REVISED RULES ON CIVIL PROCEDURE

JUDGE GLOBERT J. JUSTALERO

Basic Princples
The Frame Work
The study of Civil Procedure would be easy to understand if the students would have a
basic knowledge and familiarity of the different framework of procedure governing civil cases. A
total picture of the intricacy of litigating civil cases would be essential requirements for
students to fully comprehend the flow or the proper sequence of the procedural aspect
governing civil prosecure.
Below are the basic principles or fundamentals that every student of civil procedure
should understand by heart, in order to guide them get through procedural problem areas and
obstacles. Mastery and familiarity, therefore, of these basic principles and fundamentals should
be properly embraced by students through the dynamics of the so called “study hard, study
smart” instructions.
1. Complaint

Complaint is the first pleading in an ordinary civil action that is filed with the court. The
function of a complaint is to give the opposing party notice of the nature and basis for the
claim.

a. A civil action starts with the institution of an action or a suit. An action has been
always considered as the means by which one prosecutes another for the
enforcement or protection of a right, or the prevention or redress of a wrong.

Cause of action – The existence of a cause of action is imperative before the plaintiff acquires a
right of action or the right to file a complaint against the defendant. The cause of action refers
to the facts or combination of facts, which will entitle the plaintiff to seek judicial relief upon his
claim against the defendant. Simply put, in order to have a cause of action, the plaintiff must
allege:
(a) That he has a legal right;
(b) That the defendant has a legal obligation to respect the right of the plaintiff;

(c) That the defendant violated the legal right of the plaintiff; and
(d) That the violation caused damage or injury to the plaintiff.

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 b. Parties – Only natural or juridical persons or entities authorized by law may be
parties to a civil action. If the plaintiff has no legal capacity to sue, the action may be
dismissed based on such ground. Even if he has the legal capacity to sue, he must
also determine if he has the legal personality to sue by determining whether or not
he is the real party in interest. A real party in interest is the person who stands to be
benefited or injured by the judgment.

c. Jurisdiction – jurisdiction is not a matter of procedure. It is a matter of law. It is

conferred by law. The different laws which confer jurisdiction are the following:

1. BP 129 – The Judiciary Reorganization Act of 1980.

2. R.A. No. 7691 – An Act expanding the Jurisdiction of the Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts, amending for
the purpose BP 129.

3. RA No. 10951 – An Act adjusting the Amount or the Value of Property and
Damage on Which a Penalty is Based and the Fines imposed under the Revised
Penal Code, Amending for the purpose Act No. 3815, otherwise known as The
Revised Penal Code. (Applicable only in criminal cases)

4. RA No. 11576 – The law expanding the jurisdiction of Trial Courts

Venue – The venue of an action sometimes depends on the residences of the parties to
the action. It sometimes depends on the location of the property over which the action is
founded.

A personal action or one that is founded on the following:

(1) Privity of contract,

(2) Recovery of personal property or

(3) Recovery of damages, has to be filed either in the place of residences of the
plaintiff or of the defendant at the option of the plaintiff.

A personal action is considered a transitory action because its venue is dependent

on the residences of the parties.

Real action is a kind of action founded upon the privity of real property. This kind of
action is to be filed in the place where the property subject of the action is situated.
Viewed from this perspective, a real action is deemed a local action.

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 d. Certification against forum shopping – The plaintiff or principal party certifies among
others, that he has not commenced any action or filed any claim involving the same
issues in any other tribunal. Failure to comply with this requirement shall be cause
for the dismissal of the complaint.

2. Summons

Upon the filing of the complaint and the payment of the docket fees, it is now the turn
of the clerk of court to make his move. Under the Rules, the Clerk of Court shall issue the
corresponding summons.

Commencement of the application of the Rules of Civil Procedure

(a) From the point of view of the plaintiff, the filing of the complaint commences the
application of the rules of civil procedure. However, to be procedurally precise, with
respect to the plaintiff, the application of the rules of civil procedure starts from the
time the plaintiff engages the legal services of a counsel regarding a particular civil
case. While studying the case of his client, the counsel must first determine the basic
principles like “cause of action” “the venue” and “the jurisdiction of the court”
among other things.

(b) To the defendant however, his first encounter with procedural laws begins when he
validly receives the summons ordering him to answer, to appear and defend a
lawsuit.

However, it is also safe to conclude that if the complainant initiated his complaint
before the appropriate lupon, then the initial encounter with the rules of civil
procedure, for the plaintiff and the defendant would be before the Barangay Lupon.

The filing of the complaint enables the court to acquire jurisdiction over the
person of the plaintiff, and the filing could be done either personally by the plaintiff
himself or by his duly authorized representative. It appears therefore, that there is only
one mode for the court to acquire jurisdiction over the person of the plaintiff, and that
is by the filing of the latter’s complaint before the proper court. But it should be
remembered that this jurisdiction does not extend to the person of the defendant. For
the court’s proceedings to have all the indicia of validity, the court must also have
jurisdiction over the person of the defendant. Jurisdiction over the person of the
defendant could be acquired by the court had through a valid service of summons, or by
his appearance in court, or by filing pleadings or motions seeking affirmative relief. No
court will proceed with the determination of the case until it believes that it has
acquired jurisdiction over all the parties to the litigation.

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 3. Motion for Bill of Particulars

The defendant may have the allegations in the complaint be clarified by filing a motion
for bill of particulars. The subject of a bill of particulars could be “the answer,” “the
counterclaim,” “the cross claim,” “the reply,” or “the rejoinder.”Through this motion the
movant asks the court to order the adverse party for a definite statement of any matter not
averred with sufficient definiteness or particularity.

Upon receipt by the defendant of the complaint, at that point in time, there is still no
necessity for him to file his answer, if there are allegations in the complaint that needs to be
clarified. In order for the defendant to make an intelligible answer, the uncertainty in the
complaint must first be threshed out.
4. Motion to Dismiss

If there are no other available objections to the complaint, like no ground for the filing
of bill of particulars exists, still there no need yet to file the answer. The defendant may instead
file a motion to dismiss the complaint based on well defined grounds. Although under the
present amendments, the Rule on Motion to Dismiss has been deleted or interposed with other
provisions of the Rules of Court, but still it does not prohibit the defendant from filing a motion
to dismiss based on the grounds authorized by the rules.

5. DEFAULT
There is only one ground to declare a defendant in default, and that is the failure to file
his answer within the reglementary period. It is important to remember that the court cannot
declare the defendant in default motu proprio, as it requires a motion from the plaintiff. It is a
procedural blunder therefore for the court to declare a defendant in default sans a motion to
declare defendant in default.
Basic in our procedural law that if the defendant is declared in default, he loses his right
to participate in the trial and the court may thereupon render judgment granting the plaintiff
such relief as his complaint may warrant, unless in his discretion he requires the plaintiff to
submit his evidence without the participation of the defendant declared in default. If the
evidence favors the plaintiff, a judgment by default shall be rendered against the defendant.
The judgment in this case shall not however, exceed the amount or be different in kind from
that prayed for by the plaintiff.
However, it does not follow that the failure of the defendant to file his answer would, as
a matter of course, results to a favourable judgment for the plaintiff. The court must still decide
the case based on the merit either by examining and evaluating the evidence of record or
require the plaintiff to present his evidence.

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 6. Answer

If there is no ground for a Motion to Dismiss or if the motion to dismiss was rightfully
denied, or the Motion for Bill Particulars has been denied or granted, the defendant has to file
his answer. The answer gives notice to the plaintiff as to which allegations in the complaint he
decides to contest.

The answer contains two kinds of defenses, the negative and affirmative defenses.

Negative defenses refer to the specific denials of the material facts alleged in the
complaint essential to the claiming party’s cause or causes of action.

The affirmative defenses on the other hand, are the allegations of new matters, which,
while hypothetically admitting the material allegations in the pleading of the claimant, would
nevertheless prevent or bar recovery by the claimant or plaintiff. The affirmative defenses
include fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel or
any other matter by way of confession and avoidance. Kindly take note that under the present
amendments, there are grounds for a motion to dismiss which are also considered as
affirmative defences. (Rule 6, Section 5)

7. Counterclaim
A counterclaim may either be compulsory or permissive. The distinction between these
counterclaims is of practical importance to any litigant. A compulsory counterclaim must be set
up in the action. If it is not set up, it will be barred because it is one that arises out of the same
transaction or occurrence, which is the basis of the complaint. On the other hand, if the
counterclaim is permissive, the defendant has the option of setting it up in the same action or
making it the subject of an independent action.
8. Cross-claim

It also quite frequently that two or more defendants are named in a complaint and one
defendant has a claim against is co-defendant arising out of transaction or occurrence subject
matter of the original action. In this case, the claiming defendant may file a cross-claim against
the other defendant. A cross claim is a claim by one defendant against a co-defendant in the
same action.

9. Reply

Upon receipt of the answer of the defendant, the plaintiff may decide to respond to the
answer. This response is in the form of a reply. The purpose of a reply is to deny or allege facts
in denial or avoidance of new matters alleged in the answer. In other words, a reply is the
plaintiff’s answer or response to the defendant answer. The filing of a reply, as a rule, not

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mandatory because if the plaintiff does not file a reply, all the new matters in the answer are
nevertheless deemed controverted. Remember that the present amendment now declares that
“all new matters alleged in the answer are deemed controverted.” Under the rules, the only
instance wherein the plaintiff shall file a reply is when the defending party attached an
actionable document to his or her answer.” (Rule 6, Section 10) The failure of the plaintiff to file
a reply when the answer is based on an actionable document would result to implied admission
of the genuineness and due execution of the action document.

10. Rejoinder

The current amendments allow the filing of a Rejoinder. Thus: “In the event of an
actionable document attached to the reply, the defendant may file a rejoinder if the same is
based solely on an actionable document.” (Sec. 10, last paragraph). Similarly, the failure of the
defendant to file a rejoinder to the reply, which is based on actionable document would also
result to an implied admission on the genuiness and due execution of th subject actionable
document.

As a matter of procedure, the Reply is the last responsive pleading, wherein the Branch
Clerk of Court, within five (5) calendar days from the filing, shall issue a notice of pre-trial. It
appears, however, that if the Reply is based on an actionable document, the last responsive
pleading would be a Rejoinder. In this case, the Branch Clerk of Court shall issue a notice of pre-
trial within five (5) calendar days from the filing of the Rejoinder.
11. Pre-trial

Under the old rules, after the last pleading has been served and filed, the plaintiff has
the duty to move ex parte that the case be set for pre-trial. A pre-trial is mandatory. In a pre-
trial, the parties shall, among others, consider the possibility of an amicable settlement or of
submission of the case to alternative modes of dispute resolution.

The current rules now assert that “After the last responsive pleading has been served
and filed, the branch clerk of court shall issue, within five (5) calendar days from filing, a notice
of pre-trial which shall be set not later than sixty (60) calendar days from the filing of the last
responsive pleading. (Rule 18, Section 1)

12. Trial

During the trial, the parties present their evidence in accordance with the rules of
relevance and competence. The plaintiff first presents is evidence. At the conclusion of his
presentation, he orally and formally offers his documentary evidence. He then rests his case. It
is now the turn of the defendant to present his evidence. However, if the defendant believes
that upon the facts and the law the plaintiff is not entitled to relief, he may, instead of

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presenting his own evidence, move for a demurrer to evidence praying that the action be
dismissed. A demurrer to evidence actually is a specie of a motion to dismiss. If the demurrer is
denied, the defendant presents his own evidence the same manner the plaintiff did at an
earlier stage.

13. Judgment –

A judgment is the decision of the court in the action presented before it. It represents
the court’s official determination of the respective rights and obligations of the parties
submitted to the court for determination.

14. Remedies against a judgment –

The losing party may make his move to protect his interest. Before finality of the
judgment and depending on the ground he desires to invoke, he may file (1) a motion for
reconsideration, (2) a motion for new trial or (3) he may appeal.

If the judgment has already become final, he may file (1) a petition for relief from
judgment. If this is no longer possible, he may file (2) an action to annul the judgment based on
lack of jurisdiction or extrinsic fraud. He may also (3) attack the judgment collaterally if there be
a ground for doing so or (4) he may avail of a petition for certiorari.
15. Execution –

Is the remedy afforded by law for the enforcement of a judgment, it is the fruit and end
of the suit. The rules say that “execution shall issue as a matter of right, on motion, upon a
judgment or order that disposes of the actionor proceeding upon the expiration of the period
to appeal therefrom if no appeal has been duly perfected.” (Rulee 39, Sec. 1)

Concept of Remedial Law:

Remedial law is the traditional term given to the RULES which prescribes the
PROCEDURE for the protection and enforcement of all claims arising from the right and duties
created by law.
Coverage of Remedial Law
1. Civil Procedure – For Civil Cases
2. Criminal Procedure – For Criminal Cases
3. Evidence
4. Special Civil Actions
5. Special Proceedings

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 6. Provisional Remedies
What are the mechanics of due process as part of Remedial Law?
Remedial Law provides for the mechanics of due process which are:
a. A court or tribunal clothed with judicial power to hear and determine the matter before
it;
b. Jurisdiction must be lawfully acquired over the person of the defendant or over the
property which is the subject of the proceeding.
c. The defendant must be given an opportunity to be heard; and
d. Judgment must be rendered upon a lawful hearing. (Consolidated Bank and Trust Corp.
vs. Court of Appeals, 193 SCRA 158)

Substantive law distinguished from Remedial law (Bar 2006)

Substantive law creates, defines, and regulates rights and duties concerning life, liberty,
property or the pursuit of happiness, the violation of which gives rise to a cause of action.
Examples of substantive law are The New Civil Code of the Philippines, The Corporation Code,
and The Labor Code and The Revised Penal Code, as well as special laws. The governing law
concerning contracts, agreements and conveyances like sale or lease or mortgage, is the New
Civil Code the Philippines but for the purpose of enforcing said contracts, agreements and
conveyances, reference is with the Rules of Court.
Remedial law like The Rules of Civil Procedure prescribes the methods of enforcing
those rights and obligations, created by substantive law by proving a procedural system for
obtaining redress for the invasion of rights and violations of duties and by laying out rules as to
how suits are filed, tried and decided upon by the courts. For instance, a person was found
dead of stab wound, or the victim was killed by the accused. In determining whether it was a
case of homicide or murder, reference must be made to the Revised Penal Code. On the other
hand, on how the accused must be prosecuted for the killing the victim is within the mandate
of the Rules of Criminal Procedure.

The procedural rules under the Rules of Court are not laws
The Rules of Court as a whole has reference to the body of rules governing pleading,
practices and procedure promulgated by the Supreme Court pursuant to its rule-making powers
under the Constitution. As they do not originate from the Legislature, they cannot be called
laws in the strict sense of the word. However, since they are promulgated by authority of law,
they have the force and effect of law if not in conflict with positive law. In the principle on
statutory construction, the Rules are subordinate to statute, and in case of conflict, the statute
will prevail.

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Prospective effect of Rules of Court (Bar 2011)
The rules embodied in the Rules of Court are not penal laws and are not to be given
retroactive effect and are to govern cases brought after they take effect, and also all further
proceedings in cases then pending, except to the extent that in the opinion of the court, their
application would not be feasible or would work injustice, in which event the former
procedure shall apply.
Applicability to pending actions; retroactivity (Bar 2011)
1. Rules of procedure however, may be made applicable to actions pending and
undetermined at the time of their passage, and are deemed retroactive in that sense
and to that extent. As a general rule, the retroactive application of procedural laws
cannot be considered violative of any personal rights because no vested rights may
attach to nor arise therefrom.

2. For instance, the Court also applied to pending actions, a rule promulgated through a
case, (Neypes v. Court of Appeals, G.R. No. 141524, September 14, 2005) which
standardized the period for appeal by allowing a “fresh period” of 15 days within which
to file the notice of appeal in the Regional Trial Court, counted from receipt of the order
dismissing a motion, for a new trial or motion for reconsideration.

“Fresh-Period Rule” a procedural law; Retroactive application

The “fresh period rule” is a procedural law as it prescribes a fresh period of 15 days
within which an appeal may be made in the event that the motion for reconsideration is denied
by the lower court. Following the rule on retroactivity of procedural law, the “fresh period rule”
should be applied to pending actions.
When procedural rules do not apply to pending actions
While a procedural rule may be made applicable to actions pending and undetermined
at the time of their passage and is retroactive in that sense, the rule does not apply:
(a) Where the statute itself or by necessary implication provides that pending actions
are excepted from its operation;
(b) If applying the rule to pending proceedings would impair vested rights;
(c) When to do so would not be feasible or would work injustice ; or
(d) If doing so would involve intricate problems of due process or impair the
independence of the courts.

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Applicable actions or proceedings
The Rules of Court shall govern procedure to be observed in civil actions, criminal
actions, and special proceedings and shall also apply in all courts, except as otherwise provided
by the Supreme Court.

RULE MAKING POWER OF THE SUPREME COURT

The Supreme Court has the exclusive power to promulgate rules concerning the
protection and enforcement of constitutional rights, pleading, practice, and procedure in all
courts, the admission to the practice of law, the integrated bar, and legal assistance to the
underprivileged. Any such rules shall provide a simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not
diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-
judicial bodies shall remain effective unless disapproved by the Supreme Court. (Art. VIII,
Section 4, of the 1987 Constitution)

The Supreme Court's rule-making power has been enhanced under the 1987
Constitution. The new Fundamental Law gives the Court the power to promulgate rules
concerning the protection and enforcement of constitutional rights, pleading, practice and
procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal
assistance to the underprivileged. The Supreme Court is even given the power to disapprove
rules of procedure of special courts and quasi-judicial bodies. The only limitations to these
powers is that such rules shall provide a simplified and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish,
increase, or modify substantive rights.

For the first time, the Court was granted with the following: (1) the power to
promulgate rules concerning the protection and enforcement of constitutional rights; and (2)
the power to disapprove rules of procedure of special courts and quasi-judicial bodies. The
1987 Constitution also took away the power of Congress to repeal, alter, or supplement rules
concerning pleading, practice and procedure.( Echegaray v. Secretary of Justice, G.R. No.
132601, January 19, 1999, 301 SCRA 96, 111.)

The Supreme Court may promulgate procedural rules in all courts. It has the sole
prerogative to amend, repeal or even establish new rules for a more simplified and inexpensive
process, and the speedy disposition of cases. ( Neypes v. CA, G.R. No. 141524 (2005).)

Limitations are provided for by the Constitution:

[1] The rules shall provide a simplified and inexpensive procedure for the speedy disposition of
cases,
[2] The rules shall be uniform for all courts of the same grade, and

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[3] The rules shall not diminish, increase, or modify substantive rights. (Art. VIII, Sec. 5[5],
Constitution).

In determining whether a rule prescribed by the Supreme Court, for the practice and
procedure of the lower courts, abridges, enlarges, or modifies any substantive right, the test is
whether the rule really regulates procedure, that is, the judicial process for enforcing rights and
duties recognized by substantive law and for justly administering remedy and redress for a
disregard or infraction of them.

If the rule takes away a vested right, it is not procedural. If the rule creates a right such
as the right to appeal, it may be classified as a substantive matter; but if it operates as a means
of implementing an existing right then the rule deals merely with procedure. (Fabian vs.
Desierto, G.R. No. 129742, September 16, 1998, 295 SCRA 40.)

Power to amend the Rules

The Supreme Court has the power to amend, repeal or even establish new rules for a
more simplified and inexpensive process, and the speedy disposition of cases (Neypes vs. Court
of Appeals, supra)

Power to Suspend the Rules

The courts have the power to relax or suspend technical or procedural rules or to except
a case from their operation when compelling reasons so warrant or when the purpose of justice
requires it. What constitutes good and sufficient cause that would merit suspension of the rules
is discretionary upon the courts (Commisioner of Internal Revenue vs. Mirant Pagbilao
Corporation, 504 SCRA 484)

Procedural and Substantive Rules; What is the test?

[1] It is whether the rule really regulates procedure, the judicial process for enforcing rights and
duties recognized by substantive law and for justly administering remedy and redress for a
disregard or infraction thereof.

[2] If it takes away a vested right, it is not procedural. If the rule creates a right such as the right
to appeal – substantive.

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The different principles governing procedural laws

1.Principle of Judicial Hierarchy –

Pursuant to this doctrine, direct resort from the lower courts to the Supreme Court will
not be entertained unless the appropriate remedy cannot be obtained in the lower tribunals.
The Supreme Court will not entertain direct resort to it unless the redress desired cannot be
obtained in appropriate courts, and exceptiopnal and compelling circumstances, such as cases
of national interest and of serious implications, justify the extraordinary remedy of writ of
certiorari, calling the exercise of its primary jurisdiction (Heirs of Bertuldo Hinog vs. Melicor,
455 SCRA 460)
Simply stated, it is an ordained sequence of recourse to courts vested with concurrent
jurisdiction, beginning from the lowest, on to the next highest, and the ultimately to the
highest. It most certainly indicates that petitions for the issuance of extraordinary writs against
first level courts should be filed with the Regional Trial Court and those against the latter should
be filed in the Court of Appeals. This rule, however, may be relaxed when pure questions of law
are raised (Miaque vs. Patag, GR. Nos. 1790609-13)
This is observed and required (a) to prevent inordinate demands upon Supreme Court’s
time and attention which are better devoted to those matters within its exclusive jurisdiction,
and (b) to prevent further overcrowding of the Supreme Court’s docket.
For example, the Supreme Court has concurrent jurisdiction with the Court of Appeals
and Regional Trial Court to issue writs of Certiorari, Quo warranto and Habeas corpus and the
like, but this will not give the party the license to file said petition directly with the Supreme
Court. The case in point is the Petition for Quo warranto against former Chief Justice Sereno,
which could have been filed before the Regional Trial Court or Court of Appeals, but because of
exceptional and compelling circumstances, the Supreme Court took cognizance of said petition.
2.Doctrine of non-interference or doctrine of judicial stability –
This principle holds that courts of equal and coordinate jurisdiction cannot interfere
with each other’s orders (Lapu lapu Development and Housing Corp vs. Group Management
Corp., 338 SCRA 493) In the case of Suico Industrial Corp vs. CA, 301 SCRA 212, the Supreme
Court ruled that a Regional Trial Court has no power or authority to nullify or enjoin the
enforcement of a writ of possession issued by another Regional Trial Court. Under this principle
that it also bars a court from reviewing or interfering with the judgment of a co-equal court
over which it has no appellate jurisdiction or power or review (Villamor vs. Salas, 203 SCRA 540)

The doctrine of judicial stability or non-interference in the regular orders or judgments

of a co-equal court is an elementary principle in the administration of justice: 22 no court can
interfere by injunction with the judgments or orders of another court of concurrent jurisdiction

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having the power to grant the relief sought by the injunction. 23 The rationale for the rule is
founded on the concept of jurisdiction: a court that acquires jurisdiction over the case and
renders judgment therein has jurisdiction over its judgment, to the exclusion of all other
coordinate courts, for its execution and over all its incidents, and to control, in furtherance of
justice, the conduct of ministerial officers acting in connection with this judgment. 24

Thus, we have repeatedly held that a case where an execution order has been issued is
considered as still pending, so that all the proceedings on the execution are still proceedings in
the suit.25 A court which issued a writ of execution has the inherent power, for the
advancement of justice, to correct errors of its ministerial officers and to control its own
processes.26 To hold otherwise would be to divide the jurisdiction of the appropriate forum in
the resolution of incidents arising in execution proceedings. Splitting of jurisdiction is obnoxious
to the orderly administration of justice. (Atty. Tomas Ong vs. Judge Rasad Balindong, A. M. No.
RTC -10-2225, September 6, 2011)

3.Principle of Continuity of Jurisdiction –

This doctrine holds that once a court has acquired jurisdiction, that jurisdiction
continues until the court has done all that it can do to exercise that jurisdiction. In view of the
principle that once a court has acquired jurisdiction, that jurisdiction continues until the court
has done all that it can do in the exercise of that jurisdiction. This principle also means that
once jurisdiction has attached, it cannot be ousted by subsequent happenings or events,
although of a character which would have prevented jurisdiction from attaching in the first
instance. The court, once jurisdiction has been acquired, retain that jurisdiction until it finally
disposes of the case. (Abad vs. Regional Trial Court of Manila, G.R. No. L- 65505, October 12,
1987) Even the finality of the judgment does not totally deprive the court of jurisdiction over
the case. What the court loses is the power to amend, modify or alter the judgment. Even after
the judgment has become final, the court retains jurisdiction to enforce and execute it
(Echegaray vs. Secretary of Justice, G.R. No. 132601, January 19, 1999), except in the case of the
existence of a law that divests the court of jurisdiction.
4.Principle of Primary Jurisdiction –
Under this doctrine, it precludes the courts from resolving a controversy over which
jurisdiction has initially beend lodged with an administrative body of special competence. The
doctrine of primary jurisdiction holds that if a case is such that its determination requires the
expertise, specialized training and knowledge of an administrative body, relief must first be
obtained in an administrative proceeding before resort to the courts is had even if the matter
may well be within their proper jurisdiction. It applies where a claim is originally cognizable in
the courts and comes into play whenever enforcement of the claim requires the resolution of
issues which, under a regulatory scheme, have been placed within the special competence of
an administrative agency. In such a case, the court in which the claim is sought to be enforced
may suspend the judicial process pending referral of such issues to the administrative body for

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its view11 or, if the parties would not be unfairly disadvantaged, dismiss the case without
prejudice. (Leonardo Toribio vs. Hermilando Mandanas, G.R. No. 148106, July 17, 2006)

5.Doctrine of Exhaustion of Administrative Remedies

The rule requiring the exhaustion of administrative remedies rests on the principle that
the administrative agency, if afforded a complete chance to pass upon the matter again, will
decide the same correctly. There are both legal and practical reasons for the rule. The
administrative process is intended to provide less expensive and speedier solutions to disputes.
Where the enabling statute indicates a procedure for administrative review and provides a
system of administrative appeal or reconsideration, therefore, the courts – for reasons of law,
comity and convenience – will not entertain a case unless the available administrative remedies
have been resorted to and the appropriate authorities have been given an opportunity to act
and correct the errors committed in the administrative forum. The importance and value of the
exhaustion of administrative remedies as a condition before resorting to judicial action cannot
be brushed aside.

As the Court points out in Universal Robina Corp. (Corn Division) v. Laguna Lake
Development Authority: “The doctrine of exhaustion of administrative remedies is a
cornerstone of our judicial system. The thrust of the rule is that courts must allow
administrative agencies to carry out their functions and discharge their responsibilities within
the specialized areas of their respective competence. The rationale for this doctrine is obvious.
It entails lesser expenses and provides for the speedier resolution of controversies. Comity and
convenience also impel courts of justice to shy away from a dispute until the system of
administrative redress has been completed.”

It is true that the doctrine of exhaustion of administrative remedies is not an ironclad

rule, but recognizes exceptions, specifically: (a) where there is estoppel on the part of the party
invoking the doctrine; (b) where the challenged administrative act is patently illegal, amounting
to lack of jurisdiction; (c) where there is unreasonable delay or official inaction that will
irretrievably prejudice the complainant; (d) where the amount involved is relatively so small as
to make the rule impractical and oppressive; (e) where the question involved is purely legal and
will ultimately have to be decided by the courts of justice; (f) where judicial intervention is
urgent; (g) where the application of the doctrines may cause great and irreparable damage; (h)
where the controversial acts violate due process; (i) where the issue of non-exhaustion of
administrative remedies has been rendered moot; (j) where strong public interest is involved;
and (l) in quo warranto proceedings. (Ejera vs. Vergara, G.R. No. 163109, January 22, 2014)

Inapplicable actions or proceedings

Sec. 4, Rule 1 of the Rules of Court clearly provides that the Rules shall not apply to the
following cases:

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 1. Election cases
2. Land registration cases
3. Cadastral cases
4. Naturalization cases
5. Insolvency proceedings
6. Labor cases

2. The Rules may, however, apply to the above cases by (a) analogy or (b) in a suppletory
character and whenever practicable and convenience.
What is the meaning of “suppletory character” application of the Rules of Court?
It means that the provision in the Rules of Court will be made to apply where there is an
insufficiency in the applicable rule. (GSIS vs. Dinnah Villaviza, G.R. No. 180291, July 27, 2010)
Application of the Rules of Court in Impeachment Trial
The Rules of Evidence and procedure shall be applied liberally and whenever they are
practicable in Impeachment Trial Cases (Art. VI of the Rules of Impeachment Trial in the Senate)
Administrative proceedings are not strictly bound by formal rules of evidence. In
administrative proceedings, technical rules of procedure are not strictly applied. It is well-
settled that the rules of evidence are not strictly applied in proceedings before administrative
bodies such as the Board of Medicine, Energy Regulatory Board and the like.
Jurisprudence discloses that the rules in the Rules of Court do not also apply to non judicial
proceedings, like NLRC, SSS, COMELEC, and preliminary investigation before the office of the
public prosecutor, because these agencies have their own rules of procedure. For example, the
Original Document Rule, the Parol Evidence Rule and Hearsay Rule, among others, which are
strictly applied in judicial proceedings are not strictly observed before a non judicial agency.

15
 RULE 1
GENERAL PROVISIONS
Section 1. Title of the Rules. – These Rules shall be known and cited as the Rules of Court.
Section. 2. In what courts applicable. – These Rules shall apply in all the courts, except as
otherwise provided by the Supreme Court.
Section. 3. Cases governed. – These Rules shall govern the procedure to be observed in
actions, civil or criminal, and special proceedings.
(a) 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.

A civil action may either be ordinary or special. Both are governed by the rules for ordinary
civil actions, subject to the specific rules prescribed for a special civil action.

A civil action may be ordinary or special. Ordinary civil actions are governed by the
ordinary rules of procedure while special civil actions are governed by specific rules prescribed
for such actions. The ordinary rules of procedure apply to special civil action only suppletorily.
This means that where no specific rule is prescribed for a particular special civil action, the rule
used for an ordinary civil action shall apply.
The different kinds of Special Civil Action are provided for under Rules 62 to 71 of the
Rules of Court.

(1) Rule 62 -- Interpleader

(2) Rule 63 – Declaratory Relief and Similar Remedies
(3) Rule 64 – Review of Judgments and Final Orders or Resolutions of the
COMELEC and COA
(4) Rule 65 – Certiorari, Prohibition and Mandamus
(5) Rule 66 – Quo Warranto
(6) Rule 67 – Expropriations
(7) Rule 68 – Foreclosure of Real Estate Mortgage
(8) Rule 69 – Partition
(9) Rule 70 – Forcible Entry and Unlawful Detainer
(10) Rule 71 -- Contempt

(b) A criminal action is one by which the State prosecutes a person for an act or omission
punishable by law.

A criminal action is one by which the State prosecutes a person for an act or omission
punishable by law.

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 The prosection of criminal actions is governed by the Rules of Criminal Procedure.
CIVIL ACTIONS AND CRIMINAL ACTIONS, Distinguised
The purpose for which the action is instituted is significant in the distinction between a
civil and a criminal action. The former is brought to enforce, redress or protect private rights.
The latter is brought to punish an infraction of the criminal laws of the State. A civil action
affects private rights while a criminal action affects public interest.
Action defined

Action means the legal and formal demand of one’s right from another person made
and insisted upon in a court of justice.
Compare Civil Actions and Criminal Actions
1. 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.”
2. A criminal action “is one by which the State prosecutes a person for an act or omission
punishable by law.”
3. It has been ruled that “… proceedings are to be regarded as criminal when the purpose
is primarily punishment, and civil when the purpose is primarily compensatory or
remedial…”
4. In criminal actions, there is always this presumption of innocence in favour of the
accused. There is no such presumption in civil actions;
5. In civil actions, the burden of proof is Preponderance of Evidence, while in criminal
actions, the burden of proof is Proof of Guilt Beyond Reasonable Doubt.

(c) A special proceeding is a remedy by which a party seeks to establish a status, a right, or a
particular fact.

A special proceeding is a remedy by which a party seeks to establish a status, a right, or

a particular fact.

Kinds of Special Proceedings

Under Sec. 1 of Rule 72, special proceedings are provided for in the following:
(a) Settlement of estate of a deceased person;
(b) Escheat;
(c) Guardianship:
(d) Trustee:
(e) Adoption:
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane person;

17
 (h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporation;
(k) Constitution of family home;
(l) Declaration ofc absence or death;
(m) Cancellation or correction of entries in the civil registry.

Real and personal actions (BAR 2004; 2014)

1. An action is “real” when it affects title to or possession of real property, or an interest

therein. All other actions are personal actions (BAR 1994)

Examples: Action for unlawful detainer, forcible entry, accion publiciana, accion
reinvindicatoria, to quiet title or to remove a cloud on a title.
2. An action is real when it is founded upon the privity of real estate. That means that
realty, or an interest therein is the subject matter of the action.

3. To be a ‘real’ action, it is not enough that the action must deal with real property. It is
important that the matter in litigation must also involve any of the following issues: (a)
TITLE TO, OWNERSHIP, POSSESSION, PARTITION, FORECLOSURE OF MORTGAGE, or ANY
INTEREST IN REAL PROPERTY.

Examples of Personal Actions

a. An action for declaration of nullity of marriage;
b. An action for specific performance with damages
c. Action for Sum of Money

Significance of the distinction between a personal and real action.

1. For the purpose of determining the venue of the action.

A real action is ‘local’ i.e., its venue depends upon the location of the property involved
in the ligation:

a. An action to annul a sale of a land located in Baguio;

b. An action for ejectment must be filed where the real property subject of the action
is situated;
c. An action for the recovery of possession of the leased premises located in Davao
City.

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 A personal action is ‘transitory’ i.e., its venue depends upon the residence of the
plaintiff or the defendant.
a. An action for sum of money
b. An action for damages

In personam and in rem actions (BAR 1994; 2009)

1. A proceeding in personam is a proceeding to enforce personal rights and obligations
brought against the person and is based on the jurisdiction of the person, although it
may involve his right to, or the exercise of ownership of, specific property, or seek to
compel him to control or dispose of it in accordance with the mandate of the court. The
purpose of a proceeding in personam is to impose through the judgment of a court,
some responsibility or liability directly upon the person of the defendant.

Examples: An action for a sum of money.

An action for damages.
An action for the recovery of possession
2. It is an action against a person on the basis of his personal liability, while an action in
rem is an action against the thing itself, instead of against the person. Hence, a real
action may at the same time be an action in personam and not necessarily an action in
rem.

3. A judgment in rem is binding upon the whole world, such as a judgment in a land
registration case or probate of a will, while a judgment in personam is binding upon the
parties and their successor in interest but not upon strangers.

4. 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.

Examples of real action which is also an action in personam:

(1) An action to recover title to or possession of real property is a real action, but it is an
action in personam;
(2) An action to recover a parcel of land;
(3) An action for ejectment.
(4) An action for damages

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 Examples of personal action and in rem: (1) An action for declaration of nullity of marriage,
(2) Legal Separation
An action in rem
Is one where the judgment of the court binds the entire world and where the object of
which is to bar indifferently all who may object to the right sought to be established. It is an
action or proceeding against a “thing” or property, instead of a person. It does not seek to
impose responsibility or liability upon a person directly but operates against the particular thing
called the “res.”
Examples:
1. Probate proceeding.
2. Cadastral proceeding.
3. Action affecting the personal status of the plaintiff.
4. Insolvency proceeding.
5. Judicial settlement of a decedent’s estate.
6. Land registration proceeding.
Quasi in rem actions
An action quasi in rem is one wherein an individual is named as defendant and the
purpose of the proceeding is to subject his interest therein to the obligation or lien burdening
the property.
A proceeding quasi in rem is one brought against persons seeking to subject the
property of such persons to the discharge of the claims assailed.
Examples: (a) Action for partition; (b) Action for accounting, (c) attachment, and (d) foreclosure
proceeding.
These actions are essentially for the purpose of affecting the defendant’s interest in the
property and not to render a judgment against him.
Significance of distinction between actions in rem, in personam and quasi in rem
1. The distinction is important to determine whether or not jurisdiction over the person of
the defendant is required and consequently to determine the type of summons to be
employed.

2. Jurisdiction over the person of the defendant is necessary for the court to validly try and
decide a case against said defendant where the action is one in personam but not where
the action is in rem or quasi in rem.

20
 3. Against a resident defendant in an action in personam, this jurisdiction is acquired by
service in person on the defendant or in case he cannot be served in person within a
reasonable time, by substituted service of summons, or other modes of service of
summons as may be authorized by the Rules.

4. 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 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.

Nonetheless, summons must be served upon the defendant not for the purpose of
vesting the court with jurisdiction but merely for satisfying the due process requirements.
When summons by publication may be made in an action in personam
Summons by publication, as far as existing jurisprudence is concerned, will not enable
the court to acquire jurisdiction over the person of the defendant. This jurisprudential rule is
however, subject to the exceptions laid down under the amended rules which took effect on
July 1, 1997 and further amended by the 2019 Revised Rules of Civil Procedure.
(a) In Sec. 14 (now Sec. 16) of Rule 14, if the identity of the defendant is unknown or
whose whereabouts are unknown, service may, with leave of court, be effected
upon him by publication in a newspaper of general circulation.

(b) In Sec. 16 (now Sec. 18) of Rule 14, if the resident defendant is temporarily out of
the country, he may be served by publication with leave of court.

Section. 4. In what cases not applicable. – These Rules shall not apply to election cases, land
registration, cadastral, naturalization and insolvency proceedings, and other cases not herein
provided for, except by analogy or in a suppletory character and whenever practicable and
convenient.

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Inapplicable to actions or proceedings
1. The Rules of Court shall not apply to election cases, land registration, cadastral,
naturalization and insolvency proceedings, and other cases except by (a) analogy or in a
(b) suppletory character and whenever practicable and convenient.

2. The Rules shall not apply to pleading, practice and procedure in courts-martial. This is
because courts-martial are not courts within the Philippine judicial system and are
merely instrumentalities of the executive departments.
3. It is well-settled that the rules of evidence are not strictly applied in proceedings before
administrative bodies such as the Board of Medicine (Atienza v. Board of medicine, 642
SCRA 523).
4. Jurisprudence discloses that the rules in the Rules of Court do not also apply to non-
judicial proceedings.
5. The rules of evidence are not strictly observed in proceedings before administrative
bodies like the NLRC where decisions may be reached on the basis of position papers
only. Rules that prevail in judicial proceedings are not controlling befoe the labor arbiter
and the NLRC (Bantolino vs. Coca-Cola Bottlers, Phil., Inc., 403 SCRA 699) In the same
manner, the Rules of Evidence finds no application to election cases, and Impeachment
proceedings.

Section. 5. Commencement of action. – A civil action is commenced by the filing of the

original complaint in court. If an additional defendant is impleaded in a later pleading, the
action is commenced with regard to him on the date of the filing of such later pleading,
irrespective of whether the motion for its admission, if necessary, is denied by the court.
How civil action may be commenced?
Based on the above provision, a civil action is commenced by the filing of the original
complaint in court.
For example, in a civil case for Sum of Money, the commencement of the said civil
action is commenced by the filing of the complaint by the plaintiff against the defendant in
court of appropriate jurisdiction.
What is the rule when additional defendant is impleaded later?
If an additional defendant is impleaded in a later pleading, the action is commenced
with regard to him on the date of the filing of such later pleading, irrespective of whether the
motion for its admission, if necessary, is denied by the court. For instance, in the above case, if
there would be an additional defendant, and the complaint is appropriately amended to
implead said additional defendant, as to him the civil actin is commenced by the filing of the
amended complaint.

22
Section. 6. These Rules shall be liberally construed in order to promote their objective of
securing a just, speedy and inexpensive disposition of every action and proceeding.
Purpose of the Rules of Court:
1. The objective of the Rules of Court is to secure “a just, speedy and inexpensive
determination of every action and proceeding.”
2. The fundamental purpose of procedural rules is to afford each litigant an opportunity to
present evidence in their behalf in order that substantial justice is achieved.
3. The Rules of Court are to be liberally construed in order to promote their objective of
securing a just, speedy and inexpensive disposition of every action and proceeding. This
objective of securing a just and speedy justice through a policy of liberal construction is
one of the means of giving meaning to the constitutional injunction that “all persons
shall have the right to a speedy disposition of cases before all judicial, quasi-judicial or
administrative bodies.” In line with objective, for example, that the court frowns upon
the declaration of the defendant in default, since the court would rather decide the case
on the merit upon the presentation of evidence by the parties.

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 CIVIL ACTIONS
ORDINARY CIVIL ACTIONS
RULE 2
CAUSE OF ACTION
Section 1. Ordinary civil actions, basis of. – Every ordinary civil action must be based on a
cause of action.
Section. 2. Cause of action, defined. -- A cause of action is the act or omission by which a
party violates the rights of another.
A cause of action defined
A cause of action is the act or omission by which a party (defendant) violates the rights
of another (plaintiff) (Sec. 2, Rule 2, Rules of Court). It has also been referred to as “the fact or
combination of facts which affords a party a right to judicial interference in his behalf.”
When cause of action is required:

Sec. 1, Rule 2 of the Rules of Court requires that every ordinary civil action must be
based on a cause of action. It has no reference to a special civil action.
Elements of a cause of action
The elements of a cause of action are as follows:
1. A right in favor of the plaintiff by whatever means and under whatever law it arises or is
created;
2. An obligation on the part of the named defendant to respect or not to violate such right;
and
3. Act or omission on the part of such defendant in violation of the right of the plaintiff or
constituting a breach of the obligation of the defendant to the plaintiff for which the
latter may maintain an action for recovery of damages or other appropriate relief.

For example:
(a) Cause of action based on breach of contracts merely requires the following
elements: (a) the existence of a contract, and (b) the breach of the contract by the
defendant. Before there was a breach of contract by the defendant, the plaintiff has
yet no cause of action against the defendant.

(b) Cause of action for a sum of money based on a promissory note. Where the cause of
action rests on a promissory note, filing the action before the due date of the

24
 obligation would be premature because the obligation cause of action for a sum of
money based on a promissory note requires an allegation that a debt exists.
© Cause of action for unlawful detainer case, the cause of action does not accrue unless
there is a demand to vacate and is not complied with. If however, the suit is based on
expiration of the lease, notice and demand are not required (Labastida v CA, 287 SCRA 662)
If the unlawful detainer case is based on the alleged violation of the terms and
conditions of the lease agreement or failure to pay the rentals, the demand should not be “to
pay or vacate” but should be to PAY and VACATE (Sec. 2, Rule 70, Rules of Court).
(d) Cause of action for forcible entry. In forcible entry, the possession of the defendant
is illegal from the very beginning having deprived the actual possessor of his possession by
force, intimidation, threat, strategy or stealth (Sec. 1, Rule 70). It is the nature of defendant’s
entry into the land which determines the cause of action, whether it is forcible entry or
unlawful detainer. If the entry is illegal, then the action which may be filed against the intruder
is forcible entry. If, however, the entry is legal but the possession thereafter becomes illegal,
the case is unlawful detainer.
Section 3. One suit for a single cause of action. – A party may not institute more than one suit
for a single cause of action.
One suit for a single cause of action
Splitting a cause of action is not allowed by the Rules of Court. “A party may not
institute more than one suit for a single cause of action.” (Sec. 3, Rule 2, Rules of Court). This
rule against splitting a single cause of action is intended to prevent repeated litigation between
the same parties in regard to the same subject of controversy; to protect the defendant from
unnecessary vexation, and to avoid the costs and expenses incident to numerous suits. It comes
from that old maxim nemo debet bis vexare pro una et eadem causa (no man shall be twice
vexed for one and the same cause).
The rule protects not only the original defendant in the suit. It likewise protects the
plaintiff who may be a defendant in a counterclaim. Thus, the rule applies not only to complaint
but also to counterclaim and cross-claims. The term “defendant” refers to the original
defending party, the defendant in a counterclaim, the cross-defendant, or the third party
defendant.
Section. 4. Splitting a single cause of action; effect of. – If two or more suits are instituted on
the basis of the same cause of action, the filing of one or a judgment upon the merits in any
one is available as a ground for the dismissal of the others.

25
Splitting a single cause of action (BAR 1996, 1999, 2005)
Splitting a single cause of action is the act of instituting two or more suits for the same
cause of action (Sec. 4, Rule 2, Rules of Court). There is splitting a cause of action as understood
in procedural law, when the pleader divides a single cause of action, claim or demand into two
or more parts and brings a suit for one such part with the intent to reserve the rest for another
separate action.
Prohibition against splitting a single cause of action
Splitting a single cause of action is not allowed by the Rules of Court. “A party may not
institute more than one suit for a single cause of action.” (Sec. 3, Rule 2, Rules of Court)
The practice of splitting a single cause of action is discouraged because it breeds
multiplicity of suits, clogs the court dockets, leads to vexatious litigation, operates as an
instrument of harassment, and generates unnecessary expenses to the parties.
The rule against splitting a single cause of action applies not only to complaints but also
to counterclaims and cross claims.
Examples:
1. The act of a defendant in taking possession of the plaintiff’s land by means of force and
intimidation constitutes a single act of dispossession but gives rise to two reliefs: (a)
recovery of possession and (b) damages arising from loss of possession. Under the rules,
the complainant cannot file an action for recovery of possession, and later on file
another and separate action for damages.
2. An action for forcible entry should include not only the plea for restoration of
possession but also claims for damages arising out of forcible entry.
3. As applied to Ejectment Case:

Two remedies, namely: (1) recovery of possession; and (2) recovery of damages.
To sue for ejectment and to subsequently sue for damages arising from the same act of
the defendant that gave rise to the ejectment would be to split a single cause of action.
4. As applied to Action for Recovery of Property:

If the suit is brought for recovery of possession only without claiming damages in the
same action, a subsequent action for the recovery of damages cannot be maintained without
offending the rule against splitting a single cause of action.

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 5. As applied to Action for Payment of a debt secured by a mortgage:

For failure to pay a debt secured by a mortgage, the creditor has but one cause of action
against the debtor. The creditor cannot split up this cause of action by filing a complaint for
payment of the debt and thereafter, filing another complaint for foreclosure of mortgage. The
creditor may file an ordinary action for collection or foreclosure of the mortgage. An election of
one operates as a waiver of the other.
BAR 2016
Elise obtained a loan of P3 Million from Merchant Bank. Aside from executing a
promissory note in favor of Merchant Bank, she executed a deed of real estate mortgage over
her house and lot as security for her obligation. The loan fell due but remained unpaid; hence,
Merchant Bank filed an action against Elise to foreclose the real estate mortgage. A month
after, and while the foreclosure suit was pending, Merchant Bank also filed an action to recover
the principal sum of P3 Million against Elise based on the same promissory note previously
executed by the latter.
In opposing the motion of Elise to dismiss the second action on the ground of splitting of
a single cause of action, Merchant Bank argued that the ground relied upon by Elise was devoid
of any legal basis considering that the two actions were based on separate contracts, namely,
the contract of loan evidenced by the promissory note, and the deed of real estate mortgage.
Is there a splitting of a single cause of action? Explain your answer.
Suggested answer
Yes, there is a splitting of a single cause of action.
Under the Rules of Civil Procedure, there is a splitting of a single cause of action if two or
more suits are instituted on the basis of the same cause of action. A cause of action is the act or
omission by which a party violates a right of another.
Here, both suits, the foreclosure and the collection suit, arose from the same cause of
action, that is, the non-payment by Elise of her P3 million loan from Merchant Bank. The fact
that the two actions were based on separate contracts is irrelevant, what matters is that both
actions arose from the same cause of action.
Effect of splitting a single cause of action (BAR 1998; 1999)
If two or more suits are instituted for a single cause of action, “the filing of one or a
judgment upon the merits in any one is available as a ground for dismissal of the others” (Sec.
4, Rule 2, Rules of Court). The remedy then of the defendant is to file a motion to dismiss.
(a) Hence, if the first action is pending when the second action is filed, the latter or the
second action may be dismissed based on litis pendencia, there is another action
pending between the parties for the same cause.

27
 (b) If a final judgment had been rendered in the first action when the second action is
filed, the latter or the second action may be dismissed based on res judicata, that
the cause of action is barred by a prior judgment.

Example 1: The plaintiff files an action against the defendant for Breach of Contract. Then the
plaintiff despite the pendency of the first action files another action against the same
defendant based on the same cause of action for Damages. The defendant may file a motion to
dismiss the second suit based on litis pendencia or lis pendens, i.e., that there is another action
pending between the same parties for the same cause (Sec. 1[e], Rule 16, Rules of Court.
Example 2: The plaintiff files an action against the defendant for Cancellation of Title. After a
judgment is rendered on the first action filed by the plaintiff, the same plaintiff files another
suit for Breach of Contract, against the same defendant based on the cause of action subject of
the earlier judgment. The defendant in this case may file a motion to dismiss the second suit
based on res judicata, i.e., that the cause of action is barred by a prior judgment (Sec1[f], Rile
16, Rules of Court).
Section. 5. Joinder of causes of action. – A party may in one pleading assert, in the alternative
or otherwise, as many causes of action as he may have against an opposing party, subject to
the following conditions:
(a) The party joining the causes of action shall comply with the rules on joinder of parties;
(b) The joinder shall not include special civil actions or actions governed by special rules;
(c) Where the causes of action are between the SAME PARTIES but pertain to different
venues or jurisdictions, the joinder may be allowed in the Regional Trial Court
provided one of the causes of action falls within the jurisdiction of said court and the
venue lies therein; and
(d) Where the claims in all the causes of action are principally for recovery of money, the
aggregate amount claimed shall be the test of jurisdiction.

Joinder of causes of action (BAR 1996, 1999; 2000; 2005; 2011)

Joinder of causes of action is the assertion of as many causes of action as a party may
have against another in one pleading alone. It is the process of uniting two or more demands or
rights of action in one action.

Joinder of causes of action has the object of avoiding multiplicity of suits and obviating
piecemeal litigation by including in one action all claims by one party against another. In so
doing, this in effect would speed up the resolution of cases in the most inexpensive manner and
delete any uncertainty of an impending case.

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 By joinder of causes of action is meant the process of uniting of two or more demands
or rights of action in one action. It is the joining of several distinct, demands, controversies or
rights of action in one declaration, complaint or petition.
Example: If the defendant has two obligations in favor of the plaintiff, one for P1,000, 000. 00
due on a certain date and another for P1, 500, 000. 00, due on another date, the plaintiff has
two causes of action against the same defendant. Because of the rule permitting joinder of
causes of action, the plaintiff may file only one complaint for the recovery of both debts. He is
not however, obligated to file only one complaint because the joinder of causes of action is
merely permissive, not compulsory. He may instead file two separate complaints. If he files an
action to recover the first debt, he may later file another complaint to recover the other debt.
The filing of the first is not a bar to the filing of the subsequent complaint.
Requisites for joinder of cause of action
There are several limitations to the joinder of cause of action. Thus, the rule provides
that the joinder is subject to the following conditions:
1. The party joining the causes of action must comply with the rules on joinder of parties;
2. The joinder shall not include special civil actions, or actions governed by special rules;
3. Where the causes of action are between the same parties but pertain to different
venues or jurisdictions, the joinder may be allowed in the Regional Trial Court provided
one of the causes of action falls within the jurisdiction of said court and the venue lies
therein; and
4. Where the claims in the causes of action are principally for the recovery of money, the
aggregate amount claimed shall be the test of jurisdiction.

Two major types of joinders:

(a) A joinder of causes of action which does not involve a joinder of parties (same plaintiff/s
and the same defendant/s)

Where the causes of action to be joined are between the same plaintiff and the same
defendant, there is a joinder of causes of action without a joinder of parties. In this type of
joinder, the cause of action joined does not have to arise out of the same transaction or series
of transactions. A common question of law or fact between or among such causes of action is
likewise not required.
Example:
Plaintiff, a resident of Manila has the following causes of actions against Defendant, a
resident of Quezon City: (1) collection of P1,500, 000. 00 under a promissory note executed in
Quezon City in 1997 and already due; (2) collection of P900, 000. 00 under a promissory note

29
executed in 1998 in Makati City and already due; (3) collection of P2, 000, 000. 00 representing
the value of a ring owned by Plaintiff bought by Defendant and already due but still unpaid.
Observe that the enumerated causes of action arose from totally different and
unrelated transactions and are not bound by a common issue of fact or law. They can
nevertheless, be joined in one complaint pursuant to Sec. 5 of Rule 2 of the Rules of Court. In
joining these causes of action which are all for the recovery of money, jurisdiction shall be
determined by taking into account the aggregate or total amount of the claims.
(b) A joinder of causes of action which at the same time involves a joinder of parties.
(different plaintiff/s and/or different defendant/s)

Where the joinder involves a joinder of parties because the causes of action are not only
between the same parties but involve other persons as well, as when there are different
defendants or different plaintiffs, the rule requires compliance with the rules on joinder of
parties.
The following are the requisites for a joinder of parties:
1. A right of relief in respect to or arising out of the same transaction or series of
transactions; and
2. A common question of law or fact. (Sec. 6, Rule 3, Rules of Court)

The above requisites are required only when the joinder of causes of action also
involves a joinder of parties because there are different plaintiffs or defendants.
Example 1:
Plaintiff X and Plaintiff Y, both passengers of Yellow Taxicab were injured in a traffic
accident caused by the negligence of the cab driver. May they join as plaintiffs in a suit
against the operator of Yellow Taxicab or in a suit against the cab driver? It is submitted that
they may. While the cause of action of Plaintiff X is separate and distinct from the cause of
action of Plaintiff Y, such causes of action may be properly joined because they arose out of
the same occurrence, i.e., the accident that cause their injuries. There is likewise a question
of fact or law common to both.
Example 2:
X and Y borrowed P350, 000. 00 from Z under a promissory note, which reads: “We
promise to pay Z or his order, P350, 000. 00 on February 8, 2015. Signed X and Y.” Despite
demand on maturity, X and Y did not pay. May Z sue both X and Y in a single complaint?
Z may sue both X and Y as joint defendants in a single complaint. Their debts arose out
of the same note, hence, out of the same transactions. Evidently, there is a commonality of
an issue of fact or law.

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BAR 1996
The complaint filed before the Regional Trial Court of Manila states two (2) causes of
action, one for Rescission of Contract and the other for the Recovery of One Hundred Thousand
Pesos, both arouse out of the same transaction. Is joinder of the two causes of action proper?
Suggested answer
If the causes of action are between the same parties, the causes of actions may be
joined in one complaint. While an action for Rescission of Contract is cognizable by the RTC
because it is an action incapable of pecuniary estimation and the other is within the jurisdiction
of MTC, they may be joined because neither action is a special civil action and there is no need
for complying with the rules on joinder of parties since there is only one plaintiff and one
defendant. The action was correctly filed in the RTC because one of the actions fall within the
jurisdiction of said court.

BAR 2015
Lender extended to Borrower a P100,000.00 loan covered by a promissory note. Later,
Borrower obtained another P100,000.00 loan again covered by a promissory note. Still later,
Borrower obtained a P300,000.00 loan secured by a real estate mortgage on his land valued at
P500,000.00. Borrower defaulted on his payments when the loans matured. Despite demand to
pay the P500,000.00 loan, Borrower refused to pay. Lender, applying the totality rule, filed
against Borrower
with the Regional Trial Court (RTC) of Manila, a collection suit for P500,000.00.
a.) Did Lender correctly apply the totality rule and the rule on joinder of causes of
action?

At the trial, Borrower's lawyer, while cross-examining Lender, successfully elicited an

admission from the latter that the two promissory notes have been paid. Thereafter,
Borrower's lawyer filed a motion to dismiss the case on the ground that as proven only
P300,000.00 was the amount due to Lender and which claim is within the exclusive original
jurisdiction of the Metropolitan Trial Court. He further argued that lack of jurisdiction over the
subject matter can be raised at any stage of the proceedings.

b.) Should the court dismiss the case?

Suggested answers (the answer is based on 1997 Rules of Civil Procedure)

a) Yes Lender correctly applied the totality rule and the rule on joinder of causes of
action.

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 Under the rule on joinder of causes of action, a party may in one pleading assert as
many causes of action as he may have against an opposing party. Under the totality rule,
where the claims in all the causes of action are principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction.

Here the causes of action by Lender are all against borrowers and all the claims are
principally for recovery of money.

Hence the aggregate amount claimed, which is P500,000 shall be the test of jurisdiction
and thus it is the RTC of Manila which has jurisdiction.

Although the rules on joinder of causes of action state that the joinder shall not include
special civil actions, the remedy resorted to with respect to the third loan was not foreclosure
but collection. Hence joinder of causes of action would still be proper.

b) No, the court should not dismiss the case.

The Supreme Court has held that subject-matter jurisdiction is determined by the
amount of the claim alleged in the complaint and not the amount substantiated during the trial.
(Dionisio v Sioson Puerto, 31 October 1974).

Here the amount claimed was P500,000. Even if the claim substantiated during the trial
was only P300,000 that is not determinative of subject-matter jurisdiction.

Hence the argument that lack of subject-matter jurisdiction can be raised at any time is
misplaced since in the first place the RTC has jurisdiction.

Section. 6. Misjoinder of causes of action. – Misjoinder of causes of action is not a ground for
dismissal of an action. A misjoined cause of action may, on motion of a party or on the
initiative of the court, be severed and proceeded with separately.

Effect of mis-joinder and non-joinder of parties

Based on the foregoing provision, misjoinder or non joinder of parties is not a ground
for a motion to dismiss. This is substantiated by Sec. 11, Rule 3, Rules of Court which states:
“Neither misjoinder nor non-joinder of parties is ground for dismissal of an action. Parties may
be dropped or added by order of the court on motion of any party or on its own initiative at any
stage of the action and on such terms as are just. Any claim against a misjoined party may be
severed and proceeded with separately.” Besides, misjoinder or non-joinder of parties is not
one of those grounds for a motion to dismiss as provided for by the Rules.
It is not the misjoinder or non-joinder of parties itself which would cause the dismissal
of an action but the failure to comply with the order of the court to add or a failure to comply

32
with the order of the court without justifiable cause is one of the grounds for the dismissal of a
complaint.
Remedy in case of mis-joinder of actions
When there is a misjoinder of causes of action, the erroneously joined cause of action
can be severed and proceeded with separately upon motion by a party or upon the court’s own
initiative. Misjoinder is not a ground for the dismissal of an action (Sec. 6, Rule 2, Rules of
Court). For example, if an action for forcible entry is joined in one complaint with the causes of
actions based on several promissory notes, the complaint should not be dismissed based on the
misjoinder of the forcible entry case which is classified as a special civil action. Instead the
cause of action predicated on forcible entry may be severed from the complaint upon motion of
a party or by the court motu proprio and proceeded with separately in another action.
Does a party still have a single cause of action if he seeks for a variery of remedies? Explain.
YES. A cause of action may be single although the plaintiff seeks a variety of remedies.
The mere fact that the plaintiff prays for multiple reliefs does not indicate that he stated more
than one cause of action. The prayer may be an aid in interpreting the petition and in
determining whether or not more than one cause of action is pleaded. If the allegations of the
complaint show one primary right and one wrong, only one cause of action is alleged even
though other matters are incidentally involved, and although different acts, methods, elements
of injury, items of claims or theories of recovery are set forth. Where two or more primary
rights and wrongs appear, there is a joinder of causes of action. (SPS. Decena vs. SPS. Piquero,
G.R. No. 155736, Match 31, 2006.)
MAY A PLAINTIFF FILE A SUIT AGAINST A DEFENDANT AND JOIN IN ONE SUIT SEVERAL CAUSES
OF ACTION? WHAT WILL BE THE JURISDICTIONAL TEST? EXPLAIN.
YES. The jurisdictional test is determined by the total demand of all the causes of action
irrespective of whether or not the causes of action arose out of the same or different
transactions. Hence, if the total demand is within the jurisdiction of the Regional Trial Court, file
it there; if it is within the MTC, then file there. (Flores vs. Hon. Heilia S. Mallare-Philipps, 144
SCRA 377.)
WHEN IS THE TOTALITY RULE APPLICABLE AND UNDER WHAT CONDITION?
The Totality Rule is applicable in the following cases:
(a) In actions where the jurisdiction of the court is dependent on the amount involved,
the test of jurisdiction shall be the aggregate sum of all the money demands, exclusive of
interest and costs, irrespective of whether or not the separate claims are owned by or due to
different parties. If any demand is for damages in a civil action, the amount thereof must be
alleged. (Iniego vs. Purganan, G.R. No. 166876, March 24, 2006, 485 SCRA 74.)

33
 (b) Cases where there are two or more plaintiffs having separate causes of action
against two or more defendants joined in a complaint.
The Totality Rule applies under the condition that the causes of action in favor of two or
more plaintiffs or against two or more defendants should arise out of the same transactions
and there should be a common question of law or fact. (Flores vs. Mallare-Philipps, 144 SCRA
377.)
IF THERE IS A COMPLAINT FOR SUM OF MONEY WITH DAMAGES WILL THE AMOUNT OF
DAMAGES BE ADDED TO THE SUM OF MONEY TO DETERMINE THE COURT THAT HAS
JURISDICTION? EXPLAIN.
NO. If the main action is for the recovery of sum of money and the damages being
claimed are merely the consequences of the main cause of action, the same are not included in
determining the jurisdictional amount.
However, in cases where the claim for damages is the main cause of action, or one of
the causes of action, the amount of such claim shall be considered in determining the
jurisdiction of the court. (Soliven vs. Fastforms Phil., Inc., G.R. No. 139031, October 18, 2004.)
GIVE EXAMPLES OF CASES WHERE THE ACTIONS ARE CONSIDERED AS INCAPABLE OF
PECUNIARY ESTIMATION.
Examples of actions that are incapable of pecuniary estimation are those for (1) specific
performance, (2) support, foreclosure of mortgage, annulment of judgment (Amorganda vs. CA,
166 SCRA 203), action questioning the validity of a mortgage (Bunayog vs. Tunos, 106 Phil. 715),
action annulling a deed of sale or conveyance and to recover the price paid (Phil. Farming Corp.
Ltd., vs. Llanos 14 SCRA 949); action for rescission which is a counterpart of specific
performance (Lapitan vs. Scandia, 24 SCRA 479).
Case
May an action for injunction be joined in one complaint together with an action for quieting of
title?
Answer
No. Section 5 Rule 2 provides that the joinder of causes of action shall not include special civil
actions. The joinder of an action for injunction with an action for quieting of title is not allowed
under Section 5 Rule 2 since the latter is a special civil action. (Salvador v. Patricia, Inc., 9 Nov
2016, Bersamin, J.).

34
 RULE 3
PARTIES TO CIVIL ACTIONS
Section 1. Who may be parties; plaintiff and defendant. – Only natural or juridical persons, or
entities authorized by law may be parties in a civil action. The term “plaintiff” may refer to
the claiming party, the counter-claimant, the cross-claimant, or to the third (fourth, etc)-
party plaintiff. The term “defendant” may refer to the original defending party, the defendant
in a counterclaim, the cross- defendant, or the third (fourth, etc)- party defendant.
Parties to a civil action
There are two main categories of parties to a civil action namely, the plaintiff and the
defendant (Sec. 1, Rule 3, Rules of Court)
The plaintiff is the claiming party or more appropriately, the original claiming party and
is the one who files the complaint.
The defendant does not only refer to the original defending party. The plaintiff maybe
the defendant in a counterclaim filed by the original defendant.
Who may be parties?
Only the following may be parties to a civil action:
1. Natural persons
2. Juridical persons,

Examples: (a) State and its political subdivisions; (b) Other corporations, institutions and
entities for public interest or purpose, created by law (c) Corporations, partnerships and
association for private interest or purpose
3. Entities authorized by law.

Examples: (a) corporation (b) partnership (c) estate of a deceased person (d) legitimate
labor organization (e) The Roman Catholic Church
Case
An unincorporated homeowners’ association (not registered w/ HLURB) filed a petition
for certiorari against the Quezon City government to assail the constitutionality of an
ordinance. If you are the lawyer for the developer, what legal step would you take on behalf of
your client?

35
Answer
I would file an answer raising the affirmative defense that the plaintiff has no legal
capacity to sue. Under Section1, Rule 3, only natural or juridical persons, or entities authorized
by law may be parties in a civil action. (Alliance of QC Homeowners Assoc. v. Q.C., 18
September 2018 ).
Case
A city mayor signed a contract in behalf of the city without the prior authorization of the city
council as required by the Local Government Code. Do the members of the city council have
standing to file a case for the nullification of the contract?
Answer
Yes. The real party in interest which may file a case, questioning the validity of a contract
entered into by the city mayor, who is alleged to have no authority to do so, is the city itself. It
is the local government unit which stands to be injured or benefited by any judgment that may
be made in this case. The city councilors as representatives of the city have the standing to file
the case. (Lao v. Cagayan de Oro City, 13 September 2017).
Effect when a party impleaded is not authorized to be a party
1. Where the plaintiff is not a natural or a 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.” However, under the present amendments, that “the plaintiff has no legal capacity
to sue” is no longer a ground for a motion to dismiss, rather it may be raised in the
answer as an affirmative defense.

2. Where it is the defendant who is not a natural or a juridical person or an entity

authorized by law, 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 a complaint cannot possibly state a cause of action against one who cannot be
a party to a civil action. However, based on the present amendments, that “pleading
asserting a claim states no cause of action” or the “failure to state a cause of action” is
no longer available as a ground for a motion to dismiss, but rather it may be raised as an
affirmative defense in the answer.

Section. 2. Parties in interest. – A real party in interest is the party who stands to be benefited
or injured by the judgment in the suit, or to the party entitled to the avails of the suit. Unless
otherwise authorized by law or these Rules, every action must be prosecuted or defended in
the name of the real party in interest.

36
Real party in interest (BAR 1988; 1989)
“A real party in interest is the party who stands to be benefitted or injured by the
judgment in the suit, or the party entitled to the avails of the suit.’ (Sec. 2, Rule 3, Rules of
Court)
Procedurally speaking, the determination of who the real party in interest requires the
going back to the elements of a cause of action and answering some fundamental questions
relative to its elements, thus: Who owns the right violated and who suffered the injury as a
consequence of the violation? Obviously, the owner of the right violated and the one who
suffered the injury is the real party in interest as plaintiff. Who caused the violation of the
plaintiff’s right resulting to his injury? Undoubtedly, the person who injured the plaintiff
because of the infringement of the latter’s right is the real party in interest as defendant.
Examples:
1. An action to recover corporate property. A stockholder is not the real party interest
in an action to recover corporate property. The real party in interest being the
corporation itself.
2. If A is the owner of the house and lot leased to Y. Through fraud Z, succeeded in
having the land registered in his name. Between A and Y, A is the real party in
interest in a suit assailing the validity of the registration because what was involved
was the issue of ownership.

If Z by means of strategy or stealth, deprived Y of possession of the land and house,

then Y was the real party in interest because what was involved is an issue of
possession.

3. The manager of a partnership is not the real party in interest as defendant in a suit
involving the property registered in the name of the partnership. It is the
partnership which is the real party in interest as defendant because the partnership
has a juridical personality separate and distinct from that of each of the partners.
4. In an action for annulment of her marriage, the woman is the real party in interest
and not her father.
Section. 3. Representatives as parties. – Where the action is allowed to be prosecuted or
defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall
be included in the title of the case and shall be deemed to be the real party in interest. A
representative may be a trustee of an express trust, a guardian, an executor or administrator,
or a party authorized by law or these Rules. An agent acting in his own name and for the
benefit of an undisclosed principal may sue or be sued without joining the principal except
when the contract involves things belonging to the principal.

37
Who is a representative party?
Where the action is allowed to be prosecuted or defended by a representative or
someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case
and shall be deemed to be the real party in interest.
A representative may be the following:
a) A trustee of an express trust,
b) A guardian,
c) An executor or administrator, or
d) A party authorized by law or these Rules,
e) An agent acting in his own name and for the benefit of an undisclosed principal may
sue or be sued without joining the principal except when the contract involves
things belonging to the principal.
This is a mandatory requirement because the beneficiary is considered by the Rules of
Court as the real party in interest. The present requirement reinforces the rule that every
action must be prosecuted and defended in the name of the real party in interest.
Example:
A guardian may file a case for and in behalf of his ward or minor, for the recovery of the
latter’s property. Although it is the guardian who filed the case, but the real party in interest is
the ward, and for that reason that the ward or minor must be included in the title of the case
and shall be deemed to be the real party interest. The caption of the case reads: “Juan dela
Cruz as guardian of minor Pedro Reyes, petitioner versus Agapito Santos, respondent.”
Section. 4. Spouses as parties. – Husband and wife shall sue or be sued jointly, except as
provided by law.

What is the rule in case of spouses as party in an action?

Action may be prosecuted jointly by or against:
(a) Jointly by husband and wife;
(b) Except as provided by law.
The exceptions as may be provided by law are as follows, to wit:
1) Action involving the exclusive property of the spouse which are as follows, to wit:

(a) Property brought to the marriage as his or her own;

(b) That which each acquires during the marriage by gratuitous title;

38
 (c) That which is acquired by right of redemption, by barter or exchange with property
belonging to only one of the spouse; and
(d) That which is purchased with exclusive money of the wife or of the husband. (Art.
109 of the New Civil code)
(e) Spouses are judicially separated.
(f) When they have in fact been separated for more than a year.
(g) When there is a separation of property agreed upon in the marriage settlement.
(h) If the administration of all property in the marriage has been transferred to her or
him.
(i) When the litigation is between the husband and the wife.
(j) If the suit concerns her paraphernal property or husband capital.
(k) When the action is upon the civil liability arising from a criminal offense.
(l) If the litigation is incidental to the profession, occupation or business in which she or
he is engaged.
(m) In an action upon a quasi-delict.

IS THERE A NEED FOR THE MAN TO BE JOINED AS A PARTY IN A SUIT FILED BY THE WIFE IF THEY
ARE LIVING SEPARATELY? WHY?
No. The rule that the married woman may not sue or be sued alone without joining her
husband except when she is living separately from her husband for a just cause is applicable
where the husband has abandoned or deserted his wife and children. From the very nature of
the situation, the wife must necessarily sue alone to protect her natural right and manage the
property during her husband’s absence. The husband cannot be expected to be made party
when it is precisely from his inability to act or from the existence of the case that the wife
derives her cause of action. (Peyer vs. Martines, 88 Phil. 72.)
Section. 5. Minor or incompetent persons. – A minor or a person alleged to be incompetent,
may sue or be sued, with the assistance of his father, mother or guardian, or if he has none, a
guardian ad litem.
What is the rule in case a party is a minor or incompetent?
A minor or a person alleged to be incompetent, may sue or be sued, with the assistance
of the following:
1. His father,
2. His mother,
3. guardian, or
4. If he has none, a guardian ad litem.
Section. 6. Permissive joinder of parties. – All persons in whom or against whom any right to
relief in respect to or arising out of the same transaction or series of transactions is alleged to

39
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
actions; but the court may make such orders as may be just to prevent any plaintiff or
defendant from being embarrassed or put to expense in connection with any proceedings in
which he may have no interest.
When is permissive joinder of parties allowed? Requirement.
All persons in whom or against whom any right to relief in respect to or arising out of
the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in
the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined
as defendants in one complaint, subject to the following requirements:
(a) Where any question of law or fact common to all such plaintiffs or to all such
defendants may arise in the actions;

(b) The court may make such orders as may be just to prevent any plaintiff or defendant
from being embarrassed or put to expense in connection with any proceedings in
which he may have no interest.
When any of the two requirements for permissive joiner of parties is not satisfied, then
there is a case of misjoinder of parties. This may well happen where there is no question of law
common to the parties, or where the claims by or against the parties do not arise from the
same transaction or series of transactions.
Although normally, a joinder of parties is permissive, the permissive nature of a joinder
does not apply when an indispensable party is involved. An indispensable party shall be joined
either a plaintiff or defendant because without him the action cannot be finally determined.
The rules, therefore, makes the joinder compulsory.
Examples
1.A, B and C are owners of adjoining houses. X is a driver of a gasoline tanker. X struck an
electric post, resulting to its explosion. The fire burned the house of A, B and C. Under the
circumstances, A can sue X for the loss of his house. B can sue X also for the loss of his house. C
can file a case against X for the burning of his house. There is a common question of law or fact
common to all such plaintiffs.
2. Carlos is the creditor of Danter for P1, 000, 000. 00, and also Edwin for P2, 000, 000. 00. Both
debts are due and have been contracted separately. May Carlos join Dante and Edwin as
defendants in the same complaint for Collection of Sum of Money? No. Where a party sues two
or more defendants, it is necessary for the causes of action to arise out of the same
transactions or series of transactions and that there should be a common question of law or

40
fact. There is no common question of law or fact since the debts contracted by Dante and
Edwin were separately entered into.
Distinction between Joinder of Plaintiff (Sec. 6, Rule 3) and Joinder of Causes of Action (Sec 5,
Rule 2).
The term “joinder of parties” must be distinguished from the term “joinder of causes of
action.” The term “joinder of parties” properly applies when two or more persons have a joint
right in one claim, or are jointly liable on one claim. There is actually “joinder of causes of
action” and not “joinder of parties” when two or more persons, each having a cause of action
against another person, join their causes of action in one complaint or where a plaintiff having
several causes of action, each against several persons, join these causes of action in one
complaint.
Example of Joinder of Parties:
(a) Several landowners may join together as plaintiffs in suing a factory as party
defendant for environmental and ecological destruction on their property. In
asmuch as joinder of parties is permissive, then anyone of the several landowners
may by himself file a case against the factory owner/s.
(b) A property owner may file a case for forcible entry against several persons as
defendants, for unlawfully encroaching or occupaying into his property. In a similar
way, the property owner may file a case against anyone of the several persons who
encroached or occupied his property.
(c) Where several passengers sustained physical injuries due to the negligence of the
driver, they may join together as plaintiff in filing a civil case for damages against
said driver. On the theory that joinder of parties is permissive, then anyone of the
passengers may file a separate civil action against the driver.
(d) In the same case above, anyone of the passengers may file a civil for damages by
himself, against the driver and the owner or operator of the passenger jeep as
defendants.
Section. 7. Compulsory joinder of indispensable parties. – Parties in interest without whom
no final determination can be had of an action shall be joined either as plaintiffs or
defendants.
Indispensable parties (BAR 1996)
An indispensable party is a real party-in-interest without whom no final determination
can be had of an action (Sec. 7, Rule 3, Rules of Court)

With respect to the determination on whether a person is an indispensable party, the

court must take a wholistic approach in the sense that the court must carefully examine the

41
facts of the case, the relief sought, and the nature and extent of the absent person’s interest in
the controvery raised in the lawsuit.

An outright dismissal is not the immediate remedy authorized by the Rules because
under the Rules, a non-joinder (or misjoinder) of parties is not a ground for dismissal of an
action. Instead, parties may be dropped or added by the court on motion of any party or on its
own initiative at any stage of the action and on such terms as are just. It is when the order of
the court to implead an indispensable party goes unheeded may the case be dismissed. The
court is fully clothed with the authority to dismiss a complaint due to the fault of the plaintiff as
when, among others, he does not comply with any order of the court (Sec. 3, Rule 17, Rules of
Court; Plasabas v. Court of Appeals, 582 SCRA 686).

The case of Pamplona Plantation Co. vs. Tinghil, 450 SCRA 421 is the authority to
support the view that an immediate dismissal of the action when indispensable parties are not
impleaded is not the immediate procedural remedy. The proper procedure, therefore, is for the
court to direct the plaintiff to amend the complaint by adding an indispensable party, and his
failure to comply with said order, the court, on motion may order the dismissal of the
complaint.

WHAT SHOULD THE COURT DO IF AN INDISPENSABLE PARTY IS NOT IMPLEADED IN A SUIT?

WHY?
Suggested answer

If an indispensable party has not been joined or impleaded, it is the duty of the court to
stop the trial and order the inclusion of such party. (Cortez vs. Avila, 101 Phil. 205). The
presence of the same is a condition sine qua non for the exercise of judicial power. (Borlasa vs.
Polistico, 47 Phil. 345). If not joined, the remedy is dismissal of the action, if despite the order
to amend and implead such party, the plaintiff fails to amend. The dismissal is based on the
failure to comply with the order of the court and not due to non-joinder of party.
REASON. Absence of indispensable party renders all subsequent acts of the court void
for want of authority to act; the rule applies to parties joined and to parties not joined. Alabang
Development Corp. vs. Valenzuela, 116 SCRA 261.) For reason of equity and convenience, it is
often best available is for the court not to proceed with hearing of the case if an indispensable
party is absent and cannot be joined. In some circumstances, however, a court may still hear a
matter if an indispensable is absent, but its judgment can affect only the interest of the parties
before it.
Example:
THE SPOUSES RAUL AND CRISTINA ACAMPADO OBTAINED A LOAN FROM METROBANK
SECURED BY A MORTGAGE OVER A PROPERTY COVERED BY A TCT. A CERTAIN SY TAN SO FILED
A COMPLAINT FOR DECLARATION OF NULLITY OF THE TITLE BUT WITHOUT IMPLEADING THE

42
BANK ALTHOUGH THE MORTGAGE WAS REGISTERED. FOR FAILURE TO PAY, THE BANK
FORECLOSED THE MORTGAGE; CONSOLIDATED ITS OWNERSHIP LATER WHEN THER WAS
FAILURE TO REDEEM.
IS THE BANK AN INDISPENSABLE PARTY SUCH THAT WITHOUT IT BEING IMPLEADED THE COURT
HAS NOT ACQUIRED JURISDICTION OVER IT? EXPLAIN.
The bank is an indispensable party because the nullification of the title would
necessarily adversely affect its property rights considering that a real mortgage is a real right
and a real property by itself.
An indispensable party is a party who has such an interest in the controversy or subject
matter that a final adjudication cannot be made, in his absence, without injuring or affecting
that interest; a party who has not only an interest of such nature that a final decree cannot be
made without affecting his interest or leaving the controversy in such a condition that its final
determination may be wholly inconsistent with equity and good conscience. It has also been
considered that an indispensable party is a person in whose absence there cannot be a
determination between the parties already before the court which is effective, complete, or
equitable. Further, an indispensable party is one who must be included in an action before it
may properly go forward. (Metrobank vs. Hon. Floro Alejo, G.R. No. 141970, September 10,
2001.)
WHAT IS THE NATURE OF THE DEFECT OF THE PLEADING IF AN INDISPENSABLE PARTY IS NOT
IMPLEADED? EXPLAIN.
Suggested answer
It is only a procedural defect, not fatal defect. It can be cured at any stage of the
proceedings even after judgment. Amendment to implead them should be fully allowed, even
on appeal, in fact even after rendition of judgment where it appears that the complaint
otherwise indicates their identity and character as such indispensable parties, since their
presence is essential to the life of an action, for without them, no judgment may be rendered.
(Republic vs. SB, 240 SCA 376.)
MWSS FILED A SUIT TO RECOVER A PARCEL OF LAND WHICH HAS BEEN CONVERTED INTO A
SUBDIVISION WHERE LOTS WERE PARCELED OUT TO OWNERS. THE SUIT HOWEVER DID NOT
IMPLEAD ALL THE LOT OWNERS, HENCE, A MOTION TO DISMISS ON THE GROUND THAT
INDISPENSABLE PARTIES WERE NOT IMPLEADED. IF YOU WERE THE JUDGE, HOW WOULD YOU
RULE ON THE MOTION? EXPLAIN.
Suggested answer
If I were the judge, I would issue an order for the inclusion of the indispensable party
and if my order is not followed then, I would dismiss the action. Well-settled is the rule that
owners of property over which reconveyance is asserted are indispensable parties without

43
whom no relief is available and without whom the court can render no valid judgment. (Acting
Registrar of Land Title and Deeds of Pasay City vs. RTC, Branch 51, Makati, 184 SCRA 622). Being
indispensable parties, the absence of these lot owners the suit renders all subsequent action of
the trial court null and void for want of authority to act, not only as to the absent parties but
even as to those present. (Lim Tanhu vs. Ramolete, 66 SCRA 425). Thus, when indispensable
parties are not before the court, the action should be dismissed. (Note: The dismissal shall be
predicated on the failure of the party to comply with the court’s order to include or implead an
indispensable party.)(MWSS vs. CA, 99 SCAD 591)
Additional examples of Indispensable Party:
1. In an action for rescission of a sale alleged to be fraudulent, the vendor is an
indispensable party;
2. In an action for reconveyance of property, the owners of the property against whom
reconveyance is asserted are indispensable parties;
3. The person whose right to an office is challenged is an indispensable party because
he is the one who would be directly affected by the decision therein.
4. An action for partition where all the co-owners are deemed indispensable parties.
5. In patent law, a patent owner is an indispensable party to a patent infringement suit
brought by an exlusive licensee against an alleged infringer. The patent’s owner
rights would be directly affected by a finding of invalidity or unenforceablity of the
patent claim.

Section. 8. Necessary parties. – A necessary party is one who is not indispensable but who
ought to be joined as a party if complete relief is to be accorded as to those already parties,
or for a complete determination or settlement of the claim subject of the action.
Necessary Party
A necessary party is one who is not indispensable but who ought to be joined as a party
if complete relief is to be accorded as to those already parties, or for a complete determination
or settlement of the claim subject of the action (Sec. 8, Rule 3, Rules of Court)
Examples:
1. A joint debtor is only a necessary party in a suit against his co-debtor but indispensable
in a suit against himself;
2. Sellers of land subsequently sold by the new owner to another under an instrument
which is the subject of an action for reformation, is a necessary party;
3. In an action for ejectment filed by one co-owner, the other co-owners although not
indispensable parties under Art. 487 of the Civil Code of the Philippines are
nevertheless, necessary parties.

44
BAR 2019

Ms. A filed a complaint for damages against Ms. B, alleging that Ms. B negligently caused
the demolition of her house's concrete fence, the top half of which fell on the front portion of
Ms. A's car and permanently damaged its engine. In her answer, Ms. B denied any personal
liability for the damage caused to Ms. A's car, averring that she merely acquiesced to the advice
of her contractor, XYZ Construction Co., to have the concrete fence demolished. Thus, damages,
if any, should be collected from it.

Thereafter, Ms. A filed a motion for judgment on the pleadings, alleging that Ms. B's
statement in her answer is actually a negative pregnant. Ms. B opposed the motion, reiterating
her defense in her answer which purportedly rendered judgment on the pleadings improper.
Ms. B also moved for the dismissal of the case on the ground of non-joinder of XYZ Construction
Co., which she alleged is an indispensable party to the case.

(a) Is Ms. A's motion for judgment on the pleadings proper? Explain.

(b) Is XYZ Construction Co. an indispensable or a necessary party? Explain.

(c) Assuming that XYZ Construction Co. is an indispensable party, is its non-joinder a
ground for the dismissal of the case? Explain.

Section. 9. Non-joinder of necessary parties to be pleaded. – Whenever in any pleading in

which a claim is asserted a necessary party is not joined, the pleader shall set forth his name,
if known, and shall state why he is omitted. Should the court find the reason for the omission
unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over
his person may be obtained.
Non-joinder of necessary parties to be pleaded
Whenever in any pleading in which a claim is asserted a necessary party is not joined,
the pleader shall set forth his name, if known, and shall state why he is omitted. Should the
court find the reason for the omission unmeritorious, it may order the inclusion of the omitted
necessary party if jurisdiction over his person may be obtained. The failure to comply with the
order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against
such party.
Effect of non – Joinder of a Necessary Party
The non-inclusion of a necessary party does not prevent the court from proceeding in
the action, and the judgment rendered therein shall be without prejudice to the right of such
necessary party. (Sec. 9, Rule 3, Rules of Court)

45
Distinction between an indispensable and a necessary party
1. An indispensable party must be joined under any and all conditions while a necessary
party should be joined whenever possible.

2. A final decree can be had in a case even without a necessary party because his interests
are separable from the interest litigated in the case.

Section. 10. Unwilling co-plaintiff. – If the consent of any party who should be joined as
plaintiff cannot be obtained, he may be made a defendant and the reason therefor shall be
stated in the complaint.
Unwilling co-plaintiff
There are situations where a person who is supposed to be one of the plaintiffs in the
action in unwilling to join the suit. Sec. 10, Rule 3 supplies a remedy to such situation: “If the
consent of any party who should be joined as plaintiff cannot be obtained, he may be made a
defendant and the reason therefore shall be stated in the complaint.”
Before making said person a defendant, he should first be requested to join as plaintiff
unless the request would be futile. It is also a condition to such joinder that the complaint
alleges the reason for not joining such party as plaintiff.
Examples:
1. C1 and C2 are the creditors of B for P100, 000. 00. C1 wants to sue B after the latter
refused to pay on maturity. C2, a necessary party should be joined if complete relief
is to be had in the action. If for reasons of his own, C2 refuses to join in the action
after being asked to join as plaintiff, he may be impleaded by C1 as a defendant but
the reason for making C2 a defendant must be stated in the complaint.
2. In an action for partition where all the co-owners are deemed indispensable parties,
Sec. 1 of Rule 69 requires that all persons interested in the property should be
joined as defendants
Section. 11. Misjoinder and non-joinder of parties. – Neither misjoinder nor non-joinder of
parties is ground for dismissal of an action. Parties may be dropped or added by order of the
court on motion of any party or on its own initiative at any stage of the action and on such
terms as are just. Any claim against a misjoined party may be severed and proceeded with
separately.
What are the effects in case of misjoinder or non-joinder of parties?
The effects in case of misjoinder or non-joinder of parties are:
(1) It is not a ground for dismissal of an action;

46
 (2) Parties may be dropped or added by order of the court on motion of any party or on
its own initiative at any stage of the action and on such terms as are just;

(3) Any claim against a misjoined party may be severed and proceeded with separately.
BAR 2016
Hanna, a resident of Manila, filed a complaint for the partition of a large tract of land
located in Oriental Mindoro. She impleaded her two brothers John and Adrian as defendants
but did not implead Leica and Agatha, her two sisters who were permanent residents of
Australia.
Arguing that there could be no final determination of the case without impleading all
indispensable parties, John and Adrian moved to dismiss the complaint.
Does the trial court have a reason to deny the motion? Explain your answer.
Suggested answer
Yes, the trial court has a reason to deny the motion to dismiss.
Under the Rules of Civil Procedure, non-joinder of parties, even indispensable ones, is
not a ground of a motion to dismiss. [S11 R3; Vesagas v. CA, 371 SCRA 508 (2001)]

BAR 2015

Strauss filed a complaint against Wagner for cancellation of title. Wagner moved to
dismiss the complaint because Grieg, to whom he mortgaged the property as duly annotated in
the TCT, was not impleaded as defendant.

a.) Should the complaint be dismissed?

b.) If the case should proceed to trial without Grieg being impleaded as a party to the
case, what is his remedy to protect his interest?

Suggested answers

a) No, the complaint should not be dismissed.

The Supreme Court has held that non-joinder of an indispensable party is not a ground of
a motion to dismiss. (Vesagas v. CA, 371 SCRA 508).

Here although Grieg, the registered mortgagee, is an indispensable party (Metrobank v.

Alejo, 364 SCRA 813 [2001]), his non-joinder does not warrant the dismissal of the complaint.

47
 b) The remedy of Grieg is to file a motion for leave to intervene.

Under Rule 19, a person who has a legal interest in the matter in litigation may
intervene in the action.

Here Grieg is a mortgagee and such fact was annotated in the title. Hence he has a legal
interest in the title subject-matter of the litigation and may thus intervene in the case.

Section. 12. Class suit. – When the subject matter of the controversy is one of common or
general interest to many persons so numerous that it is impracticable to join all as parties, a
number of them which the court finds to be sufficiently numerous and representative as to
fully protect the interest of all concerned may sue or defend for the benefit of all. Any party
in interest shall have the right to intervene to protect his individual interest.

CLASS SUITS
A class suit is an action where one or more may sue for the benefit of all, implying that if
the parties are numerous and it is impracticable to bring all them to court, one or more may
sue for their benefit.
The purpose of a class suit is to obtain relief for or against a large number of persons as
a group or integral entity and not as individual with rights and liabilities separate from each
other.
For a class suit to prosper, the following requisites must concur:

1. The subject matter of the controversy must be of common or general interest to

many persons (The subject matter must refer to the physical facts, property or
money, etc; it does not refer to the crime or act of the defendant)
2. The persons are so numerous that it is impracticable to join all as parties;
3. The parties actually before the court are sufficiently numerous and representative as
to fully protect the interests of all concerned; and
4. The representatives sue or defend for the benefit of all (Sec. 12, Rule 13).

The rule requires that a class suit must have a commonality or unity of interests
between and among the representatives in the suit and those persons whom they represent.
What the rule requires is not merely a common interest in the questions involved, be it law or
of fact, but a common or general interest in the subject matter of the litigation.
Examples: See the case of Associacion de Talisay-Silay, Inc. vs. Talisay-Silay Milling Con.,
Inc. 88 SCRA 294.
The very issue in this case is the subject matter itself. In one case, the resolution of the
question as to who are deemed planters or not, and being planters who among them were

48
contract and non-contract workers within the meaning of the law, was of common interest to
all the planters and their labourers because all the planters in the district involved were
similarly situated and the resolution of the issue could not in any event be different as to any of
them.
Additional examples:
(1) A large group of stockholders filing suit against a corporation for an illegal act can
qualify as a class suit (Pascual vs. Orozco, 64 Phil. 697)
(2) A suit filed on behalf of plantation labourers against sugar planters and sugar central to
enforce laborer’s rights under RA No. 809 (The Sugar Act of 1952)
(3) Plaintiffs-minors duly represented and joined by their parents instituted this tax-payers’
class suit versus the Secretary of DENR to order the latter to cancel the timber license
agreement (TLA) and to cease and desist from renewing and granting new TLAs. The suit
was filed for themselves and others who are equslly concerned about the preservation
of natural resources but are so numerous that it is impracticable to bring them all
before the court. The minors also asserverate that they represent their generation as
well as the generations yet unborn.
The case is a class suit: the subject matter of the complaint is of common and general
interest not just several but to all citizens of the Philippines. Parties are so numerous that it is
impracticable, if not totally impossible to bring them all before the court. Plaintiffs are so
numerous and representative enough to insure full protection of all concerned interest. (Oposa
vs. Factoran, G.R. No. 101083, July 30, 1993). This is a landmark decision of the Supreme Court
of the Philippines which recognizes the doctrine of Intergenerational Responsibility on the
environment in the Philippines legal system. The case is a contributor to the development of
international environmental law.
Case
In December 1987, the MV Doña Paz sank after a collision with another vessel, MT Vector,
resulting in the loss of over 4,000 lives. In January 1988, a class suit seeking damages of
P200,000 to P400,000 per victim or a total of P1.6 billion was filed with the RTC against the
owners of the ships involved by 27 named plaintiffs in behalf of the class of approximately
4,000 heirs of the passengers who perished. Was the filing of a class suit proper?
Answer.
No. One of the requirements of a class suit is that “[t]he subject matter of the controversy is
one of common or general interest to the members of a group.” This means that there is only
one right or cause of action pertaining to or belonging in common to many persons, not
separately or severally to distinct individuals. The object of the suit is to obtain relief for or
against numerous persons as a group or as an integral entity, and not as separate, distinct
individuals whose rights or liabilities are separate from and independent of those affecting the

49
others. On the other hand, if there are many persons who have distinct, separate rights against
the same party or group of parties, but those rights arise from the same transaction or series of
transactions and there are common questions of fact or law resulting therefrom, the former
may join as plaintiffs in one action against the same defendant. This is authorized by the
joinder-ofparties rule in S6 R3. Hence a class suit is improper is each member of the group has a
separate determinable interest distinct from that of the others. The relevant rule is Section 6
Rule 3. (Re request of the Heirs of the Passengers of Doña Paz to set aside the Order of Judge
B.V. Chingcuangco, 159 SCRA 263).
Class Suit vs. Derivative Suit vs. Citizen Suit
Class suit, derivative suit, and citizen suit are all representative suits, but distinctions lies with
the following:
1. A class suit is filed regarding a controversy of common or general interest in behalf
of many persons so numerous that it is impracticable to join all as parties, a number
which the court finds sufficiently representative who may sue or defend for the
benefit of al (Sec. 12, Rule 3).

2. A derivative suit is a suit in equity that is filed by a minority stockholder in behalf of a

corporation to redress wrongs committed against it, for which the directors refuse
to sue, the real party interest being the corporation itself (Lint vs. Lim-Yu, G.R. No.
138343, February 19, 2001)

3. A citizen suit is an action filed by any Filipino citizen in representation of others,

including minors or generations not yet born to enforce rights and obligations under
environmental laws. (Sec, 5, Rule 2, Part II of A.M. 09-6-8-SC)

CAN THERE BE A CLASS SUIT IN AN ACTION TO RECOVER REAL PROPERTY? WHY?

In Sulo ng Bayan vs. Araneta, Inc., August 17, 1976, it was held that there can be no class
suit in actions to recover real property against several persons occupying different portions.
The reason is that each person represents individual or separate interest, not common to
everyone.
BAR 1994
Four hundred residents of Barrio Ramos initiated as class action suit through Albert, a
former mayor of the town, to recover damages sustained due to the exposure to toxic wastes
and fumes emitted by the cooking gas plant of Top Fuel Gas Corporation located in the town. Is
the class suit proper?

50
Suggested answer
The class suit is not proper. An essential element of a class suit, among others, is that
the subject matter of the controversy must be of common or general interest to many persons.
This requirement is not met by the facts under considerations. Each of the plaintiffs has a
separate and distinct injury not shared by other members of the class and as a consequences
each supposed plaintiff has to prove his own injury he suffered (Ortigas & Company Limited
Partnership v. Ruiz, 148 SCRA 326)
BAR 1991
An airplane carrying 200 passengers crashed somewhere in the jungles of Agusan. All
the passengers and crew perished. Twenty (20) relatives of the fatalities filed for themselves
and in behalf of the relatives of all those who perished in the mishap a class suit for damages
totalling P5million against the airline. The propriety of the class suit is questioned by the
defendant. Resolve the issue.
Suggested answer
The class suit is not proper. An essential element of a class suit, among others, is that
the subject matter of the controversy must be of common or general interest to many persons.
This requirement is not met by the facts under consideraiton. Each of the plaintiffs has a
separate and distinct injury not shared by other members of the class and as a consequence
each supposed plaintiff has to prove his own injury he suffered.
BAR 1978
C, a non-stock corporation, filed an action in behalf of its individual members numbering
fifteen, for the recovery of ownership and possession of certain parcels of land which belong to
said members in their individual capacities. X, the defendant, moved to dismiss the case for lack
of a cause of action.
1) Should the motion be granted or not? Reason.
2) Under the facts aforestated, can C validly contend that its complaint is in the nature
of a class suit? Reason.
Suggested answer
1. The motion should be granted. The corporation is not a real party in interest in the
action. Under Sec. 1 of the Corporation Code, a corporation is an artificial being and
thus, has a personality of its own separate and distinct from the personalities of its
members or stockholders. A corporation, being an entity separate and distinct from its
members has no interest in the individual property of its members.

51
 2. The complaint is not in the nature of a class suit. For a class suit to exist, the subject
matter of the controversy must be of common or general interest to many persons. A
class suit does not lie in actions for the recovery of property where several persons
claim ownership of their respective portions of property, as each one could allege and
prove his respective right in a different way for each portion of the land, so that they
cannot all be held to have identical title (Sulo ng Bayan, Inc. v. Araneta, Inc., 72 SCRA
347).
Sec. 12 of Rule 3 does not specify the number of persons to be represented in a class
suit. The persons however, must be “so numerous that it is impracticable to join all as parties.”
It is also required by the same provision that the parties before the court must be “sufficiently
numerous and representative as to fully protect the interest of all concerned
Note: In the United States, law firms make money filing class suits on behalf of victims of toxic
waste, or drugs that cause injury to foetuses or cars that have faulty or bad sterring columns.
Several cases were also filed against cigarette companies for because of scientific findings that
smoking causes cancer and other illnesses.
Section. 13. Alternative defendants. – Where the plaintiff is uncertain against who of several
persons he is entitled to relief, he may join any or all of them as defendants in the
alternative, although a right of relief against one may be inconsistent with a right of relief
against the other.
Alternative Defendants
Sec. 13 of Rule 3 permits a plaintiff to sue two or more defendants in the alternative
whenever he is not sure who among them is responsible for the loss suffered by him. The said
Section says: “Where the plaintiff is uncertain against who of several persons he is entitled to
relief, he may join any or all of them as defendants in the alternative, although a right of
relief against one may be inconsistent with a right of relief against the other.”
This joinder in the alternative is designed to prevent multiplicity of suits and should be
liberally construed as a device of convenience. This is also one of the modes of speeding up
resolution of cases with least expense on the party-litigants.
Examples
1 Mr P, a passenger in a jeepney who broke his ribs when the jeepney collided with a bus, may
join the drivers of both vehicles as alternatives defendants if he is not certain who between the
two drivers was responsible for his injuries.
2 Leon, in Manila, sold a quantity of rice for P200, 000. 00 to Luis in Baguio, and shipped the
rice through Rita transportation. Luis refused to pay Leon, claiming that the rice was never
delivered to him. Rita Transportation, on the other hand, claimed that it had delivered the rice
to Luis. Whom should Leon sue?

52
 Leon should sue both Luis and Rita Transportation under one complaint as alternative
defendants. Under the Rules of Court, where the plaintiff is uncertain against who of several
persons he is entitled to relief, he may join any or all of them as defendants in the alternative,
although a right of relief against one may be inconsistent with a right to relief against the other.
Section. 14. Unknown identity or name of defendant. – Whenever the identity or name of a
defendant is unknown, he may be sued as the unknown owner, heir, devisee, or by such
other designation as the case may require; when his identity or true name is discovered, the
pleading must be amended accordingly.
What is the rule in case the identity or name of the defendant is unknown in an action?
Whenever the identity or name of a defendant is unknown, he may be sued as:
a. The unknown owner,
b. Unknown heir,
c. Unknown devisee, or
d. By such other designation as the case may be require;

When his identity or true name is discovered, with leave of court, the pleading must be
amended accordingly.
Example 1:
A person was injured while trying to make his way into a mall during a Christmas sale.
His injuries were caused by some of the other shoppers who were rushing to get inside the
mall. In this case, the injured person would likely name the owners of the mall as defendants.
However, he would also name the people who caused his injury even though he may not know
their names, and the unknown defendants should be addressed as “John Does” in the
complaint.
Example 2:
The victim was injured when her car collided with a Toyota Fortuner. It is not in dispute
that the incident was due to the negligence of the driver of the Toyota Fortuner. The plate
number of the Toyota Fortuner was recorded but the driver sped off without stopping or
reporting the incident to the police and had not been heard of since. The registered owner of
the Toyota Fortuner refused to give the name of the driver who drove the car at the time of the
incident. The victim would not be prevented from filing a case for damages against the
registered owner, the unknown driver and the insurance company. The unknown driver should
be referred to in the complaint as “John Doe” and once his name would discovered, an
amendment of the complaint would be made later on.

53
 In relation to the rule on Summons, the Rules say that if the defendant is unknown,
summons may be served by publication (Rule 14, Sec. 16).
Section. 15. Entity without juridical personality as defendant. – When two or more persons
not organized as an entity with juridical personality enter into a transaction, they may be
sued under the name by which they are generally or commonly known.
In the answer of such defendant, the names and addresses of the person composing
said entity must all be revealed.
What is the rule in case a party in an action is an entity without juridical personality?
When two or more persons not organized as an entity with juridical personality enter
into a transaction, it has the following effects:
1. They may be sued under the name by which they are generally or commonly known.

