be filed / enforced against
the bond unless the action is filed within 120 days from date of the filing of the bond. 893
RULE 58 – PRELIMINARY INJUNCTION
1. A Preliminary Injunction is an order granted at any stage of an action or proceeding prior to judgment
or final order, requiring a party or a court, agency, person to refrain from a particular act or acts. It may also
require the performance of an act, if such it is called a preliminary mandatory injunction. 894
2. Note that Injunction may also exist as a cause of action. This is best illustrated by the appropriate
remedies for obligations to do or not to do. Obligations to do, the remedy are specific performance. Obligation
not to do, remedy is injunction.
2.1 An example is that provided for by Article 26 of the Civil Code that allows an injunction against
one prying into the privacy of another residence, meddling with or disturbing the private life or
family relations of another or the enforcement of an easement of light and view.
PRIMARY PURPOSE OF INJUNCTION
1. Is to preserve the status quo or the last actual, peaceable, uncontested status which precedes the
pending controversy.
WHO MAY GRANT
1. Court where the action is pending. If pending in the Court of Appeals or the Supreme Court, it may be
issued by the Court or any member thereof. 895
GROUNDS FOR ISSUANCE
1. The applicant is entitled to the relief demanded, and the whole or part of the relief consists in
restraining the commission / continuance of the act/s complained of, or in requiring the performance of an
act/s, for a limited period or perpetually.
2. The commission / continuance / non performance of the act/s during litigation will probably work
injustice to the applicant, or
890
891
892
893
894
895
110
3. That a party, court, agency or a person is doing, threatening, or is attempting to do or is procuring or
suffering to be done, some act/s in violation of the rights of the applicant respecting the subject of the action
and tending to render judgment ineffectual.896
REQUISITES FOR ISSUANCE OF AN INJUNCTION
1. The requisites are: (a) Existence of a right to be protected, and (b) Acts against which the
injunction is to be directed are violative of the right
2. These must clearly appear in the allegations in the complaint, otherwise, it may be ground for its
outright denial for insufficiency, which is apparent in the application itself or if already granted, may be
dissolved.897
MAY IT BE ISSUED EX-PARTE
1. As a general rule, the issuance requires (a) a hearing (b) reception of evidence with opportunity to cross
(c) finding that prohibited acts are threatened to be committed or that irreparable injury would be inflicted
upon the applicant.
2. If great/irreparable injury would result before then the Court by way of an exception on non ex-parte
issuance (a) can issue a Temporary Restraining Order for 20 days after a summary hearing or If it is of extreme
urgency, it may issue ex-parte a 72 hour Temporary Restraining Order, within which period a summary hearing
to determine whether or not the same is to be extended for the full 20 day period must be held.
2.1 Note that within the 20 day effectivity period of the Temporary Restraining Order, the court
must order the party or person to show cause why the injunction should not be granted,
determine also whether or not the preliminary injunction should be granted, and accordingly
issue the order. 898
2.2 The lifetime of a Temporary Restraining Order is 20 days if issued by a trial court, 60 days if
issued by the Court of Appeals, and until further orders if issued by the Supreme Court. Note
that when the trial court omits to state a period, the 20 day period is deemed incorporated in
the order.899
2.3 A second Temporary Restraining Order issued by the Court of Appeals after the expiration of
the first period is a patent nullity. 900
3. A status quo order is not a temporary restraining order. It is more in the nature of a cease and desist
order, has no specified duration and does not specifically direct the performance of an act. It lasts until revoked,
may be the subject of an agreement, and does not require the posting of a bond.
HOW OBTAINED
1. A preliminary injunction or temporary restraining order is obtained upon (a) filing of a verified
application showing facts entitling the applicant to the relief demanded, (b) unless exempted, filing of a bond in
an amount fixed by the court, to the effect that applicant will pay all damages that may be sustained if the court
should finally decide that applicant was not entitled thereto (c) if included in a complaint / initiatory pleading it
shall be raffled only after notice to and in the presence of the adverse party.
2. In any event, notice shall be preceeded by or contemporaneously accompanied by service of summons,

together with affidavit and bond but such will not be applicable if defendant / adverse party cannot be served
personally / substituted service, is temporarily absent or is a non-resident.
3. The matter shall thereafter be acted upon only after all parties are heard in a summary hearing,
conducted within 24 hours after sheriff’s return of service. 901
WHEN INJUNCTION WILL NOT ISSUE
896
897
898
899
Bacolod City Water District v Labayen, 446 SCRA 110
900
Padilla v Asuncion, AM No. 06-44-CA-J, March 20, 2007
901
111
1. Under BP Blg. 227 amending the Labor Code, a court cannot grant injunctive relief in cases growing out
of a labor dispute as the said power is vested in the NLRC. An exception is when the injunction is sought by a
third person whose property is levied upon to satisfy the liability of another. 902
2. Under RA 8735 and PD 1818, injunction does not lie against the execution or implementation of
government infrastructure programs, essential government projects, including arrastre 903
3. Under Section 55, RA 6657 of the Comprehensive Agrarian Reform Law, injunction cannot issue against
the Presidential Agrarian Reform Council or any of the implementing agencies.
4. As against the Asset Privatization Trust as taken over by the Privatization and Management Office of
the Department of Finance.904
5. As against a court of co-equal rank or decrees of a court with concurrent or coordinate jurisdiction. 905
6. As against quasi-judicial bodies of co-equal rank as an RTC such as the Social Security System or the
SEC
7. By the RTC as against the Intellectual Property Office, Commission on Elections or Workmen’s
Compensation Commission
8. As against the collection of a national internal revenue tax, fee or charge imposed by the NIRC 906 or the
Commissioner of Customs over seizure or forfeiture proceedings 907
9. As against consummated acts or a judgment already executed 908
10. To transfer possession or control over property when legal title is still in dispute or when it has not yet
been clearly established or there is a lack of clear and unmistakable right on the part of the applicant. 909
11. To establish new relations between the parties910
12. When it disposes of the main case without trial as the grant of injunctive relief assumes the proposition
that petitioner must prove.911
13. To restrain a criminal prosecution 912 except: (a) to afford adequate protection to the constitutional
rights of the accused; (b) when necessary for the orderly administration of justice or to avoid oppression or
multiplicity of actions; (c) when double jeopardy is clearly apparent; (d) where the charges are manifestly false
and motivated by the lust for vengeance; or (e) where there is clearly no prima facie case against the accused
and a motion to quash on that ground has been denied. 913
14. In applications for restraining order and injunction against the foreclosure of a real estate mortgage on
the ground that it has been paid or not delinquent, unless it be verified and supported by evidence of payment.
14.1 If on the allegation that interest is unconscionable, the debtor must pay the mortgagee at least
12% per annum on the principal obligation as stated in the application for foreclosure, which
shall be updated monthly while the case is pending.
14.2 The bond shall be equal to the amount of the outstanding debt, and the time for its effectivity
shall apply as well to a status quo order.
GROUNDS FOR OBJECTION / DISSOLUTION
902
Penalosa v Villanueva, 177 SCRA 78
903
Philippine Ports Authority v Pier 8 Arrastre and Stevedoring, 475 SCRA 426
904
Section 31-A, Proclamation 50-A, EO No. 323, 2000
905
Ching v Court of Appeals, 398 SCRA 88
906
Filipino Metals Corporation v Secretary, Trade and Industry, 463 SCRA 616
907
Zuno v Cabredo, 402 SCRA 75
908
PNB v Adi, 173 SCRA 550
909
Cortez Estrada v Samut, 451 SCRA 275
910
Almeida v Court of Appeals, 448 SCRA 68
911
Levi Strauss v Clinton Apparelle, 470 SCRA 236
912
Andres v Cuevas, 460 SCRA 38
913
Roberts vs. CA, 254 SCRA 307; Brocka vs. Enrile, 192 SCRA 183
112
1. The application may be denied or if granted, dissolved, upon showing of insufficiency, or while entitled
to an injunction, the issuance or continuance thereof will cause irreparable damage to the person enjoined
while the applicant can be compensated for the damages and a bond is filed or if it appears that extent is too
great, it may be modified. 914
2. It may also be dissolved on objection to the sufficiency of the bond, or upon finding of insufficiency, the
failure of surety to justify or filing of a sufficient bond. If it the objection is to the bond of the party enjoined, the
injunction shall be granted or restored. 915
JUDGMENTS OR ORDERS IN INJUNCTION
1. An order discharging an injunction is immediately effective.
2. A Final Injunction is granted if it appears that the applicant is entitled to have the act/s permanently
enjoined or confirming the preliminary mandatory injunction. 916
3. Judgments eventually rendered may include damages against a party and sureties. 917
4. No injunction can issue against the acts of a co-equal court, except in a 3 rd party claim where claimant
vindicates his right by a separate action.
RESOLUTION OF THE MAIN CASE OR PETITION
1. The trial court, the Court of Appeals, the Sandiganbayan, or the Court of Tax Appeals that issued the
writ of preliminary injunction against a lower court, board, officer or quasi-judicial agency shall decide the main
case or petition within a period of six (6) months from the issuance of the writ. 918
RULE 59 – RECEIVERSHIP
WHEN IS A RECEIVER APPOINTED
1. When it appears from a verified application, and as such other proof as the court may require, that the
party applying for the appointment of a receiver has an interest in the property or fund which is the subject of
the action or proceeding as such property / fund is in danger of being lost, removed or materially injured unless
a receiver be appointed to administer and preserve it.
2. When it appears in an action by the mortgagee for the foreclosure of mortgagee that the property is in
danger of being wasted, dissipated or materially injured – and that its value is probably insufficient to discharge
the mortgage debt or that the parties have so stipulated in the mortgage contract.
3. When after judgment, to preserve the property during the pendency of an appeal, or to dispose of it
according to the judgment, or to aid in execution when the execution is returned unsatisfied or the judgment
obligor refuses to apply his property in satisfaction of the judgment or otherwise carry the judgment into effect.
4. Whenever in other cases, it appears that the appointment of a receiver is the most convenient and
feasible means of preserving, administering or disposing of property in litigation.
WHO APPOINTS A RECEIVER
1. The court where action is pending or the Court of Appeals, the Supreme Court or a member thereof.
1.1 During appeal, the appellate court may allow the application for the appointment to be filed in
the court of origin, which can also decide on the same to be subject to the control of said
court.919
914
915
916
917
918
A.M. 07-7-12-SC
919
113
2. A receiver of real or personal property, which is the subject of the action, may be appointed by the court
when it appears from the pleadings or such other proof as the judge may require, that the party applying for
such appointment has:
(a) an actual interest in it, and (b) that such property is in danger of being lost, removed, or materially injured;
or whenever it appears to be the most convenient and feasible means of preserving or administering the
property in litigation.920
3. A receiver is a person appointed by the court or by a quasi-judicial administrative agency, in behalf of all
the parties for the purpose of preserving and conserving the property and preventing its possible destruction or
dissipation, if it were left in the possession of any of the parties. It is the duty of the receiver to administer the
assets of the receivership estate; and in the management and disposition of the property committed to his
possession, he acts in a fiduciary capacity and with impartiality toward all interested persons. 921
4. A receiver is not an agent or representative of any party to the action.
4.1 He is an officer of the court exercising his functions in the interest of neither plaintiff nor
defendant, but for the common benefit of al the parties in interest.
4.2 He performs his duties “subject to the control of the Court,” and every question involved in the
receivership may be determined by the court taking cognizance of the receivership
proceedings.
4.3 Thus, unauthorized contracts of a receiver do not bind the court in charge of receivership. They
are the receiver’s own contracts and not recognized by the court as contracts of the
receivership.922
WHAT ARE THE POWERS OF THE RECIEVER
1. Subject to the control of the court, a receiver can: (a) Bring and defend actions in his own name
(b)Take and keep possession of the properties in controversy (c)To receive rent (d)Collect debts, including
power to compound and compromise them, to pay debts (e)Make transfers (f) To divide money or other
property (g) Other acts as may be authorized by the court
2. Funds though may only be invested by order of the court upon written consent of all parties. No action
may be filed by or against the receiver without leave of court to prevent harassment. 923
3. Should there be refusal / neglect to deliver property to a receiver – it is punishable by contempt and
shall be liable for the money or value of the property, plus damages sustained as a consequence of the refusal /
neglect.924
HOW APPLIED FOR
1. By verified application.
1.1 More than 1 receiver may be applied for and appointed by the court.
1.2 Note that receivership may be a principal action or an ancillary remedy.
2. If application is granted – the receiver shall await the filing by the applicant of a bond executed to the
party against whom the application is presented in an amount fixed by the Court to the effect that the applicant
will pay such party all damages that he may sustain by reason of the appointment in case the same has been
procured without sufficient cause – and the court in its discretion may require an additional bond to be filed as
further security for damages.925
3. The application may be denied or receiver discharged when the adverse party files a bond executed to
the applicant to the effect that such party will pay to the applicant all damages he may suffer by reason of acts,
omissions or other matters specified as grounds in the application.
920
Commodities Storage & Ice Plant Corp. versus Court of Appeals, 274 SCRA 439
921
Arranza versus B.F. Homes, Inc., 333 SCRA 799
922
Pacific Mechandising Corp., versus Consolacion Insurance & Surety Co., Inc., 73 SCRA 564
923
924
925
114
3.1 It may also be discharged if it is shown that appointment was obtained without sufficient
cause.926
4. Before entering upon his duties, the receiver shall be sworn to perform them faithfully and shall file a
bond executed to such person and in amount fixed by the court, to the effect that he will faithfully discharge his
duties and obey orders from the Court.927
5. Copies of bonds of the applicant and receiver or the adverse party shall be served on each interested
party – who may except to its sufficiency or the surety. If found to be insufficient or is not justified and a bond
sufficient in amount and surety is not filed, the application shall be denied and the receiver discharged. If
adverse party’s bond is the one excepted to or found insufficient, the receiver shall be appointed or reappointed
as the case may be.928
WHEN TERMINATED
1. When the court, motu propio or upon motion, shall determine that the necessity for a receiver no
longer exists, it shall alter due notice, settle all accounts, direct delivery of the funds / property in his possession
to the person adjudged to be entitled to receive them and order the discharge of the receiver from further duty.
2. He is to be allowed compensation as circumstances will warrant to be taxed against defeated party or