However, an entity without juridical personality cannot sue or file a case against another
for the simple reason that not being registered or organized pursuant to the laws of the
Philippines, it has no legal personality to do so.

2. In the answer of such defendant, the names and addresses of the persons
composing said entity must all be revealed.
Example 1:
In the case of Anti-Chinese League vs. Felix, 77 Phil. 1012, the Supreme Court ruled that
although an entity without juridical personality cannot sue under the name by which it is
commonly known, such entity may be sued under certain circumstances.
Example 2:
A, B and C organized and transacted business through Fharmally Trading Corporation, a
corporation which has not been duly registered with the government agency concerned, and
entered into commercial transactions under the name ABC Trading Corporation. The ABC
Trading Corporation is classified as an Entity without Juridical Personality and as such it can be
sued as party defendant but it cannot sue as party plaintiff. As defendants, in their Answer,
they are required to reveal the names and addresses of the persons composing ABC Trading
Corporation.
Section. 16. Death of party; duty of counsel. – Whenever a party to a pending action dies, and
the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court
within thirty (30) days after such death of the fact thereof, and to give the name and address

54
of his legal representative or representatives. Failure of counsel to comply with this duty shall
be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the deceased, without
requiring the appointment of an executor or administrator and the court may appoint a
guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to appear
and be substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party within the
specified period, or if one so named shall fail to appear within the specified period, the court
may order the opposing party, within a specified time, to procure the appointment of an
executor or administrator for the estate of the deceased and the latter shall immediately
appear for and on behalf of the deceased. The court charges in procuring such appointment,
if deprayed by the opposing party, may be recovered as costs.
Death of Party; To whom applicable
The above provision applies when in the course of the trial, death occurs either of the
plaintiff or the defendant, and the obligation to inform the court about the death of the party
revolves around their counsel of record.
Effect of the death of a party on the attorney-client relationship
The death of the client extinguishes the attorney-client relationship and divests a
counsel of his authority to represent the client. Accordingly, a dead client has no personality
and cannot be represented by an attorney. Neither does he become the counsel of the heirs
unless his services are engaged by said heirs.
Duty of counsel upon the death of his client
Whenever a party to a pending action dies, it is the duty of the counsel of the deceased
party to inform the court of such fact within thirty (30) days after such death. The counsel has
also the obligation to give the name and the address of the legal representative of the
deceased. This duty is mandatory and failure to comply with this duty is a ground for
disciplinary action.
Action of court upon notice of death; effect of death on the case (BAR 2009)
The Rules categorically state that upon receipt of the notice of death, the court shall
determine whether or not the claim is extinguished by such death. If the claim survives, the
court shall order the legal representative or representatives of the deceased to appear and be
substituted for the deceased within thirty (30) days from notice. The substitution of the
deceased would not be ordered by the court in cases where the death of the party would
extinguish the action because substitution is proper only when the action survives.

55
No requirement for service of summons
Service of summons is not required to effect a substitution. Nothing in Sec. 16 of Rule 3
mandates service of summons. Instead of service of summons the court shall, under the
authority of the same provision, order the legal representative of the deceased to appear and
be substituted for the said deceased within thirty (30) days from notice (BAR 1999).

Purpose and importance of substitution of the deceased.

The purpose behind the rule on substitution of parties is the protection of the right of
every party to due process. It is to ensure that the deceased would continue to be properly
represented in the suit through the duly appointed legal representative.
Non-compliance with the rules on substitution of a deceased party renders the
proceedings of the trial court infirm because the court acquired no jurisdiction over the person
of the legal representative of heirs of the deceased, because no man should be affected by a
proceeding to which he is a stranger.
Examples of actions which survive the death of a party (BAR 2011)
Certain actions survive the death of a party such as:
1. Actions to recover real and personal property from the estate;
2. Action to enforce a lien thereon; and
3. Action to recover damages for an injury to person or property;
4. Action to recover damages arising from delicts;
5. Action based on the tortious conduct of the defendant;
6. Action for quieting of title with damages
7. Action for ejectment;
8. Action for the recovery of money, arising from a contract express or implied

Examples of action which does not survive the death of the party
1. Action for Support
2. Annulment of Marriage
3. Declaration of Nullity of Marriage
4. Legal Separation
DURING THE PENDENCY OF AN ACTION FOR RECOVERY OF POSSESSION OF A REAL PROPERTY,
THE PLAINTIFF DIED SURVIVED BY SEVERAL HEIRS. THERE WAS A NOTICE OF DEATH FILED WITH
THE COURT BUT THE LATTER DID NOT ISSUE AN ORDER REQUIRING THE APPEARANCE OF THE
REPRESENTATIVES. IT MERELY ISSUED AN ORDER ADMITTING THE MOTION FOR SUBSTITUTION.
TRIAL WAS CONDUCTED AND A JUDGMENT WAS RENDERED. SOME OF THE HEIRS CONTENDED

56
THAT THE JUDGMENT IS NOT BINDING UPON THEM AS THEY WERE NOT NOTIFIED OF THE
PURPORTED SUBSTITUTION, HENCE, THE ENTIRE PROCEEDINGS ARE VOID FOR LACK OF
JURISDICTION OVER THEIR PERSONS. IS THE CONTENTION CORRECT? WHY?
Suggested answer
YES. Under the Rules, in case of the death of a party and due notice is given to the trial
court, it is the duty of the court to order the deceased’s legal representative or heir to appear
for the deceased. Otherwise, the trial held by the court without appearance of the deceased’s
legal representative or substitution of heirs and the judgment rendered after trial, are null and
void.
Non-compliance with the rule on substitution of a deceased party renders the
proceedings and judgment of the trial court infirm because the court acquired no jurisdiction
over the persons of the legal representatives or of the heirs on whom the trial and the
judgment would be binding. In other words, a party’s right to due process is at stake. In Vda. De
Salazar vs. CA, 250 SCRA 305, it was said that the court should not lose sight of the principle
underlying the general rule that formal substitution of heirs must be effectuated for them to be
bound by a subsequent judgment. Such had been the general rule established not because the
rule on substitution of heirs and that on appointment of a legal representative are jurisdictional
per se but because non-compliance therewith results in the undeniable violation of the right to
due process of those who, though not duly notified of the proceedings, are substantially
affected by the decision rendered therein. (Brioso vs. Rili-Mariano, G.R. No. 132765, January 31,
2003.)
IT IS A REQUIREMENT THAT IF THERE IS A SUIT BETWEEN MEMBERS OF THE SAME FAMILY,
THERE MUST BE AN ALLEGATION OF SERIOUS EFFORTS TOWARDS SETTLEMENT. IS THE RULE
APPLICABLE IF ONE PARTY IS NOT A MEMBER OF THE SAME FAMILY? EXPLAIN.
Suggested answer
NO. Where one of the parties to a civil litigation is not a member of the family, some of
whose members are adverse parties to the said suit, lack of earnest efforts to reach a
compromise should not be considered a prerequisite to the maintenance of an action. It is
neither practical nor fair that the termination of the rights of a stranger to the family who just
happened to have innocently acquired some kind of interest in any right or property disputed
among its members should be made to depend on the way the latter would settle their
differences among themselves. (Guerrero vs. RTC, province of Ilocos Norte, G.R. No. 109068,
January 10, 1994.)
Section. 17. Death or separation of a party who is a public officer. – When a public officer is a
party in an action in his official capacity and during its pendency dies, resigns, or otherwise
ceases to hold office, the action may be continued and maintained by or against his successor
if, within thirty (30) days after the successor takes office or such time as may be granted by

57
the court, it is satisfactorily shown to the court by any party that there is a substantial need
for continuing or maintaining it and that the successor adopts or continues or threatens to
adopt or continue the action of his predecessor. Before a substitution is made, the party or
officer to be affected, unless expressly assenting thereto, shall be given reasonable notice of
the application therefor and accorded an opportunity to be heard.
What are the effects in case of death or separation of a party who is a public officer?
When a public officer is a party in an action in his official capacity and during its
pendency dies, resigns, or otherwise ceases to hold office, the action may be:
1. Continued and maintained by or against his successor if, within thirty (30) days after
the successor takes office or such time as may be granted by the court, it is
satisfactorily shown to the court by any party that there is a substantial need for
continuing or maintaining it and that the successor adopts or continues or threatens
to adopt or continue the action of his predecessor.

2. Before a substitution is made, the party or officer to be affected, unless expressly

assenting thereto, shall be given reasonable notice of the application therefor and
accorded an opportunity to be heard.
Examples:
(1) The Secretary of the Department of Health is a party plaintiff in a civil case for damages
for breach of contract against a supplier of office supplies, and during the pendency of
the trial, dies or resigns, in this event the case may be continued and maintained by his
successor upon proper substitution.

(2) If the Secretary of Department Works and Highways is a party defendant in a civil case
for recission of contract with damages files by a contractor, and while the case in
pending trial, dies or resigns, the case may be continued and maintained against his
successor. However, the Rules require that he should be given reasonable notice of the
application for substitution and accorded procedural due process.

Case
Shaik filed a petition for mandamus against the vice-mayor of her town to compel the payment
of her salaries as ex-officio member of the Sangguniang Bayan. During the pendency of the
mandamus case, Vice-Mayor Teopengco was not re-elected as vice-mayor. However,
Teopengco’s successor as vice-mayor was not substituted in his place pursuant to S17 R3. May
the petition for mandamus prosper?

58
Answer.
No. The judgment in the mandamus case cannot be enforced against Teopengco for he was no
longer the incumbent vice-mayor nor against his successor who was not substituted in the case.
To enforce the judgment against the successor would violate his right to due process. (Del
Rosario v. Shaikh, 10 December 2019, Reyes, J.).
Section. 18. Incompetency or incapacity. – If a party becomes incompetent or incapacitated,
the court, upon motion with notice, may allow the action to be continued by or against the
incompetent or incapacitated person assisted by his legal guardian or guardian ad litem.
What is the effect in case a party to the action becomes incompetent or incapacitated?
If a party becomes incompetent or incapacitated, the court, upon motion with notice,
may allow the action to be continued by or against the incompetent or incapacitated person
assisted by his legal guardian or guardian ad litem.
Examples:

(1) Pending trial for the civil case of collection of sum of money, the plaintiff, due to old
age, becomes incompetent. In this case, upon proper motion for substitution, the
incompetent plaintiff may be substituted by his legal guardian or guardian as litem.

(2) In a civil case for unlawful detainer, and while the case is on trial, the defendant
becomes incapacitated because of vehicular accident, upon appropriate motion, he may
be assisted by his legal guardian or guardian ad litem.
Section. 19. Transfer of interest. – In case of any transfer of interest, the action may be
continued by or against the original party, unless the court upon motion directs the person to
whom the interest is transferred to be substituted in the action or joined with the original
party.
Transfer of Interest
Basically, a transfer of interest is when title to property or assets change from one
person to another. This is usually accomplished through sale, though, it can also happen by
means or a gift or donation.
What is the effect in case of transfer of interest by the party?
In case of any transfer of interest by the party, the court may allow:
1. The action may be continued by or against the original party,
2. Unless the court upon motion directs the person to whom the interest is transferred
to be substituted in the action or joined with the original party.

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Examples
(1) Plaintiff filed a case for Recovery of Possession and Ownership against defendant of
a certain parcel of land. Pending trial of the case, defendant transferred his title over
said disputed land to another person. Under the above Section, the action for
Recovery of Possession and Ownership may be continued against the original
defendant or upon motion, the court may direct the person to whom the interest
was transferred to be substituted in the action or joined as party-defendant with the
original defendant.

(2) A complainant in an ejectment case sold or conveyed the subject property to

another person during the pendency of the case, the Rules says that the action for
ejectment may be continued by the original owner or upon proper motion, the court
may order the person to whom the property was sold or conveyed to be substituted
as party plaintiff.
Section. 20. Action on contractual money claims. – When the action is for recovery of money
arising from contract, express or implied, and the defendant dies before entry of final
judgment in the court in which the action was pending at the time of such death, it shall not
be dismissed but shall instead be allowed to continue until entry of final judgment. A
favorable judgment obtained by the plaintiff therein shall be enforced in the manner
especially provided in these Rules for prosecuting claims against the estate of a deceased
person.
To whom the above provision applicable?
It is crystal clear from a reading of the above-mentioned legal provision that it is
applicable only under the following circumstances:
1. There is an action for the recovery of money from contract, express or implied;
2. The defendant dies before entry of final judgment;
3. The action shall not be dismissed but shall be continued until entry of final judgment;
4. That a judgment favourable to the plaintiff shall be enforced as a money claims against
the estate of the deceased defendant.
What is the effect in case of death of a party in action based on a contractual money claims.
When the action is for recovery of money arising from contract, express or implied, and
the defendant dies before entry of final judgment in the court in which the action was pending
at the time of such death, the case shall:
1. It will not be dismissed but shall instead be allowed to continue until entry of final
judgment; and

60
 2. In case of a favorable judgment obtained by the plaintiff therein shall be enforced in the
manner especially provided by these Rules for prosecuting claims against the estate of a
deceased.
For example, during the pendency of a civil case for sum of money, the defendant dies
before final judgment, the case shall not be dismissed, for the reason that an action for sum of
money is an action which survived the death of the party but instead it shall be allowed to
continue upon proper substitution. In the event that the judgment will be favourable to the
plaintiff, said judgment shall be enforced by filing a money claim against the estate of the
deceased defendant.
For ready reference, Sec. 1 of Rule 87 of the Rules of Court provides for the rules in
action which may not be brought against the executor or administrator.
RULE 87
ACTIONS BY AND AGAINST THE EXECUTORS AND AMINISTRATORS

Sec. 1. Actions which may and which may not be brought against executor or administrator. –
No action upon a claim for the recovery of money or debt or interest thereon shall be
commenced against the executor or administrator; but to recover real or personal property or
an interest therein, from the estate, or to enforce a lien thereon, and actions to recover
damages for an injury to person or property, real or personal, may be commenced against him.

Action which may not be brought against the executor or administrator

No action may be commenced against the executor or administrator upon a claim for
1. The recovery of money or
2. Debt or
3. Interest thereon
UNDER THIS RULE, WHAT ACTIONS MAY BE COMMENCED AGAINST THE EXECUTOR OR
ADMINISTRATOR?
Under this Rule, the following are actions that may be commenced directly against the executor
or administrator:
1. Recovery of real or personal property or any interest therein from the estate;
2. Enforcement of a lien thereon;
3. Action to recover damages for any injury to person or property, real or personal.

The aforementioned instances are deemed actions that survive the death of the decedent.

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Section 21.Indigent party. — A party may be authorized to litigate his action, claim or defense
as an indigent if the court, upon an ex parte application and hearing, is satisfied that the
party is one who has no money or property sufficient and available for food, shelter and basic
necessities for himself and his family.

Such authority shall include an exemption from payment of docket and other lawful fees, and
of transcripts of stenographic notes which the court may order to be furnished him. The
amount of the docket and other lawful fees which the indigent was exempted from paying
shall be a lien on any judgment rendered in the case favorable to the indigent, unless the
court otherwise provides.

Any adverse party may contest the grant of such authority at any time before judgment is
rendered by the trial court. If the court should determine after hearing that the party
declared as an indigent is in fact a person with sufficient income or property, the proper
docket and other lawful fees shall be assessed and collected by the clerk of court. If payment
is not made within the time fixed by the court, execution shall issue or the payment thereof,
without prejudice to such other sanctions as the court may impose.
Who is an indigent party?
An indigent party, one who is allowed to litigate an action who has no money or
property sufficient and available for food, shelter, and basic necessities for himself and his
family.
What are the requirements to be declared as indigent party?
A party may be authorized to litigate his action, claim or defense as an indigent if the
court allows subject to the following requirements:
1. Upon an ex parte application and hearing;
2. The court is satisfied that the party is one who has no money or property sufficient
and available for food, shelter and basic necessities for himself and his family.
What are the effects of declaration of party as indigent?

If a party is declared by the court as an indigent party the authority shall include:

1. An exemption from payment of docket and other lawful fees, and

2. Exemption from the payment of transcripts of stenographic notes which the court
may order to be furnished him.

BAR 2017

Spouses Marlon and Edith have three (3) children ages 15, 12 and 7, who are studying at
public schools. They have a combined gross monthly income of P30,000.00 and they stay in an

62
apartment in Manila with a monthly rent of P5,000.00. The monthly minimum wage per
employee in Metro Manila does not exceed P13,000.00. They do not own any real property.
The spouses want to collect a loan of P25,000.00 from Jojo but do not have the money to pay
the filing fees.

[a] Would the spouses qualify as indigent litigants under Section 19, Rule 141 on Legal Fees?
[b] If the spouses do not qualify under Rule 141, what other remedy can they avail of under the
rules to exempt them from paying the filing fees?
Suggested answer:

(a) No, the spouses would not qualify as indigent litigants under Section 19, Rule 141 since
their combined gross monthly income of P30,000 exceeds P26,000, the amount double
the monthly minimum wage.

(b) The other remedy the spouses can avail of under the rules to exempt them from paying the
filing fees is to apply for exemption pursuant to the “indigency test” under Section 21, Rule 3 of
the Rules of Court if they can prove that they have “no money or property sufficient and
available for food, shelter and basic necessities for [themselves] and their family.” (Sps. Algura
v. City of Naga, 30 October 2006).

Docket and other lawful fees a lien in case of favourable judgment.

The amount of the docket and other lawful fees which the indigent was exempted from
paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless
the court otherwise provides.

Sample Form

MOTION TO PROSECUTE AS PAUPER LITIGANT

COMES NOW, the plaintiff, through the undersigned counsel and unto this Honorable
Court, most respectfully moves:

1. That at present plaintiff is jobless and has no means of livelihood and cannot afford
to pay the required docket fees;
2. That plaintiff through counsel most respectfully moves that he be allowed to
prosecute as pauper litigant and be exmpted from the payment of the required
docket fee and other lawful fees;

63
 WHEREFORE, plaintiff prays that he be allowed to prosecute as pauper litigant and be
exempted from the payment of the required dicket fee and other lawful fees based on the
above reasons.

Such other relief as may be deemed just and equitable under the premises are likewise
prayed for.

Section. 22. Notice to the Solicitor General. – In any action involving the validity of any treaty,
law, ordinance, executive order, presidential decree, rules or regulations, the court, in its
discretion, may require the appearance of the Solicitor General who may be heard in person
or through a representative duly designated by him.
When is notice to the Solicitor General required?
In any action involving the validity of any treaty, law, ordinance, executive order,
presidential decree, rules or regulations, the court, in its discretion, may require the
appearance of the Solicitor General who may be heard in person or through a representative
duly designated by him.
The general rule is that only the Solicitor General can bring and defend actions on behalf
of the Republic of the Philippines and that actions filed in the name of the Republic, or its
agencies and instrumentalities, if not initiated by the Solicitor General will be summarily
dismissed.
Examples
(1) In a Petition for Declaratory Relief under Rule 63 of the Rules of Court, questioning the
legality and constitutionality of a city ordinance passed by the City Council of Iloilo City,
the court, in its direction may require the appearance of the Office of the Solicitor
General.

(2) In a Petition for Quo Warranto questioning the legality of the appointment of a public
officer, the Petition shall be initiated by the Office of the Solicitor General.

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 RULE 4
VENUE OF ACTIONS
Section 1. Venue of real actions. – Actions affecting title to or possession of real property, or
interest therein, 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 shall be commenced and tried in the municipal trial court
of the municipality or city wherein the real property involved, or a portion thereof, is
situated.
Define venue
Venue is the place, or geographical area in which a court with jurisdiction may hear and
determine a case or the place where a case is to be tried.
Venue is the place where an action must be instituted and tried. It relates to the place of
trial or geographical location in which an action or proceeding should be brought and not to the
jurisdiction of the court. (Phil. Banking Corp. vs. Tensuan, 48 SCAD 598).
Venue is not a matter of substantive law
Venue is procedural and not substantive. In civil cases, venue is not a matter of
jurisdiction, hence an action cannot be simply dismissed on the ground of improper venue.
Under the present amendments, “improper venue” is no longer a ground for a motion to
dismiss, rather it may be raised as an affirmative defense in the answer.
Venue of real actions (BAR 2009)
1. Actions affecting title to or possession of real property, or interest therein, 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

Where should action affecting title to or possession of real property or interest be commenced?
Actions affecting title to or possession of real property, or interest therein, 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. (Sec. 1)
Example 1:
Etik is the owner of a parcel of land. Berto forged Etik’s signature and transferred the
land under his name. If Etik should file an action for reconveyance, where should he file the
action?

65
 It should be filed in the proper court which has jurisdiction over the area wherein the
real property involved or a portion thereof, is situated. (Sec.1, Rule 4). This is so because the
action affects the tile over the land.
Example 2:
Alberto is the owner of a parcel of land situated in Jaro, Iloilo City. Braulio is in
possession of the same and Alberto would like to recover possession. In what court should such
an action to recover possession be filed? Why?
It should be filed in the proper court where the property or any part thereof is situated.
The reason for the law is that the action involves or affects the possession over the land.
Example 3:
Andrew is the owner of a parcel of land which he mortgaged with Brandon to secure the
payment of an obligation. In case Andrew does not pay his obligation, in what court should the
judicial foreclosure of the mortgage be filed? Why?

It should be filed in the proper court of the place where the property is situated. The
reason for the rule is that the action for foreclosure affects the interest on the land.
In what court should a forcible entry or unlawful detainer case be filed?
Forcible entry and detainer actions shall be commenced and tried in the municipal trial
court of the municipality or city wherein the real property involved or a portion thereof, is
situated. (Hoechst Phil. Inc. vs. Torres, 83 SCRA 297).
Additional examples:
(a) Actions to recover ownership over real property are real actions and must be filed in
the place where the real property is located.

(b) Actions for unlawful detainer, forcible entry and accion publiciana are real actions
and must be likewise filed in the place where the subject property is situated.

BAR 2009
Angelina sued Armando before the Regional Trial Court (RTC) of Manila to recover
ownership and possession of two parcels of land; one situated in Pampanga, and the other in
Bulacan. May the action prosper?
Suggested answer
No, the action may not prosper, because under R.A. no. 7691, exclusive original
jurisdiction in civil actions involve title to, or possession of real property or any interest therein
is determined on the basis of the assessed value of the land involved, whether it should be P20,

66
000. 00 in the rest of the Philippines, outside Metro Manila with courts of the first level or with
the Regional Trial court. The assessed value of the parcel of land in Pampanga is different from
the assessed value of the land in Bulacan. What is involved is not merely a matter of venue,
which is waivable, but of a matter of jurisdiction. However, the action may prosper if
jurisdiction is not in issue, because venue can be waived. (The answer above may be modified
in view of the expanded jurisdiction of the first level courts, under RA No. 11576)
Section. 2. Venue of personal actions. – All other actions may be commenced and tried where
the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the
principal defendants resides, or in the case of a non-resident defendant where he may be
found, at the election of the plaintiff.
Venue of personal actions (BAR 2011)
1. The venue in personal actions is where the plaintiff or any of the principal plaintiffs
resides, or where the defendant or any of the principal defendants reside, at the
election of the plaintiff.

2. If the defendant is a non resident, the venue is where the plaintiff or any of the principal
plaintiffs resides, or where the non-resident defendant may be found, at the election of
the plaintiff.

Example:
Actions for damages and actions to collect a sum of money are personal actions, hence
must be filed in either the residence of the plaintiff or the residence of the defendant at the
election of the plaintiff.
For example, ANNA, a resident of Passi City, Iloilo, entered into a contract of lease of a
residential house located in Roxas City, with Barbie, a resident of Dumangas, Iloilo. In case Anna
fails to pay the monthly rental, where should Barbie commence the action of unlawful
detainer? Explain.

Barbie may commence the action against Anna with the city court in Roxas City, where
the property is located. This is so because the Rules in substance provide that for cases of
forcible entry and detainer action shall be commenced and tried in the municipal trial court of
the municipality or city wherein the real property involved is situated.
Section. 3. Venue of actions against non-residents. – If any of the defendants does not reside
and is not found in the Philippines, and the action affects the personal status of the plaintiff,
or any property of said defendant located in the Philippines, the action may be commenced
and tried in the court of the place where the plaintiff resides, or where the property or any
portion thereof is situated or found.

67
Venue of actions against non-residents affecting the personal status of the plaintiff; actions
affecting property of the non-resident in the Philippines.
1. The rule on venue under Sec. 3 of Rule 4 of the Rules of Court applies when the
following concur:

(a) Any of the defendants is a non-resident and at the same time is not found in the
Philippines;
(b) The action affects the personal status of the plaintiff; or
(c) The action affects any property of the non-resident defendant located in the
Philippines.

The action in the above situations 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 (Sec. 3, Rule 4, Rules of Court).
Examples:
(1) An action for Declaration of Nullity of Marriage is an action which affects the personal
status of the plaintiff, and if at the time of the filing of the actions, the defendant, who is
a citizen of Korea, is a non-resident and at the same time is not found in the Philippines,
the said action may be commenced and tried in the place where the plaintiff resides.
(2) An action to Impugn the Legitimacy of a Person is an action which affects the personal
status of the plaintiff, against a non-resident defendant and not found in the Philippines,
venue is the place where the plaintiff resides.
(3) An action for Recovery of Possession or for Recovery of Ownership involving real
property located in the Philippines, against a non-resident defendant, may be
commenced and tried in the place where the property or any portion thereof is located.
(4) An action for the Nullity of Title is an action which affects the property of the non –
resident defendant and who is not found in the Philippines, venue is the place where
the property is situated.
Section. 4. When Rule not applicable. – This Rule shall not apply –
(a) In those cases where a specific rule or law provides otherwise; or
(b) Where the parties have validly agreed in writing before the filing of the action on the
exclusive venue thereof.

WHEN THE RULES ON VENUE DO NOT APPLY

The rules on venue are not applicable in any of the following cases:
1. In those cases where a specific rule or law provides otherwise;

68
Example:

In a Petition for Quo Warranto initiated by the Office of the Solicitor General, the action
may be brought in a Regional Trial Court in the City of Manila, in the Court of Appeals, or in the
Supreme Court.

2. Where the parties have validly agreed in writing before the filing of the action on the
exclusive venue thereof.

STIPULATIONS ON VENUE (BAR 1997; 2001)

The parties may agree on a specific venue which could be a place where neither of them
resides. The parties may stipulate on the venue as long as the agreement is (1) in writing, (2)
made before the filing of the action, and (3) exclusive as to the venue.
Where the venue stipulated upon is mandatory or restrictive, the complaint is to be filed
only in the stipulated venue. Where the stipulated venue is merely permissive, the complaint
may be filed in the place designated by the Rules or in the place stipulated. The latter place
thus, becomes a permissible venue in addition to those provided for by the Rules.
Examples of words with restrictive meanings are: “only” “solely” “exclusively in this court” “in
no other court save” “particularly” “nowhere else but/except”
THE “POLYTRADE” STIPULATION
A stipulation where the “parties agree to sue and be sued in the Courts of Manila” was
held not to preclude the filing of the suit in the residence of the plaintiff or of the defendant.
The Court held that the plain meaning of the stipulation is that the parties merely consented to
be sued in Manila. Qualifying words that Manila alone is the venue are totally absent. The
stipulation is simply permissive. (Polytrade Corporation vs. Blanco, 30 SCRA 187)
DISMISSAL BASED ON IMPROPER VENUE
1. A motu proprio dismissal based on improper venue is plain error.

2. It was similarly ruled that a court may not dismiss an action motu proprio on the ground
of improper venue as it is not one of the grounds wherein the court may dismiss an
action motu proprio on the basis of the pleadings.
Case
Lessor filed a complaint against lessee with the RTC of Valenzuela City for collection of unpaid
rentals amounting to P8 million. The lease contract provided that “all actions filed in connection
with this lease shall be filed with the RTC of Pasay City, exclusive of all others.” Lessee filed
several motions for extension of time to file a responsive pleading and when he eventually filed
his answer, it contained a counterclaim and third-party complaint. In his answer, the lessee

69
raised the affirmative defense of improper venue. May the case be dismissed on the ground of
improper venue?
Answer.
Yes. The venue stipulation is a restrictive or exclusive one; hence any action arising from the
lease contract shall be filed only in the RTC of Pasay City. That respondent had filed several
motions for extension of time to file a responsive pleading, or that he interposed a
counterclaim or third-party complaint in his answer does not necessarily mean that he waived
the affirmative defense of improper venue. There is no inconsistency in seeking dismissal of the
main complaint while pursuing one’s counterclaim or third-party complaint in the same case.
(Ley Construction Corp. v. Sedano, 23 August 2017, Perlas-Bernabe, J.).

Note: Under the 2019 Rules of Civil Procedure, specifically Section 12, Rule 15, the grounds for
motion to dismiss are the following

1. That the court has no jurisdiction over the subject matter of the claim;
2. That there is another action pending between the same parties for the cause; (lites
pendecia)
3. That the cause of action is barred by a prior judgment; res judicata) and
4. Or by the statute of limitation.
In this particular case, the remedy of the defendant is to raise “improper venue” as one
of the affirmative defences under Section 12, Rule 8 of the 2019 Rules of Civil Procedure.
WHEN COURT MAY MAKE A MOTU PROPRIO DISMISSAL BASED ON IMPROPER VENUE
1. Rules on Summary Procedure
2. Small Claims Cases

VENUE DISTINGUISHED FROM JURISDICTION (BAR 2006)

1. Jurisdiction is the authority to hear and determine a case; venue is the place where the
case is to be heard or tried;
2. Jurisdiction is a matter of substantive law; venue, of procedural law;
3. Jurisdiction establishes a relation between the court and the subject matter; venue, a
relation between plaintiff and defendant, or petitioner and respondent;
4. Jurisdiction is fixed by law and cannot be conferred by the parties; venue may be
conferred by the act or agreement of the parties;
5. Venue is procedural, not jurisdictional;
6. The court may dismiss an action motu proprio in case of lack of jurisdiction over the
subject matter but not for improper venue;

70
 7. Jurisdiction over the subject matter may be raised at any stage of the proceedings since
it is conferred by law, although a party may be barred from raising it in the ground of
estoppels.

Exception to the Rules

The rules on venue provide that actions shall be filed in the place where the property is
situated or where the parties reside. Are these rules absolute? Why?
No, the rules are not absolute. The Rules of Court provide that they shall not apply:
(a) In those cases where a specific rule or law provides otherwise; or

(b) Where the parties have validly agreed in writing before the filing of the action on the
exclusive venue thereof. (Sec. 4, Rule 4).

Example:
Ambrosio is the owner of a house and lot located in Pavia, Iloilo, being leased to Brenda.
In the lease contract, they agreed that any action to enforce the contract shall be filed
exclusively in the proper court of Dumangas, Iloilo. May the lessor file such suit in Dumangas,
Iloilo even if the Rules provide that the venue of unlawful detainer cases is in the court where
the property is situated? Why?
Yes, it can be filed in Dumangas, Iloilo because the parties have agreed in writing before
the filing of the action on the exclusive venue of such action. The basis of the rule is that venue
can be agreed upon.
In the problem above, suppose the lessor filed the action in Pavia, Iloilo, and you were
the counsel for Brenda, what course of action would you do? Why?
I would contend that there is improper venue since the agreement as to venue is
exclusive. In Polytrade Corp. vs. Blanco, 30 SCRA 187, it was said that if the parties agree in
writing before the filing of the action that the same shall be filed exclusively in a certain place, it
cannot be filed in another place even if that place is the residence of the parties or the location
of the real property involved.
Example:
The parties in a contract stipulated that “all suits arising out of this Agreement shall be
filed within the proper courts of Quezon City.” Is this stipulation exclusive? Why?
No. If the parties intend in their contract that the place specified as the venue of all suits
is exclusive, they must employ a categorical and suitable limiting language, that they wish the
venue of all actions between them to be laid only and exclusively at a definite place, otherwise

71
it is permissive. The fact that in their agreement the parties specify only one of the venues
mentioned in Rule 4 or fix a place for their actions different from those specified in said rule,
does not without more, suffice to characterize the agreement as a restrictive one. There must
be accompanying language clearly and categorically expressing their purpose and design that
actions between them be litigated only at the place named by them. Any doubt or uncertainty
as to the parties’ intentions must be resolved against giving their agreement a restrictive or
mandatory aspect. (Unimasters Conglomeration, Inc. vs. CA, 79 SCAD 241.)
The rule is that, if an action is filed at a wrong venue, a motion to dismiss must be filed
on the ground of improper venue, otherwise, it is deemed waived. Is the waiver applicable if
the action is a real action?
Yes. If wrong venue is not properly raised in a motion to dismiss, the same is considered
waived and the court would proceed in perfectly regular fashion if it then tried and decided the
action. This is also true of real actions. Even if a case affecting title to, or for recovery of
possession, or for partition or condemnation of, or foreclosure of mortgage on real property
were commenced in a place other than where the real property or any part thereof is located, if
no objection is seasonably made in a motion to dismiss, the objection is deemed waived, and
the court would be acting entirely within its competence and authority in proceeding to try and
decide the suit. (The above answer should be modified in view of the 2019 Rules of Civil
Procedure)
BAR 2016
After working for 25 years in the Middle East, Evan returned to the Philippines to retire in
Manila, the place of his birth and childhood. Ten years before his retirement, he bought for
cash in his name a house and lot in Malate, Manila. Six months after his return, he learned that
his house and lot were the subject of foreclosure proceedings commenced by ABC Bank on the
basis of a promissory note and a deed of real estate mortgage he had allegedly executed in
favor of ABC Bank five years earlier.
Knowing that he was not in the country at the time the promissory note and deed of
mortgage were supposedly executed, Evan forthwith initiated a complaint in the RTC of Manila
praying that the subject documents be declared null and void.
ABC Bank filed.a motion to dismiss Evan's complaint on the ground of improper venue
on the basis of a stipulation in both documents designating Quezon City as the exclusive venue
in the event of litigation between the parties arising out of the loan and mortgage.
Should the motion to dismiss of ABC Bank be granted? Explain your answer.
SUGGESTED ANSWER:
No, the motion to dismiss of ABC Bank should not be granted.
In a case involving similar facts, the Supreme Court held that a party is not bound by a
venue stipulation where he directly assails on the ground of forgery the validity of the contracts
containing the venue stipulation. The reason is that such a party cannot be expected to comply

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with the venue stipulation since his compliance therewith would mean an implicit recognition
of the validity of the contracts he assails. [Briones v. Cash Asia Credit Corp., 14 January 2015,
Perlas-Bernabe, J.]
May the trial court motu proprio dismiss a complaint on the ground of improper venue?
NO. Unless and until the defendant objects to the venue in a motion to dismiss, the
venue cannot be truly said to have been improperly laid, as for all practical intents and
purposes, the venue, though technically wrong, may be acceptable to the parties for whose
convenience the rules on venue had been devised. The trial court cannot preempt the
defendant’s prerogative to object to the improper laying of the venue by motu proprio
dismissing the case. Indeed, it was grossly erroneous for the trial court to have taken a
procedural shortcut by dismissing motu proprio the complaint on the ground of improper
venue without first allowing the procedure outlined in the Rules of Court to take its proper
course. Although we are for the speedy and expeditious resolution of cases, justice and fairness
take primary importance. The ends of justice require that respondent trial court faithfully
adhere to the rules of procedure to afford not only the defendant, but the plaintiff as well, the
right to be heard on his cause. (Dacoycoy vs. IAC, 195 SCRA 641). (The above answer should be
modified in the light of the amendments introduced by the 2019 Rules of Civil Procedure)
Example:
Xerxes is bound for Samar. He boarded a vessel. The venue of action stated in the ticket
of Xerxes is in the City of Manila, but Xerxes is a resident of Samar. Rule on the validity of the
stipulation.
The stipulation is not valid.
Where the stipulation as to venue in a passenger ticket of a vessel would be contrary to
public policy making courts inaccessible to all who may have need of their services, the
stipulation is void and unenforceable. (Sweet Lines, Inc. vs. Teves, 83 SCRA 361).
In Hoechst Phils. Vs. Torres, 83 SCRA 297, it was ruled that agreements as to venue are
oppressive when the stipulations work injustice or deny the parties concerned access to court
by reason of poverty.
Example:
The Articles of Incorporation of ABC Corporation states that its principal office is in
Cebu. If it enters into a contract without specifying where a suit should be filed, where should
such action be filed? Explain.
In the absence of any stipulation to the contrary, a suit against ABC Corporation is
supposed to be filed in Cebu.

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 A corporation has no residence in the same sense in which this term is applied to a
natural person. But for practical purposes, a corporation is in a metaphysical sense a resident of
the place where its principal office is located as stated in the Articles of Incorporation. (Cohen
vs. Benguet Commercial Company, Ltd., 34 Phil. 526; Clavecilla Radio System vs. antillo, 19 SCRA
379). The Corporation Code precisely requires each corporation to specify in its Articles of
Incorporation the “place where the principal office of the corporation is to be located which
must be within the Philippines.” (Sec. 14 (3). The purpose of this requirement is to fix the
residence of a corporation in a definite place, instead of allowing it to be ambulatory. (Davao
Light and Power Company, Inc. vs. CA, G.R. No. 111685, August 20, 2001; Young Auto Supply
Co. vs. CA. G.R. 104175, June 25, 1993, 42 SCAD 673).
May an action be filed against a corporation in places where it maintains its branches? Explain.
No. An action cannot be filed against a corporation in any place where the corporation
maintains its branches offices. To allow an action to be instituted in any place where the
corporation has branch offices, would create confusion and work untold inconvenience to said
entity. By the same token, a corporation cannot be allowed to file personal actions in a place
other than its principal place of business unless such a place is also the residence of a co-
plaintiff or a defendant.
When should venue be raised in an action? Why?
It is well-settled that the question on venue must not be belatedly raised, otherwise, it is
deemed waived. Improper venue should be objected to as follows:
Please take note that foregoing answers have been modified by Section 5, Rule 6 of the
2019 Rules of Civil Procedure.
(a) In a motion to dismiss filed within the time but before the filing of the answer (Sec. 1,
rule 16); or
(c) In the answer as an affirmative defense over which, in the discretion of the court, a
preliminary hearing may be held as if a motion to dismiss had been filed. (Sec. 6, Rule
16). Otherwise, it is deemed waived. (Khe Hong Cheng vs. CA, G.R. No. 144169, March
28, 2001). Note: Under the present rule, Section 12, Rule 15, motion to hear affirmative
defences is a prohibited motion.

Under the present Rules, improper venue is no longer allowed as a ground for a motion
to dismiss. The least that the defendant could do to question that venue is improperly laid is by
incorporating the same in the answer by way of affirmative defense.

In the study of venue in civil cases, it is also worthy to take a serious look on the precept
of venue for cases within the authority of the Lupon.

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VENUE in cases within the authority of the Lupon
The governing law for venue before the Lupon is RA 7160, (The Local Government
Code), Sec. 409. Venue. –
(a) Disputes between persons actually residing in the same barangay shall be brought for
amicable settlement before the lupon of said barangay. (Personal action)
Example:
Pedro and Mario are all residing at Barangay San Roque, Jaro, Iloilo City, and they are
embroiled in a collection case. Unless their case will fall under the excepted cases, their dispute
shall be first brought before the Lupon of their barangay or Barangay San Roque, Jaro, Iloilo
City.
(b)Those involving actual residents of different barangays within the same city or
municipality shall be brought in the barangay where the respondent or any of the
respondents actually resides, at the election of the complainant. (Personal action)

Example:

Maria, complainant, is a resident of Barangay San Isidro, Jaro, Iloilo City, while Corazon,
defendant, is residing at Barangay Concepcion, Iloilo City, and they have a dispute involving a
case for damages. In this case the proper venue for mediation proceedings is the Lupon where
Corazon or the defendant actually resides or at Barangay Concepcion, Iloilo City.

(c) All disputes involving real property or any interest therein shall be brought in the
barangay where the real property or the larger portion thereof is situated. (Real
action)

Example:

Rodrigo, a resident of Barangay Tabuc Suba, Jaro, Iloilo City, is the complainant in a civil
case for Recovery of Ownership of a parcel of land (real action) located at Barangay San Pedro,
Molo, Iloilo City against respondent Benigno, a resident of Barangay Gustilo, Lapaz, Iloilo City. In
this particular case, venue is the barangay where the real property is situated or at Barangay
San Pedro, Molo, Iloilo City.

(d) Those arising at the work place where the contending parties are employed or at the
institution where such parties are enrolled for study shall be brought in the
barangay where such workplace or institution is located.

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Example 1
Gloria, complainant, is residing at Brgy. Baluarte, Molo, Iloilo City, while respondent,
Corazon, is a resident of Barangay. Bo. Obrero, Lapaz, Iloilo City, but they both work as teachers
at CPU situated at Barangay San Isidro, Jaro, Iloilo City. The dispute between them should be
first resolved before the Lupon where the school or workplace is located, and in this it is at
Barangay San Isidro, Jaro, Iloilo City.

JURISDICTION AND VENUE

Jurisdiction defined
Jurisdiction is the power and authority of the court to hear, try and decide a case. It has
also been referred to as the power or capacity given by the law to a court or tribunal to
entertain, hear, and determine certain controversies.
Duty of a court to determine its jurisdiction

1. Courts are bound to take notice of the limits of their authority and they may act
accordingly by dismissing the action even though the issue of jurisdiction is not raised by
the pleadings or not even suggested by counsel.

2. When it appears that the court has no jurisdiction over the subject matter of a
complaint filed before it, the court has the duty to dismiss the claim and can do so motu
proprio.

3. Even if the parties do not challenge the jurisdiction of a court or tribunal, this does not
prevent the court from addressing the issue especially where the lack of jurisdiction is
apparent on the face of the complaint or petition.

Effect of lack of jurisdiction

The general rule is that proceedings conducted or decisions made by a court are legally
void where there is an absence of jurisdiction over the subject matter.
A decision rendered by a court devoid of jurisdiction may be the subject of a collateral
attack, if that jurisdictional defect appears on the face of the record. And where the lack of
jurisdiction over the subject matter appears on the face of the record, an appellate court may,
on its own initiative, dismiss the action.

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Aspect of Jurisdiction
In discussing the concept of jurisdiction, several aspects of jurisdiction need to be
considered, namely:
a. Jurisdiction over the subject matter;
b. Jurisdiction over the parties;
c. Jurisdiction over the issues of the case; and
d. Jurisdiction over the res or thing involved in the litigation.

What are the classifications of jurisdiction?

a. General – They are the courts that do not have limits on the types of cases then can
hear.
b. Special or limited – Courts which have the power to try only certain kinds of cases.
c. Original – The court’s power to hear a case and accept evidence
d. Exclusive – One court has the power to adjudicate a case to the exclusion of all other
courts.
e. Exclusive Original
f. Appellate – The court’s power to review a case on appeal.
g. Concurrent – When more than one court may take jurisdiction over the case.
h. Delegated; and
i. Territorial

What are the courts of special jurisdiction?

1. Sandiganbayan;
2. Court of Tax Appeals;
3. Shari’ah District Court;
4. Regional Trial Court;
5. Family Courts;
6. Shari’ah Circuit Court;
7. Metropolitan Trial Court, Municipal Trial Court, Municipal Circuit Trial Court

What are the courts which has original jurisdiction?

a. Supreme Court
b. Court of Appeals
c. Sandiganbayan
d. Regional Trial Court
e. Shari’ah District/Circuit Court
f. Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court and
Municipal Circuit Trial Court.

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JURISDICTION OVER THE SUBJECT MATTER
Meaning of jurisdiction over the subject matter:
Jurisdiction over the subject matter is referred to as the power of a particular court to
hear the type of case that is then before it. The term also refers to the jurisdiction of the court
over the class of cases to which a particular case belongs.
It is the power or authority to hear and determine cases of the general class to which
the proceeding in question belongs. Following this definition ‘real action’ ‘personal action’ or
action “incapable of pecuniary estimation” are to be considered as subject matter.
Effect of lack of jurisdiction over the subject matter
Jurisdiction over the subject matter has been held essential, fundamental, necessary, an
indispensable and an absolute requirement, an elementary prerequisite to the exercise of
judicial power and the most critical aspect of the court’s authority to act, so that a court must
have subject matter jurisdiction in order to take action in the proceeding before it. Where
judicial tribunals have no jurisdiction of the subject matter, the proceedings are void.
Error of jurisdiction versus error of judgment (Bar 1989)
1. An error of jurisdiction is one where the act complained of was issued by the court
without or in excess of jurisdiction. Errors of jurisdiction occur when the court exercises
a jurisdiction not conferred by law. It may also occur when the court or tribunal
although with jurisdiction, acts in excess of its jurisdiction or with grave abuse of
discretion amounting to lack of jurisdiction.
2. In the simplest terms, an error of judgment presupposes that the court is vested with
jurisdiction over the subject matter of the action but in the process of exercising that
jurisdiction it committed mistakes in the appreciation of the facts and the evidence
leading to an erroneous judgment.
3. It is settled rule that errors of judgment are correctible by appeal while errors of
jurisdiction are correctible only by the extraordinary writ of certiorari.

Lack of jurisdiction and excess of jurisdiction

There is lack of jurisdiction when the court or tribunal is not vested by law with
authority or power to take cognizance of a case. On the other hand, excess of jurisdiction
presupposes the existence of an authority for the court to assume jurisdiction over a case but in
the process of the exercise of that authority, it acts beyond the power conferred upon it.

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Example of Lack of Jurisdiction:
1. The Regional Trial Court has no jurisdiction to hear an Unlawful Detainer or Forcible
Entry case.
2. The civil court has no jurisdiction to try a case involving tenancy.
3. Generally, probate court has no jurisdiction to determine issue of ownership over
the disputed property.
Example of Excess of jurisdiction:
1. Generally, the court hearing an ejectment case exceeds its jurisdicton when it resolved
issue of ownership.
2. The first level court exceeds it jurisdiction when it awards damages exceeding its
jurisdiction limit.
HOW JURISDICTION OVER THE SUBJECT MATTER IS CONFERRED
1. Jurisdiction over the subject matter is conferred by law which may be either the
Constitution or a statute. (BP 129 and RA 7691 and RA no. 10951 – it has adjusted
the amount involved, value of the property or damage on which the penalty is based
and the fine under the Revised Penal Code by multiplying them by 200), and by RA
No. 11576).
2. It is the law that confers jurisdiction and not the rules. Jurisdiction over the subject
matter is a matter of substantive law because it is conferred by law.
3. This law that confers jurisdiction refers to substantive law, not procedural law. It
likewise does not refer to an administrative order or circular

CONSEQUENCES OF THE RULE THAT JURISDICTION IS CONFERRED BY LAW

Since jurisdiction over the subject matter is conferred only by the Constitution or by law,
it cannot be (1) granted by the agreement of the parties; (2) acquired, waived, enlarged, or
diminished by any act or omission of the parties or (3) conferred by the acquiescence of the
courts.
Jurisdiction over the subject matter is conferred by law and determined by the
allegations in the complaint which comprise a concise statement of the ultimate facts
constituting the plaintiff’s cause of action.

The nature of an action, as well as which court or body has jurisdiction over it, is
determined based on the allegations contained in the complaint of the plaintiff, irrespective of
whether or not the plaintiff is entitled to recover upon all or some of the claims asserted
therein.

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 The cause of action in a complaint is not what the designation of the complaint states,
but what the allegations in the body of the complaint define and describe. The designation or
caption is not controlling, more than the allegations in the complaint themselves are, for it is
not even an indispensable part of the complaint.

The rule also applies in the determination of the jurisdiction of a quasi-judicial office or a
governmental agency.

Defenses in the Answer do not determine jurisdiction

Jurisdiction over the subject matter is not affected by the pleas or theories set up by the
defendant in an answer or a motion to dismiss. The settled rule is that jurisdiction is based on
the allegations in the initiatory pleading and the defenses in the answer are deemed irrelevant
and immaterial in its determination.

While the Municipal Trial Court does not lose its jurisdiction over an ejectment case by
the simple expedient of a party raising as a defense therein the alleged existence of a tenancy
relationship between the parties, yet if after hearing, tenancy had in fact been shown to be the
real issue, the court should dismiss the case for lack of jurisdiction.

The jurisdiction of a court, as well as the concomitant nature of the action, is

determined by the averments in the complaint and not by the defenses contained in the
answer. Well-settled is the principle that the courts shall not be divested of jurisdiction over a
case merely by what is raised in the answer. What determines jurisdiction over it are the
allegations set up by the plaintiff.
In a case, the defendant raised the issue of tenancy. The Supreme Court ruled that
raising the issue of tenancy did not automatically divest the court of jurisdiction. The court had
to continue exercising authority to hear the evidence for the purpose of determining whether
or not it had jurisdiction over the case. This is because once jurisdiction is vested, the same is
retained up to the end of the litigation. If during the hearing it is shown that tenancy is the real
issue, then the court should dismiss the case for lack of jurisdiction (Bernarte v. CA, 263 SCRA
323).
SUPPOSE A DEFENDANT IN A MUNICIPAL COURT IN AN EJCTMENT SUIT INTERPOSES THE
DEFENSE OF OWNERSHIP, WILL THE MTC STILL HAVE JURISDICTION OVER THE SUBJECT
MATTER? WHY?

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 YES. The mere fact that the defendant in an ejectment suit interposes the right of
preemption or ownership does not deprive the MTC of its exclusive jurisdiction. (Heirs of
Jacobo Balres vs. CA, 281 SCRA 798.)
Inferior courts may not be divested of jurisdiction over ejectment cases simply because
the action cannot be dependent on the defense of the defendant. The only issue in forcible
entry and detainer cases is possession de facto (Manuel vs. CA, July 25, 1991.)
If there is a defense of ownership, the court can make findings or decide on the issue of
ownership only to determine the degree of possession. It is not res judicata with respect to the
issue of ownership in another tribunal as it is only provisional.
MAY THE MUNICIPAL TRIAL COURT TRYING AN EJECTMENT SUIT BE RESTRAINED BY THE RTC
FROM TRYING THE CASE JUST BECAUSE OF THE PENDENCY OF AN ANNULMENT CASE? WHY?
NO. The filing of an action for reconveyance of title over the same property or for the
annulment of the deed of sale over the land does not divest the MTC of its jurisdiction to try
the forcible entry or unlawful detainer case before it. (De la Cruz vs. CA, 133 SCRA 520.) this is
because, while there may be identity of parties and subject matter in the forcible entry case
and the suit for annulment of title and/or reconveyance, the rights asserted and the relief
prayed for are not the same. (Drilon vs. Gaurana, 149 SCRA 342). The respondents in ejectment
proceedings cannot defeat the summary nature of the action against them by simply filing an
action questioning the ownership of the person who is trying to eject them from the premises.
(Palomar vs. Sison, G.R. No. 82761, June 29, 1989.)
Amount proven in the trial does not determine jurisdiction
Jurisdiction does not depend on the amount ultimately substantiated in the course of
the trial or proceedings. Where the allegations of the complaint show that the RTC has
jurisdiction, the mere fact that the court rendered judgment involving a lesser sum than that
alleged, did not divest the court of jurisdiction.
On the other hand, if a complaint is filed involving an amount within the jurisdiction of a
lower court, but the trial disclose that the plaintiff is entitled to an amount which if claimed in
an original action is within the exclusive jurisdiction of a superior court, the lower court, it is
opined, should refrain from rendering judgment for an amount beyond its jurisdiction.
Doctrine of primary jurisdiction (primary administrative jurisdiction)
Under the doctrine of primary jurisdiction, courts cannot and will not resolve a
controversy involving a question within the jurisdiction of an administrative tribunal, especially
when the question demands sound exercise of administrative discretion requiring special
knowledge, experience and services of the administrative tribunal to determine technical and
intricate matters of fact.

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 Pursuant to this doctrine, cases within the jurisdiction of administrative bodies like labor
case, agrarian cases, election cases SSS cases shall be referred first to these governmental
agencies by way of exhaustion of administrative remedies.
Doctrine of adherence of jurisdiction (continuity of jurisdiction)
The doctrine means that once jurisdiction has attached, it cannot be ousted by
subsequent happenings or events, although of a character which would have prevented
jurisdiction from attaching in the first instance. The court, once jurisdiction has been acquired,
retains that jurisdiction until it finally disposes of the case.
Even the finality of the judgment does not totally deprive the court of jurisdiction over
the case. What the court loses is the power to amend, modify, or alter the judgment. Even after
the judgment has become final, the court retains jurisdiction to enforce and execute it.
Doctrine of Ancillary Jurisdiction
The inherent or implied powers of courts sometimes referred to as “ancillary
jurisdiction” involve the power to determine issues incidental to the exercise of its primary
jurisdiction. Under its ancillary jurisdiction, a court may determine all questions relative to the
matters brought before it, regulate the manner in which a trial shall be conducted, determine
the hours at which the witnesses and lawyers may be heard, direct the disposition of money
deposited in court in the course of the proceedings, appoint a receiver, and grant an injunction,
attachment or garnishment.
Example:
Under last par. Sec. 9, Rule 41, prior to the transmittal of the original records or the
record on appeal, the court may issue orders for the protection and preservation of the rights
of the parties which do not involve any matter litigated by the appeal, approve compromises,
permit appeals of indigent litigants, order execution pending appeal in accordance with Section
2 of Rule 39, and allow withdrawal of the appeal. (See also Rule 42, par (a), Sec 8)
Law which governs jurisdiction
Jurisdiction being a matter of substantive law, the established general rule is that the
statute in force at the time of the commencement of the action determines the jurisdiction of
the court (Baritua vs. Mercader, 350 SCRA 86)
Objections to jurisdiction over the subject matter
The court may on its own initiative object to an erroneous jurisdiction and may ex mero
motu take cognizance of lack of jurisdiction at any point in the case and has a clearly recognized
right to determine its own jurisdiction in any proceeding.

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 Thus, the prevailing rule is that jurisdiction over the subject matter may be raised at any
stage of the proceedings, even for the first time on appeal. The reason is that jurisdiction is
conferred by law, and lack of it affects the very authority of the court to take cognizance of and
to render judgment on the action.

When the court dismisses the complaint for lack of jurisdiction over the subject matter,
should it refer or forward the case to another court with the proper jurisdiction? It is submitted
that the court should not do so. Its only authority is to dismiss the complaint and not to make
any other order (BAR 2004).

The Court has constantly upheld the doctrine that while jurisdiction may be assailed at
any stage, a litigant’s participation in all stages of the case before the trial court, including the
invocation of its authority in asking for affirmative relief, bars such party from challenging the
court’s jurisdiction (PNOC Shipping and Transport Corporation vs. Court of Appeals, 297 SCRA
402 [1998]). A party cannot invoke the jurisdiction of a court to secure affirmative relief against
his opponent and after obtaining or failing to obtain such relief, repudiate or question that
same jurisdiction (Asset Privatization Trust vs. Court of Appeals, 300 SCRA 579 [1998]; Province
of Bulacan vs. Court of Appeals, 299 SCRA 442 [1998]). The Court frowns upon the undesirable
practice of a party participating in the proceedings and submitting his case for decision and
then accepting judgment, only if favorable, and attacking it for lack of jurisdiction, when
adverse (Producers Bank of the Philippines vs. NLRC, 298 SCRA 517 [1998], citing Ilocos Sur
Electric Cooperative, Inc. vs. NLRC, 241 SCRA 36 [1995])."
Omnibus Motion Rule
Under the omnibus motion rule, a motion attacking a pleading, order, judgment, or
proceeding shall include all objections then available, and all objections not so included shall be
deemed waived (Sec. 8, (now Sec. 9) Rule 15, Rules of Court). A motion to dismiss which seeks
the dismissal of a claim is undoubtedly an omnibus motion and is thus, covered by the rule
enunciated in Sec. 8 (now Sec. 9) of Rule 15.
Thus, there are defenses mentioned in Sec. 1 of Rule 9, not considered waived even if
not raised in a motion to dismiss like lack of jurisdiction over the subject matter. Hence, even if
a motion to dismiss was filed and the issue of jurisdiction was not raised therein, as party may,
when he files an answer, still raise the lack of jurisdiction as an affirmative defense because this
defense is not barred under the omnibus motion rule.
Effect of estoppels on objections to jurisdiction
While it is true that jurisdiction over the subject matter may be raised at any stage of
the proceedings since it is conferred by law, it is nevertheless settled that a party may be
barred from raising it on the ground of estoppel (La’o v. Republic, 479 SCRA 439).

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 The fact pattern common among those cases wherein the Court invoked estoppels to
prevent from questioning jurisdiction is a party’s active participation in all stages of a case,
including invoking the authority of the curt in seeking affirmative relief and questioning the
court’s jurisdiction only after receiving a ruling or decision adverse to his case for the purpose
of annulling everything done in the trial in which he has actively participated.

The doctrine of estoppels by laches in relation to objections to jurisdiction first

appeared in the landmark case of Tijam v. Sibonghanoy, 23 SCRA 29).

The rule also applies to administrative proceedings. The active participation of an

individual before the administrative proceedings and the belated challenge to the jurisdiction of
the said body bars him from assailing such acts under the principle of estoppels (Office of the
Ombudsman vs. Delijero, Jr., 634 SCRA 135).

Tijam ruling, an exception rather than the rule. Where the factual settings attendant in
Tijam vs. Sibonghanoy are not present, the application of estoppels by laches would not be
justified.

HOW IS JURISDICTION OVER THE SUBJECT MATTER DETERMINED?

Jurisdiction over the subject matter is determined upon the allegations made in the
complaint, irrespective of whether the plaintiff is entitled or not, to recover upon the claim
asserted therein, a matter resolved only after and as a result of the trial. Neither can the
jurisdiction of the court be made to depend upon the defenses made by the defendant in his
answer or motion to dismiss. If such were the rule, the question of jurisdiction would depend
almost entirely upon the defendant. (Perez vs. Cruz, G.R. No. 142503, June 30, 2003.)
MAY JURISDICTION OF THE COURT BE RAISED OR QUESTIONED AT ANY TIME? IS THE RULE
ABSOLUTE? EXPLAIN AND CITE EXAMPLES.
Jurisdiction can be raised even for the first time on appeal. But there are instances
where it cannot be raised anymore due to the principle of estoppel to question jurisdiction.
(Tijam vs. Sibonghanoy, 23 SCRA 3)
One cannot question the jurisdiction which he invoked, not because of the reason that
the decision is valid and conclusive as an adjudication, but because it cannot be tolerated by
reason of public policy. (Filipinas Shell Petroleum Corp. vs. Dumlao, February 7, 1992), that
there must be an end to every litigation.
In Tajonera vs. Lamaroza, L-48907 and 49035, January 19, 1982, the Supreme Court said
that a party cannot invoke the jurisdiction of the court to secure affirmative relief against his

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opponents and after failing to obtain such relief, repudiate or question the same. (Racaza vs.
Gozum, 490 SCRA 302.)
A complaint for sum of money in the amount of P195, 000.00 was filed with the RTC. It
prayed for other damages. The defendant filed an answer, denying that he obtained any loan
from the plaintiff. After trial, judgment was rendered holding the defendant liable. She filed a
motion for reconsideration alleging that the RTC did not have jurisdiction over the subject
matter as the amount is within the jurisdiction of the MTC. The motion was denied ruling that
under the principle of estoppel, the RTC has jurisdiction and invoking further the totality
principle. The CA reversed the decision and the resolution on appeal saying that the RTC had no
jurisdiction over the subject matter, and hence, the jurisdiction of the court may be assailed at
anytime. Is CA’s ruling correct? Why?
NO. While it is true that jurisdiction may be raised at anytime, this rule presupposes that
estoppel has not supervened. (Sesbrano vs. CA, 310 Phil. 671). In the instant case, respondent
actively participated in all stages of the proceedings before the trial court and invoked its
authority by asking for an affirmative relief. Clearly, defendant is estopped from challenging the
trial court’s jurisdiction, especially when an adverse judgment has been rendered. (Soliven vs.
Fastforms Phils. Inc. G.R. No. 139031, October 18, 2004.)
STATE THE LIMITATION OF THE PRINCIPLE OF ESTOPPEL TO QUESTION JURISDICTION.
The operation of the principle of estoppel on the question of jurisdiction seemingly
depends upon whether the lower court actually had jurisdiction. If it had no jurisdiction, but the
case was tried and decided upon the theory that it had jurisdiction, the parties are not barred
on appeal from assailing such jurisdiction, for the same must exist as a matter of law, and may
not be conferred by consent of the parties or by estoppel. (Aragon vs. CA, 81 SCAD, G.R. No.
12433, March 26, 1997.)
EXPLAIN HOW A COURT MAY ACQUIRE JURISDICTION OVER A CASE.
The courts acquire jurisdiction over the subject matter when the cases are filed. Failure
to pay the correct docket fees used to be fatal when the court did not acquire jurisdiction.
(Manchester Development Corp. vs. CA, 149 SCRA 56.) This rule has however been relaxed
when the SC ruled that even if the correct filing fees were not paid, plaintiffs were given time to
pay the docket fees within the prescriptive period. (Sun Insurance vs. Asuncion, 170 SCRA 275.)

JURISDICTION OVER THE PARTIES

Meaning of jurisdiction over the person; jurisdiction in personam.
Jurisdiction over the person is the legal power of the court to render a personal
judgment against a party to an action or proceeding.

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 Jurisdiction in personam is the power which a court has over the defendant’s person
and which is required before a court can enter a personal or an in personam judgment.
How jurisdiction over the persons of the parties is acquired (BAR 2009)
Jurisdiction over the person of the plaintiff is acquired by the filing of the initiatory
pleading, like a complaint or petition. By doing so, he submits himself to the jurisdiction of the
court. In filing the complaint, the plaintiff inevitably invokes the jurisdiction of the court to
grant the relief demanded and prayed for and whether he likes it or not, the court acquires
jurisdiction over his person (Caluag vs. Pecson, 82 Phil. 13 [1948])
BAR 1981
“A’ a resident of Melbourne, Australia, presented a complaint against “B” a resident of
Manila, before the RTC of Manila for accounting and damages. “A” never came to the
Philippines to file the suit and is only represented in this case by counsel. “B” files a motion to
dismiss the complaint on the ground that the Court acquired no jurisdiction over the person of
“A” Should the case be dismissed on this ground and why?
Suggested Answer
The suit should not be dismissed on the ground invoked by “B” It is a recognized
procedural rule that jurisdiction over the plaintiff is acquired by his filing of the complaint in
court. By filing the complaint through his counsel, “A” invoked the jurisdiction of the court over
his person.
HOW IS JURISDICTION OVER THE PERSON OF THE DEFENDANT ACQUIRED?
As a rule, jurisdiction over the person of the defendant is acquired by the proper service
of summons, or by the voluntary appearance in court and his submission to the authority of the
court. (Paramount Industries vs. Luna, 148 SCRA 564.)
The service of summons is intended to give official notice to the defendant or
respondent that an action has been commenced against him. He is thus put on guard as to the
demands of the plaintiff as stated in the complaint. The service of summons is an important
element in the operation of a court’s jurisdiction upon a party to a suit because it is the means
by which the court acquires jurisdiction over his person.
Where the notice is not given to the defendant or where the notice though given is
defective, the court is without jurisdiction to render judgment against him (Buena vs. Siapnay, 6
SCRA 706)
BAR 1978
X sued Y, a domestic corporation, for damages in the sum of P30, 000. 00 because the
latter’s failure to fulfill its warranty on the car it had sold to X. The summons was served on Z,

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the secretary of the chief of the personnel of Y corporation. Y corporation did not answer the
complaint within the reglementary period and upon motion of X, with due notice to Y, Y was
declared in default. After X presented his evidence ex parte, judgment by default was rendered
against Y corporation. As counsel for Y corporation, what action will you take and why?
Suggested answer
I would appeal from the judgment or file a petition for certiorari and pray for the setting
aside of the judgment, raising the argument that the trial court did not acquire jurisdiction over
the defendant, Y corporation because of an improper service of summons. When the defendant
is a corporation organized under the laws of the Philippines with a juridical personality, service
is to be made on the president, managing partner, general manager, corporate secretary,
treasurer, or in house counsel. The Court declared that a strict compliance with the mode of
service is required to confer jurisdiction over a corporate defendant. (Please take note of the
provisions of Sec. 12, Rule 14)
Jurisdiction over non-resident defendants
When the defendant is a non-resident and, remaining beyond the personal service of
the court, refuses to come in voluntarily, the court never acquires jurisdiction over the person
at all (Banco Espanol-Filipino vs. Palanca, 73 Phil. 921)
This rule applies to defendants who are non-residents and are at the same time not
found in the Philippines. When the defendant is a non-resident, personal service of summons
within the state is essential to the acquisition of jurisdiction over the person. This cannot be
done, however, if the defendant is not physically present in the country, and thus, the court
cannot acquire jurisdiction over his person and therefore, cannot validly try and decide the case
against him (Banco Do Brasil vs. Court of Appeals, 333 SCRA 545)
Please note that in this case, the Rules provides that “service may, by leave of court, be
effected out of the Philippines by personal service as under Section 6; or as provided for in
international conventions to which the Philippines is a party, or by publication in a newspaper
of general circulation in such places and for such time as the court may order…” (Section 17,
Rule 14, 2019 Rules of Civil Procedure.)
Voluntary appearance of the defendant
The court may acquire jurisdiction over the person of the defendant without service of
summons or despite a defective service of summons.
Jurisdiction is acquired when the defendant voluntarily appears in the action. “The
defendant’s voluntary appearance in the action shall be equivalent to service of summons.”
(Sec. 20, Rule 14, Rules of Court)

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 To constitute voluntary appearance, it must be the kind that amounts to a voluntary
submission to the jurisdiction of the court. Submission to the court’s jurisdiction takes the form
of an appearance that seeks affirmative relief except when the relief sought is for the purpose
of objecting to the jurisdiction of the court over the person of the defendant.
Examples:
1. When the defendant files the corresponding pleading thereon;
2. When the defendant files a motion for reconsideration of the judgment by default;
3. When the defendant files a petition to set aside the judgment of default;
4. When the parties jointly submit a compromise agreement for approval of the court.

When jurisdiction over the person of the defendant is required.

Jurisprudence suggests that jurisdiction over the person of the defendant is required
only in an action in personam. Jurisdiction over the person of the defendant is not a
prerequisite in an action in rem and quasi in rem.
1. An ACTION IN PERSONAM is an action against a person on the basis of his personal
liability.
2. An ACTON IN REM is an action against the thing itself instead of against the person.

Example: (a) Petition for Adoption (b) Annulment of Marriage (c) Correction of entries in
the birth certificate.
3. An ACTION QUASI INREM is one wherein an individual is named as defendant and the
purpose of the proceeding is to subject his interest therein to the obligation or lien
burdening the property.

Example: (a) Forfeiture proceedings

In actions in rem and quasi in rem, jurisdiction over the person of the defendant is not a
prerequisite to conferring jurisdiction on the court, provided that the court acquires jurisdiction
over the res. Nonetheless, summons must be served upon the defendant in order to satisfy the
requirements of due process. For this purpose, service may be made by publication as such
mode of service is allowed in actions in rem and quasi in rem.
Objections to jurisdiction over the person of the defendant
An objection to the jurisdiction over the person of the defendant may be raised as a
ground for a motion to dismiss. If no motion to dismiss has been filed, the objection may be
pleaded as an affirmative defense in the answer. (BAR 1990). (The above answer should be
modified in the light of the 2019 Rules of Civil Procedure)

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 If the objection is not raised either in a motion to dismiss or in the answer, the objection
to the jurisdiction over the person of the defendant is deemed waived by virtue of the
provisions of Sec. 1, Rule 9 of the Rules of Court.

Also worthy to remember is the rule that if a motion to dismiss has been filed, the
defense of lack of jurisdiction over the person of the defendant must be pleaded in the same
motion where such ground is available at the time the motion is filed, otherwise it is deemed
waived pursuant to the omnibus motion rule.

The omnibus motion rule, in relation to Sec. 1 of Rule 9, enumerates certain defenses
which are not deemed waived even if not raised in the motion to dismiss. Also, under Sec. 1 of
Rule 9, when any of these grounds appears from the pleadings or in the evidence on record, the
court is authorized to dismiss the claim.

These defenses are:

1. That the court has no jurisdiction over the subject matter;
2. That there is another action pending between the same parties for the same
cause (litis pendencia);
3. That the action is barred by a prior judgment (res judicata; or
4. That the action is barred by the statute of limitations (prescription)

The defense of lack of jurisdiction over the person of the defendant is not one of those
defenses which are not deemed waived under Sec. 1 of Rule 9. Such defense must be invoked
when a motion to dismiss is filed to prevent a waiver of the defense.
Effect of pleading additional defenses aside from lack of jurisdiction over the person of the
defendant.
In La Naval Drug Corporation v. Court of Appeals (236 SCRA 78) held that if a plaintiff
may assert two or more causes of actions, a defendant should also be allowed under the Rules
of Court to put up his own defenses alternatively or hypothetically.
As the rule now stands, the rule allows the raising of defenses in addition to lack of
jurisdiction over the person of the defendant without creating an inference of a voluntary
submission to the jurisdiction of the court (Sec. 20, Rule 14, Rules of Court). Take note that
under the new rules, Rule 14, Section 23: “Voluntary appearance. – The defendant’s voluntary
appearance in the action shall be equivalent to service of summons. The inclusion in a motion
to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant
SHALL BE DEEMED a voluntary appearance.”

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Effect of an ex parte grant of preliminary attachment before service of summons upon
defendant
Preliminary attachment may be granted ex parte even before the defendant is served
with summons. The writ may be properly applied for and granted even before the defendant is
summoned or is heard from. However, a levy on the property pursuant to the writ thus issued
may not be validly effected unless preceded, or contemporaneously accompanied by service on
the defendant of summons, a copy of the complaint, and the application for attachment, the
order of attachment and the plaintiff’s attachment bond.

The grant of the provisional remedy of attachment involves three stages: FIRST, the
court issues the order granting the application; SECOND, the writ of attachment issues pursuant
to the order granting the writ; and THIRD, the writ is implemented. Jurisdiction over the person
of the defendant is not necessary in the first two stages. In the third stage, when the writ is to
be implemented, the court must have acquired jurisdiction over the person of the defendant.
Without such jurisdiction having been obtained, the court has no power and authority to act in
any manner against the defendant (Mangila vs. Court of Appeals, G.R. No. 125027, August 12,
2002).

WHAT IS MEANT BY THE PRESCRIPTIVE PERIOD REFERRED TO IN THE JURISDICTION?

It means the period within which a specified action must be filed. (CB vs. CA, G.R. No.
88353; Encarnacion vs. Producers Bank, G.R. No. 92943, May 8, 1992.)
WHEN IS THERE A NEED TO PAY DOCKET FEE IF THERE IS A COUNTERCLAIM?
There is no need to pay docket fee for compulsory counterclaim (UST vs. Suria, 294
SCRA 382), however, if there is a permissive counterclaim, a party is bound to pay the
prescribed docket fees. (Suson vs. CA, 278 SCRA 284). The reason is that, it is an initiatory
pleading where the rule requires the payment of docket fees.
“X” FILED A COMPLAINT AGAINST “Y” WHO FILED A COUNTERCLAIM BUT DID NOT PAY THE
DOCKET FEE ON TIME. IT WAS CONTENDED BY “X” THAT THE BELATED FILING OF THE DOCKET
FEE DID NOT HAVE THE EFFECT OF VESTING THE TRIAL COURT WITH JURISDICTION OVER THE
COUNTERCLAIM. RULE ON “X”’s CONTENTION.
The contention is not correct. While the filing of the initiatory pleading without payment
of the correct docket fee may not normally vest in the Court jurisdiction over the case, yet the
Court may allow payment of the fee within a reasonable time but in no case beyond the
applicable prescriptive period. The rule equally applies to permissive counterclaim, third-party
claims, and similar pleadings which shall not be considered filed until and unless the filing fees
prescribed therefore is paid. (Metals Engineering Resources Corp. vs. CA, G.R. No. 95631,
October 28, 1991).

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 JURISDICTION OVER THE ISSUE
Meaning of jurisdiction over the issue.
Jurisdiction over the issue is the power of the court to try and decide issues raised in the
pleadings of the parties.

An issue is a disputed point or question to which parties to an action have narrowed

down their several allegations and upon which they are desirous of obtaining a decision.

How jurisdiction over the issue is conferred and determined

1. Generally, jurisdiction over the issues is conferred and determined by the pleadings
of the parties.

2. Jurisdiction over the issues may also be determined and conferred by stipulation of
the parties as when in the pre-trial conference, the parties enter into stipulations of
facts and documents or enter into an agreement simplifying the issues of the case.

3. Jurisdiction over the issues may also be conferred by waiver or failure to object to
the presentation of evidence on a matter not raised in the pleadings.

Distinction between a question of fact and question of law (BAR 2004)

There is a question of law when the doubt or difference arises as to what the law is on a
certain set of facts. There is a question of fact when there is dispute as to the particular
facts in a given case.
JURISDICTION OVER THE RES
(PROPERTY IN LITIGATION)
Meaning of jurisdiction over the res; actions in personam, in rem and quasi in rem.
“Res” in civil law is a ‘thing’ and ‘object.’ It means everything that may form an object of
rights in opposition to ‘persona’ which is the subject of rights.

Jurisdiction over the res refers to the court’s jurisdiction over the thing or the property
which is the subject of the action. This type of jurisdiction is necessary when the action is an
action in rem or quasi in rem. When the action is one in personam, jurisdiction over the res is
not sufficient to authorize the court to render a judgment against the defendant, the court
must have also jurisdiction over the person of the defendant.

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How acquired
Jurisdiction over the res may be acquired by the court by placing the property or thing
under its custody (custodia legis) or constructive seizure, like the attachment of property.

A land registration cases is a proceeding in rem, and jurisdiction over the res in this case
cannot be acquired unless there is a constructive seizure of the land through publication and
service of notice.
JURISDICTION OF THE SUPREME COURT

Judicial Power and Jurisdiction of the Supreme Court

Under Article VIII, §1, the judicial power shall be vested in one Supreme Court and in
such lower courts as may be provided by law. This power includes the duty to settle actual
controversies involving rights that are legally demandable and enforceable and to determine if
any branch or instrumentality of government has acted with grave abuse of discretion
amounting to lack of excess of jurisdiction.

The Supreme Court has both original and appellate jurisdiction. It exercises original
jurisdiction (cases are directly filed with the SC in the first instance without passing through any
of the lower courts) over cases affecting ambassadors, other public ministers and consuls, and
over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. (Art.
VIII, §5(1)). It also has original jurisdiction over writs of amparo, habeas data and the
environmental writ of kalikasan. It exercises appellate jurisdiction to review, revise, reverse,
modify, or affirm final judgments, and orders of the 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.

(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.

(e) All cases in which only an error or question of law is involved. (Art. VIII, §5(1), (2))

The Supreme Court has administrative supervision over all courts and court personnel. (Article
VIII, §6) It exercises this power through the Office of the Court Administrator.

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Rule-making Powers

The Supreme Court has the exclusive power to promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of law, the integrated bar, and legal assistance to the underprivileged.
Any such rules shall provide a simplified and inexpensive procedure for the speedy disposition
of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or
modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court. (Art. VIII, §54(5))

The Supreme Court is not a trier of facts

There are important principles worthy of note in relation to the jurisdiction of the
Supreme Court.
1. The Supreme Court is not a trier of facts which means that passing upon a factual issue
is not within the province of the Supreme Court.

2. There is nothing more settled in this jurisdiction than the rule that the Supreme Court is
not a trier of facts, and that only questions of law may be entertained by the Court in
petition for review on certiorari under Rule 45.

Exceptions:
1. When the findings are grounded entirely on speculation, surmises or conjectures;
2. When the inference made is manifestly mistaken, absurd or impossible;
3. When there is grave abuse of discretion;
4. When the judgment is based on a misapprehension of facts;
5. When the findings of facts are conflicting;
6. When in making its findings the CA went beyond the issues of the case, or its findings
are contrary to the admissions of both the appellant and the appellee;
7. When the findings are contrary to the trial court;
8. When the findings are conclusions without citation of specific evidence on which they
are based;
9. When the facts set forth in the petition, as well as in the petitioner’s main and reply
briefs, are not disputed by the respondent;
10. When the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record; and
11. When the Court of Appeals manifestly overlooked certain relevant facts not disputed by
the parties, which, if properly considered, could justify a different conclusion.

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Appeal to the Supreme Court

Appeal to the Supreme Court may be taken ONLY by a Petition for Review on Certiorari,
under Rule 45, except in criminal cases where the penalty imposed is death, reclusion perpetua,
or life imprisonment.

The appeal is made by filing with the Supreme Court a verified petition for review on
certiorari and shall raise only questions of law.

JURISDICTION OF THE COURT OF APPEALS

Section 3. Jurisdiction and Manner of Exercise of Adjudicatory Powers of the Court by Divisions.
— In the exercise and discharge of the adjudicatory powers, functions and duties of the Court,
the Divisions concerned may hold sessions in chambers.

Unless otherwise provided by law or the Rules of Court, the Court shall have:

(a) Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas

corpus, and quo warranto, and other ancilliary writs or processes whether or not in aid
of its appellate jurisdiction;

(b) Exclusive original jurisdiction over actions for annulment of judgments of Regional
Trial Courts;

(c) Exclusive appellate jurisdiction over all other final judgments, decisions, resolutions,
orders or awards of Regional Trial Courts and quasi-judicial agencies, boards,
commissions or offices not falling within the exclusive jurisdiction of the Supreme Court
or other tribunals;

(d) Authority to receive other evidence and perform acts necessary for the resolution of
factual issues raised in cases falling within its original and appellate jurisdiction;

(e) Authority to receive newly discovered evidence relied upon by the movant in cases
within its appellate jurisdiction wherein new trial has been granted by the Court;

(f) The power to —

(1) Decide cases or resolve incidents deliberated upon by its members;

(2) Cite and punish for contempt any person guilty of any contumacious act
against the Court, its Division or any member thereof in connection with a case
cognizable by the Division;

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 (3) Decide whether or not to give due course to original petitions, including
petitions for review; and

(4) Subject to constitutional and statutory requirements, adopt its own rules in
the conduct of hearings, preparation of agenda, determination of cases and
incidents and rendition of decisions or resolutions. (Sec. 3, Rule 2, RIRCA)

JURISDICTION OF THE COURT OF TAX APPEALS

Creation, Elevation and Expansion

The Court of Tax Appeals (CTA) was created on June 16, 1954, through the enactment of
Republic Act No. 1125 (R.A. 1125). Considering its limited jurisdiction then, it had only three (3)
Judges, which at present is equivalent to one (1) Division.

With the passage of Republic Act Number 9282 (R.A. 9282) on April 23, 2004, the CTA became
an appellate Court, equal in rank to the Court of Appeals. The composition of the Court
increased to six (6) Justices with one (1) Presiding Justice and five (5) Associate Justices.

It shall sit En Banc, or in two (2) Divisions with three (3) Justices each. A decision of a division of
the CTA may be appealed to the CTA En Banc, and the latter's decision may further be appealed
by verified petition for certiorari to the Supreme Court.

However, Republic Act Number 9503 was enacted on June 12, 2008 and took effect on July 5,
2008. This further enlarged the organizational structure of the CTA by creating a Third Division
and providing for three (3) additional Justices. Hence, the CTA is now composed of one (1)
Presiding Justice and eight (8) Associate Justices. The CTA may sit en banc or in three (3)
divisions with each division consisting of three (3) Justices. The CTA, as one of the Courts
comprising the Philippine Judiciary, is under the supervision of the Supreme Court.

Expanded Jurisdiction

Through the enactment of Republic Act No. 9282, the jurisdiction of the CTA has been
expanded to include not only civil tax cases but also cases that are criminal in nature, as well as
local tax cases, property taxes and final collection of taxes.

Pursuant to the provisions of Republic Act No. 1125 and other laws prior to R.A. 9282, the Court
of Tax Appeals retains exclusive appellate jurisdiction to review by appeal, the following:

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 1. Decisions of the Commissioner of Internal Revenue in cases involving disputed
assessments, refunds of internal revenue taxes, fees or other charges, penalties
imposed in relation thereto, or other matters arising under the National Internal
Revenue Code or other law or part of law administered by the Bureau of Internal
Revenue;

2. Decisions of the Commissioner of Customs in cases involving liability for customs

duties, fees or other money charges; seizure, detention or release of property
affected; fines, forfeitures or other penalties imposed in relation thereto; or other
matters arising under the Customs Law or other law or part of law administered by
the Bureau of Customs [Rep. Act. No. 1125, (1954), Sec. 7];

3. In automatic review cases where such decisions of the Commission of Customs

favorable to the taxpayer is elevated to the Secretary of Finance (Sec. 2315, TCC);
and

4. Decisions of the Secretary of Trade and Industry, in the case of non-agricultural

product, commodity or article, or the Secretary of Agriculture, in the case of
agricultural product, commodity or article, in connection with the imposition of the
Anti-Dumping Duty, Countervailing and Safeguard Duty [Republic Act Nos. 8751
and 8752, (1999) Sec. 301 (a) and (p), and Republic Act 8800].

Under Republic Act Number 9282, the CTA's original appellate jurisdiction was expanded to
include the following:

1. Criminal cases involving violations of the National Internal Revenue Code and the
Tariff and Customs Code;

2. Decisions of the Regional Trial Courts (RTC) in local tax cases;

3. Decisions of the Central Board of Assessment Appeals (CBAA) in cases involving the
assessment and taxation of real property; and

4. Collection of internal revenue taxes and customs duties the assessment of which
have already become final.

JURISDICTION OF THE MUNICIPAL TRIAL COURTS

1. Personal property, estate or amount of the demand.

(a) Does not exceed P2, 000, 000. 00

Note: If the value of the property exceeds the said amounts, the Regional Trial Courts shall
have jurisdiction.

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 The jurisdictional amount does not include the following:
1. Interest
2. Damages of whatever kind;
3. Attorney’s fees;
4. Litigation expenses; and
5. costs

Salient Features of RA No. 11576 – The law expanding the jurisdiction of Trial Courts

Under Republic Act No. 11576, the jurisdiction of metropolitan trial courts, municipal
trial courts in cities, municipal trial courts, and municipal circuit trial courts will be further
expanded. The new law, seeking to unclog the dockets of these courts, amended the
Judiciary Reorganization Act of 1980.

Under RA 11576, the Regional Trial Courts shall exercise exclusive jurisdiction in all
civil actions involving the title to, or possession of, real property valued at P400,000, from
the previous P20,000 to P50,000.

The RTCs will also have jurisdiction on actions in all admiralty and maritime
jurisdiction where the demand or claims exceeds P2 million as well as all matters of
probate, both testate and intestate, where the gross value of the estate exceeds P2
million. The previous jurisdictional threshold ranged between P100,000 to 200,000.

On jurisdiction of metropolitan trial courts, municipal trial courts in cities, municipal

trial courts, and municipal circuit trial courts in civil cases, they will exercis e jurisdiction
over civil actions and probate proceedings, testate and intestate where the value of
personal property, estate or the amount of the demand does not exceed P2 million.

These courts will also have jurisdiction in all civil actions that involve title to, or
possession of, real property, or any interest where the assessed value does not exceed
P400,000. Admiralty and maritime actions where the demand or claim does not surpass P2
million will also be under the jurisdiction of these courts.

The new law also included a provision on the delegated authority of the Supreme
Court to adjust the jurisdictional amounts for the first and second level courts.

The law, signed by the President on July 30, takes effect 15 ays after publication in
the Official Gazette or two newspapers.

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 July 30 signed Republic Act 11576 that amended “The Judiciary Reorganization Act of
1980” and expanded the jurisdiction of Metropolitan Trial Courts (MeTC), Municipal Trial Courts
in Cities (MTCC), Municipal Trial Courts (MTC) and Municipal Circuit Trial Courts (MCTC).

MeTC, MTCC, MTC and MCTC are first level courts, while Regional Trial Courts are second level
courts.

Amendments

RA 11576 amends part of Batas Pambansa Blg. 129 and increases “the jurisdictional amount
cognizable by the [RTCs] in all civil actions which involve the title to, or possession of, real
property, or any interest therein, from the previous amount of P20,000 (P50,000 in Metro
Manila) to P400,000 except for forcible entry into and unlawful detainer of lands and buildings,
original jurisdiction over which remains with the first level courts.

Under the law, RTCs shall also exercise original jurisdiction on actions and maritime jurisdiction
where the demand or claim exceeds P2 million, previously P100,000 and in Metro Manila,
P200,000.

RTCs also have jurisdiction in all matters of testate and intestate probate where the gross value
of estate is more than P2 million, from the previous threshold of P100,000 and P200,000 for
Metro Manila.

RA 11576 increases RTC jurisdiction in “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 P2 million from the previous amount of P100,000.”

Note: Although excluded in determining the jurisdiction of the court, the above items
however, shall be included in the determination of the filing fees.
The Totality Rules
Under the totality rule, where there are several claims or causes of actions between the
same or different parties, embodied in the same complaint, the amount of the demand shall be
the totality of the claims in all the causes of action, irrespective of whether the causes of action
arose out of the same or different transactions.
The totality rule presupposes that the various claims of the same or different parties are
allowed to be embodied in the same complaint or that the different causes of action which are
joined accrue in favor of the same plaintiff/s and against the same defendant/s and that no
misjoinder of parties is involved.

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Example:
Defendant owes Plaintiff the following: P550, 000 representing the balance on the
purchase price of a car; P550, 000 based on a simple loan; P2, 000, 000 also based on another
loan. All debts are due and a demand to pay went unheeded, If an action is filed and the causes
of action are joined, the basis of jurisdiction would be the total amount due, hence, the RTC, in
this case, has jurisdiction. If each is made the subject of a separate complaint, the MTC, by
reason of the amount, has jurisdiction.
BAR 2010
On August 13, 2008, A, as shipper and consignee, loaded on the M/V Atlantis in Legaspi
City 100, 000 pieces of century eggs. The shipment arrived in Manila totally damaged on August
14, 2008. A filed before the Metropolitan Trial Court of Manila a complaint against B Super
Lines, Inc. (B Lines), owner of the M/V Atlantis, for recovery of damages amounting to P167,
899. He attached to the complaint the Bill of Lading.
A. B Lines filed a Motion to Dismiss upon the ground that the Regional Trial court has
exclusive original jurisdiction over “all actions in admiralty and maritime” claims. In
his Reply, A contended that while the action is indeed “admiralty and maritime” in
nature, it is the amount of the claim, not the nature of the action, that governs
jurisdiction. Pass on the Motion to Dismiss.
Suggested answer

The Motion to Dismiss is without merit and therefore should be denied. Courts of the
first level have jurisdiction over civil action where the demand is for sum of money not
exceeding P300, 000. 00 or in Metro Manila, P400, 000. 00, exclusive of interest, damages,
attorney”s fees, litigation expenses and costs; this jurisdiction includes admiralty and maritime
cases. And where the main cause of action is the claim for damages, the amount thereof shall
be considered in determining the jurisdiction of the court. (Adm. Circular No. 09-94, June 14,
1994) The above answer should be modified in the light of the passage of RA No. 11576).
2. Probate proceedings

(a) Where the gross value of the estate does not exceed P2, 000, 000. 00.

Note: Where the gross value of the estate exceeds the amounts mentioned, the Regional
Trial Court has exclusive original jurisdiction.

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 3. Delegated jurisdiction

1. The MTC also exercises delegated jurisdiction in cadastral and land registration cases
covering lots where there is no controversy or opposition, or contested lots the value of
which does not exceed P100, 000. 00, as may be delegated by the Supreme Court.
2. The value of the lot shall be ascertained by (a) the affidavit of the claimant or by (b)
agreement of the respective claimants if there are more than one, or (c) from the
corresponding tax declaration of the real property.
3. The decision of these courts shall be appealable in the same manner as the decisions of
the Regional Trial Courts. Hence, the MTC acting under its delegated jurisdiction may be
deemed to be acting as a Regional Trial Court. The decision of the MTC in cadastral and
land registration cases therefore, shall be appealable to the Court of Appeals following
the procedure in Rule 41 (BAR 2009)

Special Jurisdiction
1. The MTC has also been conferred by law a special jurisdiction to hear and decide
petitions for a habeas corpus in the absence of all Regional Trial Court Judges in the
province or city.

2. The special jurisdiction includes the authority to hear and decide applications for bail in
criminal cases in the province or city where the absent Regional Trial Judges sit.

SUMMARY PROCEDURE; SMALL CLAIMS CASES – The governing Administrative Matter (A.M.)
No. 08-8-7-SC, March 1, 2022.
The MTC has exclusive jurisdiction over cases falling under the 1991 Rules on Summary
Procedure and the Rules of Procedure for Small Claims Cases (Sec. 2, A.M. No. 08-8-7-SC)
In promulgating A.M. No. 08-8-7-SC, the Supreme Court also took into consideration the
following laws:

a. Republic Act No. 11576, which expanded the jurisdictional amount cognizable by First
Level Courts in civil cases to Two Million Pesos (PHP2,000,000.00) and the jurisdictional
amount for recovery of real property with the assessed value to Four Hundred Thousand
Pesos (PHP400,000.00); and

b. Republic Act No. 10951, which adjusted the value of property and damage on which a
penalty is based, and the fines imposed under the Revised Penal Code, as amended.

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Amendments to the Revised Rule on Summary Procedure

Pursuant to the amendments, the civil cases covered by the Rule on Summary Procedure now
consists of the following:

1. Forcible entry and unlawful detainer cases, regardless of the amount to be recovered.
Attorney’s fees, if awarded, shall not exceed One Hundred Thousand Pesos
(PHP100,000.00);
2. All civil actions, except probate proceedings, admiralty and maritime actions and small
claims where the claim does not exceed Two Million Pesos (PHP2,000,000.00).
3. Complaints for damages where the claims do not exceed Two Million Pesos
(PHP2,000,000.00);
4. Cases for enforcement of barangay amicable settlement agreements and arbitration
award where the money claim exceeds One Million Pesos (PHP1,000,000.00), provided
that no execution has been enforced within six (6) months from the settlement date or
receipt of award or the date when the obligation becomes due and demandable;
5. Cases solely for the revival of judgment of any first level court;
6. The civil aspect of violations of Batas Pambansa Blg. 22 (BP 22), if no criminal action has
been instituted.
7. With respect to criminal cases, violation of BP 22 is explicitly included, and the penalty
threshold of all other criminal cases is increased to imprisonment not exceeding one
year, or a fine not exceeding Fifty Thousand Pesos (PHP50,000.00), or both, and a fine
not exceeding One Hundred Fifty Thousand Pesos (PHP150,000.00) for offenses
involving damage to property through criminal negligence. If the prescribed penalty
consists of imprisonment and/or a fine, the prescribed imprisonment shall be the basis
for determining the applicable procedure. Arraignment and pre-trial shall be scheduled
and conducted in accordance with the Revised Guidelines for Continuous Trial of
Criminal Cases.

In cases of appeal, any judgment, final order, or final resolution of the first level courts on
summary procedure may be appealed to the appropriate Regional Trial Court (RTC) exercising
jurisdiction over the territory under Rule 40 for civil cases and Rule 122 for criminal cases. The
judgment of the RTC on the appeal shall be final, executory, and unappealable.

REAL ACTIONS OTHER THAN FORCIBLE ENTRY AND UNLAWFUL DETAINER (BAR 2010)
(a) The MTC has exclusive original jurisdiction over civil actions involving title to or
possession of real property, or any interest therein, where the assessed value of the
property or interest therein does not exceed:

1. Does not exceed P400, 000. 00.

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 (b) The amount mentioned are exclusive of interest, damages of whatever kind,
attorney’s fees, litigation expenses, and costs.

© In cases of land not declared for taxation purposes, the value of such property shall
be determined by the assessed value of the adjacent lots (Sec. 3, R.A. No. 7691. (BAR 2008).
(d) The jurisdiction of the court under RA 7691, over an action involving title to or
possession of land is now determined by the assessed value of the said property and not the
market value thereof.
(e) The real actions for example, of accion reivindicatoria and accion publiciana used to
be under the jurisdiction of the Regional Trial Court. Jurisdiction over these actions
under R.A. 7691 is now determined by the assessed value of the property and
depending on such value may not be filed in the RTC but in the MTC.

(f) The rule that accion publiciana lies with the RTC regardless of the value of the
property, no longer holds true. As things now stand under RA 7691, a distinction
must be made between those properties the assessed value of which does not
exceed P20, 000. 00, if outside Metro Manila and P50, 000. 00, if within Metro
Manila (in which case an accion publiciana should be filed in the MTC). Where the
assessed value is greater than the amounts mentioned, the RTC has jurisdiction.
(Quinagoran v. Court of Appeals, 531 SCRA 104, BAR 2010). (This should be modified
in view of RA No. 11576)

Meaning of Actions Involving Title to Real Property:

An action “involving title to real property” means that the plaintiff’s cause of action is
based on a claim that he owns such property or that he has the legal rights to have exclusive
control, possession, enjoyment, or disposition of the same. Title is the “legal link” between (1) a
person who owns property and (2) the property itself.
Appeal from Judgments of the MTC
Judgments of the MTC shall be appealable to the Regional Trial Courts.
JURISDICTION OF THE REGIONAL TRIAL COURTS
1. All civil actions in which the subject of the litigation is incapable of pecuniary estimation;

The RTC is a court of general jurisdiction

Unlike the MTC, which is a court of limited jurisdiction because it can only take
cognizance of cases expressly provided by law, the Regional Trial Court is a court of general

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jurisdiction because all cases, the jurisdiction of which is not specifically provided by law to be
within the jurisdiction of the Regional Trial Court.
Action incapable of pecuniary estimation (BAR 1997; 2003; 2009)
A simpler restatement of jurisprudence discloses that to determine if an action is one
incapable of pecuniary estimation, it is necessary to ascertain the nature of the principal
remedy sought. If it is primarily for the recovery of a sum of money, it is capable of pecuniary
estimation. Jurisdiction over the action would then depend upon the amount of the claim.
Where the basic issue is something other than the right to recover a sum of money, or the
money claim is merely incidental to the principal relief, the action is incapable of pecuniary
estimation (Russel v. Vestil, 304 SCRA 739)

Examples:
1. Action for reformation of instrument;
2. Rescission of a contract;
3. Action for specific performance;
4. Complaint for Expropriation.

Appellate jurisdiction

1. The Regional Trial Court exercises appellate jurisdiction over all cases decided by the
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts in
their respective territorial jurisdiction under Rule 40 of the Rules of Court.

2. The decisions of the RTC in the exercise of its appellate jurisdiction shall be appealable
by petition for review to the Court of Appeals per Rule 41 of the Rules of Court.

BAR 2016
What trial court outside Metro Manila has exclusive original jurisdiction over the
following cases? Explain briefly your answers.

(a) An action filed on November 13, 2017 to recover the possession of an apartment unit
being occupied by the defendant by mere tolerance of the plaintiff, after the former ignored
the last demand to vacate that was duly served upon and received by him on July 6, 2016.

(b) A complaint in which the principal relief sought is the enforcement of a seller's
contractual right to repurchase a lot with an assessed value of P15, 000.00.

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SUGGESTED ANSWER:
(a) It would be either the MTC or the RTC depending upon the assessed value of the apartment
unit.
Under B.P. Blg. 129, jurisdiction over real actions is vested in the MTC if the assessed
value of the real property involved does not exceed P20,000 (now (P400, 000. 00) and in the
RTC if such assessed value exceeds P20,000 (now P400, 000. 00). The action to recover
possession can no longer be one for unlawful detainer since it was brought beyond one year
from the last demand to vacate.

(b) Exclusive original jurisdiction is vested in the MTC. The Supreme Court has held that where
the ultimate relief sought by an action is the assertion of title to real property, the action is a
real one and not one incapable of pecuniary estimation. [Brgy. Piapi v. Talip, 7 Sep 2005]. Here
the ultimate relief sought by the complaint is the assertion of title since the seller seeks to
exercise his right to repurchase. Hence the action is a real one and jurisdiction is vested in the
MTC since the assessed value does not exceed P20,000.
Alternative Answer:

(b) Exclusive original jurisdiction is vested in the Regional Trial Court. The Supreme Court has
held that an action to enforce the right of redemption is one which is incapable of pecuniary
estimation and thus within the exclusive original jurisdiction of the RTC pursuant to B.P. Blg.
129. [Heirs of Bautista v. Lindo, 10 March 2014]

BAR 2017
State at least five (5) civil cases that fall under the exclusive original jurisdiction of the
Regional Trial Courts (RTCs).

Suggested answer

The following civil cases fall under the exclusive original jurisdiction of the RTCs:

1. Actions where the demand or the value of the property in controversy exceeds P2,
000,000. 00, or, in Metro Manila, P400,000, exclusive of damages, attorney’s fees,
litigation expenses, interests, and costs.
2. Real actions where the assessed value of the real property involved is P400,000. 00
3. Actions whose subject matter is incapable of pecuniary estimation.
4. Probate cases where the gross value of the estate exceeds P2, 000,000. 00.
5. Actions not falling within the exclusive jurisdiction of any other court, tribunal, body, or
person, exercising judicial or quasi-judicial functions.

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 JURISDICTION OF THE FAMILY COURTS
Under R.A. No. 8369, the Family Courts shall have exclusive original jurisdiction over the
following civil cases:
1. Petitions for guardianship, custody of children and habeas corpus involving children;
2. Petition for adoption for children and the revocation thereof;
3. Complaints for annulment of marriage, declaration of nullity of marriage and those
relating to status and property relations of husband and wife or those living together
under different status and agreements, and petitions for dissolution of conjugal
partnership of gains;
4. Petition for support and/or acknowledgement.
5. Summary judicial proceedings brought under the provisions of Executive Order No. 209
otherwise known as the “Family Code of the Philippines.”
6. Petitions for declaration of status of children as abandoned, dependent or neglected
children, petitions for voluntary or involuntary commitment of children, the suspension,
termination or restoration of parental authority and other cases cognizable under PD
603.
7. Petitions for the constitution of the family home.

JURISDICTION OVER SMALL CLAIMS CASES

Amendments to the Rules on Small Claims

The following are the significant amendments made on the Rules on Small Claims:

1. The threshold amount in small claims cases is now One Million Pesos (PHP1,000,000.00),
regardless of whether the case is filed within or outside Metro Manila. This covers
claims or demands for money owed under contracts of lease, loan and other credit
accommodations, services, and sale of personal property.
2. Recovery of personal property, unless it is made subject of a compromise agreement
between the parties, are excluded from the operation of the new Rules. Nevertheless,
the enforcement of barangay amicable settlement agreements and arbitration awards
where the money claim does not exceed One Million Pesos (PHP1,000,000.00) are
included, provided that no execution has been enforced within six (6) months from the
settlement date or receipt of award or the date when the obligation becomes due and
demandable.
3. Joinder of two or more separate small claims against a defendant is allowed, provided
that the total amount claimed does not exceed One Million Pesos (PHP1,000,000.00).
4. If more than five (5) claims are filed by one party within the calendar year, additional
filing fee of Five Hundred Pesos (PHP500.00) shall be paid for every claim filed after the
fifth (5th) claim and an additional One Hundred Pesos (PHP100.00) or a total of Six
Hundred Pesos (PHP600.00) for every claim filed after the tenth (10th) claim and
another One Hundred Pesos (PHP100.00) or a total of Seven Hundred Pesos

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 (PHP700.00) for every claim filed after the fifteenth (15th) claim, progressively and
cumulatively
5. Service of summons through the plaintiff is allowed if it is returned unserved by the
sheriff or proper court officer, or if it shall be served outside the judicial region of the
court where the case is pending. If the plaintiff misrepresents that the defendant was
served, the case shall be dismissed with prejudice and the plaintiff shall be declared in
indirect contempt and/ or be meted a fine of Five Thousand Pesos (PHP5,000.00).
6. If a case is dismissed without prejudice for failure to serve summons, it may now be re-
filed with a fixed filing fee of Two Thousand Pesos (PHP2,000.00) within one year from
notice of dismissal.
7. Any amount pleaded in counterclaim in excess of One Million Pesos (PHP1,000,000.00)
shall be deemed waived.
8. The period to set the hearing was increased to sixty (60) calendar days in small claims
cases where one of the defendants reside or hold business outside the judicial region of
the court. Otherwise, the hearing shall be set within thirty (30) calendar days.
9. The hearing will still be held in one (1) day, with the judgment to be rendered strictly
within twenty-four (24) hours from its termination.
10. The Small Claims Forms have also been updated and improved for ease of use, with
translations in Filipino.

The conduct of videoconferencing hearings using Microsoft Teams for both summary
proceedings and small claims cases is allowed at any stage of the proceedings. If warranted, the
first level courts may also make use of alternative platforms or instant messaging applications
with video call features for their videoconferencing hearings.

The new Rules shall take effect on 11 April 2022 and shall apply prospectively. Cases currently
pending before the first and second level courts will remain with and be decided by those same
courts, in accordance with the applicable rules at the time of their filing.

BAR 2018

Danica obtained a personal loan of PhP 180,000 from Dinggoy, payable in 18 equal
monthly installments of PhP 10,000 until fully paid. In order to complete her payment at an
earlier date, Danica instead paid PhP 20,000 monthly, and continued doing so until the 15th
month, which payments Dinggoy all accepted. Later on, she realized that she had overpaid
Dinggoy by 100% as she should have already completed payment in nine (9) months. She
demanded the return of the excess payment, but Dinggoy completely ignored her. Thus, Danica
availed of the Rules of Procedure for Small Claims Cases by filing before the Municipal Trial
Court (MTC) a statement of claim, together with the required documents.

Should the MTC proceed with the case under the: (i) Revised Rules Summary Procedure; (ii) the
Rules of Procedure for Small Claims; or (iii) the regular procedure for civil cases?

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BAR 2017

Pedro and Juan are residents of Barangay Ifurug, Municipality of Dupac, Mountain
Province. Pedro owes Juan the amount of P50,000.00. Due to nonpayment, Juan brought his
complaint to the Council of Elders of said barangay which implements the bodong justice
system. Both appeared before the council where they verbally agreed that Pedro will pay in
installments on specific due dates. Pedro reneged on his promise. Juan filed a complaint for
sum of money before the Municipal Trial Court (MTC). Pedro filed a Motion to Dismiss on the
ground that the case did not pass through the barangay conciliation under R.A. No. 7160 and
that the RTC, not the MTC, has jurisdiction. In his opposition, Juan argued that the intervention
of the Council of Elders is substantial compliance with the requirement of R.A. No. 7160 and the
claim of P50,000.00 is clearly within the jurisdiction of the MTC. As MTC judge, rule on the
motion and explain.

Sugested answer

As MTC judge, I would deny the motion to dismiss.

Under the Rules of Procedure for Small Claims Cases, a motion to dismiss on whatever
ground is a prohibited motion.

Here the complaint falls under the coverage of the Rules of Procedure for Small Claims
Cases since the claim for sum of money did not exceed P100,000. Hence the motion to dismiss
filed by Pedro is a prohibited motion and should thus be denied. [Note: Threshold amount
was subsequently increased to P200,000]

To have a complete overview on the principle of jurisdiction, it is also important that

students of law must the extent and limit of the “Authority” (not jurisdiction) of the Barangay
Lupon over barangay conciliation proceedings.
AUTHORITY OVER BARANGAY CONCILIATION PROCEEDINGS
Sec. 408 of the Local Government Code of 1991 (RA 7160). Subject matter for amicable
settlement; Exception therein. – The lupon of each barangay shall have authority to bring
together the parties actually residing in the same city or municipality for amicable settlement of
all disputes except:
(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 one (1) year a fine exceeding Five
Thousand pesos (P5, 000);
(d) Offenses where there is no private offended party;

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 (e) Where the dispute involves real properties located in different cities or municipalities
unless the parties thereto agree to submit their differences to amicable settlement by
an appropriate lupon;
(f) Disputes involving parties who actually reside in barangays of different cities or
municipalities, except where such barangay units adjoin each other and the parties
thereto agree to submit their differences to amicable settlement by an appropriate
lupon;
(g) Such other classes of disputes which the President may determine in the interest of
justice upon the recommendation of the Secretary of Justice.
(h) Labor cases.
(i) Agrarian cases.

July 15, 1993

SUPREME COURT ADMINISTRATIVE CIRCULAR NO. 14-93

SUBJECT : Guidelines on the Katarungang

Pambarangay conciliation procedure
to prevent circumvention of the
Revised Katarungang Pambarangay
Law (Sections 399-422, chapter VII,
Title I, Book III, Republic Act No. 7160,
otherwise known as the Local Government
Code of 1991)
TO : All Regional Trial Courts, Metropolitan
Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts

The Revised Katarungang Pambarangay Law under R.A. 7160, otherwise known as the Local
Government Code of 1991, effective on January 1, 1992, and which repealed P.D. 1508,
introduced substantial changes not only in the authority granted to the Lupon Tagapamayapa
but also in the procedure to be observed in the settlement of disputes within the authority of
the Lupon.
In order that the laudable purpose of the law may not be subverted and its effectiveness
undermined by indiscriminate, improper and/or premature issuance of certifications to file
actions in court by the Lupon or Pangkat Secretaries, attested by the Lupon/Pangkat Chairmen,
respectively, the following guidelines are hereby issued for the information of trial court judges
in cases brought before them coming from the Barangays:
I. All disputes are subject to Barangay conciliation pursuant to the Revised
Katarungang Pambarangay Law (formerly P.D. 1508, repealed and now replaced by

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 Secs. 399-422, Chapter VII, Title I, Book III, and Sec. 515, Title I, Book IV, R.A. 7160,
otherwise known as the Local Government Code of 1991), and prior recourse thereto is
a pre-condition before filing a complaint in court or any government offices, except in
the following disputes:
1. Where one party is the government, or any subdivision or instrumentality thereof;
2. Where one party is a public officer or employee, and the dispute relates to the
performance of his official functions;
3. Where the dispute involves real properties located in different cities and
municipalities, unless the parties thereto agree to submit their difference to amicable
settlement by an appropriate Lupon;
4. Any complaint by or against corporations, partnerships or juridical entities, since
only individuals shall be parties to Barangay conciliation proceedings either as complainants
or respondents (Sec. 1, Rule VI, Katarungang Pambarangay Rules);
5. Disputes involving parties who actually reside in barangays of different cities or
municipalities, except where such barangay units adjoin each other and the parties thereto
agree to submit their differences to amicable settlement by an appropriate Lupon;
6. Offenses for which the law prescribes a maximum penalty of imprisonment
exceeding one (1) year or a fine over five thousand pesos (P5,000.00);
7. Offenses where there is no private offended party;
8. Disputes where urgent legal action is necessary to prevent injustice from being
committed or further continued, specifically the following:
a. Criminal cases where accused is under police custody or detention (See Sec. 412
(b)(1), Revised Katarungang Pambarangay Law);
b. Petitions for habeas corpus by a person illegally deprived of his rightful custody
over another or a person illegally deprived of his liberty or one acting in his behalf;
c. Actions coupled with provisional remedies such as preliminary injunction,
attachment, delivery of personal property and support during the pendency of the
action; and
d. Actions which may be barred by the Statute of Limitations.
9. Any class of disputes which the President may determine in the interest of justice or
upon the recommendation of the Secretary of Justice;
10. Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL)
(Secs. 46 & 47, R.A. 6657);
11. Labor disputes or controversies arising from employer-employee relations (Montoya
vs. Escayo, et al., 171 SCRA 442; Art. 226, Labor Code, as amended, which grants original
and exclusive jurisdiction over conciliation and mediation of disputes, grievances or
problems to certain offices of the Department of Labor and Employment);

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12. Actions to annul judgment upon a compromise, which may be filed directly in court
(See Sanchez vs. Tupaz, 158 SCRA 459).
II. Under the provisions of R.A. 7160 on Katarungang Pambarangay conciliation, as
implemented by the Katarungang Pambarangay Rules and Regulations promulgated by
the Secretary of Justice, the certification for filing a complaint in court or any
government office shall be issued by Barangay authorities only upon compliance with
the following requirements:
1. Issued by the Lupon Secretary and attested by the Lupon Chairman (Punong
Barangay), certifying that a confrontation of the parties has taken place and that a
conciliation or settlement has been reached, but the same has been subsequently
repudiated (Sec. 412, Revised Katarungang Pambarangay Law; Sec. 2[h], Rule III,
Katarungang Pambarangay Rules);
2. Issued by the Pangkat Secretary and attested by the Pangkat Chairman, certifying
that:
a. a confrontation of the parties took place but no conciliation/settlement has been
reached (Sec. 4[f], Rule III, Katarungang Pambarangay Rules; or
b. that no personal confrontation took place before the Pangkat through no fault of
the complainant (Sec. 4[f], Rule III, Katarungang Pambarangay Rules).
3. Issued by the Punong Barangay, as requested by the proper party on the ground of
failure of settlement where the dispute involves members of the same indigenous cultural
community, which shall be settled in accordance with the customs and traditions of that
particular cultural community, or where one or more of the parties to the aforesaid dispute
belong to the minority and the parties mutually agreed to submit their dispute to the
indigenous system of amicable settlement, and there has been no settlement as certified by
the datu or tribal leader or elder to the Punong Barangay of the place of settlement (Secs.
1, 4, & 5, Rule IX, Katarungang Pambarangay Rules); and
4. If mediation or conciliation efforts before the Punong Barangay proved unsuccessful,
there having been no agreement to arbitrate (Sec. 410 [b], Revised Rule Katarungang
Pambarangay Lay; Sec. 1, c, (1), Rule III, Katarungang Pambarangay Rules), or where the
respondent fails to appear at the mediation proceeding before the Punong Barangay (3rd
par. Sec. 8, a, Rule VI, Katarungang Pambarangay Rules), the Punong Barangay shall not
cause the issuance of this stage of a certification to file action, because it is now mandatory
for him to constitute the Pangkat before whom mediation, conciliation, or arbitration
proceedings shall be held.
III. All complaints and/or informations filed or raffled to your sala/branch of the
Regional Trial Court, Metropolitan Trial Court or Municipal Trial Court shall be carefully
read and scrutinized to determine if there has been compliance with prior Barangay
conciliation procedure under the Revised Katarungang Pambarangay Law and its
Implementing Rules and Regulations, as a pre-condition to judicial action, particularly
whether the certification to file action attached to the records of the case comply with
the requirements hereinabove enumerated in par. II;

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 IV. A case filed in court without compliance with prior Barangay conciliation which is a
pre-condition for formal adjudication (Sec. 412[a] of the Revised Katarungang
Pambarangay Law) may be dismissed upon motion of defendant/s, not for lack of
jurisdiction of the court but for failure to state a cause of action or prematurity (Royales
vs. IAC, 127 SCRA 470; Gonzales vs. CA, 151 SCRA 289), or the court may suspend
proceedings upon petition of any party under Sec. 1, Rule 21 of the Rules of Court; and
refer the case motu propio to the appropriate Barangay authority, applying by analogy
Sec. 408[g], 2nd par., of the Revised Katarungang Pambarangay Law which reads as
follows:
"The Court in which non-criminal cases not falling within the authority of the Lupon
under this Code are filed may at any time before trial, motu proprio refer the case to the Lupon
concerned for amicable settlement.
Strict observance of these guidelines is enjoined. This Administrative Circular shall be
effective immediately.
Manila, Philippines. July 15, 1993.

(SGD.) ANDRES R. NARVASA

Chief Justice
Barangay Conciliation

Procedures in barangay conciliation

1. The offended party files his complaint orally or in written form to the Lupon chairman.

2. The Barangay Captain (or Lupon chairman) then summons the respondent within the next
working day.

3. If the respondent fails to appear, he is barred from filing a counterclaim. If it is the

complainant who fails to appear, he is barred from seeking recourse in court.

4. Mediation, conciliation or arbitration of the conflicting interests of the parties takes place
through the Lupon. If the Lupon chairman fails in the mediation efforts within fifteen (15) days
from the first meeting of the parties before him, he sets the date of the constitution of the
Pangkat ng Tagapagkasundo.

5. Within three (3) days from its constitution, the Pangkat will summon the parties for a
confrontation (no lawyers or representatives are allowed, except for cases involving minors or
incompetents who may be assisted by their next of kin).

6. The Pangkat shall arrive at a settlement or resolution within fifteen days from the day it
convenes (the period is extendible to another fifteen days in meritorious cases).

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7. Either party may repudiate the settlement by filing a sworn statement within ten (10) days
from the date of the written amicable settlement.

8. The amicable settlement or arbitration award may be executed by the Lupon within six (6)
months from the date of the settlement. After this period, it may be enforced by a court action.

9. If within fifteen to thirty days the parties fail to amicably settle the matter, the Lupon issues a
certification for filing of the action in court.

10. The complainant files the case in court for civil cases, or with the office of the public
prosecutor (“fiscal”) for criminal cases.
Note: The prescriptive period for the filing of cases in court is interrupted by conciliation
proceedings, up to 60 days from filing of the complaint with the Punong Barangay. Actions
based on written contracts prescribe in ten years. Criminal cases involving BP 22 (bouncing
checks) must be filed within four years from the time the check bounced; after that period, only
a civil case for collection can be filed. The prescriptive period is tolled or interrupted by the
filing of the complaint with the fiscal or public prosecutor's office.

Cases not covered by barangay conciliation (Local Government Code, Section 408)

1. Where one party is the government or any of its subdivision or instrumentality

2. Where one party is a public officer or employee, and the dispute relates to the performance
of his official functions

3. Offenses punishable by imprisonment exceeding one year or by a fine exceeding five

thousand pesos (Php 5,000.)

4. Offenses where there is no private offended party

Disputes not covered by barangay conciliation

1. Those involving parties who actually reside in barangays of different cities or municipalities,
except where such barangays adjoin each other

2. Those involving real property located in different cities or municipalities

Note: In both cases, the parties may agree to submit their differences for amicable settlement
by the appropriate Lupon.

Instances when the parties may go directly to court

1. Where the accused is under police custody or detention

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2. Where a person has otherwise been deprived of personal liberty calling for habeas corpus
proceedings

3. Actions coupled with provisional remedies such as preliminary injunction, temporary

restraining orders, attachment, replevin, etc

4. Where the action may be barred by the Statute of Limitations (the law that bars the filing of
an action after a prescribed period)

5. Labor disputes arising from an employer-employee relationship, or disputes arising from the
Comprehensive Agrarian Reform Law

Case:
A, B, C, D, and E are siblings who are the co-owners of Lot A in Roxas City. Their father allowed X
to occupy the same provided X will vacate the property when needed by his children. X refused
to vacate when asked to do so. Thus A, B, and C (in his own behalf and as attorney-in-fact of D
and E) filed an unlawful detainer case against X. X moved to dismiss on the ground of lack of
barangay conciliation since A, B, C and X all reside in Roxas City. A, B, and C argued that D and E
are not residents of Roxas City. X contended that D and E had already executed an SPA in favor
of C who resides in Roxas City. May the complaint be dismissed for failure to undergo barangay
conciliation?
Answer
No. Here, the Complaint specifically alleged that not all the real parties in interest in the case
actually reside in Roxas City. As such prior referral of the case for barangay conciliation is not a
precondition to its filing in court. This is true regardless of the fact that D and E had already
authorized C to act as their attorney-in-fact in the ejectment proceedings before the MTC. The
residence of the attorney-infact of a real party in interest is irrelevant in so far as the "actual
residence" requirement under the LGC for prior barangay conciliation is concerned. (Abagatnan
v. Clarito, 7 August 2017, Del Castillo, J.).
Case
Petitioner filed with the RTC of Davao City a complaint for nullification of deed of sale of land
with prayer for preliminary injunction against the respondent. The petitioner alleged that he
never signed the questioned deed of sale. The respondent filed a motion to dismiss on the
ground of failure to comply with a condition precedent, that is prior barangay conciliation. The
trial court granted the motion to dismiss. It found that the petitioner's prayer for the issuance
of a writ of preliminary injunction is a mere ploy to avoid the requirement of a barangay
conciliation, as a simple annotation of a notice of lis pendens would achieve the same effect
without having to undergo trial or post a bond. Was the dismissal proper?

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Answer
No. Section 412 of the Local Government Code provides that parties may go directly to court
where the action is coupled with provisional remedies such as preliminary injunction. As good
faith is always presumed, in the absence of proof of improper motive on the part of the
petitioner, the lower court's assumption that petitioner was solely intent on evading the
requirements of the LGC in applying for a preliminary injunction cannot be countenanced. A
dismissal of an action cannot be sustained on account of an unproven assertion of bad faith.
(Racpan v. Barroga-Haigh, 6 June 2018, Velasco, J.).

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 RULE 5
UNIFORM PROCEDURE
IN TRIAL COURTS
Section 1. Uniform procedure. – The procedure in the Municipal Trial Courts shall be the same
as in the Regional Trial Courts, except (a) where a particular provision expressly or impliedly
applies only to either of said courts, or (b) in civil cases governed by the Rule on Summary
Procedure.
Section. 2. Meaning of terms. – The term “Municipal Trial Courts” as used in these Rules shall
include Metropolitan Trial Court, Municipal Trial Courts in Cities, Municipal Trial Courts, and
Municipal Circuit Trial Courts.
Are the rules of procedure in the Municipal Trial Courts and Regional Trial Courts the
same? Is the rule absolute?
Yes. The procedure in the Municipal Trial Courts (first level courts) shall be the same as
in the Regional Trial Courts (second level courts), except: (a) where a particular provision
expressly or impliedly applies only to either of said courts, or (b) in civil cases governed by the
Rules on Summary Procedure and Small Claims Cases.
Can you cite some exceptions referred to in Sec. 1 of Rule 5?
(a) Yes. (1) If an appeal is taken from an order of the lower court dismissing the case
without a trial on the merits, the Regional Trial Court may affirm or reverse it, as the
case may be. In case of affirmance and the ground of dismissal is lack of jurisdiction
over the subject matter, the Regional Trial court, if it has jurisdiction thereover, shall
try the case on the merits as if the case was originally filed with it. In case of
reversal, the case shall be remanded for further proceedings.
(b) If the case was tried on the merits by the lower court without jurisdiction over the
subject matter, the Regional Trial Court on appeal shall not dismiss the case if it has
original jurisdiction thereof, but shall decide the case in accordance with the
preceding section, without prejudice to the admission of amended pleadings and
additional evidence in the interest of justice. (Sec. 8, Rule 40)
Note: Said Section 8, Rule 40 applies only to the Regional Trial Court and it has no
application to the Municipal Trial Courts.
(3) The Rules on appeals apply only the Regional Trial Courts and the Sandiganbayan. It
finds no application to the Municipal Trial Courts, Metropolitan Trial Courts and the
Municipal Circuit Trial Courts, since they have no appellate jurisdiction.

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 What rule governs the disposition of cases for violation of BP 22?
The Rule on Summary Procedure now governs cases in violation of BP 22. (A.M. No. 00-
11-01-SC, which took effect on April 15, 2003).
X was sued by Y before the Metropolitan Trial Court. After a determination that it falls
under the Rules on Summary Procedure, summons was served. X filed an answer on the 20 thday
from service of summons. Can the court render judgment on the basis of the allegations in the
complaint? Why?
Yes, the court may decide the case on the basis of the allegations of the complaint since
the answer was filed out of time. (Santiago and Soriano vs. Hon. Teofilo Guadiz, Jr., 206 SCRA
590).
An ejectment suit was filed before the MTC, Iloilo City. The defendant moved to hold in
abeyance the preliminary conference until the case for specific performance has been
terminated. The MTC granted the motion. Appeal was made to the RTC where a Motion to
Dismiss Appeal was filed on the ground that the order was interlocutory. The RTC denied the
motion, but the CA allowed the appeal from the interlocutory order. Was the CA’s action
proper?
Yes, because there was a procedural void in the summary proceedings before the MTC.
Clearly, there can be no appeal from the order being interlocutory. But neither can a petition
for certiorari be filed because the ejectment suit is governed by the Rules on Summary
Procedure and such petition is a prohibited pleading. Hence, the party was caught in a
procedural void, thus under the extraordinary circumstances, there must be a remedy
consistent with the objective of speedy disposition of cases.
Thus, in a situation wherein a summary proceeding is suspended indefinitely, a petition
for certiorari alleging grave abuse of discretion may be allowed. Due to the extraordinary
circumstances, a petition for certiorari would give spirit and life to the Rules on Summary
Procedure. (Azucena Go, vs. CA, 99 SCAD 850).
The reason why the CA upheld the appeal from an interlocutory order was to fill a
procedural void. In fact, the appeal could be treated as a petition for certiorari under Rule 65,
for appeal ordinarily would entail a long process which negates an expeditious resolution.
In an action for unlawful detainer, the defendant filed an answer with affirmative
defenses. A motion to hear the affirmative defenses was filed but it was denied. Was the denial
proper? Why?
Yes. Under the law, parties are not prohibited from filing an answer with affirmative
defenses in cases falling under the summary procedure. However, the trial courts are enjoined
from conducting a preliminary hearing on such affirmative defenses to prevent unnecessary
delay in disposing the case on its merits. It has been ruled that under the summary procedure

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“xxx adjudication of cases can be done on the basis of affidavits or other evidence. The
proceeding must be as summary as possible in order not to defeat the need to dispose
ejectment cases in as fast a time as possible. The reason is because cases involving possession
of properties usually pose a threat to the peace of society.” (Del Rosario vs. CA, 59 SCAD 113,
241 SCRA 519). Furthermore, it was held that the rules are supposed to be interpreted strictly
to attain the aims of speedy and inexpensive disposition of cases. (Bayview Hotel, Inc., vs. CA,
83 SCAD 463.)
Explain the importance of the Order issued by the court in a case governed by the Rules
on Summary Procedure setting forth the issues of the case after the preliminary conference.
After the preliminary conference, the MTC should issue an order clearly and distinctly
setting forth the issues of the case and other matters taken up in the conference. The order is
an important part of the summary proceeding because it is the receipt to the parties that the
ten (10) days period wherein to submit the affidavits and other evidence. Without such order,
the ten (10) day period to submit affidavits and position papers does not commence to run.
Hence, any judgment rendered by the court without such order is violative of due process as it
denies the parties’ opportunity to submit the affidavits and position papers. (Bayubay vs. CA, 43
SCAD 378).
An ejectment suit was filed by Andres against Barbo. The MTC issued an order
dismissing the action for lack of jurisdiction. A motion for reconsideration was filed by the
plaintiff which was granted. The RTC held otherwise, which was sustained by the CA stating that
it is a prohibited motion. Is the ruling proper? Why?
No, because the motion for reconsideration was not covered by the prohibition under
the Rules on Summary Procedure. The motion for reconsideration that is prohibited is one
which seeks reconsideration of the judgment rendered by the court after trial on the merits of
the case. The decision dismissing the petitioner’s ejectment case for lack of jurisdiction was not
an adjudication on the merits. (Joven vs. CA, G.R. No. 80739, August 20, 1992.)

RULE 6

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 KINDS OF PLEADINGS
Section 1. Pleadings defined. -- Pleadings are the written statements of the respective claims
and defenses of the parties submitted to the court for appropriate judgment.
Necessity and Purpose of Pleadings
Pleading, like complaint or answer, is necessary, in order to confer jurisdiction on a
court, that the subject matter be presented for its consideration in a mode sanctioned by law
and this is done by the filing of a complaint or other pleadings. It goes without saying, therefore
unless and until a complaint or other pleading, like answer, is filed, the judgment of a court of
record is void and subject to collateral attack even though it may be a court which has
jurisdiction over the subject matter referred to in the judgment.
Pleadings are designed to develop and present the precise points in dispute between
the parties. Their office is to inform the court and the parties of the facts in issue. The object of
the pleadings in a more restricted and commonly accepted sense is to notify the opposite party
of the facts which the pleader expects to prove, so that he may not be misled in the preparation
of his case.
Construction of Pleadings
In this jurisdiction, all pleadings shall be liberally construed or interpreted so as to do
substantial justice and fairness, and resort to technicalities is frowned upon by the court.
While it is the rule that pleadings should be liberally construed, it is also a rule that a
party is strictly bound by the allegations, statements or admission made in his pleadings and
cannot be permitted to take a contradictory position.
Section. 2. Pleadings allowed. – The claims of a party are asserted in a complaint,
counterclaim, cross-claim, third (fourth, etc.)-party complaint, or complaint-in-intervention.
The defenses of a party are alleged in the answer to the pleading asserting a claim against
him.
An answer may be responded to by a reply ONLY IF THE DEFENDING PARTY ATTACHES AN
ACTIONABLE DOCUMENT TO THE ANSWERS. (A.M. No. 19-10-20-SC – May 1, 2020)
Note: This writer most respectfully believes that the proper and correct phrase should be “only
if the defending party based his defense or claim on an actionable document which is attached
to the answer.”
The following are the pleadings allowed by the Rules of Court: (a) complaint; (b) answer;
(c) counterclaim; (d) cross-claim; (e) third (fourth, etc.)- party complaint; (f) complaint-in-
intervention; and (g) reply (Sec. 2, Rule 6, Rules of Court), and (h) rejoinder.

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 Under the Revised Rules, there is no need for the plaintiff to file a reply except if the
defending party attaches an actionable document to the answers. Even under the old rules,
jurisprudence held, there was no obligation on the part of the plaintiff to file a reply unless the
defendant, in his answer, presented an actionable document. This is now specifically required
by the new rules.
For example in a case for collection of a sum of money, if the defendant invoked the
defense of payment and attached to his answer several receipts to show payments. In this
particular case, the receipts are deemed considered as actionable document, then the plaintiff
is required to file his reply otherwise, the genuiness and due execution of the receipts are
deemed admitted. In a similar way, in action for recovery of ownership when the defendant, in
his answer, invoked the defense of ownership as evidence by a Deed of Sale, which is an
actionable document, the plaintiff is directed to file his reply, and his failure to do so would be
tantamount to an implied admission of the genuiness and due execution of the deed of sale.
Pleadings allowed under the Rules on Summary Procedure
When a case falls under the Rules on Summary Procedure, the only pleadings allowed
to be filed are: (a) complaint; (b) compulsory counterclaim pleaded in the answer; (c) cross-
claim pleaded in the answer, and (d) answer thereto (Sec 3 [A] II, Rules on Summary
Procedure).
What are the kinds of pleadings under the Rules?
The kinds of pleadings under the Rules are:
1. Initiatory pleadings; and
2. Responsive pleadings.
Distinctions between initiatory pleadings and Responsive pleading:
a. Initiatory pleading is a pleading which commences an action containing plaintiff’s cause
or causes of action, while responsive pleading is a pleading which responds to the
adverse party’s pleading;

b. Initiatory pleading needs to be verified while a responsive pleading need not be verified
as a general rule, except those required to be verified under the rules and law;

c. Initiatory pleading should contain certification of non forum shopping, while a

responsive pleading need not contain a certification of non forum shopping, unless it is
accompanied by counterclaim or cross-claim.

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What are the initiatory pleading under the Rules?
The initiatory pleadings under Rules of Court are as follows:
1. Original complaint;
2. Permissive counterclaim;
3. Cross-claim;
4. Third Party Complaint;
5. Fourth Party complaint;
6. Petition (including special civil action and special proceedings;
7. Statement of Claims under the Rules on small claims.

What are the responsive pleadings under the Rules?

1. Answer to the original complaint;
2. Answer to the permissive counter-claim;
3. Answer to the cross-claim;
4. Answer to the Third Party complaint;
5. Answer to the Fourth Party complaint;
6. Answer to the complaint-in-intervention;
7. Answer to the amended pleading;
8. Answer to the supplemental pleading;
9. Reply to all answers;
10. Compulsory counter-claim;
11. Response to a Small claims cases.
Variance between Caption and Allegations in the Pleadings
1. It a legal truism in procedure law that is not the caption of the pleading but the
allegations therein which determine the nature of the action and the court shall
grant relief warranted by the allegations and proof even if no such relief is prayed.
Thus a complaint captioned as unlawful detainer is actually an action for forcible
entry where the allegations show that the possessor of the land was deprived of the
same by force, intimidation, strategy, threat or stealth, where the deprivation did
not last for more than one (1) year.

2. Likewise, a complaint for unlawful detainer is actually an action for collection of a

sum of money where the allegations of the complaint do not disclose that the
plaintiff demanded upon the defendant to vacate the property but merely
demanded to pay the rentals in arrears.

3. Because the allegations of the pleadings and not the title of the pleading determine
the cause of action, if the petitioner filed before the Supreme Court a petition

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 captioned “Petition for Certiorari” based on Rule 65 but the allegations state that
the issues raised are pure questions of law, the cause of action is not one based on
Rule 65 which raises the issues of jurisdiction, but on Rule 45 which raises pure
questions of law and the petition should be properly denominated as “Petition for
Review on Certiorari.”(De Castro vs. Fernandez, Jr., 515 SCRA 682)

Section. 3. Complaint. – The complaint is the pleading alleging the plaintiff’s OR CLAIMING
PARTY’S cause or causes of action. The names and residences of the plaintiff and defendant
must be stated in the complaint.
Define Complaint
The complaint is the pleading alleging the plaintiff’s 0R CLAIMING PARTY’S cause or
causes of actions.
Filing of the complaint

The filing of the complaint is the act of presenting the said complaint to the clerk of
court. For the purpose of filing, the original must be presented personally to the clerk of court
or by sending the same by registered mail.
Significance of filing of the complaint
The filing of the original complaint in court signifies the commencement of the civil
action. By the filing of the complaint, the court also acquires jurisdiction over the person of the
plaintiff. Submission to the jurisdiction of the court is implied from the very filing of the
complaint where affirmative relief is prayed for by the plaintiff.
PAYMENT OF DOCKET FEES AND ACQUISITION OF JURISDICTION
In a case the Supreme Court ruled that it is not simply the filing of the complaint or
appropriate initiatory pleading but the payment of the prescribed docket fee, that vests a trial
court with jurisdiction over the subject matter or nature of the action (Proton Pilipinas
Corporation v. Banque National de Paris, 460 SCRA 260)

The case of The Heirs of Reinoso, Sr. vs. Court of Appeals, G.R. No. 116121, July 18,
2011, clearly summarizes the rule on the payment of docket fees. Thus:

“The rule is that payment in full of the docket fees within the prescribed period is
mandatory. In Manchester v. Court of Appeals, 149 SCRA 562, it was held that a court acquires
jurisdiction over any case only upon the payment of the prescribed docket fee. The strict
application of this rule was, however, relaxed two (2) years after in the case of Sun Insurance
Office, Ltd. v. Asuncion, wherein the Court decreed that where the initiatory pleading is not
accompanied by the payment of the docket fee, the court may allow payment of the fee within

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a reasonable period of time, but in no case beyond the applicable prescriptive or reglementary
period.
Payment of docket fees for cases on appeal
The Rules of Civil Procedure, as amended, which took effect on July 1, 1997, now
requires that appellate docket and other lawful fees must be paid within the same period for
taking an appeal. This is clear from the opening statement of Sec. 4, Rule 41 of the same rule
that, “Within the period for taking an appeal, the appellant shall pay to the clerk of court which
rendered the judgment or final order appealed from, the full amount of the appellate court
docket and other lawful fees.”

The Supreme Court has consistently held that payment of the docket fee within the
prescribed period is mandatory for the perfection of an appeal. Without such payment, the
appellate court does not acquire jurisdiction over the subject matter of the action and the
decision sought to be appealed from becomes final and executor. Hence, non-payment is a
valid ground for the dismissal of an appeal.

Notwithstanding the mandatory nature of the requirement of payment of appellate

docket fees, the Court also recognizes that its strict application is qualified by the following:
first, failure to pay those fees within the reglementary period allows only discretionary, not
automatic, dismissal; second, such power should be used by the court in conjunction with its
exercise of sound discretion in accordance with the tenets of justice and fair play, as well as
with a great deal of circumspection in consideration of all attendant circumstances.”
Section. 4. ANSWER. – An answer is a pleading in which a defending party seeks forth his
defenses.
Nature of an Answer
The answer is a pleading in which a defending party sets forth his defense (Sec. 4, Rule
6, Rules of Court). This pleading may be an answer to the complaint, an answer to a
counterclaim or an answer to a cross-claim. There is no answer to a reply but there could be an
answer to a third-party complaint or complaint-in-intervention. The current Rules allow the
filing of an answer to the Reply and that is by way of a Rejoinder.
Defenses in the answer:
An answer contains the defenses of the answering party. These defenses may either be
negative or affirmative.
Section. 5. Defenses. – Defenses may either be negative or affirmative.
(a) A negative defense is the specific denial of the material fact or facts alleged in the
pleading of the claimant essential to his OR HER cause of causes of action.

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 (b) An affirmative defense is an allegation of a new matter which, while hypothetically
admitting the material allegations in the pleading of the claimant, would nevertheless
prevent or bar recovery by him OR HER. The affirmative defenses include fraud,
statute of limitations, release, payment, illegality, statute of frauds, estoppel, former
recovery, discharge in bankruptcy, and any other matter by way of confession and
avoidance.

AFFIRMATIVE DEFENSES MAY ALSO INCLUDE GROUNDS FOR THE DISMISSAL OF A

COMPLAINT, SPECIFICALLY, THAT THE COURT HAS NO JURISDICTION OVER THE SUBJECT
MATTER, THAT THERE IS ANOTHER ACTION PENDING BETWEEN THE SAME PARTIES FOR
THE SAME CAUSE, OR THAT THE ACTION IS BARRED BY A PRIOR JUDGMENT.
Defenses in the Answer
An answer contains the defenses of the answering party. These defenses may either be
NEGATIVE or AFFIRMATIVE (Sec. 5, Rule 6, Rules of Court).

A defense is NEGATIVE when the material averments alleged in the pleading of the
claimants are specifically denied.

Under the Rules a negative defense is the specific denial of the material fact or facts
alleged in the pleading of the claimant essential to his cause of action or defense. (Sec. 5, Rule
6). A negative defense is stated in the form of a specific denial and the kinds of specific denial
are described in Sec. 10, Rule 18 of the Rules of Court. If the denial is not one of those
described under said provision, the denial is deemed to be general. A general denial is
considered an admission.
Under Sec. 11 of Rule 18, material averments in the complaint other than those as to
the amount of unliquidated damages, not specifically denied shall be deemed admitted. If the
allegations are deemed admitted, there is no more triable issue between the parties and if the
admissions appear in the answer of the defendant, the plaintiff may file a motion for Judgment
on the Pleadings under Rule 34.
Purpose of a specific denial
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.
KINDS OF SPECIFIC DENIAL (BAR 2011)
There are three (3) types of specific denials mentioned in Sec. 10 of Rule 8 of the Rules
of Court, namely:

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 (a) The defendant specifies each material allegation of fact the truth of which he does not
admit and, whenever practicable, sets forth the substance of the matters upon which he
relies to support his denial. This kind of denial is an ABSOLUTE DENIAL;

(b) Another type of a specific denial is where the defendant does not make a total denial of
the material allegations in a specific paragraph. In this type of denial, he denies only a
part of the averment. If he chooses this type of denial, he specifies that part the truth of
which he admits and denies only the remainder. This denial is known as a PARTIAL
DENIAL;

(c) One type of a specific denial is where the defendant alleges that he “is without
knowledge or information sufficient to form a belief as to the truth of a material
averment made in the complaint.” This type of specific denial called a DENIAL BY
DISAVOWAL OF KNOWLEDGE.

In an action to foreclose a mortgage, a denial that the defendant is without any

knowledge of his having signed a deed of mortgage when the facts and the actionable
document forming the basis of the claim incontrovertibly show that he so executed the
document denied, is a denial in bad faith. This denial amounts to an admission. (BAR 2004; BAR
2005).
NEGATIVE PREGNANT
A negative pregnant does not qualify as a specific denial. It is conceded to be actually an
admission.
In a pleading, it is a negative implying also an affirmative and which although is stated in
a negative form really admits the allegations to which it relates.
Example:
A complaint alleges: “Plaintiff extended a loan to Defendant in the amount of Php500,
000. 00 on July 6, 2016 in Iloilo City.” Defendant in his answer alleges: “Defendant specifically
denies that Plaintiff extended a loan to Defendant in the amount of Php500. 000. 00 on July 6,
2016 in Iloilo City.” 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? The effect of this kind of denial is an admission.
WHEN A SPECIFIC DENIAL MUST BE COUPLED WITH AN OATH (BAR 2010)
As a rule, a negative defense is sufficient if made in the form of a specific denial of the
material allegations alleged in the pleading of the claimant. There are however, instances when
a mere specific denial is not sufficient for a negative defense. In certain cases, the specific

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denial must be made under oath and in these instances a mere specific denial is not enough to
produce the kind of denial under the Rules. These are:
1. A denial of an actionable document (Sec. 8, Rule 8); and
2. A denial of allegations of usury in a complaint to recover usurious interest (Sec. 11, Rule
8)

Whenever an action or defense is based or founded upon a written instrument or

document, said instrument or document is deemed an ACTIONABLE DOCUMENT.
If the adverse party desires to deny the genuineness and the due execution of the
actionable document, he must do two things: (a) to specifically deny the genuineness and due
execution of the document, and to set forth what he claims to be the facts, and (b) to make the
denial under oath or the answer must be verified.
Matters not deemed admitted by the failure to make a specific denial:
The provisions of Sec. 11, Rule 8 establish the rule that material allegations in the
complaint not specifically denied are deemed admitted. The following are nevertheless, not
deemed admitted by the failure to make a specific denial in a party’s responsive pleading.
a. The amount of unliquidated damages;
b. Conclusions in a pleading which do not have to be denied at all because only ultimate
fact need be alleged in a pleading;
c. Non-material averments or allegations are not deemed admitted because only material
allegations have to be denied.

AFFIRMATIVE DEFENSES
A defense is affirmative when it alleges new matters which, while hypothetically
admitting the allegations of the pleading of the claimant, would nevertheless, prevent or bar
recovery by the claiming party. (Sec. 5, Rule 6) For instance, in a case for collection of sum of
money, the defendant admits the material allegations of the complaint but invokes the defense
of payment or statute of frauds, and when properly pleaded may bar recovery.

An affirmative defense is one which is not a denial of an essential ingredient in the

plaintiff’s cause of action, but one which, if established, will be a good defense, i.e., an
“avoidance” of the claim.

An affirmative defense includes FRAUD, STATUTE OF LIMITATIONS, RELEASE, PAYMENT,

ILLEGALITY, STATUTE OF FRAUDS, ESTOPPEL, FORMER RECOVERY, DISCHARGE IN BANKRUPTCY,
and other matter by way of confession and avoidance.

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Sample of Affirmative Defense:

1. The Complaint fails to state a claim upon which relief can be granted;
2. The plaintiff is barred from the relief sought in the Complaint by the doctrine of
waiver or estoppels;
3. The plaintiff is barred from the relief sought in the Complaint as a result of its
unclean hands.

In the resolution of these affirmative defences, Section 5 (b) of Rule 6, mandates “the
court may conduct a summary hearing within fifteen (15) calendar days from the filing of the
answer. Such affirmative defences shall be resolved by the court within thirty (30) calendar
days from the termination of the summary hearing.”
The new rules provide for additional grounds by way of affirmative defense:
“AFFIRMATIVE DEFENSES MAY ALSO INCLUDE GROUNDS FOR THE DISMISSAL OF A COMPLAINT,
SPECIFICALLY,
1. THAT THE COURT HAS NO JURISDICTION OVER THE SUBJECT MATTER,
2. THAT THERE IS ANOTHER ACTION PENDING BETWEEN THE SAME PARTIES FOR THE
SAME CAUSE, (pendente lite) OR
3. THAT THE ACTION IS BARRED BY A PRIOR JUDGMENT. (Res judicata)”
Take note that the above-mentioned affirmative defences shall be resolve motu proprio
by the court within thirty (30) calendar days from the filing of the answer. (Section 12, par. d,
Rule 8, Rules of Court)

An answer may allege affirmative defenses which may strike down the plaintiff’s cause
of action. When the answer asserts affirmative defenses, there is proper joinder of issues which
must be ventilated in a full blown trial on the merits and cannot be resolved by mere judgment
on the pleadings. It is worth remembering that under Rule 8, Section 12 (b) “failure to raise the
affirmative defences at the earliest opportunity shall constitute a waiver thereof.”

COUNTERCLAIM
Section. 6. Counterclaim.-- A counterclaim is any claim, which a defending party may have
against an opposing party.
Nature of a counterclaim (BAR 1999; BAR 2010)
It partakes of a complaint by the defendant against the plaintiff. Simply put, with
respect to his counterclaim, the defendant becomes the plaintiff and the plaintiff is
characterized as the defendant.

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Reasons for allowing a counterclaim.
The rationale behind the allowance of counterclaim in a civil case are designed to enable
the disposition of a whole controversy of the conflicting claims of the parties at one time and in
one action, provided all parties be brought before the court and the matter decided without
prejudicing the rights of any party. The purpose, therefore, of a counterclaim is to prevent
multiplicity of suits by allowing the resolution in one action of the entire controversy between
the parties, thus avoiding inconvenience, expense, waste of the court’s time and injustice. It
also enables the defendant to make his defense more complete and effectual than it would be
if he stood on one answer alone.
A counterclaim is in itself a distinct and independent cause of action and when filed,
there are two simultaneous actions between the same parties.
A counterclaim is a pleading.
When the defendant files a counterclaim against the plaintiff, the defendant becomes
the plaintiff in the counterclaim while the original plaintiff becomes the defendant. The filing of
a counterclaim give rise to two complaints, namely, the one filed by the plaintiff by way of an
original complaint and the one filed by the defendant by way of a counterclaim.
A “Motion to Dismiss with a Counterclaim” is not an accepted way of pleading a
counterclaim. It is sanctioned neither by the Rules nor by common usage (BAR 1992; BAR 2008)
Section. 7. Compulsory counterclaim. – A compulsory counterclaim is one which, being
cognizable by the regular courts of justice, arises out of or in connected with the transaction
or occurrence constituting the subject matter of the opposing party’s claim and does not
require for its adjudication the presence of third parties of whom the court cannot acquire
jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the
amount and the nature thereof, except that in an original action before the Regional Trial
Court, the counterclaim may be considered compulsory regardless of the amount. A
COMPULSORY COUNTERCLAIM NOT RAISED IN THE SAME ACTION IS BARRED, UNLESS
OTHERWISE ALLOWED BY THESE RULES.
Kinds of Counterclaim
1. Counterclaim may be either:

(a) Compulsory, or

(b) Permissive

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 2. A compulsory counterclaim has the following elements:

(a) It arises out of, or is necessarily connected with the transaction or occurrence which
is the subject matter of the opposing party’s claim;
(b) It does not require for its adjudication the presence of third parties of whom the
court cannot acquire jurisdiction; and
(c) The court has jurisdiction to entertain the claim both as to the amount and the
nature thereof.

It is explicit under the new rules that compulsory counterclaim not raised in the answer
is barred forever, unless otherwise allowed by these rules. The rules present two (2) situations
wherein compulsory counterclaim not raised in the answer is not barred and may still be
allowed by the court pursuant to Rule 11, Sections 9 and 10 of the Revised Rules of Court. Thus:

“Section 9.Counterclaim or cross-claim arising after answer. — A counterclaim or a

cross-claim which either matured or was acquired by a party after serving his pleading may,
with the permission of the court, be presented as a counterclaim or a cross-claim by
supplemental pleading before judgment.

Section 10.Omitted counterclaim or cross-claim. — When a pleader fails to set up a

counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect, or when
justice requires, he may, by leave of court, set up the counterclaim or cross-claim by
amendment before judgment.”

Case
In a suit by lessor against lessee for unpaid rentals, is the counterclaim by lessee for damages
against the lessor for the latter’s taking over the leased premises and harvesting crops
permissive?
Answer
Yes. The complaint and the counterclaim are not repugnant or inconsistent with each other.
The fact that the lessor is entitled to unpaid rentals would not authorize him to unilaterally take
over the premises and harvest the crops planted by the lessee. (Sy-Vargas v Estate of Ogsos, 5
Oct 2016, Perlas-Bernabe, J.)
Case
Calibre Traders entered into a distributorship agreement with Bayer Phils. for the distribution of
Bayer chemical products in Pangasinan and Tarlac. Under the agreement Calibre was entitled to
rebates and discounts. The parties later on had a disagreement as to the amount of the rebates
and discounts. Alleging abuse of right, Calibre Traders filed an action for damages with the
Regional Trial Court against Bayer for breaching its obligations under the distributorship

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agreement by refusing to reconcile accounts and by appointing other distributors in Pangasinan
and Tarlac. Bayer filed an answer with counterclaim for unpaid accounts under the
distributorship agreement. Calibre filed a motion to dismiss the counterclaim on the ground
that it was permissive and Bayer had not paid the docket fees thereon. Bayer opposed the
motion arguing that its counterclaim was compulsory. The trial court denied the motion to
dismiss, stating that the counterclaim was compulsory. After trial, the court rendered judgment
in favor of Calibre. In its judgment, the trial court also dismissed Bayer’s counterclaim stating
that since it was permissive, the trial court did not acquire jurisdiction over the same for
nonpayment of the docket fees thereon.
a) Was Bayer’s counterclaim permissive or compulsory?
b) Did the trial court rule properly in dismissing Bayer’s counterclaim?
Answer
a) Bayer’s counterclaim was permissive. Although the rights and obligations of the parties are
anchored on the same contract, the causes of action they filed against each other are distinct
and do not involve the same factual issues. There is no logical relationship between the two
actions in a way that the recovery or dismissal of plaintiff’s suit will establish a foundation for
the other’s claim. The counterclaim for collection of money is not intertwined with or
contingent on Calibre’s own claim for damages, which was based on the principle of abuse of
rights. Both actions involve the presentation of different pieces of evidence. Calibre’s suit had
to present evidence of malicious intent, while Bayer’s objective was to prove nonpayment of
purchases. (Calibre Traders, Inc. v. Bayer Phils. Inc., G.R. No. 161431, 13 October 2010, Del
Castillo, J.). The grant of Bayer’s counterclaim for unpaid accounts would not necessarily defeat
or negate Calibre’s suit for damages based on abuse of rights.
b) No, the trial court did not act properly in dismissing the counterclaim of Bayer. Bayer here
was in good faith in not paying the docket fee since it relied upon the trial court’s earlier order
denying the motion to strike out the counterclaim and stating that the counterclaim was
compulsory. What the trial court should have done was to require Bayer to pay the docket fee
within a reasonable time but not beyond the prescriptive period. Furthermore, Bayer should
not suffer for the mistake of the trial court.
How to Plead compulsory counter-claim in the answer
Sample Form
COUNTERCLAIM
“Defendant reiterates and incorporates by reference each and every allegation made in
each every preceding paragraph and subparagraph of this Answer.”

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 1. Plaintiff’s unfounded complaint constitutes harassment, malice and evident bad
faith and for which the defendant suffered moral damages in the amount of P1, 000,
000. 00;

2. Plaintiff’s baseless and unfounded complaint has compelled defendant to secure the
legal services of a counsel and for which he paid attroney’s fees in the sum of P50,
000. 00.
Example:
Globe Furniture engaged the service of JJ Trucker to deliver furniture to the customer of
Globe Furniture. For the non payment of the trucking service, JJ Trucker sued Globe Furniture
for sum of money and damages. In Globe Furniture’s answer, they said that the furniture was
destroyed or damaged. Though that is a good defense, if Globe Furniture wants the court to
order JJ Trucker to pay for the damaged furniture, Globe Furniture would have to file a
counterclaim.
Compulsory counterclaim must be within the jurisdiction of the court
A compulsory counterclaim requires that the same be within the jurisdiction of the court
both as to its amount and nature. Hence, if a counterclaim is interposed in the Metropolitan
Trial Court, the compulsory counterclaim cannot exceed P400, 000. 00 (now Php2, 000, 000. 00)
even if the counterclaim arises from the same transaction as the plaintiff’s claim.
If the counterclaim exceeds the jurisdictional amounts of said courts, the counterclaim
should be considered permissive, not compulsory. If the claims exceeds the jurisdictional
amount of the said inferior courts, the counterclaim may however, still be pleaded, not to
obtain affirmative relief but merely to weaken the plaintiff’s claim. If a counterclaim in excess of
the amount cognizable by the inferior court is set up, the defendant cannot obtain a positive
relief. If it is set up, this is only for the defendant to prevent plaintiff from recovering (Maceda
vs. CA, 176 SCRA 440).
Thus, a counterclaim for Php2, 100, 000. 00 in the Metropolitan Trial Court of Manila
cannot be considered a compulsory counterclaim since the amount exceeds the court’s
jurisdiction even if assuming, it is intimately connected with the subject matter of the
complaint.
The rule is different if the original action is one filed before the Regional Trial court.
Here, the counterclaim may be considered compulsory regardless of the amount (Sec. 7, Rule
6). So if a counterclaim for Php100, 000. 00 is interposed by the defendant in the Regional Trial
Court, the claim is still deemed a compulsory counterclaim where the original action is filed
before it even if the amount is below its jurisdiction. This is because a Regional Trial Court is a
court of general jurisdiction.

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 The most common compulsory counterclaim filed by the defendant in the absence of
any other counterclaim is to claim in the same suit his expenses in the suit for being forced to
litigate in the face of an allegedly unfounded and baseless complaint, as well as attorneys’ fees.
Added to these expenses are the alleged damages he sustained as a consequence of the
unfounded complaint, like moral and actual damages.

BAR 2016

Abraham filed a complaint for damages in the amount of P750,000.00 against Salvador
in the RTC in Quezon City for the latter's alleged breach of their contract of services. Salvador
promptly filed his answer, and included a counterclaim for P250,000.00 arising from the
allegedly baseless and malicious claims of Abraham that compelled him to litigate and to
engage the services of counsel, and thus caused him to suffer mental anguish.

Noting that the amount of the counterclaim was below the exclusive original jurisdiction
of the RTC, Abraham filed a motion to dismiss vis-a-vis the counterclaim on that ground.
Should the counterclaim of Salvador be dismissed? Explain your answer.
Suggested answer
No, the counterclaim of Salvador should not be dismissed on the ground of lack of
jurisdiction.
In an original action before the RTC, the RTC has jurisdiction over a compulsory
counterclaim regardless of its amount.
Here Salvador’s counterclaim for damages arising from the alleged malicious and
baseless claims of Abraham is a compulsory counterclaim as it arises from Abraham’s
complaint. Hence the RTC has jurisdiction over Salvador’s counterclaim even if it did not exceed
the jurisdictional amount of P400,000.
BAR 2019

Mr. H filed a complaint against Mr. I to recover the amount of ₱500,000.00 based on
their contract of services. In his answer, Mr. I admitted that he has yet to pay Mr. H for his
services based on their contract but nevertheless, interposed a counterclaim alleging that Mr. H
still owed him rental arrearages for the lease of his apartment also amounting to ₱500,000.00.

It has come to Mr. H's attention that Mr. I did not pay any filing fees when he filed his
answer. As such, Mr. H moved to dismiss the counterclaim. In response to Mr. H's motion, Mr. I
averred that the non-payment of filing fees was purely based on inadvertence and that the said
filing fees had already been paid as of date, as evinced by the official receipt issued by the clerk
of court therefor.

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 (a) What is the nature of Mr. l's counterclaim? Is the payment of filing fees required for
such counterclaim to prosper? Explain.

(b) Should Mr. I's counterclaim be dismissed? Explain.

Permissive Counterclaim (BAR 2011)

A permissive counterclaim does not arise out of the same transaction or is not
connected with the plaintiff’s cause of action. It does not arise out of, nor is necessarily
connected with the subject matter of the opposing party’s claim. It is called permissive because
it can be the subject of a separate action. If it is not set up, it is not barred.
Generally, a counterclaim is permissive if any of the elements of a compulsory
counterclaim discussed previously is absent. But the most commonly treated feature of a
permissive counterclaim is its absence of a logical connection with the subject matter of the
complaint, i.e., it does not arise out of, or is not connected with the plaintiff’s cause of action.
Examples
1. If the Plaintiff files an action against the Defendant for collection of sum of money with
damages, and in his Answer the Defendant interposes a claim for damages arising from
Specific Performance for the failure of the Plaintiff to comply with the terms and
conditions of a Contract of Sale, the counterclaim of the Defendant is permissive
because the same has no logical connection or relation with the claim of the Plaintiff.
Under the Rules, this permissive counterclaim raised by the Defendant may be the
subject of action at the option of the Defendant.

2. Plaintiff broke his leg when his motorcycle was hit by the car of the Defendant, alleging
that the Defendant was driving his car in a reckless manner. Plaintiff filed a case for
Damages against the Defendant. In his Answer, the defendant by way of counterclaim
asserted that the Plaintiff owed money him money for the non completion of a painting
job. Since the counterclaim raised by the Defendant has no logical relation to the
Plaintiff’s complaint, it is considered as a Permissive Counterclaim.
Distinction between a Compulsory Counterclaim and a Permissive Counterclaim
The following are the most significant distinctions between the two counterclaims:
1. A compulsory counterclaim which a party has at the time the answer is filed shall be
contained in the answer because a compulsory counterclaim not set up shall be
barred.
A permissive counterclaim is not subject to the above rule. Hence, it may be set up
as an independent action and will not be barred if not contained in the answer to
the complaint.

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 2. A compulsory counterclaim is not an initiatory pleading. A permissive counterclaim is
considered an initiatory pleading.
3. A permissive counterclaim should be accompanied by a certification against forum
shopping and whenever required by law, also a certificate to file action issued by the
Lupon Tagapamayapa. A compulsory counterclaim which cannot be independently
set up, does not require the certificates mentioned because it is not an initiatory in
character. The certificates mentioned are required to be attached in a permissive
counterclaim because it is an initiatory pleading.
4. A permissive counterclaim must be answered by the party against whom it is
interposed otherwise, he may be declared in default as to the counterclaim. This is
because it was ruled that “any pleading asserting a claim must be answered and the
failure to do so by the party against whom the claim is asserted rendered him to be
declared in default in respect of such claim.”
5. The docket and other lawful fees should be paid for a permissive counterclaim. Such
fees are not paid for a compulsory counterclaim.

NOTE: Effective August 16, 2004, under Sec. 7 of Rule 141, as amended by A.M. No. 04-2-04-SC,
docket fees are now required to be paid in compulsory counterclaim or cross-claim. (Note: This
is no longer true)
BAR 1996
Plaintiff filed a complaint against defendant for recovery of possession of real property
with the Regional Trial Court of Manila. Defendant filed an answer with affirmative defenses
and interposed a counterclaim for damages and attorney’s fees arising, from the filing of the
complaint. When the plaintiff failed to file an answer on the counterclaim, defendant moved to
declare him in default. Notwithstanding the notice of the motion, plaintiff did not file an
opposition.
As judge, how would you resolve the motion to declare plaintiff in default?
Suggested answer
I would resolve the motion in favor of the plaintiff. The counterclaim raised by the
defendant is a compulsory counterclaim because the issues involved therein are inseparably
joined to those of the complaint. A compulsory counterclaim need not be answered.
How to set up an omitted counterclaim
A counterclaim, which either matured or was acquired by a party after serving his
pleading, may, with leave of court (with the permission of the court), be presented as a
counterclaim by supplemental pleading before judgment (Sec. 9, Rule 11, Rules of Court).
A counterclaim not initially set up because of the pleader’s oversight, inadvertence,
excusable neglect or when justice requires, may be set up, by leave of court by amendment

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before judgment (Sec. 10, Rule 11). If not set up in the action, the compulsory counterclaim
shall be barred. A permissive counterclaim however will not be barred. The bar of course refers
to a compulsory counterclaim that a defending party has at the time he files the answer, i.e., a
counterclaim already existing at the time the answer is filed.
Period to answer a counterclaim
If a counterclaim is to be answered, the same must be made within ten (10) days from
service (Sec. 4, Rule 11). This rule has more relevance to a permissive counterclaim which has to
be answered.
Under the present rules, Section 4, Rule 11: “A counter-claim or cross-claim must be
answered within twenty (20) calendar days from service,” and the pleading to be filed by the
plaintiff shall be called “Answer to the Counterclaim.”
It is suggested that since a counterclaim is not a separate pleading, but forming part of
the answer, it may be answered either by filing a separate pleading denominated as “Answer to
Counterclaim,” only and also by way of a Reply which incorporates therein the plainitff’s
answer to the counterclaim. On the other hand, with respect to cross claim incorporated in the
answer, against a co-defendant, it may be answered only by filing a separate pleading
denominated as “Answer to the Cross-Claim.”
Effect of the dismissal of a complaint on the counterclaim already set up (BAR 2010)
There are three significant situations involving the dismissal of a complaint and the
effect of such dismissal on the counterclaim already pleaded by the defending party.
The First is the situation contemplated under the last paragraph of Sec. 6 of Rule 16.
Here, the defendant does not file a motion to dismiss. Instead, he files an answer and utilizes
certain grounds for a motion to dismiss as affirmative defenses. Included in the answer is a
counterclaim. He then asks for a preliminary hearing on the affirmative defenses set up, a
request granted by the court. During the hearing on the affirmative defenses, the court decides
to dismiss the complaint. If the complaint is dismissed, the counterclaim, compulsory or
permissive, is not dismissed. (Note: The current rules do not anymore allow “motion for the
preliminary hearing on affirmative defense rather the court may either conduct a summary
hearing or motu proprio to resolve the same.) (Section 12, Rule 8)

The Second situation is covered by Sec. 2 of Rule 17. Under this provision, the plaintiff
himself files a motion to dismiss his complaint after the defendant has pleaded his answer with
a counterclaim. The motion is granted by the court. The rule in this regard is unequivocal:

“[The dismissal shall be limited to the complaint. The dismissal shall be without
prejudice to the right of the defendant to prosecute his counterclaim in a separate action

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unless within fifteen (15) days from notice of the motion he manifests his preference to have
his counterclaim resolved in the same action xxx.”
The Third situation is covered by Sec. 3 of Rule 17. Here, the complaint is dismissed
through the plaintiff’s fault and at a time when counterclaim has already been set up. Like the
first two situations, the dismissal is “without prejudice to the rights of the defendant to
prosecute his counterclaim in the same or separate action.”

Effect of Dismissal of the Counterclaim.

The dismissal of a counterclaim is a final order because it would require nothing else to
be done by the court with respect to that specific subject except only to await the possible filing
of motion for reconsideration or the taking of an appeal therefrom.(Santo Tomas University
Hospital vs. Surla, 294 SCRA 382.) It is opined that the order of the court dismissing a
counterclaim may be the subject of a motion for reconsideration but not of appeal. To appeal
the court’s order dismissing the counterclaim would only result to the delay in the disposal or
resolution of the principal case. The logical remedy is for the defendant to proceed with the
trial of the case and in the event of unfavourable decision, appeal from the judgment and raise
as one of the assignment of errors the dismissal of his counterclaim.
BAR 1994

Aya sues Lea for recovery of a tract of land. Lea seeks in turn to be reimbursed the value
of improvements she has introduced in the same land and the payment of damages she has
sustained. Should Lea file a separate action against Aya for that purpose?
Suggested answer
The claim of Lea cannot be the subject of a separate action but must be interposed in
the very the same action. This is because Lea’s claim is a compulsory counterclaim. Under
existing procedural rules, a compulsory counterclaim if not set up is barred. A counterclaim is
compulsory if it is connected with the transaction or occurrence subject matter of the other
party’s claim, if it does not require for its adjudication the presence of third parties of whom
the court cannot acquire jurisdiction and it must be within the jurisdiction of the court.
Be it noted however, that Rule 141 on Legal Fees was revised effective August 16, 2004,
by A.M. No. 04-2-04-SC. The revision included the payment of docket fees not only for
permissive counterclaims but also for compulsory counterclaims and cross- claims, third party
complaints, and complaints-in-intervention. (Note: No longer true)

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MAY THE REGIONAL TRIAL COURT ENTERTAIN A COUNTERCLAIM BELOW ITS JURISDICTION?

ANSWER. Yes, provided it arises out of the same transaction or occurrence constituting the
subject matter of the opposing party’s claim. (Maceda vs. CA, 176 SCRA 440). And in addition,
the Regional Trial Court is a court of general jurisdiction.

WHAT IS THE EFFECT WHERE A COUNTERCLAIM IS FILED BEYOND THE JURISDICTION OF THE
MTC?

ANSWER
If a counterclaim is beyond the jurisdiction of the MTC, it need not be set up but if is set
up, it is done so only by way of defense (De Chua vs. IAC, 47 SCAD 90). There is a waiver of the
excess amount where the counterclaim is filed in the MTC (Agustin vs. Bocalan, 135 SCRA 340).

The rule of jurisdiction in an independent action applies to counterclaims. In other

words, a counterclaim before the MTC must be within the jurisdiction of said court, both as to
the amount and nature thereof. In an original action before the RTC, the counterclaim may be
considered compulsory regardless of the amount. (Sec. 7, Rule 6, 1997 Rules on Civil
Procedure.)

MAY A PARTY FILE A MOTION TO DISMISS AND SET UP A COMPULSORY COUNTERCLAIM AT THE
SAME TIME? WHY?

ANSWER
No. The filing of a motion to dismiss and the setting up of a compulsory counterclaim
are incompatible remedies. In the event that a defending party has a ground for dismissal and a
compulsory counterclaim at the same time, he must choose only one remedy. If he decides to
file a motion to dismiss, he loses his compulsory counterclaim. But if he opts to set up his
compulsory counterclaim, he may still plead his ground for dismissal as an affirmative defense
in his answer. (Financial Building Corporation vs. Forbes Park Association, Inc., G.R. No. 133119,
August 17, 2000.)
Does the dismissal of the complaint for non-appearance of the plaintiff at pre-trial
conference upon motion of the defendant carry with it the dismissal of compulsory
counterclaim?

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 In the CAB, the plaintiff did not appear at pre-trial, the defendant moved for the
dismissal of the complaint. The same was granted. Now, the defendant moved for an
adjudication of his compulsory counterclaim.
Ruling: YES. Compulsory counter-claim is also dismissed. There are several requirements of a
compulsory counterclaim:
(a) It arises out of, or is necessarily connected with the transaction or occurrence which
is the subject matter of the opposing party’s claim;
(b) It does not require for its adjudication the presence of third parties of whom the
court cannot acquire jurisdiction; and
(c) The court has jurisdiction to entertain the claim both as to the amount and the
nature thereof.

In CAB, the compulsory counter-claim cannot remain pending for independent

adjudication. The compulsory counterclaim is auxiliary to the proceeding in the original suit and
merely derives its jurisdictional support from the original case. If the court has no or loses
jurisdiction over the main case, it has no jurisdiction over the compulsory counter-claim. In
CAB, the court has lost jurisdiction over the main case by virtue of its dismissal upon motion by
the defendant (BA Finance vs. Co, 224 SCRA 163 ) (1993) (See: Rule 17)
Section. 8. CROSS – CLAIM. – A cross-claim is any claim by one party against a co-party arising
out of the transaction or occurrence that is the subject matter either of the original action or
of a counterclaim therein. Such cross-claim may COVER ALL OR PART OF THE ORIGINAL
CLAIM.
Nature of a cross-claim
A cross-claim is any claim by one party against a co-party arising out of the transaction
or occurrence that is the subject matter either of the original action or of a counterclaim
therein.
Recall that when a party files a cross-claim, the cross-claimant and the cross-defendant
are added as a party to the proceeding. For example, a defendant may assert in his Answer a
cross-claim against a co-defendant alleging that if the plaintiff prevails at the trial, the co-
defendant is liable to the defendant for the plaintiff’s damages.
Simply put, a crossclaim is a claim by a plaintiff against another plaintiff or a defendant
against another defendant. For example, if Vicente and Joenar sue Jose, but Vicente also sues
Joenar in the same case, then Vicente’s claim against Joenar would be a crossclaim.

While a counterclaim is asserted by a defending party against a claimant, a cross-claim is

asserted by a defending party against a co-defending party so that the latter may be held liable
for the claim which the claimant seeks to recover from the cross-claimant.

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 A cross claim that a party has at the time the answer is filed shall be contained in said
answer (Sec. 8, Rule 11). Broadly, this means that the cross-claim must be set up in the same
action. If through oversight, inadvertence, or excusable negligence, it is not asserted, it may still
be set up with leave of court, by amendment of the pleadings. It has to be set up in the action
because if not set up shall be barred. Note, however, that the cross-claim that shall be barred if
not asserted is the cross-claim already existing at the time the answer is filed, not the cross-
claim that may mature or may be acquired after service of the answer. As to the latter, Sec. 9 of
Rule 11 declares that it may, by permission of the court, be presented by supplemental
pleading before judgment.

What are the requirements for a cross-claim?

The following are the requirements for a cross-claim:

(a) It is a claim by one party against a co-party;
(b) The claim must arise out of the subject matter of the complaint or of the counterclaim;
and
(c) The cross-claimant is prejudiced by the claim against him by the opposing party. (Sec. 8,
Rule 6)

Examples
1. If XYZ Bank sues A and B for the collection of a loan, A, who merely acted as an
accommodation party may file a cross claim against his co-defendant, B by asserting
that it is B who is the actual and true debtor and hence, should be ultimately liable for
the payment of the loan (BAR 1997)

2. If JJ Trucker hired some loaders to load the furniture, and they were the ones that
damaged the furniture, then JJ Trucker could file a cross claim against the loaders for all
or part of the damage to the furniture.

3. If a Plaintiff –pedestrian filed an action for Damages as a result of a car accident against
Defendants the driver and the owner of the car, the defendant owner could file a cross-
claim against the defendant driver.
BAR 1997
B and C borrowed Php400, 000. 00 from A. The promissory note was executed by B and
C in a joint and several capacity. B, who received the money from A, gave C Php200, 000. 00. C,
in turn loaned Php100, 000. 00 out of the Php200, 000. 00 he received to D.

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 In an action filed by A against B and C with the Regional Trial Court of Quezon City, can B
file a cross claim against C for the amount of Php200, 000. 00?
Suggested answer
B can file a cross-claim against C. A cross claim is proper when the claim is filed against a
co-party, such claim arises out of the transaction or occurrence subject of the original action
and the cross-claim is prejudiced by the claim against him by the plaintiff. The facts of the case
squarely fit the elements of a cross-claim.
Distinction between a cross-claim and a counterclaim (BAR 1999)
1. A cross-claim is a claim against a co-party; a counterclaim is a claim against an
opposing party; and

2. A cross-claim must arise from the transaction or occurrence that is the subject
matter of the original complaint or counterclaim. A counterclaim may or may not
arise out of the subject matter of the complaint. It may be compulsory or
permissive.

Period to answer a cross-claim

A cross-claim must be answered within twenty (20) calendar days from service (Sec. 4,
Rule 11), and the pleading to be filed by the cross-defendant shall be denominated as “Answer
to Cross-Claim.”
Reason for allowing the Cross-Claim
The rule is designed to enable the disposition of the entire controversy in one action
and to discourage multiplicity of suits (Republic v. Paredes, L-21548, May 20, 1960).
No cross-claim on appeal
While a defendant may have a definite cause of action against a co-defendant, it cannot
succeed in seeking judicial sanction against the latter if the records disclose that no cross-claim
was interposed, nor was there a prayer that the co-defendant should be liable for all claims that
may be adjudged in favor of the plaintiff. Under the Rules, a cross-claim not set up shall be
barred. Thus, a cross-claim cannot be set up for the first time on appeal (Loadmasters Customs
Services, Inc., v. Glodel Brokerage Corporation, G.R. No. 179446, January 10, 2011)
WHAT IS A CROSS CLAIM AND WHAT DOES IT INCLUDE?

ANSWER. A cross claim is any claim by one party against a co-party arising out of the
transaction or occurrence that is the subject matter either of the original action or of a
counterclaim therein. Such cross-claim may include a claim that the party against whom it is

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asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action
against eh cross-claimant.
IS THE FILING OF CROSS-CLAIM A MATTER OF RIGHT?

ANSWER. No, because there are limitations like:

(1) It must arise out of the subject matter of the complainant;
(2) It can be filed only against a co-party;
(3) It is proper only where cross-claimant stands to be prejudiced by the filing of the action
against him.

WHAT IS THE EFFECT OF THE DISMISSAL OF THE MAIN ACTION ON THE CROSS-CLAIM? WHY?

ANSWER. If the complaint is dismissed, the cross-claim should also be dismissed. (Rep.
vs. Bisaya Trans. Co Inc., 81 SCRA 9). This is so because there is no more leg for the cross-claim
to stand on as it should arise from the main action.
Please note: Under Section 4, Rule rule, “cross-claim must be answered within twenty (20)
calendar from service.”
SEC. 9. Counter-counterclaims and counter-cross claims. – A counterclaim may be asserted
against an original counter-claimant.
A cross-claim may also be filed against an original cross- claimant.
Counter-counterclaims and counter-cross claims.
A counterclaim may be asserted against an original counter-claimant. A cross-claim may
also be filed against an original cross- claimant.
A counter-counter claim is claim by the defending party (plaintiff) against the
counterclaimant.
For instance, Alma sues Leny for recovery of a tract of land. Leny, by way of counter
claim, seeks in turn to be reimbursed the value of improvements she has introduced in the
same land and the payment of damages she has sustained. For her part, Alma may also file a
counter counter-claim against Leny by alleging that Leny should be the one to pay Alma as she
was the one who introduced those improvements.
A counter cross claim is a claim by the defending party (cross defendant) against the
original cross-claimant.
For example, Bernard and Carlos borrowed Php400, 000. 00 from Anthony. The
promissory note was executed by Bernard and Carlos in a joint and several capacity. Bernard,

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who received the money from Anthony, gave Carlos Php200, 000. 00. Carlos, in turn loaned
Php100, 000. 00 out of the Php200, 000. 00 he received to Dante.
In an action filed by Anthony against Bernard and Carlos with the Regional Trial Court of
Quezon City, Bernard (cross-claimant) can file a cross claim against Carlos (cross-defendant) for
the amount of Php200, 000. 00. For his part, Carlos may also file a counter-crossclaim against
Bernard, alleging that he should be the one personally liable to Anthony.
Section. 10. REPLY. – ALL NEW MATTERS ALLEGED IN THE ANSWER ARE DEEMED
CONTROVERTED. IF THE PLAINTIFF WISHES TO INTERPOSE ANY CLAIM ARISING OUT OF THE
NEW MATTERS SO ALLEGED, SUCH CLAIMS SHALL BE SET FORTH IN AN AMENDED OR
SUPPLEMENTAL COMPLAINT. HOWEVER, THE PLAINTIFF MAY FILE A REPLY ONLY IF THE
DEPENDING PARTY ATTACHES AN ACTIONABLE DOCUMENT TO HIS OR HER ANSWER.
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 IN, OR RELATING TO, SAID ACTIONABLE DOCUMENT.
IN THE EVENT AN ACTIONABLE DOCUMENT ATTACHED TO THE REPLY, THE DEFENDANT MAY
FILE A REJOINDER IF THE SAME IS BASED SOLELY ON AN ACTIONABLE DOCUMENT.
Nature of a Reply
A reply is a pleading, the 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 joins or makes
issue as to such new matters. (Sec. 10, Rules 6)

A reply is the responsive pleading to an answer. It is not a responsive pleading to a

counterclaim or a cross-claim. The proper response to a counterclaim or cross-claim is an
answer to the counterclaim or answer to the cross-claim.

Filing of reply, not mandatory

As a rule, the filing of a reply to the answer is not mandatory and will not have an
adverse effect on the defendant. Under Sec. 10 of Rule 6, if a party does not file such reply, all
the new matters alleged in the answer are deemed controverted or denied. Hence, if the
answer to the complaint alleges as a defense the prescription of the action, the failure of the
plaintiff to specifically deny the prescription will not amount to an admission that the debt has
prescribed because the rule already denies the matter of prescription without the plaintiff
making a specific denial. It is already, as the rule says, “deemed controverted” (BAR 1996; 1977)
Under the new rules, “If the plaintiff wishes to interpose any claims arising out of the
new matters so alleged, such claims shall be set forth in an amended or supplemental
complaint. “

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 Take note that the so called “new matters” are set forth by the defendant in his answer
by way of affirmative defense. As mentioned in Section 5, (b) of Rule 6 of the Revised Rules on
Civil Procedure, new matters include Fraud, Statute of Limitations, Release, Payment, Illegality,
Staute of Frauds, Estoppel, Former Recovery, Discharge in Bankcrupcy, etc.
For example, the defendant in his answer and by way of affirmative defense, alleges
that the plaintiff is guilty of Estoppel or Fraud. On the other hand, if the plaintiff wishes to
interpose a claim out of the new matter of Estoppel or Fraud as alleged by the defendant in his
answer, the plaintiff, instead of filing a Reply, may raise the same either in an amended
complaint or supplemental complaint.
However, the Rule is very clear that it is not mandatory for the plaintiff to raise his claim
in an amended or supplemental complaint, for the reason that the if the plaintiff does not file a
reply, the new matter alleged in the answer is deemed controverted.
Contrast this with the rule that the failure to specifically deny the material allegations of
the Complaint shall mean the implied admission of such material allegations (Sec. 11, Rule 8).
Thus, the gist of the rule is: The material allegations of a complaint must be specifically denied
but the allegations of new matters or material allegations of the Answer need not be denied
because they are deemed denied by the Rules for the plaintiff.
BAR 1996
A sued B for damages. B in his answer alleged as a new matter the issue of prescription.
No reply thereto was filed by A. Can the action be dismissed for failure of A to controvert the
new matter set up by B? Explain.
Suggested answer
The action cannot be dismissed. The failure of the plaintiff to file a reply is not a ground
for the dismissal of an action. Besides, if a party does not file a reply, all the new matters
alleged in the answer are deemed controverted (Sec. 10, Rule 6). The allegation of prescription
is therefore, deemed denied even if A does not file a reply.
When filing of Reply is advisable
When the defense in the answer is based upon written instrument or document, said
instrument is considered an actionable document (Sec. 7, Rule 8). Hence, the plaintiff has to file
a reply under oath if he desires to deny specifically the genuineness and due execution of the
actionable document and if he wants to avoid ad admission of such matters under Sec. 8, Rule 8
of the Rules of Court.
In the same Section 10, Rule 6, “However, the plaintiff may file a reply only if the
defending party attaches an actionable document to his or her answer.”

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BAR 2000
X files a complaint in the RTC for the recovery of a sum of money with damages against
Y. Y files his answer denying liability under the contract of sale and praying for the dismissal of
the complaint on the ground of lack of cause of action because the contract of sale was
superseded by a contract of lease executed and signed by X and Y two weeks after the contract
of sale was executed. The contract of lease was attached to the answer. X does not file a reply.
What is the effect of the non-filing of the reply?
Suggested answer
By not filing a reply, X is deemed to have admitted the genuineness and the due
execution of the contract of lease. As a rule, the new matters alleged in the answer are deemed
controverted even if a party does not file a reply. This rule, however, finds no application where
the defense is founded upon a written instrument. Under Sec. 8 of Rule 9 of the Rules of Court,
when a defense is founded upon an instrument, the genuineness and due execution of the
instrument shall be deemed admitted unless the adverse party, specifically denies them under
oath. X should have filed a reply specifically denying under oath the genuineness and due
execution of the contract of lease.
WHAT IS A REPLY?

ANSWER. A reply is a pleading, the office of function of which is to deny, or allege facts,
in denial or avoidance of new matter alleged by way of defense in the answer and thereby join
or make issue as to such new matters.
WHAT ARE SOME OF THE PURPOSES OF A REPLY?

ANSWER. They are;

(a) To set up affirmative defenses on the counterclaim (Rosario vs. Martinez, 92
Phil. 1064).
(b) To prevent a document from being admitted as to the genuineness and due
execution in case the answer interposes an actionable document. (Toribio vs.
Bidin, 134 SCRA 162).

Filing of Rejoinder, not mandatory

The filing of a rejoinder to a reply is optional on the part of the defendant, and it is
possible only IN THE EVENT AN ACTIONABLE DOCUMENT ATTACHED TO THE REPLY, THE
DEFENDANT MAY FILE A REJOINDER IF THE SAME IS BASED SOLELY ON AN ACTIONABLE
DOCUMENT.

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 The 3rd par of Section 10, Rule 6, is clear: “In the event of an actionable document
attached to the reply, the defendant may file a rejoinder if the same is based solely on an
actionable document.”
Remember: In Section 6, Rule Rule, it states: A reply, if allowed under Section 10, Rule 6 hereof,
may be filed within fifteen (15) calendar days from service of the pleading responded to.
Section. 11. THIRD (FOURTH, ETC)- PARTY COMPLAINT. – A third (fourth, etc.)- party
complaint is a claim that a defending party may, with leave of court, file against a person NOT
a party to the action, called the third (fourth, etc)- party defendant, for CONTRIBUTION,
INDEMNITY, SUBROGATION or any other relief, in respect of his OR HER opponent ‘s claim.
THE THIRD (FOURTH, ETC) – PARTY COMPLAINT SHALL BE DENIED ADMISSION, AND THE
COURT SHALL REQUIRE THE DEFENDANT TO INSTITUTE A SEPARATE ACTION, WHERE: (A) THE
THIRD (FOURTH, ETC) – PARTY DEFENDANT CANNOT BE LOCATED WITHIN THIRTY (30)
CALENDAR DAYS FROM THE GRANT OF SUCH LEAVE; (B) MATTERS EXTRANEOUS TO THE
ISSUE IN THE PRINCIPAL CASE ARE RAISED; OR (C) THE EFFECT WOULD BE TO INTRODUCE A
NEW AND SEPARATE CONTROVERSY INTO THE ACTION.
Nature of a third-party complaint
The dynamics of a third party complaint is that it is a procedural device whereby a ‘third
party’ who is neither a party nor a privy to the act or deed complained of by the plaintiff, may
be brought into the case with leave of court, by the defendant, who acts as third-party plaintiff
to enforce against such third-party defendant a right for contribution, indemnity, subrogation
or any other relief, in respect to plaintiff’s claim.
This pleading is a claim which a defending party may, with leave of court, file against a
person who is not yet a party to the action for CONTRIBUTION, INDEMNITY, SUBROGATION or
any other relief, in respect of his opponent’s claim (Sec. 11, Rule 6, Rules of Court).

A third-party complaint is actually a complaint independent of, and separate and distinct
from the plaintiff’s complaint. The filing of a third-party complaint requires leave of court. The
admission of a third-party complaint is therefore, a matter of judicial discretion.

Please note:
Answer to a third-party complaint
The time to answer a third-party complaint shall be governed by the same rule as the
answer to the complaint, hence, within 30 calendar days from service of summons (Sec. 1, Rule
11, Rules of Court)

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Examples:
(a) If Mr. Plaintiff sues Mr. Defendant for collection of a sum of money borrowed by Mr.
Defendant from Mr. Plaintiff. Upon the request of Mr. E, Mr. Defendant may, with leave
of court, file a third-party complaint against Mr. E for indemnity or contribution.

But if the third party defendant Mr E cannot be served with summons, hence cannot be
located within thirty (30) calendars from the grant of such leave, under the new rules, the court
shall deny the motion for leave to file a third party complaint and shall require the defendant to
institute a separate action.

In like manner, if the purpose of bringing in Mr E to the complaint is for Mr. E to collect
as sum of money from Mr. Plaintiff which the latter borrowed from the former from a different
and separate transaction, under the new rules, the motion for leave to file Third Party
Complaint shall be denied, and the court shall require the defendant to file a separate case
against the third party defendant.

(b) If Mr. Seller sells a car to Mr. Buyer and the real owner, Mr. Owner sues Mr. Buyer for
the recovery of the car. Mr. Buyer may file a third-party complaint against Mr. Seller to
require the latter to answer for breach of warranty against eviction.
(c) Messrs. A, B and C jointly and severally bind themselves to pay Mr. D Php600, 000. 00.
Mr. D sued Mr. A alone when the debt was not paid on maturity. Mr. A may file a third-
party complaint against Messrs. B and C for contribution. While Mr. D can sue Mr. A
alone because the obligation is solidary, the other debtor may be brought in by Mr. A as
third-party defendants.
(d) Mr. P, a pedestrian sues Mr. O, operator of a taxicab for damages based on a quasi-
delict theory. Mr. O may file a third party complaint against Mr. D, the driver of the
taxicab on the ground that it was his negligence that actually caused the injury.

BAR 1996
A assembles an owner-type jeep for B who in turn rents it to X. due to faulty brakes, X
figures in a vehicular accident causing him severe injuries. X files an action for damages
against A and B.

May B file a third-party complaint against A for indemnity?

Suggested answer
B cannot file a third-party complaint against A. This pleading is filed only against a
person who is not a party to the action. Since A is already a party to the suit, he cannot be
the object of a third party claim. B however, may file a cross-claim against his co-defendant.

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The present rules provide that:” THE THIRD (FOURTH, ETC) – PARTY COMPLAINT SHALL BE
DENIED ADMISSION, AND THE COURT SHALL REQUIRE THE DEFENDANT TO INSTITUTE A
SEPARATE ACTION, WHERE:
(A) THE THIRD (FOURTH, ETC) – PARTY DEFENDANT CANNOT BE LOCATED WITHIN
THIRTY (30) CALENDAR DAYS FROM THE GRANT OF SUCH LEAVE;
(B) MATTERS EXTRANEOUS TO THE ISSUE IN THE PRINCIPAL CASE ARE RAISED; OR
(C) THE EFFECT WOULD BE TO INTRODUCE A NEW AND SEPARATE CONTROVERSY INTO
THE ACTION.
Sample form:
MOTION FOR LEAVE OF COURT TO FILE THIRD-PARTY COMPLAINT
COMES NOW, the defendant, through the undersigned counsel and unto this Honorable
Court, most respectfully avers:
1. That the defendant has been sued for collection of sum of money in the total amount of
Php500, 000. 00, exclusive of cost and interest, and attorney’s fees;

2. That the third party plaintiff, in the purchase of the subject vehicle from the plaintiff,
payment for which is the subject of the said complaint, acted for and in behalf, and as
agent of the third-party defendant;

3. That after the purchase of the said motor vehicle aforementioned, third-party plaintiff
immediately delivered the same to the third-party defendant who promised to pay the
full purchase price to the plaintiff. Copy of the Third-Party Complaint is hereto attached
as Annex “A” hereof.

WHEREFORE, premises considered, it is most respectfully prayed of this Honorable

Court that the defendant be allowed to file third-party complaint.
Other relief and remedies as may be deemed just and equitable under the premises are
likewise prayed for.
Section. 12. Bringing new parties. – When the presence of parties other than those to the
original action is required for granting of complete relief in the determination of a
counterclaim or cross-claim, the court shall order them to be brought in as defendants, if
jurisdiction over them can be obtained.

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What is the rule in case of bringing new parties?
When the presence of parties other than those to the original action is required for
granting of complete relief in the determination of a counterclaim or cross-claim, the court shall
order them to be brought in as defendants, if jurisdiction over them can be obtained.
It appears that the above provision applies only for the granting of a complete relief in
the determination of a Counterclaim or Crossclaim. If there is a claim against a third person
who is not a party to the action, then the remedy in order to bring him in is to file a Third Party
Complaint to be initiated by the Defendant himself, for contribution, indemnity, subrogation or
any other relief.
Section. 13. Answer to third (fourth, etc)- party complaint. – A third (fourth, etc) – party
defendant may allege in his OR HER answer his OR HER defense, counterclaims or cross-
claims, including such defenses that the third (fourth, etc)- party plaintiff may have against
the original plaintiff’s claim. In proper cases, he may also assert a counterclaim against the
original plaintiff in respect of the latter’s claim against the third-party plaintiff.
Answer to third (fourth, etc)- party complaint.
A third (fourth, etc) – party defendant may allege in his OR HER answer his OR HER
defense, counterclaims or cross-claims, including such defenses that the third (fourth, etc)-
party plaintiff may have against the original plaintiff’s claim. In proper cases, he may also assert
a counterclaim against the original plaintiff in respect of the latter’s claim against the third-
party plaintiff.
Under this Section, the third-party defendant may file his answer to the third-party
plaintiff and the pleading shall be called “Answer to the Third Party Complaint with
Counterclaim or (Cross-claim).” For instance, Mr. Pablo, a pedestrian sues Mr. Ongpin, operator
of a taxicab for damages based on a quasi-delict theory. Mr. Ongpin (third party plaintiff) may
file a third party complaint against Mr. Duterte (third party-defendant), the driver of the taxicab
on the ground that it was his negligence that actually caused the injury. In this case, Mr.
Duterte, the third party defendant, may file his answer to the third party complaint and he may
also assert counterclaim or cross claim in his answer.

The Rules also provide in substance that the third-party defendant may also assert in his
answer a counterclaim against Mr. Pablo, the original plaintiff, in regard to his (Mr. Pablo) claim
against Mr. Ongpin, the third party plaintiff.
For example, Mr. Pablo, a pedestrian sues Mr. Ongpin, operator of a taxicab for
damages based on a quasi-delict theory. Mr. Ongpin (third party plaintiff) may file a third party
complaint against Mr. Duterte (third party-defendant), the driver of the taxicab on the ground
that it was his negligence that actually caused the injury. For his part, Mr Duterte, the driver,

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may also assert a counterclaim against Mr. Pablo, the original plaintiff, averring that it was
through his (Mr. Pablo) negligence that the accident happened.

A third party defendant may also file a motion to dismiss, on the grounds of:
1. That the third-party complaint is improper and the third-party defendants have been
improperly brought into the action;
2. That the third-party plaintiffs have no legal capacity to file the third-party complaint;
3. That the third-party complaint states no cause of action.

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 RULE 7
PARTS AND CONTENTS OF A PLEADING
Section 1. Caption. – The caption sets forth the name of the court, the title of the action, and
the docket number if assigned.
The title of the action indicates the names of the parties. They shall all be named in
the original complaint or petition; but in subsequent pleadings, it shall be sufficient if the
name of the first party on each side be stated with an appropriate indication when there are
other parties.
Their respective participation in the case shall be indicated.
The Caption of the Pleading
The quick look at the caption is that it is a glimpse of the outline of the entire case under
consideration. By simply looking at the caption, a person will be properly guided on what the
case is all about as well as the parties involved in said case. The following are the important
parts of a complaint, to wit:
1. Caption of the Pleading
2. Title of the Action
3. Body of the Pleading
4. Headings; designation of causes of action joined in one complaint
5. Allegations of ultimate facts

Sample form:
Republic of the Philippines
Regional Trial Court
6th Judicial Region
Branch 32
Iloilo City

Juan Dela Cruz, Civil Case No. 20 - 12345

Plaintiff

-versus- For: Sum of Money

Pedro Reyes,
Defendant.

X-------------X

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 The Rule requires that a pleading should contain only allegations of “ultimate facts, “
i.e., the facts essential to a party’s cause of action or defense (Sec. 1, Rule 8, Rules of Court) or
such facts as are so essential that they cannot be stricken out without leaving the statement of
the cause of action inadequate.
Please take note that the present rules stray away with the so-called “ultimate facts”
rule, since it requires now that the names of witnesses and the purposes of their testimony as
well as the documentary and objects evidence be stated in the complaint. (Section 6, Rule 7)
The ultimate facts are to be stated in a methodical and logical form and in a plain,
concise, and direct manner.
6. Relief
7. Signature and Address

a. Every pleading must be signed by the plaintiff or counsel representing him stating in
either case his address. This address should not be a post office box.

b. A signed pleading is one that is signed either by the party himself or his counsel. It
requires that a pleading must be signed by the party or counsel representing him.
Therefore, only the signature of either the party himself or his counsel operates to
validly convert a pleading from one that is unsigned to one that is signed.

Section 2.The body. — The body of the pleading sets fourth its designation, the allegations of
the party's claims or defenses, the relief prayed for, and the date of the pleading.

(a) Paragraphs. — The allegations in the body of a pleading shall be divided into
paragraphs so numbered to be readily identified, each of which shall contain a
statement of a single set of circumstances so far as that can be done with
convenience. A paragraph may be referred to by its number in all succeeding
pleadings.

(b) Headings. — When two or more causes of action are joined the statement of the
first shall be prefaced by the words "first cause of action,'' of the second by "second
cause of action", and so on for the others.

When one or more paragraphs in the ANSWER are addressed to one of several causes
of action in the complaint, they shall be prefaced by the words "answer to the first
cause of action" or "answer to the second cause of action" and so on; and when one
or more paragraphs of the answer are addressed to several causes of action, they shall
be prefaced by words to that effect.

(c) Relief. — The pleading shall specify the relief sought, but it may add a general
prayer for such further or other relief as may be deemed just or equitable.

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 (d) Date. — Every pleading shall be dated.

The Body of the Pleading

The body of the pleading sets forth its designation, the allegations of the party’s claims
or defenses, the relief prayed for, and the date of the pleading.
Allegations of ultimate facts:
Every pleading, including the complaint, is not supposed to allege conclusions. A
pleading must only aver facts because conclusions are for the courts to make. (Please see
Section 6, Rule 7)

Section. 3. Signature and address. – (a) Every pleading and other written submission to the
court must be signed by the party or counsel representing him OR HER.
(b)The signature of counsel constitutes a certificate by him OR HER that he OR
SHE has read the pleading AND DOCUMENT; that to the best of his OR HER
knowledge, information, and belief, FORMED AFTER AN INQUIRY REASONABLE
UNDER THE CIRCUMSTANCES:

(1) IT IS NOT BEING PRESENTED FOR ANY IMPROPER PURPOSE, SUCH AS

TO HARASS, CAUSE UNNECESSARY DELAY, OR NEEDLESSLY INCREASE
THE COST OF LITIGATION;

(2) THE CLAIMS, DEFENSES AND OTHER LEGAL CONTENTIONS ARE

WARRANTED BY EXISTING LAW OR JURISPRUDENCE OR BY NON-
FRIVOLOUS ARGUMENT FOR EXTENDING, MODIFYING, OR REVERSING
EXISTING JURISPRUDENCE;

(3) THE FACTUAL CONTENTIONS HAVE EVIDENTIARY SUPPORT OR, IF

SPECIFICALLY SO IDENTIFIED, WILL LIKELY HAVE EVIDENTIARY
SUPPORT AFTER AVAILMENT OF THE MODES OF DISCOVERY UNDER
THESE RULES; AND

(4) THE DENIALS OF FACTUAL CONTENTIONS ARE WARRANTED ON THE

EVIDENCE OR, IF SPECIFICALLY SO IDENTIFIED ARE REASONABLY
BASED ON BELIEF OR A LACK OF INFORMATION.
© IF THE COURT DETERMINES, ON MOTION OR MOTU PROPRIO AND AFTER NOTICE AND
HEARING, THAT THIS RULE HAS BEEN VIOLATED, IT MAY IMPOSE AN APPROPRIATE SANCTION
OR REFER SUCH VIOLATION TO THE PROPER OFFICE FOR DISCIPLINARY ACTION, ON ANY
ATTORNEY, LAW FIRM, or party that violated the rule, or is responsible for the violation.

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Absent exceptional circumstances, a law firm shall be held jointly and severally liable for a
violation committed by its partner, associate, or employee. The sanction may include, but
shall not be limited to, non-monetary directive or sanction; an order to pay a penalty in court;
or, if imposed on motion and warranted for effective deterrence, an order directing payment
to the movant of part or all of the reasonable attorney’s fees and other expenses directly
resulting from the violation, including attorney’s fees for the filing of the motion for sanction.
The lawyer or law firm cannot pass on the monetary penalty to the client.
Effect of an unsigned pleading
The signature in the pleading is important for it to have a legal effect. Under the Rules of
Court (Sec. 3, Rule 7), “an unsigned pleading produces no legal effect.” The court however, is
authorized to allow the pleader to correct the deficiency if the pleader shows to the satisfaction
of the court, that the failure to sign the pleading was due to mere inadvertence and not to
delay the proceedings.
Significance of the signature of counsel (BAR 1996)
The signature of a counsel in a pleading is significant. His signature constitutes a
certificate by him that (a) he has read the pleading; (b) that to the best of his knowledge,
information and belief there is good ground to it.
The new rules provide for additional importance of the signature of counsel, as it
warrants or guarantees the following matters are as follows:
(1) IT IS NOT BEING PRESENTED FOR ANY IMPROPER PURPOSE, SUCH AS
TO HARASS, CAUSE UNNECESSARY DELAY, OR NEEDLESSLY INCREASE
THE COST OF LITIGATION;
(2) THE CLAIMS, DEFENSES AND OTHER LEGAL CONTENTIONS ARE
WARRANTED BY EXISTING LAW OR JURISPRUDENCE OR BY NON-
FRIVOLOUS ARGUMENT FOR EXTENDING, MODIFYING, OR REVERSING
EXISTING JURISPRUDENCE;
(3) THE FACTUAL CONTENTIONS HAVE EVIDENTIARY SUPPORT OR, IF
SPECIFICALLY SO IDENTIFIED, WILL LIKELY HAVE EVIDENTIARY SUPPORT
AFTER AVAILMENT OF THE MODES OF DISCOVERY UNDER THESE
RULES; AND
(4) THE DENIALS OF FACTUAL CONTENTIONS ARE WARRANTED ON THE
EVIDENCE OR, IF SPECIFICALLY SO IDENTIFIED ARE REASONABLY BASED
ON BELIEF OR A LACK OF INFORMATION.

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Are there sanctions in the event of its violation?
IF THE COURT DETERMINES, ON MOTION OR MOTU PROPRIO AND AFTER NOTICE AND
HEARING, THAT THIS RULE HAS BEEN VIOLATED, IT MAY IMPOSE AN APPROPRIATE SANCTION
OR REFER SUCH VIOLATION TO THE PROPER OFFICE FOR DISCIPLINARY ACTION, ON ANY
ATTORNEY, LAW FIRM, or party that violated the rule, or is responsible for the violation. Absent
exceptional circumstances, a law firm shall be held jointly and severally liable for a violation
committed by its partner, associate, or employee.
What are included in the sanction?
The sanction may include, but shall not be limited to:
1. Non-monetary directive or sanction;
2. An order to pay a penalty in court; or
3. If imposed on motion and warranted for effective deterrence, an order
directing payment to the movant of part or all of the reasonable attorney’s
fees and other expenses directly resulting from the violation, including
attorney’s fees for the filing of the motion for sanction. The lawyer or law
firm cannot pass on the monetary penalty to the client.
Section. 4. Verification. – Except when otherwise specifically required by law or rule, pleading
need not be under oath, verified or accompanied by affidavit.
A pleading is verified by an affidavit of an affiant duly authorized to sign said
verification. The authorization of the affiant to act on behalf of a party, whether in the form of a
secretary’s certificate or a special power of attorney, should be attached to the pleading, and shall
allege the following attestations:

(a) The allegations in the pleading are true and correct based on his or her personal knowledge,
or based on authentic documents;

(b) The pleading is not filed to harass, cause unnecessary delay, or needlessly increase the cost of
litigation; and

(c) The factual allegations therein have evidentiary support or, if specifically soidentified, will
likewise have evidentiary support after a reasonable opportunity for discovery. The signature of
the affiant shall further serve as a certification of the truthfulness of the allegations in the
pleading.

The signature of the affiant shall further serve as a certification of the truthfulness of the
allegations in the pleading.

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 A pleading required to be THAT contains a verification based on “information and
belief” or upon “ knowledge, information and belief,” or lacks a proper verification, shall be
treated as an unsigned pleading (As amended by A.M. No. 00-2-10, May 1, 2000)
Verification in a pleading
Pleadings need not be under oath, verified or accompanied by affidavit, except when so
required by law or rule (Sec. 4, Rule 7)
How a pleading is verified
Under the Rules a pleading is verified by an affidavit. This affidavit declares that (a) that
affiant has read the pleading, and (b) that the allegations therein are true and correct of his
personal knowledge or based on authentic records (Sec. 4, Rule 7, Rules of Court as amended
by A.M. No. 00-2-10, May 1, 2000). Verification is intended to insure that the allegations therein
have been prepared in good faith or are true and correct, not mere speculation (Robert
Development corporation v. Quitain, 315 SCRA 150).

Effect of lack of verification (BAR 2011)

1. A pleading required to be verified but lacks the proper verification shall be treated as an
unsigned pleading. Hence, it produces no legal effect. (Torres, 468 SCRA 358)

2. It has however, been held that the absence of a verification or the non-compliance with
the verification requirement does not necessarily render the pleading defective. It is
only a FORMAL and not a jurisdictional requirement. The requirement is a condition
affecting only the form of the pleading.

Other requirements:
1. All pleadings, motions, and papers filed in court by counsel shall bear, in addition to
counsel’s current Professional Tax Receipts Number (PTR), counsel’s current IBP Official
Receipts Number indicating its date of issue. Pleadings, motions, and papers which do
not comply with this requirement may not be acted upon by the court, without
prejudice to whatever disciplinary action the court may take against the erring counsel
who likewise be required to comply with the requirement within five (5) days from
notice.
2. To require all lawyers to indicate their Roll of Attorneys Number in all papers and
pleadings filed in judicial and quasi-judicial bodies.
3. All practicing members of the bar are required to indicate in all pleadings filed, before
the courts or quasi judicial bodies, the number and date of issue of their MCLE
Certificate of Compliance or Certificate of Exemption. Failure to disclose the required
information would cause the dismissal of the case and the expunction of the pleadings
from the records.

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BAR 2017
Tailors Toto, Nelson and Yenyen filed a special civil action for certiorari under Rule 65
from an adverse decision of the National Labor Relations Commission (NLRC) on the complaint
for illegal dismissal against Empire Textile Corporation. They were terminated on the ground
that they failed to meet the prescribed production quota at least four (4) times. The NLRC
decision was assailed in a special civil action under Rule 65 before the Court of Appeals (CA). In
the verification and certification against forum shopping, only Toto signed the verification and
certification, while Atty. Arman signed for Nelson. Empire filed a motion to dismiss on the
ground of defective verification and certification. Decide with reasons.
Suggested answer
The motion to dismiss on the ground of defective verification should be denied. The
Supreme Court has held that a lawyer may verify a pleading in behalf of the client. Moreover, a
verification is merely a formal and not a jurisdictional requirement. The court should not
dismiss the case but merely require the party concerned to rectify the defect.

The motion to dismiss on the ground of defective certification against forum-shopping

should likewise be denied. Under reasonable or justifiable circumstances, as when all the
plaintiffs or petitioners share a common interest and invoke a common cause of action or
defense, the signature of only one of them in the certification against forum shopping
substantially complies with the Rule. (Jacinto v. Gumaru, 2 June 2014). Here the Petitioners
have a common interest and invoke a common cause of action, that is, their illegal dismissal by
Empire Textile Corporation for failure to meet production quotas.

Section. 5. Certification against forum shopping. – The plaintiff or the principal party shall
certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or
in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has
not theretofore commenced any action or filed any claim involving the same issued in any
court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action
or claim is pending therein; (b) if there is such other action or claim, a complete statement of
the present status thereof; (c) if he should thereafter learn that the same or similar action or
claim has been filed or is pending, he shall report that fact within five (5) CALENDAR days
therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.
The authorization of the affiant to act on behalf of a party, whether in the form of a
secretary’s certificate or a special power of attorney, should be attached to the pleading.