apportioned as justice may require.929
3. Any judgment may include the amount, if any, to be awarded any party upon any bond. 930
RULE 60 – REPLEVIN
The lessor in a lease with option to purchase, in choosing through replevin, to deprive the lessee of possession
of the leased equipment, waived its right to recover unpaid rentals on the said leased items. The remedy
provided by Article 1484 are alternative, not cumulative. 931
WHAT IS REPLEVIN
1. It is a form of a principal remedy and provisional remedy / relief.
1.1 It is also a mixed action partly in rem as far as the claim for recovery of personal property and in
persona as far as the claim of damages, the object of which is recovery of possession of
personal property applied for at the commencement of the action or at any time before answer
by the party praying for recovery of personal property. 932
HOW APPLIED FOR
1. Filing of Affidavit containing the following: (a) that applicant is the owner of the property claimed,
particularly describing it, or is entitled to possession of the same (b)that property is a wrongfully detained by
the adverse party, alleging the cause of detention according to the best of his knowledge, information or belief
(c) that property has not been distrained or taken for a tax assessment or payment of fine or seized under
execution, preliminary attachment or in custodia legis, or if so seized, it is exempt from seizure / custody (d)
actual market value not the probable value as declared by the applicant. Should there be a dispute, it is to be
resolved by the Court.
2. Filing of bond in double the value of the property – for return of the property to the adverse party and
payment of such sum as he may recover from the applicant
3. Upon filing of the affidavit and bond, the writ of replevin shall issue requiring the sheriff to forthwith
take the property in custody.933
3.1 In taking custody – if concealed, he may demand delivery, if not delivered, he may cause the
building / enclosure to be broken.
926
927
928
929
930
931
PCI Leasing and Finance Inc v Giraffe X Creative Imaging, Inc, 527 SCRA 405,(July 12, 2007)
932
933
115
3.2 Once in possession, it must be kept in a secure place and shall be responsible for its delivery to
the party entitled thereto upon receipt of his fees and expenses. 934
REMEDIES FOR RETURN OF PROPERTY
1. Objection to the sufficiency of the bond / surety but he cannot immediately require delivery or at any
time before delivery to the applicant, by filing a bond known as a redelivery bond executed to the applicant in
double the value of the property as stated in the applicant’s affidavit.
MANNER OF DISPOSITION BY SHERIFF
1. If within 5 days after taking of the property, the adverse party does not object to sufficiency of the
bond / sureties or he objects and the court affirms its approval of the bond or approves a new bond or if he
requires return but his bond is objected to (adverse party) and he does not forthwith file an approved bond – the
sheriff shall deliver the property to the applicant, if for any reason it is not delivered, it must be returned to the
adverse party.935
2. If claimed by a 3rd Party by affidavit, the sheriff is not bound to keep and deliver the property unless
applicant / agent on demand of the sheriff files a bond approved by the Court to indemnify the 3 rd party
claimant in a sum not less than the value of the property under replevin.
2.1 In case of disagreement as to value, the court shall determine the same.
2.2 Note that no action on the bond may be enforced unless filed within 120 days from filing.
2.3 The sheriff shall not be liable for damages for the taking and keeping of the property to any
such 3rd party if the bond is filed. Nothing also prevents the 3 rd party claimant or the applicant
from vindicating their rights or claims in the same action or in a separate action.
2.4 If writ is issued in the name of RP, no bond is required and the sheriff is to be represented by the
Solicitor General and damages so adjudged are paid out of the National Treasury. 936
3. The sheriff must make return within 10 days after taking of the property. 937
4. The judgment shall include a determination who has a better right of possession to and value of the
property and render judgment in the alternative for delivery thereof to the party entitled or its value in case
delivery cannot be made, and also for damages as either party may prove, with costs.
4.1 Any amount awarded a party upon any bond shall be claimed, ascertained and granted as
provided by Section 20 of Rule 57.938
5. A writ of replevin may be served anywhere in the Philippines.
RULE 61 – SUPPORT PENDENTE LITE
WHEN FILED AND HOW
1. At the commencement of the proper action or proceeding or at any time prior to a judgment or final
order – a verified application may be filed by a party stating the grounds for the claim and the financial
conditions of both parties, accompanied by affidavits, depositions, or other authentic documents in support
thereof.939
2. It is also available in criminal cases when: (a) child is born to offended party allegedly because of the
crime (b) civil liability arising from the criminal action includes support for the offspring (c) civil aspect has not
been waived, reserved or instituted prior to filing of criminal action.
934
935
936
937
938
939
116
2.1 This application may be filed successively by the offended party, her parents, grandparents,
guardian or the State in the corresponding criminal case during its pendency. 940
PROCEDURE
1. Upon filing of verified application – it shall be served on the adverse party, who shall have 5 days to
comment unless a different period is fixed by the court.
1.1 The comment shall also be verified and accompanied by affidavits, depositions, authentic
documents.941
2. Hearing shall then be conducted no more than 3 days after comment is filed or the period expires. 942
3. Court shall determine provisionally the pertinent facts and render such orders as justice and equity may
require, having due regard to the probable outcome of the case and such other circumstances.
3.1 If granted, it shall fix the amount of money to be provisionally paid or such other forms or
support as should be provided – taking into account the necessities of the applicant and
resources or means of the adverse party and the terms or mode for providing support.
3.2 If denied, the principal case shall be tried and decided as early as possible. 943
HOW ENFORCED
1. If adverse party fails to comply, the court shall, motu propio or on motion, issue an order of execution
without prejudice to his liability for contempt.
2. If support be paid by a 3 rd person, after due notice and hearing in the same case, he may obtain a writ of
execution to enforce his right of reimbursement against the person ordered to provide support. 944
RESTITUTION
1. If upon judgment / final order – The court finds that the person who has been providing support is not
liable therefor – it shall order the recipient to return the amounts paid plus interest from dates of actual
payment without prejudice to the right of the recipient to obtain reimbursement in a separate action from the
person legally obliged to give support.
1.1 Should the recipient fail to reimburse, the person who provided the same, may, in a separate
action, seek reimbursement thereof from the person obliged to give support. 945
SPECIAL CIVIL ACTIONS
RULE 62 - INTERPLEADER
WHEN PROPER
1. Whenever conflicting claims upon the same subject matter are or may be made against a person who
claims no interest whatever in the subject matter, or an interest which in whole or in part is not disputed by the
claimants, he may bring an action against the conflicting claimants to interplead and litigate their several claims
among themselves.946
2. Examples of when interpleader is proper: (a) where a warehouseman is in custody of goods being
claimed by two or more persons who do not have the same interest, or (b) two or more lessors are trying to
collect from a lessee.
PROCEDURE:
940
941
942
943
944
945
946
117
1. Upon filing of the complaint, the court shall issue an order requiring the conflicting claimants to
interplead with one another.
1.1 If the interest of justice requires, it may order the subject matter be paid or delivered to the
court.947
2. Summons shall then issued to claimants, together with a copy of the complaint and order. 948
3. Within the time for the filing of an answer, motions to dismiss may be filed, if denied the claimant must
file an answer within the period remaining but in no case less than 5 days.
3.1 If not, he may be declared in default and thereafter the court may render judgment barring him
from any claim in respect of the subject matter.
3.2 They may also file counter-claims, cross-claims, 3 rd party claims, and other responsive
pleadings.949
4. After the pleadings of the conflicting claimants have been filed, pre-trial conducted, the court shall
proceed to determination and adjudication of their respective claims. The docket and other lawful fees paid by
a party who filed the complaint, as well as costs / expenses of litigation shall constitute a lien or charge upon the
subject matter, unless the court orders otherwise. 950
RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES
WHAT IS DECLARATORY RELIEF
1. It is a special civil action brought before the Regional Trial Court only by a person interested in a deed,
will, contract or other written instrument, or whose rights are affected by a statute, executive order, regulation
or ordinance or any other government regulation, before breach thereof, asking the court to determine any
question of construction or validity arising therefrom, and for a declaration of his rights or duties thereunder. 951
1.1 The list of what may properly be addressed by a petition for declaratory relief is exclusive.
Hence, an action for declaratory relief to determine the import of a judgment or to resolve
doubts as to citizenship is not proper.
1.2 Note that even if the subject is enumerated, the court will refuse to act if the contract is clear
and there is no doubt as to its meaning as there is no need for construction or a declaration of
rights.
2. The similar remedies are the actions for reformation of instruments, to quiet title or remove clouds
therefrom, or to consolidate ownership under Article 1607 of the Civil Code . They may be brought as civil
actions for declaratory relief.
3. Note that it can be brought only before a breach / violation of the statute or instrument.
3.1 If already brought and a breach / violation is committed before final termination, it is converted
into an ordinary civil action.
3.2 The parties may then file such pleading as may be necessary or proper. 952
WHO ARE THE ALLOWED PARTIES
1. All persons who have or claim an interest which would be affected by the declaration shall be made
parties and no declaration shall as except as otherwise provided in these Rules prejudice the rights of persons
not parties to the action.
2. If involving validity of a statute, executive order, regulation, or any other government regulation. The
solicitor general shall be notified and is entitled to be heard upon such question. 953
947
948
949
950
951
952
953
118
3. If local government ordinance, the corresponding attorney / prosecutor of the Local Government Unit
shall be similarly notified and heard. If alleged to be unconstitutional, the Solicitor General shall be notified and
heard.954
ACTION BY THE COURT
1. Except in actions falling under the 2 nd paragraph of Section 1, the court, motu propio, or on motion,
may refuse to exercise the power to declare rights and to construe instruments in any case where a decision
would not terminate the controversy or uncertainty that gave rise to the action, or in any case, where the
declaration or construction is not necessary or proper under the circumstances.955
RULE 64 – REVIEW OR JUDGMENTS / FINAL ORDER OF THE COMELEC AND COA
1. A judgment / final order of COMELEC / COA is to be brought by the aggrieved party to the Supreme
Court under Rule 65 but the period for filing is 30 days from notice of the judgment or final order sought to be
reviewed.
1.1 This rule was promulgated by the Supreme Court to implement Section 7 of Article IX-A of the
1987 Constitution which provides that any decision, order or ruling of a constitutional
commission may be brought to it on certiorari within 30 days from receipt of a copy thereof,
having interpreted the same to refer to a certiorari petition under Rule 65. However, if it has for
its subject an interlocutory order, it has been submitted that the periods provided for under
Rule 65 will prevail over that provided by Rule 64.
1.2 The filing of a motion for new trial / recon if allowed under the procedural rules of the
COMELEC / COA will toll the period. If denied, the aggrieved party only has the remaining
period which is no case shall be less than 5 days in any event, reckoned from notice of denial. 956
1.3 Note that only judgments/final orders of the COMELEC en banc can be brought to the SC. What
is exercised is the power of review.
2. The bringing of a petition shall not stay the execution of the judgment, final order or resolution unless
directed otherwise by the Supreme Court. 957
RULE 65- CERTIORARI / PROHIBITION AND MANDAMUS
The exercise of judicial function is to determine what the law is, and what the legal rights of paties are, with
respect to a matter is controversy; and whenever an officer is clothed with that authority, and undertakes to
determine those questions, he acts judicially. (The Mun.Council of Lemery, Batangas vs. The Prov. Board of
Batangas, 56 PHIL. 260)
A quasi-judicial act or function is a judicial act or function performed by one who is not a judge.
Without jurisdiction refers to lack of jurisdiction of the court, board, or officer from the beginning.
Mandamus will lie:

a) in case any tribunal unlawfully neglects the performance of an act which the law specifically enjoys as a
duty;
b) in case any corporation, board or person unlawfully neglects the performance of an act which the law
enjoins as a duty resulting from an office, trust, or station;
c) in case any tribunal, corporation, board or person unlawfully excludes another from the use and
enjoyment of a right or office to which such other is legally entitled; and
d) there is no other plain, speedy and adequate remedy in the ordinary course of law.
The legal right of the plaintiff (petitioner) to the thing demanded must be well defined, clear and certain. The
corresponding duty of the defendant (respondent) to perform the required act must also be clear and specific.
(Enriquez, Jr. vs. Bidin, 47 SCRA 183).
Mandamus lies only to compel performance of a ministerial duty but not to compel performance of a
discretionary duty. (Calderon vs. Sol. General, 215 SCRA 876)
954
955
956
Supra, Sections 1,2, and 3, Rule 64
957
119
The initial determination of what pleadings, documents or orders are relevant and pertinent to the petition
rests on the petitioner.958
WHAT IS CERTIORARI
1. Special Civil Action against a tribunal board or officer exercising judicial or quasi-judicial function which
is alleged in a verified petition filed by an aggrieved party to have acted without jurisdiction or in excess of its
jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.
1.1 There is no appeal, or any plain speedy and adequate remedy in the ordinary course of law.
1.2 Praying for the judgment annulling / modifying the proceedings of such, tribunal board officer,
tribunal and granting such incidental reliefs as law and justice may require. 959
2. Certiorari may prosper notwithstanding the presence of an appeal when: (a) public welfare and the
advancement of public policy dictate it (b) when the broader interest of justice requires it (c) when the writs
issued are null, (d) the questioned order amounts to an oppressive exercise of judicial authority. 960
DISTINGUISHED FROM PETITION FOR REVIEW ON CERTIORARI
1. Certiorari as distinguished from a Petition for Review on Certiorari:
(a) In the former, the issue is whether the lower court acted without, in excess of or
with grave abuse of discretion, while in the latter the issue is based on questions of law
(b) In the former, it is addresses an interlocutory order prior to appeal of a judgment when
there is no appeal or any other speedy or adequate remedy, while the latter involves a
review of judgment/final order/ resolution on the merits
(c) The former is filed within 15 days from notice of judgment / order, while the latter is
filed not later than 60 days from notice of the resolution sought to be assailed or denial
of a motion for reconsideration
(d) The former shall stay the judgment /final order or award, while the latter does not stay
the order or resolution unless a temporary restraining order or preliminary injunction is
issued
(e) In the former, the petitioner/respondent are the original parties in the case and the
lower court is not impleaded, while in the latter, the aggrieved party is the petitioner
against the against the lower court, agency and the prevailing party
(f) The former does not require the filing of a motion for reconsideration prior to filing,
while the latter requires a motion for reconsideration prior to filing
(g) In the former, the court is exercising appellate jurisdiction, while in latter, it is exercising
original jurisdiction
(h) The former can only be filed in the Supreme court, while the latter may be filed with
Supreme Court, Court of Appeals, or the Regional Trial Court
EXCEPTIONS TO REQUIREMENT AS TO MOTION FOR RECONSIDERATION PRIOR TO FILING A PETITION

FOR CERTIORARI UNDER RULE 65
1. The exceptions are:

(a) order is a patent nullity – court a quo has no jurisdiction
958
Condes v Court of Appeals, 528 SCRA 339 (July 27, 2007)
959
960
Mallari vs. Banco Filipino Savings & Mortgage Bank, 563 SCRA 664, Leyte IV Electric Cooperative, Inc. vs. Leyteco IV
Employees Union, ALU, 537 SCRA 154
120
(b) questions have been raised in certiorari have been duly raised and passed upon by lower
court
(c) urgent necessity for resolution
(d) where a motion for reconsideration will be useless
(e) petitioner is deprived of due process, there is extreme urgency for relief
(f) in criminal case, relief from order of arrest is urgent, and grant of relief by trial court is not
probable
(g) proceedings in lower court are a nullity for lack of due process
(h) issue is purely of law or where public interest is involved.
WHAT IS PROHIBITION
1. Special civil action against a tribunal, corporation, board, or person exercising judicial, quasi-judicial or
ministerial function which is alleged by an aggrieved party to be acting or about to act without jurisdiction, in
excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction
1.1 There is no appeal or any plain, speedy and adequate remedy in the ordinary course of the law
1.2 Praying that judgment be rendered commanding the respondent to desist from further
proceeding in the action or proceeding therein or otherwise granting such incidental reliefs as
law and justice may require.961
DISTINGUISHED FROM CERTIORARI
1. In certiorari the object is to correct the respondent’s acts by annulling proceedings, while in prohibition
it is to prevent the commission of an act or stopping proceedings.
2. In the former, the assailed acts have already been done, while in the latter the assailed acts are about to
be done or are being done.
3. In the former, the respondent performs judicial or quasi- judicial, while in the latter, the respondent
performs judicial, quasi-judicial functions or ministerial functions.
WHAT CONSTITUTES JUDICIAL AND QUASI-JUDICIAL POWER
1. The exercise of judicial function is to determine what the law is, and what the legal rights of parties are,
with respect to a matter is controversy; and whenever an office is clothed with that authority, and undertakes to
determine those questions, he acts judicially. 962
2. A quasi-judicial act or function is a judicial act or function performed by one who is not a judge.
WHAT CONSTITUTES GRAVE ABUSE OF DISCRETION
1. Capricious and whimsical exercise of judgment as may be equivalent to lack or excess of jurisdiction.
WHAT IS MANDAMUS
1. It is a special civil action against a tribunal, corporation, board, or officer alleged in a verified petition
filed by an aggrieved party to have unlawfully neglected the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust or station, or unlawfully excluded another from the use and
enjoyment of a right or office to which such other is entitled.
1.1 There is no plain, speedy or adequate remedy in the ordinary course of the law
1.2 Praying that judgment be rendered commanding the respondent, immediately or at some
other time specified by the Court to do the act required to be done to protect the rights of the
petitioner, pay damages sustained by reason of the wrongful acts.
2 ASPECTS OF MANDAMUS
961
962
Municipal Council of Lemery, Batangas v Provincial Board of Batangas, 56 PHIL 260
121
1. The aspects of Mandamus are: (a) respondent unlawfully neglects the performance of an act which the
law specifically enjoins as a duty resulting from an office, trust or station or (b) respondent unlawfully excludes
another from the use and enjoyment of a right or office to which such other is entitled.
2. The legal right of the plaintiff (petitioner) to the thing demanded must be well defined, clear and
certain. The corresponding duty of the defendant (respondent) to perform the required act must also be clear
and specific.963
3. Mandamus lies only to compel performance of a ministerial duty but not to compel performance of a
discretionary duty.964
3.1 In granting mandamus, respondent is commanded to perform the particular act or required to
be done and to pay the damages sustained by the petitioner by reason of the wrongful acts of
the respondent.
4. An act is ministerial when officer or tribunal performs in a given state of facts, in a prescribed manner in
obedience to the mandate of a legal authority without regard to the exercise of his own judgment. If given the
authority to decide how and when, it is discretionary.
5. Mandamus does not lie to correct / enforce contractual obligations.
HOW DISTINGUISHED FROM CERTIORARI/PROHIBITION
1. In Mandamus, the respondent is exercising ministerial power and he has unlawfully neglected to
perform it or excluded a party from occupying or enjoying the privilege of an office to which he is lawfully
entitled and the object is to compel action.
2. In Certiorari, the respondent is exercising judicial or quasi-judicial powers without jurisdiction or with
grave abuse of discretion amounting to an excess or lack of jurisdiction and the object is to correct.
3. In prohibition , the respondent is exercising judicial, quasi-judicial or ministerial powers and he is acting
or about to act without jurisdiction or with grave abuse of discretion amounting to an excess or lack of
jurisdiction, and the object is to prevent
WHEN MAY IT BE FILED
1. Not later than 60 days from notice of the assailed judgment, order or resolution.
1.1 But if a timely motion for reconsideration is filed, whether required or not, the 60 days period
shall be counted from notice of the denial of the motion. 965
1.2 An extension may be granted for compelling reasons but in no case to exceed 15 days.
WHERE ELSE CAN BE FILED OTHER THAN THE COURT OF APPEALS
1. The petition may be filed in the Supreme Court, the Regional Trial Court if relates to an act / omission of
a lower court, corporation, board, officer or person within its territorial jurisdiction, or the Sandiganbayan, if in
aid of its appellate jurisdiction
IT IS FILED WITH THE COURT OF APPEALS
1. Whether or not in aid of its appellate jurisdiction, when it involves acts / omissions of quasi-judicial
body, unless otherwise provided.
PARTIES TO BE IMPLEADED
1. In addition to the public respondents, the petition shall also join the person/s interested in sustaining
the proceedings and it shall be the duty of the private respondent to appear and defend both in his behalf and
that of the public respondents.
1.1 If costs are awarded, it shall be against private respondent only.
963
Enriquez, Jr v Bidin, 47 SCRA 183
964
Calderon v Sol, 215 SCRA 876
965
Supra, Section 4, Rule 65, as Amended by A.M. 00-2-03-SC
122
2. Unless otherwise directed by the court, the public respondents shall not appear or file an answer or
comment. If elevated to a higher court the public respondents shall be nominal parties, and unless directed
shall not appear or participate in the proceedings therein. 966
ORDER TO COMMENT
1. If petition is sufficient in form or substance, a comment will be required, not a motion to dismiss. 967
1.1 Orders expediting proceedings / temporary restraining order / injunctions for the preservation
of the rights of the parties may be issued but the filing of the petition shall not interrupt the
course of the principal case unless a Temporary Restraining Order or Injunction is granted
enjoining the public respondent from further proceeding. 968
ACTIONS THAT MAY BE TAKEN SUSBEQUENTLY
1. Court may hear or require filing of memoranda. If it finds the allegations to be true, it shall render
judgment for the relief prayed for or to which petitioner is entitled.
2. It may also dismiss if patently without merit, prosecuted manifestly for delay or issues are too
unsubstantial to require consideration.969
SERVICE / ENFORCEMENT OF JUDGMENT –
1. Certified copy of judgment shall be served in such manger as the court may direct and disobedience
thereto shall be punished as contempt.
1.1 Execution may issue for any damages / cost in accordance with Section 1, Rule 39. 970
RULE 66 -QUO WARRANTO
Quo warranto literally means “by what authority.” It is a special civil action to determine the right to the use or
exercise of public office or franchise and to oust the holder from its enjoyment, if his claim is not well founded,
or if he has forfeited his right to enjoy the privilege. The action may be commenced for the Government by the
Solicitor General or by a public prosecutor; or by a person claiming to be entitled to a public office or public
position usurped or unlawfully held or exercised by another may bring an action in his own name. Where a
private person files the action, he must prove that he is entitled to the controverted position, otherwise the
respondent has a right to the undisturbed possession of his office. (See: Castro vs. Del Rosario, 19 SCRA 196;
Tecson vs. Comelc, 424 SCRA 277)
DEFINED
1. Quo Warranto is a special civil action brought by verified petition in the name of the Republic of the
Philippines against: (a) person who usurps, intrudes into or unlawfully holds or exercises a public office,
positions or franchise (b) public officer who performs an act that constitutes a ground for forfeiture of his office
(c) an association that acts as a corporation within the Philippines without legally being incorporated or without
lawful authority to act.971
2. It literally means “by what authority”. 972
WHO CAN BRING A QUO WARRANTO PROCEEDING
1. An individual can bring a quo warranto action in his name when he is claiming to be entitled to a public
office or position usurped or exercised by another may bring an action. 973
966
967
968
969
970
971
972
Tecson v Comelec, 424 SCRA 277
973
123
2. A quo warranto action must be commenced by the Solicitor General or Public Prosecutor when directed
by the President or upon complaint or otherwise he has good reason to believe that a cause can be established
by proof.974 If by complaint, a request for indemnity for expenses and costs may be required to be deposited. 975
WHERE ACTION IS BROUGHT
1. Besides the Court of Appeals, the action can be brought before the Supreme Court, a Regional Trial
Court exercising jurisdiction over the area where the respondent/s reside but, if the Solicitor General
commences the action, he may bring it before a Regional Trial Court in Manila, the Court of Appeals or the
Supreme Court.976
WHEN FILED
1. Within 1 year from accrual of the cause of action arising from ouster or right to hold position
PARTIES AND CONTENTS OF PETITION
1. When the action is against the person for usurping a public office, position or franchise, the petition
shall set forth the name of the person who claims to be entitled thereto; if any with an averment of his right to
the same and that the respondent is unlawfully in possession thereof.
1.1 All persons who claim to be entitled may be made parties, and their respective rights may be
determined in the same action.977
2. A reduction of time for pleadings and other proceedings may be directed by the Court to secure the
most expeditious determination of the matters involved therein consistent with the rights of the parties. It can
also take precedence over other civil matters pending before the Court. 978
CONTENTS OF JUDGMENT
1. A judgment where the respondent is found guilty of usurping, intruding into, or unlawfully holding or
exercising a public office, position or franchise shall state that he be ousted and altogether excluded therefrom,
and that the rights of the petitioner or relator, meaning the real party in interest, be determined as justice
requires.979
1.1 It can also include a judgment for costs980
1.2 The rights of a person entitled to public office include the right to demand of the respondent all
books and papers in his custody or control appertaining to the office, otherwise he may be
punished for contempt.981
2. Damages if recoverable must be in another action filed within 1 year from entry of judgment. 982
DISTINGUISH BETWEEN QUO WARRANTO AND ELECTION PROTEST
1. In Quo Warranto the issue is the disqualification / ineligibility of the proclaimed candidate, in a Protest
the issue is an irregularity in the election.
2. If in the former, if the respondent is ineligible, the petitioner does not occupy the position, while in the
latter, the protestant can occupy the position if he obtains a plurality of the votes.
DISTINGUISH BETWEEN QUO WARRANTO AS TO NATURE OF POSITION
1. In quo warranto involving an elective post the issue is the eligibility of candidate elected, while in that
involving an appointive post the issue is the legality of appointment.
974
975
976
977
978
979
980
981
982
124
2. In the former, if the respondent is found ineligible, the 2 nd highest vote getter, even if eligible cannot
be declared elected, while in the latter, the resolution shall determine who has been legally appointed and
declare who is entitled to occupy the office.
RULE 67 – EXPROPRIATION
WHAT IS EXPROPRIATION
1. The taking of private property for public purpose upon the payment of just compensation. It is also
known as exercise of the power of eminent domain.
2. Public purpose which will justify expropriation of property generally means such activity which will
serve as convenience, safety, welfare, advantage, or benefit to the entire community, and not to a particular
individual, class or group of persons.
2.1 Public use is one which confers some benefit or advantage to the public. It is not confined to
actual use by the public. It includes the right of use by the public, whether it is exercised by one
or some or many members of the public.
2.2 Public use contemplates indirect public benefit or advantage. 983 It must be considered in its
general concept of meeting a public need or a public exigency. 984 At present, whatever may be
beneficially employed for the general welfare satisfies the requirement of public use. 985
3. The commencement of the action is necessary only when the owner refuses to agree to sell his property
or if he agrees to sell, he is not amenable to the price.
HOW EXERCISED
1. Filing of a verified complaint which shall state with certainty the right and the purpose of expropriation,
describing the real / personal property sought to be expropriated, joining as defendants all persons claiming /
owning or occupying any part thereof or interest therein.
1.1 Note that the subject can be either real / personal property. 986
2. If a local government unit intends to exercise the power of expropriation Section 19 of RA 7610 987, it
must comply with the following requisites: (a) An ordinance, not a resolution988 must be enacted authorizing
local chief executive to exercise the power of eminent domain (b) the purpose is for public use, purpose or
welfare or for the benefit of the poor and landless (c)there is payment of just compensation, and (d) a valid and
definite offer has previously been made to the owner but was not accepted.
WHERE FILED
1. Regional Trial Court, regardless of value as it is an action which is incapable of pecuniary estimation. 989
UPON FILING AND SERVICE OF SUMMONS
1. The defendant may file: (a) A Manifestation that he has no objection or defense to the action, or (b)
An Answer stating all objections and defenses to the taking of the property.
1.1 No counterclaim, cross claim or 3 rd party complaint shall be allowed in the answer or any
subsequent pleading.990
1.2 The non filing of an answer does not result in the defendant being declared in default nor does
it bar him from presenting evidence as to the amount of compensation due and to share in the
distribution of the award.
983
Estate of Salud Jimenez v PEZA, 349 SCRA 240
984
Manosca v Court of Appeals, 252 SCRA 412
985
Reyes v NHA, 395 SCRA 494
986
987
Local Government Code
988
Beluso v Muncipality of Panay, Capiz, GR No. 153974, August 7, 2006
989
Barangay San Roque v Heirs of Pastor, 334 SCRA 127
990
125
2. The plaintiff may upon making a deposit in or with an authorized government depository of an amount
equal to the assessed value of the property for purposes of taxation may take possession of the real property.
2.1 If it involves personal property, its value as provisionally ascertained. 991
2.2 Note that under Section 19 of the Local Government Code, the LGU can take possession upon
deposit with the court of fifteen (15%) percent of the Fair Market Value based on the current
tax declaration.
2.3 Under RA 8974,992 the government is required to make immediate payment to the property
owner upon filing of the complaint equivalent to the market value as stated in the current tax
declaration or the zonal value whichever is higher, plus the value of the improvements using the
replacement cost method.993
3. The case now proceeds to a determination of the authority of the plaintiff to expropriate.
3.1 Thereafter, the court may dismiss the petition or issue an order of expropriation or order of
condemnation.
3.2 The order of expropriation is appealable but shall not prevent the determination of just
compensation.
3.3 Since the order of expropriation has been entered, the plaintiff cannot dismiss or discontinue
the case except on terms that the court deems just and equitable. 994
4. The right of plaintiff to enter into the property and appropriate shall not be delayed by an appeal.
However, if appellate court determines that no right of expropriation exists, it shall order the RTC to enforce
restoration and determine the damages that the defendant sustained. 995
5. Just compensation is then determined by no more than 3 court appointed commissioners. If the Court
accepts their report, it will render judgment based thereon. Such judgment is also appealable. 996 The receipt by
the defendant of the compensation does not strip him of the right to appeal as the rules provide that the
plaintiff may execute its judgment as soon as it is obtained. 997
5.1 Just compensation is defined as the full and fair equivalent of the property sought to be
expropriated considering the cost of acquisition, current value of like properties, actual or
potential uses and in case of lands, their size, shape and location. 998
5.2 As a rule, the just compensation to be determined is that which obtains at the time of the
taking of the property or the filing of the action, whichever comes first. 999The rationale is that
the owner must be compensated only for what he actually loses, regardless of appreciation or
depreciation subsequent to taking possession or filing of the action.
5.3 If upon determination of just compensation, the ownership is uncertain or claims are
conflicting, the court may order sum / sums paid to be given to the Court for the benefit of the
person adjudged in the same proceeding to be entitled thereto but payment will be required to
be given to the defendant or the court before plaintiff can enter into or retain the property. 1000
5.4 The plaintiff shall have the right to enter into the property and expropriate for public use or
retain it if already entered. If defendant or counsel absent themselves from the court or decline
to receive the amount, it shall be deposited in the court and shall have the effect of actual
payment.1001
991
992
An Act to Facilitate the Acquisition of a Right of Way Site for National Governement Infrastructure Projects and Other
Purposes
993
Republic v Gingoyon, GR No. 166429, December 19, 2005
994
995
996
Supra, Sections 5,6,7, and 8, Rule 67
997
City of Manila v Batlle, 25 Phil 566
998
NPC v De La Cruz, GR No. 156093, February 2, 2007
999
Republic v Sarabia, 468 SCRA 142
1000
1001
126
5.5 Title will pass only upon full payment of the just compensation. 1002
5.6 Non payment does not entitle the landowner to recover possession. However, if the
government fails to pay just compensation within 5 years from finality of judgment, the owners
shall have the right to recover the property. 1003
5.7 When private land is expropriated for a particular public use and that public use is abandoned,
the land expropriated: (a) shall not revert if the acquisition is in fee simple unconditional, or (b)
is re-acquired if expropriated with a condition that if the public use is abandoned or ended, title
reverts to former owner.1004
6. The judgment shall state definitely, by an adequate description, the particular property or interest
therein expropriated and the nature of the public use or purpose for which it is expropriated, a certified copy of
which judgment shall be recorded in the registry of deeds and its effect shall to be shall to be vest in the plaintiff
title to the real estate for public use or purpose. 1005
WHO PAYS FOR COSTS
1. All costs, except that incurred by rival claimants, shall be paid by the plaintiff unless an appeal is taken
therefrom by the owner of the property and the judgment is affirmed. Costs shall include the fees of the
commissioners.1006
RULE 68 – FORECLOSURE OF REAL ESTATE
NATURE OF THE ACTION
1. It is an action affecting interest in real property and is hence, a real action. Thus venue is where the real
property or a portion thereof is located.
1.1 If it involves several parcels of land in different provinces covered by a single mortgage
contract, it can be filed in any place where one of the parcels is located and the judgment so
rendered may be executed in the other provinces. 1007
2. It is also an action that is incapable of pecuniary estimation. 1008
WHAT SHOULD BE STATED IN THE COMPLAINT/PETITION
1. The complaint in foreclosure of a mortgage or other encumbrance shall set forth:

(a) Date and due execution of the mortgage
(b) Its assignments, if any
(c) Names/residences of mortgagor/mortgagee
(d) Description of the mortgaged property
(e) Statement of the date of the note or other documentary evidence of the obligation secured by the
mortgage
(f) Amount claimed to be unpaid
(g) Name/residences of persons having or claiming an interest in the property subordinate in right to that
of the holder of the mortgage, all of whom shall be made defendants. 1009
WHAT COURT CAN DO
1. The action proceeds like an ordinary civil action.
2. After trial, if the court shall find the facts to be true, it shall ascertain the amount due the plaintiff and
render judgment for the sum with an order for it to be paid by the adverse party to the court or judgment oblige
within a period of not less than ninety (90) days nor more than one hundred twenty (120) days from entry of
1002
Federated Realty Corporation v Court of Appeals, 477 SCRA 707
1003
Yujuico v Atienza, Jr., 472 SCRA 463
1004
Fery v Municipality of Cabanatuan, 42 Phil 28
1005
1006
1007
El Hogar Filipino v Seva, 57 Phil 573
1008
Russel v Vestil, 304 SCRA 738
1009
127
judgment, and that in case of default, the property will be sold at public auction. This period is known as the
Mortgagor’s Equity of Redemption. 1010
2.1 Distinguishing Equity of Redemption from Right of Redemption:

(a) Equity of Redemption is the equitable right of the mortgagor to redeem,
while Right of Redemption is the statutory right of the mortgagor to
redeem.
(b) The former is available before auction sale, while the latter is available after
auction sale
(c) The former is available only judicial foreclosure, while the latter is available
only in extra-judicial foreclosure, but by exception is allowed in judicial
foreclosure when the mortgagee is the PNB or a bank or a banking
institution
(d) The period for the exercise of the former is within 90 days but no more than
120 days from entry of foreclosure judgment, while in the latter it is one
year from redemption is within one year from date of registration of the
sheriff’s certificate of sale, except when the mortgagor is a juridical person,
in which case, the right to redeem must be exercised until, but not after,
the registration of the certificate of sale with the applicable register of
deeds which in no case shall be more than three months after foreclosure,
whichever is earlier.1011
3. If not paid, upon motion, the court shall order the property sold in the manner prescribed under Rule 39,
such sale shall not affect the rights of persons holding prior liens/encumbrances on the property or parts
thereof.
3.1 Upon motion, sale shall be confirmed, and such shall operate to divest the rights in the property
of all the parties to the action and to vest their rights in the purchaser, subject to such rights of
redemption as may be allowed by law.
3.2 Note that when judicial foreclosure is resorted to there is no right of redemption except when
the law allows a redemption. Example: Section 47 of the Philippine General Banking Law which
allows a one year period for redemption.
3.3 Upon finality of the order of confirmation or upon expiration of the period of redemption when
allowed by law, the purchaser at auction is entitled to possession unless a third party is holding
it adversely to the judgment obligor, in which case, the purchaser at the auction sale may
secure a writ of possession from the Court ordering the sale. 1012
3.4 What is to be registered is the order of confirmation. If there is no right of redemption, the title
of the mortgagor is cancelled and a new one issued in the name of the purchaser.
3.5 If with right of redemption, the annotation is to await final deed of sale executed by Sheriff. 1013
4. Proceeds of the sale shall, after deducting the costs, be paid to the persons foreclosing the mortgage. If
there be a balance or residue, it shall be paid to the junior encumbrancers, in the order of priority ascertained by
the Court, if none or there still be a balance or residue after payment, to the mortgagor. 1014
5. If debt is not all due, as soon as a sufficient portion of the property has been sold to pay the total
amount, the sale shall terminate. Afterwards, no more shall be sold, but if property cannot be sold in portions,
the entire property is to be sold with rebate of interest if proper when the full debt is paid. 1015
6. There can be a deficiency judgment if there is a balance. Upon motion, the court shall render judgment
against the defendant for the balance which may then be the subject of execution.
6.1 If the balance is due at the time of rendition of judgment or at such time as the remaining
balance becomes due under the terms of the original contract, which time shall be stated in the
judgment.1016
1010
1011
Section 47, Philippine General Banking Law
1012
1013
1014
1015
1016
128
7. Note that the provisions of Section 31 as to use of premises by obligor, Section 32 as to rents still due
the obligor, and Section 34 as to recovery of price if sale is not effective under Rule 39 are applicable insofar as
they are not inconsistent.1017
RULE 69 – PARTITION
A partition agreement which was executed pursuant to a will that was not probated can not be given effect. 1018
OBJECT OF PARTITION
1. Separate, divide and assign a thing that is held in common among those to whom it may belong. The
remedy may be availed of regardless of whether it involves real or personal property, or both
WHO CAN FILE AND HOW
1. Any person, having the right to compel partition of real estate may file, setting forth therein the nature
and extent of his title, adequate description of the property, joining as defendants all other persons interested
in the property.1019
2. Partition and Accounting under this rule is in the nature of a quasi in rem action 1020.
PROCEDURE
1. If after trial, it finds for the plaintiff, it will order partition. This is known as the order of partition
1.1 A final order decreeing partition and accounting may be appealed by the party aggrieved
thereby.1021
2. Thereupon, if the parties agree, the parties may undertake the partition among themselves by proper
instruments. The court shall thereupon confirm the partition so agreed by the parties. Such partition and order
of confirmation shall then be recorded in the registry of deed of the place where the property is situated.
2.1 If they fail to agree, the Court shall appoint not more than 3 commissioners, commanding them
to set-off to the plaintiff and each party in interest such part and proportion of the property as
the court will direct.1022
2.2 Before discharging their duties, the commissioners shall take an oath that they will faithfully
discharge their duties, and in so doing they shall view and examine the real property, shall hear
the preferences of the parties, determine the comparative value of the property, and shall set
apart the same to the parties in lots or parcels as will be most advantageous and equitable,
having due regard to the improvements, situation and quality of the different parts thereof. 1023
2.3 If the property cannot be divided without prejudice to the interest of the parties, the court may
order it assigned to one of the parties willing to take the same, provided he pays to the other
parties such amount as determined by the commissioners to be equitable, unless one of the
interested parties asks that the property be sold instead. 1024
2.4 A report should thereupon be made by the commissioners and filed with the court, which shall
then give the parties 10 days within which to file heir objections to the findings. No proceeding
shall pass title to the property or bind the parties until the court shall have accepted the report
and rendered judgment thereon. Note though that the court has the option to accept or re-
commit the matter to the commissioners. 1025
2.5 If actual partition of the property is made, judgment shall state definitely the metes and bounds
and adequate description of the property, the particular portion allocated to each party and its
1017
1018
Rodriguez v Rodriguez, 532 SCRA 642 (September 11, 2007)
1019
1020
Valmonte v Court of Appeals, 52 SCRA 92
1021
1022
1023
1024
1025
129
effect is to vest to each party in the action in severalty the portion of real estate assigned to
him. If the whole property is assigned to one after payment to the others, judgment has the
effect of vesting in the party making payment the whole of the real estate free from any
interest of the other parties. If the property is sold and proceeds divided, judgment has the
effect of vesting the property or portion sold in the purchaser free from any interest of the
parties to the action.1026Judgment may include recovery from the other of just share of rents
and profits received by the other from the real estate in question 1027 and costs equitably
apportioned among the parties.1028
2.6 This judgment is called the judgment of partition and may be the subject of an appeal.
RULE 70- FORCIBLE ENTRY, ILLEGAL/UNLAWFUL DETAINER
WHAT IS FORCIBLE ENTRY AND UNLAWFUL DETAINER
1. Forcible Entry is an action brought when a person is deprived of possession of land/building by force,
intimidation, stealth or threat.
2. Unlawful Detainer is an action brought by a lessor, vendor, vendee or other person against whom
possession of land/building is unlawfully withheld after expiration or termination of the right to hold
possession, by virtue of a contract, express or implied.
2.1 Such action must be brought within one year after withholding such possession. It is also known
as an accion interdictal which seeks to recover possession de facto or physical, actual or
material possession.
3. Note that it is the character or nature of the defendant’s possession which will determine which of the
two actions is appropriate.
4. In addition to restitution of possession, damages and costs may also be recovered. 1029
UNLAWFUL DETAINER OR FORCIBLE ENTRY OR ACCION INTERDICTAL DISTINGUISHED
1. From Accion Publiciana- which is a plenary action to recover right of possession that is brought after
one year from accrual of the cause of action in a Regional Trial Court
2. From Accion Reivindicatoria- which is an action to recover ownership, including possession.
WHAT IS REQUIRED FOR THE ACTION TO BE FILED
1. In Illegal Detainer ,unless otherwise stipulated, the lessor can proceed against lessee only after demand
to pay or comply with the conditions of the lease and to vacate is made upon the lessee
1.1 Or by serving written notice of such demand upon the person found within the premises
1.2 Or by posting such notice on the premises if no person is found thereon and the lessee fails to
comply within 15 days in the case of land or 5 days in case of building. 1030
1.3 If the lease is on a month to month basis, demand to vacate is necessary to terminate the lease
upon expiration of the month so as to prevent tacita reconduccion. 1031 It is also necessary when
one occupies upon tolerance or permission without a contract as the occupant is bound by an
implied promise to vacate upon a demand.1032
1026
1027
1028
1029
1030
1031
Yap v Cruz, 208 SCRA 692
1032
Sps. Llobrera v Fernandez, GR No. 142882, May 2, 2006
130
1.4 If action is due to the termination of the lease due to the expiration of its term, demand is not a
prerequisite.1033Neither is it required when there is a stipulation dispensing with the need for
demand.
2. No demand is required in Forcible Entry cases.
WHEN, WHERE FILED AND NATURE OF PROCEEDINGS
1. Cases of Forcible Entry/Unlawful Detainer are to be filed within one year from date of actual entry or
date of last demand before the Municipal Trial Court and shall be covered by the Rules on Summary Procedure,
irrespective of the amount of damages or unpaid rentals, unless they are covered by agricultural tenancy laws
or otherwise provided by law. 1034
PROCEDURE TO BE FOLLOWED
1. The only allowable pleadings are the complaint, compulsory counterclaim and cross-claim pleaded in
the answers and answers thereto. All pleadings are to be verified. 1035
2. Upon filing of the complaint, the court may, from an examination of the allegations in the complaint
and such evidence attached thereto, dismiss the complaint on any of the grounds for a motion to dismiss which
are apparent therein.
2.1 If not dismissed, it shall proceed to issue summons. 1036
3. If summons is issued, the defendant shall file his answer within 10 days from receipt, serving a copy
thereof to the plaintiff. It is an error on the part of the judge to give the defendants 15 days to file an answer. 1037
3.1 Affirmative or negative defenses not pleaded are deemed waived, except lack of jurisdiction
over the subject matter.
3.2 Crossclaims or counterclaims not asserted are barred. If the answer contains crossclaims or
counterclaims, answers thereto are to be filed within 10 days from service of the answer in
which they are pleaded.1038
4. Failure to answer the complaint within the period above provided, the court, motu proprio, or on motion
of the plaintiff, shall render judgment as may be prayed for therein: Provided, however, That the court may in its
discretion reduce the amount of damages and attorney’s fees claimed for being excessive or otherwise
unconscionable. This is without prejudice to the applicability of Section 3, Rule 9 of the Rules of Court, if there
are two or more defendants.1039
5. A preliminary conference is then scheduled not later than 30 days after the last answer is filed. The
provision of Rule 18 on pre-trial shall be applicable to the preliminary conference unless inconsistent with the
provisions of this Rule.
5.1 The failure of the plaintiff to appear in the preliminary conference shall be a cause for the
dismissal of his complaint.
5.2 The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his
counterclaim in accordance with Section 6 hereof. All cross-claims shall be dismissed.
5.3 If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance
with Section 6 hereof. This Rule shall not apply where one of two or more defendants sued
under a common cause of action who had pleaded a common defense shall appear at the
preliminary conference.
5.4 No postponement shall be granted except for highly meritorious grounds and without prejudice
to sanctions which the court may deem to impose.1040
1033
Lanuza v Munoz, 429 SCRA 562
1034
1035
Supra, Section 4, Rule 70, Article II, Section 3 (a) and (b), Rules on Summary Procedure
1036
Supra, Section 5, Rule 70, Article II, Section 4, Rules on Summary Procedure
1037
Santos vs. Tanciongco, 567 SCRA 134
1038
1039
1040
131
6. Within 5 days after the termination of the preliminary conference, an order shall be issued by the court
stating the following matters: (a) Whether the parties have arrived at an amicable settlement, and if so, the
terms thereof (b)The stipulations or admissions entered into by the parties (c) Whether, on the basis of the
pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the
need of further proceedings, in which event the judgment shall be rendered within thirty (30) days from
issuance of the order (d) A clear specification of material facts which remain controverted; and (e) Such other
matters intended to expedite the disposition of the case. 1041
7. Within 10 days from receipt of the order, the parties shall submit the affidavits of their witnesses,
evidences and position papers setting forth the law and the facts relied upon. 1042
7.1 The affidavits submitted shall only state the facts of direct personal knowledge of the affiant
which are admissible in evidence and must indicate their competence to testify. A violation may
subject the party or counsel to disciplinary action and will be cause to expunge the inadmissible
affidavit or portion thereof from the record. 1043
8. The following petitions, motions, or pleadings are prohibited and shall not be allowed to be filed:
(a) Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject
matter, or failure to comply with the preceding section pertaining to referral to the Lupon for
conciliation. The case may then be dismissed without prejudice and may be revived upon showing
of compliance.1044 The filing of a motion to dismiss after an answer is filed does not violate the
rules. What is proscribed is a motion to dismiss that stops the running of the period for the filing of
an answer and cause undue delay.1045
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; A motion for
reconsideration can be filed when the case is already pending before the appellate court. 1046 And a
motion for reconsideration of rulings or pertaining to other incidents, not of the judgment is
allowed1047
(d) Petition for Relief from Judgment
(e) Motion for extension of time to file pleadings, affidavits or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints; and
(l) Interventions.1048
9. A preliminary mandatory injunction may be granted by the court upon motion presented within 5 days
from the filing of the complaint to restore him in possession, which should be decided by the court within 30
days from filing thereof1049 and upon motion of the plaintiff, within 10 days from perfection of an appeal to the
1041
1042
1043
1044
Supra, Section 12, Rule 70, Article IV, Section 18, Rules on Summary Procedure
1045
Heirs of Olivas v Flor, 161 SCRA 393
1046
Jakihaca v Aquino, 181 SCRA 67
1047
Lucas v Fabros, 324 SCRA 1
1048
Supra, Section 13, Rule 70, Article IV, Section 19, Rules on Summary Procedure
1049
Supra, Section 15, Rule 70, Article II, Section 10, Rule on Summary Procedure
132
Regional Trial Court to restore him in possession if the court is satisfied that the appeal of the defendant is
frivolous or dilatory or that the plaintiff’s appeal is prima facie meritorious. 1050
10. The court shall then render judgment within 30 days after receipt of the last affidavits and position
papers, or the expiration of the period for filing the same.
10.1 However, should the court find it necessary to clarify certain material facts, it may, during the
said period, issue an order specifying the matters to be clarified, and require the parties to
submit affidavits or other evidence on the said matters within ten (10) days from receipt of said
order.
10.2 Judgment shall be rendered within fifteen (15) days after the receipt of the last clarificatory
affidavits, or the expiration of the period for filing the same.
10.3 The court shall not resort to the clarificatory procedure to gain time for the rendition of the
judgment.1051
11. Should the defense of ownership be raised, the court shall only consider the same if the issue of
possession cannot be resolved without deciding the issue of ownership. It shall thus be resolved only to
determine possession and any judgment shall be conclusive only on possession and shall not be a bar to
another action between the parties respecting the title to the land or building 1052
12. The judgment to be rendered by the court in favor of the plaintiff shall include restitution of the
premises, the sum justly due as arrears of rent or as reasonable compensation for the use of the premises,
attorney’s fees and costs. If the allegations are not true, it shall render judgment for the defendant for recovery
of cost. If a counterclaim is established, the court shall render judgment for the sum found in arrears from either
party and award costs as justice requires. 1053
12.1 While the general rule in ejectment cases that the recoverable damages are fair rental value or
reasonable compensation for the use or occupation of real property, liquidated damages may
be recovered if so stipulated.1054
12.2 The judgment is appealable to the appropriate Regional Trial Court, which shall decide the case
on the basis of the entire record of the proceedings in the court of origin and such memoranda
or brief as may be submitted or required 1055
12.3 If judgment is rendered against the defendant, the execution shall issue immediately upon
motion, unless an appeal has been perfected and the defendant to stay execution files a
sufficient supersedeas bond if there are rentals in arrears 1056, approved by the court and
executed in favor of the defendant to pay rents, damages and costs accruing down to the time
of the judgment appealed from, and unless, during the pendency of the appeal, he deposits
with the appellate court the amount of the rent due from time to time under the contract or the
reasonable value for use and occupation adjudged by the court on or before the 10 th day of each
succeeding month or period.1057
12.4 In conformity with Section 19, Rule 70 of the 1997 Rules of Civil Procedure, it has been
consistently ruled that if no supersedeas bond is filed, the trial court, upon motion, may
correctly order execution of judgment. 1058 Note that there is no necessity for a motion for the
court to fix the supersedeas bond as the amount of the same can be ascertained from the
judgment. Also, if the records of the case have already been transmitted to the appellate court,
the supersedeas bond may be filed with the appellate court. 1059
12.5 The filing of a notice of appeal and payment of the necessary docket does not stay the
execution of the decision.
1050
1051
Supra, Section 11, Rule 70, Article
1052
1053
1054
Azcuna, Jr. v Court of Appeals,255 SCRA 215
1055
1056
Supra, Section 8, Rule 70 and De Laureano v. Adil, 72 SCRA 146
1057
1058
Silverio v Court of Appeals, 407 SCRA 240
1059
Chua v Court of Appeals, 286 SCRA 437
133
12.6 The judgment of the appellate court shall however be subject to immediate execution without
prejudice to a further appeal1060
PERSONS BOUND BY A JUDGMENT IN EJECTMENT CASES
1. In an ejectment case, the judgment is binding on: (a) a sublessee as his right is subsidiary to that of the
lessee1061 (b) a guest or successor in interest, including members of the family of the lessee, his servants and
employees1062(c) trespassers, squatters or agents of the defendant, and (d) transferees pendente lite.
RULE 71 – CONTEMPT
WHAT IS CONTEMPT
1. Willful disobedience or open disrespect of the orders, authority, or dignity of a court or judge acting in
judicial capacity by disruptive language or conduct or by failure to obey the orders of the court
KINDS OF CONTEMPT
1. Direct Contempt – consists of misbehaviour in the presence of or so near a court as to obstruct or

interfere with the proceedings before the same, it includes, disrespect, offensive personalities against others,
refusal to be sworn or answer as a witness, or to subscribe to an affidavit/deposition when lawfully required to
do so.
1.1 This kind of contempt may be summarily adjudged and be punished by a fine not exceeding
PHP 2,000.00 or imprisonment of not exceeding 10 days or both if it be by a Regional Trial Court
or a fine not exceeding PHP 200.00 or imprisonment not exceeding 1 day or both if it be by a
Municipal Trial Court.
1.2 The remedy therefrom is certiorari/ prohibition, in which case the judgment is suspended
pending the petition provided the petitioner files a bond fixed by the court which rendered the
judgment and conditioned that he will abide by and perform the judgment should the petition
be decided against him. 1063
1.3 It is direct contempt if a pleading contains derogatory, offensive or malicious statements