Failure to comply with the foregoing requirements shall not be curable by mere amendment
of the complaint or other initiatory pleading but shall be cause for the dismissal of the case
without prejudice, unless otherwise provided, upon motion and hearing. The submission of a
false certification or non-compliance with any of the undertakings therein shall constitute
indirect contempt of court, without prejudice to the corresponding administrative and
criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate

155
forum shopping, the same shall be ground for summary dismissal with prejudice and shall
constitute direct contempt, as well as a cause for administrative sanctions.
Certification Against Forum Shopping (BAR 2000; 2009; 2010)
1. The certification against forum shopping is a sworn statement in which the
PLAINTIFF or PRINCIPAL PARTY certifies in a complaint or initiatory pleading to the
following matters:

(a) That he has not 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 action or claim is pending therein;
(b) That if there is such other pending action or claim, a complete statement of the
present status thereof; and
(c) That if he should therefore learn that the same or similar action has been filed or is
pending, he shall report that fact within five (5) days therefrom to the court wherein
his complaint or initiatory pleading has been filed (Sec. 5, Rule 7, Rules of Court)

2. The certification is mandatory under Sec. 5, Rule 7, but not jurisdictional since
jurisdiction over the subject matter is conferred by law. (Robert Development
Corporation vs. Quitain, 315 SCRA 150)

3. The Court held that the rule requiring a certification against forum shopping applies
as well to special civil actions since a special civil action is governed by the rules for
ordinary civil actions, subject to the specific rules prescribed for a special civil action.

4. The principle against forum shopping applies not only with respect to suits filed in
the courts but also in connection with litigations commenced in the courts while an
administrative proceeding is pending in order to defeat administrative processes and
in anticipation of a unfavorable administrative ruling (Multinational vs. Court of
Appeals, G.R. No. 98023, October 17, 1991)

5. As to certification against forum shopping, non-compliance therewith or a defect

therein, unlike in verification is generally not curable by its subsequent submission
or correction thereof, unless there is a need to relax the Rule on the ground of
“substantial compliance” or presence of “special circumstances or compelling
reasons.”

ELEMENTS OF FORUM SHOPPING

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There is forum shopping where there exist:
1. Identity of parties or at least such parties as represent the same interests in both
actions;
2. Identity of rights asserted and relief prayed for, the relief being founded on the
same facts; and
3. The identity of the two preceding particulars is such that any judgment rendered
in the pending case, regardless of which party is successful would amount to res
judicate (Young vs. Spouses Sy, 503 SCRA 151)

THREE WAYS OF COMMITTING FORUM SHOPPING

The Supreme Court enumerated the ways by which forum shopping may be committed,
thus:
(a) Filing multiple cases based on the same cause of action and with the same
prayer, the previous case not having been resolved yet (where the ground for
dismissal is litis pendentia);

(b) Filing multiple cases based on the same cause of acion and the same prayer, the
previous case having been finally resolved (where the ground for dismissal is res
judicata); and

(c) Filing multiple cases based on the same cause of action, but with different
prayers (splitting of causes of action, where the ground for dismissal is also
either litis pendencia or res judicata.

Case
The registered owner of land authorized his brother via an SPA to file the petition for issuance
of a new owner’s duplicate certificate of title. May the brother execute and sign the CFS?

Answer.
Yes. Where SPA authorized agent to file and prosecute cases on behalf of principal, the agent
has personal knowledge of whether he initiated suits thus satisfying the requirements for a
valid CFS. (Republic v. Ciruelas, 17 February 2021, Delos Santos, J.).
Case
Does a petition for writ of possession in favor of the buyer in local tax delinquency sale require
a certification against forum shopping?
Answer.

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No, since such petition is not an initiatory pleading. (De Guzman v. Chico, 7 Dec 2016, Jardeleza,
J.).
Case
In order to set aside a resolution of the Department of Agrarian Reform Adjudication Board, X
availed of both a petition for review under R43 and a petition for certiorari under R65. Found
liable for forum shopping, X argued that only one of the actions is dismissible and that he may
choose which remedy to maintain. Is X’s argument correct?
Answer.
No. When there is forum shopping, the penalty is dismissal of both actions. It is wrong to say
that only one of the actions is dismissible and that the litigant may choose which remedy to
maintain. (Heirs of Mampo v. Morada, 3 November 2020, Caguioa, J.). Note: The acts of X
clearly constituted willful and deliberate forum shopping.
REASONS FOR PROHIBITING FORUM SHOPPING

(a) The reason behind the proscription of forum shopping is obvious. This unnecessarily
burdens our courts with heavy caseloads, unduly taxes the manpower and financial
resources of the judiciary and trifles with and mocks our judicial processes, thereby
affecting the efficient administration of justice.

(b) The rationale against forum shopping is that a party should not be allowed to pursue
simultaneous remedies in two different fora. Filing multiple petitions or complaints
constitutes abuse of court processes, which tends to degrade the administration of
justice, wreaks havoc upon orderly judicial procedure, and adds to the congestion of
the heavily burdened dockets of the courts.

Who executes the certification against forum shopping (BAR 2000); exception:
1. It is the plaintiff or principal party who executes the certification under oath. The
certification must be executed by the party, not the attorney. It is the petitioner and not
the counsel who is in the best position to know whether he or it actually filed or caused
the filing of a petition. A certification signed by counsel is a defective certification and is
a valid cause for dismissal.
2. While the rule is that certification against forum must be executed by the party-pleader
and not by his counsel, the rule is subject to exceptions.
3. If, for reasonable or justifiable reasons, the party-pleader is unable to sign, he must
execute a Special Power of Attorney designating his counsel or record to sign on his
behalf.

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Rule if there are several plaintiffs or petitioners; exception
The certification against forum shopping must be signed by all the plaintiffs or
petitioners in a case; otherwise, those who did not sign will be dropped as parties to the case.
Under reasonable or justifiable circumstances, however, as when the plaintiffs or petitioners
share a common interest and invoke a common cause of action or defense, the signature of
only one of them substantially conforms with the Rule (Vda. De Formoso v PNB, G.R. No.
154704, June 1, 2011)
What are the sanctions imposed for its violations?
1. The failure to comply with the required certification is “not curable by a mere
amendment” and shall be a cause for the dismissal of the action (Sec. 5, Rule 7,
Rules of Court). The dismissal for failure to comply with the certification
requirement is NOT to be done by the court motu proprio. The rule requires that the
dismissal be upon motion and after hearing.

2. The failure to submit a certification against forum shopping is a ground for dismissal,
separate and distinct from forum shopping as a ground for dismissal. A complaint
may be dismissed for forum shopping even if there is a certification attached and
conversely, a complaint may be dismissed for lack of the required certification even
if the party has not committed forum shopping.

NO APPEAL FROM AN ORDER OF DISMISSAL

If the complaint is dismissed for failure to comply with the required certification against
forum shopping, may the plaintiff appeal from the order of dismissal where the dismissal is one
without prejudice?
He cannot appeal from the order. This is because an order dismissing an action without
prejudice is not appealable. The remedy provided for under Sec. 1 of Rule 41 is to avail of the
appropriate special civil action under Rule 65.
SIGNING THE CERTIFICATION WHEN THE PLAINTIFF IS A JURIDICAL ENTITY:
A juridical entity, unlike a natural person, can only perform physical acts through
properly designated individuals. The certification against forum shopping where the plaintiff or
a principal plaintiff is a juridical entity like a corporation, may be exercised by properly
authorized persons. This person may be the lawyer of the corporation. As long as he is duly
authorized by the corporation and has personal knowledge of the facts required to be disclosed
in the certification against forum shopping, the certification may be signed by the authorized
lawyer.

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PLEADINGS REQUIRING A CERTIFICATION AGAINST FORUM SHOPPING:
The certification against forum shopping applies to the complaint and other initiatory
pleadings asserting a claim for relief. These initiatory pleadings include not only the original
complaint but also a permissive counterclaim, cross-claim, third (fourth, etc.) party complaint,
complaint-in-intervention, petition or any application for which a party asserts his claim for
relief.
The rule does not require a certification against forum shopping for a compulsory
counterclaim because it cannot be the subject of a separate and independent adjudication as
when the counterclaim is for damages, moral, exemplary or attorney’s fees, by reason of the
alleged malicious and unfounded suit filed against the defendant. It is therefore, not an
initiatory pleadings. (Santo Tomas University v. Surla, 294 SCRA 382).
EFFECTS OF NON-COMPLIANCE WITH THE RULE ON CERTIFICATION AGAINST FORUM
SHOPPING (BAR 1996)
1. The failure to comply with the required certification is “not curable by a mere
amendment” and shall be a cause for the dismissal of the action. The dismissal of the
action for failure to comply with the certification requirement is not to be done by the
court motu proprio. The rule requires that the dismissal be upon motion and after
hearing (Sec. 5, Rule 7, Rules of Court)

2. If the case is dismissed for failure to comply with the certification requirement, the
dismissal is, as a rule, “without prejudice,” unless the order of dismissal otherwise
provides. Hence, where the dismissal is silent as to the character of the dismissal, the
dismissal is presumed to be without prejudice to the refilling of the complaint.

3. The failure to submit a certification against forum shopping is a ground for dismissal,
separate and distinct from forum shopping as a ground for dismissal. A complaint may
be dismissed for forum shopping even if there is a certification attached and conversely,
a complaint may be dismissed for lack of required certification even if the party has not
committed forum shopping. Compliance with the certification against forum shopping is
separate from, and independent of, the avoidance of forum shopping (Juaban v. Espina,
548 SCRA 588).

STATE THE EFFECT IF THERE IS FORUM SHOPPING.

If the forum shopping is not considered willful and deliberate, the subsequent case shall
be dismissed without prejudice. However, if the forum shopping is willful and deliberate, both
(or all, if there are more than two) actions shall be dismissed with prejudice. (supra)

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THE RULES REQUIRE THAT WHENEVER AN ACTION IS FILED, IT MUST BE ACCOMPANIED BY A
CERTIFICATE OF NON-FORUM SHOPPING. STATE THE REASON FOR THE RULE. EXPLAIN.

The rationale of the rule is to curb the malpractice referred to as forum shopping – an
act of a party against whom an adverse judgment has been rendered in one forum of seeking
and possibly getting a favorable opinion in another forum, other than by appeal, or the special
civil action for certiorari, or the institution of two or more actions or proceedings grounded on
the same cause on the supposition that one or the other court would make a favorable
disposition. (Transfield Phils. Inc., vs. Luzon Hydro Corp., 490 SCRA 14.)
A complaint was filed to annul a foreclosure sale with damages. It was alleged that it
was done without proper publication as the sheriff’s notice of sale was published in a
newspaper which was not of general circulation. The bank filed an answer denying the
allegations in the complaint and alleged that it suffered actual compensatory and moral
damages but did not attach a certificate of non-forum shopping. The plaintiffs moved to dismiss
the counterclaim as it was not accompanied by a certificate of non-forum shopping. It was
denied on the ground that it was merely compulsory hence, the certification is not required. Is
the denial proper? Why?

Yes. The Rule distinctly provides that the required certification against forum shopping is
intended to cover an “initiatory pleading,” meaning an “incipient application of a party
asserting a claim for relief.” (UST vs. Surla, 294 SCRA 382). Certainly, the bank’s Answer with
Counterclaim is a responsive pleading, filed merely to counter plaintiff’s complaint that initiated
the civil action. In other words, the rule requiring such certification does not contemplate a
defendant’s claim for relief that is derived only from, or is necessarily connected with, the main
action or complaint.
In fact, the failure by the plaintiff to comply with such requirement directs the
“dismissal of the case without prejudice,” not the dismissal of respondent’s counterclaim. (Sps.
Orendain vs. Rural Bank of Sto. Tomas {Batangas} Inc., G.R. No. 153171, May 4, 2006.)
The petition for review before the CA was dismissed for failure to comply with the rule
on certification of non-forum shopping. It was the counsel who signed the certification and not
the parties. It was explained that one of the parties was in the USA attending to an ailing father
and the other was in Cebu for an important business commitment. The petitioners invoked the
liberality principle. Rule on the contention.
The contention is not proper. A certification by counsel and not by the principal party
himself is no certification at all. The reason for requiring that it must be signed by the principal
party himself is that he has actual knowledge, or knows better than anyone else, whether he
has initiated similar action/s in mother courts, agencies or tribunals. (Go vs. Rico, G.R. No.
140862, April 25, 2005.)

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GIVE INSTANCES WHEN CERTIFICATE OF NON-FORUM SHOPPING IS NOT NECESSARY.

Certificate of non-forum shopping is not necessary:

(a) When what is filed is a mere motion for extension (Far Eastern Shipping Co. vs. CA,
G.R. No. 130068, October 1, 1998)

(b) In criminal cases and distinct causes of actions. (People vs. Ferrer, 85 SCAD 835)

ANTHONY AND BARBARA FILED A COMPLAINT FOR DAMAGES AGAINST THE UST HOSPITAL
ALLEGING THAT THEIR SON SUFFERED DAMAGES WHEN HE FELL FROM THE HOSPITAL’S
INCUBATOR. THEY ALLEGED THAT THE EMPLOYEES OF THE HOSPITAL WERE NEGLIGENT. THE
HOSPITAL FILED AN ANSWER ALLEGING COUNTERCLAIMS THAT THEY HAVE UNPAID HOSPITAL
BILLS AND PROFESSION FEES OF THE DOCTORS AND MORAL AND EXEMPLARY DAMAGES
WIHTOUT A CERTIFICATE OF NON-FORUM SHOPPING. STATE THE EFFECT OF THE FAILURE TO
SUBMIT A NON-FORUM SHOPPING CERTIFICATE. EXPLAIN.

It depends. A certificate of non-forum shopping is not necessary with respect to the

counterclaim for moral and exemplary damages because the same is not an initiatory pleading.
Such certificate is necessary only when the pleading is initiatory. The reason for the rule is that,
the counterclaim is merely auxiliary to the proceedings in suit.
The counterclaim for unpaid hospital bills however, is an initiatory pleading as it serves
as an independent claim. The same did not arise out of the same transaction or occurrence that
is the subject matter of plaintiff’s complaint which is the alleged negligence of the hospital
employees. The hospital’s claim arose out of contract. The evidence to sustain plaintiff’s
complaint is different from the evidence to sustain the claim of the hospital. (UST Hospital vs.
Sula, G.R. No. 129719, August 17, 1998).
X FILED A COMPLAINT AGAINST Y. IN Y’S ANSWER, HE PLEADED A COUNTERCLAIM BUT
WITHOUT A CERTIFICATE OF NON-FORUM SHOPPING. STATE ITS EFFECTS? EXPLAIN.

It has no effect if the counterclaim is compulsory. Well- settled is the rule that the
requirement of certificate does not apply to compulsory counterclaim pleaded in an answer.
The rationale behind the rule is that such a claim is not initiatory in character. It is otherwise, if
it is permissive, because a permissive counterclaim is an initiatory pleading. The rules require
that all initiatory pleadings must be accompanied by a certificate of non-forum shopping. (UST
Hospital vs. Suria, 294 SCRA 382)

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WHY CANNOT THE LAWYER, AS A RULE, SIGN THE CERTIFICATE OF NON-FORUM SHOPPING?
EXPLAIN.

The certificate of non-forum shopping must be signed by the plaintiff or any of the
principal party and not the attorney. In Digital Microwave Corp. vs. CA, et.al., GR No. 128550,
March 16, 2000, it was said that even counsel may not be aware of said facts. The client knows
them, the counsel may be aware of the case, but not of other possible actions. If it is a
corporation, any of the directors may sign. (Escorpiso vs. University of Baguio, 306 SCRA 503).
Sample form: Verification / Certification against non-forum shopping
VERIFICATION / CERTIFICATION AGAINST NON-FORUM SHOPPING
REPUBLIC OF THE PHILIPPINES)
CITY OF ILOILO ) S.S.
I Juan Dela Cruz, of legal age, Filipino citizen, married, and a resident of Barangay
San Roque, Jaro, Iloilo City, Philippines, after having been duly dworn to in accordance with
law do hereby depose and say:
1. That I am the plaintiff in the above-entitled case;
2. That I have caused the preparation of the foregoing Complaint and have read the
allegations contained therein;
3. That the allegations in the said Complaint are true and correct of my own knowledge
and authentic records;
4. The pleading is not filed to harass, cause unnecessary delay, or needlessly increase the
cost of litigation;

5. The factual allegations therein have evidentiary support or, if specifically soidentified,
will likewise have evidentiary support after a reasonable opportunity for discovery. The
signature of the affiant shall further serve as a certification of the truthfulness of the
allegations in the pleading.

6. I hereby certify that I have not commenced any other action or proceeding involving the
same issues in the Supreme Court, Court of Appeals, or any other tribunal or agency;
7. That if I should thereafter learned that a similar action or proceedings has been filed or
is pending before the Supreme Court, Court of Appeals, or any other tribunal or agency,
I hereby undertake to report the fact within five (5) days therefrom to the court or
agency wherein the original pleading and sworn certification contemplated herein have
been filed.
8. I execute this verification/certification to attest to the truth of the foregoing facts and to
comply with the provisions of Adm. Circular No. 04-94 of the Honorable Supreme Court.

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 IN WITNESS WHEREOF, I have hereunto affixed my signature this ____ day of February,
2012, in the City of Iloilo.
Section 6. Contents. — Every pleading stating a party’s claims or defenses shall, in addition to
those mandated by Section 2, Rule 7, state the following:

(a) Names of witnesses who will be presented to prove a party’s claim or defense;

(b) Summary of the witnesses’ intended testimonies, provided that the judicial affidavits of said
witnesses shall be attached to the pleading and form an integral part thereof. Only witnesses
whose judicial affidavits are attached to the pleading shall be presented by the parties during
trial. Except if a party presents meritorious reasons as basis for the admission of additional
witnesses, no other witness or affidavit shall be heard or admitted by the court; and

(c) Documentary and object evidence in support of the allegations contained in the pleading. (n)

What shall be stated in every pleading?

Those mandated by Sec. 2, Rule 7, as follows:

Section 2.The body. — The body of the pleading sets fourth its designation, the allegations of
the party's claims or defenses, the relief prayed for, and the date of the pleading. (n)

(a) Paragraphs. — The allegations in the body of a pleading shall be divided into
paragraphs so numbered to be readily identified, each of which shall contain a
statement of a single set of circumstances so far as that can be done with convenience.
A paragraph may be referred to by its number in all succeeding pleadings.

(b) Headings. — When two or more causes of action are joined the statement of the
first shall be prefaced by the words "first cause of action,'' of the second by "second
cause of action", and so on for the others.

When one or more paragraphs in the answer are addressed to one of several causes of
action in the complaint, they shall be prefaced by the words "answer to the first cause
of action" or "answer to the second cause of action" and so on; and when one or more
paragraphs of the answer are addressed to several causes of action, they shall be
prefaced by words to that effect.

(c) Relief. — The pleading shall specify the relief sought, but it may add a general prayer
for such further or other relief as may be deemed just or equitable.

(d) Date. — Every pleading shall be dated. (n)

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 In addition, it shall also state the following:
(a) Names of witnesses who will be presented to prove a party’s claim or defense;
(b) Summary of the witnesses’ intended testimonies, provided that the judicial affidavits of said
witnesses shall be attached to the pleading and form an integral part thereof. Only witnesses
whose judicial affidavits are attached to the pleading shall be presented by the parties during
trial. Except if a party presents meritorious reasons as basis for the admission of additional
witnesses, no other witness or affidavit shall be heard or admitted by the court; and
(c) Documentary and object evidence in support of the allegations contained in the pleading. (n
(D) If the cause of action or defense relied on is based on LAW, the pertinent provisions thereof
and their applicability to him or her shall be clearly and concisely stated. (2 nd par. Section 1,
Rule 8)
It is clear from the foregoing section that the principle of “ultimate facts” is a thing of
the past, since the new rules now allow allegations of evidentiary matters. Enumerating the
name of the witnesses, documentary and object evidence, as well as the purpose of it is being
offered is a matter of evidence which should be properly ventilated before the proper forum.
The requirement which mandates that only witnesses who have executed a judicial
affidavit, and which is attached to the record, shall be allowed to testify, otherwise, the court
may not allow his to testify, is actually in consonance with The Judicial Affidavit Rule. The
judicial affidavit must conform to the required form as mandated by the said Rule, otherwise,
upon appropriate motion, the court may not consider the same.
Queries:
1. Would non-compliance with the provision of Section 6, Rule 7 of the 2019 Revised Rule
on Civil Procedure a ground for the dismissal of the action?
2. What would be the remedy of the defendant if the plaintiff fails to comply with the
provision of Section6, Rule 7 of the 2019 Revised Rule on Civil Procedure?
3. In like manner, what would be the legal action of the plaintiff if the defendant fails to
comply with the provision of Section 6, Rule 7 of the 2019 Revised Rule on Civil
Procedure?

RULE 8

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 MANNER OF MAKING ALLEGATIONS IN PLEADINGS
Section 1. In general. – Every pleading shall contain a methodical and logical form, a plain,
concise and direct statement of the ultimate facts, INCLUDING THE EVIDENCE on which the
party pleading relies for his claim or defense, as the case may be, omitting the statement of
mere evidentiary facts.
If A CAUSE OF ACTION or defense relied on is based on law, the pertinent provisions
thereof and their applicability to him shall be clearly and concisely stated.
What does a pleading should contain?
Every pleading shall contain a methodical and logical form the following:
1. A plain, concise and direct statement of the ultimate facts, INCLUDING THE
EVIDENCE on which the party pleading relies for his claim or defense, as the case
may be;

2. If a claim or defense relied on is based on law, the pertinent provisions thereof and
their applicability to him shall be clearly and concisely stated.
This is an additional matter that should also be alleged in the complaint or third-party
complaint, and also on answer to the complaint or to the third-party complaint.
Manner of making allegations
1. The pleading asserting the claim or the cause of action must contain only the ultimate
facts. These facts must be stated in plain, concise, methodical and logical form.
Evidentiary fact must also be alleged in the complaint or answer.

2. The ultimate facts refer to the essential facts of the claim. A fact is if it cannot be
stricken out without leaving the statement of the cause of action inadequate. The
ultimate facts are the important and substantial facts which form the basis of the
primary right of the plaintiff and which make up the wrongful act or omission of the
defendant.

Section. 2. Alternative causes of action or defenses. – A party may set forth two or more
statements of a claim or defense alternatively or hypothetically, either in one cause of action
or defense or in separate causes of action or defenses. When two or more statements are
made in the alternative and one of them if made independently would be sufficient, the
pleading is not made insufficient by the insufficiency of one or more of the alternative
statements.
What is the rule in case a party will plead two or more statement of claim or defences?

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 A party may set forth in his pleading the following:
1. Two or more statements of a claim or defense alternatively or hypothetically, either
in one cause of action or defense or in separate causes of action or defense.

2. When two or more statements are made in the alternative and one of them if made
independently would be sufficient, the pleading is not made insufficient by the
insufficiency of one or more of the alternative statements.
PLEADING ALTERNATIVE CAUSES OF ACTIONS OR DEFENSES
Under Sec. 2 of Rule 8, a party may set forth two or more statements of a claim or
defense, alternatively or hypothetically, either in one cause of action or defense or in separate
causes of action or defense.
“The relevant rule provides: “when two or more statements are made in the
alternatives and one of them if made independently would be sufficient, the pleading is not
made insufficient by the insufficiency of one or more of the alternative statements.”
The subject provision recognizes that the liability of the defendant may possibly be
based on either one of two or more possible causes of action. The plaintiff may, for example,
believe that the liability of the carrier may be based either on a breach of contract of carriage or
on a quasi-delict, but he may not be certain which of the causes of action would squarely fit the
set of facts alleged in the complaint
For the plaintiff:
“First Cause of Action”
Breach of Contract of Carriage
“Second Cause of Action”
Quasi- Delict
For the defendant:
“Answer to the First Cause of Action”
Breach of Contract of Carriage
“Answer to the Second Cause of Action”
Quasi-Delict
The landmark case of La Mallorca v. Court of Appeals, 17 SCRA 739, illustrates this rule
particularly well. Here, the plaintiffs were allowed to sue based upon a quasi-delict theory and
in the alternative, upon a breach of contract, where the death of their child occurred when they

167
were no longer on board the bus of the common carrier but at the time the father was in the
process of retrieving the family’s personal belongings from the bus.
The said rule authorizes not only alternative causes of action. The rule likewise permits
alternative defenses. Under the said rule, a party may set forth two or more defenses
alternatively or hypothetically. For example, a defendant may assert the defense of payment of
the debt or the prescription of said debt or illegality of contract. In the case of breach of
contract of sale, the defendant may alternatively interpose the defenses of fraud or illegality of
contract.
Examples
1. For instance, the plaintiff insurance company, which paid for the loss of the goods
insured, may sue in the alternative the shipping company that transported the goods
and the warehouse company that stored the goods if the plaintiff is uncertain which
between the defendants is responsible for the loss.

2. The Court allowed the alternative suit against the arrastre operator and the owner and
agents of the carrying vessels filed by the insurance company which paid the consignee
for the lost merchandise.

3. The plaintiff may file an action with alternative causes of action, like the first cause of
action is for (1) Annulment of Title; and the second cause of action is for (2) Annulment
of Compromise Agreement.

Section. 3. Conditions Precedent. – In any pleading, a general averment of the performance or

occurrence of all conditions precedent shall be sufficient.
What is the rule in case of allegation of condition precedent in the pleading?
In any pleading a general averment of the performance or occurrence of all conditions
precedent shall be sufficient.
Common usage refers to conditions precedent as matters which must be complied with
before a cause of action arises. When a claim is subject to a condition precedent, the
compliance of the same must be alleged in the pleading.
Examples
1. A tender of payment is required before making a consignation.
2. Exhaustion of administrative remedies is required in certain cases before resorting to
judicial action.
3. Prior resort to barangay conciliation proceedings is necessary in certain cases.

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 4. Earnest efforts toward a compromise must be undertaken when the suit is between
members of the same family and if no efforts were in fact made, the case must be
dismissed.

5. Arbitration may be a condition precedent when the contract between the parties
provides for arbitration first before recourse to judicial remedies.

Effect of failure to comply with a condition precedent.

The failure to comply with a condition precedent is an independent ground for a motion
to dismiss: that a condition precedent for filing the claim has not been complied with. (Modified
by the present rule) Under the present Rules, non-compliance with condition precedent is no
longer a proper ground for a motion to dismiss instead the defending party may raise it as one
of his affirmative defences in his answer. The filing of a motion to dismiss on the ground of non-
compliance with condition precedent is a prohibited motion and the court will dismiss it
outrightly.
Section. 4. Capacity. – Facts showing the capacity of a party to sue or be sued or the authority
of a party to sue or be sued in a representative capacity or the legal existence of an organized
association of persons that is made a party, must be averred. A party desiring to raise an
issue as to the legal existence of any party or capacity of any party to sue or be sued in a
representative capacity, shall do so by specific denial, which shall include such supporting
particulars as are peculiarly within the pleader’s knowledge.
What is the rule in case of allegation of capacity of a party in a pleading?
A party desiring to allege facts or raise as an issue the capacity of the party to the action
must:
1. Facts showing the capacity of a party to sue or be sued or the authority of a party to
sue or be sued in a representative capacity or the legal existence of an organized
association of persons that is made a party, must be averred.

Examples:
(a) The plaintiff may allege in his complaint that he/she of legal age…
(b) The plaintiff may assert in his complaint that he/she is filing this complaint as a
representative of the original plaintiff or a guardian of the plaintiff.
(c) That the corporation is a duly organized corporation in accordance with the laws
of the Philippines…

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 2. A party desiring to raise an issue as to the legal existence of any party or the capacity
of any party to sue or be sued in a representative capacity, shall do so by specific
denial, which shall include such supporting particulars as are peculiarly within the
pleader’s knowledge.
Section. 5. Fraud, mistake, condition of mind. – In all averments of fraud or mistake, the
circumstances constituting fraud or mistake must be stated with particularity. Malice, intent,
knowledge or other condition of the mind of a person may be averred generally.
What are the manners of alleging fraud, mistake, condition of mind in a pleading?
In all averments of fraud or mistake, or condition of mind it must be averred by:
1. Stating the circumstances constituting fraud or mistake must be stated with
particularity.

2. Malice, intent, knowledge or other condition of the mind of a person may be

averred generally.
This provision clearly suggests that it is not enough therefore, for the complaint to
allege that he was defrauded by the defendant. It is a requirement that the complaint must
state with particularity the fraudulent acts of the adverse party. These particulars which would
necessarily include specific acts of fraud committed against the plaintiff would help apprise the
judge of the kind of fraud involved in the complaint.
Examples
1. The misrepresentation of the defendant to the plaintiff that he was the actual and true
owner of a car subject of sale, and which the plaintiff acted on such false
representation, constitutes fraud which must be stated with particularity in the
complaint.
2. The parties entered into a contract without the knowledge of the law on contract like a
minor is not competent to enter into without the assistance of his parents or guardian,
said mistake must be averred in the complaint with particularity.
3. The party entered erroneously into an agreement without knowing that the same must
be reduced into writing, the said mistake must be stated with particularity in the
complaint.
However, with respect to MALICE, INTENT, KNOWLEDGE or OTHER CONDITION OF THE
MIND OF A PERSON, they may be averred generally.
So it is enough the party may allege in the pleading that he or she acted without Malice
or Intent or Knowledge without stating them with particularity. The assertion, therefore, that
the defendant entered into an agreement without Intent to defraud the plaintiff is a sufficient
allegation in the answer. In the same way, the declaration by the plaintiff that in the execution

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of the contract, he was without Knowledge that the defendant entered into said contract
without legal capacity, is sufficient allegation in the complaint.
Section. 6. Judgment. – In pleading a judgment or decision of a domestic or foreign court,
judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment
or decision without setting forth matter showing jurisdiction to render it. AN
AUTHENTICATED COPY OF THE JUDGMENT OR DECISION SHALL BE ATTACHED TO THE
PLEADING.
What is the manner of making allegation of a judgment in the pleading?
In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-
judicial tribunal, or of a board or officer in the manner:
1. By sufficiently averring the judgment or decision without setting forth matter
showing jurisdiction to render it, and
2. An authenticated copy of the judgment or decision shall be attached to the pleading.

An averment in the pleading that a decision or judgment has been rendered by a

Regional Trial Court, without the allegation that said court has jurisdiction to render said
decision or judgment, is a sufficient declaration in the pleading. In a similar manner, an
allegation in the pleading that the Labor Arbiter has already decided the case is also sufficient
averment. However, the new rules require that an authenticated copy of the decision or
judgment shall be attached to the pleading.
Section. 7. Action or defense based on document. – Whenever an action or defense is based
upon a written instrument or document, the substance of such instrument or document shall
be set forth in the pleading, and the original or a copy thereof shall be attached to the
pleading as an exhibit, which shall be deemed to be a part of the pleading, or said copy may
with like effect be set forth in the pleading.
What is the rule in making an allegations in the pleading in case of written instrument or
document?
Whenever an action or defense is based upon a written instrument or document the
allegations must be made by:
1. By alleging the substance of such instrument or document in the pleading, and
2. The original or a copy thereof shall be attached to the pleading as an exhibit, which
shall be deemed to be a part of the pleading, or
3. Said copy may with like effect be set forth in the pleading.

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PLEADING ACTIONABLE DOCUMENT (BAR 1991; 2004; 2005)
A substantial number of cases reaching the courts show that the plaintiff’s cause of
action or the defendant’s defense is based upon a written instrument or document. The
document used in such cases is what is commonly termed as “actionable document” which in
current usage is referred to as the document relied upon by either the plaintiff and the
defendant as when the plaintiff sues on a written contract of lease.

Examples
1. In an action for collection of a sum of money, the actionable document would be the
promissory note executed by the defendant in favor of the plaintiff.
2. In an action for foreclosure of mortgage, the actionable document would be the deed of
mortgage.
3. On the other hand, if the defendant alleges that the debt has been paid, the receipt of
payment issued by the plaintiff would be the actionable document.

Whenever an actionable document is the basis of a pleading, the rule specifically directs
the pleader to (a) set forth in the pleading the substance of the instrument or the document,
and attach the original or the copy of the document to the pleading as an exhibit and which
shall form part of the pleading; or (b) with like effect, to set forth in the pleading said copy of
the instrument or document (Sec. 7, Rule 8, Rules of Court).

Case
Should an actionable document be attached to the pleading? Would a failure to so attach result
in the dismissal of the action?
Answer. Yes, the actionable document should be attached to the pleading as required under S7
R8. However, a failure to so attach or set forth should not result in the outright dismissal of the
complaint. (Keihin-Everett Forwarding Co. v. Tokio Marine Malayan Insurance Co., 28 January
2019, Reyes, J.). The court should simply order the plaintiff to attach or set forth the actionable
document.
Case
Action by BP Oil to recover value of petroleum products delivered to Total Distribution under an
agency agreement executed between the two. The complaint of BP Oil includes as an annex a
letter from BP Oil to Total which states the value of stocks of unsold lubricants. This letter was
not specifically denied under oath by Total. Is Total deemed to have admitted the genuineness
of the letter?

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Answer.
No. The letter is not an actionable document but an evidentiary document. BP Oil’s action was
based on the agency agreement, not the letter. Hence Total’s failure to put its denial under
oath will not amount to an implied admission. (BP Oil v. Total Distribution, 6 Feb 2017,
Mendoza).
Case
Young Builders Corporation (YBC) sued Benson Industries Inc. (BII) for payment under a
construction contract where YBC would construct a building for BII. In its complaint YBC averred
that it had accomplished work on the building in the amount of P54 million of which BII had
paid only P40 million. Attached to the complaint was a copy of the accomplishment billing.
During the trial, YBC failed to authenticate the accomplishment billing. Thus the court ruled in
favor of BII. On appeal, YBC contends that there was no need to authenticate the
accomplishment billing since BII failed to specifically deny it under oath and thus impliedly
admitted its genuineness and due execution. Is YBC’s contention meritorious?
Answer.
No. The actionable document which was the basis of YBC’s action is the construction contract
between the parties. The accomplishment billing is merely an evidentiary document. Thus the
implied admission rule does not apply and hence YBC needs to authenticate the
accomplishment billing. (Young Builders Corp. v. Benson Industries Inc., 19 June 2019, Caguioa,
J.).
Case
Respondent sold and delivered fabricated steel products to Petitioner construction corporation
under a sales contract. Petitioner failed to pay so Respondent sued Petitioner for the price of
the sale. Attached to the complaint were charge invoices issued by Respondent to Petitioner
which indicated the items sold and delivered to Petitioner. Petitioner filed an unsworn answer.
Did Petitioner admit the genuineness and due execution of the charge invoices by its failure to
specifically deny them under oath?
Answer.
No. Under S7 R8, a document is actionable when an action or defense is grounded upon such
written instrument or document. Here, the charge invoices are not actionable documents per
se as these only provide details on the alleged transactions. These documents need not be
attached to or stated in the complaint as these are evidentiary in nature. In fact, Respondent’s
cause of action is not based on these documents but on the contract of sale between the
parties. (Asian Construction & Dev’t Corp. v. Mendoza, 27 June 2012, Del Castillo, J.).

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HOW MAY AN ACTIONABLE DOCUMENT BE PLEADED AS A BASIS FOR THE CAUSE OF ACTION OF
THE PLAINTIFF OR DEFENSE?

Whenever an action or defense is based upon a written instrument or document, the

substance of such instrument or document shall be set forth in the pleading, and the original or
a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a
part of the pleading, or said copy may with like effect be set forth in the pleading. (Sec. 7, Rule
8; ITM, Inc. vs. CA, GR No. 86568, March 22, 1990.
Examples
1. In an action for Sum of Money based on a promissory note, the substance of the
promissory note shall be set forth in the Complaint, and the original or a copy of said
promissory note shall be attached to the complaint, making it an integral part of the
complaint. Or the entire text of the promissory note shall be stated in the complaint and
the original or a copy of the said promissory note shall be attached to the complaint as
an integral part thereof.
2. In an action for Foreclosure of Mortgage for non-payment of the principal debt, the
substance of the Deed of Mortgage shall be set forth in the Complaint and then to
attach the original or a copy of said Deed of Mortgage. Or with like effect, the entire text
of the Deed of Mortgage shall be alleged in the Complaint and the original or a copy of
the Deed of Mortgage shall be attached to the Complaint.
Section. 8. How to contest such documents. – When an action or defense is founded upon a
written instrument, copied in or attached to the corresponding pleading as provided in the
preceding Section, the genuineness and due execution of the instrument shall be deemed
admitted unless the adverse party, under oath, specifically denies them, and sets forth what
he OR SHE claims to be the facts; but the requirement of an oath does not apply when the
adverse party does not appear to be a party to the instrument or when compliance with an
order for an inspection of the original instrument is refused.
How to contest an actionable document; oath required (BAR 2010)
When the action is founded upon a document pleaded in the manner required by Sec. 7
of Rule 8, the party who has no intent of admitting the genuineness and due execution of the
document, must contest the same by (a) specifically denying the genuineness and due
execution of the document under oath; and (b) setting forth what he claims to be the facts (Sec.
8, Rule 8).

A mere specific denial of the actionable document is insufficient. The denial must be
coupled with an oath. In current usage, this means that the denial must be verified. The

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absence of an oath will result in the implied admission of the due execution and genuineness of
the document.

For example, a civil case for collection based on a promissory note attached to the
complaint was filed against the defendant. Under the above rule, the defendant may
specifically deny under oath the said allegation by saying: “that he spefically denies the
allegation contained in paragraph 2 of the plaintiff’s complaint, and the truth of the matter is
that the attached promissory note was a forgery.”

When an oath is not required (BAR 1987)

The requirement of a specific denial under oath will not apply in either of the following
cases:
a. When the adverse party does not appear to be a party to the instrument, or
b. When compliance with an order for an inspection of the original document is refused.

Meaning of admission
By the admission of the genuineness and due execution of an instrument, is meant that
the party whose signature it bears admits that he signed it or that it was signed by another for
him with his authority; that at the time it was signed it was in words and figures exactly as set
out in the pleadings of the party relying upon it; that the document was delivered; and that any
formal requisites required by law, such as a seal, an acknowledgment, or revenue stamp, which
it lacks, are waived by him.
Defenses cut-off by the admission of genuineness and due execution
In several cases decided by the Supreme Court, the rule is always constant that when a
party is deemed to have admitted the genuineness and due execution of an actionable
document, defenses that are implied from said admission are necessarily waived like the
defenses of (1) forgery of the document, (2) lack of authority to execute the document, (3) that
the party charged signed the document in some other capacity than that alleged in the
pleading, or (4) that the document was never delivered. Also cut-off by the admission is the
defense that the (5) document was not in words and figures as set out in the pleadings.
Defenses NOT cut-off by the admission of genuineness and due execution
In a similar vein, there are jurisprudence that lay down the rule that the following
defenses, among others, may not be interpreted as an implied admission of the genuineness
and due execution of the document: (a) payment or non-payment; (b) want of consideration;
(c) illegality of consideration; (d) usury; and (e) fraud. The Supreme Court ratonalized that these
defenses are not inconsistent with the admission of the genuineness and due execution of the
instrument and are not therefore, barred.

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 It is submitted that prescription, release, waiver, statute of frauds, estoppels, former
recovery or discharge in bankruptcy are not likewise barred, these defenses having no direct
relationship to the concepts of “genuineness and due execution.”

BAR 2016
On the basis of an alleged promissory note executed by Harold in favor of Ramon, the
latter filed a complaint for P950,000.00 against the former in the RTC of Davao City. In an
unverified answer, Harold specifically denied the genuineness of the promissory note.

During the trial, Harold sought to offer the testimonies of the following: (1) the
testimony of an NBI handwriting expert to prove the forgery of his signature; and (2) the
testimony of a credible witness to prove that if ever Harold had executed the note in favor of
Ramon, the same was not supported by a consideration.

May Ramon validly object to the proposed testimonies? Give a brief explanation of your
answer.

Suggested answer
1) Ramon may validly object to the proposed testimony of an NBI handwriting expert to
prove forgery.

Under Section 8, Rule 8 of the Rules of Court, the genuineness and due executio of an
actionable document is deemed admitted by the adverse party if he fails to specifically deny
such genuineness and due execution.

Here the genuineness and due execution of the promissory note, which is an actionable
document, was impliedly admitted by Harold when he failed to deny the same under oath, his
answer being unverified. Hence Harold is precluded from setting up the defense of forgery and
thus Ramon may object to the proposed testimony seeking to prove forgery.

2) Ramon may not validly object to the proposed testimony showing that the note was
not supported by a consideration.

The Supreme Court has held that an implied admission under Section 8, Rule 8 does not
preclude the adverse party from introducing evidence that the actionable document was not
supported by a consideration. The reason is that such evidence is not inconsistent with the
implied admission of genuineness and due execution. [Acabal v. Acabal, 31 March 2005]

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 The fact that the defense of lack of consideration is inconsistent with Harold’s defense of
forgery is also not objectionable. Under the Rules of Civil Procedure, a party may set forth two
or more statements of defense alternatively or hypothetically.

Section. 9. Official document or act. – In pleading an official document or official act, it is

sufficient to aver that the document was issued or the act done in compliance with law.
How to make an averment of an official act or document in a pleading?
In pleading an official document or official act, it is sufficient to aver:
1. That the document was issued or
2. The act done in compliance with law.
Examples
1. The mere assertion that the Marriage Certificate attached to the complaint or answer
was issued by the Local Civil Registrar is considered sufficient averment.

2. In like manner, in pleading that a copy of the Resolution of the City Prosecutor attached
to the complaint or answer, was issued by the said office is also sufficient averment.
Section. 10. Specific denial. – A defendant must specify each material allegation of fact the
truth of which he OR SHE does not admit and, whenever practicable, shall set forth the
substance of the matters upon which he OR SHE relies to support his denial. Where a
defendant desires to deny only a part of an averment, she shall so specify so much of it as is
true and material and shall deny only the remainder. Where a defendant is without
knowledge or information sufficient to form a belief as to the truth of a material avernment
made in the complaint, he OR SHE shall so state, and this shall have the effect of a denial.
KINDS OF SPECIFIC DENIAL (BAR 2011)
There are three (3) types of specific denials mentioned in Sec. 10 of Rule 8 of the Rules
of Court, namely:
(a) The defendant specifies each material allegation of fact the truth of which he does not
admit and, whenever practicable, sets forth the substance of the matters upon which he
relies to support his denial. This kind of denial is an ABSOLUTE DENIAL;

Example:

The defendant may assert in his Answer that he specifically denies the allegation found
in paragraph (b) of the plaintiff’s complaint and assert the truth of the matter, is considered an
Absolute Denial.

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 (b) Another type of a specific denial is where the defendant does not make a total denial of
the material allegations in a specific paragraph. In this type of denial, he denies only a
part of the averment. If he chooses this type of denial, he specifies that part the truth of
which he admits and denies only the remainder. This denial is known as a PARTIAL
DENIAL;

Example:

The defendant may declare that he admits the first part of the allegation contained in
paragraph (d) of the plaintiff’s Complaint but specifically denies the rest of the allegation is a
form of Partial Denial.
© One type of a specific denial is where the defendant alleges that he “is without knowledge or
information sufficient to form a belief as to the truth of a material averment made in the
complaint.” This type of specific denial called a DENIAL BY DISAVOWAL OF KNOWLEDGE. Such
denial must be made in good faith.

Example

The statement of the defendant in his answer that he has no knowledge or information
sufficient to form a belief as to the the truth of the allegation found in paragraph (F) of the
plaintiff’s complaint is in the realm of Denial by Disavowal of knowledge.
Section. 11. Allegations not specifically denied deemed admitted. – Material AVERMENTS IN
A PLEADING ASSERTING A CLAIM OR CLAIMS, other than those as to the amount of
unliquidated damages, shall be deemed admitted when not specifically denied.

What is the effect of the allegation in the pleading was not specifically denied?
Material averment in the complaint, other than those as to the amount of unliquidated
damages, if not specifically denied shall have the effect of:
1. It shall be deemed admitted when not specifically denied.

Examples
(a) Failure to specifically deny the existence of a purchase order under oath, being a
material averment, the existence of said purchase order shall be deemed admitted.
(b) The failure of the defedant to deny the non payment of his financial obligation to
the plaintiff, being a material averment, shall be tantamount to an admission.

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 2. Allegations of usury in a complaint to recover usurious interest are deemed
admitted if not denied under oath.
Section 12. Affirmative defenses. — (a) A defendant shall raise his or her affirmative defenses
in his or her answer, which shall be limited to the reasons set forth under Section 5(b), Rule 6,
and the following grounds:

1. That the court has no jurisdiction over the person of the defending party;

2.That venue is improperly laid;

3. That the plaintiff has no legal capacity to sue;

4. That the pleading asserting the claim states no cause of action; and

5. That a condition precedent for filing the claim has not been complied with.

(b)Failure to raise the affirmative defences at the earliest opportunity shall

constitute a waiver thereof.

© The court shall MOTU PROPRIO resolves the above affirmative defences within
thirty (30) calendar days from the filing of the answer.

(d)As to the other affirmative defences under the first paragraph of Section 5 (b),
Rule 6, the court may conduct a SUMMARY HEARING within fifteen (15) calendar
days from the filing of the answer. Such affirmative defences shall be resolved by
the court within thirty (30) calendar days from the termination of the summary
hearing.

€. Affirmative defences, if denied, shall not be the subject of a motion for

reconsideration, or petition for certiorari, prohibition or mandamus, but may be
among the matters to be raised on appeal after a judgment on the merits.
Affirmative Defenses
Under Section 12, Rule 15 (Motions), Motion to hear affirmative defences is one of the
prohibited motions. Accordingly, under the present rules, affirmative defences raised by the
defendant in his Answer shall no longer be the subject of a “Motion to hear Affirmative
Defenses.”
Rather, as can be gleaned from the above- provision, the following affirmative defences
does NOT require a summary hearing, but must be MOTU PROPRIO resolved by the court
within thirty (30) calendar days from the filing of the anwer, to wit:

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 1. That the court has no jurisdiction over the person of the defending party;
2.That venue is improperly laid;
3. That the plaintiff has no legal capacity to sue;
4. That the pleading asserting the claim states no cause of action; and
5. That a condition precedent for filing the claim has not been complied with.
Recall that the four (4) grounds for Motion Dismiss as provided for under Secton 12,
Rule 15, such as:
(a) That the court has no jurisdiction over the subject matter,
(b) That there is another action pending between the same parties for the same cause, or
(c) That the action is barred by a prior judgment or
(d) By statute of limitations.
May either be raised either in a Motion to Dismiss or in the Answer in accord with the
provision of Section 1, Rule 9 of the 2019 Revised Rules on Civil Procedure. Should any of them
be asserted in the Answer, it may be considered as Affirmative Defenses, and the Court may
resolve them motu proprio under Section 12, par. c, Rule 8 of the Revised Rules on Civil
Procedure, and it does require a summary hearing.
The reason why the court may motu proprio, and not by way of summary hearing,
resolve the following affirmative defenses, for the reason that the court may simply consult the
pleadings or the pieces of evidence on the records.to wit:
1. That the court has no jurisdiction over the person of the defending party;
2. That venue is improperly laid;
3. That the plaintiff has no legal capacity to sue;
4. That the pleading asserting the claim states no cause of action; and
5. That a condition precedent for filing the claim has not been complied with.
6. That the court has no jurisdiction over the subject matter,
7. That there is another action pending between the same parties for the same cause, or
8. That the action is barred by a prior judgment or
9. By statute of limitations.
On the other hand, the following affirmative defences (by way of new matters) which
are raised by the defendant in his answer may be the subject of a summary hearing within
fifteen (15) calendar days from the filing of the answer, and shall be resolved by the court
within thirty (30) calendar days from the termination of the summary hearing, to wit (Sec 5 [b],
Rule 6). For the affirmative defenses by way of new matters such as Fraud, Payment, Release,
etc., the court not could resolve them by merely examining the pleadings or the evidence on
records, since they require the presentation of evidence.

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 “An affirmative defense is an allegation of a new matter which, while
hypothetically admitting the material allegations in the pleading of the claimant, would
nevertheless prevent or bar recovery by him OR HER.

The affirmative defenses include (1) FRAUD, (2) STATUTE OF LIMITATIONS, (3) RELEASE,
(4) PAYMENT, (5) ILLEGALITY, (6) STATUTE OF FRUADS, (7) ESTOPPEL, (8) FORMER
RECOVERY, (9) DISCHARGE IN BANKRUPCY, and (10) any other matter by way of confession
and avoidance.

The new Rules introduce additional “AFFIRMATIVE DEFENSES MAY ALSO INCLUDE
GROUNDS FOR THE DISMISSAL OF A COMPLAINT, SPECIFICALLY, THAT THE COURT HAS NO
JURISDICTION OVER THE SUBJECT MATTER, THAT THERE IS ANOTHER ACTION PENDING
BETWEEN THE SAME PARTIES FOR THE SAME CAUSE, OR THAT THE ACTION IS BARRED BY A
PRIOR JUDGMENT.”
Denial of affirmative defense, not subject to motion for reconsideration, petition for certiorari,
prohibition or madamus.
One worthy innovation introduced by the present Rules is that “Affirmative defences, if
denied, shall not be the subject of a motion for reconsideration, or petition for certiorari,
prohibition or mandamus, but may be among the matters to be raised on appeal after a
judgment on the merits.” Simply put, if the court denies Defendant’s affirmative defense motu
proprio or after a summary hearing, the order of denial is no longer the subject of a motion for
reconsideration, or petition for certiorari, prohibition or mandamus. Instead, the defendant
shall proceed with the trial, and in case of unfavourable decision, he can appeal the judgment
and raise as one of his assignment of errors the denieal of his affirmative defense.
On the other hand, if the court GRANTS the defendant’s affirmative defenses, which
would naturally result to the dismissal of the plaintiff’s complaint, the plaintiff may appeal the
order of the court dismissing the complaint of the plaintiff.
Section. 13. Striking out of pleading or matter contained therein. – Upon motion made by a
party before responding to a pleading or, if no responsive pleading is permitted by these
Rules, upon motion made by a party within twenty (20) CALENDAR days after the service of
the pleading upon him OR HER, or upon the court’s own initiative at any time, the court may
order any pleading to be stricken out or that any sham or false, redundant, immaterial,
impertinent, or scandalous matter be stricken out therefrom.
What is the rule in case of striking out of the pleading or matters contained therein?
Upon motion made by a party before responding to a pleading or, if no responsive
pleading is permitted by these Rules, upon motion made by a party within twenty (20) days

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after the service of the pleading upon him, or upon the court’s own initiative at any time, the
court:
1. May order any pleading to be stricken out or
2. That any sham or false, redundant, immaterial, impertinent, or scandalous matter be
stricken out therefrom.
When to file Motion to Strike?
1. Upon motion made by a party before responding to a pleading or,
2. If no responsive pleading is permitted by these Rules, upon motion made by a party
within twenty (20) CALENDAR days after the service of the pleading upon him OR HER,
or
3. Upon the court’s own initiative at any time, the court may order any pleading to be
stricken out or that any sham or false, redundant, immaterial, impertinent, or
scandalous matter be stricken out therefrom.
For example, in his complaint for sum of money, the plaintiff claims that the defendant
is a woman of ill-repute, or that the defendant has been charged for violation of RA No. 9165,
may be the subject of a motion to strike as being irrelevant and immaterial.

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 RULE 9
EFFECT OR FAILURE TO PLEAD
Section 1. Defenses and objections not pleaded. – Defenses and objections not pleaded either
in a MOTION TO DISMISS or in the ANSWER are deemed waived. However, when it appears
from the pleadings or the evidence on record that the court has no jurisdiction over the
subject matter, that there is another action pending between the same parties for the same
cause, or that the action is barred by a prior judgment or by statute of limitations, the court
shall dismiss the claim.
Consequences if defenses or objections are not pleaded?
1. Defenses and objections not pleaded either in a motion to dismiss or in the answer are
deemed waived.
The Rules are explicit that negative defenses, like absolute denial, partial denial or
disavowal of knowledge, and affirmative defenses such as payment, fraud or illegality of
contract as negative or affirmative defenses must be pleaded or raised in the Answer.
On the other hand, under the present rule, the following affirmative defenses may be
also raised in a Motion to Dismiss, to wit: (1) That the court has no jurisdiction over the subject
matter of the claim; (2) That there is another action pending between the same parties for the
same cause (lites pendencia); and (3) That the cause of action is barred by a prior judgment or
(4) By the Statute of Limitations. (Rule 15, Section 12 of the Rules of Civil Procedure)
The defendant has the option to raise any and all negative and affirmative defenses,
including those affirmative defenses which are grounds for a motion to dismiss in his Answer. In
other words, with respect to affirmative defenses which are also grounds for a motion to
dismiss, the defendant may invoke them in his answer instead of raising them in a motion to
dismiss. As discussed above, if the defendant asserts them as affirmative defenses, the court
may motu proprio resolve them within 30 calendar days from the filing of the answer.
The Rules further provide that when it appears from the pleadings or the evidence on
record that the court has no jurisdiction over the subject matter, that there is another action
pending between the same parties for the same cause, or that the action is barred by a prior
judgment or by statute of limitations, the court shall dismiss the claim. This is interpreted to
mean that the court shall MOTU PROPRIO dismiss the case when any of the said defenses or
objections are evident on the pleading or on the evidence on record.
Options of the Defense, explained
Upon valid receipt by the defendant of the summons, among others remedies, he may
file a motion to dismiss the complaint on the grpund of either (1) the court has no jurisdiction
over the subject matter or (2) litis pendencia or (3) res judicata or (4) prescription. Since the

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motion to dismiss is a litigated motion it must comply with the requirements of notice and
hearing. In the event that the court would deny the motion to dismiss, another option opens to
the defendant is to file an answer and incorporate as affirmative defense those ground which
he raised in his motion to dismiss like, the court has no jurisdiction over the subject matter,
which the court may resolve motu proprio with 30 calendar days from receipt of the answer.
The other option of the defendant upon valid receipt of summons is to file immediately
an answer and assert therein by way of affirmative defense any of the ground for a motion to
dismiss. In like situation, the court may motu proprio resolve the same within 30 days from
receipt of the answer.
What are the defenses and objections not deemed waived even if not raised?
Jurisprudence says that the following grounds are not deemed waived even if not
alleged in answer or a motion to dismiss, to wit:
1. The court has no jurisdiction over the subject matter;
2. That there is another action pending between the same parties for the cause cause;
3. That the action is barred by prior judgment; or
4. That the action is barred by statute of limitations.
Under the present rule, the only grounds that may be raised in a Motion to Dismiss are:
(1) That the court has no jurisdiction over the subject matter of the claim; (2) That there is
another action pending between the same parties for the same cause (lites pendencia); and (3)
That the cause of action is barred by a prior judgment or (4) By the Statute of Limitations. (Rule
15, Section 12 of the Rules of Civil Procedure)
Please take note that the ground of “Lack of jurisdiction over the subject matter” may
be raised at anytime during the trial and even for the first on appeal.
Exception to the rule that defenses and objections not pleaded deemed waived

The averments that are not deemed admitted by the failure to deny the same are the
immaterial allegations and incorrect conclusions drawn from the facts set out in the complaint.
(GSIS vs. Dinnah Villaviza, G.R. No. 180291, July 27, 2010)
Section 2. Compulsory counterclaim, or cross-claim, not set-up barred. – A compulsory
counterclaim or a cross claim, not set up shall be barred.
What is the effect if a compulsory counter-claim or cross-claim is not set up it is barred?
A compulsory counterclaim or a cross claim, not set up shall be barred, and the
compulsory counterclaim as well as a cross-claim are generally set up or asserted in the
defendant’s answer. Usually, the pleading is denominated as “Answer with Counterclaim” or
“Answer with Cross-claim.”

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 Generally, compulsory counterclaim and cross-claims are set up in the defending party’s
answer. But this is subject to some well-defined exceptions such as (1) counter-claim or cross-
claim arising after the filing of the answer which may be presented as a counterclaim or cross
claim by supplemental pleading before judgment; and (2) omitted counter-claim or cross claim,
which may be set up by way of amendment before judgment. (See: Sections 9 and 10, Rule 11
of the Rules of Court)
Section 3. Default, declaration of. – If the defending party fails to answer within the time
allowed therefor, the court shall, upon motion of the claiming party with notice to the
defending party, and proof of such failure, declare the defending party in default. Thereupon,
the court shall proceed to render judgment granting the claimant such relief as his OR HER
pleading may warrant, unless the court in its discretion requires the claimant to submit
evidence. Such reception of evidence may be delegated to the clerk of court.
Defending Parties
The phrase “defending party” is not only limited to the defendant with respect to the
plaintiff’s complaint but it also includes the plaintiff, who is considered as the “defending
party” in relation to the defendant’s counterclaim. He could also be the co-defendant, who is a
“defending party” pertaining to the defendant’s cross-claim, or the third party defendant in
regard to the third party complaint.
Ground for declaration of default
There is only one ground for the court to declare a defending party in default and that is
the non filing of answer within the reglementary period. Without stating the obvious, the
failure, therefore, of the defendant to file his/ her pre-trial brief or his failure to appear during
the pre-trial conference is not a ground to declare him in default.
Nature of default
Default is a procedural concept that occurs when the defending party fails to file his
answer within the reglementary period (BAR 1999). The failure of the defendant to appear at
the pre-trial while a cause for the court to order the plaintiff to present his evidence ex parte
and for the court to render judgment on the basis thereof, is not a ground for a default.

The defendant’s non-appearance in the hearing and the failure to adduce evidence does
not constitute default when an answer has been filed within the reglementary period. In other
word, it is error to declare a defendant in default where an answer has already been filed
(Cathay Pacific Airways v. Romillo, Jr., 141 SCRA 451)

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What is a default order?

A default order is issued by the court, on the plaintiff’s motion and at the start of the
proceedings, for failure of the defendant to file his responsive pleading seasonably.
What is a judgment by default?
A judgment by default is a judgment rendered by the court on the presentation of the
plaintiff’s evidence ex-parte after the defendant has been declared in default, and the award
shall not exceed the amount or be different from the kind of prayer that the plaintiff
complained as the facts and evidence so warrant.
REQUISITES BEFORE A PARTY MAY BE DECLARED IN DEFAULT (BAR 1999) or When can the
defendant be declared in default?
The following are the requisites before a party may be declared in default:
a. There must be a motion to declare the defending party in default filed by the
claiming party;
b. Summons has been validly and previously served upon him;
c. The defending party must have failed to file his answer within the reglementary
period or within the period fixed by the court;
d. There must be proof of the failure the answer;
e. The defending party must be notified of the motion to declare him in default;
f. There must be a hearing set for the motion to declare the defendant in default.

A motion to declare default is a litigated motion because under the present rule it
expressly requires that the motion of the claiming party should be with notice to the defending
party. The purpose of a notice of a motion is to avoid surprises on the opposite party and to
give him time to study and meet the arguments. The notice of a motion is required when the
party has the right to resist the relief sought by the motion and principles of natural justice
demand that his right be not affected without an opportunity to be heard.
No motu proprio declaration of default
The court has no authority to motu proprio declare the defendant in default. A motion
to declare the defending party must be filed by the claiming party before a declaration of
default is made by the court.
(a)Effect of order of default. – A party in default shall be entitled to notice of subsequent
proceedings but SHALL not to take part in the trial.

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Effect of a declaration/order of default.
1. The party declared in default loses his standing in court. The loss of such standing
prevents him from taking part in the trial. (Sec. 3 (a), Rule 9, Rules of Court).

2. While the defendant can no longer take part in the trial, he is nevertheless entitled to
notices of subsequent proceedings. It is submitted that he may participate in the trial,
not as a party but as a witness.

3. A declaration of default is not an admission of the truth or validity of the plaintiff’s

claims. Meaning, despite the fact that the defendant has been declared in default, and
the plaintiff is allowed to present his evidence ex party, the court may still find that the
plaintiff’s evidence is not enough to establish preponderance of evidence against the
defendant.

(b)Relief from order of default. – a party declared in default may at any time after notice
thereof and before judgment file a motion under oath to set aside the order of default upon
proper showing that his OR HER failure to answer was due to fraud, accident, mistake or
excusable negligence and that he OR SHE has a meritorious defense. In such case, the order of
default may be set aside on such terms and conditions as the judge may impose in the
interest of justice.

Remedies of a defending party declared in default (BAR 1998)

(a) Remedy after notice of order and before judgment. – A party declared in default may, at
any time after notice thereof and before judgment, file a motion under oath to set aside
the order of default and properly show that (a) the failure to answer was due to fraud,
accident, mistake, or excusable negligence (FAMEN), and that (b) he has a meritorious
defense, i.e., there must be an affidavit of merit (Sec. 3[b], Rule 9) This motion shall be
filed in the same court which issued the order declaring the defendant in default and in
the same case.

(b) Remedy after judgment and before judgment becomes final and executor. – If the
judgment has already been rendered when the defendant discovered the default, but
before the same has become final and executory, he may file a Motion for New Trial
under Rule 37. He may also appeal from the judgment as being contrary to the evidence
or the law.

The Motion for New Trial shall be filed in the same court which rendered the default
order, while the appeal shall be filed before the higher court. For example, it which was the RTC
which issued the default order the appeal should be with the Court of Appeals, but if what was
involved was pure question of law, then the remedy of the defendant is to appeal before the

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Supreme Court by way of a Petition for Review on Certiorari under Rule 45 of the Rules of
Court.

(c) Remedy after the judgment becomes final and executory. – The defendant may file a
Petition for Relief from Judgment under Rule 38. This Petition for Relief from Judgment
shall be filed in such court and in the same case praying that the judgment be set aside.

(d) When the defendant has however, been wrongly or improvidently declared in default,
as when a timely answer has been served and filed, the court can be considered to have
acted with grave abuse of discretion amounting to lack of jurisdiction, an act correctible
by a petition for certiorari under Rule 65.

Case
May a party declared in default may appeal from default judgment and file appellant’s or
appellee’s brief?
Answer. Yes. A party declared in default is not entitled to take part in the trial, but he may
appeal from the adverse judgment. (Royal Plains View Inc. v. Mejia, 12 Nov 2018, Reyes, J.).

©Effect of partial default. – When a pleading asserting a claim states a common cause of
action against several defending parties, some of whom answer and the others fail to do so,
the court shall try the case against all upon the answers thus filed and render judgment upon
the evidence presented.

Effect of partial default (BAR 2011)

When a pleading asserts a claim states a common cause of action against several
defending parties and some file and serve their answers but the others do not, the court shall
try the case against all the defending parties based on the answers filed and render judgment
upon the evidence presented where the claim states a common cause of action against them
(Sec. 3 ©, Rule 9, Rules of Court). In other words, the court cannot declare in default the non-
answering defendants but rather should try and hear the case against all the defendants
including the non-answering defendants based on the answer filed by the answering
defendant/s. Take note that this is true only when the plaintiffs’ claim states a common cause
of action against several defendants. If it is otherwise, the court may, upon motion, declare the
non-answering defendant/s in default.
(d)Extent of relief to be awarded. – a judgment rendered against a party in default shall not
exceed the amount or be different in kind from that prayed for nor award unliquidated
damages.

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Extent of relief in a judgment by default.
For clarity, if the complaint seeks to recover Php1 million but the evidence of the
plaintiff shows a right to recover Php1.5 million, the court has no authority to grant the latter
amount despite of the evidence which substantiated it. This is because under the Rules. “A
judgment rendered against a party in default shall not exceed the amount or be different in
kind from that prayed for nor award unliquidated damages. (Sec. [d], Rule 9).
(e)Where no default allowed. – If the defending party in an action for annulment or
declaration of marriage nullity of marriage or for legal separation fails to answer, the court
shall order the SOLICITOR GENERAL OR HIS OR HER DEPUTIZED PUBLIC PROSECUTOR,
investigate whether or not a collusion between the parties exists, and if there is no collusion,
to intervene for the State in order to see to it that the evidence submitted is not fabricated.

Cases where a declaration/order of default cannot be made.

1. Default is not allowed in the following actions:

(a) Annulment of marriage;

(b) Declaration of nullity of marriage, and
(c) Legal separation.

2. If no answer is filed in any of the above actions, the court shall order the prosecuting
attorney to investigate whether or not collusion exists between the parties. If there is
no collusion, the court shall order THE SOLICITOR GENERAL OR HIS OR HER DEPUTIZED
PUBLIC PROSECUTOR, to investigate whether or not a collusion between the parties
exists, and if there is no collusion, to intervene for the State in order to see to it that the
evidence submitted is not fabricated (Sec. 3 [e], Rule 9.)

What is clear here is that the court may direct the public prosecutor to conduct an
investigation on the existence of collusion between the petitioner and the respondent, only if
the latter fails to file his comment or answer to the petition. It follows therefore, that when the
respondent files his comment or answer, in the naturals he disputes or controverts the
evidence agisnst him, hence the court need not issue an order for the public prosecutor to
conduct an investigation on whether or not collusion exists between the parties.
Instances when the Court may Direct the Solicitor General or Public Prosecutor to conduct an
Investigation
1. When the respondent fails to file his comment or answer.
2. When the respondent files his answer but admitting the material allegations in the
petition.

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 3. When the respondent files his answer but fails to appear at the pre-trial conference and
trial of the case.
Sample Form of Collusion or Investigation Report
“Investigation Report
Pursuant to the Court’s order dated ________, directing the public prosecutor to
conduct an investigation on the absence or presence of the collusion, the undersigned Public
Prosecutor issued subpoena to the petitioner and respondent.
The investigation conducted on _____________ would show that there was no
agreement between the spouses nor they conspired to have the marriage annulled. The totality
of the evidence of the parties would also reveal that there was no collusion between them and
the evidence on record is genuine and not fabricated. ”
Failure to file response under the Rule of Procedure for Small Claims Cases
A motion to declare the defendant in default is a prohibited motion under Sec. 14 (h) of
the Rule of Procedure for Small Claims Cases. Should the defendant fail to file his response
within the required period, and likewise fail to appear at the date set for hearing, the court
shall render judgment on the same day as warranted by the facts (Sec. 12)
Should the defendant fail to file his response within the required period but appears at
the date set for hearing, the court shall ascertain what defense he has to offer and proceed to
hear, mediate or adjudicate the case on the same day as if a response has been filed.
Failure to file an Answer under the 1991 Revised Rules on Summary Procedure.
A motion to declare the defendant in default is a prohibited motion under Sec. 19 (h) of
the 1991 Revised Rules on Summary Procedure. (BAR 1988). Under the Rule on Summary
Procedure, the defendant who fails to file an answer within the reglementary period is not
supposed to be declared in default. Instead, the court motu proprio, or on motion of the
plaintiff, shall render judgment (not to declare the defendant in default) as may be warranted
by the facts alleged in the complaint and limited to what is prayed for. This represents a
principal distinction between default in regular civil proceedings and the rule on summary
procedure. (BAR 1988).
Action of the court after the declaration/order of default.
1. Under the rules, when a party is declared in default, the court may do either of two
things:

(a) To proceed to render judgment granting the claimant such relief as his pleading may
warrant; or

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 (b) To require the claimant to submit to his evidence ex parte. In this case, the court
may delegate the reception of evidence before the Branch Clerk of Court.

What is the remedy in case of denial of Motion to Lift Order of Default?

It is settled rule that in case of denial of the Motion to Lift Order of Default, the
defendant-movant may file a Motion for Reconsideration of the order of the denial of the
motion to lift order of default. In case of denial of the motion for reconsideration, then Petition
for Certiorari under Rule 65 is available on the ground of grave abuse of discretion amounting
to lack or in excess of jurisdiction since the order is interlocutory in character.
Current judicial trend on defaults.
The current judicial trend is to avoid defaults and thus, courts are enjoined to be liberal
in setting aside orders of default. Simply put, asmuchas possible, cases before the court shall be
resolved based on its merit and not on mere technicalities. (BAR 1999; BAR 2000; BAR 1983).
Sample form:
MOTION TO DECLARE DEFENDANT IN DEFAULT
COMES NOW, the plaintiff, through the undersigned counsel and unto this Honorable
Court, most avers:
1. That the summons in the above – entitled case was dule served on January 15, 2012
to the defendant;

2. That notwithstanding the lapse of more than fifteen (15) days, defendant failed to
file his answer or responsive pleadings.
WHEREFORE, premises considered, it is most respectfully prayed of this Honorable
Court that the defendant be declared in de fault, and the plaintiff be allowed to present his
evidence ex-parte.
Other reliefs and remedies as may be deemed just and equitable under the premises
are likewise prayed for.
MOTION TO LIFT ORDER OF DEFAULT

COMES NOW, the defendant, through the undersigned counsel and unto this
Honorable Court, most respectfully avers:
1. That the defendant received a copy of the Summons relative to the above-
entitled case;
2. That on February ____, 2012, plaintiff went to the house of the defendant
and informed him that he will no longer continue with the prosecution of the

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 case, and told him to just ignore the complaint he received, and not to
attend any hearing of the said case;
3. That through the representation of the plaintiff, defendant did not file any
answer anymore, and just ignore the notices he received, only to be
surprised that he wad declared in default upon receipt of the Order of the
court.
WHEREFORE, premises considered, it is most respectfully prayed of this
Honorable Court that the Order of Default be set aside/lifeted based on the
above reasons.
Other reliefs and remedies as may be deemed just and equitable under the
premises are likewise prayed for.
MOTION TO SET ASIDE JUDGMENT BY DEFAULT
COMES NOW, the defendant, through the undersigned counsel and unto this
Honorable Court, most respectfully moves:
1. That defendant received a copy of the Judgment by Default relative to the
above-entitled case;
2. That the said judgment by default was obtained by the plaintiff through
FRAUD, since the true facts of the case was that on February___, 2012,
plaintiff went to the house of the defendant and informed him that he will no
longer continue with the prosecution of the case, and just ignore the
complaint he received, and not to attend any hearing of the said case;
3. That through the representation of the plaintiff, defendant did not file any
answer anymore, and just ignored the notices he received, only to be
surprised that he was declared in default upon receipt of the Order of the
court, and subsequently received a Judgment by Default.

WHEREFORE, premises considered, it is most respectfully prayed of this

Honorable Court that the Judgment by Default be set aside and
reconsidered, and to re open the case, and to allow the defendant to present
his evidence based on the above reasons.

Other reliefs and remedies as may be deemed just and equitable under the
premises are likewise prayed for.

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Sample Form
AFFIDAVIT OF MERIT
REPUBLIC OF THE PHILIPPINES )
IN THE CITY OF ILOILO ) S.S.
I, Mr Juan Dela Cruz, of legal age, Filipino, married, and a resident of Barangay
San Roque, Jaro, Iloilo City, Philippines, after having duly sworn to in accordance with law
do hereby depose and say:
1. That I am the defendantin the above-entitled case;
2. That on February __, 2012, I received a copy of the Summons relative to the
above-entitled case;
3. That on February _____, 2012, plaintiff went to our house and informed me
that he will no longer continue with the prosecution of the case, and just to
ignore the complaint I will receive, and not to attend any hearing of the said
case;
4. That through the representation of the plaintiff, I did not file any answer
anymore, and just ignored the notices I received, only to be surprised that I
was declared in default upon receipt of the Order of the Court;
5. That said plaintiff is guilty of fraud and prevented me from defeinding myself
in thre above case, and to submit the appropriate pleadings and evidence;
6. That I have a good and meritorious defense against the plaintiff, and have
already paid all my obligations to him;
7. That I am executing this affidavit to attest to the truth of the foregoing
statements, and for whatever legal purpose it may serve.

In witness whereof, I have hereunto affixed my signature this _____ day of

February, 2012, in the City of Iloilo.

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 RULE 10
AMENDED AND SUPPLEMENTAL PLEADINGS
Section 1. – Amendments in general. – Pleadings may be amended by adding or striking out
an allegation or the name of any party, or by correcting a mistake in the name of a party or a
mistake or inadequate allegation or description in any other respect, so that the actual merits
of the controversy may speedily be determined, without regard to technicalities, and in the
most expeditious and inexpensive manner.
Amendment defined
It is an act of adding, changing, substituting, or omitting something from a pleading, or
instrument. It is also the correction of an error committed in any process, pleading, or
proceedings in law or in equity, and which is done either as of course, or by the consent of
parties, or upon motion to the court in which the proceeding is pending.
Purpose of Rule allowing amendments

Amendments to pleading are generally allowed and favoured in furtherance of justice in

order that every case may be determined on its real facts and in order to speed up the trial of
cases or to prevent circuitry of action and prevent unnecessary expenses (PNB v. Court of
Appeals, No.L – 45770, March 30, 1988). They are allowed to be able to speedily determine the
actual merits of the controversy and inexpensive manner.
The court should be liberal in allowing amendments to pleadings to avoid multiplicity of
suits and in order that the real controversies between the parties are presented, their rights
determined and the case decided on the merits without unnecessary delay (Refugia v. Alejo,
334 SCRA 230)
How is amendment being done?
Pleadings may be amended by:
(a) Adding an allegation of a party,

In the case of unlawful detainer, the plaintiff fails to allege that demands have been
made in his complaint, he may amend said complaint by adding an allegation that demands
upon the defendant have been made.
(b) Adding the name of a party;
Through inadvertence, the plaintiff fails to mention the name of the other defendant, in
this case he may amend his complaint by adding the name of the omitted defendant.

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 (c) Striking out an allegation of a party,
In the civil case of sum of money, the plaintiff alleges that the defendant is a notorious
trouble maker in his barangay, which allegation is irrelevant or immaterial, in this case, the
plaintiff may amend his pleading by striking out said irrelevant or immaterial assertion in the
complaint.
(d) Striking out the name of a party,
For example, in the civil case for breach of contract, the plaintiff wrongfully includes the
name of Pedro Cruz as one of the defendants, in this case, he may amend his complaint by
striking out the name of Pedro Cruz in the complaint.
(e) Correcting a mistake in the name of a party, or
(f) Correcting a mistaken or inadequate allegation or description in any other respect.
Kinds of amendment:
1. Formal amendment
2. Substantial amendment
3. Amendment as a matter of right
4. Amendment as a matter of discretion
5. Amendment to confer jurisdiction; and
6. Amendment to conform to evidence.

Prescription of action tolled upon the submission of the amended pleading.

The settled rule is that the filing of an amended pleading does not retroact to the date
of the filing of the original; hence, the statute of limitation runs until the submission of the
amendment. It is true that, as an exception, this Court has held that an amendment which
merely supplements and amplifies facts originally alleged in the complaint relates back to the
date of the commencement of the action and is not barred by the statue of limitations which
expired after the service of the original complaint. The exception, however, would not apply to
the party impleaded for the first time in the amended complaint. (Wallem, Philippines Shipping
Inc., vs. S.R. Farms Inc., G.R. No. 161849, July 9, 2010.) As to him, the prescription shall
commence to run only by the file of the amended complaint impleading him as an additional
defendant.
An amended complaint that changes the plaintiff’s cause of action is technically a new
complaint, consequently, the action is deemed filed on the date of the filing of the amended
complaint not on the date of the filing of the original version. Thus, the statute of limitation
resumes its run until it is arrested by the filing of the amended pleading. (Spouses Vicente
Dionisio and Anita Dionisio vs. Wilfredo Linsangan, G.R. No. 178159, March 2, 2011).

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 It has been held that amendments in pleadings do not necessarily expunge those
previously filed; That amendments made, more so when ordered by the court, relate back to
the date of the original complaint, and the claim asserted in the amended pleading arose out of
the same conduct, transaction or occurrence, and that amendment presupposes the existence
of something to be amended, and therefore, the tolling of the period should relate back to the
filing of the pleading sought to be amended (Philippines Independent Church vs. Mateo, L –
14793, April 28, 1961)
In the case of Pangasinan Transportation Co. vs. Philippine Farming Co, the Supreme
Court held that where the original complaint states a cause of action but does it imperfectly
and afterwards an amended complaint is filed correcting the defect, the plea of prescription
will relate to the time of the filing of the original complaint.
“It follows that when the amended complaint does not introduce the new issues, causes
of action, or demands, the suit is deemed to have commenced on the date the original
complaint was filed, not on the date of the filing of the amended complaint. In other words, for
demands already included in the original complaint, the suit is deemed to have commenced
upon the filing of such original complaint. In short, for purposes of determining the
commencement of a suit, the original complaint is deemed abandoned and superseded by the
amended complaint only if the amended complaint introduces a new or different cause of
action or demand” (Philip Morris Philippines Manufacturing, Inc. vs. Hon. Winlove Dumayas,
CA-G.R. SP No. 93353)
Section. 2. Amendments as a matter of right. – A party may amend his pleading once as
matter of right at any time before a responsive pleading is served or, in the case of a reply at
any time within ten (10) CALENDAR days after it is served.
How can an amendment as a matter of right be made?
A party may amend his pleading once as matter of right at any time
1. Before a responsive pleading is served or,
2. In the case of a reply at any time within ten (10) CALENDAR days after it is served.

Recall that a reply is a response of the plaintiff to the defendant’s answer. If the plaintiff
wants to amend his reply, he can do so within ten (10) calendars from the time he served it to
the defendant.
Amendment as a matter of right
Amendent is a matter of right when made at any time before a responsive pleading is
served or, in case of a reply, at any time within ten (10) CALENDAR days after it is served.
Formal and substantial amendments to a pleading may be made at anytime before a responsive
pleading has been filed. Such amendment is a matter of right. Thereafter, and during the trial,

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amendments may only be done with the permission of the court (Ng v. Soco, G.R. No. 149132,
May 9, 2002)
A plaintiff has the right to amend his complaint ONCE at any time before a responsive
pleading is served by the other party or in case of a reply to which there is no responsive
pleading, at any time within ten (10) CALENDAR days after it is served. Thus, before an answer
is served on the plaintiff, the latter may amend his complaint as a matter of right, whether it
involves formal or substantial amendment. The defendant may also amend his ANSWER, also as
a matter of right, before a reply is served upon him.
The right to amend a pleading as a matter of right may, according to the Rules, be
exercised only ONCE (Sec. 2, Rule 10). Hence, even if no responsive pleading has yet been
served, if the amendment is subsequent to a previous amendment made as a matter of right,
the subsequent amendment must be with leave of court.
Before the service of a responsive pleading, a party has the absolute right to amend his
pleading, regardless of whether a new cause of action or change in theory is introduced. Since a
motion to dismiss is not a responsive pleading, a plaintiff may file an amended complaint even
after the original complaint was ordered dismissed, provided the order of dismissal is not yet
final (Bautista v. Maya-Maya Cottages, Inc., 476 SCRA 416).
Since a motion is not a pleading, the filing of a motion to dismiss by the defending party
will not prevent the claiming party from exercising his right to amend his pleading before a
responsive pleading has been filed (Soledad v. Mamangun, 8 SCRA 110).
Where some but not all of the defendants have answered, plaintiffs may amend their
complaint once as a matter of right in respect to claims asserted soley against the non-
answering defendants but not as to claims asserted against the other defendants (Siasoco v.
Court of Appeals, 303 SCRA 186).
BAR 1979
“F” sues his brother, “G” to recover ownership of a parcel of land but the latter, within
the period for pleading, moves to dismiss based on two grounds, to wit: first, the suit being
between members of the same family, the complaint fails to aver that earnest efforts towards a
compromise have been made, and second, the action is barred by extinctive prescription.
Pending resolution of the motion to dismiss, “F” serves notice to take “G’s” deposition,
which, the latter opposes, claiming that at this stage of the proceedings no deposition can be
obtained without leave of court.
Meanwhile, obviously to meet “G,”s objections in the motion to dismiss still unresolved,
“F” files an amended complaint seeking this time the partition of the land between him and his
brother and alleging that earnest efforts at amicable settlement have been exerted and have
failed.

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 If you were the trial judge, would you admit “F”s amended complaint and deny “G”s
motion to dismiss despite the latter’s contention that the amendment would result in a radical
change of the cause of action or theory of the case? Reason.
Suggested answer
If I were the judge, I would admit the amended complaint. The amendment is a matter
of right. Under the Rules, a party may amend his pleading once as a matter of right at any time
before a responsive pleading is served. Since motion is not a pleading, the filing of a motion to
dismiss by the defending party will not prevent the claiming party from exercising his right to
amend his pleading before a responsive pleading has been filed.
What is the remedy in case of denial of the motion to amend as a matter of right?
The proper remedy in case of denial of the motion to amend as a matter of right is to
file a petition for mandamus under Sec. 3, Rule 65, since it is a ministerial duty on the part of
the court to allow amendment on the pleading before the filing of a responsive pleading.

Applicability of mandamus
The court would be in error if it refuses to admit an amended pleading when its exercise
is a matter of right. This error is correctible by mandamus because the trial court’s duty to
admit an amended complaint made as a matter of right is purely ministerial (Alpine Lending
Investors v. Corpuz, (508 SCRA 45)
A motion to dismiss is not a responsive pleading (BAR 1979; BAR 2005)
1. If a motion to dismiss is filed, an amendment to the complaint would still be a
matter of right during the pendency of the motion to dismiss. Such a motion is not a
responsive pleading and its filing does not preclude the exercise of the plaintiff’s
right to amend his complaint.

2. Even if the motion to dismiss is granted by the court, the plaintiff may still amend his
complaint as a matter of right before the dismissal becomes final as long as no
answer has yet been served. In the words of the Court, the plaintiff “may file an
amended complaint even after the original complaint was ordered dismissed,
provided that the order of dismissal is not yet final.”

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Sample form:
MOTION TO AMEND COMPLAINT
COMES NOW, the plaintiff, through the undersigned counsel and unto this Honorable
Court, most avers:
1. That through inadvertence, plaintiff failed to include in his Complaint the allegations of
damages, attorney’s fees and interest based on the agreement between him and the
defendant;

2. That, to the end that the real matter in dispute and all matters in the action in dispute
between the parties may, as far as possible, be completely determined in this
proceeding, it is necessary and expedient that plaintiff be allowed to amend his
Complaint, including therein the aforementioned allegations.

WHEREFORE, premises considered, it is most respectfully prayed of this Honorable

Court that the amended Complaint attached herewith as Annex “A” of this motion be
admitted.
Other relief and remedies as may be deemed just and equitable under the premises are
likewise prayed for.
Section. 3. Amendments by leave of court. – Except as provided in the next preceding Section,
substantial amendments may be made only upon leave of court. But such leave SHALL be
refused if it appears to the court the motion was made with intent to delay OR CONFER
JURISDICTION ON THE COURT, OR THE PLEADING STATED NO CAUSE OF ACTION FROM THE
BEGINNING WHICH COULD BE AMENDED. Orders of the court upon the matters provided in
this Section shall be made upon motion filed in court, and after notice to the adverse party,
and an opportunity to be heard.
Amendment by Leave of Court (BAR 1994; BAR 1986)
Leave of Court is required for an amendment made after service of a responsive
pleading, like an answer. This rule assumes more force and effect especially when the
amendment is substantial, such as amendment which changes the cause of action of the action,
like an action for “Specific Performance and Damages” to “Quieting of Title with Damages” or
an action for “Recovery of Ownership” to “Rescission of Contract and Damages.”
Simply put, leave of court is required before an amendment is to be made: (a) if the
amendment is substantial, and (b) a responsive pleading has already been served. Leave of
court is likewise required even if the amendment is made before a responsive pleading has
been served if it is an amendment subsequent to that amendment made as a matter of right.

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This is because the right to amend a pleading under Sec. 2 of Rule 10 may be exercised only
“once.”
The plaintiff, for example, cannot, after defendant has filed his answer, amend his
complaint by changing his cause of action or adding a new one without leave of court.
The general rule on substantial amendments is embodied in Sec. 3, Rule 10. The Rule
provides that “substantial amendment may be made only upon leave of court.” This general
rule is however, by the very tenor of Sec. 3 of Rule 10, subject to Sec. 2 of Rule 10 which in turn
governs an amendment as a matter of right.
The clear import of Sec. 3, Rule 10 is that under the old 1997 Rules, as amended by the
2019 Rules of Civil Procedure, is that an amendment may now be allowed by the court even if it
substantially alters the cause of action or defense. Hence, it was ruled that this rule should only
be true when despite a substantial change or alteration in the cause of action or defense, the
amendments sought to be made shall serve the higher interest of substantial justice, and
prevent delay and equally promote the laudable objective of the rules which is to secure a “just,
speedy and inexpensive disposition of every action and proceeding.”
After a responsive pleading has been filed, an amendment may result in a substantial
alteration of the defense. Such an amendment does not only prejudice the rights of the
defendant but also delays the action. If this happens, the amendment may be rejected,
otherwise it may be allowed. On the other hand, where no responsive pleading has yet been
filed, there are no defenses which can be altered by an amendment (Siasoco v. Court of
Appeals, 303 SCRA 186)
In determining whether a different cause of action is introduced by amendments to the
complaint, what must be ascertained is whether the defendants shall be required to answer for
a liability or legal obligation wholly different from that stated in the original complaint. An
amendment will not be considered as stating a new cause of action if the fact alleged in the
amended complaint shows substantially the same wrong with respect to the same matter but is
more fully and differently stated, or where averments which were implied are made express, or
the subject of the controversy or liability sought to be enforced remains the same (Que v. Court
of Appeals, 33 SCRA 505)
Case:
The original complaint filed by plaintiff against the insurer sought the recovery of “the amount
due under the insurance policy” plus ₱1 million as exemplary damages and ₱1 million as
attorney’s fees. The amended complaint changed “the amount due under the insurance policy”
to “₱300 million as insurance claim.” The original complaint was filed within one year from the
denial of the insurance claim, but the amended complaint was filed thereafter. Has the
complaint prescribed?

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Answer
Yes. The tolling of the prescriptive period is reckoned from filing of the amended not original
complaint where the amended complaint introduced new demands that were not specified and
averred expressly in the original complaint. Here, the one-year prescriptive period under Sec.
63 of the Insurance Code had already expired at the time of the filing of the amended
complaint. (Alpha Plus Int’l Enterprises v. Phil. Charter Insurance Corp., 10 Feb 2021, Hernando)
Under the present rules, substantial amendment shall be refused leave of court, in the
following cases:
1. If it appears to the court that the motion was made with intent to delay the
proceedings;
2. To confer jurisdiction on the court;
3. The pleading stated no cause of action from the beginning which could be amended.
No amendment where no cause of action exists

May a complaint that lacks a cause of action at the time it was filed be cured by the
accrual of a cause of action during the pendency of the case?
The curing effect under Section 5 is applicable only if a cause of action in fact exists at
the time the complaint is filed, but the complaint is defective for failure to allege the essential
facts. It thus follows that a complaint whose cause of action has not yet accrued cannot be
cured or remedied by an amended or supplemental pleading alleging the existence or accrual of
a cause of action while the cases is pending. Such an action is prematurely brought and is,
therefore, a groundless suit, which should be dismissed by the court upon proper motion
seasonably filed by the defendant. The underlying reason for this rule is that a person should
not be summoned before the public tribunals to answer for complaints which are immature.
The issue raised above has been clearly answered by the amendment introduced in
Section 3, Rule 10, which in substance provides that “xxxx But such leave shall be refused if it
appears to the court that the motion was made xxx or the pleading stated no cause of action
from the beginning which could be amended.” This amendment has been interpreted to mean
that a responsive pleading has already been filed, however, if no responsive pleading has yet
been filed, the amendment is still a matter of right, hence the complaint may be amended
without leave of court.
For example, a civil case for Unlawful Detainer was filed against the defendant before
the first level court. However, the complaint failed to allege the date when demand to vacate
was made, which is essential in determining whether the action is one of unlawful detainer or
recovery of possession, hence the subject civil case is susceptible to a motion to dismiss for
failure to state a cause of action. Could the plaintiff still amend his complaint to state a cause of
action as amatter of right or with leave of court?

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 Based on Section 2, Rule 10 of the 2019 Revised Rules of Civil Procedure, since no
responsive pleading has yet been filed, then the plaintiff may amend his complaint as a matter
of right, without leave of court. However, if a responsive pleading has been filed like an answer,
leave of court is needed since the amendment is in the nature of a substantial amendment, and
in the light of Section 3, Rule 10, the court shall refuse to grant the motion to amend.
Amendment to correct a jurisdictional defect before a responsive pleading is served.
A fair reading of jurisprudence recognizes the right of a pleader to amend his complaint
before a responsive pleading is served even if its effect is to correct a jurisdictional defect. The
argument that the court cannot allow such type of amendment since the court must first
possess jurisdiction over the subject matter of the complaint before it can act on any
amendment has no application upon an amendment that is made as matter of right.
Amendment to correct a jurisdictional defect after a responsive pleading is served.
An amendment of the complaint to correct a jurisdictional error cannot be validly done
after a responsive pleading is served. The amendment this time would require leave of court, a
matter which requires the exercise of sound judicial discretion. The exercise of this discretion
requires the performance of a positive act by the court. If it grants the amendment, it would be
acting on a complaint over which it has no jurisdiction. Its action would be one performed
without jurisdiction. However, it is now explicit under the 2019 Rules of Civil Procedure that
leave of court shall be refused if it appears to the court that the amendment is to “confer
jurisdiction on the court.”
Example:
Assume that a complaint for php1, 950, 000. 00, an amount cognizable by a MTC, was
instead filed before the Regional Trial Court and it should be denied. Since the RTC had no
jurisdiction over the complaint, it had no authority to act on the same like allowing amendment
to the complaint. A court must first have jurisdiction over a case before it can validly act on the
same. The only authority which the court has under the circumstances, is to dismiss the
complaint.
Assume however, that the amendment was made before the defendant has served his
answer. Should the amendment be allowed on the theory that the amendment to be made is
one which is a matter of right?
Cases: (a) Rosario v. Carandang, 96 Phil. 845 (1955) (b) Campos Rueda Corporation vs. Bautista,
6 SCRA 240 (1962); (c) Gaspar vs. Dorado, 15 SCRA 331 (1965). “The Supreme Court ruled that
the amendment to the complaint could not be allowed so as to confer jurisdiction upon the
court, since the court must first acquire jurisdiction over the case in order to act validly
therein.”

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Cases of Soledad vs. Mamangun, 8 SCRA 110 (1963) and Gumabay vs. Baralin, 77 SCRA 258
(1977). “The court also ruled that there was no need for the court to allow the admission of the
amended complaint since the plaintiff’s right to do so amend his pleading cannot be denied.”
BAR 1994
Michelle sued Juliet for reinvindication for the recovery of land. After the hearing but
previous to the rendition of judgment, Michelle amended her complaint making the principal
action one for rescission of contract. Juliet objected.
If you were the judge, would you allow the amendment?
Suggested answer
If I were the judge, I would not allow the amendment. Although there is a similarity in
purpose between the original action and the action as amended, the grounds relied upon for
such causes of action are not the same. The reinvindicatory action is usually availed of when the
plaintiff has been dispossessed of the land and where there is also at the same time the
material issue of ownership over the property. Rescisison, on the other hand, does not
necessarily involve an illegal dispossession but may be based on grounds provided either under
Art. 1191 or Art 1380 of the Civil Code of the Philippines. Since the defendant may be required
to answer for a liability or legal obligation wholly different from that stated in the original
complaint, there could, therefore, be a substantial change in the cause of action. It must
likewise be added that the amendments, if allowed, would have the effect of delaying the
proceedings because there appears no justification for amending the complaint after and not
before the hearing. When it appears that the amendment would have the effect of delaying the
proceedings or is made with the intent to delay, the amendment may be refused.
What is the remedy in case of denial of the motion for leave to amend?
The proper remedy in case of denial of the motion for leave to file an amendment to a
pleading is Petition for Certiorari under Rule 65 of the Rules of Court, since the grant of the
same is merely discretionary and for being interlocutory which is not appealable under Section
1 (b) of rule 41, and it is tainted with grave abuse of discretion.
It is also suggested that in this particular case, the complainant would proceed with the
trial of the original case, and in the event of unfavourable decision, he would appeal the
judgment and raised as one of his assignment of errors the denial of his motion to amend
complaint.
Section. 4. Formal amendments. – A defect in the designation of the parties and other clearly
clerical or typographical errors may be summarily corrected by the court at ANY STAGE of the
action, at its initiative or on motion, provide no prejudice is caused thereby to the adverse
party.

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What are the subjects of a formal amendment?
A formal amendment can be made in the pleading involving:
1. A defect in the designation of the parties and

For example, Armand was designated in the complaint as defendant when he was
actually the plaintiff. Or Leni was named as the owner of the subject parcel of land
but in truth and in fact he was just a lessee.

2. Other clearly clerical or typographical errors

For example, the name of the plaintiff was misspelled, or the word “demand” was
wrongfully written, or the place where the plaintiff was a resident of was misspelled.
How will formal amendment be made?
Formal amendment may be summarily corrected by the court at any stage of the action
by
!. At its initiative (motu proprio) or
2. On motion, provide no prejudice is caused thereby to the adverse party.
In other words, formal amendment such as amendments to correct a defect in the
designation of the parties and clearly clerical or typographical errors may be summarily
corrected by the court at any stage of the action, either on its own initiative or on motion by a
party provided prejudice is not caused to the adverse party.
Sample of Form: Motion for Leave of Court to Amend Complaint
MOTION FOR LEAVE OF COURT TO AMEND COMPLAINT
COMES NOW, the plaintiff, through the undersigned counsel and into this Honorable
Court, most respectfully avers:
1. That through inadvertence, plaintiff failed to include in his Complaint the allegations
of damages, attorney’s fees and interest based on the agreement between him and
the defendant;

2. That a copy of the complaint was already served to the defendant, and the latter has
already filed his answer;

3. That, to the end that the real matter in dispute and all matters in the action in
dispute between the parties may, as far as possible, be completely determined in
this proceeding, it is necessary and expedient that plaintiff with proper leave from

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 this Court that he be allowed to amend his Complaint, including therein the
aforementioned allegations. Copy of the Amended Complaint is hereto attached as
Annex “A” hereof.

WHEREFORE, premises considered, with prior leave it is most respectfully prayed of

this Honorable Court that the amended complaint attached herewith as Annex “A”
of this motion be admitted.
Other relief and remedies as may be deemed just and equitable under the premises
are likewise prayed for.
Section. 5. NO amendment to conform to or authorize presentation of evidence.-- When the
issues not raised by the pleadings are tried with the express or implied consent of the parties,
they shall be treated in all respect as if they had been raised in the pleadings. NO
AMENDMENT OF SUCH PLEADINGS DEEMED AMENDED IS NECESSARY TO CAUSE TO
CONFORM TO THE EVIDENCE.
No amendment to conform or authorize the presentation of evidence available?
When the issues not raised by the pleadings are tried with the express or implied
consent of the parties, they shall be treated in all respect as if they had been raised in the
pleadings.
The present rules, however, provide that “when issues not raised by the pleadings are
tried with the express or implied consent of the parties, they shall be treated as if they had
been raised in the pleadings. No amendment of such pleadings deemed amended is necessary
to cause them to conform to the evidence. It simply means that “when issues not raised by the
pleadings are tried with the express or implied consent of the parties, there is an IMPLIED
AMENDMENT of the pleadings with respect to those issues not raised in the pleadings but not
objected by the parties. Since the pleadings are deemed amended in relation to those issues
not raised but not objected to by the parties, there is NO need to file a motion to amend the
pleadings in order to conform to evidence, as was the practice before the amendatory rules.
Examples:
1. In the civil case for Breach of Contract of Sale, for non payment of the contract price,
the plaintiff presents evidence to show that fraud attended the consummation of the
contract of sale, which evidence is not raised in the pleadings. If the defendant does not
object to its presentation, then the issue of fraud is being tried with the express or
implied consent of the parties. Under the above rules, there is an implied amendment of
the pleading with respect to the issue of fraud not raised in the pleading but not
objected to by the parties. Hence, there is no need to amend the pleadings to conform
to evidence.

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 2. In the civil case for Recovery of Possession with Damages, the parties raised the issue of
ownership which was not raised in the pleadings. Since the parties did not object to its
presentation, there is an express or implied consent of the parties, which would result
to an implied amendment of the pleadings with respect to the issue of ownership.
Hence, there is no need to amend the pleadings to conform to evidence.
What is the course of action of the court if evidence is objected on the ground that it is not
within the issue in the pleading?
If evidence is objected to at the trial on the ground that it is not within the issues made
by the pleadings, the court may allow the pleadings to be amended so with liberality if the
presentation of the merits of the action and the ends of substantial justice will be subserved
thereby. The court may grant a continuance to enable the amendment to be made.
Amendment to conform to the evidence or to authorize presentation of evidence.
Common reason dictates that a party cannot introduce evidence on a matter not raised
as an issue in the pleadings. The evidence will certainly be objected to as irrelevant. Such
objection will more likely be sustained by the court. But when issues not raised in the pleadings
are tried with either the express or implied consent of the parties, such as when no objection is
made by either, such issues not raised in the pleadings shall be treated in all respects as if they
had been raised in the pleadings.
“The general rule is allegata et probate – a judgment must conform to the pleadings and
the theory of the action under which the case was tried.” But a court may also rule and render
judgment on the basis of the evidence before it, even though the relevant pleading has not
been previously amended, so long as no surprise or prejudice to the adverse party is thereby
caused (Vlason Enterprises Corporation v. Court of Appeals, 310 SCRA 26)
Evidence not raised in the pleadings is objected to
In case an evidence is presented on a matter not in issue and said evidence was
objected to, the proponent of the evidence may move for the amendment of the pleadings in
order that said pleadings will conform to the evidence. The motion may be made anytime, even
after judgment. The court may allow the amendment, the same being addressed to its
discretion to be exercised liberally. Allowing the amendment is subject to the condition that the
presentation of the merits of the action and the ends of substantial justice will be served
thereby. The court may grant a continuance to enable the amendment to be made. (This has
been amended by the present Rules)
Under Sec. 5 of Rule 10, “when issues not raised by the pleadings are tried with the
express or implied consent of the parties, they shall be treated in all respects as if they had
been raised in the pleadings.”

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 Sec. 5 of Rule 10 envisions TWO situations: The FIRST is when the evidence is introduced
on an issue not alleged in the pleadings and no objection was interposed by the other party, in
such case, there is an implied amendment of the pleading with respect to such issue. The
SECOND is when evidence is offered on an issue not raised in the pleadings but an OBJECTION
was interjected.
The rule in the SECOND scenario is that the court may nevertheless admit the evidence
where the objecting party fails to show that the admission of the evidence would prejudice him
in his defense. The court must, however, must give him a continuance to enable him to meet
the new situation.
BAR 1992
A complaint was filed by the counsel for Superior Sales (an entity without a juridical
personality) against Mr. Garcia on a money claim for goods delivered. Mr. Garcia did not file a
motion to dismiss. Eventually, trial was held and his liability was established through several
invoices, each of which uniformly showed on its face that Mr. Tan is the Proprietor of Superior
sales. After Superior Sales had rested its case, Mr. Garcia filed a motion to dismiss on the
ground that, since there is actually no person properly suing as plaintiff, no relief can be
granted by the court. On the other hand, the counsel for Superior Sales filed a motion to amend
the complaint to make it conform to the evidence, that the real party plaintiff is Mr. Tan. The
court denied said motion on the ground that it was filed too late and instead, dismissed the
case. Did the Court act correctly?
Suggested Answer
The court did not act correctly in denying the motion to amend the complaint and in
dismissing the case. Although there was a defect in the designation of the plaintiff, Superior
Sales because it had no juridical personality to sue, this defect was cured by the failure of the
defendant to object to the evidence that Mr. Tan is the proprietor of the business. This matter
of Mr. Tan being the proprietor was tried with the consent of the parties and should be treated
as if it had been already raised in the pleadings. By implied consent of the parties, Mr. Tan is the
real party interest as the plaintiff in accordance with the evidence. There is therefore, no legal
basis for the contention of Mr. Garcia that there is actually no person suing as plaintiff. An
amendment to the complaint to conform to the evidence is proper under the facts of the case
(Sec. 5, Rule 10, Rules of Court).
When summons not required after complaint is amended
Although the original pleading is deemed superseded by the pleading that amend it, it
does not ipso facto follow that service of new summons is required. Where the defendants
have already appeared before the trial court by virtue of a summons in the original complaint,
the amended complaint may be served upon them without need of another summons, even if

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new causes of action alleged. A court’s jurisdiction continues until the case is finally terminated
once it is acquired.
Conversely, when the defendants have not yet appeared in court, new summons on the
amended complaint must be served on them. For example, the plaintiff files a civil case for Sum
of Money against the defendant, and before a summons can be served upon him, the plaintiff
amends his complaint to one of Specific Performance with Damages. In this particular case, a
new summons shall be served upon the defendant based on the amended complaint.
Section. 6. Supplemental pleading. – Upon motion of a party the court may, upon reasonable
notice and upon such terms as are just, permit him to serve a supplementary pleading setting
forth TRANSACTION, OCCURENCES or EVENTS which have happened since the date of the
pleading sought to be supplemented. The adverse party may plead thereto within ten (10)
CALENDAR days from notice of the order admitting the supplemental pleading.
Supplemental Pleading
A supplemental pleading is one which sets forth transactions, occurrences, or events
which have happened since the date of the pleading sought to be supplemented.
The filing of a supplemental pleading always requires leave of court which may allow the
pleading only upon such terms as are just. This leave is sought by filing of a motion and with
notice to all parties. When the cause of action stated in the supplementary complaint is
different from the cause of action mentioned in the original complaint, the court should not
admit the supplemental complaint (Asset Privatization Trust v. Court of Appeals, G.R. No.
81024, February 3, 2000). The motion states: “Motion for Leave to File Supplemental
Pleadings.”
When can a supplemental pleading be filed?
Upon motion of a party the court may, upon reasonable notice and upon such terms as
are just, permit him to serve a supplemental pleading setting forth the following:

a) Transactions;
b) Occurrences; or
c) Events which have happened since the date of the pleading sought to be
supplemented.

Office of a supplemental pleading.

As a general rule, leave will be granted to a party who desires to file a supplemental
pleading that alleges any material fact which happened or came within the party’s knowledge
after the original pleading was filed, such being the office of a supplemental pleading.

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Cause of action in supplemental pleadings:
When the cause of action in the supplemental complaint is different from the cause of
action mentioned in the original complaint, the court should not admit the supplemental
complaint (Asset Privatization Trust v. CA, 324 SCRA 533).
As its very name denotes, a supplemental pleading only serves to bolster or add
something to the primary pleading. A supplemental pleading exists side by side with the
original. It does not replace that which it supplements. Moreover, a supplemental pleading
assumes that the original is to stand and that the issues joined with the original pleading
remained an issue to be tried in the action. It is but a continuation of the complaint. Its usual
office is to set up new facts which justify, enlarge or change the kind of relief with respect to
the same subject matter as the controversy referred to in the original complaint. (Chan v. Chan,
569 SCRA 106).
Period to file a responsive pleading to a supplemental pleading?
The adverse party may plead thereto within ten (10) CALENDAR days from notice of the
order admitting the supplemental pleading. In regard to period of time to file a responsive
pleading, like an answer, there seems to be a conflict in relation to Section 7, Rule 11 2019
Revised Rules of Civil Procedure, wherein the period of time to file an answer to supplemental
complaint is twenty (20) calendar days from notice of the order admitting the supplemental
complaint. In order to harmonize the two conflicting Rules, it is suggested that Section 6, Rule
10, wherein the time to file a responsinve pleading in 10 calendar days from notice of the order
admitting the pleading, applies only to supplemental pleadings other than supplemental
complaint.
For instance, if the subject is a supplemental counterclaim, supplemental reply or
supplemental cross-claim, then adverse party has to file his answer within ten (10) calendar
days from the time he receives a copy of the order admitting the same. But if the subject is a
supplemental complaint, pursuant to Section 7, Rule 11 of the Rules of Civil Procedure, the
defendant has to file his answer within twenty (20) calendar days from the time he is in receipt
of the order of the court admitting said supplemental complaint, as it provides, thus:
“Rule 11, Sec.7. Answer to supplemental complaint. – A supplemental complaint may be
answered within twenty (20) calendar days from notice of the order admitting the same, unless
a different period is fixed by the court. The answer to the complaint shall serve as the answer to
the supplemental complaint if no new or supplemental answer is filed.”
For instance, upon receipt of the summons and the attached complaint of the plaintiff
by the defendant, the latter files an answer with counterclaim, and upon receipt of the
defendant’s answer with counterclaim, the plaintiff files his reply thereto. The defendant
realizes that he needs to incorporate certain matters in his counterclaim, hence he files a
Motion to Admit Supplemental Counterclaim, attached therewith is a copy of the Supplemental

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Counterclaim, and a copy of said Motion is furnished to the adverse party for his comments or
objections. The court may either grant or deny the motion of the proponent. In the event that
the court would grant the Motion, the proponent may file his answer to the supplemental
pleading (counterclaim) within ten (10) days from receipt of such order admitting the
supplemental pleading.
BAR 1983
On 22 February 1982, Amado Cabo filed with the Regional Trial Court of Albay a
complaint against his contractor, Maximo Soriano, for breach of contract and recovery of
consequential damages. The complaint, docketed as Civil Case No. 7916, alleged the sub-
standard workmanship employed by defendant in the construction of plaintiff’s house in Albay
as evidenced, among others, by the leaking roofs and warping ceilings.
Defendant promptly filed his answer and the case proceeded to trial on the merits. As of
August 1983, the trial has progressed to the stage where defendant Soriano was testifying on
direct examination on his defences. In the same month, Albay underwent a torrential rain, in
the midst of which the house of Cabo collapsed, causing physical injuries to his wife and
children. It was ascertained that the foundation of the house was made only of gravel instead
of reinforced concrete as stipulated in the construction contract.
What pleading should the lawyer of Amado Cabo file so that the Cabo family could
recover from defendant all the damages they sustained from the collapse of their house? Give
the ground and supporting reasons for your answer.
Suggested answer
The lawyer of Amado Cabo should file supplemental pleading alleging that the injuries
sustained by the family of his client was the direct, natural and logical consequences of the
breach by the defendant of his contractual obligations. Under the Rules of Court, upon motion
by a party, the court may, upon reasonable notice and upon such terms as are just, permit a
party to serve a supplemental pleading setting forth the transactions, occurrences or events
which have happened since the date of the pleadings sought to be supplemented.
Example:
Due to the reckless driving of the driver of a passenger bus, Antonio sustained physical
injuries, which requires hospitalization. Antonio files an action for Breach of Contract of
Carriage against the driver and the operator of the passenger bus, asking for damages in the
tune of P500, 000. 00. During the course of the trial, Antonio incurred additional medical
expenses because of the injuries his sustained as a result of the accident. The remedy of
Antonio in this particular case is to file a supplemental pleading setting forth the transaction,
occurrences or events which have transpired since the date of the pleading sought to be
supplemented.

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Section. 7. Filing of amended pleadings. – When any pleading is amended, a new copy of the
entire pleading, incorporating the amendments, which shall be indicated by appropriate
marks, shall be filed.
What are the requirements in the filing of an amended pleading?
The above provision mandates that when any pleading is amended, a new copy of the
entire pleading, incorporating the amendments shall be filed. The amendments should be
indicated by appropriate marks. Simply put, in the filing of the Motion to Amend Complaint, the
Amended Complaint should be attached to the said motion, wherein the amendments should
be highlighted or be indicated by appropriate marks.

Period to file a responsive pleading to a supplemental pleading

“Rule 11, Sec.7. Answer to supplemental complaint. – A supplemental complaint may be
answered within twenty (20) calendar days from notice of the order admitting the same, unless
a different period is fixed by the court. The answer to the complaint shall serve as the answer to
the supplemental complaint if no new or supplemental answer is filed.
Distinction between amended pleading and supplemental pleading
The following are the distinction between amended pleading and supplemental
pleading, as follows, to wit:
1. The filing of an amended pleading may either be as a matter of right or with leave of
court; the filing of a supplemental pleading is always with leave of court;
2. Amended pleading alleges facts that occurred before the filing of the original pleading;
supplemental pleading alleges facts occurring after the filing of the original pleading;
3. Amended pleading supersedes the original pleading; supplemental pleading does not
supersede the original pleading but assumes that the original pleading is to stand.

Section. 8. Effects of amended pleading. – An amended pleading supersedes the pleading that
it amends. However, admissions in superseded pleadings may be received in evidence against
the pleader; and claims or defenses alleged therein not incorporated in the amended
pleading shall be deemed waived.
What are the effects of an amended pleading?

1. It supersedes the pleading that it amends;

2. The admissions in the superseded pleadings may be received in evidence against the
pleader;
3. Claims or defenses alleged therein not incorporated in the amended pleading shall be
deemed waived;

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 4. The admissions made in the original pleading shall be treated as an extra-judicial
admission which shall be alleged and proved;
5. Any ancillary order/remedy issued in the original pleading shall be deemed vacated or
lifted;
6. It requires another certification of non-forum shopping if it is a substantial amendment
of the original complaint; and
7. In case the complaint is amended, it requires the service of summons if the defendant
has not yet appeared before the court and submitted to its jurisdiction.

Effect of amended pleadings

An amended pleading supersedes the pleading that it amends. However, admissions in

superseded pleadings may be received in evidence against the pleader, and claims or defences
alleged therein not incorporated in the amended pleading shall be deemed waived.

BAR 1993

In an action for reconveyance of a parcel of land filed in the Regional Trial Court, the
defendant through his lawyer, filed an answer admitting the averment in the complaint that the
land was acquired by the plaintiff through inheritance from his parents, the former owners
thereof.

Subsequently, the defendant changed his lawyer and, with leave of court, amended the
answer. In the amended answer, the abovementioned admission no longer appears. Instead
the alleged onweship of the land by the plaintiff was denied coupled with the allegation that
the defendant is the owner of the land for the reason that he bought the same from the
plaintiff’s parents during their lifetime.

After trial, the Regional Trial Court rendered a decision upholding the defendant’s
ownership of the land.

On appeal, the plaintiff contended that the defendant is bound by the admission
contained in his original answer.

In the contention of plaintiff correct?

Suggested answer

The contention of the plaintiff is not correct. An amended pleading supersedes the
pleading that it amends. The amended pleading is therefore, deemed withdrawn and no longer
part of the record and the admissions therein are no longer under the category of judicial
admissions. Admissions in superseded pleadings may however, be received in evidence against
the the pleader (Sec. 8, Rule 10), as extrajudicial admissions. To be so admitted, they must first

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be formally offered in evidence. This is because of the rule that the court shall consider no
evidence which has not been formally offered (Sec. 34, Rule 132, Rules of Court).

Pleadings superseded or amended disappear from the record, lose their status as
pleadings and cease to be judicial admissions, and to be utilized as judicial admissions, they
must, in order to have such effect, be formally offered in evidence (Ching v. Court of Appeals,
331 SCRA 16)

It has been held that for purposes of determining the commencement of the suit, the
original complaint is deemed abandoned and superseded by the amended complaint only if the
amended complaint introduces anew or different cause of action or demand (Versoza v. Court
of Appeals, 29 SCRA 100).

New summons required

An amended pleading supersedes the original one which is deemed withdrawn and no
longer considered part of the record. But it does not follow ipso facto that the service of a new
summons is required. Where the defendants have already appeared before the trial court by
virtue of a summons in the original complaint, the amended complaint may be served upon
them without need of another summons, even if new causes of actions are alleged. A court’s
jurisdiction continues until the case is finally terminated once it is acquired. Conversely, when
defendants have not yet appeared in court, new summons on the amended complaint must be
served on them. It is not the change of of a cause of action that gives rise to the need to serve
another summons for the amended complaint rather the acquisition of jurisdiction over the
persons of the defendants. If the trial court has not yet acquired jurisdiction over them, a new
summons for the amended complaint is required. Where the trial court had already acquired
jurisdiction over the persons of the defendants when they were served with summons on the
basis of the original complaint and the defendants appeared and filed a motion to dismiss, the
theory that new summons need be issued for the amended complaint is untenable (Gumabay v.
Baralin, 77 SCRA 258)

BAR 1999

When an additional defendant is impleaded in the action, is it necessary that summons

be served upon him?

Suggested answer

Summons must be served upon the additional defendant. It is the means by which the
court acquires jurisdiction over the person of the defendant. Without service of summons, any
judgment against the defendant will be void unless he voluntarily appears in the action
(Arcenas v. Court of Appeals, 299 SCRA 733)

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 RULE 11

WHEN TO FILE RESPONSIVE PLEADINGS

Section 1.Answer to the complaint. — The defendant shall file his OR HER answer to the
complaint within THIRTY (30) CALENDAR days after service of summons, unless a different
period is fixed by the court.

Within what time shall the defendant file his or her answer to the complaint?

The defendant shall file his answer to the complaint within THIRTY (30) CALENDAR days
after service of summons, unless a different period is fixed by the court. This is a drastic change
of the previous rule wherein the answer should be filed within fifteen (15) days from receipt of
the summons. Inasmuch as the filing of the answer has been lengthened to 30 days, the court is
accordingly strict on the granting of extention of time to file an answer.

For instance, the defendant validly receives a copy of the summons on October 1, 2019,
under the new rules, generally the defendant has thirty (30) calendar days to file his answer or
on November 02, 2019, unless the court fixed a different period. The computation of the period
should be based on the rule of “exclude the first, include the last.”

When to file Answer when Motion to Dismiss is denied?

If the motion to dismiss is denied, the movant shall file his answer within the balance of
the period prescribed above to which he was entitled at the time of serving his motion, but not
be less than five (5) CALENDAR days in any event, computed from his receipt of the notice of
the denial. (Rule 16, Sec. 4 of the Old Civil Procedure)

Section 2. Answer of a defendant foreign private juridical entity. — Where the defendant is a
foreign private juridical entity and service of summons is made on the government official
designated by law to receive the same, the answer shall be filed within SIXTY (60) CALENDAR
days after receipt of summons by such entity.

Within what time shall a defendant which is a foreign private judirical entity to file its answer?

In a similar way, when the defendant is a foreign private judirical entity, the file of the
answer has also been extended from 30 days to sixty (60) days counting from the receipt of the
summons. The above provision states: “Where the defendant is a foreign private juridical entity
and service of summons is made on the government official designated by law to receive the
same, the answer shall be filed within SIXTY (60) CALENDAR days after receipt of summons by
such entity.

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Section 3. Answer to amended complaint. — When the plaintiff files an amended complaint
as a matter of right, the defendant shall answer the same within THIRTY (30) CALENDAR days
after being served with a copy thereof.

Within what time shall the defendant file his or her when the plaintiff files an amended
complaint as a matter of right?

When the plaintiff files an amended complaint as a matter of right, the defendant shall
answer the same within THIRTY (30) CALENDAR days after being served with a copy thereof.

Where its filing is not a matter of right, the defendant shall answer the amended complaint
within FIFTEEN (15) CALENDAR days from notice of the order admitting the same. An answer
earlier filed may serve as the answer to the amended complaint if no new answer is filed.

When it is not a matter of right?

Where its filing is not a matter of right, the defendant shall answer the amended
complaint within FIFTEEN (15) CALENDAR days from notice of the order admitting the same. It
is clear therefore, that when the filing of the amended complaint is not a matter of right, the
answer to said amended complaint must be filed with 15 days from receipt of the order
admitting the amended complaint. The filing of an answer to the amended complaint is
optional because in the event that the defendant opts not to file an amended answer, the
answer earlier filed may serve as the answer to the amended complaint if no new answer is
filed.

This Rule shall apply to the answer to an amended counterclaim, amended cross-claim,
amended third (fourth, etc.)—party complaint, and amended complaint-in-intervention.

Section 4. Answer to counterclaim or cross-claim. — A counterclaim or cross-claim must be

answered within TWENTY (20) CALENDAR days from service.

Within what time shall a counter-claim or cross-claim be answered?

Section 4. Answer to counterclaim or cross-claim. — A counterclaim or cross-claim must

be answered within TWENTY (20) CALENDAR days from service. This is true only if the defending
party opts to file a separate answer to the counterclaim or separate answer to the counterclaim
such as counterclaim or cross claim that matured or was acquired, after the filing of the answer
or an omitted counterclaim or cross claim. But if the defending party wishes to, he may
incorporate his answer to the counterclaim (answer with counterclaim) to his Reply, and the
same must be filed within fifteen (15) calendar days after service of pleading responded to,
based on Section 6, Rule 11 of the 2019 Rules of Civil Procedure. If the defending party wants to
file a separate pleading by way of answer to counterclaim, or answer to cross-claim, then he
must file his answer thereto with twenty (20) caledar days from service under Section 4, Rule
11 of the 2019 Rules of Civil Procedure.

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 In the event that a defendant does raise counterclaims in his answer, the plaintiff must
respond to those counterclaims with a pleading called an “answer to a counterclaim” is similar
to that of an answer. In regard to Section 3, Rule 9 of the 2019 Rules of Civil Procedure, the
failure of the defending party to file his answer to counterclaim or cross-claim or third-party
complaint, may be a ground, on motion, to declare him in default.

Sample Form of Answer to counterclaim

“Answer to Counterclaim

Comes now, the plaintiff, in the above entitled case, by way of answer to the
Defdndant’s counterclaims, avers:

1. That he denies the allegations contained in paragraphs 1 of the defendant’s

counterclaim, the truth of the matter…..
2. That he denies the allegations contained in paragraph 4 of the defendant’s
counterclaim, the truth of the matter…”

Sample form of Answer to Cross-claim

Comes now, the cross defendant, in the above entitled case, and by way of answer to
cross-claim, most respectfully asserts:

1. That he denies the allegations contained in paragraph 1 of the cross-claimant, the

truth of the matter …..
2. That he denies the allegations enclosed in paragraph 2 of the cross-claimant for lack
of knowledge and information, and the truth of the matter….”

Section 5. Answer to third (fourth, etc.)-party complaint. — The time to answer a third
(fourth, etc.)—party complaint shall be governed by the same rule as the answer to the
complaint.

Within what time shall a third (fourth, etc) – party complaint shall be answered?

The filing of the answer shall be governed by the same rule as the answer to the
complaint. Meaning the answer shall be filed within Thirty (30) calendar days after service of
summons, unless a different period is fixed by the court.

Section 6. Reply. — A REPLY, IF ALLOWED UNDER SECTION 10, RULE 6 HEREOF, MAY BE FILED
WITHIN FIFTEEN (15) CALENDAR days from service of the pleading responded to.

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Within what time shall a reply be filed?

Remember that a reply is a response of the plaintiff to the answer filed by the
defendant. It should be noted that the filing of the reply is permissive unless the defendant’s
answer is based on actionable document. If the plaintiff chooses to file it, a reply shall be filed
within Fifteen (15) calendar days from service of the pleading to be responded to or the
defendant’s answer. For example, the plaintiff receives a copy of the defendant’s answer and
it is based on an actionable document, the plaintiff has fifteen (15) calendar days to file his
Reply counting from the time he received said defendant’s answer.

Section 10, Rule 6 provides:

“Section. 10. REPLY. – ALL NEW MATTERS ALLEGED IN THE ANSWER ARE DEEMED
CONTROVERTED. IF THE PLAINTIFF WISHES TO INTERPOSE ANY CLAIM ARISING OUT OF THE
NEW MATTERS SO ALLEGED, SUCH CLAIMS SHALL BE SET FORTH IN AN AMENDED OR
SUPPLEMENTAL COMPLAINT. HOWEVER, THE PLAINTIFF MAY FILE A REPLY ONLY IF THE
DEPENDING PARTY ATTACHES AN ACTIONABLE DOCUMENT TO HIS OR HER ANSWER.
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 IN, OR RELATING TO, SAID ACTIONABLE DOCUMENT.
IN THE EVENT AN ACTIONABLE DOCUMENT ATTACHED TO THE REPLY, THE DEFENDANT MAY
FILE A REJOINDER IF THE SAME IS BASED SOLELY ON AN ACTIONABLE DOCUMENT.”

Section 7. Answer to supplemental complaint. — A supplemental complaint may be answered

within TWENTY (20) CALENDAR days from notice of the order admitting the same, unless a
different period is fixed by the court. The answer to the complaint shall serve as the answer
to the supplemental complaint if no new or supplemental answer is filed. (n)

Within what time shall an answer be filed to supplemental complaint?

A supplemental complaint may be answered within TWENTY (20) CALENDAR days from
notice of the order admitting the same, unless a different period is fixed by the court. It cannot
be overemphasized that the above Section applies only if the subject is a supplemental
complaint, and it has no application if the subject is a supplemental pleading other than a
supplemental complaint, like supplemental counterclaim, supplemental reply or supplemental
cross-claim for the applicable provision is Section 6, Rule 10 of the Rules of Civil Procedure,
wherein the filing of a responsive pleading shall be fifteen (15) days from receipt of the order
admitting the same.

It cannot be overstated that the filing of a supplemental answer is optional for the
reason that in the event the defendant opts not to file it, then the answer to the complaint shall
serve as the answer to the supplemental complaint if no new supplemental answer is filed.

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Section 8. Existing counterclaim or cross-claim. — A compulsory counterclaim or a cross-claim
that a defending party has at the time he files his answer shall be contained therein.

Existing Counterclaim or Cross-claim

It is clear under the above provision, that the defending’s party compulsory
counterclaim or cross-claim existing at the time he files his answer, shall be contained in his
answers. Otherwise, they are deemed barred forever, unless allowed by these Rules, as
provided for under Section 9 of this Rule with respect to counterclaim or cross-claim which
either matured or was acquired by a party after serving his pleading, and this is done by way of
a Supplemental pleading. Or relative to a counterclaim or cross-claim which was not set-up
through oversight, inadvertence, or excusable neglect or when justice so requires and this is
done by way of Amended complaint.

Section 9. Counterclaim or cross-claim arising after answer. — A counterclaim or a cross-claim

which either matured or was acquired by a party after serving his pleading may, with the
permission of the court, be presented as a counterclaim or a cross-claim by SUPPLEMENTAL
pleading before judgment.

Counterclaim or cross-claim arising after answer.

Section 9 above provides for an exception to the rule that compulsory counter-claim or
cross-claim not raised in the answer is barred forever. The exception refers to a situation
wherein a compulsory counter-claim or cross claim either matured or was acquired by a party
after serving his answer, and it may be presented in court by SUPPLEMENTAL pleading before
judgment after securing after securing leave of court.

For example, after filing his Answer with Counterclaim, to the plaintiff’s complaint,
defendant sustained additional damages by way of moral damages or attorney’s fees, under
the Rules he can set them up by way of SUPPLEMENTAL pleading, by leave of court, before
judgment.

Section 10. Omitted counterclaim or cross-claim. — When a pleader fails to set up a

counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect, or when
justice requires, he OR SHE may, by leave of court, set up the counterclaim or cross-claim by
AMENDMENT before judgment.

Omitted counterclaim or cross-claim.

This is an additional exception to the rule that compulsory counterclaim or cross-claim

not set in the answer is barred forever. When a pleader fails to present a compulsory counter-
claim or cross-claim through (1) oversight, (2) inadvertence, (3) excusable neglect, or (4) when
justice requires, the pleader may by leave of court, set up the same by AMENDMENT before
judgment. For instance, the defendant, through excusable neglect, fails to set up in his answer,

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among other things, the moral damages he incurred and the legal fees he expended because of
the plaintiff’s complaint, he can set them up, with leave of court, by way of AMENDMENT of his
ANSWER before judgment.

Section 11. Extension of time to FILE AN ANSWER. — A DEFENDANT MAY, FOR MERITORIOUS
REASONS, BE GRANTED AN ADDITIONAL PERIOD OF NOT MORE THAN THIRTY (30) CALENDAR
DAYS TO FILE AN ANSWER. A DEFENDANT IS ONLY ALLOWED TO FILE ONE (1) MOTION FOR
EXTENSION OF TIME TO FILE AN ANSWER.

A MOTION FOR EXTENSION TO FILE ANY PLEADING, OTHER THAN AN ANSWER, IS

PROHIBITED AND CONSIDERED A MERE SCRAP OF PAPER. THE COURT, HOWEVER, MAY
ALLOW ANY OTHER PLEADING TO BE FILED AFTER THE TIME FIXED BY THESE RULES.

Extension of Time to File an Answer

The amendatory provision provides that only one (1) Motion for Extension of Time to
file Answer is allowed by the Rules. This is in consonance with the provision that the defendant
has thirty (30) days to file his answer. The caveat is that this motion should only be exercised
once. The filing for an extension of time to file any other pleadings is a prohibited motion and
shall be outrightly denied by the court as a mere scrap of paper. For example, the filing of a
Motion for Extension of Time to File a Reply or a Motion for Extension of Time to file Motion to
Dismiss, is considered as a mere scrap of paper, hence should be denied outrightly by the court.
However, for meritorious cases and in the higher interest of justice, the court may allow the
filing of any other pleadings after the time fixed for their filing has lapsed.

It is to be observed that the above provision does not distinguish whether the
defendant is a natural person, a domestic juridical entity or a foreign private juridical entity.
Hence, in the light of the principle that when the law does not make any exception, the courts
may not exempt something therefrom, unless there is a compelling reason to the contrary, the
above Section also applies to a defendant which is a foreign private juridical entity.

What are the courses of action of the court in case of a motion for an extension of time to file
pleading is filed?

Upon motion and on such terms as may be just, the court may

1. Extend the time to plead provided in these Rules, but the additional period shall not
be more than Thirty (30) calendar days.
2. The court may also, upon like terms, allow an answer or other pleading to be filed
after the time fixed by these Rules.
3. The court shall allow the defendant only one (1) motion for extension of time to file
an answer.

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Motion for extension of time to file pleading must be filed before the expiration of the period
sought to be extended.

A motion for extension to file a pleading must be filed before the expiration of the
period sought to be extended. The courts discretion to grant a motion for extension is
conditioned upon such motion’s timeliness, the passing of which renders the court powerless to
entertain or grant it. Since the motion for extension was filed after the lapse of the prescribed
period, there was no more period to extend. (Reynaldo Posiquit vs. People, G.R. No. 193943,
January 12, 2012)

Filing of motion for extension of time is tantamount to the submission to the jurisdiction of the
court.

The filing of a motion for time is considered a submission to the jurisdiction of the court.
(Allan C. Go vs. Mortimer F. Cordero, G.R. No. 164703, May 4, 2010). It bears stressing here that
there several modes for the court to acquire jurisdiction over the person of the defendant, and
one of which is the filing of a motion, like motion for extension of time to file answer, seeking
affirmative relief.

Sample form:

MOTION FOR EXTENSION OF TIME TO FILE ANSWER/RESPONSIVE PLEADING

COMES NOW, the defendant, through the undersigned counsel and unto this Honorable
Court, most respectfully moves:

1. That on February ____, 2019, defendant received a copy of the Summons issued by
this Honorable Court with attached Complaint and annexes, requiring him to file his
Answer to the said complaint;
2. That defendant only secured the services of the undersigned counsel only today
February ___, 2019, and he needs time to familiarize himself of the facts of the case,
and needs additional time of thirty (30) calendar days to file said answer/responsive
pleading.

WHEREFORE, defendant prays that he be granted an additional time of thirty (30)

calendar days from February ____, 2019 within which to file his answer/responsive pleading
based on the abovew reasons.

Such other relief and remedies as may be deemed just and equitable in the premises are
likewise prayed for.

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 RULE 12

BILL OF PARTICULARS

Section 1.When applied for; purpose. — Before responding to a pleading, a party may move
for a definite statement or for a bill of particulars of any matter which is not averted with
sufficient definiteness or particularity to enable him OR HER properly to prepare his
responsive pleading. If the pleading is a reply, the motion must be filed within ten (10)
CALENDAR days from service thereof. Such motion shall point out the defects complained of,
the paragraphs wherein they are contained, and the details desired.

What is a bill of particulars?

Bill of particulars is a more definite statement of fact and material allegations in the
pleading. In a civil action a bill of particulars is a written demand for the specifics of why an
action at law was brought. Although usually demanded by the defendant, it can be demanded
by the plaintiff if the defendant makes a counterclaim for a setoff or asserts a defense against
him or her.

What is a motion for bill or particulars?

It is an application before the court for a more definite statement of the facts and
material allegations in the pleading.

What is the nature of a motion for bill of particulars?

A motion for bill of particulars is a formal and litigated motion which must be in writing
and requires notice to the adverse party and hearing.

What is the purpose for filing of a motion for a bill of particulars?

In one case, the Supreme Court has ruled that “It is the office or function, as well as the
object or purpose, of a bill of particulars to amplify or limit a pleading, specify more minutely
and particularly a claim of defense set up and pleaded in general terms, give information, not
contained in the pleading, to the opposite party and the court as to the précised nature,
character, scope, and extent of the cause of action or defense relied on by the pleader, and
apprise the opposite party of the case which he has to meet, to the end that the proof at the
trial may be limited to the matter specified, and in order that surprise at, and needless
preparations for, the trial may be avoided, and that the opposite party may be aided in framing
his answering pleading and preparing for trial. It has also been stated that it is the function or
purpose of a bill of particulars to define, clarify, particularize, and limit or circumscribe the
issues in the case, to expidite the trial, and assist the court. A general function or purpose of a
bill of particulars is to prevent injustice or do justice in the case when that cannot be

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accomplished without aide of such a bill (Republic vs. Sandiganbayan, G.R. No. 115748, August
7, 1996)

The options open to the defendant upon his receipt of summons

The moment the defendant received a copy of the summons, he has three (3) courses of
action as provided for by the Rules. He could either (1) File his Answer, or (2) File a Motion to
Dismiss, or (3) File a Motion for Bill of Particulars. Simply put, upon his receipt of the summons,
there is yet no urgency for him to immediately file his Answer if there are other legal remedies
open to him like filing a Motion to Dismiss or Motion for Bill of Particulars.

For example, there are matters in the complaint which are vague or ambiguous or not
averred with sufficient definiteness, the defendant need not file his answer to the complaint
within the required period. Instead, he may file a motion for bill of particulars, and pray for the
court to issue an order requiring the complainant to assert with clarity and definiteness certain
allegations in the plaintiff’s complaint which are ambiguous or indefinite.

A motion for bill of particulars is not directed only to a compliant. It is a motion that
applies to any pleading, like Answer, Counterclaim, Cross-claims or Reply, which on the
perception of the movant contains ambiguous allegations. For instance, upon receipt of the
defendant’s answer, and before filing his Reply, the plaintiff may file a Motion for Bill of
Particulars to make certain or clear assertion in the defendant’s answer, specifically with
respect to his counterclaim, which the plaintiff believes is ambiguous or indefinite.

When can a party apply for a bill of particulars?

Before responding to a pleading, a party may move for a definite statement or for a bill
of particulars of any matter which is not averted with sufficient definiteness or particularity to
enable him properly to prepare his responsive pleading.

If the pleading is a reply, the motion must be filed within ten (10) calendar days from
service thereof. Such motion shall point out the defects complained of, the paragraphs wherein
they are contained, and the details desired. For example, upon receipt of the plaintiff’s reply,
the defendant, before filing his Rejoinder, may file a Motion for Bill of Particulars if there are
matters in the Reply that needs to be clarified or be made more definite.

What will the motion for bill of particulars contain?

A motion for bill of particulars shall point out the following:

1. The defects complained of,

2. The paragraphs wherein they are contained, and
3. The details desired.

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Remedies in case of denial of motion for Bill of Particulars

Appeal is not the proper remedy in the event a motion for bill of particulars is denied,
for the reason that an order denying a motion for bill of particulars is an interlocutory order and
as such it is not appealable. The remedy, therefore, of the movant is:

1. To file his answer in case the subject of the Bill of Particulars is the plaintiff’s
complaint.

2.To file his reply in case the subject of the Bill of Particulars is the defendant’s answer.

3. If the order is tainted with grave abuse of discretion, the remedy is to file a Petition
for Certiorari under Rule 65 of the Rules of Court.

Distinctions between bill of particulars in civil cases (Rule 12) and bill of particulars in criminal
cases (Rule 116)

1. Bill of particulars under Rule 12 must be filed before the filing of a responsive
pleading or in case of a reply within ten (10) days from receipt thereof; while Bill of
particulars under Rule 116 must be filed before arraignment;

2. Bill of particulars under Rule 12 is directed against a pleading; while bill of particulars
under Rule 116 is directed against a criminal complaint or information;

3. In case of denial of the motion for bill of particulars under Rule 12, the moving party
may file his responsive pleading within the period he is entitled to but in no case less
than five (5) days, unless the denial is tainted with grave abuse of discretion, hence,
petition for certiorari under Rule 65; while in case of denial of the motion for bill of
particulars under Rule 116, the accused may proceed with the arraignment and
enter his plea, unless the denial is tainted with grave abuse of discretion, party may
file a petition for certiorari.

Section 2. Action by the court. — Upon the filing of the motion, the clerk of court must
immediately bring it to the attention of the court which may either deny or grant it outright,
or allow the parties the opportunity to be heard.

What are the courses of action of the court on the motion for bill of particulars?

Upon the filing of the motion, the (Branch) clerk of court must immediately bring it to
the attention of the court which may:

1. Deny it outright; or
2. Grant it outright; or
3. Allow the parties the opportunity to be heard.

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Example:

Within the period for filing a responsive pleading, the defendant filed a motion for bill of
particulars that he set for hearing on a certain date. However, the defendant was surprised to
find out on the date set for hearing that the trial court had already denied the motion on the
day of its filing, stating that the allegations of the complaint were sufficiently made.

Did the judge gravely abuse his discretion in acting on the motion without waiting for
the hearing set for the motion? Explain.
Suggested answer
No, the judge did not gravely abuse his discretion when he denied the motion for bill of
particulars without waiting for the hearing set in the motion. The Rules provide that once the
Motion for Bill of Particulars has been brought to the attention of the court, “it may either deny
or grant it outright...”

BAR 2018

The Republic of the Philippines (Republic) filed a complaint with the Sandiganbayan in
connection with the sequestered assets and properties of Demo Companies Inc. (Demo) and
impleaded its officers and directors. Since the complaint did not include Demo as defendant,
the Sandiganbayan issued a Resolution where it ordered Demo to be impleaded. Thereafter,
the Republic filed an amended complaint naming Demo as additional defendant, which
amendment was later admitted.

Demo filed a motion for bill of particulars for the Republic to clarify certain matters in its
amended complaint. The Sandiganbayan immediately granted the motion. Upon submission of
the bill of particulars by the Republic, Demo filed a motion to dismiss arguing that the answers
in the bill of particulars were indefinite and deficient responses to the question of what the
alleged illegally acquired funds or properties of Demo were. The Sandiganbayan dismissed the
case.

(a) Was the Sandiganbayan correct in dismissing the case?

(b) What can the defendant, in a civil case, do in the event that his motion for bill of
particulars is denied?

Section 3. Compliance with order. — If the motion is granted, either in whole or in part, the
compliance therewith must be effected within ten (10) CALENDAR days from notice of the
order, unless a different period is fixed by the court. The bill of particulars or a more definite
statement ordered by the court may be filed either in a SEPARATE or in an AMENDED
pleading, serving a copy thereof on the adverse party.

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When to comply if the motion is granted?

If the motion is granted, either in whole or in part, the compliance therewith must be
effected within

1. Ten (10) days from notice of the order,

2 Unless a different period is fixed by the court.

How to file a bill of particulars?

The bill of particulars or a more definite statement ordered by the court may be filed
either:

1. In a separate pleading; or

In this particular case, the plaintiff may file a sort of “manifestation” in complaince with
the court order granting a motion for bill of particulars.

2. In an amended pleading. Serving a copy thereof on the adverse party.

On the other hand, the plaintiff may opt to file an Amended Complaint, incorporating
therein with appropriate markings his compliance with the order of the court granting the
motion for bill of particulars.

Section 4. Effect of non-compliance. — If the order is not obeyed, or in case of insufficient

compliance therewith, the court may order the striking out of the pleading or the portions
thereof to which the order was directed or make such other order as it deems just.

What is the effect of non-compliance or partial compliance of the order?

If the order is not obeyed, or in case of insufficient compliance therewith, the court
may:

1. Order the striking out of the pleading (meaning the entire pleading);
2. Order the striking of the portions thereof which the order was directed (like the
striking out of paragraph 4 of the plaintiff’s complaint); or
3. Make such other order as it deems just.

If the subject of the Motion for Bill of Particulars is a plaintiff’s complaint, it is believed
that the court may order the dismissal of the complaint for failure to comply with the order of
the court.

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Section 5. Stay of period to file responsive pleading. — After service of the bill of particulars
or of a more definite pleading, or after notice of denial of his OR HER motion, the moving
party may file his OR HER responsive pleading within the period to which he OR SHE was
entitled at the time of filing his motion, which shall not be less than five (5) CALENDAR days
in any event.

What is the effect of service of a more definite statements or the denial of the motion?

After service of the bill of particulars or of a more definite pleading, or after notice of
denial of his motion, the moving party may:

File his responsive pleading within the period to which he was entitled at the time of
filing his motion, which shall not be less than five (5) days in any event.

Meaning, if the movant has less than five (5) calendar days to file his responsive
pleading after service of the bill of particulars or after notice of the denial of his motion, he
nevertheless has five (5) calendar days within which to file his responsive pleading.

For example, five (5) days after days he received a copy of the summons, defendant
through counsel, filed a Motion for Bill of Particulars, and if the Motion was eventually denied
by the court, the defendant has the remaining twenty five (25) calendar days (30 – 5 = 25) to
file his responsive pleading but in no case it shall be less than five (5) calendar days.

Examples

1. Bert received the summons on March 2, 2020. Bert filed a motion for bill of particulars
on March 9, 2020. Clearly, Bert has already consumed seven (7) calendar days of the
original thirty (30) calendar days period to file his answer. Consequently, Bert still has
Twenty three (23) calendar days to file an anwer. On March 10, 2020, he received the
bill of particulars submitted by Anna or the order of the court denying his motions.
Therefore, his last day for filing an Answer would be on April 02, 2020.

2. Barbara received the summons on March 2, 2020. Barbara filed a motion for bill of
particulars on March 28, 2020. She already consumed 26 days of the original 30 day
period to file his answer. Consequently, she still has 4 days to file his answer. On March
29, 2020, he received the bill of particulars submitted by Amparo or the order of the
court denying his motion. Therefore, his last day for filing an Answer would be on April
03, 2020. Why not on April 02, 2020? Because the rule says, “shall not be less than 5
days in any event.”

Period of Time to File Answer or Responsive Pleading

1. Complaint – 30 or 60 calendar days (Secs. 1 and 2, Rule 11)

2. Counterclaim – 20 calendar days (Section 4, Rule 11)

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 3. Cross-claim – 20 calendar days (Section 4, Rule 11)
4. Reply – 15 calendar days (Section 6, Rule 11)
5. Third Party Complaint – 30 or 60 calendar days (Section 5, Rule 11)

Section 6.Bill a part of pleading. — A bill of particulars becomes part of the pleading for
which it is intended.

Bill a Part of Pleading

The rules are explicit that a Bill of Particulars becomes an integral part of the pleading
for which it is intended whether be it a complaint or counter-claim or cross claim or reply as the
case may be. Therefore, any admissions or stipulations contained therein shall be binding upon
the party who submitted the bill of particulars.

Sample form:

MOTION FOR BILL OF PARTICULARS

COMES now, the defendant, through the undersigned counsel and unto this Honorable
Court, most respectfully move for a bill of particulars on the following grounds and avers:

1. That the plaintiff, in his complaint, seeks to recover damages allegedly suffered by
him, in the amount of P5, 000, 000. 00;

2. That plaintiff failed to allege the nature of said damages, the manner in which he
suffered the same, and what computation he used to arrive at the alleged amount,
which sufficient definiteness, and/or particularly to enable defendant to properly
prepare his responsive pleading and/ or for trial.

WHEREFORE, defendant prays that plaintiff be ordered to amend the complaint or

to submit a Bill of particulars, stating with definiteness the nature of said damages,
the manner in which he suffered the same, and what computation he used to arrive
at the alleged amount, with sufficient definiteness.

Such other relief and remedies as may be deemed just and equitable in the premises
are likewise prayed for.

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 RULE 13

FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS

Section 1. Coverage. — This Rule shall govern the filing of all pleadings, MOTIONS, AND
OTHER COURT SUBMISSIONS, as well as the service thereof, except those for which a
different mode of service is prescribed. (n)

The present rules extend the coverage of the term FILING not only to pleadings but also
to motions, such as motion to dismiss, motion to amend complaint or motion for bill of
particulars, and other COURT SUBMISSIONS, like manifestations, memorandum, explanations,
appearances, notice, and the like.

Section 2.Filing and service, defined. — Filing is the act of SUBMITTING the pleading or other
paper to the court.

Filing is defined as the act of submitting the pleading such as complaint, answer,
counterclaim or cross-claim to the court. Within the definition of filing, it is also the submission
of other papers such as motion or manifestation, explanation or request, to the court.

Service is the act of providing a party with a copy of the pleading OR ANY OTHER COURT
SUBMISSION. If any party has appeared by counsel, service upon SUCH PARTY shall be made
upon his OR HER counsel, unless service upon the party AND THE PARTY’S COUNSEL is
ordered by the court. Where one counsel appears for several parties, SUCH COUNSEL shall
only be entitled to one copy of any paper served upon him by the opposite side. (2a)

Service on the other hand, has been defined as the act of a party in providing or
furnishing the other party with a pleading or other court submission. For instance, if the
plaintiff submits a motion in court, his act is known as filing of motion, and before such motion
can be filed in court, the plaintiff needs first to furnish a copy of his motion to the defendant,
that is called service of motion to the other party.

For example, if Atty. Ramos appeared as counsel in a civil case for Breach of Contract
with Damages, for defendants Vicente, Roel and Joenar, under the Rules, Atty. Ramos shall only
be entitled to one (1) copy of any pleadings or court submission served upon him by the
opposing counsel.

Where several counsels appear for one party, such party shall be entitled to only one copy of any
pleading or paper to be served upon the lead counsel if one is designated, or upon any one of
them if there is no designation of a lead counsel. (2a)

For instance, Atty. Ramos, Atty. Go and Atty. Pueblo appeared as counsels for plaintiff
Roel, with Atty. Ramos as the lead counsel, pursuant to the Rules, the plaintiff shall be entitled
to only one (1) copy of any pleading or papers to be served upon the lead counsel, Atty. Ramos.

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If there is no lead counsel, then such pleading or papers shall be served upon any one of the
counsels, Atty. Go or Atty. Pueblo.

SERVICE is understood to mean the act of providing or furnishing a party with a copy of
the pleading or ANY OTHER COURT SUBMISSION. Furnishing the other party with a copy of a
complaint, answer, counterclaim or cross-claim, is known as service of pleading. In like manner,
the act of providing the other party with a copy of motion, appearance or manifestation is also
service of pleading.

Section 3.Manner of FILING. — The filing of pleadings AND OTHER COURT SUBMISSIONS, shall
be made by:

(a) SUBMITTING PERSONALLY THE ORIGINAL THEREOF, PLAINLY INDICATED AS SUCH, TO

THE COURT;

(b) Sending them by registered mail;

(c) SENDING THEM BY ACCREDITED COURIER; OR

(d) TRANSMITTING THEM BY ELECTRONIC MAIL OR OTHER ELECTRONIC MEANS AS MAY

BE AUTHORIZED BY THE COURT IN PLACES WHERE THE COURT IS ELECTRONICALLY
EQUIPPED.

In the first case, the clerk of court shall endorse on the pleading the date and hour of filing. IN
THE SECOND AND THIRD CASES, the date of the mailing of motions, pleadings, AND OTHER
COURT SUBMISSIONS, and payments or deposits, as shown by the post office stamp on the
envelope or the registry receipt, shall be considered as the date of their filing, payment, or
deposit in court. The envelope shall be attached to the record of the case. IN THE FOURTH
CASE, THE DATE OF THE ELECTRONIC TRANSMISSION SHALL BE CONSIDERED AS THE DATE OF
FILING.

What is the Manner of filing of pleadingand other court submission?

The filing of pleadings AND OTHER COURT SUBMISSIONS, shall be made by the
following:

(a) SUBMITTING PERSONALLY THE ORIGINAL THEREOF, PLAINLY INDICATED AS SUCH, TO

THE COURT;
(b) Sending them by registered mail;
(c) SENDING THEM BY ACCREDITED COURIER; OR
(d) TRANSMITTING THEM BY ELECTRONIC MAIL OR OTHER ELECTRONIC MEANS AS MAY BE
AUTHORIZED BY THE COURT IN PLACES WHERE THE COURT IS ELECTRONICALLY
EQUPPED.

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 It is worthy to note that it is only when the filing of pleadings and other court
submission by electronic mails or other electronic means which requires authority by the court
or the so-called leave of court. On the other hand, the filing of pleadings and other court
submission by registered mail or by accredited courier does not require leave of court. The
motion is denominated as “Motion to File Motion or Manifestion Through Electronic Mail.”

How endorsement shall be made on the pleading?

(1) When the filing is done personally, the clerk of court shall endorse on the pleading
the date and hour of filing.
(2) When the filing is done by sending them by registered mail or sending them by
accredited courier, the date of the mailing of motions, pleadings, AND OTHER
COURT SUBMISSIONS, and payments or deposits, as shown by the post office stamp
on the envelope or the registry receipt, shall be considered as the date of their filing,
payment, or deposit in court. The envelope shall be attached to the record of the
case.
(3) When the filing is by transmitting them by ELECTRONIC TRANSMISSION, the date of
electronic transmission, SHALL BE CONSIDERED AS THE DATE OF FILING.

Section 4. Papers required to be filed and served. — Every judgment, resolution, order,
pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of
judgment or similar papers shall be filed with the court, and served upon the parties affected.

Papers required to be filed and served

Under the above provision, it is clear that every judgment, resolution, order, pleading
subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment
or similar papers shall be FILED with the court, and SERVED upon the parties affected. This
simply means that if for example, the plaintiff’s counsel files with the court a motion or
manifestation, he is mandated to SERVE a copy of said motion or manifestation FIRST upon the
defendant’s counsel, and after which, FILE the same in court. It is to be noted that the failure of
the plaintiff’s counsel to serve a copy of such motion or manifestation, the court may consider
it as a mere scrap of paper.

Section 5.Modes of SERVICE. — Service of pleadings motions, notices, orders, judgments and
other court submissions shall be served personally or by registered mail, accredited courier,
electronic mail, facsimile transmission, other electronic means as may be authorized by the
Court, or as provided for in international conventions to which the Philippines is a party.

MANNER OF SERVICE
A simple reading of the above provision would readily show that there are FIVE (5)
modes of service to the other party, to wit:

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 (a) Shall be served PERSONALLY;
(b) Sending them by registered mail;
(c) SENDING THEM BY ACCREDITED COURIER; OR
(d) TRANSMITTING THEM BY ELECTRONIC MAIL OR FACSIMILE TRANSMISSION, OTHER
ELECTRONIC MEANS AS MAY BE AUTHORIZED BY THE COURT, OR
(e) AS PROVIDED FOR IN INTERNATIONAL CONVENTIONS TO WHICH THE Philippines is a
party.

Take note that the last mode of service by “as provided for in international conventions
to which the Philippines is a party,” is limited only to SERVICE of pleadings and other court
submission and finds no application to the manner of filing of pleading and other court
submissions under Section 3, Rule 13, relative to the Manner of Filing of Pleadings and other
Court Submissions, which provides:

“Section 3.Manner of FILING. — The filing of pleadings AND OTHER COURT SUBMISSIONS, shall
be made by:

(a) SUBMITTING PERSONALLY THE ORIGINAL THEREOF, PLAINLY INDICATED AS SUCH, TO

THE COURT;
(b) Sending them by registered mail;
(c) SENDING THEM BY ACCREDITED COURIER; OR
(d) TRANSMITTING THEM BY ELECTRONIC MAIL OR OTHER ELECTRONIC MEANS AS MAY BE
AUTHORIZED BY THE COURT IN PLACES WHERE THE COURT IS ELECTRONICALLY
EQUIPPED.”

Section 6. Personal service. — COURT SUBMISSIONS MAY BE SERVED BY PERSONAL DELIVERY

OF a copy to the party or TO THE PARTY’S counsel, or OR TO THEIR AUTHORIZED
REPRESENTATIVE NAMED IN THE APPROPRIATE PLEADING OR MOTION, or by leaving it in his
OR HER office with his OR HER clerk or with a person having charge thereof. If no person is
found in his OR HER office, or his OR HER office is not known, or he OR SHE has no office, then
by leaving the copy, between the hours of eight in the morning and six in the evening, at the
party's or counsel's residence, if known, with a person of sufficient age and discretion then
residing therein.

How personal service shall be made to the party or party’s counsel?

1. If a party has not appeared by counsel, then service must be made upon him.
2. If a party has appeared by counsel, then service upon said party shall be made upon his
counsel or one of them, unless service upon the party himself is ordered by the court.

3. To the parties’ authorized representative named in the appropriate pleading or motion;

or

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 4. By leaving it in his OR HER office with his OR HER clerk or with a person having charge
thereof.
5. If no person is found in his OR HER office, or his OR HER office is not known, or he OR
SHE has no office, then by leaving the copy, between the hours of eight in the morning
and six in the evening, at the party's or counsel's residence, if known, with a person of
sufficient age and discretion then residing therein.

It has been held that notice or service made upon a party who is represented by counsel
is a nullity. As a rule, notice to the client and not to his counsel of record is not notice in law
unless for instance when the court or tribunal orders service upon the party or when the
technical defect in the manner of notice is waived. Service upon the parties’s counsels of record
is tantamount to service upon the parties themselves, but service upon the parties themselves
is not considered service upon their lawyers.

Section 7.Service by mail. — Service by registered mail shall be made by depositing the copy
in the post office in a sealed envelope, plainly addressed to the party or TO THE PARTY’S
counsel at his OR HER office, if known, otherwise at his OR HER residence, if known, with
postage fully prepaid, and with instructions to the postmaster to return the mail to the
sender after ten (10) days CALENDAR if undelivered. If no registry service is available in the
locality of either the senders or the addressee, service may be done by ordinary mail.

How service by mail be made to the party or party’s counsel?

Service by registered mail shall be made:

By depositing the copy in the post office in a sealed envelope, plainly addressed to the
party or TO THE PARTY’S counsel at his OR HER office, if known, otherwise at his OR HER
residence, if known, with postage fully prepaid, and with instructions to the postmaster to
return the mail to the sender after ten (10) days CALENDAR if undelivered. If no registry service
is available in the locality of either the senders or the addressee, service may be done by
ordinary mail.

Section 8.Substituted service. — If service of pleadings, motions, notices, resolutions, orders

and other papers cannot be made under the two preceding sections, the office and place of
residence of the party or his OR HER counsel being unknown, service may be made by
delivering the copy to the clerk of court, with proof of failure of both personal service and
service by mail. The service is complete at the time of such delivery.

MODES OF SERVICE

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 1. Personally
2. By registered mail
3. Substituted service – This mode is availed of only where there is failure to effect
service personally or by mail. This failure occurs when the office and residence of
the party or counsel are unknown (Sec. 8, Rule 13)

Substituted service is effected by delivering the copy to the clerk of court, with proof of
failure of both personal service and service by mail. Please take note that “substituted service”
under this Section is different from the Section 6, Rule 14 (summons), which deals with
“substituted of Service” for Summons.
If another mode of service is used other than personal service, the service must be
accompanied by a written explanation why the service or filing was not done personally. This
means that if the party resorts to (1) registered mail, (2) accredited courier, or (3) electronic
means in the service of pleadings and other court submission to the other party, the serving
party needs to make a written explanation why personal service could not be had. The usual
explanation resorted by counsel if the service of pleading and other court submission is other
personal service is either (1) the office of the other counsel is outside the territorial jurisdiction
of the court, or (2) the serving counsel is undermanned that no one in his office could he
request to serve it personally to the opposing counsel.
Section 9. Service by electronic means and facsimile. — Service by electronic means and
facsimile shall be made if the party concerned consents to such modes of service. Service by
electronic means shall be made by sending an e-mail to the party’s or counsel’s electronic mail
address, or through other electronic means of transmission as the parties may agree on, or upon
direction of the court. Service by facsimile shall be made by sending a facsimile copy to the
party’s or counsel’s given facsimile number. (n)

What is the mechanics in service by electronic means and facsimile?

Service by electronic means and facsimile shall be made:

(a) If the party concerned CONSENTS to such modes of service.

(b) Service by electronic means shall be made by sending an e-mail to the party’s or
counsel’s electronic mail address, or
(c) Through other electronic means of transmission as the parties may agree on, or
upon direction of the court.
(d) Service by facsimile shall be made by sending a facsimile copy to the party’s or
counsel’s given facsimile number. (n)

Based on the foregoing provision, one thing is clear is that service by electronic means is
possible only if the party concerned, plaintiff or defendant, consents or agrees to such mode of

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service, and proper authorization from the court, otherwise, Service shall be made (1)
Personally, (2) By Registered Mail or (3) By Accredited Courier.

Section 10. Presumptive service. — There shall be presumptive notice to a party of a court
setting if such notice appears on the records to have been mailed at least twenty (20) calendar
days prior to the scheduled date of hearing and if the addressee is from within the same judicial
region of the court where the case is pending, or at least thirty (30) calendar days if the addressee
is from outside the judicial region. (n)

When there is presumptive service of notice to a party of a court setting?

Under the above provision, there shall be presumptive notice to a party of a court
setting:

1. If such notice appears on the records to have been mailed at least twenty (20)
calendar days prior to the scheduled date of hearing and if the addressee is from
within the same judicial region of the court where the case is pending, or
2. At least thirty (30) calendar days if the addressee is from outside the judicial region.
(n)

Section 11. Change of electronic mail address or facsimile number. — A party who changes his
or her electronic mail address or facsimile number while the action is pending must promptly
file, within five (5) calendar days from such change, a notice of change of e-mail address or
facsimile number with the court and serve the notice on all other parties. Service through the
electronic mail address or facsimile number of a party shall be presumed valid unless such party
notifies the court of any change, as aforementioned. (n)

What is the rule if there is a change of electronic mail address or facsimile number?

A party who changes his or her electronic mail address or facsimile number while the
action is pending must:

1. Promptly file, within five (5) calendar days from such change, a notice of change of
e-mail address or facsimile number with the court and

2. Serve the notice on all other parties. Service through the electronic mail address or
facsimile number of a party shall be presumed valid unless such party notifies the
court of any change, as aforementioned. (n)

Section 12. Electronic mail and facsimile subject and title of pleadings and other documents. —
The subject of the electronic mail and facsimile must follow the prescribed format: case number,
case title and the pleading, order or document title. The title of each electronically-filed or served
pleading or other document, and each submission served by facsimile shall contain sufficient
information to enable the court to ascertain from the title:

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(a) the party or parties filing or serving the paper,

(b) nature of the paper,

(c) the party or parties against whom relief, if any, is sought, and (d) the nature of the relief
sought. (n)

Section 13. Service of judgments, final orders, or resolutions. — Judgments, final orders or
resolutions shall be served either personally or by registered mail. UPON EX PARTE MOTION
OF ANY PARTY IN THE CASE, A COPY OF THE JUDGMENT, FINAL ORDER, OR RESOLUTION MAY
BE DELIVERED BY ACCREDITED COURIER AT THE EXPENSE OF SUCH PARTY. When a party
summoned by publication has failed to appear in the action, judgments, final orders or
resolutions against him OR HER shall be served upon him OR HER also by publication at the
expense of the prevailing party.

How Service of judgments, final orders, or resolutions may be effected?

The rules require that judgments, final orders or resolutions shall be served either:

1. Personally or
2. By registered mail.
3. UPON EX PARTE MOTION OF ANY PARTY IN THE CASE, A COPY OF THE JUDGMENT,
FINAL ORDER, OR RESOLUTION MAY BE DELIVERED BY ACCREDITED COURIER AT THE
EXPENSE OF SUCH PARTY.
4. When a party summoned by publication has failed to appear in the action,
judgments, final orders or resolutions against him OR HER shall be served upon him
OR HER also by publication at the expense of the prevailing party.

In the case of unknown defendant or the defendant’s whereabout is unknown, or

defendant who is outside the jurisdiction of the court, upon proper motion, summons shall be
served by publication. In the even that he fails to appear during the trial, any judgment, order
or resolution of the court shall be served upon him also by publication.

Section 14. Conventional service or filing of orders, pleadings and other documents.–
Notwithstanding the foregoing, the following orders, pleadings, and other documents must be
served or filed personally or by registered mail when allowed, and shall not be served or filed
electronically, unless express permission is granted by the Court:

(a) Initiatory pleadings and initial responsive pleadings, such as an answer;

(b) Subpoenae, protection orders, and writs;

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(c) Appendices and exhibits to motions, or other documents that are not readily amenable to
electronic scanning may, at the option of the party filing such, befiled and served conventionally;
and

(d) Sealed and confidential documents or records. (n)

What are the orders, pleadings, and other documents which must be served or filed
personally or by registered mail, unless express permission is granted by the Court?

The following pleadings, orders, and other documents must be served or filed personally
or by registered mail, and not through accredited courier or by electronic means, to wit:

(a) Initiatory pleadings and initial responsive pleadings, such as an answer;

(b) Subpoenae, protection orders, and writs;
(c) Appendices and exhibits to motions, or other documents that are not readily amenable to
electronic scanning may, at the option of the party filing such, befiled and served
conventionally; and
(d) Sealed and confidential documents or records. (n)

Pursuant to the above provision, the filing of initiatory pleadings like Complaint, Petition
and initial responsive pleading like answer or comments shall be done through personal filing or
through registered mail. Filing of these pleadings through accredited courier or by electronic
means is prohibited by the Rules, and it is considered as if no such pleadings have been filed.
But subsequent court submissions like “motion to dismiss,”or “motion for bill of particulars” or
“motion to amend complaint” may be filed through personal service, registered mail,
accredited courier or by electronic means.

Section 15.Completeness of service. — Personal service is complete upon actual delivery.

Service by ordinary mail is complete upon the expiration of ten (10) CALENDAR days after
mailing, unless the court otherwise provides. Service by registered mail is complete upon
actual receipt by the addressee, or after five (5) CALENDAR days from the date he OR SHE
received the first notice of the postmaster, whichever date is earlier. Service by accredited
courier is complete upon actual receipt by the addressee, or after at least two (2) attempts to
deliver by the courier service, or upon the expiration of five (5) calendar days after the first
attempt to deliver, whichever is earlier.

Electronic service is complete at the time of the electronic transmission of the document, or
when available, at the time that the electronic notification of service of the document is sent.
Electronic service is not effective or complete if the party serving the document learns that it did
not reach the addressee or person to be served.

Service by facsimile transmission is complete upon receipt by the other party, as indicated in the
facsimile transmission printout. (10a)

When there is completeness of Service?

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 1. Personal service – Upon actual delivery
2. By ordinary mail – Upon the expiration of ten (10) calendar days after mailing.
3. By registered mail – Upon actual receipt by the addressee or after five (5) calendar days
from the time he or she received the first notice of the postmaster.
4. By accredited courier – Upon actual receipt by the addressee or after at least two (2)
attempts to celiver by the courier service, or upon the expiration of five (5) calendar
days after the first attempt to deliver, whichever is earlier.
5. By Electronic service – At the time of the electronic transmission of the document, or
when available, at the time that the electronic notification of service of the document is
sent.
6. By facsimile transmission – Upon receipt by the other party, as indicated in the facsimile
transmission printout.

Section 16. Proof of filing. — The filing of a pleading or ANY OTHER COURT SUBMISSION shall
be proved by its existence in the record of the case.

(a) If the PLEADING OR ANY OTHER COURT SUBMISSION is not in the record, but is
claimed to have been filed personally, the filing shall be proved by the written or
stamped acknowledgment of its filing by the clerk of court on a copy of the same;

(b) IF THE PLEADING OR ANY OTHER COURT SUBMISSION WAS filed by registered mail,
THE FILING SHALL BE PROVEN by the registry receipt and by the affidavit of the person
WHO MAILED IT, containing a full statement of the date and place of DEPOSIT OF the
mail in the post office in a sealed envelope addressed to the court, with postage fully
prepaid, and with instructions to the postmaster to return the mail to the sender after
ten (10) CALENDAR days if not delivered. (n)

(c) If the pleading or any other court submission was filed through an accredited courier
service, the filing shall be proven by an affidavit of service of the person who brought the
pleading or other document to the service provider, together with the courier’s official
receipt and document tracking number.

(d) If the pleading or any other court submission was filed by electronic mail, the same
shall be proven by an affidavit of electronic filing of the filing party accompanied by a
paper copy of the pleading or other document transmitted or a written or stamped
acknowledgment of its filing by the clerk of court. If the paper copy sent by electronic
mail was filed by registered mail, paragraph (b) of this Section applies.

(e) If the pleading or any other court submission was filed through other authorized
electronic means, the same shall be proven by an affidavit of electronic filing of the filing
party accompanied by a copy of the electronic acknowledgment of its filing by the court.
(12a)

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Section 17. Proof of Service. — Proof of personal service shall consist of a written admission
of the party served, or the official return of the server, or the affidavit of the party serving,
containing a full statement of the date, place and manner of service. If the service is by

(a) Ordinary mail - Proof thereof shall consist of an affidavit of the person mailing of facts
showing compliance with section 7 of this Rule.

(b) Registered mail - Proof shall be made by THE affidavit MENTIONED ABOVE and the
registry receipt issued by the mailing office. The registry return card shall be filed
immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter
together with the certified or sworn copy of the notice given by the postmaster to the
addressee.

(c) Accredited courier service. – Proof shall be made by an affidavit of service executed by
the person who brought the pleading or paper to the service provider, together with the
courier’s official receipt or document tracking number.

(d)Electronic mail, facsimile, or other authorized electronic means of transmission – Proof shall
be made by an affidavit of service executed by the person who sent the e-mail, facsimile, or other
electronic transmission, together with a printed proof of transmittal.

HOW TO PROVE SERVICE (BAR 2011)

1. Proof of personal service shall consist of the written admission of the party served. It
may also be proven by the official return of the server, of the affidavit of the party
serving, containing full information of the date, place and manner of service (Sec. 13,
Rule 13)

2. If the service is by ordinary mail, proof thereof shall consist of the affidavit of the person
mailing of the facts showing compliance with (Sec. 7)

3. Accredited courier service. – Proof shall be made by an affidavit of service executed by

the person who brought the pleading or paper to the service provider, together with the
courier’s official receipt or document tracking number.

4. Electronic mail, facsimile, or other authorized electronic means of transmission – Proof

shall be made by an affidavit of service executed by the person who sent the e-mail,
facsimile, or other electronic transmission, together with a printed proof of transmittal.

Section 18. Court-issued orders and other documents. — The court may electronically serve
orders and other documents to all the parties in the case which shall have the same effect and
validity as provided herein. A paper copy of the order or other document electronically served
shall be retained and attached to the record of the case. (n)

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Section 19. Notice of lis pendens. — In an action affecting the title or the right of possession
of real property, the plaintiff and the defendant, when affirmative relief is claimed in his OR
HER answer, may record in the office of the registry of deeds of the province in which the
property is situated notice of the pendency of the action. Said notice shall contain the names
of the parties and the object of the action or defense, and a description of the property in
that province affected thereby. Only from the time of filing such notice for record shall a
purchaser, or encumbrancer of the property affected thereby, be deemed to have
constructive notice of the pendency of the action, and only of its pendency against the parties
designated by their real names.

The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the
court, after proper showing that the notice is for the purpose of molesting the adverse party,
or that it is not necessary to protect the rights of the rights of the party who caused it to be
recorded.

Notice of Lis Pendens, defined

A notice of lis pendens is an announcement to the whole world that a particular real
property is in litigation, serving as a warning that one who acquires an interest over said
property does so at his own risk, or that he gambles on the result of the litigation over the said
property.
The filing of a notice of lis pendens charges all strangers with a notice of the particular
litigation referred to therein and, therefore, any right they may thereafter acquire on the
property is subject to the eventuality of the suit. Xxxx (Cunanan v. Jjumping Jap trading Corp.,
G.R. No. 173834, April 24, 2009).

When is notice of lis pendens available?

In an action affecting the title or the right of possession of real property, the plaintiff
and the defendant, when affirmative relief is claimed in his answer:
1. Record in the office of the registry of deeds of the province in which the property is
situated notice of the pendency of the action.
2. Said notice shall contain the names of the parties and the object of the action or
defense, and a description of the property in that province affected thereby.

What is the effect of annotation of the notice of lis pendens?

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 Only from the time of filing such notice for record shall a purchaser, or encumbrancer of
the property affected thereby, be deemed to have constructive notice of the pendency of the
action, and only of its pendency against the parties designated by their real names.

What are the grounds for the cancellation of the notice of lis pendens?

The notice of lis pendens hereinabove mentioned may be CANCELLED only upon order
of the court, after proper showing that the notice is for:

1. The purpose of molesting the adverse party, or

2. That it is not necessary to protect the rights of the rights of the party who caused it
to be recorded.

Dual effect of lis Pendens

The filing of lis pendens has a dual effect:
1. To keep the property subject matter of the litigation within the power of the court
until the entry of the final judgment in order to prevent the defeat of the final
judgment by successive alienations; and
2. To bind a purchaser, bona fide or otherwise, of the property subject of the litigation
to the judgmentthat the court will subsequently promulgate. (Vashdeo Gagoomal vs.
Spouses Ramon and Natividad Villacorta, G.R. No. 192813, January 18, 2012)
What are the actions where lis pendens is proper?
Relative thereto, a notice of lis pendens is proper in the following actions and their
concomitant proceedings:
1. An action to recover possession of real estate;
2. An action to quiet title thereto;
3. An action to remove cloud thereon;
4. An action for partition; and
5. Any other proceedings of any kind in court directly affecting title to the land or the
use or occupation thereof or the buildings thereon.

Thus, a notice of lis pendens is only valid and effective when it affects title over or right
of possession of a real property. (Gagoomal vs. Villacorta)

When is lis pendens deemed cancelled?

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 A notice of lis pendens shall be deemed cancelled only upon the registration of a
certificate of the clerk of court in which the action or proceeding was pending stating the
manner of disposal thereof if there was a final judgment in favour of the defendant or the
action was disposed of terminating finally all the rights of the plaintiff over the property in
litigation. (AFP mutual Benefits Asso. Inc v. CA, G.R. No. 104769, March 3, 2007, 327 SCRA 203).
Remedy in case of denial of registration of lis pendens by the Register of Deeds.
1. Appeal to the Land Registration Authority En Consulta within five (5) days under Sec.
117 of PD No. 1529 otherwise known as the Property Registration Decree.
2. Petition for Review with the Court of Appeals within fifteen (15) days under Rule 43
of the Rules of Court;
3. Motion for Reconsideration within fifteen (15) days under Rule 52 of the Rules of
Court.
4. Petition for Review on Certiorari to the Supreme Court within fifteen (15) days under
Rule 45 of the Rules of Court.
Lis pendens distinguished from litis pendencia
Lis pendens should not be confused with litis pendencia because in some instances litis
pendencia is sometime referred as lis pendens, and they differ in the following manner, to wit:
1. Lis pendens is available as a remedy in case a real property is the subject of an action
affecting the title or the right of possession of real property, wherein the plaintiff and
the defendant, when affirmative relief is claimed in his answer may record in the office
of the registry of deeds of the province in which the property is situated a notice of the
pendency of the action; while litis pendencia is a Latin term, which literally means “a
pending suit” and is variously referred to in some decision as lis pendens and auter
action pendant. As a ground for the dismissal of a civil action, it refers to the situation
where two actionsd are pending between the same parties for the same cause of action,
so that one of them becomes unnecessary and vexatious.” (PNB vs. Gateway Property
Holdings, Inc., G.R. No. 181485, February 15, 2012).

2. The purpose of lis pendens are as follows: (1) to keep the property subject matter of the
litigation within the power of the court until the entry of the final judgment in order to
prevent the defeat of the final judgment by successive alienations; and (2) to bind a
purchaser, bona fide or otherwise, of the property subject of the litigation to the
judgment that the court will subsequently promulgate; while the purpose of litis
pendencia is a ground for the dismissal of the action under Sec. 1, e of Rule 16;

3. Lis pendens is made through notice to be filed with the Register of Deeds where the
property is located; while litis pendencia is availed of by way of a motion to dismiss and
filed with the court where the case is pending;

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 4. In case of denial of lis pendens by the Register of Deeds, the remedy of the aggrieved
party is to appeal within five (5) days to the Land Registration Authority En Consulta
under Sec. 11 of PD 1529; while if the motion to dismiss on the ground of litis
pendencia, the remedy is to file the answer within the remaining period but in no case
less than five (5) days under Sec. 4, Rule 16;

5. Notice of lis pendens can be filed after the filng of the action in court, but before finality
of judgment, while a motion to dismiss based on litis pendencia should be filed before
the filing of a responsive pleading.

Sample form:

“NOTICE OF LIS PENDENS

To: The Register of Deeds

Iloilo City

Sir:

Please register a notice of lis pendens of Civil Case No. 12345 on TCT No. 6789 of the
Registry of Deeds for the City of Iloilo, covering a parcel of land which is involved in the above-
entitled case now pending before the Regional Trial Court of Iloilo City. Copy of the Complaint is
hereto attached as part and parcel of this Notice of Lis Pendens.

The land involved in the above entitled case is covered by TCT No. 6789 is described in
said title as follows:

(copy of the technical description of the land)

May we therefore request your Honorable Office to make the proper annotation of the
above notice of lis pendens at the back of the said title.

Iloilo City, Philippines, June 27, 2019.”

RULE 14

SUMMONS

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Section 1.Clerk to issue summons. — Unless the complaint is on its face dismissible under
Section 1, Rule 9, the court shall, within five (5) calendar days from receipt of the initiatory
pleading and proof of payment of the requisite legal fees, direct the clerk of court to issue the
corresponding summons to the defendants.

When can the summons be issued?

The current Rules provide that unless the complaint is on its face dismissible under
Section 1, Rule 9, the court shall, within five (5) calendar days from receipt of the initiatory
pleading (complaint, petition, or third, fourth party complaint) and proof of payment of the
requisite legal fees, direct the clerk of court to issue the corresponding summons to the
defendants.

Pursuant to the above provision, instead of issuing summons to the defedant, the court
may motu proprio dismiss the case, if it finds that any of the grounds provided for under
Section 1, Rule 9 of the Rules of Court exists. For ready reference, Section 1, Rule 9, provides:

“Section 1. Defenses and objections not pleaded. – Defenses and objections not pleaded
either in a motion to dismiss or in the answer are deemed waived. However, when it appears
from the pleadings or the evidence on record:
(1) That the court has no jurisdiction over the subject matter,
(2) That there is another action pending between the same parties for the same cause,
or
(3) That the action is barred by a prior judgment or
(4)By statute of limitations, the court shall dismiss the claim.”

Nature of Summons
Summons is the writ by which the defendant is notified of the action brought against
him. Fundamentally, it is a notice to the defendant that a particular person named therein has
commenced an action against him in a particular court. An important part of that notice is a
direction to the defendant that he must answer the complaint within a specified period of thirty
(30) calendar days from receipt thereof), and that unless he so answers, plaintiff will take
judgment by default and may be granted the relief applied for. (sec. 2, Rule 14, Rules of Court).

When shall summons be served?

The court shall:

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 1. Within five (5) calendar days from receipt of the initiatory pleading and proof of
payment of the requisite legal fees,
2. Direct the clerk of court to issue the corresponding summons to the defendants.

The initiatory pleading could be the complaint, petition or a third-party complaint or

and answer with Permissive counterclaim.
Issuance of summons; not discretionary:
The issuance of summons is not discretionary on the part of the court or the clerk of
court but is a mandatory requirement. The provisions of Sec. 1 of Rule 14 direct that the clerk
of court shall issue the corresponding summons to the defendant upon (a) the filing of the
complaint, and (b) the payment of the requisite legal fees. The use of the term “shall” leaves no
doubt as to the mandatory character of the issuance of summons. Although the issuance of
summons is discretionary in character, but the court may not issue summons if there is ground
for the dismissal of the complaint pursuant to Section 1, Rule 9 of the 2019 Rules of Civil
Procedure. In other words, it becomes mandatory only if there is no ground for a motion to
dismiss as clearly stated in Section 1, Rule 14 of the 2019 Rules of Civil Procedure.
Service of summons is the means by which the court acquires jurisdiction over the
person of the defendant. This process is for the benefit of the defendant, and is intended to
afford the latter an opportunity to be heard on the claim against him. It is an observance of
procedural due process.
Kinds of summons
1. Original summons – is the writ issued by the clerk of court upon receipt of the complaint
and the payment of the requisite docket and other lawful fees by which the defendant is
notified of the action brought against him and requiring him to file his responsive
pleading within the period prescribed by the rules.
2. Alias summons – is a writ issued by the clerk of court when the original summons has
been lost or not duly served without fault on the part of the plaintiff.
Compare summons (Rule 14) and subpoena Rule (21)
1. Summons is a writ issued by the clerk of court which the defendant is notified of the
action brought against him; while subpoena is a writ issued by the judge by which a
person is required to appear and testify before the court or in an investigation or to
bring documents or books to the court;
2. There are two kinds of summons which are original and alias summons; while there are
two kinds of subpoena which are subpoena duces tecum and ad testificandum;

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 3. The purpose of the summons is to acquire jurisdiction over the person of the defendant
or the res; while the purpose of subpoena is to require a person to appear and testify
before the court or in an investigation or to bring documents or books to the court;
4. Remedy in case of defective service of summons is to file an Answer and raise as an
affirmative defense that the court has no jurisdiction over the person of the defending
party; while in subpoena, the remedy is to file a motion to quash subpoena;
5. Summons is issued upon receipt by the clerk of court of the complaint and the
corresponding payment of docket and other lawful fees or when the original summons
has not been seved or was lost without the fault of the plaintiff, while in subpoena it is
issued during the trial.
Purpose of summons in actions in personam:
Since it is a writ by which the defendant is notified of the action brought against him,
the most basic purpose of summons, whatever be the nature of the action involved, is to satisfy
the requirements of procedural due process. Take note, however, in an action in personam, the
purpose of summons is not only to comply with due process but also to acquire jurisdiction
over the person of the defendant.
Purpose of summons in actions in rem and quasi in rem:
In actions in rem and quasi in rem, the court is not concerned with the acquisition of
jurisdiction over the person of the defendant. In other words, service of summons upon the
defendant or respondent is not material for the reason that in these actions, it is the acquisition
by the court of jurisdiction over the res which principally matters.
Examples of Actions In Rem
1. Probate proceeding.
2. Cadastral proceeding.
3. Action affecting the personal status of the plaintiff.
4. Insolvency proceeding.
5. Judicial settlement of a decedent’s estate.
6. Land registration proceeding.
Examples of Quasi in rem actions
(a) Action for partition;
(b) Action for accounting,
(c) Attachment, and
(d) Foreclosure proceeding.

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Voluntary appearance by the defendant:
It has been previously remarked that a basic rule to remember is that the acquisition of
jurisdiction over the person of the defendant is required in an action in personam. But how is
this jurisdiction acquired?
It has also been consistently ruled that jurisdiction over the person of the defendant is
acquired through coercive process, generally by the service of summons issued by the court, or
through the defendant’s voluntary appearance or submission to the court.
BAR QUESTION
Are the rules on summons under Rule 14 of the Rules of Court applicable equally in
actions before the Regional Trial Courts as well as in the Metropolitan Trial Courts, Municipal
Trial Courts and Municipal Circuit Trial Courts?
Suggested answer
The rules on summons are equally applicable to the courts mentioned. The Rules of
Court provide that the procedure in the Municipal Trial Courts shall be the same as in the
Regional Trial Court, except: (a) where a particular provision expressly or impliedly applies only
to either of said courts, or (b) in civil cases governed by the Rule on Summary Procedure (Sec. 1,
Rule 5).

Section 2.Contents. — The summons shall be directed to the defendant, signed by the clerk of
court under seal and contain

(a) The name of the court and the names of the parties to the action;

(b) WHEN AUTHORIZED BY THE COURT UPON EX PARTE MOTION, AN AUTHORIZATION FOR
THE PLAINTIFF TO SERVE SUMMONS TO THE DEFENDANT;

© A direction that the defendant answer within the time fixed by these Rules;

(d) A notice that unless the defendant so answers plaintiff will take judgment by default and
may be granted the relief applied for.

A copy of the complaint and order for appointment of guardian ad litem if any, shall be
attached to the original and each copy of the summons.

What are the contents of summons?

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 The summons shall be directed to the defendant, signed by the clerk of court under seal
and contain the following:

(a) The name of the court and the names of the parties to the action;

(b) WHEN AUTHORIZED BY THE COURT UPON EX PARTE MOTION, AN AUTHORIZATION

FOR THE PLAINTIFF TO SERVE SUMMONS TO THE DEFENDANT;

(c) A direction that the defendant answer within the time fixed by these Rules;

(d) A notice that unless the defendant so answers plaintiff will take judgment by default
and may be granted the relief applied for.

(d) A copy of the complaint and order for appointment of guardian ad litem if any, shall
be attached to the original and each copy of the summons.

Under this amendment, is a modification which allows the plaintiff himself to serve
summons to the defendant. It states “WHEN AUTHORIZED BY THE COURT UPON EX PARTE
MOTION, AN AUTHORIZATION FOR THE PLAINTIFF TO SERVE SUMMONS TO THE DEFENDANT.”
This is one of the means by which the plaintiff may be allowed to serve summons to the
defendant in addition to those provided for under Section 3, Rule 14. As distinguished from said
Section 3, Rule 14, the ex-parte motion for leave to serve summons to the defendant shall be
attached to the complaint upon its filing with the court.

Sample form: SUMMONS

TO: MR ROEL GO
GREETINGS:
You are hereby required within thirty (30) calendar days after the service of this
Summons upon you, to file with this Court and serve on the plaintiff your answer to the
complaint, copy of which is attached together with annexes. You are reminded of the provision
of the IBP-COA Memorandum on Policy Guidelines dated March 12, 2002 to observe restraint in
filing a motion to dismiss and instead allege the grounds thereof as defences in the Answer. If
you fail to answer within the time fixed, the plaintiff will take judgment by default and may be
granted the relief applied for in the complaint.

WITNESS my hand under the seal of the Court, this ____ day of June, 2019.
Atty. Stephen James C. Justalero
Clerk of Court

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Section 3.By whom served. — The summons may be served by the sheriff, his deputy, or
other proper court officer, or AND IN CASE OF FAILURE OF SERVICE OF SUMMONS BY THEM,
THE COURT MAY AUTHORIZE THE PLAINTIFF – TO SERVE SUMMONS – TOGETHER WITH THE
SHERIFF.

In cases where summons is to be served outside the judicial region of the court where the case is
pending, the plaintiff shall be authorized to cause the service of summons.

If the plaintiff is a juridical entity, it shall notify the court, in writing, and name its authorized
representative therein, attaching a board resolution or secretary’s certificate thereto, as the case
may be, stating that such representative is duly authorized to serve the summons on behalf of the
plaintiff.

If the plaintiff misrepresents that the defendant was served summons, and it is later proved that
no summons was served, the case shall be dismissed with prejudice, the proceedings shall be
nullified, and the plaintiff shall be meted appropriate sanctions.

If summons is returned without being served on any or all the defendants, the court shall order
the plaintiff to cause the service of summons by other means available under the Rules.

Failure to comply with the order shall cause the dismissal of the initiatory pleading without
prejudice. (3a)

Purpose of service of summons

1. To acquire jurisdiction over the person of the defendant;

2. To notify the defendant that an action has been commenced so that he may be given an
opportunity to be heard in the claim against him.

By whom summon is served

While it is the clerk of court who issues the summons, it is not the clerk of court who
serves the same. Under the Rules, the summons may be served by the sheriff, his deputy, or
other proper court officer, or for justifiable reasons, by any suitable person authorized by the
court issuing the summons. The summons may be served by the sheriff, his deputy, or other
proper court officer, or AND IN CASE OF FAILURE OF SERVICE OF SUMMONS BY THEM, THE
COURT MAY AUTHORIZE THE PLAINTIFF – TO SERVE SUMMONS – TOGETHER WITH THE
SHERIFF. In cases where summons is to be served outside the judicial region of the court where
the case is pending, the plaintiff shall be authorized to cause the service of summons.

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Service of Summons by Plaintiff

In the following cases, upon proper authority of the court (meaning with leave of court),
summons may be served by the plaintiff:

1. When authorized by the court upon an ex parte motion under Section 2, (b) Rule 14.

2. In case of failure on the part of the sheriff, his deputy or other proper court officer, the
court may authorize the plaintiff to serve the summons, together with the sheriff.
3. In cases when summons is to be served outside the judicial region of the court, the
plaintiff shall be authorized to cause the service of summons.
4. In case summons is returned without being served on any or all the defendants, the
court shall order the plaintiff to cause the service of summons by other means available
under the Rules.

What is the rule if the plaintiff is a juridical entity?

If the plaintiff is a juridical entity, it shall notify the court, in writing, and name its
authorized representative therein, attaching a board resolution or secretary’s certificate
thereto, as the case may be, stating that such representative is duly authorized to serve the
summons on behalf of the plaintiff.

Is there sanction in case of plaintiff’s misrepresentation?

If the plaintiff misrepresents that the defendant was served summons, and it is later
proved that no summons was served, the case shall be dismissed with prejudice, the
proceedings shall be nullified, and the plaintiff shall be meted appropriate sanctions.

Note: The above provision is not clear on whether the court may motu proprio dismiss
the case or it requires a motion from the defendant, without considering him as making a
voluntary appearance in court.

Consequence of failure to comply with the court’s order

Failure to comply with the order, (on the part of the plaintiff to serve summons by other
means available under the Rules) without justifiable reasons, shall cause the dismissal of the
initiatory pleading without prejudice. This is an additional ground for the dismissal of initiatory
pleading for failure to comply with the order of the court.

What does the Rule mean when it say “serve summons by other means available under the
Rules?

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 It simply means that the service of summons may be made by (1) substituted service of
summons, (2) by service of summons by publication, (3) service consistent with international
conventions, or (4) extraterritorial service of summons)

Section 4. Validity of summons and issuance of alias summons — Summons shall remain valid
until duly served, unless it is recalled by the court. In case of loss or destruction of summons, the
court may, upon motion, issue an alias summons.

There is failure of service after unsuccessful attempts to personally serve the summons on the
defendant in his or her address indicated in the complaint. Substituted service should be in the
manner provided under Section 6 of this Rule.

Validity of Summons

Summons shall remain valid until it is duly served, or it is recalled by the court which
issued said summons.

When can the court issue an alias summons?

Summons shall remain valid until duly served, unless it is recalled by the court. In case of
LOSS or DESTRUCTION of summons, the court may, upon motion, issue an alias summons. It is
crystal clear that the court cannot issue an alias summons motu proprio as it requires the filing
of a motion known as “Motion for the Issuance of an Alias Summons.”

Alias Summons

An alias summons is one issued when the original has not produced its effect because of
a DEFECT IN FORM or IN THE MANNER OF SERVICE, and when issued supersedes the first writ.
Under Sec. 5, Rule 14, an alias summons is issued upon demand by the plaintiff when the
original summons is returned without being served on any or all of the defendants or if the
summons has been lost.

To sum up, the court may issue alias summons, based on the Rules and jurisprudence,
upon motion, on the following instances:

1. There is defect in form;

2. There is defect in the service;
3. In case of its loss;
4. In case of its destruction.

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When there is failure of service

There is failure of service after unsuccessful attempts to personally serve the summons
on the defendant in his or her address indicated in the complaint. Substituted service should be
in the manner provided under Section 6 of this Rule.

Section 5. Service in person on defendant. — Whenever practicable, the summons shall be

served by handling a copy thereof to the defendant in person AND INFORMING THE
DEFENDANT THAT HE OR SHE IS BEING SERVED, OR, IF HE OR SHE refuses to receive and sign
for it, BY LEAVING THE SUMMONS WITHIN THE VIEW AND IN THE PRESENCE OF THE
DEFENDANT.

How service in person on defendant being done?

Whenever practicable, the summons shall be served upon the person of the defendant:
1. By HANDING a copy thereof to the defendant in person and informing him or her
that he or she is being served with said summons, or

2. If he refuses to receive and sign for it, by LEAVING THE SUMMONS WITHIN THE
VIEW AND IN THE PRESENCE OF THE DEFENDANT.”

Two kinds of Service in Person of the Defendant

1. By handing a copy of the summons to the defendant, or

2. By leaving a copy of the summons within the view and in the presence of the defendant
(if he refuses to receive and sign it.)

Purpose of personal service of summons: Preferred mode:

Personal service of summons or “Service in Person on Defendant” is the most effectively

ensures that the notice desired under the constitutional requirement of due process is
accomplished – the essence of personal service is the handling or tendering of a copy of the
summons to the defendant himself, wherever he may be found, that is, wherever he may be,
provided he is in the Philippines.

It is only when the defendant refuses to receive it that the serving officer may resort to
the second mode of “service in person of the defendant” that is by leaving the summons within
the view and in the presence of the defendant. In this case, the serving officer may leave a copy
of the summons say in the terrace or at the gate, as long as it is within the view and in the
presence of the defendant.

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In an action in personam personal service is a preferred mode: how?

In an action strictly in personam, personal service on the defendant is the preferred

mode of service, that is, by handling a copy of the summons to the defendant in person and
informing him or her that he or she is being served, and if he refuses, for excusable reasons,
cannot be served with the summons within a reasonable period, then substituted service can
be resorted to.

The modes of service must be strictly followed in an action in personam

Service of summons is the means of acquiring jurisdiction over the person of the
defendant in action in personam and a means by which the due process requirement of notice
of the Constitution is complied with. The rules require not just a mere service of summons. The
modes of service must be strictly followed in order that the court may acquire jurisdiction over
the person of the defendant. (Umandap vs. Sabia Jr., 339 SCRA 243).

Section 6. Substituted service. — If, for justifiable causes, the defendant cannot be served
PERSONALLY AFTER AT LEAST THREE (3) ATTEMPTS ON TWO (2) DIFFERENT DATES, service
may be effected:

(a) By leaving copies of the summons at the defendant's residence TO A PERSON AT LEAST
EIGHTEEN (18) YEARS OF AGE AND OF SUFFICIENT DISCRETION residing therein, or

(b) By leaving the copies OF THE SUMMONS at defendant's office or regular place of business
with some competent person in charge thereof. A COMPETENT PERSON INCLUDES, BUT IS
NOT LIMITED TO, ONE WHO CUSTOMARILY RECEIVES CORRESPONDENCES FOR THE
DEFENDANT.

(c) By leaving copies of the summons, if refused entry upon making his or her authority and
purpose known, with any of the officers of the homeowners’ association or condominium
corporation, or its chief security officer in charge of the community or the building where the
defendant may be found; and

(d) By sending an electronic mail to the defendant’s electronic mail address, if allowed by the
court. (7a)

How can substituted service of summons be effected?

Section 6, Rule 14, provides:

“Section 6. Substituted service. — If, for justifiable causes, the defendant cannot be
served PERSONALLY AFTER AT LEAST THREE (3) ATTEMPTS ON TWO (2) DIFFERENT DATES,
service may be effected:

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(a) By leaving copies of the summons at the defendant's residence TO A PERSON AT LEAST
EIGHTEEN (18) YEARS OF AGE AND OF SUFFICIENT DISCRETION residing therein, or

(b) By leaving the copies OF THE SUMMONS at defendant's office or regular place of business
with some competent person in charge thereof. A COMPETENT PERSON INCLUDES, BUT IS NOT
LIMITED TO, ONE WHO CUSTOMARILY RECEIVES CORRESPONDENCES FOR THE DEFENDANT.

A fair reading of the provisions of paragraphs (a) and (b) of Section 6, Rule 14, it would
appear that if the service in person to the defendant could not be had, the serving officer has
the option of serving the summons to the defendant’s residence or to the defedant’s office or
regular place of business. Simply put, once summons has been served at the defendant’s
residence, there is no need to serve anew the summons to the defendant’s office or place of
business. In the same manner, once summons has been served at the defendant’s office or
regular place of business, there is no reason that summons should be served anew at the
defendant’s residence.

The only difference between service of summons at the defendant’s residence and
service of summons at the defendant’s office or regular place of business is with respect to the
person to whom summons should be left. If the summons is to be served upon the defendant’s
residence, it must be left to a person (1) at least 18 years of age, (2) of sufficient age and
discretion, and (3) must be residing therein. On the other hand, if summons is to be served at
the defendant’s office or regular place of business, the only requirement is that the summons
must be left to some competent person in charge of the office such as the person who
customarily receives correspondence for the defendant like the manager or the office
secretary.

(c) By leaving copies of the summons, if refused entry upon making his or her authority and
purpose known, with any of the officers of the homeowners’ association or condominium
corporation, or its chief security officer in charge of the community or the building where the
defendant may be found; and

(d) By sending an electronic mail to the defendant’s electronic mail address, if allowed by the
court. “

Only if service in person of the defendant cannot be made promptly can the sheriff or
process server resort to substituted service.
In our jurisdiction, for substituted service of summons to be valid, it is necessary to
establish the following:

1. The impossibility of service of summons within a reasonable time, PERSONALLY

AFTER AT LEAST THREE (3) ATTEMPTS ON TWO (2) DIFFERENT DATES, service may be
effected:

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 2. The efforts exerted to locate the person to be served; and
3. (a) By leaving copies of the summons at the defendant's residence TO A PERSON AT
LEAST EIGHTEEN (18) YEARS OF AGE AND OF SUFFICIENT DISCRETION residing
therein, or
4. (b) By leaving the copies OF THE SUMMONS at defendant's office or regular place of
business with some competent person in charge thereof. A COMPETENT PERSON
INCLUDES, BUT IS NOT LIMITED TO, ONE WHO CUSTOMARILY RECEIVES
CORRESPONDENCES FOR THE DEFENDANT.

It is clear from the foregoing substituted service of summons, it is necessary that

“personal service of summon” must first be resorted to by the sheriff or other persons
authorized by the court. The sheriff or other persons authorized by the court cannot
immediately avail of substituted service of summons without first exhausting “personal service
of summons” to the defendant. The present rules make it clear that before resorting to
substituted service of summons, there must be at least three (3) attempts on two (2) different
dates to personally serve summons to the defendant. It is only then that after three (3)
unsuccessful attempts on two (2) different dates that the sheriff may consider substituted
service of summons.
5. (c) By leaving copies of the summons, if refused entry upon making his or her
authority and purpose known, with any of the officers of the homeowners’
association or condominium corporation, or its chief security officer in charge of the
community or the building where the defendant may be found; and
6. (d) By sending an electronic mail to the defendant’s electronic mail address, if
allowed by the court. “

BAR 2016

Teddy filed against Buboy an action for rescission of a contract for the sale of a
commercial lot. After having been told by the wife of Buboy that her husband was out of town
and would not be back until after a couple of days, the sheriff requested the wife to just receive
the summons in behalf of her husband. The wife acceded to the request, received the summons
and a copy of the complaint, and signed for the same.

(a) Was there a valid service of summons upon Buboy? Explain your answer briefly.
(b) If Buboy files a motion to dismiss the complaint based on the twin grounds of lack of
jurisdiction over his person and prescription of the cause of action, may he be deemed to have
voluntarily submitted himself to the jurisdiction of the court? Explain your answer briefly.

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Suggested answer

(a) No, there was no valid service of summons upon Buboy.

The Supreme Court has held that in order that there will be valid substituted service of
summons, the sheriff must have exerted diligent efforts to effect personal service of summons
within a reasonable time.
Here there were no such diligent efforts on the part of the sheriff since he effected
substituted service on his very first try. Hence there was no valid service of summons upon
Buboy.
BAR 2017
Juan sued Roberto for specific performance. Roberto knew that Juan was going to file
the case so he went out of town and temporarily stayed in another city to avoid service of
summons. Juan engaged the services of Sheriff Matinik to serve the summons but when the
latter went to the residence of Roberto, he was told by the caretaker thereof that his employer
no longer resides at the house. The caretaker is a high school graduate and is the godson of
Roberto. Believing the caretaker's story to be true, Sheriff Matinik left a copy of the summons
and complaint with the caretaker. Was there a valid substituted service of summons? Discuss
the requirements for a valid service of summons. (5pts)
Suggested answer

Yes, there was a valid service of summons. In a case involving similar facts, the Supreme
Court held that there was a valid substituted service of summons since the defendant was
engaged in deception to thwart the orderly administration of justice.

Here the defendant was also engaged in deception since he temporarily stayed in
another city to avoid service of summons and his caretaker falsely said he no longer resides in
the house. (Sagana v. Francisco, 2 Oct 2009).

The operative fact that triggers the application of substituted service is when “for
justifiable cause, the defendant cannot be served within a reasonable time.” “Within a
reasonable time contemplates a period of time longer than that demarcated by the word
“prompt” and presupposes that a prior attempt at personal service, within a justifiable time
frame as would be necessary to bring the defendant within the jurisdiction of the court, had
failed. (Laus v. Court of Appeals, 219 SCRA 688).

Where the substituted service of summons has been validly served, its validity is not
affected by the defendant’s failure to actually receive the summons from the person with
whom the summons had been left. It is immaterial that the defendant does not in fact receive
actual notice (Montalban v. Maximo, 22 SCRA 1070). The rules on substituted service do not

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require that plaintiff or the server to verify that the copy of the summons left with the proper
person in the defendant’s residence or office was delivered to the defendant by the recipient.

Section 7.Service upon entity without juridical personality. — When persons associated in an
entity without juridical personality are sued under the name by which they are generally or
commonly known, service may be effected upon all the defendants by serving upon any one
of them, or upon the person in charge of the office or place of business maintained in such
name. But such service shall not bind individually any person whose connection with the
entity has, upon due notice, been severed before the action was FILED.

To whom the summons shall be served in case of an entity without juridical personality?

When persons associated in an entity without juridical personality (association or

partnership not duly registered with the government agency concerned) are sued under the
name by which they are generally or commonly known, service may be effected upon:

1. All the defendants by serving upon ANY ONE of them, or

2. Upon the person in charge of the office or place of business maintained in such
name.

Example

ABC Corporation, not being duly registered with the appropriate government agency
concerned, is an entity without juridical personality, and managed and operated by A, B and C.
If said ABC Corporation is being sued for Breach of Contract under the name ABC Corporation,
summons may be served upon any one of the defendant, or upon the person in charge of the
office or place of business maitaijed by such ABC Corporation.

What is the effect of the service of summons to an entity without juridical personality if a
person is no longer connected with it before the action is filed?

Such service shall not bind individually any person whose connection with the entity
has, upon due notice, been severed before the action was brought.

Simply put, Section 7 specifies the person upon whom service shall be made when
persons associated in an entity without a juridical personality are sued. This provision is a
necessary consequence of Sec. 15, Rule 3. Under this provision, when persons not organized as
juridical entity enter into a transaction, they may be sued in connection with such trasanction
under the name by which they are generally or commonly known. Sec. 15 however, does not
include an authority to the entity to sue under the common name.

Section 8.Service upon prisoners. — When the defendant is a prisoner confined in a jail or
institution, service shall be effected upon him OR HER by the officer having the management

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of such jail or institution who is deemed deputized as a special sheriff for said purpose. THE
JAIL WARDEN SHALL FILE A RETURN WITHIN FIVE (5) CALENDAR DAYS FROM SERVICE OF
SUMMONS TO THE DEFENDANT.

To whom the summons shall be served in case of a prisoner?

When the defendant is a prisoner confined in a jail or institution, service shall be

effected upon:

1. Upon him by the OFFICER having the management of such jail or institution who is
deemed deputized as a special sheriff for said purpose.

The service of the summons is made upon the prisoner himself but served by the officer
having the management of the jail or institution where the prisoner is confined. Said officer is
deputized by the Rules as a special sheriff for purposes of service of summons. Under the
former Rules, serving on the officer having the management of the jail or institution may effect
service upon the prisoner. This means that service upon the officer will be deemed service upon
the prisoner. This is not so under the present Rules where the service must be made upon the
defendant prisoner himself and not the officer, the latter being now deputized sheriff who shall
serve the summons upon the prisoner.

2. The new Rules also provide that the Jail Warden shall file a return within five (5)
calendar days from service of summons to the defendant.

Example

Leila is a defendant in civil case for Annulment of Title, and she is a detention prisoner at
the BJMP for the crime of Violation of R.A. No. 9165. Service of summons may be effected upon
her through the jail warden or the officer having the management of such BJMP, who is
deemed deputized as special sheriff for such purpose. The jail warden shall file a return within
five (5) calendar days from service of summons to the defendant.

Section 9. Service consistent with international conventions. — Service may be made through
methods which are consistent with established international conventions to which the Philippines
is a party. (n)

Service Consistent with International conventions

The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters, more commonly known or called the Hague Service Convention, is a
multilateral treaty which was adopted in The Hague, The Netherlands, on November 15, 1965
by member states of the Hague Conference on Private International Law. It came into existence
to give litigants a reliable and efficient means of serving the documents on parties living,
operating or based in another country. The provisions of the convention apply to service of

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process in civil and commercial matters but not criminal matters. Also, Article 1 states that the
Convention shall not apply if the addres of the person to be served with the document is not
known.

Procedure

The Hague Service Convention established a more simplified means for parties to effect
service in other contracting states. Under the Convention, each contracting state is required to
designate a central authority to accept incoming request for service. A judicial officer who is
competent to serve process in the state of origin is permitted to send request for service
directly to the central authority of the state where service is to be made. Upon receiving the
request, the central authority in the receiving state arranges for service in a matter permitted
within the receiving state, typically through a local court. Once service is effected, the central
authority sends a certificate of service to the judicial officer who made the request. Parties are
required to use three standardized forms: a request for service, a summary of the proceedings
(similar to summons), and a certificate of service.

The Hague Convention does not prohibit a receiving state from permitting international
service by methods otherwise authorized by domestic law. For example, a state could allow
service directly by mail or personal service. States which permit parties to use these alternative
means of service make a separate designation in the documents they file upon ratifying or
acceding to the Convention.

Guidelines on the Implementation of the Service Convention in the Philippines (SC En

Banc, Administrative Order No. 251 – 2020), which took effect in October, 2020.

Section 2. Application of the Hague Service Convention. The Hague Service Convention
shall apply in the Philippines, provided the following conditions are present:

1. A document is to be transmitted from one State Party for service to another State Party;
2. The address of the intended recipient in the receiving State Pary is known;
3. The document to be served is a judicial document; and
4. The document to be served relates to a civil or commercial matter.