against a particular judge when submitted in the same court where the judge is presiding. If
submitted elsewhere, it is indirect contempt. 1064
2. Indirect Contempt – consists of (a) Misbehavior of an officer of a court in the performance of his official
duties or in his official transactions; (b) Disobedience of or resistance to a lawful writ, process, order, or
judgment of a court, including the act of a person who, after being dispossessed or ejected from any real
property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces
another to enter into or upon such real property for the purpose of executing acts of ownership or possession,
or in any manner disturbs the possession given to the person adjudged to be entitled thereto; (c) Any abuse of
or any unlawful interference with the processes or proceedings of a court not constituting direct contempt
under Section 1 of this Rule; (d) Any improper conduct tending, directly or indirectly to impede, obstruct, or
degrade the administration of justice; (e) Assuming to be an attorney or an officer of a court, and acting as such
without authority; (f) Failure to obey a subpoena duly served; (g) The rescue, or attempted rescue, of a person
or property in the custody of an officer by virtue of an order or process of a court held by him. But nothing in this
section shall be so construed as to prevent the court from issuing process to bring the respondent into court, or
from holding him in custody pending such proceedings. 1065
2.1 This kind of contempt may be initiated motu propio by the court against which the contempt
was committed by an order or any formal charge requiring the respondent to show cause why
he should not be punished for contempt. In other cases, it shall be commenced by verified
petition with supporting particulars and certified true copies of documents or papers involved
therein, and upon full compliance with the requirements for the filing of initiatory pleadings in
the court concerned.
1060
1061
Dela Cruz v Roxas, 75 Phil 457
1062
Ariem v Delos Angeles, 49 SCRA 343
1063
1064
Ang v Castro, 136 SCRA 453
1065
134
2.2 If the charges are related to the principal action pending before the court, the petition shall so
allege such fact but it shall be docketed, heard and decided separately, unless the court in its
discretion orders consolidation of the charge and principal action for joint hearing and
decision.1066
2.3 The charge shall be filed in the Regional Trial Court if the contempt is committed against it or a
court of equal or higher rank or against an officer appointed by it.
2.4 If against a lower court, it may be filed in the Regional Trial Court in the place where the lower
court sits or in such lower court, subject to appeal to the Regional Trial Court. 1067
2.5 This kind of contempt is punishable by a fine not exceeding P 30,000.00 or imprisonment not
exceeding 6 months or both, if committed against a Regional Trial Court. If against a Municipal
Trial Court, by a fine not exceeding P 5,000.00 or imprisonment not exceeding 1 month. If it
consists in a violation of a writ of injunction, TRO or status quo order, he may also be ordered to
make complete restitution. A writ of execution may be issued to enforce a fine. 1068 If it consists
in refusal or omission to do an act within his power to perform, he may be imprisoned by order
of the court until it is performed.1069
2.6 A judgment for indirect contempt is appealable to the Regional Trial Court, but execution shall
not be suspended without the filing of a bond.1070
2.7 An order dismissing a contempt charge or exoneration from such, is not appealable. 1071
OTHERS
1. If no hearings are held forthwith and the respondent has been taken into custody, he may be released
upon payment of a bond, but if he fails to appear on the hearing of the charge, he may be ordered arrested and
the bond forfeited.1072
2. If already imprisoned, the court may discharge the respondent if public interest will not be prejudiced
by the release.1073
APPLICABILITY OF THE RULE
The rules apply to persons, entities, bodies or agencies exercising quasi-judicial powers or shall have suppletory
effect to their rules. The RTC of the place where the contempt is committed shall have jurisdiction. 1074
DEFINING CRIMINAL AND CIVIL CONTEMPT
It is criminal contempt when the purpose is to vindicate the authority of the court and protect its outraged
dignity. It is civil contempt when there is failure to do something ordered by the court to be done for the benefit
of another party.1075
SALIENT PORTIONS OF KATARUNGANG PAMBARANGAY LAW
SCOPE OF APPLICATION
1066
1067
1068
1069
1070
1071
In Re, Mison, Jr, 33 SCRA 30
1072
1073
1074
1075
Yasay v Recto, 313 SCRA 739
135
1. All disputes will require conciliation.
2. The exceptions are the following: (a) where one party is the government or any subdivision or
instrumentality thereof (b) where one party is a public officer or employee, and the dispute relates to the
performance of his official functions (c) offenses punishable by imprisonment exceeding 1 year or a fine
exceeding PHP 5000.00 (d) offenses where there is no private offended party (e) where the dispute is brought
by or against a corporation, partnership or juridical entity (f) where the dispute involves real properties located
in different cities or municipalities unless the parties agree to submit their differences to amicable settlement
by an appropriate lupon (g) where dispute involves parties who actually reside in barangays of different cities or
municipalities, except when the barangays actually adjoin each other and the parties agree to submit their
differences to amicable settlement by an appropriate lupon (h) such other classes of disputes which the
President may determine in the interest of justice or upon recommendation by the Secretary of Justice (Section
408, PD 1508). (i) disputes arising from the implementation of the CARP (j) Employer-Employee disputes (k)
action to annul a judgment upon a compromise.
3. Note however that while no petition, complaint, action or proceeding within the authority of the lupon
shall be filed directly with the court or any government office for adjudication UNLESS there has been a
confrontation before the lupon chairman or pangkat, and that no conciliation or settlement has been reached
as certified by the lupon secretary or pangkat secretary, or unless the settlement has been repudiated within 10
days from its date by a statement sworn before the punong barangay to the effect that his consent is vitiated by
fraud violence or intimidation ( Section 418, PD 1508), the following cases may be filed directly: (1) accused in
under detention (2) person has otherwise been deprived of personal liberty calling for habeas corpus
proceedings (3) when action is coupled with a provisional remedy (4) where action may otherwise be barred by
prescription (Section 412, PD 1508)
VENUE
1. The proper venue for conciliation is as follows: (a) if between persons actually residing in the same
barangay-before the lupon of the said barangay (b) if between actual residents of different barangays within
the same city of municipality- before the lupon where the respondent resides, if there be several respondents-
before the lupon where anyone of them resides at the election of the complainant (c) if involving real property
or any interest therein- the barangay lupon where the property or larger portion is located (d) if arising in the
workplace where the contending parties are employed or at the institution where such parties are enrolled for
study- before the lupon of the barangay where the workplace or institution is located.
2. Any objection to venue shall be raised before the Punong Barangay, otherwise they are waived. Legal
questions may be submitted to the Secretary of Justice or his duly designated representative whose ruling
thereon shall be binding.
PROCEDURE FOR CONCILIATION OR SETTLEMENT
1. The procedure for settlement is as follows:
(a) Initiation of complaint, orally or in writing, to the lupon chairman of the barangay
(b) Mediation by lupon chairman on the next working day from receipt of the complaint, failing in which
within 15 days from the first meeting, he shall forthwith set a date for the constitution of the pangkat
(c) The pangkat shall convene not later than 3 days from constitution to hear the parties and explore the
possibility of an amicable settlement within 15 days from the day it convenes, which period is extendible for
another 15 days, except in clearly meritorious cases.
2. Note however, that while prescription does not run upon filing of the complaint and shall resume only
upon receipt of the complaint or certificate of repudiation, or certification to file action, the interruption shall
not exceed 60 days from filing of the complaint with the punong barangay. (Section 410, PD 1508)
3. The form of the amicable settlement shall be in writing, in a language/dialect known to the parties,
signed by them and attested by the lupon/pangkat chairman (Section 411, PD 1508).
3.1 This shall have the force and effect of a final judgment of a court upon expiration of 10 days
from date thereof unless repudiation has been made or a petition to nullify the award has been
filed before the proper court.
136
3.2 This does not apply to cases already pending but subsequently referred to the lupon for
amicable settlement under the last paragraph of Section 408,as the same is submitted back to
the court to serve as basis for rendition of judgment. (Section 416, PD 1508).
3.3 The award or settlement may be enforced by execution by the lupon within 6 months from the
date of the settlement. After the lapse of the said period, by action in the appropriate city of
municipal court. (Section 417, PD 1508)
4. Note however that if a settlement is not complied with, the injured party may bring an action against
the offending party to recover the original amount of his claim, thereby rescinding the compromise under
Article 2041 of the Civil Code which was held to qualify Article 2037 of the Civil Code as to the effect of a
compromise being considered as constituting res judicata. 1076
REVISED RULE ON
SUMMARY PROCEDURE
RESOLUTION OF THE COURT EN BANC DATED OCTOBER 15, 1991 PROVIDING FOR THE REVISED RULE ON
SUMMARY PROCEDURE FOR METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES,
MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS.
Pursuant to Section 36 of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129) and to achieve an expeditious
and inexpensive determination of the cases referred to herein, the Court Resolved to promulgate the following
Revised Rule on Summary Procedure:
APPLICABILITY
SECTION 1. Scope: - This rule shall govern the summary procedure in the Metropolitan Trial Courts in Cities, the
Municipal Trial Courts, and the Municipal Circuit Trial Courts in the following cases falling within their
jurisdiction:
A. Civil Cases:
(1) All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid
rentals sought to be recovered. Where attorney’s fees are awarded, the same shall not exceed twenty thousand
pesos (P20,000).
(2) All other cases, except probate proceedings, where the total amount of plaintiff’s claim does not
exceed one hundred thousand pesos (P100,000) or, two hundred thousand pesos (P200,000) in Metropolitan
Manila, exclusive of interest and costs. (As amended by A.M. No. 02-11-09-SC, dated Nov. 12, 2002; this
amended took effect on November 25, 2002)
B. Criminal Cases:
(1) Violations of traffic laws, rules and regulations;