Section 10. Service upon minors and incompetents. — When the defendant is a minor, insane or
otherwise an incompetent person, service of summons shall be made upon him or her personally
AND on his or her legal guardian if he or she has one, or if none, upon his or her guardian ad
litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service shall
be made on his or her parent or guardian. (10a)

To whom the summons shall be served in case of a minor or incompetent?

When the defendant is a minor, insane or otherwise an incompetent, service shall be

made:

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 1. Upon him personally AND on his legal guardian if he has one, or
2. If none his guardian ad litem whose appointment shall be applied for by the
plaintiff.
3. In the case of a minor, service may also be made on his father or mother or
guardian.

To be considered insane or incompetent, a judicial declaration is NOT required by the

Rules. It is enough that the person be alleged to be incompetent. The summons shall be served
not only upon the minor, insane or incompetent personally. Sec. 10 provides: “and on his legal
guardian if he has one.” If the minor or incompetent has no legal guardian, the plaintiff must
obtain the appointment of a guardian ad litem for him. In the case of a minor, service may also
be served on his father or mother instead of on the legal guardian.

For instance, Lito, a minor, was charged for Sum of Money with Damages. Based on the
forgoing provision, summons shall be served upon Lito AND his parents or guardian. In other
words, service of summons upon Lito alone would not be sufficient for the reason that a minor
is not capacitated to enter into any contract.In the same way, if the defendant is an insane or
incompetent, for service of summons to be effective, it must be served not only upon the
insane or incompetent to his parents or legal guardian or to his guardian ad litem.

Section 11. Service upon spouses. — When spouses are sued jointly, service of summons should
be made to each spouse individually. (n)

What is the rule on service of summons upon the spouses?

The current Rules provide that when spouses are sued jointly, service of summons
should be made to each spouse individually. (n)

It follows, therefore, that if the spouses are sued individually or separately, service of
summons should only be made upon such spouse. For instance, spouses X and Y are sued for
Sum of Money for their unpaid debts. In this case, summons must be served upon them
individually. However, if only spouse X is being sued for Damages, then the summons must only
be served upon him, and the service of summons to his spouse Y is not required anymore.

Section 12. Service upon domestic private juridical entity. — When the Defendant is a
corporation, partnership or association organized under the laws of the Philippines with a
juridical personality, service may be made on the president, managing partner, general manager,
corporate secretary, treasurer, or in-house counsel of the corporation wherever they may be
found, or in their absence or unavailability, on their secretaries.

If such service cannot be made upon any of the foregoing persons, it shall be made upon the
person who customarily receives the correspondence for the defendant at its principal office.

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In case the domestic juridical entity is under receivership or liquidation, service of summons
shall be made on the receiver or liquidator, as the case may be.

Should there be a refusal on the part of the persons above-mentioned to receive summons despite
at least three (3) attempts on two (2) different dates, service may be made electronically, if
allowed by the court, as provided under Section 6 of this Rule. (11a)

To whom summons shall be served in case of a domestic private juridical entity?

When the defendant is a corporation, partnership or association organized under the

laws of the Philippines with a juridical personality, service may be made on the:

1. President,
2. Managing partner,
3. General manager,
4. Corporate secretary,
5. Treasurer, or
6. In-house counsel.
7. In their absence or unavailability, on their secretaries.
8. If such service cannot be made upon any of the foregoing persons, it shall be made
upon the person who customarily receives correspondence for the defendant at its
principal office.

It is submitted that the previous rulings of the Supreme Court on the exclusivity of the
persons who would receive summons still hold true. Thus “As a general rule, service of
summons must be served on the person named in the Rules. Thus, it has been ruled that
service on persons other than those mentioned is invalid and does not bind the corporation.”
(Delta Motor Sales Corp. v. Mangosing, 70 SCRA 598)
As presently worded, Sec. 12 of Rule 14 is more specific. As earlier discussed, service
upon an agent of the corporation is no longer permitted. The designation of persons authorized
to accept service of summons is limited to those enumerated in Sec. 12 of Rule 14. Hence,
service of summons upon the branch manager of the defendant did not enable the court to
acquire jurisdiction over the person of said defendant (E.B. Villarosa & Partner Ltd. V. Benito,
G.R. No. 136426 August 6, 1999).
This enumeration has been held to be limited to the persons enumerated and summons
cannot be served upon any other person. The case of E.B. Villarosa &Partner Ltd. V. Benito, 312
SCRA 65 clearly considers the enumeration as “restricted, limited and exclusive.”

What is the rule with respect to juridical entity under receivership or liquidation?
In case the domestic juridical entity is under receivership or liquidation, service of
summons shall be made on the RECEIVER or LIQUIDATOR, as the case may be.

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What is the rule in case the persons named above refused to receive summons?
Should there be a refusal on the part of the persons above-mentioned to receive
summons despite at least three (3) attempts on two (2) different dates, service may be made
electronically, if allowed by the court, as provided under Section 6 of this Rule (11a). This
section allows the availment of substituted service of summons in the event that after three (3)
unsuccessful attempts on two (2) different dates, the persons above enumerated refuses to
receive the summons. In this particular case, the substituted service of summons is to be made
electronically, upon proper authorization by the court where the case is pending.

Bar question
“A” sued XX Corporation (XXC), a corporation organized under the Philippine laws, for
specific performance when the latter failed to deliver T-shirts to the former as stipulated in the
contract of sale. Summons was served on the corporation’s cashier and director. Would you
consider service of summons on either officer sufficient?
Suggested answer:
The service of summons to the corporation’s cashier and director is not sufficient. When
the defendant is a corporation organized under the laws of the Philippines with a juridical
personality, service of summons is to be made on the president, managing partner, general
manager, corporate secretary, treasurer, or in-house counsel (Sec. 11, Rule 14). The cashier and
the director do not belong to the enumerated persons under Sec. 11, Rule 14 of the Rules of
Court.
What is the remedy of the plaintiff in case service of summons cannot be made to the officers
of the corporation in an action in personam?

The remedy of the plaintiff in case of failure to serve the summons to the officers of a
domestic corporation in an ACTION IN PERSONAM is to amend his complaint and asked for the
issuance of a writ of preliminary attachment thereby converting the action into an action quasi
in rem where service of summons by publication is allowed in order to acquire jurisdiction over
the res and the acquisition of jurisdiction is merely for observance of due process.

For instance, a complaint for damages was filed against the corporation through its
officer, and there was a failure to serve the summons to the officers of said corporation. The
remedy of the plaintiff is to amend his complaint and to pray for the issuance of a preliminary
attachment, which in effect converted his action into an action quasi in rem where service of
summons by publication may be allowed by the court.

Section 13. Duty of counsel of record. — Where the summons is improperly served and a lawyer
makes a special appearance on behalf of the defendant to, among others, question the validity of

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service of summons, the counsel shall be deputized by the court to serve summons on his or her
client. (n)

State the rule on the duty of counsel of record where summons is improperly served

Where the summons is improperly served and a lawyer makes a special appearance on
behalf of the defendant to, among others, question the validity of service of summons, the
counsel shall be deputized by the court to serve summons on his or her client. (n)

The above provision deals with a situation wherein summons was improperly served
upon the defendant, either because “personal service to the defendant” was not in accordance
with Section 5 hereof or the substituted service of summons was not in compliance with
Section 6, hereof.

As a matter of course, the counsel for the defendant would make a special appearance
purposely to question the validity of the service of summons. If the court believes that indeed
there was improper service of summons upon the defendant, instead of dismissing the case,
the court would deputize the said counsel for the defendant to serve the summons on his or
her client. (In the event like this, the counsel is advised not to anymore make a special
appearance, otherwise this section authorizes the court to deputize him to serve summons to
his client. The better option open to the said counsel is to file an answer and raise as one of his
affirmative defences the court’s lack of jurisdiction over the person of the defendant or his
client.)

Section 14. Service upon foreign private juridical entities. — When the defendant is a foreign
private juridical entity which has transacted or is doing business in the Philippines, as defined by
law, service may be made on its resident agent designated in accordance with law for that
purpose, or, if there be no such agent, on the government official designated by law to that effect,
or on any of its officers, agents, directors or trustees within the Philippines.

If the foreign private juridical entity is not registered in the Philippines, or has no resident agent
but has transacted or is doing business in it, as defined by law, such service may, with leave of
court, be effected outside of the Philippines through any of the following means:

(a) By personal service coursed through the appropriate court in the foreign country with the
assistance of the department of foreign affairs;

(b) By publication once in a newspaper of general circulation in the country where the defendant
may be found and by serving a copy of the summons and the court order by registered mail at the
last known address of the defendant;

(c) By facsimile; ( A method or device for transmitting documents, drawings, photographs, or

the like, by means of radio or telephone for exact reproduction elsewhere.)

(d) By electronic means with the prescribed proof of service; or

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(e) By such other means as the court, in its discretion, may direct. (12a)

Service of Summons Upon a Foreign Private Juridical Entity

Service of summons upon a foreign private juridical entity which has transacted business
in the Philippines may be made on the following:

(a) Its resident agent designated in accordance with law for that purpose, or if there be
no such agent,

(b) On the government official designated by law to that effect, or

(c) On any of its officers or agents within the Philippines.

(d) On its directors or trustee.

If the foreign private juridical entity is not registered in the Philippines, or has no
resident agent but has transacted or is doing business in it, as defined by law, such service may,
with leave of court, be effected outside of the Philippines through any of the following means:

(a) By personal service coursed through the appropriate court in the foreign country with
the assistance of the department of foreign affairs. This is in consonance with The
Hague Service Convention and made applicable to the Philippines through an SC En
Banc A.O. No. 251-2020, effective on October, 2020, pursuant to the “Guidelines on
the Implementation of the Service Convention in the Philippines.”

(b) By publication once in a newspaper of general circulation in the country where the
defendant may be found and by serving a copy of the summons and the court order by
registered mail at the last known address of the defendant;

(c) By facsimile. (Please take not that service of summons by Facsimile is applicable only in case
the defendant is a Foreign Private Juridical Entities. Hence, it has no application when the
defendant is a Domestice Private Juridical Entity, wherein summons may be served, among
other things, by electronic means but not by facsimile.

(d) By electronic means with the prescribed proof of service; or

(e) By such other means as the court, in its discretion, may direct.

BAR 2015

Circe filed with the RTC a complaint for the foreclosure of real estate mortgage against
siblings Scylla and Charybdis, co-owners of the property and cosignatories to the mortgage

263
 deed. The siblings permanently reside in Athens, Greece. Circe tipped off Sheriff Pluto that
Scylla is on a balikbayan trip and is billeted at the Century Plaza Hotel in Pasay City. Sheriff Pluto
went to the hotel and personally served Scylla the summons, but the latter refused to receive
summons for Charybdis as she was not authorized to do so. Sheriff Pluto requested Scylla for
the email address and fax number of Charybdis which the latter readily gave. Sheriff Pluto, in
his return of the summons, stated that "Summons for Scylla was served personally as shown by
her signature on the receiving copy of the summons. Summons on Charybdis was served
pursuant to the amendment of Rule 14 by facsimile transmittal of the summons and complaint
on defendant's fax number as evidenced by transmission verification report automatically
generated by the fax machine indicating that it was received by the fax number to which it was
sent on the date and time indicated therein."

Circe, sixty (60) days after her receipt of Sheriff Pluto's return, filed a Motion to Declare
Charybdis in default as Charybdis did not file any responsivepleading.

a.) Should the court declare Charybdis in default?

Scylla seasonably filed her answer setting forth therein as a defense that Charybdis had paid the
mortgage debt.

b.) On the premise that Charybdis was properly declared in default, what is the effect of
Scylla's answer to the complaint?

Suggested answers (Note: the suggested answer should be properly modified in the light of the
current amendments in the 2019 Rules of Civil Procedure)

a) No, the court should not declare Charybdis in default. Under the Rules of Court, the
amendment of Rule 14 allowing service of summons by facsimile transmittal refers only to
service of summons upon a foreign private juridical entity under Section 12 of Rule 14, not to a
non-resident defendant under Section 15 of Rule 14. Service of summons by facsimile cannot
be effected under Section 15 unless leave of court was obtained specifically permitting service
by facsimile transmittal.

Here the defendant is not a foreign private juridical entity but a non-resident defendant
and no leave of court was obtained to serve summons by facsimile.

Hence there was no valid service of summons and thus the court could not declare
Charybdis in default.

b) The effect of Scylla’s answer to the complaint is that the court shall try the case
against both Scylla and Charybdis upon the answer filed by Scylla.

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 Under Section 3(c) of Rule 9, when a pleading asserting a claim states a common cause
of action against several defending parties, some of whom answer and the others fail to do so,
the court shall try the case against all upon the answers thus filed and render judgment upon
the evidence presented.

Here there was a common cause of action against Scylla and Charybdis since both were
co-signatories to the mortgage deed.

Hence the court should not render judgment by default against Charybdis but should
proceed to try the case upon the answer filed and the evidence presented by Scylla.

The term “foreign private juridical entity” used in the present Rules is broad enough to
include not only foreign corporations but other foreign juridical entities as well. If they have
transacted business in the Philippines, they may be served with summons in accordance with
Sec. 12 of Rule 14. The present Rules no longer require a foreign entity to be doing business in
the Philippines. It is enough that it has transacted business in the country. “Doing business”
implies a continuity of commercial dealings and arrangements and the performance of acts or
works or the exercise of some of the functions normally incident to the purpose or object of its
organization.

Foreign corporations are allowed under Sec. 123 of the Corporation Code to transact
business in the Philippines after it shall have obtained a license to transact business in the
country and a certificate of authority from the appropriate government agency. Among other
requirements for the issuance of a license, the Securities and Exchange Commission shall
require a condition precedent that such corporation file with the Commission a written power
of attorney designating some person who must be a resident of the Philippines on whom any
summons and other legal processes may be served in all actions or other legal proceedings
against such corporation, and consenting that service upon such resident agent shall be
admitted and held as valid as if served upon the duly authorized officers of the foreign
corporation at its home office. (Sec. 128, Corporation Code). A resident agent may be either an
individual residing in the Philippines or a domestic corporation lawfully transacting business in
the Philippines (Sec. 127 of the Corporation Code).

When a foreign corporation has duly designated a person authorized to receive service
of summons, service must be made upon the person thus designated. That designation is
exclusive and service upon any other person in inefficacious (H.B. Zachry Company
International v. Court of Appeals, 232 SCRA 329).

The issuance of a license and authority to a foreign corporation is by the terms of Sec.
123 of the Corporation Code, a condition sine qua non to its right to transact business in the
Philippines. It is evident that this license is not however, necessary if it does not transact
business in the Philippines.

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 If it transact business in the Philippines without the required license, it shall not be
permitted to maintain or intervene in any action, suit or proceedings in any court or
administrative agency in the Philippines, but such corporation may be sued or proceeded
against before Philippine courts or administrative tribunals on any valid cause of action
recognized under Philippine Laws (Sec. 133, Corporation Code). In other words, it can be sued
but it cannot sue in the Philippines.

Section 15. Service upon public corporations. — When the defendant is the Republic of the
Philippines, service may be effected on the Solicitor General; in case of a province, city or
municipality, or like public corporations, service may be effected on its executive head, or on
such other officer or officers as the law or the court may direct.

To whom summons shall be served in case of public corporations?

When the defendant is the Republic of the Philippines, service may be effected on the
following:

1. If the defendant is the Republic of the Philippines, to the Solicitor General;

2. In case of a province, to the Provincial Governor;
3. In case if a city, to the City Mayor; or
4. In case of a municipality, to the Municipal Mayor.
5. Like public corporations, service may be effected on its executive head, or
6. On such other officer or officers as the law or the court may direct.

As a rule, the State may not be sued without its consent. Such consent is granted either
expressly or impliedly. Section 13 applies when the Republic of the Philippines or any of its local
political subdivision is sued. If it is the Republic that is sued and such suit is pursuant to a
statutory consent, service of summons shall be made upon the officer designated by the statute
by which the Republic allows itself to be sued. Where the statute does not designate the officer
upon whom summns shall be served, Sec. 13, Rule 14 shall apply.

When the defendant is the Republic of the Philippines, service is made upon the
Solicitor General. The Solicitor General is the “principal law officer and legal defender of the
Govenrment.” The office of the Solicitor General represents the Government of the Philippines,
its agencies and intrumentalities and its officials and agents in any litigation, proceeding,
investigation or matter requiring the services of lawyers (Secs. 34-35, Chapter 12, Title III, Book
IV, Administrative Code of 1987)

Where the defendant is a province, city or municipality, summons may be served upon
the executive head. With the respect to the province, the term “executive head” obviously
refers to a provincial governor who is the chief executive of the province (Sec. 465, Local
Government Code of 1991); with respect to the city, the executive head is the City Mayor
described under Sec. 455 of the Local Gvoernment Code of 1991 as the chief executive, and

266
with respect to a municipality, the executive head is the municipal mayor who is the chief
executive of the municipality under Sec. 444 of the Local Gvoernment Code of 1991.

Section 16. Service upon defendant whose identity or whereabouts are unknown. — In any
action where the defendant is designated as an unknown owner, or the like, or whenever his or
her whereabouts are unknown and cannot be ascertained by diligent inquiry, within ninety (90)
calendar days from the commencement of the action, service may, by leave of court, be effected
upon him or her by publication in a newspaper of general circulation and in such places and for
such time as the court may order.

Any order granting such leave shall specify a reasonable time, which shall not be less than sixty
(60) calendar days after notice, within which the defendant must answer.

How can the summons be served in case defendant’s identity or whereabouts are unknown?

When the defendant is designated as an unknown owner or whenever his whereabouts

are unknown and cannot be ascertained by diligent inquiry, within ninety (90) calendar days
from the commencement of the action, Sec. 16, Rule 14 allows service of summons by
publication in a newspaper of general circulation and in such places and for such time as the
court may order.

Does this rule apply to both actions in personam and in rem or quasi in rem? To put it in
another way: Will summons by publication enable the court to acquire jurisdiction over the
person of the defendant even in an action in personam?

Significantly, the phraseology of Sec. 16 makes no distinction between an action in

personam on the one hand and an action in rem or quasi in rem on the other. Said section
allows summons by publication “in any action.” This phrase was not found in the provisions of
Sec. 16, Rule of the former Rules. Inevitably, the defendant described in Sec. 14 of Rule 14 may
be summoned by publication in either an action in rem or in personam. The present provision
however, seems not to be in harmony with the conventional wisdom on the matter and with
previous rulings of the Supreme Court which held that summons by publication is not sufficient
for the court to acquire jurisdiction over the person of the defendant in an action in personam
i.e., jurisdiction over the person cannot be acquired by summons by publication (Pantaleon v.
Asuncion, 105 Phil.761 [1959]; Citizen’s Surety & Insurance Co. Inc. v. Melencio-Herrera, 38
SCRA 369)

Section 17. Extraterritorial service. — When the defendant does not reside and is not found in
the Philippines, and the action affects the personal status of the plaintiff or relates to, or the
subject of which is, property within the Philippines, in which the defendant has or claims a lien
or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in
excluding the defendant from any interest therein, or the property of the defendant has been
attached within the Philippines, service may, by leave of court, be effected out of the Philippines
by personal service as under Section 6; or as provided for in international conventions to which

267
the Philippines is a party; or by publication in a newspaper of general circulation in such places
and for such time as the court may order, in which case a copy of the summons and order of the
court shall be sent by registered mail to the last known address of the defendant, or IN ANY
OTHER MANNER the court may deem sufficient. Any order granting such leave shall specify a
reasonable time, which shall not be less than sixty (60) calendar days after notice, within which
the defendant must answer.

Extra-territorial Service of Summons

Extra territorial service of summons in Sec. 15, (now Sec. 17) Rule 14 applies when the
following requisites concur:
1. When the defendant is a non-resident
2. He is not found in the Philippines;
3. The action against him is either in rem or quasi in rem (Jose V. Boyon, 414 SCRA 216)
Actions involved in extraterritorial service of summons

The specific actions, which are either in rem or quasi in rem that will justify the
application of extraterritorial service of summons in actions involving a non-resident are:

1. Action that affect the personal status of the plaintiff (Annulment of Marriage);
2. Action which relates to, or the subject matter of which is property within the
Philippines, in which the defendant claims a lien or interest, actual or contingent
(Recovery of Ownership or Ejectment);
3. Actions in which the relief demanded consists, wholly or in part, in excluding the
defendant from an interest in property located in the Philippines (Ejectment Cases
or Cases Involving the Recovery or Possession of Real Property); and
4. When property of the defendant has been attached within the Philippines (Cases
with Prayer for Preliminary Attachment).

The phraseology of the rule indicates that a fundamental concept to be remembered in

extraterritorial service of summons is that it does not apply to a defendant who is a resident of
the Philippines. It does not also apply to an action in personam.

Thus, extraterritorial service of summons applies only where the action is in rem, that is,
an action against the thing itself instead of against the person, or in an action quasi in rem,
where an individual is named as defendant and the purpose of the proceeding is to subject his
interest therein to the obligation or loan burdening the property. The rationale for this is that in
rem and quasi in rem actions, 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.

Examples

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 a. A case for collection of a sum of money (action in personam)
b. A case for Foreclosure of Real Estate Mortgage (Quasi in rem)
c. An action for annulment of marriage (in rem)
d. Action for Partition and Accounting (quasi in rem) [Valmonte v. court of Appeals, 252
SCRA 92)
How can extraterritorial service of summons be done?
Extra-territorial service of summons can be done in the following manner, to wit:
(a) By personal service as under Section 6; or
(b) By publication in a newspaper of general circulation in such places and for such time
as the court may order, in which a copy of the summons and order of the court shall
be sent by registered mail to the last known address of the defendant;
(c) As provided for in International Conventions to which the Philippine is a party; or
(d) In any other manner, the court may deem sufficient. Any order granting such leave
shall specify a reasonable time, which shall not be less than sixty (60) calendar days
after notice, within which the defendant must answer.

Point of clarification?
Does the phrase “in any other means” in the Extraterritorial Service, include service of
summons by (1) Facsimile; and (2) By electronic means with the prescribed proof of service?

Remedy of attachment against non-resident defendants not found in the Philippines

Based on established principles, the jurisdiction over the person of the defendant would
no longer be required when there is a writ of preliminary attachment of the defendant’s
properties because the suit has assumed the character of an action quasi in rem which merely
requires jurisdiction over the res. After availing of extraterritorial service of summons, the suit
can then proceed despite the absence of the defendant because in this case, it is no longer the
person of the defendant which is the subject matter but rather the property of the defendant
would now be the object of the judicial power.

BAR 2017
Tristan filed a suit with the RTC of Pasay against Arthur King and/or Estate of Arthur King
for reconveyance of a lot declared in the name of Arthur King under TCT No. 1234. The
complaint alleged that "on account Arthur King's residence abroad up to the present and the
uncertainty of whether he is still alive or dead, he or his estate may be served with summons by
publication." Summons was published and nobody filed any responsive pleading within sixty
(60) days therefrom. Upon motion, defendants were declared in default and judgment was
rendered declaring Tristan as legal owner and ordering defendants to reconvey said lot to
Tristan.

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 Jojo, the court-designated administrator of Arthur King's estate, filed a petition for
annulment of judgment before the CA praying that the decision in favor of Tristan be declared
null and void for lack of jurisdiction. He claims that the action filed by Tristan is an action in
personam and that the court did not acquire jurisdiction over defendants Arthur King and/or his
estate. On the other hand, Tristan claims that the suit is an action in rem or at least an
action quasi in rem. Is the RTC judge correct in ordering service of summons by publication?
Explain.
Suggested answer
Yes, the RTC judge is correct in ordering service of summons by publication.
Under S15 R14, extraterritorial service, which includes service by publication, may be
availed of in actions the subject of which is property within the Philippines in which the
defendant has or claims a lien or interest or in which the relief demanded consists in excluding
the defendant from any interest therein.

Here the action for reconveyance has for its subject a real property in the Philippines in
the defendant’s name and in which the relief sought is to annul the defendant’s title and vest it
in the plaintiff.

While Jojo is correct is saying that the action for reconveyance is in personam (Republic
v. CA, 315 SCRA 600, 606), the test of whether an action is covered by S15 R14 is not its
technical characterization as in rem or quasi in rem but whether it is among those mentioned in
S15 R14. (See Baltazar v. Court of Appeals, 168 SCRA 354, 363).

Section 18. Residents temporarily out of the Philippines. — When any action is commenced
against a defendant who ordinarily resides within the Philippines, but who is temporarily out of
it, service may, by leave of court, be also effected out of the Philippines, as under the preceding
Section.

Service upon a resident temporarily out of the country

Under Sec. 18, Rule 14, “When any action is commenced against a defendant who
ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave
of court, be also effected out of the Philippines, as under the preceding section.”

The ‘preceding section’ referred to in Sec. 18 is necessarily Sec. 17 on extraterritorial

service of summons. Significantly, one of the modes of service of summons under Sec. 17 is “by
publication in a newspaper of general circulation…” Summons by publication, therefore, applies
to a resident of the Philippines who is temporarily out of the country.

Specifically, service of summons upon a resident of the Philippines who is temporarily

out of the country, may, by leave of court be effected out of the Philippines as under the rules
on extraterritorial service in Sec. 18 of Rule 14. This means that the service of summons may
possibly be any of the following modes, unless rules otherwise:

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 1. By personal service as in Sec. 6 of Rule 14;
2. By publication in a newspaper of general circulation together with a registered
mailing of a copy of the summons and the order of the court to the last known
address of the defendant; or
3. By any manner the court may deem sufficient (Sec. 17, Rule 14)

Like in the case of an unknown defendant or one whose whereabouts are unknown, the
rule affecting residents who are temporarily out of the Philippines applies in ANY ACTION.

Let it be noticed that summons by publication may be effected against the defendant
because publication is one of the modes of summons under Sec. 17 of Rule 14. But this rule
authorizing summons by publication appears superfluous and unnecessary. Without such
provision, a resident defendant temporarily out of the Philippines may still be served through
the substituted service under Sec. 17 of Rule 14.

Section 19. Leave of court. — Any application to the court under this Rule for leave to effect
service in any manner for which leave of court is necessary shall be made by motion in writing,
supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for
the application.

When leave of court necessary?

Any application to the court under this Rule for leave to effect service in any manner for
which leave of court is necessary shall be made by motion in writing, supported by affidavit of
the plaintiff or some person on his behalf, setting forth the grounds for the application.

Section 20. Return. — Within thirty (30) calendar days from issuance of summons by the clerk
of court and receipt thereof, the sheriff or process server, or person authorized by the court, shall
complete its service. Within five (5) calendar days from service of summons, the server shall file
with the court and serve a copy of the return to the plaintiff’s counsel, personally, by registered
mail, or by electronic means authorized by the Rules. Should substituted service have been
effected, the return shall state the following:

(1) The impossibility of prompt personal service within a period of thirty (30) calendar days
from issue and receipt of summons;

(2) The date and time of the three (3) attempts on at least (2) two different dates to cause
personal service and the details of the inquiries made to locate the defendant residing thereat; and

(3) The name of the person at least eighteen (18) years of age and of sufficient discretion
residing thereat, name of competent person in charge of the defendant’s office or regular place of
business, or name of the officer of the homeowners’ association or condominium corporation or
its chief security officer in charge of the community or building where the defendant may
befound. (4a)

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What should be stated in the return should substituted service have been effected?

(1) The impossibility of prompt personal service within a period of thirty (30) calendar days
from issue and receipt of summons;
(2) The date and time of the three (3) attempts on at least (2) two different dates to cause
personal service and the details of the inquiries made to locate the defendant residing thereat;
and
(3)The name of the person at least eighteen (18) years of age and of sufficient discretion
residing thereat, name of competent person in charge of the defendant’s office or regular place
of business, or name of the officer of the homeowners’ association or condominium
corporation or its chief security officer in charge of the community or building where the
defendant may befound. (4a)

Section 21. Proof of service. — The proof of service of a summons shall be made in writing by
the server and shall set forth the manner, place, and date of service; shall specify any papers
which have been served with the process and the name of the person who received the same; and
shall be sworn to when made by a person other than a sheriff or his or her deputy.

If summons was served by electronic mail, a printout of said e-mail, with a copy of the summons
as served, and the affidavit of the person mailing, shall constitute as proof of service.

PROOF OF SERVICE

When the service has been completed, it is the duty of the server to serve a copy of the
return, personally or by registered mail, to the plaintiff’s counsel, and shall return the summons
to the clerk of court who issued it. The return, which shall be made within five (5) calendar days
from the completion of the service, shall be accompanied by proof of service. The proof of
service shall be in writing and made by the server. It shall state therein the manner, place and
date of service, shall specify the papers, which have been served with the summons and the
name of the person who received the same. It need not be sworn to unless made by a person
other than the sheriff or his deputy.

If summons was served by electronic mail, a printout of said e-mail, with a copy of the
summons as served, and the affidavit of the person mailing, shall constitute as proof of service.

Sample Form: Sheriff’s Return of Summons

“SHERIFF’S RETURN OF SUMMONS

THIS IS TO CERTIFY that on January 20, 2020, the undersigned caused the service of
summons together with a copy of the complaint with its annexes to defendant Stephen James
C. Justalero at his given address at Brgy. Abilay Norte, Oton, Iloilo, as appearing in the

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complaint. As per information given by Mrs. Joy C, Justalero, the mother of the defendant, and
also residing at the said address, the defendant was not around at that time.

On the 23rd day of January 20, 2020 the undersigned returned to the same address to
serve the summons, and again as relayed by the defendant’s mother, the defendant was out of
town on a business trip. Again, on the 1st day of February, 2021, the undersigned returned to
defendant’s house to serve the summons but the defendant was still not home as per notice
shared by his mother.

Pursuant to Section 6, Rule 14 of the 2019 Revised Rules of Civil Procedure, I left a copy
of the summons together with a copy of the complaint and its annexes to the defendant’s
mother, Joy C. Justalero, a person at least 18 years of age and of sufficient discretion residing
with the defendant, informing her to give the same to her son, the herein defendant.

WHEREFORE, in view of the above premises, the summons together with a copy of the
complaint and its annexes is DULY SERVED upon the defendant.”

Section 22. Proof of service by publication. — If the service has been made by publication,
service may be proved by the affidavit of the publisher, editor, business or advertising manager,
to which affidavit a copy of the publication shall be attached and by an affidavit showing the
deposit of a copy of the summons and order for publication in the post office, postage prepaid,
directed to the defendant by registered mail to his or her last known address.

How proof of service by publication effected?

If the service has been made by publication, service may be proved by the affidavit of
the publisher, editor, business or advertising manager, to which affidavit a copy of the
publication shall be attached and by an affidavit showing the deposit of a copy of the summons
and order for publication in the post office, postage prepaid, directed to the defendant by
registered mail to his or her last known address.

If the service has been made by publication, service may be proved by the affidavit of
the printer, his foreman or principal clerk, or of the editor, business or advertising manager, to
which affidavit a copy of the publication shall be attached. In addition there be an affidavit
showing the deposit of a copy of the summons and order for publication in the post office,
postage prepaid, directed to the defendant by registered mail to his last known address.

Summons by publication

Summons by publication is authorized by the Rules under the following instances:

1. In any action where the defendant is designated as an unknown owner, or the like, or
whenever his whereabouts are unknown and cannot be ascertained with diligent inquiry
(Sec. 16, Rule 14)

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 2. When any action is commenced against a defendant who ordinarily resides in the
Philippines, but who is temporarily out of it (Sec. 18, Rule 14)
3. When the defendant does not reside and is not found in the Philippines and the action
affects the personal status of the plaintiff or relates to, or the subject of which is,
property within the Philippines, in which the defendant has or claims a lien or interest,
actual or contingent, or in which the relief demanded consists, wholly or in part, in
excluding the defendant from any interest therein, or the property of the defendant has
been attached within the Philippines. (Sec. 18, Rule 14)
Strict compliance with the requirements in case of service by publication: Effect of
defective service of summons by mail and publication.
The failure to strictly comply correctly with the requirements of the rules regarding the
e-mailing of copies of the summons and the order for its publication is a fatal defect in the
service of summons (Rosalino P. Acance, et. al. vs. CA, G.R. 159699 March 16, 2005).
Section 23. Voluntary appearance. — The defendant's voluntary appearance in the action shall
be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside
from lack of jurisdiction over the person of the defendant shall be deemed a voluntary
appearance. (20a)

Voluntary Appearance

It has been previously remarked that a basic rule to remember is that acquisition of
jurisdiction over the person of the defendant is required in an action in personam. But how is
this jurisdiction acquired?

It has been consistently ruled that jurisdiction over the person of the defendant is
acquired through coercive process, generally by the service of summons issued by the court, or
through the defendant’s voluntary appearance or submission to the court (Republic of the
Philippines v. Domingo, G.R. No. 175299, September 14, 2011)

Stated otherwise, without a valid service of summons, the court cannot acquire
jurisdiction over the defendant, unless the defendant voluntarily submits himself to the
jurisdiction of the court. When the defendant does not voluntarily submit to the court’s
jurisdiction or there is no valid service of summons, any judgment of the court over the
defendant will be null and void for lack of jurisdiction over the defendant (Manotoc v. Court of
Appeals, 499 SCRA 21)

Under the old rule, it was directed that “There is likewise a need to emphasize that
under existing rules, a defending party may file a motion to dismiss a claim for lack of
jurisdiction over his person and add to such ground other grounds for dismissal. The defendant
may for example, include failure to state a cause of action, prescription, improper venue and
other authorized defences and objections under the Rules, aside from lack of jurisdiction over
the person of the defendant. The addition of such grounds aside from lack of jurisdiction over

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the person of the defendant should not be considered a voluntary appearance under Sec. 20 of
Rule 14.”

The present rules, however, have modified previous rulings and commentaries, as it
provides that “The defendant's voluntary appearance in the action shall be equivalent to
service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall be deemed a voluntary appearance.” In this
particular case, if the defendant wants to challenge the court’s jurisdiction over his person, he
has to make a special appearance solely for the purpose of assailing the jurisdiction of the court
over his person.

Observation:

How can a defendant file a Motion to Dismiss on the ground of “lack of jurisdiction over his
person” when under Section 12, Rule 15 of the 2019 Rules of Civil Procedure, motion to dismiss
is a prohibited motion unless the grounds are (1) That the court has no jurisdiction over the
subject matter; (2) That there is another action pending between the same parties for the same
cause; and (3) That the cause of action is barred by a prior judgment or by the statute of
limitations. Obviously, “lack of jurisdiction over the person of the defendant” is not among
them, unless the Rules will consider this ground as an additional ground for a motion to dismiss.
Sample form:
MOTION FOR LEAVE OF COURT TO SERVE SUMMONS BY PUBLICATIONS
COMES NOW, the plaintiff, through the undersigned counsel and unto this Honorable
Court, most respectfully avers:
1. That on February 8, 2016, copy of the summons was served by the process server of
this Honorable Court to the defendant on his given address, but defendant is no
longer residing on his given address;
2. That considering that the whereabouts of the defendant is unknown and this case
affects the property of the defendant, plaintiff most respectfully move with leave of
court to serve summons by publication.

WHEREFORE, plaintiff prays that the summons be served by publication based on the
above reasons.

Such other relief and remedies as may be deemed just and equitable under the
premises are likewise prayed for.

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 RULE 15

MOTIONS

Section 1.Motion defined. — A motion is an application for relief other than by a pleading.

Motion defined

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 A motion is an application for relief other than by a pleading. Simply put, a motion, like a
motion to dismiss, is not a pleading and it should not be governed by the rules on pleading. Not
being a pleading, it need not be verified or under oath, or there is also no requirement that it
should comply with certification against forum shopping.

Section 2.Motions must be in writings. — All motions shall be in writing except those made in
open court or in the course of a hearing or trial. (2a)

A motion made in open court or in the course of a hearing or trial should immediately be
resolved in open court, after the adverse party is given the opportunity to argue his or her
opposition thereto. When a motion is based on facts not appearing on record, the court may
hear the matter on affidavits or depositions presented by the respective parties, but the court
may direct the matter be heard wholly or partly on oral testimony or depositions.

Form of motions

All motions must be in writing. Excepted from this written requirement are those (a)
motions made in open court, and (b) motions made in the course of a hearing or trial, like a
“motion to strike” an answer as being not responsive to the question, or a “motion to suspend
cross examination” of the witness by reason of lack of material time. The rules that apply to
pleadings shall also apply to written motions with respect to caption, designation, signature,
and other matters of form.

What is the rule regarding motions?

All motions shall be in writing except in the following instances:

1. Those made in open court or

Like a motion for continuance which is usually made in open court. In like manner, an
oral motion that one’s case be called after the second call, is also an example of a motion made
in open court.

2. In the course of a hearing or trial.

Like a motion to expunge the witness’ answer as being not responsive to the question,
or a motion to direct the witness to answer a specific question. This is normally done during the
course of the trial.

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Section 3.Contents. — A motion shall state the relief sought to be obtained and the grounds
upon which it is based, and if required by these Rules or necessary to prove facts alleged
therein, shall be accompanied by supporting affidavits and other papers.

What are the requirements for a valid written motion?

Except for motion which the court may act upon without prejudicing the rights of the
adverse party, every written motion shall comply with the following requirements:
1. It must be set for hearing by the applicant;
2. It is required to be heard;
3. The notice of the hearing thereof shall be served in such a manner as to ensure its
receipt by the other party at least three (3) days before the date of the hearing,
unless the court for good cause sets the hearing on shorter notice;
4. The notice of hearing shall be addressed to all parties concerned;
5. It shall specify the time and date of the hearing which must not be later than ten
(10) days after the filing of the motion; and
6. No written motion set for hearing shall be acted upon by the court without proof of
service thereof.
7. To set forth the relief sought to be obtained as well as the ground to support it.
Section 4. Non-litigious motions. — Motions which the court may act upon without prejudicing
the rights of adverse parties are non-litigious motions. These motions include:

a) Motion for the issuance of an alias summons;

b) Motion for extension to file answer;
c) Motion for postponement;
d) Motion for the issuance of a writ of execution;
e) Motion for the issuance of an alias writ of execution;
f) Motion for the issuance of a writ of possession;
g) Motion for the issuance of an order directing the sheriff to execute the final certificate of sale;
and
h) Other similar motions.

These motions shall not be set for hearing and shall be resolved by the court within five
(5) calendar days from receipt thereof. (n)

What are non – litigious motions?

Non-litigious motions are motions which the court may act upon without prejudicing the
rights of adverse parties. These motions include:

a) Motion for the issuance of an alias summons;

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b) Motion for extension to file answer;
c) Motion for postponement;
d) Motion for the issuance of a writ of execution;
e) Motion for the issuance of an alias writ of execution;
f) Motion for the issuance of a writ of possession;
g) Motion for the issuance of an order directing the sheriff to execute the final certificate of
sale; and
h) Other similar motions.

Non Litigious Motion or Ex-parte Motion

An ex-parte motion, on the contrary, is one which does not require that the parties be
heard and which the court may act upon without prejudicing the rights of the other party. This
kind of motion is not covered by the hearing requirement of the Rules (Sec. 4, Rule 15). An
example of an ex-parte motion is that one filed by the plaintiff pursuant to Sec. 1 of Rule 18 in
which he moves promptly that the case be set for pre-trial. On the other hand, a motion to
dismiss (Rule 16) and a motion for summary judgment (Rule 35), are litigated motion.

Section 5. Litigious motions. — (a) Litigious motions include:

1) Motion for bill of particulars;

2) Motion to dismiss;
3) Motion for new trial;
4) Motion for reconsideration;
5) Motion for execution pending appeal;
6) Motion to amend after a responsive pleading has been filed;
7) Motion to cancel statutory lien;
8) Motion for an order to break in or for a writ of demolition;
9) Motion for intervention;
10) Motion for judgment on the pleadings;
11) Motion for summary judgment;
12) Demurrer to evidence;
13) Motion to declare defendant in default; and
14) Other similar motions.

(b) All motions shall be served by personal service, accredited private courier or registered mail,
or electronic means so as to ensure their receipt by the other party.

(c) The opposing party shall file his or her opposition to a litigious motion within five (5)
calendar days from receipt thereof. No other submissions shall be considered by the court in the
resolution of the motion.

The motion shall be resolved by the court within fifteen (15) calendar days from its receipt of the
opposition thereto, or upon expiration of the period to file such opposition. (n)

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What are litigious motions?

Litigious motions are motions which require notice to the adverse party, and trial.
Litigious motions include:

1) Motion for bill of particulars;

2) Motion to dismiss;
3) Motion for new trial;
4) Motion for reconsideration;
5) Motion for execution pending appeal;
6) Motion to amend after a responsive pleading has been filed;
7) Motion to cancel statutory lien;
8) Motion for an order to break in or for a writ of demolition;
9) Motion for intervention;
10) Motion for judgment on the pleadings;
11) Motion for summary judgment;
12) Demurrer to evidence;
13) Motion to declare defendant in default; and
14) Other similar motions.

Additional notes

Hearing of the motion; litigated and ex-parte motions

As a rule, every written motion shall set for hearing by the applicant except for motion
which the court may act upon without prejudicing the rights of the adverse party. This provision
therefore, establishes the general rule that every written motion is deemed a litigated motion
i.e., one which requires the parties to be heard before a ruling on the motion is made by the
court.

Kinds of Motion

1. Motion ex-parte – is a motion made without the presence or a notification to the other
party because the question generally presented is not debatable.

Example: Motion for postponement; Motion to set case for pre-trial; Motion for
extention of time to file pleading.
2. Motion of course – It is a motion where the movant is entitled to the relief or remedy
sought as a matter of discretion on the part of the court.
3. Litigated Motion – It is a motion which is made with notice to the adverse party given an
opportunity to oppose.

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 Example: Motion to dismiss; Motion for leave to file Demurrer to Evidence; Motion to
quash; Motion for new trial; Motion for reconsideration.

Section. 6. Notice of hearing on litigious motions; discretionary. — The court may, in the
exercise of its discretion, and if deemed necessary for its resolution, call a hearing on the motion.
The notice of hearing shall be addressed to all parties concerned, and shall specify the time and
date of the hearing.

Notice of Hearing on Litigious Motions

It is not hard to see the reason why the setting of a hearing of a litigated motion is really
discretionary on the part of the court because the court can already resolve the motion based
on the “motion” filed by the movant and the “comments or opposition” thereto filed by the
opposing party. What is important is that each party to the motion must be given his day in
court, especially the opposing party by requiring him to file his “comment or opposition.”

Section 7. Proof of service necessary. — No written motion shall be acted upon by the court
without proof of service thereof, pursuant to Section 5(b) hereof.

Effect of failure to set the motion for hearing, to include a notice of hearing and to serve the
motion (Secs. 4, 5, and 6 of Rule 15)

The Court has consistently held that a motion which does not meet the requirements of
Secs. 6 and 7 of Rule 15 of the Rules of Court on hearing and notice, is a worthless piece of
paper which the clerk of court has no right to receive and which the trial court has no authority
to act upon. Service of a copy of a motion containing a notice of the time and the place of
hearing of that motion is mandatory requirement, and the failure of movants to comply with
these requirements renders their motions fatally defective (Vette Industrial Sales Co., Inc. v.
Cheng, 50 SCRA 532).

The well-settled rule is that a motion which fails to comply with the requirements under
Secs. 6 and 7 of Rule 15 of the Rules of Court is a mere scrap of paper (Neri v. De la Pena, 457
SCRA 538). It is pro forma presenting no question which the court could decide. If filed, such
motion is not entitled to judicial cognizance and does not stop the running of the period for the
filing the requisite pleading. A motion which does not comply with the rules on motion is
considered pro forma and thus, will be treated as one filed merely to delay the proceedings
(Marikina Development Corporation v. Flojo, 251 SCRA 87).

Summary of the effects of failure to comply with Secs. 6 and 7 of Rule 15:
1. It is considered as a mere worthless piece of paper;
2. The clerk has no right to receive it;
3. The court has no right to act upon;
4. It is considered as a mere pro-forma motion;

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 5. It is considered as not filed;
6. It produces no legal effect;
7. It is a ground for the denial of the motion;
8. It presents no question which the court could decide;
9. It will not toll the running of the prescriptive period to appeal or file pleadings.
Sample forms

NOTICE OF HEARING

TO: BRANCH CLERK OF COURT

RTC BRANCH 32, ILOILO CITY

GREETINGS:

Please submit the foregoing motion for the consideration and approval of the Honorable Court
on February 8, 2019 art 8:30 in the morning.

ATTY ROEL VILLA-GO

CC: ATTY STEPHEN JAMES C. JUSTALERO

Counsel for the Plaintiff

EXPLANATION OF SERVICE

Copy of the Motion to Dismiss was served to Plaintiff’s counsel by registered mail due to
time and distance constraints, and for lack of the undersigned’s staff who can serve the same in
person.

Section 8. Motion day. — Except for motions requiring immediate action, where the court
decides to conduct hearing on a litigious motion, the same shall be set on a Friday.

Section 9. Omnibus motion. — Subject to the provisions of Section 1 of Rule 9, a motion

attacking a pleading, order, judgment, or proceeding shall include all objections then available,
and all objections not so included shall be deemed waived.

The omnibus motion rule (BAR 2010, 2011)

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 The rule is a procedural principle which requires that every motion that attacks a
pleading, judgment, order or proceeding shall include all grounds then available, and all
objections not so included shall be deemed waived. Since the rule is subject to the provisions of
Sec.1 of Rule 9, the objections mentioned therein are not deemed waived even if not included
in the motion. These objections are: (a) that the court has no jurisdiction over the subject
matter; (b) that there is another action pending between the same parties for same cause (litis
pendencia); (c) that the action is barred by prior judgment (res judicata); and (d) that the action
is barred by the statute of limitation or prescription (Sec 1, Rule 9, Rules, Rules of Court).

A motion to dismiss is a typical example of a motion subject to the omnibus motion

rule, since a motion to dismiss attacks a complaint which is a pleading. Following the omnibus
motion rule, if a motion to dismiss is filed, then the motion must invoke all objections which are
available at the time of the filing of said motion. If the objection which is available at the time is
not included in the motion, that ground is deemed waived. It can no longer be invoked as an
affirmative defense in the answer which the movant may file following the denial of his motion
to dismiss.

Observation

It appears that, in the light of the amendments introduced by the 2019 Revised Rules of
Civil Procedure, on the subject “motion,” the above provision seems to be irrelevant anymore.
As provided for by the 2019 Rules of Civil Procedure, specifically under Section 12, Rule 15, the
grounds for a motion to dismiss are: (a) that the court has no jurisdiction over the subject
matter; (b) that there is another action pending between the same parties for same cause (litis
pendencia); (c) that the action is barred by prior judgment (res judicata); and (d) that the action
is barred by the statute of limitation or prescription (Sec 1, Rule 9, Rules, Rules of Court), and
pursuant to Section 1, Rule 9 of the said rules, even if those grounds are not raised in a motion
to dismiss, they are not deemed waived.

Section 10. Motion for leave. — A motion for leave to file a pleading or motion shall be
accompanied by the pleading or motion sought to be admitted.

What are the requirements in filing a motion for leave?

A motion for leave to file a pleading or motion shall be accompanied by:

1. The pleading or
2. The motion sought to be admitted. (n)

For example, if the defendant files a Motion for Leave to File Demurrer to Evidence, he
shall attach to said motion his Demurrer to Evidence.

In a similar way, in the filing of a Motion to Amend Complaint, the plaintiff must attach
to his motion a copy of the said Amended Complaint.

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Section 11. Form. — The Rules applicable to pleadings shall apply to written motions so far as
concerns caption, designation, signature, and other matters of form.

Section. 12. Prohibited motions. — The following motions shall not be allowed:

(a) Motion to dismiss except on the following grounds:

1) That the court has no jurisdiction over the subject matter of the claim;

2) That there is another action pending between the same parties for the same
cause; and

3) That the cause of action is barred by a prior judgment or

4) by the statute of limitations;

Section 12 of the above rule basically deleted Rule 16 of the Revised Rules of Civil
Procedure, which provided for the grounds for a motion to dismiss. The following grounds,
therefore, could no longer be raised as grounds for a Motion to Dismiss, to wit:

1. That the court has no jurisdiction over the person of the defending party.
2. That venue is improperly laid.
3. That the plaintiff has no legal capacity to sue.
4. That the pleading asserting the claim states no cause of action.
5. That the claim or demand set forth in the plaintiff’s pleading has been paid, waived,
abandoned or otherwise extinguished.
6. That a condition precedent for filing the claim has not been complied with.

Although the above-said grounds could no longer be raised in a motion to dismiss, they
could be invoked as affirmative defences in the defending party’s answer.

(b) Motion to hear affirmative defenses;

(c) Motion for reconsideration of the court’s action on the affirmative defenses;

(d) Motion to suspend proceedings without a temporary restraining order or injunction issued by
a higher court;

(e) Motion for extension of time to file pleadings, affidavits or any other papers, except a motion
for extension to file an answer as provided by Section 11, Rule 11; and

(f) Motion for postponement intended for delay, except if it is based on acts of God, force
majeure or physical inability of the witness to appear and testify. If the motion is granted based

284
on such exceptions, the moving party shall be warned that the presentation of its evidence must
still be terminated on the dates previously agreed upon.

A motion for postponement, whether written or oral, shall, at all times, be accompanied by the
original official receipt from the office of the clerk of court evidencing payment of the
postponement fee under Section 21(b), Rule 141, to be submitted either at the time of the filing
of said motion or not later than the next hearing date. The clerk of court shall not accept the
motion unless accompanied by the original receipt. (n)

What are the Prohibited motions?

The following motions shall not be allowed:

(a) Motion to dismiss except on the following grounds:

1) That the court has no jurisdiction over the subject matter of the claim;
2) That there is another action pending between the same parties for the same
cause;
3) That the cause of action is barred by a prior judgment or
(4) By the statute of limitations;

(b) Motion to hear affirmative defenses;

(c) Motion for reconsideration of the court’s action on the affirmative defenses;
(d) Motion to suspend proceedings without a temporary restraining order or injunction issued
by a higher court;
(e) Motion for extension of time to file pleadings, affidavits or any other papers, except a
motion for extension to file an answer as provided by Section 11, Rule 11; and
(f) Motion for postponement intended for delay, except if it is based on acts of God, force
majeure or physical inability of the witness to appear and testify. If the motion is granted based
on such exceptions, the moving party shall be warned that the presentation of its evidence
must still be terminated on the dates previously agreed upon.

A motion for postponement, whether written or oral, shall, at all times, be accompanied by the
original official receipt from the office of the clerk of court evidencing payment of the
postponement fee under Section 21(b), Rule 141, to be submitted either at the time of the
filing of said motion or not later than the next hearing date. The clerk of court shall not accept
the motion unless accompanied by the original receipt. (n)

Prohibited motions under the Revised Rules on Summary Procedure

The following motions shall NOT be allowed (Sec. 1, 1991 Revised Rules on Summary
Procedure:

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 1. Motion to dismiss the complaint;
2. Motion to quash a criminal complaint or information;

Exception: If the ground is lack of jurisidiction over the subject matter or the failure
to comply with the rule requiring referral to the Lupon for conciliation;

3. Motion for a bill of particulars;

4. Motion for new trial;
5. Motion for reconsideration of a judgment;
6. Motion for reopening of trial;
7. Motion for extension of time to file pleading, affidavits or any other paper;
8. Motion to declare the defendant in default; and
9. Dilatory motions for postponement

Prohibited motions in the Rules of Amparo and Habeas Data

The following motions are PROHIBITED:

1. Motion to dismiss;
2. Motion of extension of time to file opposition, affidavits, position paper and other
pleadings;
3. Dilatory motion for postponement;
4. Motion for a bill of particulars;
5. Motion to declare defendant in default; and
6. Motion for reconsideration of interlocutory orders or interim relief orders.

Prohibited motions under the Rule of Procedure for Small Claims Cases as amended

The following motions shall NOT be allowed in the cases covered by the Rules of
Procedure for Small Claims Cases:

1. Motion to dismiss the complaint;

2. Motion for a bill of particulars;
3. Motion for new trial;
4. Motion for reconsideration of a judgment;
5. Motion for reopening of trial;
6. Motion for extension of time to file pleadings, affidavits or any other paper;
7. Motion to declare the defendant in default; and
8. Dilatory motions for postponements.

Prohibited motions under the Rule of Procedure for Environmental Cases

1. Motion to dismiss the complaint;

2. Motion for a bill of particulars;

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 3. Motion for extension of time to file pleadings, except to fiel answer, the extension
not to excced 15 days;
4. Motion to declare the defendant in default.

Section. 13. Dismissal with prejudice. — Subject to the right of appeal, an order granting a
motion to dismiss or an affirmative defense that the cause of action is barred by a prior judgment
or by the statute of limitations; that the claim or demand set forth in the plaintiff’s pleading has
been paid, waived, abandoned or otherwise extinguished; or that the claim on which the action is
founded is unenforceable under the provisions of the statute of frauds, shall bar the refiling of the
same action or claim.

What is the rule in case of Dismissal with prejudice?

Subject to the right of appeal, an order granting a motion to dismiss or an affirmative

defense that the:

1. Cause of action is barred by a prior judgment or

2. By the statute of limitations;
3. That the claim or demand set forth in the plaintiff’s pleading has been paid, waived,
abandoned or otherwise extinguished; or (Note: this is not one of the grounds for a
motion to dismiss, as enumerated under Section 12 hereof)
4. That the claim on which the action is founded is unenforceable under the provisions
of the statute of frauds or prescription.

If the dismissal, either through a motion to dismiss or by affirmative defense, is based

on the foregoing grounds, it shall be a BAR to the refiling of the same action or claim. What
would be the remedy of the aggrieved party? Since the dismissal of the complaint is with
prejudice, the remedy of the aggrieved party is to appeal the order dismissing the case.

DISMISSAL OF ACTION BY THE PLAINTIFF

BASIC CONCEPTS

1. What is the test to determine the doctrine of “Non-Prosequitor” as a ground for

dismissal.

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 The fundamental test for “Non-Prosequitor” is whether, under the circumstances, the
plaintiff is chargeable with want of due diligence in failing to proceed with reasonable
promptitude. There must be unwillingness on the part of the plaintiff to prosecute. (Shimizu
Philippines Contractors Inc. vs. Mrs Letecia B. Magsalin, G.R. No. 170026, June 20, 2012).

2. What are the manners of dismissal of the action by the plaintiff?

Rule 17 of the Rules of Court provides for the dismissal of the action upon the instance
of the plaintiff in the following manner:

a. Dismissal upon notice of the plaintiff (Sec. 1, Rule 17)

b. Dismissal upon motion of the plaintiff (Sec. 2, Rule 17)
c. Dismsissal due to the fault of the plaintiff (Sec. 3, Rule 17)

RULE 17

DISMISSAL OF ACTIONS

Section 1.Dismissal upon notice by plaintiff. — A complaint may be dismissed by the plaintiff
by filing a notice of dismissal at any time before service of the answer or of a motion for

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summary judgment. Upon such notice being filed, the court shall issue an order confirming
the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except
that a notice operates as an adjudication upon the merits when filed by a plaintiff who has
once dismissed in a competent court an action based on or including the same claim.

How can the plaintiff cause for the dismissal of the action upon notice?

A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time
before service of the answer or of a motion for summary judgment.

What is the action of the court on the notice filed?

Upon such notice being filed, the court shall issue an order confirming the dismissal.

What is the nature of the dismissal?

Unless otherwise stated in the notice, the dismissal is without prejudice.

What is the exception to the dismissal without prejudice?

Except that a notice operates as an adjudication upon the merits when filed by a
plaintiff who has once dismissed in a competent court an action based on or including the same
claim. This is known as the two (2) dismissal Rule.

It is not the order confirming the dismissal which operates to dismiss the complaint. As
the name of the order implies, said order merely confirms a dismissal already effected by the
filing of the notice of dismissal. Since the order issued by the court merely confirms the
dismissal, it follows that the court does not have to approve the dismissal because it has no
discretion on the matter. Before an answer or a motion for summary judgment has been served
upon the plaintiff, the dismissal by the plaintiff by the filing of a notice is a matter of right. It is
submitted that the dismissal should occur as of the date the notice is filed by the plaintiff and
not as of the date the court issues the order confirming the dismissal.

BAR 2016

Agatha filed a complaint against Yana in the RTC in Makati City to collect P350,000.00, an
amount representing the unpaid balance on the price of the car Yana had bought from Agatha.
Realizing a jurisdictional error in filing the complaint in the RTC, Agatha filed a notice of
dismissal before she was served with the answer of Yana. The RTC issued an order confirming
the dismissal.
Three months later, Agatha filed another complaint against Yana based on the same
cause of action this time in the MeTC of Makati City. However, for reasons personal to her,
Agatha decided to have the complaint dismissed without prejudice by filing a notice of dismissal
prior to the service of the answer of Yana. Hence, the case was dismissed by the MeTC.

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 A month later, Agatha refiled the complaint against Yana in the same MeTC.
May Yana successfully invoke the Two-Dismissal Rule to bar Agatha’s third complaint?
Explain your answer.
Suggested answer

No, Yana may not successfully invoke the Two-Dismissal Rule to bar Agatha’s third
complaint

Under the Two-Dismissal Rule, the notice of dismissal operates as an adjudication upon
the merits provided it is filed by a plaintiff who has once dismissed in a competent court an
action based on or including the same claim.

Here the first dismissal by the plaintiff was not in a competent court as the RTC in Makati
City did not have subject-matter jurisdiction over an action seeking to recover P350,000. Hence
Agatha’s third complaint is not barred by the Two-Dismissal Rule.

BAR 2018

Dick Dixson had sons with different women - (i) Dexter with longtime partner Delia and (ii)
Dongdong and Dingdong with his housemaid Divina. When Dick fell ill in 2014, he entrusted all
his property titles and shares of stock in various companies to Delia who, in turn, handed them
to Dexter for safekeeping. After the death of Dick, Dexter induced Dongdong and Dingdong to
sign an agreement and waiver of their right to Dick's estate in consideration of PhP 45 million.
As Dexter reneged on his promise to pay, Dongdong and Dingdong filed a complaint with the
RTC of Manila for annulment of the agreement and waiver. The summons and complaint were
received by Dalia, the housemaid of Dexter, on the day it was first served. Dexter filed a motion
to dismiss on the ground of lack of jurisdiction over his person. RTC Manila granted the motion
to dismiss.

Dongdong and Dingdong thereafter filed a new complaint against Dexter for annulment of the
agreement and waiver. Before Dexter could file his answer, Dongdong and Dingdong filed a
motion to withdraw their complaint praying that it be dismissed without prejudice. An Order
was issued granting the motion to withdraw without prejudice on the basis that the summons
had not yet been served on Dexter. Dexter filed a motion for reconsideration of the order of
dismissal. He argued that the dismissal should have been with prejudice under the "two-
dismissal rule" of Rule 17, Section 1 of the Rules of Court, in view of the previous dismissal of
the first case.

Will the two-dismissal rule apply making the second dismissal with prejudice?

Sample form

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 NOTICE OF DISMISSAL

To: The Branch Clerk of Court

RTC BRANCH 32, ILOILO CITY

Greetings:

Please take notice that the plaintiff is hereby moving for the dismissal of the above-
entitled case due to his health reason that he cannot for the meantime prosecute the above.

WHEREFORE, plaintiff prays that the complaint be dismissed.

Such other relief and remedies as may be deemed just and equitable under the
premises are likewise prayed for.

Dismissal without prejudice

A dismissal made by the filing of a notice of dismissal is a dismissal without prejudice

i.e., the complaint can be refilled. This is the general rule.

The dismissal will, however, be one with prejudice in any of the following situations:

1. The notice of dismissal by the plaintiff provides that the dismissal is with prejudice;
or
2. The plaintiff has previously dismissed the same case in a court of competent
jurisdiction based on or including the same claim.

If the plaintiff files a notice of dismissal providing therein a reason that prevents the
refilling of the complaint, the dismissal must be deemed one with prejudice even if the notice
does not state that the dismissal is with prejudice. This happens when, for instance, the notice
provides that the plaintiff recognizes the fact of prescription or extinguishment of the
obligation of the defendant or for reasons stated in Sec. 5 of Rule 16 as when the action is
barred by res judicata, the statute of limitations or that the claim or demand has been paid,
waived, abandoned or otherwise extinguished.

Two dismissal rule (BAR 1989)

The ‘two-dismissal’ rule applies when the plaintiff has (a) twice dismissed the actions,
(b) based on or including the same claim, (c) in a court of competent jurisdiction.

The second notice of dismissal will bar the refiling of the action because it will operate
as an adjudication of the claim upon the merits. In other words, the claim may only be filed

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twice the first being the claim is embodied in the original complaint. Since as a rule, the
dismissal is without prejudice, the same claim may be refilled. However, if the refiled claim or
complaint is dismissed again through a second notice of dismissal, that second notice triggers
the application of the two-dismissal rule and the dismissal is to be deemed one with prejudice
because it is considered as an adjudication upon the merits. It should be remembered that the
two dismissal rule does not apply if the second notice of dismissal is based on a different
ground as the first dismissal.

BAR 1989

Before any answer or motion for summary judgment could be filed by defendant, the
plaintiff filed a notice of dismissal of his complaint. The trial court simply noted the dismissal. Is
the case considered dismissed?

Suggested answer

The case is considered dismissed. In order to dismiss a complaint upon notice of the
plaintiff, the rule merely requires the filing of a notice of dismissal. The role of the court is
merely to issue an order confirming the dismissal. It is not the court order that effects the
dismissal but the filing by the plaintiff of his notice of dismissal. It is submitted that whether or
not this dismissal is confirmed does not affect the fact of dismissal.

Section 2.Dismissal upon motion of plaintiff. — Except as provided in the preceding section, a
complaint shall not be dismissed at the plaintiff's instance save upon approval of the court
and upon such terms and conditions as the court deems proper. If a counterclaim has been
pleaded by a defendant prior to the service upon him of the plaintiff’s motion for dismissal,
the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the
right of the defendant to prosecute his OR HER counterclaim in a separate action unless
within fifteen (15) CALENDAR days from notice of the motion he OR SHE manifests his OR HER
preference to have his OR HER counterclaim resolved in the same action. Unless otherwise
specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit
shall not be dismissed or compromised without the approval of the court.

What are the requirements of dismissal upon motion of the plaintiff?

Except as provided in the preceding section, a complaint shall not be dismissed at the
plaintiff's instance save:

1. Upon approval of the court and

2. Upon such terms and conditions as the court deems proper.

Dismissal by filing a motion to dismiss

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 Once either an answer or a motion for summary judgment has been served on the
plaintiff, the dismissal is no longer a matter of right and will require the filing of a motion to
dismiss, not a mere notice of dismissal. The motion to dismiss will now be subject to the
approval of the court which will decide on the motion upon such terms and conditions as are
just. The dismissal under Sec. 2, Rule 17 is no longer a matter of right on the part of the plaintiff
but a matter of judicial discretion.

What are the effects of the service of the motion for dismissal upon the defendant?

If a counterclaim has been pleaded by a defendant prior to the service upon him of the
plaintiff’s motion for dismissal it has the following effects:

1. The dismissal shall be limited to the complaint;

2. The dismissal shall be without prejudice to the right of the defendant to prosecute
his counterclaim in a separate action unless within fifteen (15) calendar days from
notice of the motion he manifest his preference to have his counterclaim resolved in
the same action.

The dismissal authorized under Sec. 2 of Rule 17 is a dismissal without prejudice except
if the order of dismissal specifies that it is with prejudice.

Effect of dismissal upon a counterclaim already pleaded (BAR 2008; 2010)

If a counterclaim has already been pleaded by the defendant prior to the service upon
him of the plaintiff’s motion to dismiss, and the court grants the said motion to dismiss, the
dismissal “shall be limited to the complaint.” The phraseology of the provision is clear: the
counterclaim is not dismissed, whether it is a compulsory or a permissive counterclaim because
the rule makes no distinction.

Sample form

MOTION TO DISMISS

Comes now, the plaintiff, through the undersigned counsel and unto this Honorable
Court, most avers:

1. That on January 30, 2013, plaintiff filed this instant complaint for Collection of Sum
of Money with Damages against the defendant;
2. That due to the continuous deterioration of the health condition of the plaintiff he
cannot for the meantime prosecute the above-entitled case.

WHEREFORE, premises considered, plaintiff respectfully prays that the complaint be

dismissed without prejudice based on the above reason.

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 Such other relief and remedies as may be deemed just and equitable under the
premises are likewise prayed for.

Take note that “prohibited motions” under Sec. 12, Rule does not apply because this is a
dismissal initiated by the plaintiff himself.

Section 3.Dismissal due to fault of plaintiff. — If, for no justifiable cause, the plaintiff fails to
appear on the date of the presentation of his evidence in chief on the complaint, or to
prosecute his action for an unreasonable length of time, or to comply with these Rules or any
order of the court, the complaint may be dismissed upon motion of the defendant or upon
the court's own motion, without prejudice to the right of the defendant to prosecute his OR
HER counterclaim in the same or in a separate action. This dismissal shall have the effect of
an adjudication upon the merits, unless otherwise declared by the court.

What are the instances of dismissal due to the fault of the plaintiff?

If, for no justifiable cause, the complaint may be dismissed upon motion of the
defendant or upon the court’s own motion, without prejudice to the right of the defendant to
prosecute his counterclaim in the same or in a separate action.

1. The plaintiff fails to appear on the date of the presentation of his evidence in
chief on the complaint, or

2. To prosecute his action for an unreasonable length of time, or

3. To comply with these Rules or any order of the court,

It is worthy to note here that the dismissal of the complaint is through a written motion
is anchored on the fault of the plaintiff. Therefore, the provisions of Secton 12, Rule 15, finds no
application.

What is the nature of the dismissal under the rules?

The dismissal shall have the effect of:

1. An adjudication upon the merits,

2. Unless otherwise declared by the court.

Dismissal due to the fault of the plaintiff.

A complaint may be dismissed even if the plaintiff has no desire to have the same
dismissed. The dismissal in this case will be through reasons attributed to his fault. Sec. 3, Rule
17 provides for the following ground:

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 1. The plaintiff fails to appear on the date of the presentation of his evidence in chief on
the complaint;
2. To prosecute his action for an unreasonable length of time;
3. To comply with these Rules or
4. To comply with any order of the court.

The dismissal due to the act of the plaintiff may be done by the court on its own motion
(motu proprio) or upon a motin filed by the defendant.

The failure of a plaintiff to prosecute the action without any justifiable cause within a
reasonable period of time will give rise to the presumption that he is no longer interested to
obtain from the court the relief prayed for in his complaint, hence the court is authorized to
order the dismissal of the complaint on its own motion or on motion of the defendant. The
presumption is not, by any means, conclusive because the plaintiff, on a motion for
reconsideration of the order of dismissal, may allege and establish a justifiable cause for such
failure. The burden to show that there are compelling reasons that would make a dismissal of
the case unjustified is on the petitioners. (Eloisa Merchandizing vs. Banco de Oro, G.R. No.
192716, June 13, 2012).

Effect of dismissal on the counterclaim

The dismissal of the complaint under Sec. 3, Rule 17 i.e., because of the fault of the
plaintiff, is without prejudice to the right of the defendant to prosecute his counterclaim in the
same action or in a separate action.

Dismissal with prejudice (Sec. 3, Rule 17)

The dismissal under Sec. 3 of Rule 17 shall have the effect of an adjudication on the
merits, unless otherwise declared by the court. Hence, as a rule, it is a dismissal with prejudice.

Dismissal of a class suit

A class suit shall not be dismissed or compromised without the approval of the court
(Sec.2, Rule 17)

Section 4.Dismissal of counterclaim, cross-claim, or third-party complaint. — The provisions

of this Rule shall apply to the dismissal of any counterclaim, cross-claim, or third-party
complaint. A voluntary dismissal by the claimant by notice as in section 1 of this Rule, shall be
made before a responsive pleading or a motion for summary judgment is served or, if there is
none, before the introduction of evidence at the trial or hearing.

Is the dismissal under the rules applicable in case of counterclaim, cross-claim, or third-party
complaint?

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 The provisions of this Rule shall apply to the dismissal of any counterclaim, cross-claim,
or third-party complaint.

When to make a voluntary dismissal?

A voluntary dismissal by the claimant by notice as in section 1 of this Rule, shall be

made:

1. Before a responsive pleading or

2. Before a motion for summary judgment is served or,
3. If there is none, before the introduction of evidence at the trial or hearing.

Dismissal of counterclaim, cross-claim or third-party complaint

Rule 17 shall apply also to the dismissal of any counterclaim, cross-claim, or third-party
complaint. A voluntary dismissal by the claimant by notice of dismissal as in Sec. 1, Rule 17 shall
be made before a responsive pleading or a motion for a summary judgment is served, or if,
there is none, before the introduction of evidence at the trial or hearing.

For instance, before the plaintiff could file his answer to the counterclaim or a reply to
the counterclaim, the defendant may file a notice of dismissal of the counter-claim. In the same
vein, before the co-defendant could file his answer to the counterclaim, the defendant may file
a notice of dismissal of the crosss-claim. But once, the plaintiff has filed his answer to the
counterclaim or a reply, or the co-defendant has already filed his answer to the counterclaim,
the dismissal of the counterclaim or cross-claim must require leave of court.

RULE 18

PRE-TRIAL

Section 1. When conducted. — After the last responsive pleading has been served and filed, the
branch clerk of court shall issue, within five (5) calendar days from filing, a notice of pre-trial

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which shall be set not later than sixty (60) calendar days from the filing of the last responsive
pleading.

Nature and Purpose of a Pre-Trial

A pre-trial is a procedural device that is indispensable in a proceeding, civil or criminal
and is designed to limit the issues to be proved at the trial. With the limitation of the issues,
there would be fewer points of contention for the trial court to resolve.
When Pre-Trial shall be conducted?
The present rules provide that after the last responsive pleading has been served and
filed, the branch clerk of court shall issue, within five (5) calendar days from filing, a notice of
pre-trial which shall be set not later than sixty (60) calendar days from the filing of the last
responsive pleading. As modified, it is now clear that it is the Branch Clerk of Court that shall
issue notice of pre-trial conference, within five (5) calendar days counting receipt of the last
responsive pleading.

The meaning of ‘RESPONSIVE pleading’

The last RESPONSIVE pleading that a party could file might be the Answer to the
complainant’s claim, if the complainant does not want to response to the Answer by way of a
Reply. Or the last responsive pleading could be a Reply, if the complainant wishes to response
to the defendant’s Answer, especially so when the defendant defense is based on an actionable
document. The claim could be the original complaint, the counterclaim, the cross-claim or the
third-party complaint. If an answer is filed and served in response to these claims, the pleading
in response to these answers is the reply (Sarmineto v. Juan, 120 SCRA 403) which is to be filed
within fifteen (15) calendar days from the service of the pleading responded to.

It appears under the new Rules that “Rejoinder” to the plaintiff’s Reply, could also be
the last responsive pleading, especially so when the plaintiff’s Reply is founded or based on an
actionable document.

Where the last RESPONSIVE pleading has not yet been served and filed, the case is not
yet ready for pre-trial. However, the ‘last RESPONSIVE’ need not be literally construed as one
having been served and filed. For purposes of the pre-trial, the expiration of the period for filing
the last RESPONSIVE without it having been served and filed is sufficient.

Section 2.Nature and purpose. — The pre-trial is mandatory AND SHOULD BE TERMINATED
PROMPTLY. The court shall consider:

(a) The possibility of an amicable settlement or of a submission to alternative modes

of dispute resolution;

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 (b) The simplification of the issues;

(c) The possibility of obtaining stipulations or admissions of facts and of documents to

avoid unnecessary proof;

(d The limitation of the number of witnesses AND IDENTIFICATION of witnesses AND

THE SETTING OF TRIAL DATES;

(e) The advisability of a preliminary reference of issues to a commissioner;

(f) The propriety of rendering judgment on the pleadings, or summary judgment, or of

dismissing the action should a valid ground therefor be found to exist;

(g) The requirement for the parties to:

1. Mark their respective evidence if not yet marked in the judicial

affidavits of their witnesses;

2. Examine and make comparisons of the adverse parties' evidence vis-avis the copies to be
marked;

3. Manifest for the record stipulations regarding the faithfulness of the reproductions and the
genuineness and due execution of the adverse parties' evidence;

4. Reserve evidence not available at the pre-trial, but only in the following manner:

i. For testimonial evidence, by giving the name or position and the nature of the testimony of the
proposed witness;

ii. For documentary evidence and other object evidence, by giving a particular description of the
evidence.

No reservation shall be allowed if not made in the manner described above.

(h) Such other matters as may aid in the prompt disposition of the action.

The failure without just cause of a party and counsel to appear during pre-trial, despite notice,
shall result in a waiver of any objections to the faithfulness of the reproductions marked, or their
genuineness and due execution.
The failure without just cause of a party and/or counsel to bring the evidence required shall be
deemed a waiver of the presentation of such evidence.

The branch clerk of court shall prepare the minutes of the pre-trial, which shall have the
following format: (See prescribed form) (2a)

Concept, nature and purpose of a pre-trial (2009)

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 A pre-trial is a procedural device held prior to the trial for the court to consider the
following:

(a) The possibility of an amicable settlement or of a submission to alternative modes of

dispute resolution;

(b) The simplification of the issues;

(c) The necessity or desirability of amendments to the pleadings;

(d) The possibility of obtaining stipulations or admissions of facts and of documents to

avoid unnecessary proof;

(e) The limitation of the number of witnesses;

(f) The advisability of a preliminary reference of issues to a commissioner;

(g) The propriety of rendering judgment on the pleadings, or summary judgment, or of

dismissing the action should a valid ground therefor be found to exist;

(g) The requirement for the parties to:

1. Mark their respective evidence if not yet marked in the judicial

affidavits of their witnesses;
2. Examine and make comparisons of the adverse parties' evidence vis-avis the copies to be
marked;
3. Manifest for the record stipulations regarding the faithfulness of the reproductions and the
genuineness and due execution of the adverse parties' evidence;
4. Reserve evidence not available at the pre-trial, but only in the following manner:

i. For testimonial evidence, by giving the name or position and the nature of the testimony of
the proposed witness;

ii. For documentary evidence and other object evidence, by giving a particular description of
the evidence.

No reservation shall be allowed if not made in the manner described above.

(h) Such other matters as may aid in the prompt disposition of the action.

Effect of failure to conduct a pre-trial

The failure of a judge to conduct a pre-trial conference in a civil case is contrary to

elementary rules of procedure. Rule 18 of the Rules of Court imposes a duty upon the plaintiff

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to promptly move ex parte that the case be set for pre-trial. “It is elementary and plain that the
holding of a pre-trial conference is mandatory and failure to do so is inexcusable. When the law
or procedure is so elementary, such as the provisions of the Rules of Court, not to know it or to
act as if one does not know it constitutes gross ignorance of the law. Such ignorance of a basic
rule in court procedure, as failing to conduct pre-trial, sadly amounts to gross ignorance and
warrant a corresponding penalty.” (National Power Corporation v. Adiong, A.M. No. RTJ -07-
2060, July 27, 2011) (Please note that ruling in this case has been modified with respect to the
requirement that it was the counsel for the plaintiff that should file an ex-parte motion setting
the case for pre-trial conference.)

Referral to the Philippine Mediation Center

At the start of the preliminary conference, the judge is mandated to refer the parties
and/or their counsels to the mediation unit of the Philippine Mediation Center (PMC) for
purposes of mediation. If mediation fails, the judge will schedule the continuance of the
preliminary conference. This rule applies to Metro Manila, Cebu, Davao City, and other places
where Philippine Mediation Center Units may be further organized and designated
(Administrative Circular No. 20-2020, March 24, 2002, A.M. No. 03-1-0-SC, July 13, 2004).

Section 3.Notice of pre-trial. — THE NOTICE OF PRE-TRIAL SHALL INCLUDE THE DATES
RESPECTIVELY SET FOR:

(a) Pre – trial;

(b) Court-Annexed Mediation; and

(c) Judicial Dispute Resolution, if necessary

The notice of pre-trial shall be served on counsel, or on the party who has no counsel.
The counsel served with such notice is charged with the duty of notifying the party represented
by him OR HER.

Non-appearance at any of the foregoing settings shall be deemed as nonappearance at the pre-
trial and shall merit the same sanctions under Section 5 hereof.

Notice of pre-trial (BAR 1977)

The notice of pre-trial shall be served on the counsel of the party if the latter is
represented by counsel. Otherwise, the notice shall be served on the party himself. The counsel
is charged with the duty of notifying his client of the date, time and place of the pre-trial.

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 Notice is so important that it would be grave abuse of discretion for the court for
example, to allow the plaintiff to present his evidence ex-parte for failure of the defendant to
appear before the pre-trial who did not receive through his counsel a notice of pre-trial.
Accordingly, there is no legal basis for a court to consider a party notified of the pre-trial and to
consider that there is no longer a need to send notice of pre-trial merely because it was his
counsel who suggested the date of pre-trial (Agulto v. Tecson)

Section 4. Appearance of Parties. — It shall be the duty of the parties and their counsel to appear
at the pre-trial, court-annexed mediation, and judicial dispute resolution, if necessary. The non-
appearance of a party and counsel may be excused only for acts of God, force majeure, or duly
substantiated physical inability.

A representative may appear on behalf of a party, but must be fully authorized in writing to enter
into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter
into stipulations or admissions of facts and documents.

Appearance of parties and counsels in the pre-trial (BAR 1992)

It shall be the duty of both the parties and their counsels to appear at the pre-trial.

Mediation is a part of pre-trial and failure of the plaintiff to appear thereat merits
sanction on the part of absent party.

How non-appearance is excused

The non-appearance of a party may be excused only if a valid cause is shown for such
non-appearance or a representative shall appear in his behalf fully authorized in writing to
enter into any of the following matters: (a) an amicable settlement, (b) alternative dispute
resolution, and (c) stipulations and admissions.

The way the provision is framed it suggests that it is not sufficient for the written
authority to give to the representative the power to enter into one of the matters mentioned in
Sec. 4, Rule 18, as when the only authority granted is to enter into an amicable settlement. The
authority must also confer upon the representative the power to enter into alternative modes
of dispute resolution and stipulations and admissions of fact. An incomplete authority does not
satisfy the requirements of the Rules and should be deemed the equivalent of having no
authority at all.

Although Sec. 4 uses the disjunctive “or,” the logical meaning of the rule disctates that
the written authority given to the representative be coupled with an explanation showing a
valid cause for a paryt’s non-appearance. Common reason suggests that having a written
authority but without a justification for a party’s absence or vice versa would not be in accord
with the spirit of the Rules.

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 The written authority must be in the form of a special power of attorney. Entering into
an amicable settlement for a client who is the principal in the attorney-client relationship
involves entering into a compromise. Substantive law (Art. 1878 [3] of the Civil code of the
Philippines is explicit: “Special powers of attorney are necessary: To compromise, to submit
questions to arbitration xxx.”

Section 5.Effect of failure to appear. — WHEN DULY NOTIFIED, the failure of the plaintiff AND
COUNSEL to appear WITHOUT VALID CAUSE when so required pursuant to the next preceding
section shall be cause for dismissal of the action. The dismissal shall be with prejudice, unless
other-wise ordered by the court. A similar failure on the part of the defendant AND COUNSEL
shall be cause to allow the plaintiff to present his OR HER evidence ex parte WITHIN TEN (10)
CALENDAR DAYS FROM TERMINATION OF THE PRE-TRIAL, and the court to render judgment
on the basis OF THE EVIDENCE OFFERED.

Effect of failure to appear by the plaintiff (BAR 1989; 1981; 1980)

The failure of the plaintiff AND COUNSEL to appear shall be cause for the dismissal of
the action. This dismissal shall be with prejudice except when the court orders otherwise. It
should be noted that the dismissal of the plaintiff’s complaint is predicated on the absence of
both the plaintiff and his/her counsel during the scheduled pre-trial conference. It follows,
therefore, that the mere absence of the plaintiff himself would not be a ground for the
dismissal of his/her complaint as long as he or she executed a special power of attorney. Simply
put, the court shall continue the pre-trial confence despite the absence of the plaintiff as long
as plaintiff’s counsel is present.

The question is, what about if the plaintiff was present but his counsel is absent, what
should the court do in this particular case? The rule is silent on this specific subject, but in the
naturals the court should order the re-setting of the pre-trial conference to another date.
Definitely, the Rules do not allow the court to order the dismissal of the plaintiff’s complaint
since the Rules mandate the dismissal only with the absence of the plaintiff and his counsel. In
the same way, the court could not proceed with the pre-trial conference with the absence of
the plaintiff’s counsel for the reason that the plaintiff is not well schooled in the intricacies of
pre-trial conference.

Since the dismissal of the action shall be with prejudice, unless otherwise provided, the
same shall have the effect of an adjudication on the merits, thus final. The remedy of the
plaintiff is to appeal from the order of dismissal. An order dismissing the action with prejudice is
appealable. Under the Rules, it is only when the order of dismissal is without prejudice, that
appeal cannot be availed of. Since appeal is available certiorari is not the remdy because the
application of a petition for certiorari under Sec. 65 of the Rules of Court is conditioned upon
the absence of appeal or any plain, speedy and adequate remedy in the ordinarty course of law
(Sec. 1, Rule 65, Rules of Court).

Effect of failure to appear by the defendant (BAR 2011)

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 The failure of the defendant AND COUNSEL to appear shall be cause to allow the
plaintiff to present his evidence ex parte and for the court to render judgment on the basis of
the evidence presented by the plaintiff. This is true only if both the defendant and his or her
counsel is absent despite proper notice and the above rule finds no application if the person
absent is either the defendant or his or her counsel. Despite the absence of the defendant, the
court may proceed with the pre-trial conference as long as his or her counsel is present, and
especially so when the defendant executed a special power of attorney to his or her
representative to represent him or her during the pre-trial conference. The rule would be
different if the one absent was the defendant’s counsel, for in that case the court has not
option but to re-set the pre-trial conference to another date without prejudice of imposing
sanction to the absent counsel.

The order of the court allowing the plaintiff to present his evidence ex parte does not
dispose of the case with finality. The order, is therefore, merely interlocutory, hence, not
appealable. Under Sec. 1 (b) of Rule 41, no appeal may be taken from an interlocutory order.
The defendant who feels aggrieved by the order may move for the reconsideration of the order
and if the denial is tainted with grave abuse of discretion, he may file a petition for certiorari
under Rule 65.

Section 6.Pre-trial brief. — The parties shall file with the court and serve on the adverse
party, in such manner as shall ensure their receipt thereof at least three (3) CALENDAR days
before the date of the pre-trial, their respective pre-trial briefs which shall contain, among
others:

FILING OF PRE-TRIAL BRIEFS

The parties shall file with the court their respective pre-trial briefs which should be
received at least three (3) days before the date of pre-trial. This pre-trial brief shall be served on
the adverse (Sec. 6, rule 18).
Contents of Pre-trial Brief

(a) A concise statement of the case and the reliefs prayed for;

(b) A summary of admitted facts and proposed stipulation of facts;

(c) The main factual and legal issues to be tried or resolved;

(d) The propriety of referral of factual issues to commissioners;

(e) The documents or other object evidence to be marked, stating the purpose thereof;

(f) The names of the witnesses, and the summary of their respective testimonies; and

(g) A brief statement of points of law and citation of authorities.

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Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial.

Identification and marking of evidence

It is vital to have documents and exhibits identified and marked during the pre-trial. The
current rule establishes the policy that no evidence shall be allowed to be presented and
offered during the trial in support of a party’s evidence-in-chief other than those that had been
earlier identified and pre-marked during the pre-trial, except if allowed by the court for good
cause shown (A.M. No. 03-1-0-SC, July 13, 2004).

Legal effect of representations and statements in the pre-trial brief

The parties are bound by the representations and statements in their respective pre-
trial briefs. Such representations and statements are in the nature of judicial admissions in
relation to Sec, 4 of Rule 12 of the Rules of Court.

Effect of failure to file a pre-trial brief

1. The failure to file pre-trial brief shall have the same effect as failure to appear at the
pre-trial. Hence, if it is the plaintiff who fails to file a pre-trial brief, such failure shall
be cause for dismissal of the action. If it is the defendant who fails to do so, such
failure shall be cause to allow the plaintiff to present his evidenced ex-parte.

2. The dismissal of a complaint for failure to file pre-trial brief is discretionary on the
part of the trial court (Ramos v. Spouses Lavendia, 568 SCRA 239)

In this case, despite the presence of the plaintiff and his counsel during the pre-trial
conference but they failed to submit their pre-trial brief, the court, on motion, may order the
dismissal of the complaint. In a similar way, even if both the defendant and his or counsel
appeared during the scheduled pre-trial conference but failed to file their pre-trial brief, the
court, may on motion, require the plaintiff to present his or her evidence.

No termination of pre-trial for failure to settle

The judge should not allow the termination of pre-trial simply because of the
manifestation of the parties that they cannot settle the case. Instead, he should expose the
parties to the advantages of pre-trial. He must also be mindful that there are important aspects
of the pre-trial that ought to be taken up to expidite then disposition of the case (A.M. No. 03-
1-09-SC, July 13, 2004)

If all efforts to settle fail, the trial judge shall endeavour to achieve the other purposes
of a pre-trial like, among others, obtaining admissions or stipulations of facts. To obtain
admissions, the judge shall ask then parties to submit whatever depositions have been taken
under Rule 23, the answers to written interrogatories under Rule 25 and the answers to request

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for admissions by the adverse party under Rule 26. He may also require the production
documents or things by a party under Rule 27 and the results of the physical and mental
examination of persons under Rule 28.

Questions are to be asked by the Judge

During the pre-trial, the judge shall be the one to ask questions on issues raised by the
parties and all questions or comments by counsel or parties must be directed to the judge to
avoid hostilities between the parties. The Rules require that the judge should be pro-active in
the conduct of pre-trial conference since he is the one that should be proposing “facts for
admission” or ask questions on issues raised by the parties’ counsel. He may guide the parties
as to the factual or legal issues that should be proved by the parties in the course of the trial of
the case. He may also limit the number of witnesses that should be presented by the plaintiff
and defendant in the light of the so-called “material witness rule.”

Section 7. Pre-Trial Order. — Upon termination of the pre-trial, the court shall issue an order
within ten (10) calendar days which shall recite in detail the matters taken up. The order shall
include:

(a) An enumeration of the admitted facts;

(b) The minutes of the pre-trial conference;

(c) The legal and factual issue/s to be tried;

(d) The applicable law, rules, and jurisprudence;

(e) The evidence marked;

(f) The specific trial dates for continuous trial, which shall be within the period provided by the
Rules;

(c) The case flowchart to be determined by the court, which shall contain the different
stages of the proceedings up to the promulgation of the decision and the use of time
frames for each stage in setting the trial dates;

(h) A statement that the one-day examination of witness rule and most important witness rule
under A.M. No. 03-1-09-SC (Guidelines for Pre-Trial) shall be strictly followed; and

(i) A statement that the court shall render judgment on the pleadings or summary judgment, as
the case may be. The direct testimony of witnesses for the plaintiff shall be in the form of
judicial affidavits. After the identification of such affidavits, cross-examination shall proceed
immediately.

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Postponement of presentation of the parties’ witnesses at a scheduled date is prohibited, except if
it is based on acts of God, force majeure or duly substantiated physical inability of the witness to
appear and testify. The party who caused the postponement is warned that the presentation of its
evidence must still be terminated within the remaining dates previously agreed upon.

Should the opposing party fail to appear without valid cause stated in the next preceding
paragraph, the presentation of the scheduled witness will proceed with the absent party being
deemed to have waived the right to interpose objection and conduct cross-examination.

The contents of the pre-trial order shall control the subsequent proceedings, unless modified
before trial to prevent manifest injustice. (7a)

What shall be included in the Pre-Trial Order?

(a) An enumeration of the admitted facts;

(b) The minutes of the pre-trial conference;
(c) The legal and factual issue/s to be tried;
(d) The applicable law, rules, and jurisprudence;
(e) The evidence marked;
(f) The specific trial dates for continuous trial, which shall be within the period provided by the
Rules;
(g)The case flowchart to be determined by the court, which shall contain the different stages of
the proceedings up to the promulgation of the decision and the use of time frames for each
stage in setting the trial dates;
(h) A statement that the one-day examination of witness rule and most important witness rule
under A.M. No. 03-1-09-SC (Guidelines for Pre-Trial) shall be strictly followed; and
(i) A statement that the court shall render judgment on the pleadings or summary judgment, as
the case may be.

One day examination of witness Rule (BAR 2009)

The court shall ask the parties to agree on the specific dates for continuous trial, adhere
to the case flow chart determined by the court and use the time frame for each stage in setting
the trial dates. Adherence to the One Day Examination of Witness Rule shall be required where
the witness shall be fully examined in one (1) day only, subject to the court’s discretion during
the trial on whether or not to extend the examination for justifiable reasons.

Most Important Witness Rule

Where no settlement has been effected, the court shall follow the Most Important
Witness Rule, where the court shall determine the most important witnesses and limit the
number of such witnesses and require the parties and/or counsels to submit to the branch clerk
of court the names, addresses and contact number of the witnesses to be summoned by

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subpoena. Note, however, that the court may also refer the case to a trial by commissioner
under Rule 32.

Pre-trial order

This order of the court is issued by the court upon the termination of the pre-trial.
Under A.M. No. 03-1-09-SC, July 13, 2004, the pre-trial order shall be issued within ten (10)
days after the termination of the pre-trial. This order recites the following:

1. The matters taken up in the conference,

2. The action taken thereon,
3. The amendments allowed to the pleadings, and
4. The agreements or admissions made by the parties as to any of the matters
considered.

Should the action proceed to trial, the order shall, explicitly define and limit the issues
to be tried. The contents of the order shall control the subsequent course of the action, unless
modified before trial to prevent manifest injustice.

What is a Pre-trial Conference?

It is a procedural device used prior to trial to narrow issues to be tried, and to secure
stipulations as to matters and evidence to be heard, and to take all other steps necessary to
and in the disposition of the case.
What is the proper action of the court in case of a pending Motion to Dismiss during the pre-
trial conference?
The respondent judge disregarded the provisions of Sec. 1, Rule 18 of the 1997 Rules of
Civil Procedure, which states that “After the last pleading has been served and filed, it shall be
the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial.”
Considering that the last pleading was Mrs. Macias’ Motion to Dismiss, the respondent judge
should have first resolved the motion and then waited for Mrs. Macias’ Motion to set the case
for pre-trial (Margie Macias Corpus vs. Judge Wilfredo Ochotorena, A.M. No. RTJ – 04-1861, July
30, 2004) (Please note that the answer to this query should have been modified by the present
Rules)
BAR 1992
At a pre-trial hearing in the Regional Trial Court of which the plaintiff and the defendant,
as well as their respective counsel of record were duly notified, only plaintiff’s counsel
appeared but without the requisite power of attorney authorizing him to fully and effectively
represent plaintiff at the pre-trial hearing. Because of the absence of the defendant and his

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counsel, plaintiff’s attorney moved in open court to have the defendant declared as in default.
Under the circumstances, what should the court do?
Suggested answer
The motion to have the defendant be declared as in default should be denied by the
court. To grant the motion would be inequitable. The plaintiff himself was absent although his
attorney was present, the latter did not appear with the requisite authority in writing to fully
represent the plaintiff in the pre-trial as required in Sec. 4, Rule 18 of the Rules of Court. The
court should, in a judicious exercise of his discretion, instead re-set the pre-trial hearing with
the warning that a repetition of the same would be dealt with strictly in accordance with the
Rules of Court.
PRE-TRIAL IN CRIMINAL CASES COMPARED TO PRE-TRIAL IN CIVIL CASES.
1. The pre-trial in a criminal case and civil case is mandatory.
2. The pre-trial in a criminal case is ordered by the court and no motion is required
from either party to call a pre-trial. In a civil case, it is the duty of the clerk of court
to set the date for pre-trial conference within five (5) calendar days from the filing of
the last responsive pleadings.
3. The pre-trial in a criminal case is ordered by the court after arraignment and within
thirty (30) days from the date the court acquires jurisdiction over the person of the
accused. In a civil case, the pre-trial is set within five calendar days after the last
pleading has filed;
4. The pre-trial in a criminal case does not consider the possibility of a compromise. A
compromise is not one of those enumerated purposes under Sec. 1 of Rule 118. In a
civil case, the possibility of an amicable settlement is an important objective;
5. In a criminal case, all agreements or admissions made or entered during the pre-trial
conference shall be reduced in writing and signed by the accused and his counsel,
otherwise, they cannot be used against the accused. In a civil case, the agreements
and admissions made are not required to be signed by the parties and their
counsels. They are contained in the pre-trial order.

Is pre-trial mandatory in all trial courts? (BAR 1989)

Suggested answer
Pre-trial is mandatory in all courts in civil cases. It is also mandatory now in all criminal
cases cognizable by the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court,
Municipal Trial Court in Cities, Municipal Trial Court. Under the Revised Rules on Summary
Procedure, a preliminary conference is mandatory in both civil and criminal cases.

Preliminary conference under the Revised Rules on Summary Procedure

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 Under the Revised Rules on Summary Procedure, a preliminary conference shall be held
not later than thirty (30) days after the last answer is filed. Here, the rules on pre-trial in
ordinary cases shall apply except when inconsistent with the rules on summary procedure (Sec.
7, II, 1991 Revised Rules on Summary Procedure). The tenor of the rule indicates the mandatory
nature of preliminary conference in cases subject to summary procedure. The failure of
the plaintiff to appear in the preliminary conference shall be cause for dismissal of his
complaint and the defendant who appears in the absence of the plaintiff shall be entitled to
judgment on his counterclaim. All cross-claims shall be dismissed. If a sole defendant fails to
appear, the plaintiff shall be entitled to judgment. This rule shall be inapplicable if one of
several defendants who are sued under a common cause of action and had pleaded a common
defense shall appear at the preliminary conference. Within five (5) days from the termination of
the preliminary conference, the court shall issue an order stating the matters taken up in the
conference.

Section 8. Court-Annexed Mediation. — After pre-trial and, after issues are joined, the court
shall refer the parties for mandatory court-annexed mediation.

The period for court-annexed mediation shall not exceed thirty (30) calendar days without
further extension. (n)

What shall the court do after the pre-trial and, after the issues are joined?

After pre-trial and, after issues are joined, the court shall refer the parties for
mandatory court-annexed mediation. The period for court-annexed mediation shall not exceed
thirty (30) calendar days without further extension.

Section 9. Judicial Dispute Resolution. — Only if the judge of the court to which the case was
originally raffled is convinced that settlement is still possible, the case may be referred to another
court for judicial dispute resolution. The judicial dispute resolution shall be conducted within a
non-extendible period of fifteen (15) calendar days from notice of failure of the court-annexed
mediation.

If judicial dispute resolution fails, trial before the original court shall proceed on the dates agreed
upon.
All proceedings during the court-annexed mediation and the judicial dispute resolution shall be
confidential. (n)

When shall the case be referred to Judicial Dispute Resolution?

Only if the judge of the court to which the case was originally raffled is convinced that
settlement is still possible, the case may be referred to another court for judicial dispute
resolution. The judicial dispute resolution shall be conducted within a non-extendible period of
fifteen (15) calendar days from notice of failure of the court-annexed mediation.

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Section. 10. Judgment after pre-trial. — Should there be no more controverted facts, or no more
genuine issue as to any material fact, or an absence of any issue, or should the answer fail to
tender an issue, the court shall, without prejudice to a party moving for judgment on the
pleadings under Rule 34 or summary judgment under Rule 35, motu proprio include in the pre-
trial order that the case be submitted for summary judgment or judgment on the pleadings,
without need of position papers or memoranda. In such cases, judgment shall be rendered within
ninety (90) calendar days from termination of the pre-trial.

The order of the court to submit the case for judgment pursuant to this Rule shall not be the
subject to appeal or certiorari. (n)

What is the rule with respect to Judgment after Pre-trial?

1. Should there be no more controverted facts, or

2. No more genuine issue as to any material fact, or
3. An absence of any issue, or
4. Should the answer fail to tender an issue,
5. The court shall, without prejudice to a party moving for judgment on the pleadings
under Rule 34 or summary judgment under Rule 35, motu proprio include in the pre-
trial order that the case be submitted for summary judgment or judgment on the
pleadings, without need of position papers or memoranda. In such cases, judgment
shall be rendered within ninety (90) calendar days from termination of the pre-trial.

It is clear from the foregoing provisions that should the court determine that (1) there
be no more controverted facts; or (2) no more genuine issue as to any material facts; or (3)
there is absence of any issue; or (4) that the Answer fails to tender an issue, the court, may
motu proprio, include in the Pre-trial Order that the case be submitted for summary judgment
or judgment on the pleadings.

Is the order of the court to submit the case for judgment be the subject of appeal or certiorari?

No. The order of the court to submit the case for judgment pursuant to this Rule shall
not be the subject to appeal or certiorari. (n)

RULE 19

INTERVENTION

Section 1.Who may intervene. — A person who has a legal interest in the matter in litigation,
or in the success of either of the parties, or an interest against both, or is so situated as to be
adversely affected by a distribution or other disposition of property in the custody of the
court or of an officer thereof may, with leave of court, be allowed to intervene in the action.
The court shall consider whether or not the intervention will unduly delay or prejudice the

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adjudication of the rights of the original parties, and whether or not the intervenor's rights
may be fully protected in a separate proceeding.

Intervention, defined

Intervention is a proceeding in a suit or action by which a third person is permitted by

the court to make himself a party, either joining plaintiff in claiming what is sought by the
complaint, or uniting with defendant in resisting the claims of plaintiff, or demanding
something adversely to both of them.
It is a remedy by which a third party, not originally impleaded in the proceedings,
becomes a litigant therein for a certain purpose: to enable the third party to protect or
preserve a right or interest that may be affected by those proceedings.
Nature of intervention (BAR 2011)
1. Intervention is a remedy by which a third party, not originally impleaded in the
proceedings, becomes a litigant therein to enable him or her or it to protect or preserve
a right or interest which may be affected by such proceedings.
2. Intervention is a legal proceeding by which a third person is permitted by the court to
become a party by intervening in a pending action after meeting the conditions and
requirements set by the Rules of Court. The third person who intervenes is one not
originally impleaded in the action.
3. Intervention is not a matter of right but may be permitted by the courts when the
applicant shows fact which satisfies the requirements of the law authorizing
intervention. This is precisely the reason why in intervention it requires leave of court,
and the granting of the motion for leave to file intervention is left to the sound
discretion of the court.

Who may intervene?

A person may by leave of court intervene if he has a legal interest:

1. In the matter in litigation, or

2. In the success of either of the parties, or

3. An interest against both, or
4. Is so situated as to be adversely affected by a distribution or other disposition of
property in the custody of the court or of an officer thereof may, with leave of court, be
allowed to intervene in the action.

What are the duties of the court in case of intervention?

The court shall consider the following matters in the determination of intervention:

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 1. Whether or not the intervention will unduly delay or prejudice the adjudication of
the rights of the original parties, and
2. Whether or not the intervenor's rights may be fully protected in a separate
proceeding.

Granting or denial of Intervention discretionary upon the court

At the risk of being repetitious, it should be stressed that the allowance or disallowance
of a motion for intervention is addressed to the sound discretion of the courts. The permissive
tenor of the Rules of Court shows the intention to give the courts the full measure of discretion
in allowing or disallowing the intervention. Once the courts have exercised this discretion, it
could not be reviewed by certiorari or controlled by mandamus unless it could be shown that
the discretion was exercised in an arbitrary or capricious manner. (Carbonilla vs. Board of
Airlines Representatives, G.R. No. 193247, September 14, 2011)
Purpose of Intervetion
The purpose of intervention is to enable a stranger to an action to become a party in
order for him to protect his interest and for the court to settle all conflicting claims.
Intervention is allowed to avoid multiplicity of suits more than on due process considerations.
(Virra Mall Tenants Asso., Inc. vs. Virra Mall Greenhills Asso, G.R. No. 182902, October 5, 2011)
What are the requisites for an intervention by a non-party in an action pending in court? (BAR
2000)
Intervention may be allowed when the person who desires to intervene has a legal
interest in the following:
(a) The matter of litigation;
(b) The success of either of the parties;
(c) Is so situated as to be adversely affected by a distribution or other disposition of
property in the custody of the court or of an officer thereof (Sec. 1, Rule 19)

Examples:
1. In action for foreclosure of mortgage initiated by a bank against the mortgagor,
the alleged owners of the land sought to be foreclosed may intervene (Roxas v.
Dinglasan, 28 SCRA 430).
2. The assignee of a property who assumed payment of whatever amount may be
finally adjudged against the assignor may intervene in a proceeding involving the
execution of the property pursuant to a judgment (Robles v. Timario, 6 SCRA
380).

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 3. The purchaser of the subdivided portions of parcel of land, which is the subject
matter of partition among the several heirs, may file a motion for intervention
since he will be adversely affected by the distribution of the parcel of land
among the heirs.
4. In a suit between Mr. Plaintiff and Mr. Defendant involving ownership of a parcel
of land. Mr.Third Party, who believes, he is the rightful owner of the land subject
of the litigation, may be allowed by the court to intervene in the action.

BAR 1991

Enforcing a writ of execution issued by the Pasig RTC in a civil action, the sheriff
attached several pieces of machinery and equipment found in defendant’s place of business.

Antonio Sadalay filed with the sheriff an affidavit of third-party claim stating that the
attached properties belong to him, not to the defendant. Can Sadalay intervene in the case and
ask the Pasig RTC to resolve his third-party claim?

Suggested answer
Sadalay cannot intervene in the case. Under Sec. 2, Rule 19 of the Rules of Court,
intervention may be done only before rendition of the judgment in the case and not after the
judgment has become final and executor.
NOTE:
A third person whose property was seized to answer for the obligation of another may
invoke the supervisory power of the court which authorized the execution for the purpose of
determining whether the sheriff has acted correctly in the performance of bhis duties in
executing the judgment. If the sheriff has acted wrongly, it can require the sheriff to restor the
property to the claimant’s possession. The court, however, in doing so, cannot pass on the
question of title to the property with finality. This remedy is without prejudice to the right of
the claimant to vindicate his claim to the property in a separate action.
The allowance or disallowance of a motion for intervention rests on the sound
discretion of the court after consideration of the appropriate circumstances. It is not an
absolute right as it can be secured only in accordance with the terms of the applicable statute
or rule. In claiming the right to intervene, the intervenor must comply with the requirements
laid down by Rule 19 of the Rules of Court (Office of the Ombudsman v. Samaniego, 564 SCRA
567)

What are the differences between Intervention (Rule 19) and Interpleader (Rule 62)?

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 Intervention and Interpleader should be distinguished in the following manner as
follows, to wit:

1. Intervention is an ancillary action, while interpleader is an original action;

2. Intervention is proper in any of of the four situations mentioned in this Rule; while
interpleader presupposes that the plaintiff has no interest in the subject matter of the
action or has an interest therein, which in whole or in part, is not disputed by the other
parties to the action;
3. In a complaint for intervention, the defendants are already original parties to the
pending suit, while in interpleader, the defendants are being sued precisely to implead
them;
4. Intervention can be filed where the original action is pending, while interpleader can be
filed at the first instance with the Regional Trial Court or Metropolitan Trial Court,
Municipal Trial Court depending on the nature of the property and its assessed value;
and
5. The remedy in case of denial of intervention is to appeal the denial being a final order or
to file a separate action, while the remedy in interpleader is to appeal the judgment.

Section 2.Time to intervene. — The motion to intervene may be filed at any time before
rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be
attached to the motion and served on the original parties. (n)

When to file a motion to intervene?

The motion to intervene may be filed at any time BEFORE rendition of judgment by the
trial court. After trial and decision in a case, intervention can no longer be permitted.
What must be attached to the motion to intervene?

A copy of the pleading-in-intervention shall be attached to the motion and served on

the original parties. For instance, a third person may file a motion for leave to intervene, and as
required by the rules, he shall attach in his motion a copy of the Complaint in Intervention.

Section 3.Pleadings-in-intervention. — The intervenor shall file a complaint-in-intervention if

he OR SHE asserts a claim against either or all of the original parties, or an answer-in-
intervention if he OR SHE unites with the defending party in resisting a claim against the
latter.

What is the rule on the pleadings-in-intervention?

Parties in intervention shall comply with the necessary pleadings:
a. The intervenor shall file a COMPLAINT-IN-INTERVENTION if he asserts a claim against
either or all of the original parties; or

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 b. An ANSWER-IN-INTERVENTION if he unites with the defending party in resisting a claim
against the latter.

Examples
1. In a suit between Mr. Plaintiff and Mr. Defendant involving ownership of a parcel
of land. Mr.Third Party, who believes, he is the rightful owner of the land subject
of the litigation, may be allowed by the court to intervene in the action. In this
case, since Mr. Third Party is a asserting a claim against both the plaintiff and the
defendant, will be filing a Complaint-In-Intervention.

2. In action for foreclosure of mortgage initiated by a bank against the mortgagor,

the alleged owners of the land sought to be foreclosed may intervene (Roxas v.
Dinglasan, 28 SCRA 430). In this case, he may file an Answer-In-Intervention, if
the alleged owners of the land to be foreclosed unite with the mortgagor.

Section 4. Answer to complaint-in-intervention. — The answer to the complaint-in-

intervention shall be filed within fifteen (15) CALENDAR days from notice of the order
admitting the same, unless a different period is fixed by the court.

When to file a responsive pleading?

The answer to the complaint-in-intervention shall be filed within fifteen (15) calendar
days from notice of the order admitting the same, unless a different period is fixed by the court.

Failure to file an answer-in-intervention; Default.

Lim points out that an answer-in-intervention cannot give rise to default since the filing
of such an answer is only permissive. But Sec. 4, Rule 19 requires the original parties to file an
answer to the complaint-in-intervention within 15 days from notice of the order admitting the
same, unless a different period is fixed by the court. This changes the procedure under the
former rule where such an answer was regarded as optional. Thus, Lim’s failure to file the
required answer can give rise to default. (Natividad Lim. vs. NPC, G.R. No. 178789, November
14, 2012). Just like in ordinary concept of default, the court cannot declare a non answering
defendant in default motu proprio as it necessitates a motion to declare him in default.
Sample Form of Motion for Leave of Court to File Intervention
For: Sum of Money with Damages
MOTION FOR LEAVE OF COURT TO FILE INTERVENTION

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COMES NOW, the Intervenor, through the undersigned counsel and unto this Honorable Court,
and with prior leave of court, most respectfully avers:
1. That he has legal interest in the matter in litigation in the above-entitled action for
accounting between plaintiff and defendant;

2. That he has been, for the last seven (7) years, and still is, the caretaker of the
commercial apartment for which is being asked accounting….

3. That, for the last seven (7) years, the Intervenor had not been given even a single
centavo corresponding to his 10% share in the said net proceeds.

WHEREFORE, premises considered, it is most respectfuly prayed of this Honorable Court

that the instant motion for intervention be granted and the attached Complaint in Intervention
be admitted.

Other relief and remedies as may be deemd just and equitable under the premises are
likewise prayed for.

Procedure for intervention

1. The intervenor shall file a motion for intervention. To this motion shall be attached his
pleading-in-intervnetion and serve upon the original parties (Sec. 2, Rule 19, Rules of
Court);
2. The pleading-in-intervention to be filed depends upon the purpose of the intervention.
If he wants to assert a claim against either or all of the original parties, the pleading shall
be called a complaint-in-intervention. If the pleading seeks to unite with the defending
party in resisting a claim against the latter, he shall file an answer-in-intervention (Sec.3,
Rule 1, Rules of Court);
3. The answer to the complaint-in-intervention shall be filed within fifteen (15) calendar
days from notice of the order admitting the same, unless a different period is fixed by
the courts (Sec.4, Rule 19, Rules of Court).

RULE 20

CALENDAR OF CASES

Section 1.Calendar of cases. — The clerk of court, under the direct supervision of the judge,
shall keep a calendar of cases for pre-trial, for trial, those whose trials were adjourned or
postponed, and those with motions to set for hearing. Preference shall be given to habeas
corpus cases, election cases, special civil actions, and those so required by law.

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Calendar of Cases

Based on the above provision, it is the Branch Clerk of Court who is tasked to prepare
and keep a calendar of cases for pre-trial, trial, as well as those motion set for hearing.

Section 2.Assignment of cases. — The assignment of cases to the different branches of a court
shall be done exclusively by raffle. The assignment shall be done in open session of which
adequate notice shall be given so as to afford interested parties the opportunity to be
present.

RULE 21

SUBPOENA

Section 1.Subpoena and subpoena duces tecum. — Subpoena is a process directed to a person
requiring him OR HER to attend and to testify at the hearing or the trial of an action, or at any
investigation conducted by competent authority, or for the taking of his deposition. It may
also require him OR HER to bring with him OR HER any books, documents, or other things
under his OR HER control, in which case it is called a subpoena duces tecum.

What is a subpoena and subpoena duces tecum?

Subpoena is a process directed to a person requiring him to attend and to testify at the
hearing or the trial of an action, or at any investigation conducted by competent authority, or
for the taking of his deposition.

It may also require him to bring with him any books, documents, or other things under
his control, in which case it is called a subpoena duces tecum.

Section 2.By whom issued. — The subpoena may be issued by —

(a) The court before whom the witness is required to attend;

(b) The court of the place where the deposition is to be taken;

(c) The officer or body authorized by law to do so in connection with investigations

conducted by said officer or body; or

(d) Any Justice of the Supreme Court or THE Court of Appeals in any case or
investigation pending within the Philippines.

When application for a subpoena to a prisoner is made, the judge or officer shall examine and
study carefully such application to determine whether the same is made for a valid purpose.

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No prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined
in any penal institution shall be brought outside the said penal institution for appearance or
attendance in any court unless authorized by the Supreme Court

Section 3.Form and contents. — A subpoena shall state the name of the court and the title of
the action or investigation, shall be directed to the person whose attendance is required, and
in the case of a subpoena duces tecum, it shall also contain a reasonable description of the
books, documents or things demanded which must appear to the court prima facie relevant.

Section 4.Quashing a subpoena. — The court may quash a subpoena duces tecum upon
motion promptly made and, in any event, at or before the time specified therein if it is
unreasonable and oppressive, or the relevancy of the books, documents or things does not
appear, or if the person in whose behalf the subpoena is issued fails to advance the
reasonable cost of the production thereof.

The court may quash a subpoena ad testificandum on the ground that the witness is not
bound thereby. In either case, the subpoena may be quashed on the ground that the witness
fees and kilometrage allowed by these Rules were not tendered when the subpoena was
served.

Grounds for Quashing a Subpoena Duces Tecum

The court may quash a subpoena duces tecum upon motion promptly made and, in any
event, at or before the time specified therein, based on the following grounds:

(1)Unreasonable and

(2) Oppressive, or

(3) The relevancy of the books, documents or things does not appear, or

(4) If the person in whose behalf the subpoena is issued fails to advance the reasonable cost of
the production thereof.

Ground for Quashing A Subpoena Ad Testificandum

The court may quash a subpoena ad testificandum on the ground that

(1)The witness is not bound thereby.

(2) In either case, the subpoena may be quashed on the ground that the witness fees and
kilometrage allowed by these Rules were not tendered when the subpoena was served.

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Section 5.Subpoena for depositions. — Proof of service of a notice to take a deposition, as
provided in sections 15 and 25 of Rule 23, shall constitute sufficient authorization for the
issuance of subpoenas for the persons named in said notice by the clerk of the court of the
place in which the deposition is to be taken. The clerk shall not, however, issue a
subpoena duces tecum to any such person without an order of the court.

Section 6.Service. — Service of a subpoena shall be made in the same manner as personal or
substituted service of summons. The original shall be exhibited and a copy thereof delivered
to the person on whom it is served, tendering to him the fees for one day's attendance and
the kilometrage allowed by these Rules, except that, when a subpoena is issued by or on
behalf of the Republic of the Philippines or an officer or agency thereof, the tender need not
be made. The service must be made so as to allow the witness a reasonable time for
preparation and travel to the place of attendance. If the subpoena is duces tecum, the
reasonable cost of producing the books, documents or things demanded shall also be
tendered.

COSTS FOR COURT ATTENDANCE AND THE PRODUCTION OF DOCUMENTS AND OTHER
MATERIALS SUBJECT OF THE SUBPOENA SHALL BE TENDERED OR CHARGED ACCORDINGLY.

Section 7.Personal appearance in court. — A person present in court before a judicial officer
may be required to testify as if he OR SHE were in attendance upon a subpoena is sued by
such court or officer.

Section 8.Compelling attendance. — In case of failure of a witness to attend, the court or

judge issuing the subpoena, upon proof of the service thereof and of the failure of the
witness, may issue a warrant to the sheriff of the province, or his OR HER deputy, to arrest
the witness and bring him before the court or officer where his OR HER attendance is
required, and the cost of such warrant and seizure of such witness shall be paid by the
witness if the court issuing it shall determine that his OR HER failure to answer the subpoena
was willful and without just excuse.

Section 9.Contempt. — Failure by any person without adequate cause to obey a subpoena
served upon him OR HER shall be deemed a contempt of the court from which the subpoena
is issued. If the subpoena was not issued by a court, the disobedience thereto shall be
punished in accordance with the applicable law or Rule.

Section 10. Exceptions. — The provisions of sections 8 and 9 of this Rule shall not apply to a
witness who resides more than one hundred (100) kilometers from his OR HER residence to
the place where he OR SHE is to testify by the ordinary course of travel, or to a detention
prisoner if no permission of the court in which his case is pending was obtained.

RULE 22

Computation of Time

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Section 1.How to compute time. — In computing any period of time prescribed or allowed by
these Rules, or by order of the court, or by any applicable statute, the day of the act or event
from which the designated period of time begins to run is to be excluded and the date of
performance included. If the last day of the period, as thus computed, falls on a Saturday a
Sunday, or a legal holiday in the place where the court sits, the time shall not run until the
next working day.

How to Compute Time

In computing any period of time prescribed or allowed by these Rules, or by order of the
court, or by any applicable statute, the day of the act or event from which the designated
period of time begins to run is to be excluded and the date of performance included. If the last
day of the period, as thus computed, falls on a Saturday a Sunday, or a legal holiday in the place
where the court sits, the time shall not run until the next working day.

Example

B, defendant, was summoned on December 16, 1999. Under Section 1, Rule 11, B has a
period of 30 calendar days to file his answer from service of summons on him.

Under the above provisions, “exclude the first and included the last” rule, you compute
this 30-day period from December 17, 1999. So, B will have up to January 16, 2000, to file his
answer. But assuming that January 16, 2000, is a legal holiday, so the 30-day period will expire
on the following day or on January 17, 2000, assuming that it is not a Saturday or a Sunday or a
legal holiday in the place where the court sits.

Section 2. Effect of interruption. — Should an act be done which effectively interrupts the
running of the period, the allowable period after such interruption shall start to run on the
day after notice of the cessation of the cause thereof.

The day of the act that caused the interruption shall be excluded in the computation of the
period.

Effect of Interruption

B, defendant, was summoned on January 2, 2020. Under Section 1, Rule 11 of the Rules
of Court, in relation to Section 1, Rule 22, the counting of the 30-day period shall commence on
January 3, 2020, and so B has until February 1, 2020, to file his answer. Let us assume that B,
filed on January 20, 2020, a motion to dismiss. The filing of said motion to dismiss would
effectively suspend the running of the period for filing of the answer. Since B has already
consumed 17 days of his 30-day period, when he filed his motion to dismiss, B has, therefore,

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the remaining 13 days to file his answer. This is the so-called “allowable period” referred to in
Sec.2, Rule 22.

Let us assume that the motion to dismiss was denied. What is the effect of the denial of
the motion to dismiss on the remaining period within which to file the answer?

It will start to run. It will resume its running. Because it started but when the motion to
dismiss was filed, the running was interrupted but when the motion to dismiss was denied, the
running must resume.

The question is” When will this “allowable period” start to run?

Let us assume that B received the order of denial on February 20, 2020, this allowable
period starts to run the day following the receipt on February 20, 2020 or on February 21, 2020.
Accordingly, B has the remaining 13 days counting from February 21, 2020, or until March 4,
2020 within which to file his answer.

If a party files a motion for extension, and the same was granted, when should the due date for
the extension period be counted?

In case a 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 (Montajes vs. People, G.R. No. 183449, March 12, 2012) For example, the
due date to file an answer is on February 1, 2020, and the motion for extension of time to file as
answer was granted for another 30 days, the extended period shall be counted from February
1, 2020, which is the original due date.

MODES OF DISCOVERY (Rules 23 to 28)

Nature of Modes of Discovery:

A discovery is the disclosure of facts resting in the knowledge of the defendant, or is the
production of deeds, writings or things in his possession or power, in order to maintain the right
or title of the party asking it, in a suit or proceeding.

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 In general, a discovery is a device employed by a party to obtain information about
relevant matters on the case from the adverse party in preparation for the trial. As
contemplated by the Rules, the device may be to be used in the trial.
Purposes of the modes of discovery
Modes of discovery are intended for the following purposes:
1. It is used as a device to narrow and clarify basic issues between the parties;
2. It is used as a device for ascertaining facts relative to the issue of the case;
3. To obtain full knowledge of the issues and facts of the case;
4. To avoid perjury and detection of false and fraudulent claims and defences;
5. To expedite the proceedings; and
6. To simplify issues of the case.
The wide ranging purpose of discovery procedure is to permit mutual knowledge before
trial of all relevant facts gathered by both parties so that either party may compel the other to
disgorge facts whatever he has in his possession. In other words, the different modes of
discovery are resorted to with the end in view to avoid surprises during the trial. In the pratical
sense, the modes of discovery are designed to serve as an additional device aside from a pre-
trial.
It is not surprising that trial lawyers seldom avail of modes of discovery because there
are modes of discovery that can be fully ventilated during the pre-trial conference. A pre-trial is
designed to narrow and clarify the basic issues between the parties, to ascertain the facts
relative to the issues and to enable the parties to obtain the fullest possible knowledge of the
issues and facts before civil trials and thus prevent the said trials to be carried out in the dark. It
is intended to make certain that all inssues necessary to the disposition of the case are properly
raised. Thus, to obviate the elements of surprise, parties are expected to disclose at a pre-trial
conference all issues of law and fact that they intend to raise at the trial, except such as may
involve privileged or impeaching matters (Tinio v. Manzano, 307 SCRA 460). It is also during pre-
trial conference that the parties may require the production of papers and documents from the
other party, as well as to avail of stipulation and admissions of relevant facts.

Duty of the court in relation to the mode of discovery

The modes of discovery are considered by the Supreme Court as vital components of
case management in pre-trial courts. Hence, aside from preparing the summons within one (1)
day from receipt of the complaint, the court is required to issue and order requiring the parties
to avail of interrogatories to parties under Rule 25 and request for admission by adverse party
under Rule 26 or at their discretion make use of depositions under Rule 23 or other measures

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under Rules 27 and 28 within five (5) days from the filing of the answer. A copy of this order
shall be served upon the defendant together with summons. A copy of the order shall also be
served upon the plaintiff (A.M. No. 03-1-0-SC, July 13, 2004)
What is the nature of the Modes of Discovery
The application of the rules on modes of discovery rests upon the sound discretion of
the court. In the same vein, the determination of the sanction to be imposed upon a party who
fails to comply with the modes of discovery rest on the same sound judicial discretion. It is the
duty of the courts to examine thoroughly the circumstances of each case and to determine the
applicability of the modes of discovery, bearing always in mind the aim to attain an expeditious
administration of justice. (Limos v. Spouses Odones, G.R. No. 188979, August 11, 2011).
BAR Question
What are the different Modes of Discovery under the Rules of Court?
ANSWER:

a. Deposition pending action.

b. Deposition before action or pending appeal.
c. Interrogatories to parties.
d. Admission by adverse party.
e. Production or inspection of documents and things; and
f. Physical and mental examination of persons.
MODES OF DISCOVERY UNDER THE RULES OF COURT (BAR 2000)
(a) Depositions pending action (Rule 23)
(b) Depositions before action or pending appeal (Rule 24)
(c) Interrogatories to parties (Rule 25)
(d) Admission by adverse by party (Rule 26)
(e) Production or inspection of documents and things (Rule 27); and
(f) Physical and mental examination of persons (Rule 28)

RULE 23

DEPOSITIONS PENDING ACTION

Section 1.Depositions pending action, when may be taken. — UPON EX PARTE MOTION OF A
PARTY, the testimony of any person, whether a party or not, may be taken, at the instance of

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any party, by deposition upon oral examination or written interrogatories. The attendance of
witnesses may be compelled by the use of a subpoena as provided in Rule 21. Depositions
shall be taken only in accordance with these Rules. The deposition of a person confined in
prison may be taken only by leave of court on such terms as the court prescribes.

DEPOSITION PENDING ACTION (RULE 23)

Under the new rules, the deposition of any person may be taken ex parte upon the filing
of an appropriate motion. Since the proceeding is ex parte, there is no need therefore, to set
the motion for hearing. As understood under the rules, deposition refers to the taking of the
testimony of a witness taken out of court pursuant to an authority from the rules of procedure,
reduced to writing, duly authenticated, and intended. 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. This testimony is taken out of court or not during the trial of a particular case. Although
the new rules provide that the taken of deposition may be done ex parte, however, leave of
Court is always required when the deposition to be taken is that of a person confined in prison.
Case
Plaintiff filed a complaint against the defendant. The defendant filed a motion to dismiss. The
plaintiff filed and served a notice to take deposition upon the defendant and the person to be
deposed and the deposition was subsequently taken. May such deposition be given probative
value?
Answer
No. A deposition which did not comply with S1 R23 may not be given probative value. Here the
deposition should have been taken with leave of court since the defendant has not yet served
an answer. (Georg v. Holy Trinity College, 20 July 2016, Perez, J.).
Case
Is there a requirement that the specific purpose of the deposition be stated in order to ensure
that matters are relevant and not privileged?
Answer
No. There is no provision in R23 that requires the party requesting for an oral deposition to
state the purpose or purposes of the deposition. The only matters that have to be stated in the
notice under S15 R23 are the time and place for taking the deposition, the name and address of
each person to be examined, if known, or if unknown, a general description sufficient to
identify the person to be examined or the class or group to which he belongs. The trial court
cannot expand the requirements under Rule 23. (Malonzo v. Sucere Foods Corp., 5 Feb 2020,
Inting, J.).
Two methods for taking deposition

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 As described by the Rules of Court (Sec. 1. Rule 23), it is the taking of the testimony of
any person, upon ORAL EXAMINATION or WRITTEN INTERROGATORIES, whether a party or not,
at the instance of any party. A deposition may be sought for use in a pending action (Rule 23), a
future action (Rule 24), or for use in a pending appeal (Rule 24) If the deposition is for use
during a pending action, it is commonly called a deposition de benne esse and is governed by
Rule 23. If it is to perpetuate a testimony for use in future proceedings as when it is sought
before the existence of an action, or for cases on appeal, it is called a deposition in perpetuam
rei memoriam and is governed by Rule 24.
Distinctions between Deposition and Affidavit
1. In deposition taking of the testimony requires notice to the other party; while in
affidavit, it may be taken ex parte;

2. In deposition, it may be taken in the form of a question and answer based on oral
examination or written interrogatories before authorized persons; while affidavit being
ex parte need not be in such form;

3. Deposition may be used as evidence in a pending case; while affidavit may or may not
be used in a proceeding.

Sample form:
EX PARTE MOTION FOR LEAVE TO TAKE DEPOSITION
PLAINTIFF, by counsel and to this Honorable Court, respectfully alleges:

That this Honorable Court has already acquired jurisdiction over the person of the defendant
by valid service of summons upon him on September 12, 2015;
1. That pursuant to Sec. 1 of Rule 23 of the Rules of Court, deposition may be taken by
leave of court after the trial court shall have acquired over the person of the defendant
but before he files his answer.

WHEREFORE, plaintiff respectfully prays that he be given leave of court to take the
deposition of Mr. Dela Cruz, with address at Brgy. San Roque, Jaro, Iloilo City, at such time and
place before a Notary Public, to be taken after leave of court shall have been granted.
Such other relief and remedies as may be deemed just and equitable under the
premises are likewise prayed for.

Section 2.Scope of examination. — Unless otherwise ordered by the court as provided by

section 16 or 18 of this Rule, the deponent may be examined regarding any matter, not

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privileged, which is relevant to the subject of the pending action, whether relating to the
claim or defense of any other party, including the existence, description, nature, custody,
condition, and location of any books, documents, or other tangible things and the identity
and location of persons having knowledge of relevant facts.

SCOPE OF EXAMINATION
As a rule, deponent may be examined as to any matter, not privileged, which is relevant
to the subject of the pending action, whether relating to the claim or defense of any other
party, including the existence, description, nature, custody, condition and location of any
books, documents, or other tangible things and the identity and location of persons having
knowledge of relevant facts.
Unless otherwise ordered by the court, the deponent may be examined regarding any
matter not privileged, which is relevant to the pending action, whether relating to the claim or
defense of any party, including the existence, description, nature, custody, condition and
location of any books, documents, or other tangible things and the indeityt and location of
persons having knowledge of relevant facts.

Section 3.Examination and cross-examination. — Examination and cross-examination of

deponents may proceed as permitted at the trial under sections 3 to 18 of Rule 132.

Examination and Cross-examination

Though the taking of deposition is done out of court, but the procedure to be followed
is as if the deponent is testifying in actual court trial. The deponent may be examined or cross
examined following the procedures for witnesses in a trial. He may be asked questions on
direct, cross, re-direct or re-cross. He has the same rights as a witness and may be impeached
like a court witness because Secs. 3 to 18 of Rule 132 apply to a deponent.

By way of reference, the provisions of secs. 3 to 18 of Rule 132, are hereby incorporated
hereinunder.

SEC. 3. RIGHTS AND OBLIGATION OF A WITNESS. – A WITNESS MUST ANSWER QUESTIONS, ALTHOUGH HIS ANSWER
MAY TEND TO ESTABLISH A CLAIM AGAINST HIM. HOWEVER, IT IS THE RIGHT OF A WITNESS:

(1) TO BE PROTECTED FROM IRRELEVANT, IMPROPER, OR INSULTING QUESTIONS, AND FROM HARSH OR
INSULTING DEMEANOR;
(2) NOT TO BE DETAINED LONGER THAN THE INTEREST OF JUSTICE REQUIRE;
(3) NOT TO BE EXAMINED EXCEPT ONLY AS TO MATTER PERTINENT TO THE ISSUE;
(4) NOT TO GIVE AN ANSWER WHICH WILL TEND TO SUBJECT HIM TO A PENALTY FOR AN OFFENSE UNLESS
OTHERWISE PROVIDED BY LAW; OR

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 (5) NOT TO GIVE AN ANSWER WHICH WILL TEND TO DEGRADE HIS REPUTATION , UNLESS IT BE TO THE VERY FACT
AT ISSUE OR TO A FACT FROM WHICH THE FACT IN ISSUE WOULD BE PRESUMED. BUT A WITNESS MUST
ANSWER TO THE FACT OF HIS PREVIOUS FINAL CONVICTION FOR AN OFFENSE.
SEC. 4. ORDER IN THE EXAMINATION OF AN INDIVIDUAL WITNESS. – THE ORDER IN WHICH AN INDIVIDUAL WITNESS
MAY BE EXAMINED IS AS FOLLOWS:

(A) DIRECT EXAMINATION BY THE PROPONENT;

(B) CROSS- EXAMINATION BY THE OPPONENT;
(C) RE-DIRECT EXAMINATION BY THE PROPONENT;
(D) RE-CROSS EXAMINATION BY THE OPPONENT.
SEC. 5. DIRECT EXAMINATION. – DIRECT EXAMINATION IS THE EXAMINATION-IN-CHIEF OF A WITNESS BY THE PARTY
PRESENTING HIM ON THE FACTS RELEVANT TO THE ISSUE.

SEC. 6. CROSS-EXAMINATION; ITS PURPOSE AND EXTENT. – UPON THE TERMINATION OF THE DIRECT EXAMINATION,
THE WITNESS MAY BE CROSS-EXAMINED BY THE ADVERSE PARTY AS TO ANY MATTERS STATED IN THE DIRECT
EXAMINATION, OR CONNECTED THEREWITH, WITH SUFFICIENT FULLNESS AND FREEDOM TO TEST HIS ACCURACY AND
TRUTHFULNESS AND FREEDOM FROM INTEREST OR BIAS, OR THE REVERSE, AND TO ELICIT ALL IMPORTANT FACTS
BEARING UPON THE ISSUE.

SEC. 7. RE-DIRECT EXAMINATION; ITS PURPOSE AND EXTENT. – AFTER THE CROSS-EXAMINATION OF THE WITNESS
HAS BEEN CONCLUDED, HE MAY BE RE-EXAMINED BY THE PARTY CALLING HIM, TO EXPLAIN OR SUPPLEMENT HIS
ANSWERS GIVEN DURING THE CROSS-EXAMINATION. ON RE-DIRECT EXAMINATION, QUESTIONS ON MATTERS NOT
DEALT WITH DURING THE CROSS-EXAMINATION, MAY BE ALLOWED BY THE COURT IN ITS DISCRETION.

SEC. 8. – RE-CROSS EXAMINATION. – UPON THE CONCLUSION OF THE RE-DIRECT EXAMINATION, THE ADVERSE PARTY
MAY RE-CROSS-EXAMINE THE WITNESS ON MATTERS STATED IN HIS RE-DIRECT EXAMINATION, AND ALSO ON SUCH
OTHER MATTERS AS MAY BE ALLOWED BY THE COURT IN ITS DISCRETION.

SEC. 9. RECALLING WITNESS. – AFTER THE EXAMINATION OF A WITNESS BY BOTH SIDES HAS BEEN CONCLUDED, THE
WITNESS CANNOT BE RECALLED WITHOUT LEAVE OF COURT. THE COURT WILL GRANT OR WITHHOLD LEAVE IN ITS
DISCRETION, AS THE INTEREST OF JUSTICE MAY REQUIRE.

SEC. 10. LEADING AND MISLEADING QUESTIONS. – A QUESTION WHICH SUGGESTS TO THE WITNESS THE ANSWERS
WHICH THE EXAMINING PARTY DESIRES IS A LEADING QUESTION. IT IS NOT ALLOWED, EXCEPT:

1. ON CROSS-EXAMINATION;
2.ON PRELIMINARY MATTERS;
3.WHEN THERE IS DIFFICULTY IN GETTING DIRECT AND INTELLIGIBLE ANSWERS FROM A WITNESS WHO IS IGNORANT,
OR A CHILD OF TENDER YEARS, OR IS OF FEEBLE MIND, OR A DEAF-MUTE;
4. OF AN UNWILLING OR HOSTILE WITNESS; OR
OF A WITNESS WHO IS AN ADVERSE PARTY OR AN OFFICER, DIRECTOR, OR MANAGING AGENT OF A PUBLIC OR PRIVATE
CORPORATION OR OF A PARTNERSHIP OR ASSOCIATION WHICH IS AN ADVERSE PARTY.

A MISLEADING QUESTION IS ONE WHICH ASSUMES AS TRUE A FACT NOT YET TESTIFIED TO BY THE WITNESS ,
OR CONTRARY TO THAT WHICH HE HAS PREVIOUSLY STATED . IT IS NOT ALLOWED.

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SEC. 11. IMPEACHMENT OF ADVERSE PARTY’S WITNESS. – A WITNESS MAY BE IMPEACHED BY THE PARTY AGAINST
WHOM HE WAS CALLED, BY CONTRADICTORY EVIDENCE, BY EVIDENCE THAT HIS GENERAL REPUTATION FOR TRUTH,
HONESTY, OR INTEGRITY IS BAD, OR BY EVIDENCE THAT HE HAS MADE AT OTHER TIMES STATEMENTS INCONSISTENT
WITH HIS PRESENT TESTIMONY, BUT NOT BY EVIDENCE OF PARTICULAR WRONGFUL ACTS, EXCEPT THAT IT MAY BE
SHOWN BY THE EXAMINATION OF THE WITNESS, OR THE RECORD OF THE JUDGMENT, THAT HE HAS BEEN CONVICTED
OF AN OFFENSE.

SEC. 12. PARTY MAY NOT IMPEACH HIS OWN WITNESS. – EXCEPT WITH RESPECT TO WITNESSES REFERRED TO IN
PARAGRAPHS (D) AND (E) OF SECTION 10, THE PARTY PRODUCING A WITNESS IS NOT ALLOWED TO IMPEACH HIS
CREDIBILITY.

A WITNESS IS CONSIDERED AN UNWILLING OR HOSTILE ONLY IF SO DECLARED BY THE COURT UPON

ADEQUATE SHOWING OF HIS ADVERSE INTEREST, UNJUSTIFIED RELUCTANCE TO TESTIFY, OR HIS HAVING MISLED THE
PARTY INTO CALLING HIM TO THE WITNESS STAND.

THE UNWILLING OR HOSTILE WITNESS SO DECLARED, OR THE WITNESS WHO IS AN ADVERSE PARTY, MAY BE
IMPEACHED BY THE PARTY PRESENTING HIM IN ALL RESPECTS AS IF HE HAD BEEN CALLED BY THE ADVERSE PARTY,
EXCEPT BY EVIDENCE OF HIS BAD CHARACTER. HE MAY ALSO BE IMPEACHED AND CROSS- EXAMINED BY THE ADVERSE
PARTY, BUT SUCH CROSS-EXAMINATION MUST ONLY BE ON THE SUBJECT MATTER OF HIS EXAMINATION-IN-CHIEF.

SEC. 13. HOW WITNESS IMPEACHED BY EVIDENCE OF INCONSISTENT STATEMENT. – BEFORE A WITNESS CAN BE
IMPEACHED BY EVIDENCE THAT HE HAS MADE AT OTHER TIMES STATEMENTS INCONSISTENT WITH HIS PRESENT
TESTIMONY, THE STATEMENTS MUST BE RELATED TO HIM, WITH THE CIRCUMSTANCES OF THE TIMES AND PLACES AND
THE PERSONS PRESENT, AND HE MUST BE ASKED WHETHER HE MADE SUCH STATEMENTS, AND IF SO, ALLOWED TO
EXPLAIN THEM. IF THE STATEMENTS BE IN WRITING THEY MUST BE SHOWN TO THE WITNESS BEFORE ANY QUESTION IS
PUT TO HIM CONCERNING THEM.

SEC. 14. EVIDENCE OF GOOD CHARACTER OF WITNESS. – EVIDENCE OF A GOOD CHARACTER OF A WITNESS IS NOT
ADMISSIBLE UNTIL SUCH CHARACTER HAS BEEN IMPEACHED.

SEC. 15. EXCLUSION AND SEPARATION OF WITNESSES. – ON ANY TRIAL OR HEARING, THE JUDGE MAY EXCLUDE FROM
THE COURT ANY WITNESS NOT AT THE TIME UNDER EXAMINATION, SO THAT HE MAY NOT HEAR THE TESTIMONY OF
OTHER WITNESSES. THE JUDGE MAY ALSO CAUSE WITNESSES TO BE KEPT SEPARATE AND TO BE PREVENTED FROM
CONVERSING WITH ONE ANOTHER UNTIL ALL SHALL HAVE BEEN EXAMINED .

SEC. 16. WHEN WITNESS MAY REFER TO MEMORANDUM. – A WITNESS MAY BE ALLOWED TO REFRESH HIS MEMORY
RESPECTING A FACT, BY ANYTHING WRITTEN OR RECORDED BY HIMSELF OR UNDER HIS DIRECTION AT THE TIME WHEN
THE FACT OCCURRED, OR IMMEDIATELY THEREAFTER, OR AT ANY OTHER TIME WHEN THE FACT WAS FRESH IN HIS
MEMORY AND HE KNEW THAT THE SAME WAS CORRECTLY WRITTEN OR RECORDED ; BUT IN SUCH CASE THE WRITING
OR RECORD MUST BE PRODUCED AND MAY BE INSPECTED BY THE ADVERSE PARTY, WHO MAY, IF HE CHOOSES, CROSS-
EXAMINE THE WITNESS UPON IT, AND MAY READ IT IN EVIDENCE. SO, ALSO A WITNESS MAY TESTIFY FROM SUCH A
WRITING OR RECORD, THOUGH HE RETAIN NO RECOLLECTION OF THE PARTICULAR FACTS, IF HE IS ABLE TO SWEAR
THAT THE WRITING OR RECORD CORRECTLY STATED THE TRANSACTION WHEN MADE; BUT SUCH EVIDENCE MUST BE
RECEIVED WITH CAUTION.

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SEC. 17. WHEN PART OF TRANSACTION, WRITING OR RECORD GIVEN IN EVIDENCE, THE REMAINDER ADMISSIBLE. –
WHEN PART OF AN ACT, DECLARATION, CONVERSATION, WRITING OR RECORD IS GIVEN IN EVIDENCE BY ONE PARTY,
THE WHOLE OF THE SAME SUBJECT MAY BE INQUIRED INTO BY THE OTHER, AND A DETACHED ACT, DECLARATION,
CONVERSATION, WRITING OR RECORD IS GIVEN IN EVIDENCE, ANY OTHER ACT, DECLARATION, CONVERSATION,
WRITING OR RECORD NECESSARY TO ITS UNDERSTANDING MAY ALSO BE GIVEN IN EVIDENCE.

SEC. 18. RIGHTS TO INSPECT WRITING SHOWN TO WITNESS. – WHENEVER A WRITING IS SHOWN TO A WITNESS, IT
MAY BE INSPECTED BY THE ADVERSE PARTY.

Section 4.Use of depositions. — At the trial or upon the hearing of a motion or an

interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules
of evidence, may be used against any party who was present or represented at the taking of
the deposition or who had due notice thereof, in accordance with any one of the following
provisions;

(a) Any deposition may be used by any party for the purpose of contradicting or
impeaching the testimony of THE deponent as a witness;

(b) The deposition of a party or of any one who at the time of taking the deposition
was an officer, director, or managing agent of a public or private corporation,
partnership, or association which is a party may be used by an adverse party for any
purpose;

(c) The deposition of a witness, whether or not a party, may be used by any party for
any purpose if the court finds: (1) that the witness is dead, or (2) that the witness
resides at a distance more than one hundred (100) kilometers from the place of trial
or hearing, or is out of the Philippines, unless it appears that his absence was procured
by the party offering the deposition, or (3) that the witness is unable to attend or
testify because of age, sickness, infirmity, or imprisonment, or (4) that the party
offering the deposition has been unable to procure the attendance of the witness by
subpoena; or (5) upon application and notice, that such exceptional circumstances
exist as to make it desirable, in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses orally in open court, to allow the
deposition to be used; and

(d) If only part of a deposition is offered in evidence by a party, the adverse party may
require him OR HER to introduce all of it which is relevant to the part introduced, and
any party may introduce any other parts.

USE OF DEPOSITIONS
Depositions may be used at the trial or upon the hearing of a motion or an interlocutory
proceeding, whether in whole or in part. They are admissible against any party who was

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present or represented at the taking of the deposition or who had due notice thereof.
Deposition may be used for the following purposes:
1. For the purpose of contradicting or impeaching the testimony of the deponent as a
witness;
2. For any purpose, if the deponent is the adverse party;
3. For any purpose, where the deposition is that of a witness, whether or not a party and
the court finds that: (1) the witness is dead; (2) the witness resides at a distance more
than one hundred (100) kilometers from the place of trial or hearing, or is out of the
Philippines, unless it appears that his absence was procured by the party offering the
deposition; or (3) the witness is unable to attend or testify because of age, sickness,
infirmity, or imprisonment; or (4) the party offering the deposition has been able to
procure the attendance of the witness by subpoena; or (5) upon application and notice,
that such exceptional circumstance exist as to make it desirable, in the interest of justice
(Sec. 4, Rule 23).

Section 5.Effect of substitution of parties. — Substitution of parties does not affect the right
to use depositions previously taken; and, when an action has been dismissed and another
action involving the same subject is afterward brought between the same parties or their
representatives or successors in interest, all depositions lawfully taken and duly filed in the
former action may be used in the latter as if originally taken therefor.

Effect of Substitution of Parties

The substitution of parties does not affect the right to use the depositions previously
taken. The same rule also provides that when an action has been dismissed and another action
involving the same subject and between the same parties or their representatives or successors
in interest, is afterwards brought, all the depositions lawfully taken and duly filed in the former
action may be used in the latter as if originally taken. For example, upon the death of a party
and proper substitution was instituted, or when a party to a case transfer his interest over the
subject matter of the case, the deposition previously taken shall not be affected by the
substitution of the parties, he or she be the plaintiff or defendant. In like manner, when an
action has been dismissed and another action has been brought involving the same subject and
involving the same parties, all depositions previously taken and duly filed in the former action
may be used or utilized in the new action as if originally taken.

Section 6.Objections to admissibility. — Subject to the provisions of section 29 of this Rule,

objection may be made at the trial or hearing, to receiving in evidence any deposition or part
thereof for any reason which would require the exclusion of the evidence if the witness were
then present and testifying.

When to object on the admissibility of deposition?

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 Subject to the provisions of section 29 of this Rule, objection may be made on the
following occasions:

1. at the trial or
2. hearing, to receiving in evidence any deposition or part thereof for any reason which
would require the exclusion of the evidence if the witness were then present and
testifying.

Section 29.Effect of errors and irregularities in depositions. —

(a) As to notice. — All errors and irregularities in the notice for taking a deposition are
waived unless written objection is promptly served upon the party giving the notice.

(b) As to disqualification of officer. — Objection to taking a deposition because of

disqualification of the officer before whom it is to be taken is waived unless made
before the taking of the deposition begins or as soon thereafter as the disqualification
becomes known or could be discovered with reasonable diligence.

(c) As to competency or relevancy of evidence. — Objections to the competency of

witness or the competency, relevancy, or materiality of testimony are not waived by
failure to make them before or during the taking of the deposition, unless the ground, of
the objection is one which might have been obviated or removed if presented at that
time.

(d) As to oral examination and other particulars. — Errors and irregularities occurring at
the oral examination in the manner of taking the deposition in the form of the questions
or answers, in the oath or affirmation, or in the conduct of the parties and errors of any
kind which might be obviated, removed, or cured if promptly prosecuted, are waived
unless reasonable objection thereto is made at the taking of the deposition.

(e) As to form of written interrogatories. — Objections to the form of written

interrogatories submitted under sections 25 and 26 of this Rule are waived unless
served in writing upon the party propounding them within the time allowed for serving
succeeding cross or other interrogatories and within three (3) days after service of the
last interrogatories authorized.

(f) As to manner of preparation. — Errors and irregularities in the manner in which the
testimony is transcribed or the deposition is prepared, signed, certified, sealed,
indorsed, transmitted, filed, or otherwise dealt with by the officer under sections 17, 19,
20 and 26 of this Rule are waived unless a motion to suppress the deposition or some
part thereof is made with reasonable promptness after such defect is, or with due
diligence might have been, ascertained.

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Section 7.Effect of taking depositions. — A party shall not be deemed to make a person his
OR HER own witness for any purpose by taking his deposition.

Effect of Taking of Depositions

A person whose deposition is taken by a party does not, by reason of such deposition,
make such person the witness of said party. For example, the plaintiff moved or requested for
the taking of a deposition of Mr Aquino, under the above rule, Mr. Aquino is not deemed to be
a witness of the plaintiff.

Section 8.Effect of using depositions. — The introduction in evidence of the deposition or any
part thereof for any purpose other than that of contradicting or impeaching the deponent
makes the deponent the witness of the party introducing the deposition, but this shall not
apply to the use by an adverse party of a deposition as described in paragraph (b) of section 4
of this Rule.

Effect of Using Depositions

While the taking of the deposition of a person does not make the person a witness of
the party taking his deposition, the introduction of the deposition or any party thereof makes
the deponent the witness of the party introducing the deposition if used for a purpose other
than that of contradicting or impeaching the deponent. The same provision, however, does not
make this rule applicable to the use by an adverse party of a deposition mentioned in
paragraph (b) of Sec. 4 of Rule 23.

“Section 4, (b) the deposition of a party or of any one who at the time of taking the
deposition was an officer, director, or managing agent of a public or private corporation,
partnership, or association which is a party may be used by an adverse party for any purpose.”

Section 9.Rebutting deposition. — At the trial or hearing any party may rebut any relevant
evidence contained in a deposition whether introduced by him or by any other party.

Section 10. Persons before whom depositions may be taken within the Philippines. — Within
the Philippines depositions may be taken before any judge, notary public, or the person
referred to in section 14 hereof.

Section 11. Persons before whom depositions may be taken in foreign countries. — In a
foreign state or country, depositions may be taken (a) on notice before a secretary of
embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of
the Philippines, (b) before such person or officer as may be appointed by commission or
under letters rogatory; or (c) the person referred to in section 14 hereof.

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Person who may take deposition.
Secs. 11 and 14, Rule 23 of the 1997 Rules on Civil Procedure, provides for the rule on
the persons who are authorized to take deposition, as follows, to wit:
(a) If within the Philippines:

“Sec. 10. Person before whom deposition may be taken. – Within the Philippines,
depositions may be taken before any judge, notary public, or the person referred to in
Sec. 14 hereof.”

Sec. 14. Stipulations regarding taking of depositions. – If the parties so stipulate in

writing, depositions may be taken before any person authorized to administer oaths, at
any time or place, in accordance with these Rules, and when so taken may be used like
other depositions.”
(b) If outside the Philippines:

“Sec. 11. Persons before whom deposition may be taken in foreign countries. – In a
foreign state or country, depositions may be taken (a) on notice before a secretary of
embassy or legation, consul general, consul, vice-consul, or consular agent of the
Republic of the Philippines; (b) before such person or officer as may be appointed by
commission or under letters rogatory; or (c) the person referred to in Section 14
hereof.”

Section 12.Commission or letters rogatory. — A commission or letters rogatory shall be issued

only when necessary or convenient, on application and notice, and on such terms, and with
such direction as are just and appropriate. Officers may be designated in notices or
commissions either by name or descriptive title and letters rogatory may be addressed to the
appropriate judicial authority in the foreign country.

Letters commission or rogatory.

Sec. 12, Rule 23, provides for the rule on when a letter commission or letter rogatory
can be issued. It states that:
“Sec. 12. Commission or letters rogatory. – A commission or letter rogatory shall be issued only
when necessary or convenient, on application and notice, and on such terms and with such
direction as are just and appropriate. Officers may be designated in notice or commissions
either by name or descriptive title and letters rogatory may be addressed to the appropriate
judicial authority in the foreign country.”

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What is a letter commission?
It is an instrument issued by a court of justice, or other competent tribunal to authorize
a person to take depositions, or do any other act by authority of such court or tribunal.
What is a letter rogatory?
It is an instrument whereby a foreign court is informed of the pendency of a case and
the name of the foreign witness, and is requested to cause their depositions to be taken in the
due course of law for the furtherance of justice, with an offer on the part of the court making
the request, to do the like for the others, in a similar case.
When can a letters commission or rogatory be issued?
A commission or letter rogatory shall be issued only when:
1. Necessary or convenient, on application and notice, and:
2. On such terms and with such direction as are just and appropriate.
3. Officers may be designated in notice or commissions either by name or descriptive
title and
4. Letters rogatory may be addressed to the appropriate judicial authority in the
foreign country.”
Sample form
PETITION FOR ISSUANCE OF LETTER ROGATORY
COMES NOW, plaintiff, by counsel and to this Honorable Court, respectfully alleges:
1. That for the purpose of completing plaintiff’s evidence, so that a just and fair
decision may be rendered in the instant case, it is proper and necessary that the
testimony of Juan Dela Cruz, who is at present residing in the United States at New
Jersey, U.S.A., be taken by means of deposition upon written interrogatories,
attached herewith as Annex “A”, at the Philippine Consulate at its offices in 42 nd
Street, New York, U.S.A. before any Philippine consular representative thereat, at
such date and time as the latter may fix.

2. That if the adverse party desires, he may serve cross-interrogatories to be filed in

court, so that the direct interrogatories and cross-interrogatories may both be sent
to the Philippine Consulate at the above-indicated address.

WHEREFORE plaintiff respectfully prays that an order issue directing the

adverse party, the defendant, to submit his written cross-interrogatories within ten
(10) days from notice, requiring the clerk of court to issue letters rogatory directed
to the Philippine Consular representative in the Philippine Consular Office at
___________ U.S. A. to take the examination upon interrogatories (both direct and

334
 cross) attached herewith, at such date and time as the consular representative may
schedule, with notice to the witness___________ to appear and testify therein; and
thereafter, to submit the record of deposition to the Court which issued this order,
with notice to both parties.
Such other relief and remedies just and equitable under the premises are likewise
prayed for.

Sample Form
Republic of the Philippines
MUNICIPAL TRIAL COURT
6TH Judicial Region
Branch 32
Iloilo City

Mr. A, Civil Case No. 20-123

Plaintiff For: Sum of Money

Versus-
Mr. B,
Defendant

LETTERS ROGATORY
The Municipal Trial Court of Iloilo City, Branch 32 to Judge or Tribunal having jurisdiction
of Civil Cases at Canada.
WHEREAS, a certain suit is pending in the Municipal Trial Court , Branch 32, Iloilo City, in
which Mr A is the plaintiff and Mr. B is the defendant, and it has been suggested to us that
there are witness residing within your jurisdiction without whose testimony justice cannot
completely be done between said parties.
WE, THEREFORE, request you that in furtherance of justice you will by proper and usual
process of your courts cause such witness as shall be named or pointed out to you by said
parties or rather of them, to appear before you or some competent person by you for that
purpose to be appointed and authorized at a precise time and place by to be fixed by you and
there to answer on their oaths and affirmations to the several interrogatories hereunto
annexed; and that you will cause their depositions to be committed to writing and returned to
us under cover duly closed and sealed up together with these presents. And we shall be ready
and willong to do the same for you in a similar case when required.

335
(Sgd) Stephen James Justalero
Branch Clerk of Court
Municipal Trial Court
Iloilo City

Distinction between commission and letters rogatory.

1. Commission is an instrument issued by a court of justice, or other competent tribunal to
authorize a person to take deposition, or do any other act by authority of such court or
tribunal; while letters rogatory is an instrument whereby a foreign court is informed of
the pendency of a case and the name of the foreign witness, and is requested to cause
their depositions to be taken in due course of law for the furtherance of justice, with an
offer on the part of the court making the request, to do the like for the other, in a
similar case;
2. Commission is addressed to a non-judicial foreign officer who will take the deposition;
while letters of rogatory, it is addressed to a judicial officer of a foreign country who will
direct the taking of the deposition;
3. In Commission, the rules which are applicable are those of the requesting court; while in
letters rogatory the procedure applicable will be that of the foreign court;
4. In Commission, it is allowed if the permission of the foreign country is given; while in
letters rogatory, it is allowed if commission was disallowed by the foreign country;
5. Lastly, in commission leave of court is not necessary; while in letters rogatory, leave of
court is necessary.

Section 13.Disqualification by interest. — No deposition shall be taken before a person who is

a relative within the sixth degree of consanguinity or affinity, or employee or counsel of any
of the parties, or who is a relative within the same degree, or employee of such counsel; or
who is financially interested in the action.

Who are the persons disqualified to take deposition?

No deposition shall be taken before:
a. A person who is a relative within the sixth degree of consanguinity or affinity; or
b. Employee or counsel of any of the parties; or
c. A relative within the same degree, or employee of such counsel; or
d. Person who is financially interested in the action.

Section 14.Stipulations regarding taking of depositions. — If the parties so stipulate in

writing, depositions may be taken before any person authorized to administer oaths, at any
time or place, in accordance with these Rules and when so taken may be used like other
depositions.

336
Before whom taken

Within the Philippines, a deposition need not be taken before a judge, although it may
be taken before one. It may also be taken before a notary public (Sec. 10, Rule 23, Rules of
Court) or before any person authorized to administer oaths if the parties so stipulate in writing
(Sec. 14, Rule 23).

Outside the Philippines, a deposition may be taken before (a) a secretary of an embassy
or legation, consul general, consul, vice-consul, or consular agent of the Republic of the
Philippines (Sec. 11, Rule 23); (b) such person or officer as may be appointed by commission or
letters rogatory; or (c) a person authorized to administer oaths by written stipulation of the
parties (Sec. 1, Rule 23).

No deposition shall be taken before a person who is a relative within the sixth degree of
consanguinity or affinity, or employee or counsel of ay of the parties; or who is a relative within
the same degree, or employee of such counsel; or who is financially interested in the action
(Sec. 13, Rule 23)

Section 15.Deposition upon oral examination; notice; time and place. — A party desiring to
take the deposition of any person upon oral examination shall give reasonable notice in
writing, to every other party to the action. The notice shall state the time and place for taking
the deposition and the name and address of each person to be examined, if known, and if the
name is not known, a general description sufficient to identify him OR HER or the particular
class or group to which he OR SHE belongs. On motion of any party upon whom the notice is
served, the court may for cause shown enlarge or shorten the time.

Examination of the deponent

A party desiring to take the depositon of any person upon oral examination shall give
reasonable notice in writing to every party to the action stating the name and place for taking
the deposition and the name and address of each person to be examined (Sec. 15, Rule 23).
After the notice is served, the court may make any order for the protection of the parties and
the deponents (Sec. 16, Rule 23).
The attendance of witnesses may be compelled by the use of subpoenas (Sec. 1, Rule
23).
Kinds of Depositions
There are two kinds of depositions under Rule 23.
They are:

(a) Depositions upon oral examination under Sec 15 of Rule 23 and

(b) Depositions upon written interrogatories under Sec, 25 of Rule 23.

337
Sample form
NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION (SEC. 15, Rule 23)
Atty. Vicente Villa-Go
Counsel for defendant/plaintiff
SIR:
Please take notice that on February 8, 2016, the undersigned counsel for Mr. X in Civil
Case No. ______, entitled “Mr X vs. Mr. Y” RTC, Manila, will take the deposition of Mr. Juan
Dela Cruz, with address at ___________, before Notary Public XYZ at the latter’s address at
____________, upon oral examination. The oral examination will continue from day to day at
the same time and place until the oral examination is completed.

Section 16. Orders for the protection of parties and deponents. — After notice is served for
taking a deposition by oral examination, upon motion seasonably made by any party or by
the person to be examined and for good cause shown, the court in which the action is
pending may make THE FOLLOWING order:

(a) That the deposition shall not be taken,

(b) That it may be taken only at some designated place other than that stated in the
notice,
(c) That it may be taken only on written interrogatories,
(d) That certain matters shall not be inquired into,
(e) That the scope of the examination shall be held with no one present except the
parties to the action and their officers or counsel,
(f) That after being sealed the deposition shall be opened only by order of the court,
(g) That secret processes, developments, or research need not be disclosed,
(h) That the parties shall simultaneously file specified documents or information enclosed
in sealed envelopes to be opened as directed by the court.
The court may make any other order which justice requires to protect the party or
witness from annoyance, embarrassment, or oppression.

Orders for the protection of parties and deponents. —

After notice is served for taking a deposition by oral examination, upon motion
seasonably made by any party or by the person to be examined and for good cause shown,

The court in which the action is pending may make an order

1. That the deposition shall not be taken, or

2. That it may be taken only at some designated place other than that stated in the
notice, or
3. That it may be taken only on written interrogatories, or

338
 4. That certain matters shall not be inquired into, or
5. That the scope of the examination shall be held with no one present except the
parties to the action and their officers or counsel, or
6. That after being sealed the deposition shall be opened only by order of the court,
7. That secret processes, developments, or research need not be disclosed, or
8. That the parties shall simultaneously file specified documents or information
enclosed in sealed envelopes to be opened as directed by the court or
9. The court may make any other order which justice requires to protect the party or
witness from annoyance, embarrassment, or oppression.

Section 17.Record of examination, oath; objections. — The officer before whom the
deposition is to be taken shall put the witness on oath and shall personally, or by some one
acting under his OR HER direction and in his OR HER presence, record the testimony of the
witness. The testimony shall be taken stenographically unless the parties agree otherwise. All
objections made at the time of the examination to the qualifications of the officer taking the
deposition, or to the manner of talking it, or to the evidence presented, or to the conduct of
any party, and any other objection to the proceedings, shall be noted by the officer upon the
deposition. Evidence objected to shall be taken subject to the objections. In lieu of
participating in the oral examination, parties served with notice of taking a deposition may
transmit written interrogatories to the officers, who shall propound them to the witness and
record the answers verbatim.

Record of Examinations

The officer before whom the deposition is taken has no authority to rule on the
objections interposed during the course of the deposition although any objections shall be
noted by the officer upon the deposition. Any evidence that is objected to shall be taken but
subject to the objection.

Certain guidelines for oral deposition provided for under Sec. 17 of Rule 23 must be
observed. These are:

1. The officer before whom the depositon is taken shall put the witness under oath;
2. The testimony of the witness or deponent must be recorded and shall be taken
stenographically unless the party agree otherwise;
3. All objections at the time of the examination shall be noted;
4. Evidence objected to shall be taken but subject to the objections.

In lieu of participating in the oral deposition, parties served with notice of taking a
deposition may transmit written interrogatories to the officers, who shall propound them to
the witness and record the answers verbatim.

Section 18.Motion to terminate or limit examination. — At any time during the taking of the
deposition, on motion or petition of any party or of the deponent, and upon a showing that

339
the examination is being conducted in bad faith or in such manner as unreasonably to annoy,
embarrass, or oppress the deponent or party, the court in which the action is pending or the
Regional Trial Court of the place where the deposition is being taken may order the officer
conducting the examination to cease forthwith from taking the deposition, or may limit the
scope and manner of the taking of the deposition, as provided in section 16 of this Rule. If the
order made terminates the examination, it shall be resumed thereafter only upon the order
of the court in which the action is pending. Upon demand of the objecting party or deponent,
the taking of the deposition shall be suspended for the time necessary to make a notice for
an order. In granting or refusing such order, the court may impose upon either party or upon
the witness the requirement to pay such costs or expenses as the court may deem
reasonable.

Motion to terminate or limit examination.

At any time during the taking of the deposition, on motion or petition of any party or of
the deponent, and upon a showing that the examination is

(1) being conducted in bad faith or

(2) in such manner as unreasonably to annoy,

(3) embarrass, or

(4)oppress the deponent or party, the court in which the action is pending or the Regional Trial
Court of the place where the deposition is being taken may order the officer conducting the
examination to cease forthwith from taking the deposition, or may limit the scope and manner
of the taking of the deposition, as provided in section 16 of this Rule. If the order made
terminates the examination, it shall be resumed thereafter only upon the order of the court in
which the action is pending. Upon demand of the objecting party or deponent, the taking of the
deposition shall be suspended for the time necessary to make a notice for an order. In granting
or refusing such order, the court may impose upon either party or upon the witness the
requirement to pay such costs or expenses as the court may deem reasonable.

Sample form
MOTION TO TERMINATE TAKING OF DEPOSITION
COMES NOW, plaintiff, by counsel and to this Honorable Court, most respectfully
alleges:
1. That the deposition of the Juan Dela Cruz is now being taken before a Notary Public
Atty. ____________ at _________________;
2. That during the taking of the deposition counsel for the defendant profounded
questions which are not only immaterial, baseless but tending to harass and merely to
disrepute said deponent which has no relation to the facts in issue to the case, and

340
 pursuant to Sec. 18 of Rule 23, deposition may be ordered terminated by the Honorable
Court.

WHEREFORE, plaintiff respectfully prays that the taking of the deposition of

_________________ be terminated based on the above reasons.

Section 19.Submission to witness; changes; signing. — When the testimony is fully

transcribed, the deposition shall be submitted to the witness for examination and shall be
read to or by him OR HER, unless such examination and reading are waived by the witness
and by the parties. Any changes in form or substance which the witness desires to make shall
be entered upon the deposition by the officer with a statement of the reasons given by the
witness for making them. The deposition shall then be signed by the witness, unless the
parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to
sign. If the deposition is not signed by the witness, the officer shall sign it and state on the
record the fact of the waiver or of the illness or absence of the witness or the fact of the
refusal to sign together with the reason be given therefor, if any, and the deposition may
then be used as fully as though signed, unless on a motion to suppress under section 29 (f) of
this Rule, the court holds that the reasons given for the refusal to sign require rejection of the
deposition in whole or in part.

Submission to witness

When the testimony is fully transcribed, the deposition shall be submitted to the
witness for examination and shall be read to or by him, unless such examination and reading
are waived by the witness and by the parties. Any changes in form or substance which the
witness desires to make shall be entered upon the deposition by the officer with a statement of
the reasons given by the witness for making them. The deposition shall then be signed by the
witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be
found or refuses to sign.

If the deposition is not signed by the witness, the officer shall sign it and state on the
record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal
to sign together with the reason be given therefor, if any, and the deposition may then be used
as fully as though signed, unless on a motion to suppress under section 29 (f) of this Rule, the
court holds that the reasons given for the refusal to sign require rejection of the deposition in
whole or in part.

Section 20.Certification, and filing by officer. — The officer shall certify on the deposition that
the witness was duly sworn to by him OR HER and that the deposition is a true record of the
testimony given by the witness. He OR SHE shall then securely seal the deposition in an
envelope indorsed with the title of the action and marked "Deposition of (here insert the
name of witness)" and shall promptly file it with the court in which the action is pending or
send it by registered mail to the clerk thereof for filing.

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Certification and Filing by the Officer

The officer shall certify on the deposition that the witness was duly sworn to by him and
that the deposition is a true record of the testimony given by the witness. He shall then
securely seal the deposition in an envelope indorsed with the title of the action and marked
"Deposition of (here insert the name of witness)" and shall promptly file it with the court in
which the action is pending or send it by registered mail to the clerk thereof for filing.

Section 21.Notice of filing. — The officer taking the deposition shall give prompt notice of its
filing to all the parties.

Section 22.Furnishing copies. — Upon payment of reasonable charges therefor, the officer
shall furnish a copy of the deposition to any party or to the deponent.

Section 23.Failure to attend of party giving notice. — If the party giving the notice of the
taking of a deposition fails to attend and proceed therewith and another attends in person or
by counsel pursuant to the notice, the court may order the party giving the notice to pay such
other party the amount of the reasonable expenses incurred by him OR HER and his OR HER
counsel in so attending, including reasonable attorney's fees.

What is the effect if the party giving notice fails to attend the taking of depositions?

If the party giving the notice of the taking of a deposition fails to attend and proceed
therewith and another attends in person or by counsel pursuant to the notice, the court may

1. Order the party giving the notice to pay such other party the amount of the
reasonable expenses incurred by him and his counsel in so attending, including
reasonable attorney's fees.

Section 24.Failure of party giving notice to serve subpoena. — If the party giving the notice of
the taking of a deposition of a witness fails to serve a subpoena upon him and the witness
because of such failure does not attend, and if another party attends in person or by counsel
because he OR SHE expects the deposition of that witness to be taken, the court may order
the party giving the notice to pay to such other party the amount of the reasonable expenses
incurred by him OR HER and his OR HER counsel in so attending, including reasonable
attorney's fees.

What is the rule in case there is failure of party giving notice to serve subpoena?

If the party giving the notice of the taking of a deposition of a witness fails to serve a
subpoena upon him and the witness because of such failure does not attend, and if another
party attends in person or by counsel because he OR SHE expects the deposition of that witness
to be taken, the court may order the party giving the notice to pay to such other party the

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amount of the reasonable expenses incurred by him OR HER and his OR HER counsel in so
attending, including reasonable attorney's fees.

Section 25.Deposition upon written interrogatories; service of notice and of interrogatories.

— A party desiring to take the deposition of any person upon written interrogatories shall
serve them upon every other party with a notice stating the name and address of the person
who is to answer them and the name or descriptive title and address of the officer before
whom the deposition is to be taken. Within ten (10) CALENDAR days thereafter, a party so
served may serve cross-interrogatories upon the party proposing to take the deposition.
Within five (5) CALENDAR days thereafter, the latter may serve re-direct interrogatories upon
a party who has served cross-interrogatories. Within three (3) CALENDAR days after being
served with re-direct interrogatories, a party may serve recross-interrogatories upon the
party proposing to take the deposition.

Deposition upon written interrogatories

A deposition need not be conducted through oral examination. It may be conducted

through written interrogatories under Sec. 1, Rule 23.

A party desiring to take the deposition of any person upon written interrogatories shall
serve them upon every other party with a notice stating the name and address of the person
who is to answer them and the name or descriptive title and address of the officer before
whom the deposition is to be taken.

Within ten (10) days thereafter, a party so served may serve cross-interrogatories upon
the party proposing to take the deposition. Within five (5) days thereafter, the latter may serve
re-direct interrogatories upon a party who has served cross-interrogatories. Within three (3)
days after being served with re-direct interrogatories, a party may serve recross-interrogatories
upon the party proposing to take the deposition.

Sample form

NOTICE TO TAKE DEPOSITION UPON WRITTEN INTERROGATORIES

Atty. Annika Kim C. Justalero

Counsel for defendant/plaintiff
Iloilo City

Maam:

Please take notice that on February 8, 2019, the undersigned counsel for Mr X in Civil
Case No. 19-1234, entitled “Mr X vs. Mrs Y, RTC, Iloilo City, will take the deposition of Mr. Juan
Cruz, with address at Jaro, Iloilo City, before Notary Public Atty Roel Pueblo at the latter’s
address at Molo, Iloilo City, at 10:00 in the morning, upon written interrogatories. The written

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interrogatories will continue from day to day at the same time and place until the written
interrogatories are completed.

Atty. Tony Ramos

Counsel for the Plaintiff/Defendant

Section 26.Officers to take responses and prepare record. — A copy of the notice and copies
of all interrogatories served shall be delivered by the party taking the deposition to the
officer designated in the notice, who shall proceed promptly, in the manner provided by
sections 17, 19 and 20 of this Rule, to take the testimony of the witness in response to the
interrogatories and to prepare, certify, and file or mail the deposition, attaching thereto the
copy of the notice and the interrogatories received by him OR HER.

Officers to take responses and prepare record.

A copy of the notice and copies of all interrogatories served shall be delivered by the
party taking the deposition to the officer designated in the notice, who shall proceed promptly,
in the manner provided by sections 17, 19 and 20 of this Rule, to take the testimony of the
witness in response to the interrogatories and to prepare, certify, and file or mail the
deposition, attaching thereto the copy of the notice and the interrogatories received by him.

Section 27.Notice of filing and furnishing copies. — When a deposition upon interrogatories is
filed, the officer taking it shall promptly give notice thereof to all the parties, and may furnish
copies to them or to the deponent upon payment of reasonable charges therefor.

Section 28.Order for the protection of parties and deponents. — After the service of the
interrogatories and prior to the taking of the testimony of the deponent, the court in which
the action is pending, on motion promptly made by a party or a deponent, and for good cause
shown, may make any order specified in sections 15, 16 and 18 of this Rule which is
appropriate and just or an order that the deposition shall not be taken before the officer
designated in the notice or that it shall not be taken except upon oral examination.

Section 29.Effect of errors and irregularities in depositions. —

(a) As to notice. — All errors and irregularities in the notice for taking a deposition are
waived unless written objection is promptly served upon the party giving the notice.

(b) As to disqualification of officer. — Objection to taking a deposition because of

disqualification of the officer before whom it is to be taken is waived unless made
before the taking of the deposition begins or as soon thereafter as the disqualification
becomes known or could be discovered with reasonable diligence.

(c) As to competency or relevancy of evidence. — Objections to the competency of

witness or the competency, relevancy, or materiality of testimony are not waived by

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 failure to make them before or during the taking of the deposition, unless the ground,
of the objection is one which might have been obviated or removed if presented at
that time.

(d) As to oral examination and other particulars. — Errors and irregularities occurring
at the oral examination in the manner of taking the deposition in the form of the
questions or answers, in the oath or affirmation, or in the conduct of the parties and
errors of any kind which might be obviated, removed, or cured if promptly
prosecuted, are waived unless reasonable objection thereto is made at the taking of
the deposition.

(e) As to form of written interrogatories. — Objections to the form of written

interrogatories submitted under sections 25 and 26 of this Rule are waived unless
served in writing upon the party propounding them within the time allowed for
serving succeeding cross or other interrogatories and within three (3) days after
service of the last interrogatories authorized.

(f) As to manner of preparation. — Errors and irregularities in the manner in which the
testimony is transcribed or the deposition is prepared, signed, certified, sealed,
indorsed, transmitted, filed, or otherwise dealt with by the officer under sections 17,
19, 20 and 26 of this Rule are waived unless a motion to suppress the deposition or
some part thereof is made with reasonable promptness after such defect is, or with
due diligence might have been, ascertained.

What are the effect of errors and irregularities in depositions?

The following are the effects of errors and irregularities in the taking of depositions:

(a) As to notice. — All errors and irregularities in the notice for taking a deposition are
waived unless written objection is promptly served upon the party giving the notice.

(b) As to disqualification of officer. — Objection to taking a deposition because of

disqualification of the officer before whom it is to be taken is waived unless made
before the taking of the deposition begins or as soon thereafter as the disqualification
becomes known or could be discovered with reasonable diligence.

(c) As to competency or relevancy of evidence. — Objections to the competency of

witness or the competency, relevancy, or materiality of testimony are not waived by
failure to make them before or during the taking of the deposition, unless the ground, of
the objection is one which might have been obviated or removed if presented at that
time.

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 (d) As to oral examination and other particulars. — Errors and irregularities occurring at
the oral examination in the manner of taking the deposition in the form of the questions
or answers, in the oath or affirmation, or in the conduct of the parties and errors of any
kind which might be obviated, removed, or cured if promptly prosecuted, are waived
unless reasonable objection thereto is made at the taking of the deposition.

(e) As to form of written interrogatories. — Objections to the form of written

interrogatories submitted under sections 25 and 26 of this Rule are waived unless
served in writing upon the party propounding them within the time allowed for serving
succeeding cross or other interrogatories and within three (3) days after service of the
last interrogatories authorized.

(f) As to manner of preparation. — Errors and irregularities in the manner in which the
testimony is transcribed or the deposition is prepared, signed, certified, sealed,
indorsed, transmitted, filed, or otherwise dealt with by the officer under sections 17, 19,
20 and 26 of this Rule are waived unless a motion to suppress the deposition or some
part thereof is made with reasonable promptness after such defect is, or with due
diligence might have been, ascertained.

BAR 1997
In an admiralty case filed by A against Y Shipping Lines (whose principal offices are in
Manila) in the Regional Trial Court, Davao City, the court issued a subpoena duces tecum
directing Y, the president of the shipping company, to appear and testify at the trial and to
bring with him several documents.
(a) On what valid ground can Y refuse to comply with the subpoena duces tecum?
(b) How can A take the testimony of Y and present the document as Exhibits other than
through the subpoena from the Regional Trial court?

Suggested answer
(a) Y may refuse to comply with the subpoena by invoking the distance between his
residence and the place where he is to testify. A witness cannot be compelled or cited in
contempt for failure to obey a subpoena if he resides more than one hundred (100)
kilometers from the place where he is to testify by the ordinary course of travel (Sec. 10,
Rule 21, Rules of Court).
(b) If Y validly refuses to comply with the subpoena, his testimony may be taken by way of
deposition through oral examination or written interrogatories under Sec. 1 of Rule 23
of the Rules of Court. As to the documents, A may file a motion for the production and
inspection of documents under Sec. 1 of Rule 27 of the Rules of Court.

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BAR 1982
Pedro filed a civil case in the Regional Trial Court of Manila. How can he procure the
testimony of a witness: (a) Who lives in Davao City?; (b) Who lives in New York? And (c) Who
lives in Manila?
Suggested answer
Since the witness lives more than one hundred (100) kilometers from Manila, the
testimony of the witness may be procured by a deposition under Sec. 1 of Rule 23. (b) The
answer is the same as in letter “a.” (c) The witness who lives in Manila may have his testimony
procured by a mere subpoena under Sec. 1 of Rule 21.

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 RULE 24

DEPOSITIONS BEFORE ACTION OR PENDING APPEAL

Section 1.Depositions before action; petition. — A person who desires to perpetuate his own
testimony or that of another person regarding any matter that may be cognizable in any court
of the Philippines may file a verified petition in the court of the place of the residence of any
expected adverse party.

DEPOSITIONS BEFORE ACTION OR PENDING APPEAL (RULE 24)

This type of deposition is availed of when a person desires to perpetuate his own
testimony or that of another person regarding any matter that may be cognizable in any court
of the Philippines.
The perpetuation of a testimony is done by filing a verified petition in the place of the
residence of any expected adverse party.
Concept
1. A deposition before action and a deposition pending appeal are referred to as
“perpetuation of testimony” or perpetuam rei memoriam because their objective is to
perpetuate the testimony of a witness for use in the future proceedings.

2. A deposition under rule 24 is also used for the same purposes as to those embodied in
Secs. 4 and 5 of Rule 23.

A petition may be filed by a person who wants to perpetuate his own testimony. It may
also be filed by a person who wants to perpetuate the testimony of another person. The
deposition may be on any matter that may be cognizable in any court of the Philippines (Sec. 1,
Rule 24, Rules of Court)

Section 2.Contents of petition. — The petition shall be entitled in the name of the petitioner
and shall show: (a) that the petitioner expects to be a party to an action in a court of the
Philippines but is presently unable to bring it or cause it to be brought; (b) the subject matter
of the expected action and his OR HER interest therein; (c) the facts which he OR SHE desires
to establish by the proposed testimony and his OR HER reasons for desiring to perpetuate it;
(d) the names or a description of the persons he OR SHE expects will be adverse parties and
their addresses so far as known; and (e) the names and addresses of the persons to be
examined and the substance of the testimony which he OR SHE expects to elicit from each,
and shall ask for an order authorizing the petitioner to take the depositions of the persons to
be examined named in the petition for the purpose of perpetuating their testimony.

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Form of Petition
The petition shall be verified or under oath and filed in the court of the place of the
residence of any expected adverse party. The petition shall contain the matter set forth in Sec.
2 of Rule 24.
What are the contents of the Petition for Taking Deposition before Action:
The petition for taking of a deposition before action shall be entitled in the name of the
petitioner and shall show the following:
1. That the petitioner expects to be a party to an action in court of the Philippines but is
presently unable to bring it or cause it to be brought;
2. The subject matter of the expected action and his interest therein;
3. The fact which he desires to establish by the proposed testimony and his reasons for
desiring to perpetuate it;
4. The names or a description of the persons he expects will be the adverse parties and
their addresses so far as known; and
5. The names and addresses of the persons to be examined and the substance of the
testimony which he expects to elicit from each, and shall ask for an order authorizing
the petitioner to take the depositions of the persons to be examined named in the
petition for the purpose of perpetuating their testimony.

Sample form
VERIFIED PETITION TO PERPETUATE TESTIMONY BEFORE ACTION (Sec. 2, Rule 24)
PETITION TO PERPETUATE TESTIMONY
COMES NOW, petitioner, through the undersigned counsel, and unto this Honorable
Court, respectfully avers:
1. Petitioner is of legal age and residing at Glen E, Savannah Subdivision, Oton, Iloilo;
2. Petitioner expects to be a party to an action in court in the Philippines but he is
presently unable to bring it.
3. The subject matter of the expected action is for the recovery of possession of property
and damages, which Mr. Y with address at Brgy. San Antonio, Molo, Iloilo City, entrusted
TCT No. 4586, issued by the Register of Deeds of Manila which petitioner entrusted to
Mr. Y which was not returned by the latter to the petitioner and he is in possession of
the said property. Mr Y is expected to be the adverse party.
4. The person who was present during the transaction was Juan Dela Cruz with address at
Brgy. San Roque, Jaro, Iloilo City, and who knew the surrounding facts thereof.
5. Petitioner is very sick, as he suffered a stroke, and his physical mobility has greatly been
affected.

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 6. The interest of justice would be served by perpetuating the testimonies of herein
petitioner and of Juan Dela Cruz, as evidence in the expected action against Mr. Y for
recovery of possession and damages.

WHEREFORE, petitioner respectfully prays that the court issue an order authorizing him
to take the deposition of herein petitioner and that of Juan Dela Cruz, before such authorized
person and at such time and place, as the court may require.

Section 3.Notice and service. — The petitioner shall serve a notice upon each person named
in the petition as an expected adverse party, together with a copy of the petition, stating that
the petitioner will apply to the court, at a time and place named therein, for the order
described in the petition. At least twenty (20) CALENDAR 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.

Notice and Service

1. The petitioner shall serve a notice upon each person named in the petition as an
expected adverse party. The notice shall state that the petitioner will apply to the
court for the order described in the petition at a time and place named therein.

2. At least twenty (20) days before the date of the hearing, the court shall cause notice
thereof to be served on the parties and prospective deponents in the manner
provided for service of summons.

Section 4.Order and examination. — If the court is satisfied that the perpetuation of the
testimony may prevent a failure or delay of justice, it shall make an order designating or
describing the persons whose deposition may be taken and specifying the subject matter of
the examination and whether the depositions shall be taken upon oral examination or
written interrogatories. The depositions may be taken in accordance with Rule 23 before the
hearing.

Order and Examination

If the court is satisfied that the perpetuation of the testimony may prevent a failure or
delay of justice, it shall make an order designating or describing the persons whose depositions
may be taken and specifying the subject matter of the examination and whether the
depositions shall be taken upon oral examination or written interrogatories.

Section 5.Reference to court. — For the purpose of applying Rule 23 to depositions for
perpetuating testimony, each reference therein to the court in which the action is pending
shall be deemed to refer to the court in which the petition for such deposition was filed.

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Section 6.Use of deposition. — If a deposition to perpetuate testimony is taken under this
Rule, or if, although not so taken, it would be admissible in evidence, it may be used in any
action involving the same subject matter sub-sequently brought in accordance with the
provisions of sections 4 and 5 of Rule 23.

Use of deposition.

If a deposition to perpetuate testimony is taken under this Rule, or if, although not so
taken, it would be admissible in evidence, it may be used in any action involving the same
subject matter sub-sequently brought in accordance with the provisions of sections 4 and 5 of
Rule 23.

Section 7.Depositions pending appeal. — If an appeal has been taken from a judgment of a
court, including the Court of Appeals in proper cases, or before the taking of an appeal if the
time therefor has not expired, the court in which the judgment was rendered may allow the
taking of depositions of witnesses to perpetuate their testimony for in the event of further
proceedings in the said court. In such case the party who desires to perpetuate the testimony
may make a motion in the said court for leave to take the depositions, upon the same notice
and service thereof as if the action was pending therein. The motion shall state (a) the names
and addresses of the persons to be examined and the substance of the testimony which he
OR SHE expects to elicit from each, and (b) the reason for perpetuating their testimony. If the
court finds that the perpetuation of the testimony is proper to avoid a failure or delay of
justice, it may make an order allowing the deposition to be taken, and thereupon the
depositions may be taken and used in the same manner and under the same conditions as are
prescribed in these Rules for depositions taken in pending actions.

Depositions pending appeal

If an appeal has been taken from a judgment of a court, including the Court of Appeals
in proper cases, or before the taking of an appeal if the time therefor has not expired, the court
in which the judgment was rendered may allow the taking of depositions of witnesses to
perpetuate their testimony for in the event of further proceedings in the said court. In such
case the party who desires to perpetuate the testimony may make a motion in the said court
for leave to take the depositions, upon the same notice and service thereof as if the action was
pending therein.

The motion shall state (a) the names and addresses of the persons to be examined and
the substance of the testimony which he expects to elicit from each, and (b) the reason for
perpetuating their testimony. If the court finds that the perpetuation of the testimony is
proper to avoid a failure or delay of justice, it may make an order allowing the deposition to be
taken, and thereupon the depositions may be taken and used in the same manner and under
the same conditions as are prescribed in these Rules for depositions taken in pending actions.

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 RULE 25

INTERROGATORIES TO PARTIES

Section 1.Interrogatories to parties; service thereof. — UPON EX PARTE MOTION, any party
desiring to elicit material and relevant facts from any adverse parties shall file and serve upon
the latter written interrogatories to be answered by the party served or, if the party served is
a public or private corporation or a partnership or association, by any officer thereof
competent to testify in its behalf.

Interrogatories to parties; service thereof.

The taking or request of interrogatories to parties must be with leave of court though it
is done UPON EX PARTE MOTION, Upon therefore, of an ex parte motion any party desiring to
elicit material and relevant facts from any adverse parties shall file and serve upon the latter
written interrogatories to be answered by the party served or, if the party served is a public or
private corporation or a partnership or association, by any officer thereof competent to testify
in its behalf.

Interrogatories, also known as requests for further information, are a formal set of
written questions propounded by one litigant and required to be answered by an adversary in
order to clarify matters of fact and help to determine in advance what facts will be presented at
any trial in the case. Written interrogatories are a useful discovery tool for plaintiffs in all types
of tort cases. Written responses from a defendant can help narrow down the issues in a case.
Unlike oral testimony at a deposition, written statements are much harder to wiggle out of later
interrogatories can be very effective at locking a defendant into a position on key points.
Concept and Purpose
This type of discovery is availed of by any party desiring to elicit material and relevant
facts from any adverse party (Sec. 1, Rule 25). The scope of the interrogatories shall be the
matters mentioned in Sec. 2 of Rule 23 and the answers may be used for the same purposes
provided in Sec. 4 of Rule 23.

“Section 2.Scope of examination. — Unless otherwise ordered by the court as provided by

section 16 or 18 of this Rule, the deponent may be examined regarding any matter, not
privileged, which is relevant to the subject of the pending action, whether relating to the claim
or defense of any other party, including the existence, description, nature, custody, condition,
and location of any books, documents, or other tangible things and the identity and location of
persons having knowledge of relevant facts.”

“Section 4.Use of depositions. — At the trial or upon the hearing of a motion or an interlocutory
proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may

352
be used against any party who was present or represented at the taking of the deposition or
who had due notice thereof, in accordance with any one of the following provisions;

(a) Any deposition may be used by any party for the purpose of contradicting or
impeaching the testimony of deponent as a witness;

(b) The deposition of a party or of any one who at the time of taking the deposition was
an officer, director, or managing agent of a public or private corporation, partnership, or
association which is a party may be used by an adverse party for any purpose;

(c) The deposition of a witness, whether or not a party, may be used by any party for
any purpose if the court finds: (1) that the witness is dead, or (2) that the witness
resides at a distance more than one hundred (100) kilometers from the place of trial or
hearing, or is out of the Philippines, unless it appears that his absence was procured by
the party offering the deposition, or (3) that the witness is unable to attend or testify
because of age, sickness, infirmity, or imprisonment, or (4) that the party offering the
deposition has been unable to procure the attendance of the witness by subpoena; or
(5) upon application and notice, that such exceptional circumstances exist as to make it
desirable, in the interest of justice and with due regard to the importance of presenting
the testimony of witnesses orally in open court, to allow the deposition to be used; and

(d) If only part of a deposition is offered in evidence by a party, the adverse party may
require him to introduce all of it which is relevant to the part introduced, and any party
may introduce any other parts.

Existing rules consider this mode of discovery as important because within one day from
receipt of the complaint, the rule mandates not only the preparation of the summons but also
the issuance of an order requiring the parties to avail of interrogatories to parties under Rule 25
and request for admission by adverse party under Rule 26. The parties however, may use at
their discretion, depositions under Rule 23 of other measures under Rule 27 and 28 within five
(5) days form the filing of the answer (A.M. No. 03-1-09-SC)”
Distinguished from bill of particulars
A bill of particulars is directed to a pleading and is designed to seek for a more definite
statement or for particulars of any matter not averred with sufficient definitemess in a
plesding. (Sec. 1, Rule 12, Rules of Court). Interrogatories to parties are not directed against a
particular pleading. Instead, they seek the disclosure of all material and relevant facts from a
party.
Distinguish from written interrogatories in a deposition
Written interrogatories in a deposition are not served upon the adverse party directly.
They are instead delivered to the officer designated in the notice (Sec. 26, Rule 23, Rules of

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Court). The service of written interrogatories is a mode of deposition separate and distinct from
interrogatories to parties (Sec. 1, Rule 23). Interrogatories to parties are served directly upon
the adverse party.
How Taken
1. The party who wants to avail of this mode of discovery shall file and serve upon any
adverse party written interrogatories (Sec. 1, Rule 25). A party not served with
written interrogatories may not be compelled by the adverse party to give testimony
in open court, or to give a deposition pending appeal unless allowed by the court for
good cause shown and to prevent a failure of justice Sec. 6, Rule 25).
2. The party served shall answer the written interrogatories. If the party served is a
public or a private corporation, or a partnership or an association, the one who shall
answer shall be any officer thereof competent to testify in its behalf.
3. The interrogatories shall be answered fully in writing and shall be signed and sworn
to by the person making them. The party upon whom the interrogatories have been
served shall file and serve a copy of the answers on the party submitting the
interrogatories within fifteen (15) days after service thereof, unless the court, on
motion and for good cause shown, extends or shortens the time. (Sec. 2, Rule 25)
4. Objections to interrogatories may be presented to the court within ten (10) days
after service thereof, with notice as in the case of motion. Answer to the
interrogatories shall be deferred until the objections are resolved, which shall be at
the earliest practicable time.

Section 2.Answer to interrogatories. — The interrogatories shall be answered fully in writing

and shall be signed and sworn to by the person making them. The party upon whom the
interrogatories have been served shall file and serve a copy of the answers on the party
submitting the interrogatories within fifteen (15) CALENDAR days after service thereof unless
the court on motion and for good cause shown, extends or shortens the time.

Answer to Interrogatories

The interrogatories shall be answered fully in writing and shall be signed and sworn to
by the person making them. The party upon whom the interrogatories have been served shall
file and serve a copy of the answers on the party submitting the interrogatories within fifteen
(15) days after service thereof unless the court on motion and for good cause shown, extends
or shortens the time.

Section 3.Objections to interrogatories. — Objections to any interrogatories may be

presented to the court within ten (10) CALENDAR days after service thereof, with notice as in
case of a motion; and answers shall be deferred until the objections are resolved, which shall
be at as early a time as is practicable.

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Objections to interrogatories

The party against whom it is directed may make objections to any interrogatories may
be presented to the court within ten (10) days after service thereof, with notice as in case of a
motion; and answers shall be deferred until the objections are resolved, which shall be at as
early a time as is practicable.

Section 4.Number of interrogatories. — No party may, without leave of court, serve more
than one set of interrogatories to be answered by the same party.

Number of Interrogatories

No party may, without leave of court, serve more than one set of interrogatories to be
answered by the same party.

Section 5.Scope and use of interrogatories. — Interrogatories may relate to any matters that
can be inquired into under section 2 of Rule 23, and the answers may be used for the same
purposes provided in section 4 of the same Rule.

Section 6.Effect of failure to serve written interrogatories. — Unless thereafter allowed by the
court for good cause shown and to prevent a failure of justice, a party not served with written
interrogatories may not be compelled by the adverse party to give testimony in open court,
or to give a deposition pending appeal.

What is the effect of failure to serve written interrogatories?

A party not served with written interrogatories may not be compelled by the adverse
party to give testimony in open court, or to give a deposition pending appeal, unless allowed by
the court or to prevent a failure of justice.

Remedy in case of denial of written interrogatories

The Trial Court’s order denying the written interrogatories is interlocutory in nature.
And the extraordinary remedy of writ of certiorari is generally not an available remedy to
challenge an interlocutory order of trial court, the proper remedy in such a case is appeal from
the adverse judgment where incorporated in said appeal are the grounds for assailing the
interlocutory order. Nonetheless, this by no means is an absolute rule. This Court finds that
order disallowing petiitoner’s written interrogatories are patently erroneous, hence, the resort
to certorati is warranted (Ong v. Mazon, G.R. No. 145542, June 4, 2004).

Case
China Bank filed with the RTC a loan collection case against Ever Electrical Mfg. Co. and Ng
Meng Tam, a surety to Ever’s loan. Ng filed an answer with affirmative defense of the nullity of

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the suretyship contract. Ng moved for a preliminary hearing on his affirmative defense which
was granted. After serving written interrogatories on George Yap, China Bank’s account officer,
and receiving Yap’s answers thereto, Ng applied for the issuance of a subpoena duces tecum
and ad testificandum against George Yap. China Bank objected, arguing that Yap cannot be
compelled to testify in court because Ng did not obtain and present Yap’s judicial affidavit
pursuant to Section 5 of the Judicial Affidavit Rule (JAR). Should China Bank’s objection be
sustained?
Answer
No. Section 5 of the JAR expressly excludes from its application adverse party and hostile
witnesses. For the presentation of these types of witnesses, the provisions on the Rules of
Court under the Revised Rules of Evidence and all other correlative rules including the modes of
deposition and discovery rules shall apply. Here it is enough for the party calling the adverse
party witness to serve beforehand written interrogatories pursuant to S6 R25 and the case of
Afulugencia v. Metropolitan Bank & Trust Co., 715 SCRA 399 (2014), which was done in this
case. (Ng Meng Tam v. China Banking Corp., 5 August 2015, Villarama, J.).

Sample Form (Vehicular Accident)

1. If you contend that the personal injuries of plaintiff was not caused by the collision with your
vehicle, state with particularity the facts upon which you base your contention.

2. Please state the name and address of your employer, your position and duties, and your
wages at the time of the vehicular accident and at the present time.

3. Please state in detail your itinerary on the date of the ccident, inclusing each place at which
you were resent, your length of stay at each such place, and a detailed account of whom you
saw and what you did you at each such place.

4. Please identify all persons who investigated the cause and circumstances of this personal
injury auto incident for you.

5. Please give a concise statement of facts as to how you contend the car accident took place.

6. Please identify all expert witnesses who will be called at the trial of this case, the area of
expertise of each, and a summary of the expected testimony of each.

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 RULE 26

ADMISSION BY ADVERSE PARTY

Section 1.Request for admission. — At any time after issues have been joined, a party may file
and serve upon any other party a written request for the admission by the latter of the
genuineness of any material and relevant document described in and exhibited with the
request or of the truth of any material and relevant matter of fact set forth in the request.
Copies of the documents shall be delivered with the request unless copy has already been
furnished.

Request for admission by Adverse Party

The above rule provides that at any time after issues have been joined, a party may file
and serve upon any other party a written request for the admission by the latter of the
genuineness of any material and relevant DOCUMENT described in and exhibited with the
request or of the truth of any material and relevant matter of fact set forth in the request.
Copies of the documents shall be delivered with the request unless copy has already been
furnished. Basically, the issue/s are joined once the defendant has filed his answer to the
plaintiff’s complaint.

Purpose of admission by adverse party

The purpose of this mode of discovery is to allow party to request the adverse party in
writing to admit certain material and relevant matters which most likely will not be disputed
during the trial. To avoid unnecessary inconvenience to the parties in going through to rigors of
proof, before the trial, a party may request the other to:
1. Admit the genuineness of any material and relevant document described in and
exhibited with the request; or

2. Admit the truth of any material and relevant matter of fact set forth in the request.
Concept and when request is made
1. This mode of discovery is made at any time after the issues have been joined and is
availed of by filing and serving upon any other party a written request for admission
of the genuineness of any material and relevant document described in and
exhibited with the request or of the truth of any material and relevant matter of fact
set forth in the request (Sec. 1, Rule 26).

2. The party to whom the request is directed should, within fifteen (15) days from
service of the request, file and serve upon the requesting party a sworn statement
either denying specifically the matters of which the admission is requested or setting
forth in detail the reasons why he cannot truthfully either to admit or deny those

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 matters. Failure to file and serve the sworn statement shall mean an implied
admission of each of the matters of which an admission is requested. The party
requested may however file with the court an objection to the request within fifteen
(15) days from service of the request. Until the objections are resolved, compliance
by the party requested of the sworn statement required of him shall be deferred
(Sec. 2, Rule 26)

What is an admission?

An admission is any statement of fact made by a party against his interest or

unfavorable to the conclusion for which he contends or is inconsistent with the facts alleged by
him.
What are the requirements in order that admission be admissible?
To be admissible, an admission must:
a. Involve matters of fact, and not of law;
b. Be categorical and definite;
c. Be knowingly and voluntarily made; and
d. Be adverse to the admitter’s interest, otherwise it would be self-serving and
inadmissible.

Section 2.Implied admission. — Each of the matters of which an admission is requested shall
be deemed admitted unless, within a period designated in the request, which shall not be less
than fifteen (15) CALENDAR days after service thereof, or within such further time as the
court may allow on motion, the party to whom the request is directed files and serves upon
the party requesting the admission a sworn statement either denying specifically the matters
of which an admission is requested or setting forth in detail the reasons why he OR SHE
cannot truthfully either admit or deny those matters.

Objections to any request for admission shall be submitted to the court by the party
requested within the period for and prior to the filing of his OR HER sworn statement as
contemplated in the preceding paragraph and his OR HER compliance therewith shall be
deferred until such objections are resolved, which resolution shall be made as early as
practicable.

Effect of failure to file and serve a sworn statement of denial

It is advisable for the party to whom the written request is directed to file and serve
upon the party requesting the admission a sworn statement either (a) denying specifically the
matters of which an admission is requested or (b) setting forth in detail the reasons why he
cannot truthfully either admit or deny those matters.

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 Each of the matters of which an admission is requested shall be deemed admitted
unless, within a period designated in the request, which shall not be less than fifteen (15) days
after service thereof, or within such further time as the court may allow on motion, the party to
whom the request is directed files and serves upon the party requesting the admission a sworn
statement.

Implied admission
Sec. 2, Rule 26 provides for the rule on the implied admission by adverse party of the
genuineness of any document.
What are the actions that can be made by the party a written request for admission is served?
Each of the matter of which an admission is requested shall be deemed admitted unless,
within a period designated in the request, the party served will:
1. File and serve upon the party requesting the admission a sworn statement either
denying specifically the matters of which an admission is requested or setting forth in
detail the reasons why he cannot truthfully either admit or deny those matters which
shall not be less than fifteen (15) days after service thereof; or

2. Within such further time as the court may allow on motion.

“IMPLIED ADMISSION RULE”

Each matter must be denied specifically under oath setting forth in detail the reason
why he cannot truthfully admit or deny. The silence of the defendant on the plaintiff’s request
for admission amounts to an implied acceptance of the facts set forth therein with the effect
that plaintiff’s claim stood undisputed. (Manzano vs. Despabiladeras, G.R. No. 148786,
December 16, 2004).
Remedy of the persons making an Implied Admission
A party making an implied admission can file the court a Motion to be Relieved of
Implied Admission.
Case
The petitioners spouses Duque allegedly executed a deed of donation of a parcel of land in
favor of their daughter who in turn sold a portion thereof to Yu. Spouses Duque lodged a
Verified Complaint for Declaration of Non-Existence and Nullity of a Deed of Donation and Deed
of Absolute Sale and Cancellation of Tax Declaration (Complaint) against their daughter and Yu
before the Regional Trial Court (RTC) of Barili, Cebu, claiming that the signature in the Deed of
Donation was forged. Yu served a request for admission on the petitioners regarding the

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genuineness of the deed of donation. The petitioners failed to answer the request for
admission. Are they deemed to have admitted the genuineness of the deed of donation?
Answer
No. The implied admission rule under R26 admits of an exception, that is, when the party to
whom such request for admission is served had already controverted the matters subject of
such request in an earlier pleading. Here, as pointed out by petitioners, the genuineness of the
deed of donation being requested to be admitted has already been denied and controverted in
the Verified Complaint for Declaration of Non-Existence and Nullity of a Deed of Donation and
Deed of Absolute Sale and Cancellation of Tax Declaration. In fact, the forgery committed in the
Deed of Donation was the very essence of that Complaint, where it was alleged that being a
forged document, the same is invalid and without force and legal effect. Petitioners, therefore,
need not reply to the request for admission. Consequently, they cannot be deemed to have
admitted the Deed of Donation's genuineness and authenticity for their failure to respond
thereto. (Duque v. Yap, 19 February 2018, Velasco, J.).
Case
Is Rule 26 of the Rules of Court available in criminal cases?
Answer
No. R26 is not applicable in criminal cases, either against the prosecution (since the
prosecution is not the adverse party but the People) or against the accused (since it would be
violative of his right against self-incrimination). (People v. Ang, 6 October 2020, e.b., Carandang,
J.).

Deferment of compliance

To avoid the implied admission, the party requested may have the compliance of the
filing and service of the sworn statement deferred. This deferment may be effected by the filing
with the court objections to the request for admission. Compliance shall be deferred until such
objections are resolved by the court.

Section 3.Effect of admission. — Any admission made by a party pursuant to such request is
for the purpose of the pending action only and shall not constitute an admission by him OR
HER for any other purpose nor may the same be used against him in any other proceeding.

Effect of admission.
Sec. 3, Rule 26 provides for the rule on the effect of admission by adverse party.
What are the effects of the admission?
Any admission made by a party pursuant to such request shall have the following effect:

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 a. It is only for the purpose of the pending action;
b. It shall not constitute an admission by him for any other purpose;
c. Nor said admission be used against him in any other proceedings.

Section 4.Withdrawal. — The court may allow the party making an admission under the Rule,
whether express or implied, to withdraw or amend it upon such terms as may be just.

Withdrawal of admission

Admissions made under this mode of discovery, whether express or implied are not final
and irrevocable. This court may allow the party making the admission to withdraw or amend
the admission upon such terms as may be just. To effect the withdrawal, the admitting party
should file a motion to be relieved of the effects of his admission.

Section 5.Effect of failure to file and serve request for admission. — Unless otherwise allowed
by the court for good cause shown and to prevent a failure of justice a party who fails to file
and serve a request for admission on the adverse party of material and relevant facts at issue
which are, or ought to be, within the personal knowledge of the latter, shall not be permitted
to present evidence on such facts.

Effect of failure to file and serve request for admission

Sec, 5, rule 26, provides for the effect of failure to file and serve request for admission.
What are the effects in case of failure to file and serve request for admission?
Unless otherwise allowed by the court for good cause shown and to prevent a failure of
justice, a party who fails to file and serve a request for admission on the adverse party of
material and relevant facts at issue which are, or ought to be, within the personal knowledge of
the latter, shall not be permitted to present evidence on such facts.
Sample form
REQUEST FOR ADMISSION OF DOCUMENTS OR MATERIAL FACTS (RULE 26)
RE: REQUEST FOR ADMISSION
Mr. Y
Defendant
Brgy. San Roque, Jaro, Iloilo City

Pursuant to Sections 1 and 2 of Rule 26 of the Rules of Court, request is hereby made
upon you, within fifteen (15) days from your receipt hereof, to admit the due execution and
genuineness of the documents, herein listed below, and the truth of the facts below
enumerated, as follows:

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 The due execution and authenticity of the following documents, namely:
(a) Transfer Certificate of Title No. 4568 issued by The Register of Deeds of Iloilo City;
(b) Deed of Sale
(c) Acknowledgement Receipt.