(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) Violations of Batas Pambansa Blg 221077
(5) All other criminal cases where the penalty prescribed by law for the offense charged is imprisonment
not exceeding six months, or a fine not exceeding one thousand pesos (P1,000), or both, irrespective of other
imposable penalties, accessory or otherwise, or of the civil liability arising therefrom: Provided, however, That
in offenses involving damage to property through criminal negligence, this Rule shall govern where the
imposable fine does not exceed ten thousand pesos (P10,000).
This rule shall not apply to a civil case where the plaintiff’s cause of action is pleaded in the same
complaint with another cause of action subject to the ordinary procedure; nor to a criminal case where the
offense charged is necessarily related to another criminal case subject to ordinary procedure.
SEC. 2. Determination of applicability. – Upon the filing of a civil or criminal action, the court shall issue
an order declaring whether or not the case shall be governed by this Rule.
1076
Chavez v Court of Appeals, GR 159411, March 18, 2005
1077
A.M. 00-11-01-SC, April 15, 2003
137
A patently erroneous determination to avoid the application of the Rule of Summary Procedure is a
ground for disciplinary action.
II
CIVIL CASES
SEC. 3. Pleadings. –
A. Pleadings, allowed. – The only pleadings allowed to be filed are the complaints, compulsory
counterclaims and cross-claims pleaded in the answer, and the answers thereto.
B. Verification. – All pleadings shall be verified.
SEC. A. Duty of court. – After the court determines that the case falls under summary procedure, it may,
from an examination of the allegations therein and such evidence as may be attached thereto, dismiss the case
outright on any of the grounds apparent therefrom for the dismissal of a civil action.
If no ground for dismissal is found, it shall forthwith issue summons which shall state that the summary
procedure under this Rule shall apply.
NOTE: That any of the grounds for dismissal under Rule 16 apply although no motion to dismiss can be filed
except on the grounds of lack of jurisdiction and non-compliance with the requirement on conciliation.
NOTE: That the prohibition as to the filing of a motion to dismiss exists prior to the filing of an answer but a
dismissal grounded on any of the causes stated in Rule 16 can only be effected prior to the issuance of the
court of summons and not after an answer has been filed (Heirs of Ricardo Olivas vs. Flor, 161 SCRA 393)
SEC. 5. Answer. – Within ten (10) days from service of summons, the defendant shall file his answer to
the complaint and serve a copy thereof on the plaintiff. Affirmative and negative defenses not pleaded therein
shall be deemed waived, except for lack of jurisdiction over the subject matter. Cross-claims and compulsory
counterclaims not asserted in the answer shall be considered barred. The answer to counterclaims or cross-
claims shall be filed and served within ten (10) days from service of the answer in which they are pleaded.
SEC. 6. Effect of failure to answer. – Should the defendant fail to answer the complaint within the period
above provided, the court, motu proprio, or on motion of the plaintiff, shall render judgment as may be prayed
for therein: Provided, however, That the court may in its discretion reduce the amount of damages and
attorney’s fees claimed for being excessive or otherwise unconscionable. This is without prejudice to the
applicability of Section 4, Rule 18 of the Rules of Court, if there are two or more defendants.
NOTE: Rendition by the court of judgment on account of failure to file an answer or to appear during the
preliminary conference may not require a motion (Sordan vs. De Guzman, A.M. No. MTJ-00-1296, October 5,
2000)
SEC. 7. Preliminary conference; appearance of parties. – Not later than thirty (30) days after the last
answer is filed, a preliminary conference shall be held. The rules on pre-trial in ordinary cases shall be applicable
to the preliminary conference unless inconsistent with the provisions of this Rule.
The failure of the plaintiff to appear in the preliminary conference shall be a cause for the dismissal of
his complaint. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his
counterclaim in accordance with Section 6 hereof. All cross-claims shall be dismissed.
If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with
Section 6 hereof. This Rule shall not apply where one of two or more defendants sued under a common cause of
action who had pleaded a common defense shall appear at the preliminary conference.
SEC. 8. Record of preliminary conference. – Within five (5) days after the termination of the preliminary
conference, the court shall issue an order stating the matters taken up therein, including but not limited to:
(a) Whether the parties have arrived at an amicable settlement, and if so, the terms thereof;
(b) The stipulations or admissions entered into by the parties;
138
(c) Whether, on the basis of the pleadings and the stipulations and admissions made by the parties,
judgment may be rendered without the need of further proceedings, in which event the judgment shall be
rendered within thirty (30) days from issuance of the order;
(d) A clear specification of material facts which remain controverted; and
(e) Such other matters intended to expedite the disposition of the case.
SEC. 9. Submission of affidavits and position papers. – Within ten (10) days from receipt of the order
mentioned in the next preceding section, the parties shall submit the affidavits of their witnesses and other
evidence on the factual issues defined in the order, together with their position papers setting forth the law and
the facts relied upon by them.
SEC. 10. Rendition of judgment. – Within thirty (30) days after receipt of the last affidavits and position
papers, or the expiration of the period for filing the same, the court shall render judgment.
However, should the court find it necessary to clarify certain material facts, it may, during the said
period, issue an order specifying the matters to be clarified, and require the parties to submit affidavits or other
evidence on the said matters within ten (10) days from receipt of said order. Judgment shall be rendered within
fifteen (15) days after the receipt of the last clarificatory affidavits, or the expiration of the period for filing the
same.
The court shall not resort to the clarificatory procedure to gain time for the rendition of the judgment.
NOTE: That hearings are not necessary unless for the purpose of clarifying certain material facts.
III
CRIMINAL CASES
Sec. 11. How commenced. – The filing of criminal cases falling within the scope of this Rule shall be
either by complaint or by information; Provided, however, That in Metropolitan Manila and in Chartered Cities,
such cases shall be commenced only by information, except when the offense cannot be prosecuted de officio.
The complaint or information shall be accompanied by the affidavits of the complainant and of his
witnesses in such number of copies as there are accused plus two (2) copies of the court’s files. If this
requirement is not complied with within five (5) days from date of filing, the case may be dismissed.
Sec. 12 Duty of court. –
(a) If commenced by complaint. – On the basis of the complaint and the affidavits and other evidence
accompanying the same, the court may dismiss the case outright for being patently without basis or merit and
order the release of the accused if in custody.
(b) If commenced by information. – When the case is commenced by information, or is not dismissed
pursuant to the next preceding paragraph, the court shall issue an order which, together with copies of the
affidavits and other evidence submitted by the prosecution, shall require the accused to submit his counter-
affidavit and the affidavits of his witnesses as well as any evidence in his behalf, serving copies thereof on the
complainant or prosecutor not later than ten (10) days from receipt of said order. The prosecution may file reply
affidavits within ten (10) days after receipt of the counter-affidavits of the defense.
Sec. 13 Arraignment and trial. – Should the court, upon a consideration of the complaint or information
and the affidavits submitted by both parties, find no cause or ground to hold the accused for trial, it shall order
the dismissal of the case; otherwise, the court shall set the case for arraignment and trial.
If the accused is in custody for the crime charged, he shall be immediately arraigned and if he enters a
plea of guilty, he shall forthwith be sentenced.
Sec. 14 Preliminary conference. – Before conducting the trial, the court shall call the parties to a
preliminary conference during which a stipulation of facts may be entered into, or the propriety of allowing the
accused to enter a plea of guilty to a lesser offense may be considered, or such other matters may be taken up
to clarify the issues and to ensure a speedy disposition of the case. However, no admission by the accused shall
be used against him unless reduced to writing and signed by the accused and his counsel. A refusal or failure to
stipulate shall not prejudice the accused.
139
Sec. 15 Procedure of trial. – At the trial, the affidavits submitted by the parties shall constitute the direct
testimonies of the witnesses who executed the same. Witnesses who testified may be subjected to cross-
examination, redirect or re-cross-examination. Should the affiant fail to testify, his affidavit shall not be
considered as competent evidence for the party presenting the affidavit, but the adverse party may utilize the
same for any admissible purpose.
Except on rebuttal or surrebuttal, no witness shall be allowed to testify unless his affidavit was
previously submitted to the court in accordance with Section 12 hereof.
However, should a party desire to present additional affidavits or counter-affidavits as part of his direct
evidence, he shall so manifest during the preliminary conference, stating the purpose thereof. If allowed by the
court, the additional affidavits of the prosecution or the counter-affidavits of the defense shall be submitted to
the court and served on the adverse party not later than three (3) days after the termination of the preliminary
conference. If the additional affidavits are presented by the prosecution, the accused may file his counter-
affidavits and serve the same on the prosecution within three (3) days from such service.
Sec. 16. Arrest of accused. – The court shall not order the arrest of the accused except for failure to
appear whenever required. Release of the person arrested shall either be on bail or on recognizance by a
responsible citizen acceptable to the court.
Sec. 17 Judgment. – Where a trial has been conducted, the court shall promulgate the judgment not
later than thirty (30) days after the termination of trial.
COMMON PROVISIONS
SEC. 18 Referral to Lupon. – Cases requiring referral to the Lupon for conciliation under the provisions of
Presidential Decree No. 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.
SEC. 19. Prohibited pleadings and motions. – The following pleadings, motions, or petitions shall not be
allowed in the cases covered by this Rule:
(a) 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;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
(d) Petition for Relief from Judgment

(e) Motion for extension of time to file pleadings, affidavits or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
NOTE: If motion is well grounded, it may be allowed.
(j) Reply;
(k) Third-party complaints; and
(l) Interventions.
SEC. 20. Affidavits. – The affidavits required to be submitted under this Rule shall state only facts of
direct personal knowledge of the affiants which are admissible in evidence, and shall show their competence to
testify to the matters stated therein.
140
A violation of this requirement may subject the party or the counsel who submits the same to
disciplinary action, and shall be cause to expunge the inadmissible affidavit or portion thereof from the record.
SEC. 21. Appeal. – The judgment or final order shall be appealable to the appropriate regional trial court
which shall decide the same in accordance with Section 22 of Batas Pambansa Blg. 129. The decision of the
regional trial court in civil cases governed by this Rule, including forcible entry and unlawful detainer, shall be
immediately executory, without prejudice to a further appeal that may be taken therefrom.
NOTE: That immediate execution requires proof that the losing party has been served with notice of judgment
(Dy vs. CA, 191 SCRA 585) and that notice of the motion for execution to the adverse party is required ( Limpo
vs. CA, 333 SCRA 575)
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
herewith.
SEC. 23. Effectivity. – This revised Rule on Summary Procedure shall be effective on November 15, 1991.
In fact, it has been declared that the motion for extension of time within which a party may plead is not a
litigated motion where notice to the adverse party is necessary to afford the latter an opportunity to resist the
application, but an ex parte motion made to the court in behalf of one or the other of the parties to the action,
in the absence and usually without the knowledge of the other party or parties. (Commercial Union Assurance
Company Limited, et. al. vs. Lepanto Consolidated Mining Company, et. al., L-43342. October 30, 1978, 86
SCRA 79, 95-96; Amante vs. Sunga, et. al., L-40491, May 28, 1975, 64 SCRA 192, 195)
Therefore, as long as it is filed within the period sought to be extended, a request for extension of time may be
filed ex parte and granted without the usual formalities applicable to motions in general. (Moya vs. Barton, 76
Phil. 831)
141

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LECTURE NOTES ON CIVIL PROCEDURE

Revised October 2009

WHAT IS CIVIL PROCEDURE

REQUISITES FOR A VALID EXERCISE OF JURISDICTION

2.1 Determined by allegations in the complaint. Jurisdiction must be determined at the

PROBLEM AREAS AFFECTING JURISDICTION

1. Actions which are incapable of pecuniary estimation

1.2 It is a claim, the subject of which cannot be estimated in terms of money.

2. DETERMINATION OF AMOUNTS OF THE CLAIM TO DETERMINE JURISDICTION AND PAYMENT OF

DISTINCTIONS BETWEEN THE NATURE OF JURISDICTION EXERCISED BY THE COURTS

WHAT HAPPENS WHEN JURISDICTION IS ACQUIRED

DOCTRINE OF PRIMARY JURISDICTION

LEVELS OF SUBJECT MATTER JURISDICTION

1. JURISDICTION OF THE SUPREME COURT

d) all cases in which only an error or question of law is involved.

2. JURISDICTION OF THE COURT OF APPEALS

3. JURISDICTION OF REGIONAL TRIAL COURTS

e) All actions involving the contact of marriage and marital relations;

4. JURISDICTION OF METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS AND MUNICIPAL

RULE I GENERAL PROVISIONS

1. The Rules shall be known and cited as the Rules of Court. 37

2.3 Civil Actions may be considered as:

3. Civil Actions can also be distinguished as:

WHEN AN ACTION IS COMMENCED

2. If an additional defendant is impleaded in a later pleading, it is commenced as far as the additional

HOW SHOULD THE RULES BE CONSTRUED

2. Liberal construction of the rules should be made by the courts in cases:

b) where the interest of substantial justice will be served

4.1 Periods for filing are as a matter of practice, strictly construed.

RULE 2 CAUSE OF ACTION

CAUSE OF ACTION DEFINED

1. The basis of an ordinary civil action is a cause of action. 66

DISTINGUISHING IT FROM AN ACTION AND A RIGHT OF ACTION

HOW MANY SUITS CAN BE FILED FOR A CAUSE OF ACTION

5. The singleness of a cause of action is determined as follows:

IF A PARTY HAS SEVERAL CAUSES OF ACTION

3. Joinder is subject to the following conditions:

2. Misjoinder is not ground for a motion to dismiss.

RULE 3 PARTIES TO CIVIL ACTIONS

WHO MAY BE PARTIES TO A CIVIL ACTION

2. Juridical persons include:

4.1 It can also cover a corporation by estoppel 90 or partnership by estoppel91

CLASSIFICATION OF REAL PARTIES IN INTEREST

PERSONS WHO CAN SUE IN BEHALF OF A REAL PARTY IN INTEREST

The following may sue in behalf of a real party in interest

1. Representatives - actions are allowed to be prosecuted / defended by a representative or by one acting

5. The three requisites of a class suit are:

EFFECTS OF FAILURE TO JOIN AN INDISPENSABLE PARTY OR A NECESSARY PARTY

IF A PARTY TO BE JOINED AS A PLAINTIFF DOES NOT CONSENT OR CANNOT BE OBTAINED

WHO WILL PLAINTIFF SUE IF HE IS UNCERTAIN

EFFECT OF DEATH OF A PARTY

DEATH/SEPARATION OF A PUBLIC OFFICER

EFFECT OF DEATH OF THE DEFENDANT ON A CONTRACTUAL MONEY CLAIM

EFFECT ON INCOMPETENCY/INCAPACITY ON AN ACTION

EFFECT OF A TRANSFER OF INTEREST PENDING LITIGATION

5. On appeal, a motion to litigate as an indigent or pauper litigant is allowed.

WHEN SOLICITOR GENERAL IS REQUIRED TO APPEAR

RULE 4 – VENUE OF ACTIONS

VENUE DEFINED AND DISTINGUISHED