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 RULE 27

PRODUCTION AND INSPECTION OF DOCUMENTS OR THINGS

Section 1.Motion for production or inspection; order. — Upon motion of any party showing
good cause therefor, the court in which an action is pending may (a) order any party to
produce and permit the inspection and copying or photographing, by or on behalf of the
moving party, of any designated documents, papers, books, accounts, letters, photographs,
objects or tangible things, not privileged, which constitute or contain evidence material to
any matter involved in the action and which are in his OR HER possession, custody or control,
or (b) order any party to permit entry upon designated land or other property in his OR HER
possession or control for the purpose of inspecting, measuring, surveying, or photographing
the property or any designated relevant object or operation thereon. The order shall specify
the time, place and manner of making the inspection and taking copies and photographs, and
may prescribe such terms and conditions as are just.

Motion for production or inspection.

Upon motion of any party showing good cause therefor, the court in which an action is
pending may:

(a) order any party to produce and permit the inspection and copying or photographing,
by or on behalf of the moving party, of any designated documents, papers, books, accounts,
letters, photographs, objects or tangible things, not privileged, which constitute or contain
evidence material to any matter involved in the action and which are in his OR HER possession,
custody or control, or

(b) order any party to permit entry upon designated land or other property in his OR
HER possession or control for the purpose of inspecting, measuring, surveying, or
photographing the property or any designated relevant object or operation thereon. The order
shall specify the time, place and manner of making the inspection and taking copies and
photographs, and may prescribe such terms and conditions as are just.

What are the two (2) motions available under Rule 27?
1. Motion for production and inspection of documents and things; and
2. Motion to allow entry upon a designated place for purposes of inspection, measuring,
and surveying of property.
Purpose
The purpose of this mode of discovery is to allow a party to seek an order from the court
in which the action is pending to:

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 1. Order any party to produce and permit the inspection and copying or photographing, by
or on behalf of the moving party, of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible things, not privileged, which
constitute or contain evidence material to any matter involved in the action and which
are in his possession, custody or control, or

2. Order any party to permit entry upon designated land or other property in his
possession or control for the purpose of inspecting, measuring, surveying, or
photographing the property or any designated relevant object or operation thereon.
The order shall specify the time, place and manner of making the inspection and taking
copies and photographs, and may prescribe such terms and conditions as are just.

Application and motion

1. A party may file a motion for the production or inspection of documents and things. If
the movant shows good cause for the motion, the court in which the action is pending
may, under such terms as are just:

(a) Order any party to produce and permit the inspection and copying or photographing,
by or on behalf of the moving party, of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible things, not privileged, which
constitute or contain evidence material to any matter involved in the action and which
are in his OR HER possession, custody or control, or

(b) Order any party to permit entry upon designated land or other property in his OR
HER possession or control for the purpose of inspecting, measuring, surveying, or
photographing the property or any designated relevant object or operation thereon.
The order shall specify the time, place and manner of making the inspection and taking
copies and photographs, and may prescribe such terms and conditions as are just.

2. The provision applies only to a pending action and the documents or things subject of
the motion must be only those within the possession, custody or control of a party. It is
also required that the subject matter of the motion is not privileged. If the motion is
granted, the order of the court shall be directed to a party to the pending action. (Sec. 1,
Rule 27)

Limitations on the Remedy of Production and Inspection of Documents and Things.

A motion for production and inspection of documents should not demand a roving
inspection of a promiscuous mass of documents. The inspection should be limited to those
documents designated with sufficient particularity in the motion, such that the adverse party
can easily identity the documents he is required to produce. Rule 27 permits “fishing for

364
evidence.” The lament against fishing expedition no longer precludes a party from prying into
the facts underlying his opponent’s case. Mutual knowledge of all relevant facts gathered by
both parties is essential to proper litigation. To that end, either party may compel the other
disclose whatever facts he has in his possession. However, fishing for evidence is allowed under
the rules is not without limitations (SolidBank Corporation, now known as the Metropolitan
Bank and Trust Company vs. Gateway Electronics Corporation, et. al., G.R. No. 164806, April 30,
2008).
Case
May a motion for production of documents under R27 be properly denied if made after
rendition of judgment?
Answer
Yes. While there is no specific time limit within which the modes of discovery may be resorted
to, it should be remembered that their primordial purpose is to expedite the resolution of the
case and avoid delay. Here the motion would only result in delay. (CIR v SMC, 25 January 2017,
Leonen, J.)
Case
In an administrative proceeding before the Office of the Government Counsel Legal Services-
BSP, may a party avail of service of written interrogatories and a motion for production of
documents?
Answer
No. It bears stressing that the proceeding involved is administrative in nature. Although trial
courts are enjoined to observe strict enforcement of the rules on evidence, the same does not
hold true for administrative bodies. The Court has consistently held that technical rules
applicable to judicial proceedings are not exact replicas of those in administrative
investigations. Recourse to discovery procedures as sanctioned by the Rules of Court is then not
mandatory for the OGCLS-BSP. Hence, We cannot subscribe to Norlina's tenacious insistence
for the OGCLS-BSP to strictly adhere to the Rules of Court so as not to purportedly defeat her
rights. (Sibayan v. Ada, 17 January 2018, Velasco, J.).
Documents, papers, objects, accounts, letters, photographs, objects and other tangible things
which are privileged in character and cannot be the subject of Rule 27.
1. Privileged communication between husband and wife (Sec. 24 [a], Rjule 130);
2. Privilieged communication between attorney and client (Sec. 24 [b], Rule 130);
3. Privileged communication between physician and patient (Sec. 24 [c], Rule 130);
4. Privileged communication between priest and penitent (Sec. 24 [d], Rule 130);

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 5. Privileged communication between public officers and public interest (Sec. 24 [e], Rule
130);
6. Editors may not be compelled to disclose source of published news;
7. Voters may not be compelled to disclose for whom they voted;
8. Trade secrets;
9. Information contained in tax census returns;
10. Bank deposits.
Distinctions between Production and Inspection of documents and things under Rule 27 and
Subpoena Duces Tecum under Rule 21.
a. In production and inspection of documents and things under Rule 27, it is a mode of
discovery; while subpoena duces tecum under Rule 21 is a writ or process of compelling
production of evidence;

b. In production and inspection of documents and things under Rule 27, it is directed to a
party litigants; whereas subpoena duces tecum under Rule 21, it is directed against any
person which includes litigants;

c. In production and inspection of documents and things under Rule 27, it can be availed
of my motion; whereas in subpoena duces tecum under Rule 21, it is by means of a
request which is issued ex-parte.

Sample form
MOTION FOR PRODUCTION AND INSPECTION
COMES NOW, plaintiff, by counsel and to this Honorable Court respectfully alleges:
1. Plaintiff has filed an action for Recovery of Possession and Damages against defendant;
2. Defendant has entrusted the Title to the subject lot and occupied the said property and
despite demand to turn over the possession of the said lot he refused and continuously
refusing the same which is evidenced by the written agreement between them which
material to the cause of action of the plaintiff.
3. Plaintiff needs such documents to prove its claims, which are in the custody and control
of the defendant;
4. The records and documents mentioned are not privileged or confidential.

WHEREFORE, plaintiff prays that an order be issued, authorizing available to them all
records pertaining the subject lots and allowing them to photograph said documents deem
material and relevant to the issues in the pending action.

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 RULE 28

PHYSICAL AND MENTAL EXAMINATION OF PERSONS

Section 1.When examination may be ordered. — In an action in which the mental or physical
condition of a party is in controversy, the court in which the action is pending may in its
discretion order him OR HER to submit to a physical or mental examination by a physician.

When examination may be ordered.

In an action in which the mental or physical condition of a party is in controversy, the

court in which the action is pending may in its discretion order him OR HER to submit to a
physical or mental examination by a physician.

Proceeding in which Available

This mode of discovery is available in an action in which the mental or physical condition
of a party is in controversy. Here the court in its discretion, may order the party to submit to a
physical or mental examination by a physician. (Sec.1, Rule 28)
Example:
1. An action for annulment of a contract where the ground relied upon is insanity;
2. A petition for guardianship of a person alleged to be insane;
3. An action to recover damages for personal injury where the issue is the extent of the
injuries of the plaintiff.

Section 2. Order for examination. — The order for examination may be made only on motion
for good cause shown and upon notice to the party to be examined and to all other parties,
and shall specify the time, place, manner, conditions and scope of the examination and the
person or persons by whom it is to be made.

Procedure
1. Motion must be filed for the physical and mental examination of a party. The motion
must show good cause for the examination. The other party must be notified of the
motion aside from the party sought to be examined. The motion shall specify the time,
place, manner, conditions and scope of the examination and the person or persons by
whom it is made. (Sec. 2, Rule 28)

2. The party examined and the party causing the examination are entitled upon request, to
be given a copy of a detained written report of the findings of the examining physician.
If the party examined refuses to deliver the report, the court may make an order
requiring delivery on such terms as are just. If it is the physician who fails or refuses to

367
 make a report, the court may exclude his testimony if offered at the trial (Sec. 3, Rule
28)

Section 3.Report of findings. — If requested by the party examined, the party causing the
examination to be made shall deliver to him OR HER a copy of a detailed written report of the
examining physician setting out his findings and conclusions. After such request and delivery,
the party causing the examination to be made shall be entitled upon request to receive from
the party examined a like report of any examination, previously or thereafter made, of the
same mental or physical condition. If the party examined refuses to deliver such report, the
court on motion and notice may make an order requiring delivery on such terms as are just,
and if a physician fails or refuses to make such a report the court may exclude his OR HER
testimony if offered at the trial.

Reports of Findings

If requested by the party examined, the party causing the examination to be made shall
deliver to him a copy of a detailed written report of the examining physician setting out his
findings and conclusions. After such request and delivery, the party causing the examination to
be made shall be entitled upon request to receive from the party examined a like report of any
examination, previously or thereafter made, of the same mental or physical condition.

If the party examined refuses to deliver such report, the court on motion and notice
may make an order requiring delivery on such terms as are just, and if a physician fails or
refuses to make such a report the court may exclude his testimony if offered at the trial.

Section 4.Waiver of privilege. — By requesting and obtaining a report of the examination so

ordered or by taking the deposition of the examiner, the party examined waives any privilege
he OR SHE 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 OR HER
in respect of the same mental or physical examination.

Waiver of Privileged
By requesting a report of the examination, or by taking the deposition of the examiner,
the party examined waives any privilege he may have in the action or any other involving the
same controversy, regarding the testimony of every other person who has examined or may
thereafter examine him in respect of the same mental or physical examination. (Sec. 4, Rule 28)

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Sample form
MOTION FOR PHYSICAL AND MENTAL EXAMINATION (RULE 28)
PLAINTIFF, by counsel and to this Honorable Court, respectfully alleges:
1. One of the issues raised by the defendant is this case is that he did not voluntarily
agree to, and execute, the deed of sale of a parcel of land, subject matter of the
pending case, because he allegedly was insane at the time of the execution of said
deed of sale.
2. To determine defendant’s claim of insanity, it is necessary that a physical and mental
examination of defendant be conducted by a government physician at the Philippine
General Hospital, specifying the time, place, manner, condition and scope of the
examination of said person and directing the examining physician to render a
written report thereon.

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 RULE 29

REFURAL TO COMPLY WITH MODES OF DISCOVERY

Section 1.Refusal to answer. — If a party or other deponent refuses to answer any question
upon oral examination, the examination may be completed on other matters or adjourned as
the proponent of the question may prefer. The proponent may thereafter apply to the proper
court of the place where the deposition is being taken, for an order to compel an answer. The
same procedure may be availed of when a party or a witness refuses to answer any
interrogatory submitted under Rules 23 or 25.

If the application is granted, the court shall require the refusing party or deponent to answer
the question or interrogatory and if it also finds that the refusal to answer was without
substantial justification, it may require the refusing party or deponent or the counsel advising
the refusal, or both of them, to pay the proponent the amount of the reasonable expenses
incurred in obtaining the order, including attorney's fees.

If the application is denied and the court finds that it was filed without substantial
justification, the court may require the proponent or the counsel advising the filing of the
application, or both of them, to pay to the refusing party or deponent the amount of the
reasonable expenses incurred in opposing the application, including attorney's fees.

Refusal to answer any question upon oral examination

1. If a party or other deponent refuses to answer any question upon oral examination,
the examination may be completed on other matters or adjourned as the proponent
of the question may prefer. The proponent may thereafter apply to the proper court
of the place where the deposition is being taken, for an order to compel an answer.
2. If a party or other witness refuses to be sworn or refuses to answer any question
after being directed to do so by the court of the place in which the deposition is
being taken, the refusal may be considered as a contempt of that court.
3. If the application is granted, the court shall require the refusing party or deponent to
answer the question or interrogatory and if it also finds that the refusal to answer
was without substantial justification, it may require the refusing party or deponent
or the counsel advising the refusal, or both of them, to pay the proponent the
amount of the reasonable expenses incurred in obtaining the order, including
attorney's fees.

Section 2.Contempt of court. — If a party or other witness refuses to be sworn or refuses to

answer any question after being directed to do so by the court of the place in which the
deposition is being taken, the refusal may be considered a contempt of that court.

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Contempt of court

The kind of contempt of court which is being considered under this section is Indirect
Contempt. In the event, therefore a party or other witness refusal to be sworn or refuses to
answer any question after being directed to do so by the court of the place in which the
deposition is being taken, the refusal may be considered a contempt of that court. Since it is a
case of indirect contempt, the court must observe procedural due process by requiring notice
and hearing to be conducted.

Section 3.Other consequences. — If any party or an officer or managing agent of a party

refuses to obey an order made under section 1 of this Rule requiring him to answer
designated questions, or an order under Rule 27 to produce any document or other thing for
inspection, copying, or photographing or to permit it to be done, or to permit entry upon land
or other property or an order made under Rule 28 requiring him to submit to a physical or
mental examination, the court may make such orders in regard to the refusal as are just, and
among others the following:

(a) An order that the matters regarding which the questions were asked, or the
character or description of the thing or land, or the contents of the paper, or the
physical or mental condition of the party, or any other designated facts shall be taken
to be established for the purposes of the action in accordance with the claim of the
party obtaining the order;

(b) An order refusing to allow the disobedient party to support or oppose designated
claims or defenses or prohibiting him from introducing in evidence designated
documents or things or items of testimony, or from introducing evidence of physical
or mental condition;

(c) An order striking out pleadings or parts thereof, or staying further proceedings
until the order is obeyed, or dismissing the action or proceeding or any part thereof,
or rendering a judgment by default against the disobedient party; and

(d) In lieu of any of the foregoing orders or in addition thereto, an order directing the
arrest of any party or agent of a party for disobeying any of such orders except an
order to submit to a physical or mental examination.

A. Refusal to answer designated or particular questions or refusal to produce documents

or things or to submit to physical or mental examination

1. The court may order that the matters regarding which the questions were asked shall be
taken as established for purposes of the action in accordance with the claim of the party
obtaining the. (Sec. 3 [a], Rule 29).

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 2. The court may issue an order refusing to allow the disobedient party to refuse or
support designated clams or defenses or prohibiting him from introducing in evidence
designated documents or things or items of testimony, or from introducing evidence of
physical or mental condition.
3. The court may issue an order striking out pleadings or parts thereof, staying further
proceedings until the order is obeyed, or dismissing the action or proceeding or any part
thereof, or rendering a judgment by default against the disobedient party.
4. The court may direct the arrest of any party or agent of a party for disobeying any of the
orders of the court, except an order to submit to a physical or mental examination.

Section 4.Expenses on refusal to admit. — If a party after being served with a request under
Rule 26 to admit the genuineness of any document or the truth of any matter of fact serves a
sworn denial thereof and if the party requesting the admissions thereafter proves the
genuineness of such document or the truth of any such matter of fact, he OR SHE may apply
to the court for an order requiring the other party to pay him OR HER the reasonable
expenses incurred in making such proof, including attorney's fees. Unless the court finds that
there were good reasons for the denial or that admissions sought were of no substantial
importance, such order shall be issued.

Refusal to admit

If a party after being served with a request under Rule 26 to admit the genuineness of
any document or the truth of any matter of fact serves a sworn denial thereof and if the party
requesting the admissions thereafter proves the genuineness of such document or the truth of
any such matter of fact, he may apply to the court for an order requiring the other party to pay
him the reasonable expenses incurred in making such proof, including attorney's fees. Unless
the court finds that there were good reasons for the denial or that admissions sought were of
no substantial importance, such order shall be issued.

ection 5.Failure of party to attend or serve answers. — If a party or an officer or managing

agent of a party wilfully fails to appear before the officer who is to take his deposition, after
being served with a proper notice, or fails to serve answers to interrogatories submitted
under Rule 25 after proper service of such interrogatories, the court on motion and notice,
may strike out all or any part of any pleading of that party, or dismiss the action or
proceeding or any part thereof, or enter a judgment by default against that party, and in its
discretion, order him OR HER to pay reasonable expenses incurred by the other, including
attorney's fees.

Failure to attend depositions or to serve answers to interrogatories (BAR 2010)

1. The court may

(a) strike out all or any part of the pleading of that party, or

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 (b) dismiss the action or proceeding or any part thereof, or
(c) enter a judgment by default against that party, and in its discretion,
(d) order him to pay reasonable expenses incurred by the other, including attorney’s
fees.

2. The consequences under Sec. 5 of Rule 29 will apply if a party refuses to answer the
whole set of written interrogatories, and not just a particular question. Where the
party upon whom the written interrogatories is served, refuses to answer a
particular question in the set of written interrogatories and despite an order
compelling him to answer the particular question, still refuses to obey the order, Sec
3 [c] of Rule 29 will apply.

The matter of how, and when, the above sanctions should be applied is one that
primarily rests on the sound discretion of the court where the case is pending, having always in
mind the paramount and overriding interest of justice.

Section 6.Expenses against the Republic of the Philippines. — Expenses and attorney's fees
are not to be imposed upon the Republic of the Philippines under this Rule. (6)

Refusal to comply with MODES OF DISCOVERY (RULE 29)

The sanctions for refusal to comply with the modes of discovery may be summarized as
follows:
A. Refusal to answer any question upon oral examination:

1. The court may upon proper application, compel a deponent who refuses to answer
an oral examination. The same applies to a witness who refuses to answer an
interrogatory submitted (Sec. 1, Rule 29). A refusal to answer after being directed by
the court may be considered as a contempt of court (Sec. 2, Rule 29).

The court may order the deponent, a party, or the counsel advising the refusal or
both of them, to pay the proponent the amount of reasonable expenses incurred in
obtaining the order, including attorney’s fees.
2. If the application for an order to compel a deponent to answer is denied because of
the absence of a substantial justification, the court may require the proponent or
the counsel advising the application, or both of them, to pay to the refusing party or
deponent the amount of reasonable expenses incurred in opposing the application,
including attorney’s fees.

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 B. Refusal to be sworn

A refusal of a party to be sworn after being directed by the court may be considered as
contempt of court. This is indirect contempt which requires notice and trial before the court
could cite the refusing party.

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 RULE 30

TRIAL

Section 1. Schedule of trial. — The parties shall strictly observe the scheduled hearings as agreed
upon and set forth in the pre-trial order.

(a) The schedule of the trial dates, for both plaintiff and defendant, shall be continuous and
within the following periods:

i. The initial presentation of plaintiff’s evidence shall be set not later than thirty (30) calendar
days after the termination of the pre-trial conference. Plaintiff shall be allowed to present its
evidence within a period of three (3) months or ninety (90) calendar days which shall include the
date of the judicial dispute resolution, if necessary;

ii. The initial presentation of defendant’s evidence shall be set not later than thirty (30) calendar
days after the court’s ruling on plaintiff’s formal offer of evidence. The defendant shall be
allowed to present its evidence within a period of three (3) months or ninety (90) calendar days;

iii. The period for the presentation of evidence on the third (fourth, etc.) –party claim,
counterclaim or cross-claim shall be determined by the court, the total of which shall in no case
exceed ninety (90) calendar days; and

iv. If deemed necessary, the court shall set the presentation of the parties’ respective rebuttal
evidence, which shall be completed within a period of thirty (30) calendar days.

(b) The trial dates may be shortened depending on the number of witnesses to be presented,
provided that the presentation of evidence of all parties shall be terminated within a period of ten
(10) months or three hundred (300) calendar days. If there are no third (fourth, etc.)-party claim,
counterclaim or cross-claim, the presentation of evidence shall be terminated within a period of
six (6) months or one hundred eighty (180) calendar days.

(c) The court shall decide and serve copies of its decision to the parties within a period not
exceeding ninety (90) calendar days from the submission of the case for resolution, with or
without memoranda. (n)

What is trial?
Trial – is the judicial process of investigating and determining the legal controversies
between and among the parties. During the trial the parties present their respective evidence
of their claims and defenses. Such claims and defenses shall constitute the bases for the
judgment of the court.
What is the nature of trial?

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 Trial before the court is adversarial in character, and which requires the presentation of
evidence and witnesses before the court.
Right to speedy trial applicable in all cases:
The constitutional right to as “speedy disposition of cases” is not limited to the accused
in criminal proceedings but extends to all parties in all cases, including civil and administrative
cases, and in all proceedings including judicial and quasi-judicial hearings. (Roquero vs.
Chancellor of UP-Manila, G.R. No. 181851, March 9, 2010, 614 SCRA 723)
Purpose of speedy trial
The Constitutional guarantee against unreasonable delay in the disposition of cases was
intended to stem the tide of disenchantment among the people in the administration of justice
by our judicial and quasi-judicial tribunals. The adjudication of cases must not only be done in
an orderly manner that is in accord with the established rules of procedure but must also be
promptly decided to better serve the ends of justice. Excessive delay in the disposition of cases
renders the rights of the people guaranteed by the Constitution and by various legislations
inutile. (Roquero vs. Chancellor of UP-Manila, G.R. No. 181851, March 9, 2010, 614 SCRA 723)
Is trial necessary in order to secure a judgment?
Trial is necessary if there are legal and factual issues involved in the case which requires
presentation of evidence and witnesses.
When trial is unnecessary (BAR 1996)
A civil case may be adjudicated upon without the need for a trial in any of the following
cases:
1. Where the pleadings of the parties tender no issue at all, a judgment on the pleading
may be directed by the court (Rule 34);
2. Where from the pleadings, affidavits, depositions and other papers, there is actually no
genuine issue, the court may render a summary judgment (Rule 35);
3. Where the parties have entered into a compromise or an amicable settlement either
during the pre-trial or while the trial is in progress (Rule 18);

4. Where the complaint has been dismissed with prejudice or when the dismissal has the
effect of an adjudication on the merits;
5. Where the case falls under the operation of the Rules on Summary Procedure;
6. Where, the parties agree in writing, upon the facts involved in the litigation, and submit
the case for judgment on the facts agreed upon, without the introduction of evidence;
7. In case of amicable settlement during mediation before the Philippine Mediation
Center;
8. In case of amicable settlement during Judicial Dispute Resolution (JDR);

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 9. In case of amicable settlement by virtue of Alternative Dispute Resolution.
10. Where the case falls under the operation of Small Claims Cases.

Who has the burden of proof in civil cases?

It is a basic rule in civil cases that the party having the burden of proof must establish his
case by a preponderance of evidence, which simply means evidence which is of greater weight,
or more convincing than that is offered in opposition to it. However, although the evidence
adduced by the plaintiff is stronger than that presented by the defendant, a judgment cannot
be entered in favor of the former, if his evidence is not sufficient to sustain his cause of action.
Just like in a criminal case, the plaintiff must rely on the strength of his evidence and not upon
the weakness of the defendant’s.

Section 2. Adjournments and postponements. — A court may adjourn a trial from day to day,
and to any stated time, as the expeditious and convenient transaction of business may
require, but shall have no power to adjourn a trial 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, Supreme Court.

THE PARTY WHO CAUSED THE POSTPONEMENT IS WARNED THAT THE PRESENTATION OF ITS
EVIDENCE MUST STILL BE TERMINATED ON THE REMAINING DATES PREVIOUSLY AGREED
UPON

What is the rule in case of adjournment and postponement?

A court may perform the following acts during the trial:
1. Adjourn the trial from day to day, and to any stated time, as the expeditious and
convenient transaction of business may require:
2. It shall have no power to adjourn a trial for a longer period than one month for each
adjournment;
3. Nor more than three months in all, except when authorized in writing by the court
Administrator, Supreme Court

Section 3. Requisites of motion to postpone trial for illness of party or counsel. — A motion to
postpone a trial on the ground of illness of a party or counsel may be granted if it appears
upon affidavit or sworn certification that the presence of such party or counsel at the trial is
indispensable and that the character of his illness is such as to render his OR HER non-
attendance excusable.

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Postponement on the ground of absence of evidence (BAR 1975)

Trial may be postponed on the ground of absence of evidence upon compliance with the
following:

1. A motion for postponement must be filed;

2. The motion must be supported by an affidavit showing the (1) materiality or
relevancy of the evidence, and (2) that due diligence has been used to procure it.

If the adverse party admits the facts to be given in evidence, the trial shall not be
postponed even if he reserves the right to object to the admissibility of the evidence.

Postponement is not a matter of right

“As a rule, the grant of or denial of a motion for postponement is addressed to the
sound discretion of the court which should always be predicated on the consideration that
more than the mere convenience of the courts or of the parties, the ends of justice and fairness
should be served thereby. Furthermore, this discretion must be exercised intelligently.
(Milwaukee Industries v. Court of Tax Appeals, 636 SCRA 70).

Section 4. Hearing days and calendar call. — Trial shall be held from Monday toThursday, and
courts shall call the cases at exactly 8:30 a.m. and 2:00 p.m., pursuant to Administrative Circular
No. 3-99. Hearing on motions shall be held on Fridays,pursuant to Section 8, Rule 15.

All courts shall ensure the posting of their court calendars outside their courtrooms at least one
(1) day before the scheduled hearings, pursuant to OCA Circular No. 250-2015. (n)

Section 5. Order of trial. — Subject to the provisions of section 2 of Rule 31, and unless the
court for special reasons otherwise directs, the trial shall be limited to the issues stated in the
pre-trial order and shall proceed as follows:

(a) The plaintiff shall adduce evidence in support of his complaint;

(b) The defendant shall then adduce evidence in support of his defense, counterclaim,
cross-claim and third-party complaints;

(c) The third-party defendant if any, shall adduce evidence of his defense,
counterclaim, cross-claim and fourth-party complaint;

(d) The fourth-party, and so forth, if any, shall adduce evidence of the material facts
pleaded by them;

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 (e) The parties against whom any counterclaim or cross-claim has been pleaded, shall
adduce evidence in support of their defense, in the order to be prescribed by the
court;

(f) The parties may then respectively adduce rebutting evidence only, unless the court,
for good reasons and in the furtherance of justice, permits them to adduce evidence
upon their original case; and (Basis for Reopening of Case)

(g) Upon admission of the evidence, the case shall be deemed submitted for decision,
unless the court directs the parties to argue or to submit their respective memoranda
or any further pleadings.

If several defendants or third-party defendants, and so forth, having separate defenses

appear by different counsel, the court shall determine the relative order of presentation of
their evidence.

What are the orders of trial?

Subject to the provisions of Sec. 2, of Rule 31, and unless the court for special reasons
otherwise directs, the trial shall be limited to the issues in the pre-trial order and shall proceed
as follows:
1. The plaintiff shall adduce evidence in support of his complaint;
2. The defendant shall then adduce evidence in support of his defense, counterclaim,
cross-claim and third-party complaint;
3. The third-party defendant, if any shall adduce evidence of his defense, counter-claim,
cross-claim and fourth-party complaint.

Section 2, Rule 31, provides:

“Section 2. Separate trials. — The court, in furtherance of convenience or to avoid prejudice,

may order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, or
of any separate issue or of any number of claims, cross-claims, counterclaims, third-party
complaints or issues.”

Reopening the case of a party for the purpose of introducing further evidence

The parties may be permitted by the court to adduce evidence on their original case
even after the presentation of their original evidence provided:

1. There are good reasons; and

2. Such reason are in furtherance of justice

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 The basis for a motion to reopen a case to introduce further evidence is Sec. 5, Rule 30
of the Rules of Court, which reads:

“Sec. 5. Xxxx

(f) The parties may then respectively adduce rebutting evidence only, unless the court,
for good reasons and in furtherance of justice, permits them to adduce evidence upon
their original case.

Section 6. Oral offer of exhibits. — The offer of evidence, the comment or objection thereto, and
the court ruling shall be made orally in accordance with Sections 34 to 40 of Rule 132. (n)

FOR READY REFERENCE, SECTIONS 34 TO 40 OF RULE 132, PROVIDE:

“SEC. 34. OFFER OF EVIDENCE. – THE COURT SHALL CONSIDER NO EVIDENCE WHICH HAS NOT BEEN FORMALLY
OFFERED. THE PURPOSE FOR WHICH THE EVIDENCE IS OFFERED MUST BE SPECIFIED.

SEC. 35. WHEN TO MAKE OFFER. – ALL EVIDENCE MUST BE OFFERED ORALLY
THE OFFER OF THE TESTIMONY OF A WITNESS MUST BE MADE AT THE TIME THE WITNESS IS CALLED TO TESTIFY.

THE OFFER OF DOCUMENTARY AND OBJECT EVIDENCE SHALL BE MADE AFTER THE PRESENTATION OF A PARTY’S
TESTIMONIAL EVIDENCE.

SEC. 36. OBJECTION. – OBJECTION TO OFFER OF EVIDENCE MUST BE MADE ORALLY IMMEDIATELY AFTER THE
OFFER IS MADE.

OBJECTION TO THE TESTIMONY OF A WITNESS FOR LACK OF A FORMAL OFFER MUST BE

MADE AS SOON AS THE WITNESS BEGINS TO TESTIFY. OBJECTION TO A QUESTION PROPOUNDED IN THE
COURSE OF THE ORAL EXAMINATION OF A WITNESS MUST BE MADE AS SOON AS THE GROUNDS THEREFOR SHALL
BECOME REASONABLY APPARENT.

THE GROUNDS FOR THE OBJECTION MUST BE SPECIFIED.

SEC. 37. WHEN REPETITION OF OBJECTION UNNECESSARY. – WHEN IT BECOMES REASONABLY APPARENT IN THE
COURSE OF THE EXAMINATION OF A WITNESS THAT THE QUESTIONS BEING PROPOUNDED ARE OF THE SAME CLASS AS
THOSE TO WHICH OBJECTION HAS BEEN MADE, WHETHER SUCH OBJECTION WAS SUSTAINED OR OVERRULED, IT SHALL
NOT BE NECESSARY TO REPEAT THE OBJECTION, IT BEING SUFFICIENT FOR THE ADVERSE PARTY TO RECORD HIS
CONTINUING OBJECTION TO SUCH CLASS OF QUESTIONS.

SEC. 38. RULING. – THE RULING OF THE COURT MUST BE GIVEN IMMEDIATELY AFTER THE OBJECTION IS MADE, UNLESS
COURT DESIRES TO TAKE A REASONABLY TIME TO INFORM ITSELF ON THE QUESTION PRESENTED ; BUT THE RULING
SHALL ALWAYS BE MADE DURING THE TRIAL AND AT SUCH TIME AS WILL GIVE THE PARTY AGAINST WHOM IT WAS
MADE AN OPPORTUNITY TO MEET THE SITUATION PRESENTED BY THE RULING.

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 THE REASON FOR SUSTAINING OR OVERRULING AN OBJECTION NEED NOT BE STATED . HOWEVER, IF
OBJECTION IS BASED ON TWO OR MORE GROUNDS, A RULING SUSTAINING THE OBJECTION ON ONE OR MORE OF THEM
MUST SPECIFY THE GROUND OR GROUNDS RELIEF UPON.

SEC. 39. STRIKING OUT ANSWER. – SHOULD THE WITNESS ANSWER THE QUESTION BEFORE THE ADVERSE PARTY HAD
THE OPPORTUNITY TO VOICE FULLY ITS OBJECTION TO THE SAME, OR WHERE A QUESTION IS NOT
OBJECTIONABLE, BUT THE ANSWER IS NOT RESPONSIVE, OR WHERE A WITNESS TESTIFIES
WITHOUT A QUESTION BEING POSED OR TESTIFIES BEYOND LIMITS SET BY THE COURT, OR WHEN
THE WITNESS DOES A NARRATION INSTEAD OF ANSWERING THE QUESTION, AND SUCH OBJECTION IS
FOUND TO BE MERITORIOUS, THE COURT SHALL SUSTAIN THE OBJECTION AND ORDER SUCH ANSWER, TESTIMONY
OR NARRATION TO BE STRICKEN OFF THE RECORD.
ON PROPER MOTION, THE COURT MAY ALSO ORDER THE STRIKING OUT OF ANSWERS WHICH ARE
INCOMPETENT, IRRELEVANT, OR OTHERWISE IMPROPER.

SEC. 40. TENDER OF EXCLUDED EVIDENCE. – IF THE DOCUMENTS OR THINGS OFFERED IN EVIDENCE ARE EXCLUDED BY
THE COURT, THE OFFEROR MAY HAVE THE SAME ATTACHED TO OR MADE PART OF THE RECORD . IF THE EVIDENCE
EXCLUDED IS ORAL, THE OFFEROR MAY STATE FOR THE RECORD THE NAME AND OTHER PERSONAL CIRCUMSTANCES OF
THE WITNESS AND THE SUBSTANCE OF THE PROPOSED TESTIMONY.”

Section 7. Agreed statement of facts. — The parties to any action may agree, in writing, upon
the facts involved in the litigation, and submit the case for judgment on the facts agreed
upon, without the introduction of evidence.

If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed
facts in such order as the court shall prescribe.

What is the rule in case of agreed statements of facts?

The parties to any action may agree, in writing, upon the facts involved in the litigation,
and submit the case for judgment on the facts agreed upon, without the introduction of
evidence.

If the parties agree only on some of the facts in issue, the trial shall be held as to the
disputed facts in such order as the court shall prescribe.

Section 8. Suspension of actions. — The suspension of actions shall be governed by the

provisions of the Civil Code AND OTHER LAWS.

Suspension of actions

The suspension of actions shall be governed by the Civil Code of the Philippines

A civil action or proceeding shall be suspended if:

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 1. One or both parties have expressed a willingness to discuss a possible compromise
or
2. It appears that before the commencement of the action or proceeding, offered to
discuss a possible compromise but the other party refused the offer (Art. 2030, Civil
Code of the Philippines)

Section 9. Judge to receive evidence; delegation to clerk of court. — The judge of the court
where the case is pending shall personally receive the evidence to be adduced by the parties.
However, in default or ex parte hearings, and in any case where the parties agree in writing,
the court may delegate the reception of evidence to its clerk of court who is a member of the
bar. The clerk of court shall have no power to rule on objections to any question or to the
admission of exhibits, which objections shall be resolved by the court upon submission of his
OR HER report and the transcripts within ten (10) CALENDAR days from termination of the
hearing.

Who may receive the evidence during trial?

The judge of the court where the case is pending shall:
1. Personally receive the evidence to be adduced by the parties;
2. However, in default or ex-parte hearings, and in any case where the parties agree in
writing, the court may delegate the reception of evidence to its clerk of court who is a
member of the bar.

Can the clerk of court make ruling on the objection?

The clerk of court shall have no power to rule on objections to any question or to the
admission of exhibits, and any objections interpose during the reception of evidence, he will
simply note it. Any such objections duly noted by the Clerk of Court shall be resolved by the
court upon submission of his report and the transcript within ten (10) CALENDAR days from
termination of the hearing.

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 RULE 31

CONSOLIDATION OR SEVERANCE

Section 1. Consolidation. — When actions involving a common question of law or fact are
pending before the court, it may order a joint hearing or trial of any or all the matters in issue
in the actions; it may order all the actions consolidated, and it may make such orders
concerning proceedings therein as may tend to avoid unnecessary costs or delay.

When consolidation of cases proper?

When actions that involve common questions of law or fact are pending before the
court, the court may order a joint hearing or trial of any or all the matters in issue in the actions
and may order the consolidation of all the actions.

Consolidation (BAR 2011)

When actions involve a common question of law or fact are pending before the court,
the court may order a joint hearing or trial of any or all the matters in issue in the actions and
may order the consolidation of all actions (Sec. 1, Rule 31);

The court may order the consolidation of cases when actions involving a common
question of law or fact are pending. It may:

(a) Order a joint hearing or trial of any or all the matters in issue in the actions;
(b) It may order all the actions consolidated; and
(c) It may make such orders concerning proceedings therein as may tend to avoid
unnecessary costs or delay.

“It is a time-honored principle that when two or more cases involve the same parties
and affect closely related subject matters, they must be consolidated and jointly tried, in order
to serve the best interests of the parties and to settle expeditiously the issues involved. In other
words, consolidation is proper whenever the subject matter involved and relief demanded in
the different suits make it expedient for the court to determine all of the issues involved and
adjudicate the rights of the parties by hearing the suits together.

The purpose of this rule is avoid multiplicity of suits, guard against oppression and
abuse, prevent delays, clear congested dockets, and simplify the work of the trial court. In
short, consolidation aims to attain justice with the least expense and vexations to the parties-
litgants. It contributed to the swift dispensation of justice, and is in accord with the aim of
affording the parties a just, speedy, and inexpensive determination of their cases before the
courts. Further, it results in the avoidance of the possibility of conflicting decisions being
rendered by the courts in two or more caaes, which would otherwise require a single judgment
“(Steel Corporation of the Philippines v. Eqitable-PCI Bank Inc., 635 SCRA 403)

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Section 2. Separate trials. — The court, in furtherance of convenience or to avoid prejudice,
may order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint,
or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party
complaints or issues. (2a)

When may the court order a separate trial?

1. On the other hand, the court may also order a separate trial of any claim, cross-claim,
counterclaim, or third-party complaint or issues. The court may do so in furtherance of
convenience or to avid prejudice (Sec 2, Rule 31).

The court, in furtherance of convenience or to avoid prejudice, may order a separate

trial of:

(a) Any claim;

(b) Cross-claim;
(c) Counterclaim;
(d) Third-party complaint; or
(e) Any separate issue or of any number of claims, cross-claims, counterclaims, third-
party complaints or issues.

“It is a time-honored principle that when two or more cases involve the same parties
and affect closely related subject matters, they must be consolidated and jointly tried, in order
to serve the best interests of the parties and to settle expeditiously the issues involved. In other
words, consolidation is proper whenever the subject matter involved and relief demanded in
the different suits make it expedient for the court to determine all of the issues involved and
adjudicate the rights of the parties by hearing the suits together.

The purpose of this rule is avoid multiplicity of suits, guard against oppression and
abuse, prevent delays, clear congested dockets, and simplify the work of the trial court. In
short, consolidation aims to attain justice with the least expense and vexations to the parties-
litgants. It contributed to the swift dispensation of justice, and is in accord with the aim of
affording the parties a just, speedy, and inexpensive determination of their cases before the
courts. Further, it results in the avoidance of the possibility of conflicting decisions being
rendered by the courts in two or more caaes, which would otherwise require a single judgment
“(Steel Corporation of the Philippines v. Eqitable-PCI Bank Inc., 635 SCRA 403)

Example

In an action for Legal separation pending before one court, and later, a case of Custody
of Children involving the same parties in the case for Legal Separation was filed in another
court, considering that both actions involve the same parties and the issues are closely related,
these two actions may be consolidated in one court.

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Sample form

MOTION FOR CONSOLIDATION

COMES NOW, the Accused by and through the undersigned counsel and to this
Honorable Court, most respectfully alleges and stated:

1. That a similar case is pending before the RTC, Branch ____, docketed as Crim. Case No.
_____, in Re: People of the Philippines versus Juan dela Cruz, for violation of Section 11,
Art. II of RA No. 9165, wherein the parties in the above-entitled caseis the same hereof;
2. That, considering that the above-entitled case before the RTC, Branch _____, Iloilo City,
involves the same parties, such that, it would serve the interest of justice if this case be
consolidated with the above-indicated case before Branch ____ as such consolidation
shall expedite the proceeding of this case.

WHEREFORE, premises considered and in the interest of justice and fair play, it is
respectfully prayed of this Honorable Court that the above-entitled case be consolidated
with Criminal Case No. ____ which bears the lower criminal case number and which is
pending before the RTC Branch____, Iloilo City

Other reliefs and remedies deemed just and equitable undrr the premises are
likewise prayed for.

Iloilo City, Philippines, September 21, 2020.

Sample form

Ex Parte Motion for Consolidation of Cases

Petitioner, by counsel, to this Honorable Court respectfully states:

This is a Petition for Declaration of Nullity of Marriage which was filed on 26 June 2013.

On the same date, a Protection Order with application for TPO and Support Pendente
Lite pursuant to Administrative Matter No. 04-10-11-SC or the Rules on Violence Against
Women and Their Children Act involving the above-mentioned parties was filed and raffled
before the Regional Trial Court of Iloilo City Branch 30 with Civil Case No. BCV 2013-84.

That the two petitions involve the same parties with intertwined issues and subject
matters.

WHEREFORE, it is respectfully prayed that an order be granted to consolidate the two

actions in the Regional Trial Court Branch 32, Iloilo City where the declaration of nullity of

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marriage was raffled which may tend to avoid unnecessary costs or delay and to serve the best
interest of the parties and to settle expeditiously the issue involved.

386
 RULE 32

TRIAL BY COMMISSIONER

Section 1. Reference by consent. — By written consent of both parties, the court may order
any or all of the issues in a case to be referred to a commissioner to be agreed upon by the
parties or to be appointed by the court. As used in these Rules, the word "commissioner"
includes a referee, an auditor and an examiner.

When is reference to a commissioner available?

By written consent of both parties, the court may order any or all of the issues in a case
to be referred to a commissioner to be agreed upon by the parties or to be appointed by the
court.

Who is a commissioner?

As used in these Rules, the word "commissioner" includes a referee, an auditor and an
examiner.

Examples

1. Expropriation under Rule 67, Sec. 5, which provides that “Upon the rendition of the
order of expropriation, the court shall appoint not more than three (3) competent
and disinterested persons as commissioners to ascertain and report to the court the
just compensation for the property sought to be taken. The order of appointment
shall designate the time and place of the first session of the hearing to be held by
the commissioners and specify the time within which their report shall be submitted
to the court.”
2. Partition under Rule 69, Sec 3, which provides that “If the parties re unable to agree
upon the partition, the court shall appoint not more than three (3) competent and
disinterested persons as commissioners to make the partition, commanding them to
se off to the plaintiff and to each party in nterest such part and proportion of the
property as the court shall direct.”

Section 2. Reference ordered on motion. — When the parties do not consent, the court may,
upon the application of either or of its own motion, direct a reference to a commissioner in
the following cases:

(a) When the trial of an issue of fact requires the examination of a long account on
either side, in which case the commissioner may be directed to hear and report upon
the whole issue or any specific question involved therein;

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 (b) When the taking of an account is necessary for the information of the court before
judgment, or for carrying a judgment or order into effect.

(c) When a question of fact, other than upon the pleadings, arises upon motion or
otherwise, in any stage of a case, or for carrying a judgment or order into effect. (2a,
R33)

When can a case be ordered by the court upon motion of the parties?

When the parties do not consent, the court may, upon the application of either or of its
own motion, direct a reference to a commissioner in the following cases:

(a) When the trial of an issue of fact requires the examination of a long account on
either side, in which case the commissioner may be directed to hear and report upon
the whole issue or any specific question involved therein;

(b) When the taking of an account is necessary for the information of the court before
judgment, or for carrying a judgment or order into effect.

(c) When a question of fact, other than upon the pleadings, arises upon motion or
otherwise, in any stage of a case, or for carrying a judgment or order into effect.

Section 3. Order of reference; powers of the commissioner. — When a reference is made, the
clerk shall forthwith furnish the commissioner with a copy of the order of reference. The
order may specify or limit the powers of the commissioner, and may direct him OR HER to
report only upon particular issues, or to do or perform particular acts, or to receive and
report evidence only and may fix the date for beginning and closing the hearings and for the
filing of his report. Subject to other specifications and limitations stated in the order, the
commissioner has and shall exercise the power to regulate the proceedings in every hearing
before him and to do all acts and take all measures necessary or proper for the efficient
performance of his duties under the order. He may issue subpoenas and subpoenas duces
tecum, swear witnesses, and unless otherwise provided in the order of reference, he OR SHE
may rule upon the admissibility of evidence. The trial or hearing before him OR HER shall
proceed in all respects as it would if held before the court.

What is the duty of the clerk of court on the order of preference?

When a reference is made, the clerk shall forthwith furnish the commissioner with a
copy of the order of reference.

What does the order of reference contain?

1. The order may specify or limit the powers of the commissioner,

2. May direct him to report only upon particular issues,

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 3. To do or perform particular acts,
4. To receive and report evidence only; and
5. May fix the date for beginning and closing the hearings and for the filing of his
report.

What are the powers of the commissioner?

Subject to other specifications and limitations stated in the order, the commissioner has
and shall exercise the power:

1. To regulate the proceedings in every hearing before him;

2. To do all acts and take all measures necessary or proper for the efficient
performance of his duties under the order;
3. He may issue subpoenas and subpoenas duces tecum
4. Swear witnesses;
5. Unless otherwise provided in the order of reference, he may rule upon the
admissibility of evidence. The trial or hearing before him shall proceed in all respects
as it would if held before the court. (3a, R33)

Section 4. Oath of commissioner. — Before entering upon his OR HER duties the
commissioner shall be sworn to a faithful and honest performance thereof.

Oath of commissioner.

Before entering upon his OR HER duties the commissioner shall be sworn to a faithful
and honest performance thereof. The purpose of which is for the commissioners to observe the
solemnity of the proceedings.

Section 5. Proceedings before commissioner. — Upon receipt of the order of reference and
unless otherwise provided therein, the commissioner shall forthwith set a time and place for
the first meeting of the parties or their counsel to be held within ten (10) CALENDAR days
after the date of the order of reference and shall notify the parties or their counsel.

What shall the commissioner do upon receipt of the order of reference?

Upon receipt of the order of reference and unless otherwise provided therein, the
commissioner:

1. Shall forthwith set a time and place for the first meeting of the parties or their
counsel to be held within ten (10) CALENDAR days after the date of the order of
reference and
2. Shall notify the parties or their counsel.

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Section 6. Failure of parties to appear before commissioner. — If a party fails to appear at the
time and place appointed, the commissioner may proceed ex parte or, in his OR HER
discretion, adjourn the proceedings to a future day, giving notice to the absent party or his
counsel of the adjournment.

What is the effect of failure of parties to appear before the commissioner?

If a party fails to appear at the time and place appointed, the commissioner may
proceed ex parte or, in his discretion, adjourn the proceedings to a future day, giving notice to
the absent party or his counsel of the adjournment.

Section 7. Refusal of witness. — The refusal of a witness to obey a subpoena issued by the
commissioner or to give evidence before him OR HER, shall be deemed a contempt of the
court which appointed the commissioner.

Refusal of witness.

The refusal of a witness to obey a subpoena issued by the commissioner or to give

evidence before him OR HER, shall be deemed a contempt of the court which appointed the
commissioner.

Section 8. Commissioner shall avoid delays. — It is the duty of the commissioner to proceed
with all reasonable diligence. Either party, on notice to the parties and commissioner, may
apply to the court for an order requiring the commissioner to expedite the proceedings and
to make his report.

Commissioner shall avoid delays.

It is the duty of the commissioner to proceed with all reasonable diligence. Either party,
on notice to the parties and commissioner, may apply to the court for an order requiring the
commissioner to expedite the proceedings and to make his report.

Section 9. Report of commissioner. — Upon the completion of the trial or hearing or

proceeding before the commissioner, he shall file with the court his report in writing upon
the matters submitted to him by the order of reference. When his powers are not specified or
limited, he shall set forth his findings of fact and conclusions of law in his report. He shall
attach thereto all exhibits, affidavits, depositions, papers and the transcript, if any, of the
testimonial evidence presented before him OR HER.

Report of commissioner.

Upon the completion of the trial or hearing or proceeding before the commissioner, he
shall file with the court his report in writing upon the matters submitted to him by the order of
reference. When his powers are not specified or limited, he shall set forth his findings of fact

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and conclusions of law in his report. He shall attach thereto all exhibits, affidavits, depositions,
papers and the transcript, if any, of the testimonial evidence presented before him OR HER.

Section 10. Notice to parties of the filing of report. — Upon the filing of the report, the parties
shall be notified by the clerk, and they shall be allowed ten (10) CALENDAR days within which
to signify grounds of objections to the findings of the report, if they so desire. Objections to
the report based upon grounds which were available to the parties during the proceedings
before the commissioner, other than objections to the findings and conclusions therein, set
forth, shall not be considered by the court unless they were made before the commissioner.

Notice to parties of the filing of report.

Upon the filing of the report, the parties shall be notified by the clerk, and they shall be
allowed ten (10) CALENDAR days within which to signify grounds of objections to the findings of
the report, if they so desire. Objections to the report based upon grounds which were available
to the parties during the proceedings before the commissioner, other than objections to the
findings and conclusions therein, set forth, shall not be considered by the court unless they
were made before the commissioner.

Section 11. Hearing upon report. — Upon the expiration of the period of ten (10) CALENDAR
days referred to in the preceding section, 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 before
the commissioner or the court.

Hearing upon report.

Upon the expiration of the period of ten (10) CALENDAR days referred to in the
preceding section, the report shall be set for hearing, after which the court shall issue an order:

(1) Adopting,
(2) Modifying, or
(3) Rejecting the report in whole or in part, or
(4) Recommitting it with instructions, or
(5) Requiring the parties to present further evidence before the commissioner or the
court.

Section 12. Stipulations as to findings. — When the parties stipulate that a commissioner's
findings of fact shall be final, only questions of law shall thereafter be considered.

Stipulations as to findings.

When the parties stipulate that a commissioner's findings of fact shall be final, only
questions of law shall thereafter be considered.

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Section 13. Compensation of commissioner. — The court shall allow the commissioner such
reasonable compensation as the circumstances of the case warrant, to be taxed as costs
against the defeated party, or apportioned, as justice requires.

Compensation of commissioner.

The court shall allow the commissioner such reasonable compensation as the
circumstances of the case warrant, to be taxed as costs against the defeated party, or
apportioned, as justice requires.

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 RULE 33

DEMURRER TO EVIDENCE

Section 1. Demurrer to evidence. — After the plaintiff has completed the presentation of his
OR HER evidence, the defendant may move for dismissal on the ground that upon the facts
and the law the plaintiff has shown no right to relief. If his OR HER motion is denied he OR
SHE shall have the right to present evidence. If the motion is granted but on appeal the order
of dismissal is reversed he shall be deemed to have waived the right to present evidence.

What is a demurrer to evidence?

The Court has previously explained the nature of a demurrer to evidence in the case of
Celino vs. Heirs of Alejo and Teresa Santiago as follows:
“A demurrer to evidence is a motion to dismiss on the ground of insufficiency of
evidence and is presented after the plaintiff rests his case. It is an objection by one of the
parties in an action, to the effect that the evidence which his adversary produced is insufficient
in point of law, whether true or not, to make out a case or sustain the issue. The evidence
contemplated by the rule on the demurrer to evidence is that which pertains to the merits of
the case.” (Nenita Gonzales, et.al vs. Mariano Bugay and Lucy Bugay, G.R. No. 173008, February
22, 2012).
Ground for a demurrer to evidence
The defendant may move for dismissal on the ground that UPON THE FACTS AND THE
LAW, THE PLAINTIFF HAS SHOWN NO RIGHT TO RELIEF.
Nature of Demurrer to Evidence.
Demurrer to evidence authorizes a judgment on the merits of the case without the
defendant having to submit evidence on his parts, as he would ordinarily have to do, if
plaintiff’s evidence shows that he is not entitled to the relief sought. Demurrer, therefore, is an
aid or instrument for the expeditious termination of an action, similar to a motion to dismiss,
which the court or tribunal may either grant or deny.
When can the defendant file a demurrer to evidence?

After the plaintiff has completed the presentation of his evidence, the defendant may
move for dismissal on the ground that upon the facts and the law the plaintiff has shown no
right to relief. In the other words, once the plaintiff has formally offered his evidence and the
defendant has made his “comment or opposition” thereto, and court has also ruled on the
plaintiff’s offer of evidence, the defendant can orally move that he will be filing a demurrer to
evidence.

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What is the remedy of the defendant in case the motion is denied?
If his motion is denied, he shall have the right to present evidence. Simply put, the
denial by the court of the defendant‘s demurrer to evidence is not appealable being an
interlocutory order, since there is something left to be done by the defendant and, that is, to
present hs evidence.
What is the remedy of the plaintiff in case of granting of the motion? Effect of reversal on
appeal.
On the other hand, the order granting the demurrer to evidence is appealable as it
finally disposes of the case. In other words, if the defendant’s demurrer to evidence is granted
but on appeal the order of dismissal is reversed, the defendant shall be deemed to have waived
the right to present evidence.
1. The regular order of trial requires the plaintiff to adduce evidence in support of his
complaint. During the trial the plaintiff presents all the evidence available to him –
object, documentary and testimonial (Sec. 5, Rule 30);
2. After the plaintiff has completed the presentation of his evidence, the defendant
shall then adduce evidence in support of his defense, counterclaim or third-party
complaint as the case may be (Sec. 5, Rule 30). The defendant, however, may
sincerely feel that the plaintiff has not lived up to his burden of proving the material
allegations of his claim and is, therefore, not entitled to the relief sought for in his
complaint.
3. Instead of presenting his evidence, the defendant may move for dismissal on the
ground that upon the facts and the law the plaintiff has shown no right to relief (Sec.
1, Rule 33). This motion is called a Demurrer to Evidence.

Motion to Dismiss in Rule 15, Section 12 Distinguished from Demurrer to Evidence in Rule 33
A demurrer to evidence under Rule 33 is in effect, a motion to dismiss but is not the
motion to dismiss described under Rule 15, Section 12. Rule 33 and Rule 15, Section 12 of the
2019 Revised Rules of Civil Procedure, may be distinguished from each other on the following
points:
(a) A motion to dismiss in Rule 15, Section 12, is generally made before the filing of the
answer; a demurrer to evidence in Rule 33 is made after the plaintiff rests his case, i.e.,
after the completion of the presentation of his evidence;
(b) There are many grounds for a motion to dismiss under Rule 15, Section 12, namely
(a)that the court has no jurisdiction over the subject matter of the claim; (b) that there
is another action pending between the same parties for the same cause; and (c) that the
cause of action is barred by a prior judgment or by statute of limitations, but only one
ground under Rule 33 (plaintiff is NOT entitled to relief);

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 (c) If a motion to dismiss in Rule 15, Section 12, is denied, the defendant may file his
responsive pleading; under Rule 33, the defendant may present his evidence;
(d) If the motion to dismiss in Rule 15, Section 12 is granted, the complaint may be refiled,
depending on the ground for dismissal; in Rule 33, the complaint may not be refilled and
the remedy of the plaintiff is to appeal from the order of dismissal.

Stage of proceeding when Demurrer to Evidence is availed of

A demurrer to evidence is availed of by the defendant after the plaintiff has completed
the presentation of his evidence.
Ground for a Demurrer to Evidence
The defendant may move for dismissal on the ground that upon the facts and the law,
the plaintiff has shown no right to relief.
Effect of denial of the Demurrer to Evidence

1. If the demurrer to evidence is denied, the defendant shall have the right to present
his evidence. This means that the denial of the demurrer to evidence does not
deprive the defendant to adduce evidence in his behalf.
2. Where a court denies a demurrer to evidence it should set the date for the reception
of the defendant’s evidence in chief. It should not proceed to grant the relief
demanded by the plaintiff.

Effect of granting of the Demurrer to Evidence

1. If the demurrer is granted, the case shall be dismissed. However, if on appeal the order
granting the motion is reversed, the defendant loses his right to present evidence (Sec.
1, Rule 33).
2. It is not correct for the appellate court reversing the order granting the demurrer to
remand the case to the trial court for further proceedings. The appellate court should,
instead of remanding the case, render judgment on the basis of the evidence submitted
by the plaintiff.

List the distinctions between demurrer in a civil case from demurrer in a criminal case. (BAR
2007)
Suggested answer
1. In a civil a case, leave of court is not required before filing a demurrer. In a criminal
case, a demurrer is filed with or without leave of court;

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 2. In a civil case, if the demurrer is granted, the order of dismissal is appealable. In a
criminal case, the order of dismissal is not appealable because of the constitutional
policy against double jeopardy;
3. In a civil case, if the demurrer is denied, the defendant may proceed to present his
evidence. In a criminal case, the accused may adduce his evidence only if the
demurrer is filed with leave of court. He cannot present his evidence if he filed the
demurrer without leave of court.
4. A in criminal case, the accused may adduce his evidence only if the demurrer is filed
with leave of court. He cannot present his evidence if he filed the demurrer without
leave of court.
Sample form
MOTION FOR DEMURRER TO EVIDENCE
COMES NOW, the defendant, through the undersigned counsel and unto this Honorable
Court, most avers:
1. That the plaintiff has already formally rested his case;
2. That the evidence presented by the plaintiff during the trial of the case are insufficient
to establish his cause of action as alleged in the Complaint since he merely presented a
document denominated as Receipt even without the signature of the defendant, neither
he presented the original of the alleged promissory note allegedly executed by the
plaintiff and the defendant which will prove the alleged indebtedness;
3. That the defendant through counsel most respectfully moves for leave of court to file
demurrer to evidence, and attached demurrer to evidence be admitted.

WHEREFORE, premises considered, it is most respectfully prayed of this Honorable

Court that the demurrer to evidence filed by the defendant be granted ordering the
dismissal of the case based on insufficiency of evidence.
Other relief and remedies as may be deemed just and equitable under the premises are
likewise prayed for.
BAR 1981
“G” presented a complaint against “H” for damages arising from non-compliance with
the terms of a manufacturing contract. After answer was filed and the pre-trial held, “G”
presented his evidence. When “G” completed his presentation, “H” moved to dismiss the
complaint on the ground that the evidence was not sufficient to prove “G’s” case. At the same
time “H” reserved his right to present his evidence should his motion be denied. “G” opposed
the motion. The trial court ruled the evidence to be insufficient and dismissed the complaint.

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 “G” appealed to the Court of Appeals, which found the dismissal to be incorrect and
rendered judgment reversing the dismissal and finding that “G” was, in fact, entitled to the
damages claimed. “H” now moves to be given an opportunity to have his day in Court and
present his evidence. Should “H” be allowed to present his evidence? Reason.
Suggestd answer
“H” should not be allowed to present his evidence. He lost his right to present his
evidence when the order of dismissal was reversed by the Court of Appeals. Under the Rules, if
the demurrer is granted but on appeal the order of dismissal is reversed, the defendant shall be
deemed to have waived the right to present evidence.
Section 2. Action on demurrer to evidence. — A demurrer to evidence shall be subject to the
provisions of Rule 15.

The order denying the demurrer to evidence shall not be subject of an appeal or petition for
certiorari, prohibition or mandamus before judgment. (n)

The amendment provides: “The order denying the demurrer to evidence shall not be
subject of an appeal or petition for certiorari, prohibition or mandamus before judgment. This
simply means that once the court has ruled denying the “demurrer to evidence,” the defendant
could no longer question the same by way of “appeal,” petition for certiorari, prohibition or
mandamus before judgement.” This is because, an order denying a demurrer to evidence is an
interlocutory order and as such it does not finally dispose or terminate the case. What the
defendant should do is to proceed with the presentation of his evidence, and if the court would
render judgment not favourable to him, he could appeal the judgment and raise as one of his
assignment of errors the denial of his demurrer to evidence.

The pertinent provisions of Rule 15, relative to Demurrer to Evidence are as follows:

“RULE 15

MOTIONS

Section 1.Motion defined. — A motion is an application for relief other than by a pleading.

Section 2.Motions must be in writings. — All motions shall be in writing except those made in
open court or in the course of a hearing or trial. (2a)

A motion made in open court or in the course of a hearing or trial should immediately be
resolved in open court, after the adverse party is given the opportunity to argue his or her
opposition thereto.

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When a motion is based on facts not appearing on record, the court may hear the matter on
affidavits or depositions presented by the respective parties, but the court may direct the
matter be heard wholly or partly on oral testimony or depositions.

Section 3.Contents. — A motion shall state the relief sought to be obtained and the grounds
upon which it is based, and if required by these Rules or necessary to prove facts alleged
therein, shall be accompanied by supporting affidavits and other papers. (3a)

Section 5. Litigious motions. — (a) Litigious motions include:

1) Motion for bill of particulars;

2) Motion to dismiss;
3) Motion for new trial;
4) Motion for reconsideration;
5) Motion for execution pending appeal;
6) Motion to amend after a responsive pleading has been filed;
7) Motion to cancel statutory lien;
8) Motion for an order to break in or for a writ of demolition;
9) Motion for intervention;
10) Motion for judgment on the pleadings;
11) Motion for summary judgment;
12) Demurrer to evidence;
13) Motion to declare defendant in default; and
14) Other similar motions.

(b) All motions shall be served by personal service, accredited private courier or registered mail,
or electronic means so as to ensure their receipt by the other party.

(c) The opposing party shall file his or her opposition to a litigious motion within five (5)
calendar days from receipt thereof. No other submissions shall be considered by the court in
the resolution of the motion.

The motion shall be resolved by the court within fifteen (15) calendar days from its receipt of
the opposition thereto, or upon expiration of the period to file such opposition. (n)

Section. 6. Notice of hearing on litigious motions; discretionary. — The court may, in the
exercise of its discretion, and if deemed necessary for its resolution, call a hearing on the motion.
The notice of hearing shall be addressed to all parties concerned, and shall specify the time and
date of the hearing.

Section 7. Proof of service necessary. — No written motion shall be acted upon by the court
without proof of service thereof, pursuant to Section 5(b) hereof.

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 Effect of failure to set the motion for hearing, to include a notice of hearing and to serve
the motion (Secs. 4, 5, and 6 of Rule 15)

Section 8. Motion day. — Except for motions requiring immediate action, where the court
decides to conduct hearing on a litigious motion, the same shall be set on a Friday. (7a)

Section 9. Omnibus motion. — Subject to the provisions of Section 1 of Rule 9, a motion

attacking a pleading, order, judgment, or proceeding shall include all objections then available,
and all objections not so included shall be deemed waived.

Section 10. Motion for leave. — A motion for leave to file a pleading or motion shall be
accompanied by the pleading or motion sought to be admitted.”

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 RULE 34

JUDGMENT ON THE PLEADINGS

Section 1. Judgment on the pleadings. — Where an answer fails to tender an issue, or

otherwise admits the material allegations of the adverse party's pleading, the court may on
motion of that party, direct judgment on such pleading. However, in actions for declaration of
nullity or annulment of marriage or for legal separation, the material facts alleged in the
complaint shall always be proved.

When is judgment on the pleading proper?

Where an (1) answer fails to tender an issue, or (2) otherwise admits the material
allegations of the adverse party's pleading, the court may; on motion of that party, direct
judgment on such pleading. However, in actions for declaration of nullity or annulment of
marriage or for legal separation, the material facts alleged in the complaint shall always be
proved.

Judgment on the Pleadings (RULE 34) (BAR 1999; 1993; 1978)

The concept of a judgment on the pleadings will NOT apply when NO ANSWER is filed. It
will come into operation when an answer is served and filed but the same fails to tender an
issue or admits the material allegations of the adverse party’s pleading.
Answer fails to tender an Issue
An answer fails to tender an issue when the material allegations of the other party are
admitted or not specifically denied by the pleader. Under the rules, material allegations of the
complaint not specifically denied are admitted.
The 2019 Amedments does not include an explanation of the phrase “fails to tender an
issue.” An Answer would “fail to tender an issue” if it does not deny the material allegations in
the complaint or admits said material allegations of the adverse party’s pleading by confessing
the truthfulness thereof and/or omitting to deal with them at all (Adolfo v. Adolfo, G.R. No.
201427, March 18, 2015)
For example, when the complaint alleges that the defendant owes him a sum of money
and has not paid despite demand on the due date, and said allegations are not denied by the
defendant in his answer in accordance with the denial required by the Rules, the same are
deemed admitted. If they are admitted, then no issue is tendered by the answer.

Question:

In Civil Procedure, specifically under the Modes of Discovery, particularly Rule 26, Sec 1., on
Request for Admission. For example the defendant admitted the truth of the material issue in

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the complaint, can the plaintiff file a motion for judgment on the pleading or summary
judgment since the adverse party already admitted the truth of the material issue?

BAR 1993

In an action for recovery of a sum of money, the plaintiff averred in the complaint that
“on January 15, 1990, the defendant obtained a loan from the plaintiff in the sum of P100, 000.
00 which he promised to pay on or before July 15, 1990 plus interest thereon at the rate of 18%
per annum from January 15 1990 until fully paid” and that “the aforesaid loan has long been
overdue but, despite repeated demands, the defendant failed and refused, and still fails and
refuses to pay to the plaintiff the aforesaid sum of P100, 000. 00 and the accrued interest.”

Answering the complaint, the defendant denied the aforeqouted averments and gave
the reason for the denial his lack of knowledge or information sufficient to form a belief as to
the truth of said averments.

What is the effect of such denial? With such form of denial, what course of action may
be availed of by the plaintiff? Explain.

Suggested answer

The denial has the effect of a general denial. The rule which recognizes as a specific
denial where the defending party avers absence of knowledge or information sufficient to form
a belief as to the truth of an averment, does not apply where the fact as to which want of
knowledge is asserted is plainly, obviously and necessarily within the defendant’s knowledge
that his averment of ignorance must be palpably untrue. Such a denial amounts to a bad faith
and cannot be tolerated. Since the denial is considered as general, such denial constitutes an
admission of the material allegations of the complaint.

The PLAINTIFF may file a motion for judgment on the pleadings. Since a general denial is
an implied admission, there is no issue presented by the answer. Under the Rules of Court,
where an answer fails to tender an issue, or otherwise admits the material allegations of the
adverse party’s pleading, the court, may, on motion by that party (plaintiff), direct judgment on
such pleading.

BAR 1978
X filed with the Regional Trial Court of Manila a complaint against Y for the collection of
Php500, 000. 00, attaching therewith the corresponding promissory note executed by Y in his
favor. Y filed his answer denying all complaint the material allegations of the complaint for the
reason that “he does not have knowledge sufficient to constitute a belief as to the truth of the
allegations therein contained.” Y likewise interposed the defense that he was unable to pay his
indebtedness to X because of typhoon Yolanda which greatly reduced his income. As counsel
for X, what action will you take and why?

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Suggested answer:
I would file a motion for judgment on the pleadings. The denial made by Y is not the
specific denial contemplated by the Rules. The denial has the effect of a general denial. The rule
which recognizes as a specific denial where the defending party avers absence of knowledge or
information sufficient to form a belief as to the truth of an averment does not apply where the
fact as to which want of knowledge is asserted is plainly, obviously and necessarily within the
defendant’s that his averment of ignorance must be palpably untrue. Such denial amounts to
bad faith and cannot be tolerated. Since the denial is considered as general, such denial
constitutes an admission of the material allegations of the complaint.

Motion Required

A judgment on the pleadings cannot be rendered by the court motu proprio. It can be
done only where there is a prior motion to the effect filed by the appropriate party (Sec. 1, Rule
34), However, under the 2019 Amendments, the Court motu proprio may also render a
judgment on the pleadings, or the court may include it in the pre-trial order if it determines
that there are no controverted facts or the answer fails to tender an issue.

Cases where the Judgnent on the Pleadings will not apply

In the following cases, a judgment on the pleadings will not lie:

(a) Actions for the declaration of nullity of a marriage;

(b) Actions for annulment of marriage; and
(c) Actions for legal separation (Sec. 1, Rule 34)

In the above cases, the material facts alleged in the complaint shall always be proved.

BAR 1999

A brought an action against her husband B for annulment of their marriage on the
ground of psychological incapacity. B filed his Answer to the Complaint admitting all the
allegations therein contained. May A move for judgment on the pleadings?

Suggested answer

A may not move for judgment on the pleadings. In actions for the annulment of
marriage (as well as actions for declaration of nullity of marriage or legal separation), the
material facts alleged in the complaint shall always be proved. This means that no judgment on
the pleadings may be made by the court in an action for annulment of marriage. (Sec.1, Rule
34, Rules of Court)

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Distinguished from Judgment by Default.
As the terms clearly indicate, a judgment on the pleadings is based exclusively on the
pleadings of the parties and requires no presentation of evidence. It is unlike a judgment by
default which may be based on the pleadings as well as the evidence which the court may, in
the exercise of his discretion, require the claimant to present ex parte. The judgment on the
pleadings is solely based on the pleadings submitted by the parties. Unlike a judgment by
default which occurs because an answer has not been filed by the defending party, a judgment
on the pleadings presupposes that an answer has material allegations of the claiming party
have not been controverted by the answer.
Section 2. Action on motion for judgment on the pleadings. — The court may motu proprio or on
motion render judgment on the pleadings if it is apparent that the answer fails to tender an issue,
or otherwise admits the material allegations of the adverse party’s pleadings. Otherwise, the
motion shall be subject to the provisions of Rule 15 of these Rules.

Any action of the court on a motion for judgment on the pleadings shall not be subject of an
appeal or petition for certiorari, prohibition or mandamus. (n)

When shall the Court render judgment on the pleadings?

This is a drastic change from the old rules which provided that judgment on the pleading
is possible upon the motion of the plaintiff. Under the present rule, the court may motu proprio
or on motion of the plaintiff, render judgment on the pleadings if it is apparent that the answer
fails to tender an issue, or otherwise admits the material allegations of the adverse party’s
pleadings. Otherwise, the motion shall be subject to the provisions of Rule 15 of these Rules.

The above provision must be co-related to Section 10, Rule 18, of the Rules of Court,
which provides:
“Section. 10. Judgment after pre-trial. — Should there be no more controverted facts, or no
more genuine issue as to any material fact, or an absence of any issue, or should the answer fail
to tender an issue, the court shall, without prejudice to a party moving for judgment on the
pleadings under Rule 34 or summary judgment under Rule 35, motu proprio include in the pre-
trial order that the case be submitted for summary judgment or judgment on the pleadings,
without need of position papers or memoranda. In such cases, judgment shall be rendered
within ninety (90) calendar days from termination of the pre-trial.

The order of the court to submit the case for judgment pursuant to this Rule shall not be the
subject to appeal or certiorari. “(n)

Does the action of the court on a motion for judgment on the pleadings be subject to an appeal,
certiorari or mandamus?

403
 No. Any action of the court on a motion for judgment on the pleadings shall not be
subject of an appeal or petition for certiorari, prohibition or mandamus. (n) Please take note that
what is being prohibited here that the action of the court in either denying or granting the motion
for judgment on the pleadings cannot be the subject of appeal or petition for certiorari,
prohibition or mandamus. But the court’s judgment on the pleadings itself can be questioned by
way of appeal or through a petition for certiorari, prohibition or mandamus.

BAR 1999

What are the grounds for judgment on the pleadings?

Suggested answer

Under Sec. 1, Rule 34 of the Rules of Court, where an answer (1) fails to tender an issue,
or otherwise (2) admits the material allegations of the adverse party’s pleading, the court, may
on motion of that party, direct judgment on such pleading.

BAR 2019

Ms. A filed a complaint for damages against Ms. B, alleging that Ms. B negligently caused
the demolition of her house's concrete fence, the top half of which fell on the front portion of
Ms. A's car and permanently damaged its engine. In her answer, Ms. B denied any personal
liability for the damage caused to Ms. A's car, averring that she merely acquiesced to the advice
of her contractor, XYZ Construction Co., to have the concrete fence demolished. Thus, damages,
if any, should be collected from it.

Thereafter, Ms. A filed a motion for judgment on the pleadings, alleging that Ms. B's
statement in her answer is actually a negative pregnant. Ms. B opposed the motion, reiterating
her defense in her answer which purportedly rendered judgment on the pleadings improper.
Ms. B also moved for the dismissal of the case on the ground of non-joinder of XYZ Construction
Co., which she alleged is an indispensable party to the case.

Is Ms. A's motion for judgment on the pleadings proper? Explain.

A judgment on the pleadings may be rendered even if there is pending before the court
a third-party complaint. (Narra Integrated Corp vs. CA, 344 SCRA 781)
BAR 2017
Royal Bank (Royal) filed a complaint for a sum of money against Ervin and Jude before
the RTC of Manila. The initiatory pleading averred that on February 14, 2010, Ervin obtained a
loan from Royal in the amount of Pl Million, as evidenced by Promissory Note No. 007 (PN)
signed by Ervin. Jude signed a Surety Agreement binding herself as surety for the loan. Royal
made a final demand on February 14, 2015 for Ervin and Jude (defendants) to pay, but the

404
latter failed to pay. Royal prayed that defendants Ervin and Jude be ordered to pay the amount
of P1 Million plus interests.

In their answer, Ervin admitted that he obtained the loan from Royal and signed the PN.
Jude also admitted that she signed the Surety Agreement. Defendants pointed out that the PN
did not provide the due date for payment, and that the loan has not yet matured as the
maturity date was left blank to be agreed upon by the parties at a later date. Defendants filed a
Motion for a Judgment on the Pleadings on the ground that there is no genuine issue presented
by the parties' submissions. Royal opposed the motion on the ground that the PN' s maturity is
an issue that must be threshed out during trial.
[a] Resolve the motion with reasons.
[b] Distinguish "Summary Judgment" and "Judgment on the Pleadings."
Suggested answer
(a) The Motion for Judgment on the Pleadings should be denied.
Under the Rules of Civil Procedure, a motion for judgment on the pleadings may be filed only by
the plaintiff or the claimant.
Here it was the Defendants, not the Plaintiff Royal Bank, which filed a motion for judgment on
the pleadings. Hence the motion should be denied.
(b) A summary judgment is distinguished from a judgment on the pleadings as follows:

1. A summary judgment is proper even if there is a remaining issue as to the amount of

damages, while a judgment on the pleadings is proper if it appears that there is no genuine
issue between the parties.
2. A summary judgment is based not only on the pleadings but also upon affidavits, depositions,
and admissions showing that, except as to the amount of damages, there is no genuine issue,
while a judgment on the pleadings is based exclusively upon the pleadings without the
presentation of any evidence.
3. A motion for summary judgment requires 5 CALENDAR-day notice, while a motion for
judgment on the pleadings is subject to a 3 CALENDAR day notice rule.
4. A summary judgment may be prayed for by a defending party, while a judgment on the
pleadings may be prayed for only by a plaintiff or claimant or motu proprio by the court.

BAR 2015

Plaintiff sued defendant for collection of P1 million based on the latter's promissory
note. The complaint alleges, among others:

1) Defendant borrowed P1 million from plaintiff as evidenced by a duly

executed promissory note;
2) The promissory note reads:

405
 "Makati, Philippines
Dec. 30, 2014

For value received from plaintiff, defendant promises to pay plaintiff P1 million, twelve
(12) months from the above indicated date without necessity of demand.

Signed
Defendant"

A copy of the promissory note is attached as Annex "A."

Defendant, in his verified answer, alleged among others:

1) Defendant specifically denies the allegation in paragraphs 1 and 2 of

the complaint, the truth being defendant did not execute any
promissory note in favor of plaintiff, or
2) Defendant has paid the P1 million claimed in the promissory note
(Annex "A" of the Complaint) as evidenced by an "Acknowledgment
Receipt" duly executed by plaintiff on January 30, 2015 in Manila with
his spouse signing as witness.

A copy of the "Acknowledgment Receipt" is attached as Annex "1" hereof.

Plaintiff filed a motion for judgment on the pleadings on the ground that defendant's
answer failed to tender an issue as the allegations therein on his defenses are sham for being
inconsistent; hence, no defense at all. Defendant filed an opposition claiming his answer
tendered an issue.

a.) Is judgment on the pleadings proper?

Defendant filed a motion for summary judgment on the ground that there are no longer any
triable genuine issues of facts.

b.) Should the court grant defendant's motion for summary judgment?

Suggested answer

a) No, judgment on the pleadings is not proper.

Under Section 2 of Rule 8, a party may set forth two or more statements of a defense
alternatively or hypothetically. The Supreme Court has held that inconsistent defenses may be

406
pleaded alternatively or hypothetically provided that each defense is consistent with
itself. (Baclayon v. Court of Appeals, 26 February 1990).

Hence Plaintiff’s contention that defendant’s answer failed to tender an issue as his
defenses are sham for being inconsistent is without merit.

b) Yes, the court should grant Defendant’s motion for summary judgment.

Under Section 2 of Rule 35, a defendant may at any time, move with supporting
admissions for a summary judgment in his favor.

Here the Plaintiff had impliedly admitted the genuineness and due execution of the
acknowledgment receipt, which was the basis of Defendant’s defense, by failing to specifically
deny it under oath.

Hence the Defendant may move for a summary judgment on the basis that Plaintiff had
admitted that Defendant had already paid the P1 million obligation.

Sample form
MOTION FOR JUDGMENT ON THE PLEADINGS
COMES NOW, the plaintiff, through the undersigned counsel and unto this Honorable
Court, most avers:
1. That upon the answer of the defendant, he admits the material allegations in the
complaint that he was indebted to the plaintiff;
2. That the plaintiff is entitled to a judgment as a matter of law. This is but consonance
with Sec. 1, Rule 34 of the 1997 Rules of Civil Procedure.

WHEREFORE, premises considered, it is most respectfully prayed of this Honorable

Court that the judgment on the pleadings be rendered in the present case.
Other relief and remedies as may be deemed just and equitable under the premises are
likewise prayed for.

RULE 35

407
 SUMMARY JUDGMENTS

Section 1. Summary judgment for claimant. — A party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the
pleading in answer thereto has been served, move with supporting affidavits, depositions or
admissions for a summary judgment in his OR HER favor upon all or any part thereof.

Nature of Summary Judgment

A summary judgment, also called accelerated judgment, is proper where, upon a motion
filed after the issues has been joined and on the basis of the pleadings and papers filed, the
court finds that there is no GENUINE ISSUE as to any material fact excepts as to the amount of
damages (Ley Construction and Development Corporation v. Union Bank of the Philippines, 334
SCRA 443)

What triggers a summary judgment is the absence of a genuine issue. It is not proper
where there are FACTUAL ISSUES to be resolved by the presentation of evidence. Even if there
is a complicated question of law if there is no issue as to the facts, a summary judgment is not
barred.

A “GENUINE ISSUE” is an ISSUE OF FACT which requires the presentation of evidence as

distinguished from a sham, fictitious, contrived or false claim. When the facts as pleaded
appear uncontested or undisputed, then there is no real or genuine issue or question as to the
facts, and summary judgment is called for. The party who moves for summary judgment has the
burden of demonstrating clearly the absence of any genuine issue of fact, or that the issue
posed in the complaint is patently unsubstantial so as not constitute a genuine issue for trial.

The trial court cannot motu proprio decide that summary judgment on an action in an
order. Under the applicable provision of Rule 35, the defending party or the claimant, as the
case may be, must invoke the rule on summary judgment by filing a motion. The adverse party
must be notified of the motion for summary judgment and furnished with supporting affidavits,
depositions or admissions before hearing is conducted. More importantly, a summary judgment
is permitted only if there is no genuine issue as to any material fact and a moving party is
entitled to a judgment as a matter of law (Pineda v. Heirs of Eliseo Guevarra, 515 SCRA 627).
(The pronouncement of the Supreme Court in this case is no longer controlling, in view of the
amendments introduced by the 2019 Rules on Civil Procedure)
Rule 18, Section. 10. Judgment after pre-trial.

Should there be no more controverted facts, or no more genuine issue as to any

material fact, or an absence of any issue, or should the answer fail to tender an issue, the court
shall, without prejudice to a party moving for judgment on the pleadings under Rule 34 or
summary judgment under Rule 35, motu proprio include in the pre-trial order that the case be

408
submitted for summary judgment or judgment on the pleadings, without need of position
papers or memoranda. In such cases, judgment shall be rendered within ninety (90) calendar
days from termination of the pre-trial.

The order of the court to submit the case for judgment pursuant to this Rule shall not be
the subject to appeal or certiorari. “(n)

When can a summary judgment be filed by the claimant? (Sec. 1, Rule 35)

A party may, at any time after the pleading in answer thereto has been served, move
with supporting affidavits, deposition or admissions for summary judgment in his favor upon all
or any part thereof seeking to recover upon:
(a) A claim;
(b) Counterclaim;
(c) Cross-claim;
(d) To obtain a declaratory relief

Either the claimant or the defending party may file a motion for summary judgment. If it
is the claiming party who files the motion, the filing must be done after an answer to his
pleading has been filed.
What are the requirements for a summary judgment?
The requirements for summary judgment are as follows, to wit:
1. The motion shall be served at least five (5) CALENDAR days before the time specified for
the hearing;
2. The adverse party may serve opposing affidavits, depositions, or admissions at least
three (3) CALENDAR days before the hearing;
3. After the hearing, the judgment sought shall be rendered forthwith if the pleadings,
supporting affidavits, depositions, and admissions on file, show that, except as to the
amount of damages, there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.

Example 1:

In an action for foreclosure of mortgage, the material issues are the existence of the
debt and its demandability. When the defendant admits the existence of the debt and raises an
issue as to the demandability of the debt or the interest rate involved because of an alleged
contemporaneous agreement between the parties, the issue tendered is sham, fictitious, or
patently unsubstantial. Upon order issued by the court, or on motion of either party, a
summary judgment would be proper because there is no genuine issue.

409
Example 2:

In an action for a sum of money, where the debt and the fact of its non-payment is
admitted and the only issue raised is the rate of interest or the damages payable, there is no
genuine issue and a summary judgment may be rendered upon proper motion.

Example 3:

John says that Linda ran a red light and caused the accident. John happens to have a
video of Linda running the red light and crashing into him. John’s attorney files a motion for
summary judgment claiming that: There are no material facts that can be reasonably disputed.

BAR 1986

Cuartana filed an action against Perana for the recovery of P30, 000. 00. Cuartana
annexed to the complaint Perana’s promissory note acknowledging the indebtedness and
alleged that the indebtedness remains unpaid. For failure of Perana to deny under oath the
promissory note, Cuartana moved for summary judgment. Perana opposed the motion on the
ground that non-payment of an indebtedness is a negative allegation of the right upon which
the cause of action is based; that it must, therefore be proved; and that presentation of
evidence is essential. Rule on the motion giving your reasons.

Suggested answer

The motion should be denied. A summary judgment is proper only when there is no
genuine issue, i.e., a scrutiny of the facts will disclose that the issue presented need not be tried
either because they are patently devoid of substance or that there is no genuine issue as to any
pertinent fact. The failure to specifically deny the promissory note under oath, merely has the
effect of an implied admission of the genuineness and due execution of the promissory note
but did not involve the admission of the debt. There is therefore, a genuine, triable issue which
negates the propriety of a summary judgment.

Section 2. Summary judgment for defending party. — A party against whom a claim,
counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time,
move with supporting affidavits, depositions or admissions for a summary judgment in his OR
HER favor as to all or any part thereof.

When can a summary judgment be filed for the defending party? (Sec.2, Rule 35)
A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory
relief is sought may, at any time, move with supporting affidavits, depositions or admissions for
a summary judgment in his favor as to all or any part thereof. The defending party may file the
motion any any time.

410
Section 3. Motion and proceedings thereon. — The motion shall cite the supporting affidavits,
depositions or admissions, and the specific law relied upon. The adverse party may file a
comment and serve opposing affidavits, depositions, or admissions within a non-extendible
period of five (5) calendar days from receipt of the motion. Unless the court orders the conduct
of a hearing, judgment sought shall be rendered forthwith if the pleadings, supporting affidavits,
depositions and admissions on file, show that, except as to the amount of damages, there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.

Any action of the court on a motion for summary judgment shall not be subject of an appeal or
petition for certiorari, prohibition or mandamus. (3a)

Motion and Proceedings Thereon

Upon a motion for a summary judgment, the sole function of the court is to determine
whether or not there is an issue of fact to be tried, and any doubt as to the existence of an issue
of fact must be resolved against the movant. If the defense relied upon by the defendant is
legally sufficient and does not appear patently sham, the motion for summary judgment must
be denied (Garcia v. Court of Appeals, 336 SCRA 475)

For instance, if the plaintiff files a motion for summary judgment, he had to attach in his
motion supporting papers and documents such as affidavits, depositions, admission,
documents, as well as the specific law/s he relied upon. A copy of this motion shall be serves
upon the other party or opposing party, who, within a non-extendible period of five (5)
calendars from receipt thereof, will file his comment attachinh therewith his opposing
affidavits, depositions and admissions. If the court determines that based on the affidavits,
depositions and admission as well as other papers or document filed by the parties, there is no
genuine issue/s as to material facts, the court shall render summary judgment.

BAR 1996

A’s motion for summary judgment was granted by the Regional Trial Court but was
reversed by the Court of Appeals on the ground that A made no effort to adduce testimonial
evidence in addition to his affidavits to prove absence of any genuine issue as to any material
fact.

Suggested answer:

The reason for reversal is not correct. Testimonial evidence is not required to establish
the absence of a genuine issue in a case. Whether there is a genuine issue or not may be
determined by the admissions, documents, depositions, affidavits and/or countet-affidavits
submitted by the parties (Narra Integrated Corporation v. Court of Appeals, G.R. No. 137915,
November 15, 2000; Sec. 3, Rule of Rules of Court).

411
Section 4. Case not fully adjudicated on motion. — If on motion under this Rule, judgment is not
rendered upon the whole case or for all the reliefs sought and a trial is necessary, the court may,
by examining the pleadings and the evidence before it and by interrogating counsel, ascertain
what material facts exist without substantial controversy, including the extent to which the
amount of damages or other relief is not in controversy, and direct such further proceedings in
the action as are just. The facts so ascertained shall be deemed established, and the trial shall be
conducted on the controverted facts accordingly.

Case not fully adjudicated on motion.

If on motion under this Rule, judgment is not rendered upon the whole case or for all
the reliefs sought and a trial is necessary, the court at the hearing of the motion, by examining
the pleadings and the evidence before it and by interrogating counsel shall ascertain what
material facts exist without substantial controversy and what are actually and in good faith
controverted. It shall thereupon make an order specifying the facts that appear without
substantial controversy, including the extent to which the amount of damages or other relief is
not in controversy, and directing such further proceedings in the action as are just. The facts so
specified shall be deemed established, and the trial shall be conducted on the controverted
facts accordingly.

Section 5. Form of affidavits and supporting papers. — Supporting and opposing affidavits
shall be made on personal knowledge, shall set 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. Certified true copies of all papers or parts thereof referred to in the affidavit
shall be attached thereto or served therewith.

Form of affidavits and supporting papers.

Supporting and opposing affidavits shall be made on personal knowledge, shall set 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. Certified true copies of all papers or parts
thereof referred to in the affidavit shall be attached thereto or served therewith.

Section 6. Affidavits in bad faith. — Should it appear to its satisfaction at any time that any of
the affidavits presented pursuant to this Rule are presented in bad faith, or solely for the
purpose of delay, the court shall forthwith order the offending party or counsel to pay to the
other party the amount of the reasonable expenses which the filing of the affidavits caused
him OR HER to incur including attorney's fees, it may, after hearing further adjudge the
offending party or counsel guilty of contempt.

Affidavits in bad faith.

Should it appear to its satisfaction at any time that any of the affidavits presented
pursuant to this Rule are presented in bad faith, or solely for the purpose of delay, the court

412
shall forthwith order the offending party or counsel to pay to the other party the amount of the
reasonable expenses which the filing of the affidavits caused him to incur including attorney's
fees, it may, after hearing further adjudge the offending party or counsel guilty of contempt.

Distinctions between a Judgment on the Pleadings and a Summary Judgment(BAR 1989)

1. In a judgment on the pleadings there is an absence of a factual issue in the case because
the answer tenders no issue at all. A summary judgment involves an issue, but the issue
is not genuine. In a summary judgment, the issue is only as to the amount of damages,
but not as to any material fact.
2. A motion for judgment on the pleadings is filed by a claiming party like plaintiff or a
counterclaimant. A motion for summary judgment may be filed by either the plaintiff or
claiming or the defending party.
3. A judgment on the pleadings is based on the pleadings alone. A summary judgment is
based on the pleadings, affidavits, depositions and admissions.
4. Only a three-day notice to the adverse party is required prior to the date of hearing in a
motion for judgment on the pleadings based on the regular rules on motions. A five (5)
calendar day notice to the adverse is required in a motion for summary judgment. The
adverse party in turn may serve opposing affidavits, depositions or admissions at least
three days before the hearing.

Sample form
MOTION FOR SUMMARY JUDGMENT
COMES NOW, the defendant, through the undersigned counsel and unto this Honorable
Court, most respectfully alleges:
1. That upon the complaint, answer, Partial Compromise Agreement by defendants
and plaintiff assisted by their respective counsel, recognizing among others that
plaintiff is entitled to the one-third (1/3) portion of the subject lot as part of his
legitime over the estate of their deceased mother, Trinidad A. Reyes and as
indicated in the location Sketch prepared by the defendants and submitted before
this Honorable Court, there is no genuine issue as to any material fact of the case;
2. That with respect to the rentals collected by the defendants, it was also agreed by
the parties during the Pre-trial Conference of the case, that the computation shall be
made from May 26, 1998 up to December 31, 2001 in order to simplify the
computation and the proceedings, and in which case being the compulsory heir of
Trinidad A. Reyes, plaintiff is entitled to the one-third (1/3) portion of the collected
rentals of the defendants.
3. That plaintiff entitled to a judgment as a matter of law. This is but consonance with
Sections 1 and 3, Rule 35 of the 1997 Rules of Civil Procedure, and the following
rulings of the Honorable Supreme Court, to wit:

413
 WHEREFORE, premises considered, it is most respectfully prayed of this Honorable
Court that a summary judgment be rendered in the present case.
Other relief and remedies as may be deemed just and equitable under the premises are
likewise prayed for.
RULE 144
EFFECTIVENESS

These rules shall take effect on January 1, 1964. They shall govern all cases brought after
they take effect, and also all further proceedings in cases then pending, except to the extent that
in the opinion of the court, their application would not be feasible or would work injustice, in
which even the former procedure shall apply.

The 2019 Proposed Amendments to the 1997 Rules of Civil Procedure shall govern all
cases filed after their effectivity on May 1, 2020, and also all pending proceedings, except to the
extent that in the opinion of the court, their application would not be feasible or would work
injustice, in which case the procedure under which the cases were filed shall govern. (n)

The application and adherence to the said amendments shall be subject to periodic
monitoring by the Sub-Committee, through the Office of the Court Administrator (OCA). For
this purpose, all courts covered by the said amendments shall accomplish and submit a periodic
report of data in a form to be generated and distributed by the OCA. (n)

All rules, resolutions, regulations or circulars of the Supreme Court or parts thereof that
are inconsistent with any provision of the said amendments are hereby deemed repealed or
modified accordingly.

RULE 36

JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF

Section 1. Rendition of judgments and final orders. — A judgment or final order determining
the merits of the case shall be in WRITING PERSONALLY and DIRECTLY prepared by the judge,

414
stating clearly and distinctly the facts and the law on which it is based, signed by him, and
filed with the clerk of the court.

Meaning of Judgment

A judgment is the final ruling by a court of competent jurisdiction regarding the rights or
other matters submitted to it in an action or proceeding. A judgment is the court’s official and
final consideration and determination of the respective rights and obligations of the parties.
Requisites of a valid judgment.
For a judgment to be valid, the following requisites must exist:
1. The court or tribunal must be clothed with authority to hear and determine the matter
before it;
2. The court must have jurisdiction over the parties and the subject matter;
3. The parties must have been given an opportunity to adduce evidence in their behalf;
4. The evidence must have been considered by the tribunal in deciding the case;
5. The judgment must be in writing, personally and directly prepared by the judge;
6. The judgment must state clearly the facts and the law on which it is based, signed by the
judge and filed with the clerk of court.

Types or Kinds of Judgment

Under both jurisprudence and the Rules, the following are the generally accepted kinds
of judgments:
(a) Judgment upon a compromise;
(b) Judgment upon confession;
(c) Judgment upon the merits;
(d) Clarificatory judgment;
(e) Judgment non pro tunc;
(f) Judgment sin perjuicio;
(g) Judgment by default;
(h) Judgment on the pleadings;
(i) Summary judgment;
(j) Several judgment;
(k) Special judgment;
(l) Specific judgment;
(n) Judgment for specific acts;
(o) Conditional judgment; and
(p) Final judgment

415
 1. A judgment upon a compromise – is one rendered by the court on the basis of a
compromise agreement entered into between the parties to an action.
2. A judgment upon a confession – is one rendered by the court when a party expressly
agrees to the other party’s claim or acknowledges the validity of the claim against him.
3. A judgment upon the merits – is one that is rendered after consideration of the
evidence submitted by the parties during the trial of the case.
4. A clarificatory judgment – is one rendered to clarify an ambiguous judgment or one that
is difficult to comply with.
5. A judgment non pro tunc (literally, now for then), is a judgment intended to enter into
the record acts which had already been done, but which do not appear in the records.
6. A judgment by default – is one rendered by a court after a defendant has been declared
in default for failure to file an answer within the time required.
7. A judgment on the pleadings – is a judgment rendered by the court if the answer fails to
tender an issue, or otherwise admits the material allegations of the adverse party’s
pleading.
8. A summary judgment – is one rendered by the court, upon motion by either the plaintiff
or the defendant, if it appears from the pleadings, depositions and affidavit that there
are no genuine issues as to any pertinent facts hence, no serious controversy.
9. A several judgment – is one rendered by a court against one or more several defendants
and not against all of them leaving the action to proceed against the others.
10. A separate judgment – is one rendered disposing of a claim among several others
presented in a case after a determination of the issues material to a particular claim and
all counterclaims arising out of the transactions or occurrence, which is the subject
matter of said claim.
11. A special judgment – is one rendered by the court, which requires the performance of
an act other than the payment of money or the delivery and conveyance of property
and other specific acts.
12. A judgment for specific acts – is one that requires a party to convey or deliver deeds
creating title, to sell real or personal property, to deliver or to make restitution of real
property, to remove improvements on property subject of execution to deliver personal
property.
13. A judgment on demurrer to evidence – is one rendered by the court dismissing a case,
upon motion by the defendant on the ground that upon the facts presented and the law
on the matter, the plaintiff has not shown any right to relief.
14. A conditional judgment – is one the effectivity of which depends upon the occurrence
or the non-occurrence of an event. Such a judgment is generally void because of the
absence of any disposition.

Section 2. Entry of judgments and final orders. — If no appeal or motion for new trial or
reconsideration is filed within the time provided in these Rules, the judgment or final order
shall forthwith be entered by the clerk in the BOOK OF ENTRIES OF JUDGMENTS. The date of
finality of the judgment or final order shall be deemed to be the date of its entry. The record

416
shall contain the dispositive part of the judgment or final order and shall be signed by the
clerk, within a certification that such judgment or final order has become final and executory.

Entry of judgments and final orders.

If no appeal or motion for new trial or reconsideration is filed within the time provided
in these Rules, the judgment or final order shall forthwith be entered by the clerk in the book of
entries of judgments. The date of finality of the judgment or final order shall be deemed to be
the date of its entry. The record shall contain the dispositive part of the judgment or final order
and shall be signed by the clerk, within a certificate that such judgment or final order has
become final and executory.

In other words, the judgment or final order shall be entered forthwith by the Clerk of
Court in the book of entries of final judgments if no appeal or motion for new trial or
reconsideration is filed within the time provided in the Rules of Court. The date of the finality of
the judgment or final order shall be deemed to be the date of entry. The record shall contain
the dispositive part of the judgment or final order and shall be signed by the Clerk of Court with
a certificate that said judgment or final order has become final and executor (Sec. 2, Rule 36,
Rules of Court)

Importance of Date of Entry of Judgment

The date of the entry of judgment is important in the reckoning of the periods within
which certain acts are to be done. A petition for relief from judgment should be filed within six
(6) months from the entry of the judgment (Sec. 3, Rule 38, Rules of Court). A motion for
execution of a judgment should be filed within five (5) years from the date of its entry (Sec. 6,
Rule 39, Rules of Court).

Final Judgment

The term final judgment may be used in TWO SENSES. In the FIRST, it refers to a
judgment that disposes of a case in a manner that leaves nothing more to be done by the court
in respect thereto. Once rendered the task of the court is ended as afar as deciding the
controversy is concerned except to await for the next move of a party such as the filing of a
motion for new trial, a motion for reconsideration or the taking of an appeal (Denso Phils. Inc.
vs. Intermediare Appellate Court, 148 SCRA 280). A final judgment has the effect of ending the
litigation in a given cause of action.

In SECOND sense, the word final judgment may also refer to one that is already capable
of being executed because the period for appeal has elapsed without a pary having perfected
and appeal. In this sense, it is a judgment or order from which a party can no longer appeal
because the period to do so has elapsed or because the judgment has been affirmed by the
highest possible tribunal. Under Sec. 1, Rule 39 of the Rules of Court, execution of this
judgment shall, on motion, issue as a matter of right.

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Effect of a Final and Executory Judgment

Once a judgment has become final and executor, no appeal can be taken therefrom or
from any other subsequent orders and the execution thereof becomes a matter of right (Yap vs.
Tanada, G.R. No. L – 32617, July 18, 1998). The issuance of a writ of execution becomes a
ministerial duty of the court (Buaya v. Stronghold Insurance Co., Inc., 342 SCRA 576).

A final and executory order can no longer be disturbed or reopened no matter how
erroneous it may be. Although judicial determinations are not infallible, judicial error should be
corrected through appeals, not through repeated suits on the same claim. Public policy and
sound practice demands that, at the risk of occasional errors, judgments of courts must at some
point of time fixed by law become final otherwise there would be no end to litigation (Dorotheo
vs. Court of Appeals, G.R. No. 108581, December 8, 1999).

A judgment which has acquired finality becomes IMMUTABLE and UNALTERABLE,

hence, may no longer be modified in any respect except to correct clerical errors or mistakes,
all the issues between the parties being deemed resolved and laid to rest (Ram’s Studio and
Photographic Equipment, Inc. vs. Court of Appeals, G.R. No. 134888, December 1, 2000).

Section 3. Judgment for or against one or more of several parties. — Judgment may be given
for or against one or more of several plaintiffs and for or against one or more of several
defendants. When justice so demands, the court may require the parties on each side to file
adversary pleadings as between themselves and determine their ultimate rights and
obligations.

Judgment for or against one or more of several parties.

Judgment may be given for or against one or more of several plaintiffs and for or against
one or more of several defendants. When justice so demands, the court may require the parties
on each side to file adversary pleadings as between themselves and determine their ultimate
rights and obligations.

Example 1

In a case for collection of sum of money involving three (3) defendants, the court may
decide the case against one or two of the several defendant/s and absolve the other
defendant/s.

Example 2

In a case for breach of contract of carriage involving a passenger bus filed by a

passenger who got injured when the bus figured in an accident, against the driver and the

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operator, the court may absolve the driver and ruled against the operator, or it may decide
absolving the operator and ruled against the driver.

Section 4. Several judgments. — In an action against several defendants, the court may, when
a several judgment is proper, render judgment against one or more of them, leaving the
action to proceed against the others.

A several judgment – is one rendered by a court against one or more several defendants and
not against all of them leaving the action to proceed against the others.

Several judgments.

In an action against several defendants, the court may, when a several judgment is
proper, render judgment against one or more of them, leaving the action to proceed against
the others.

A Several Judgment is one rendered by a court against one or more several defendants
and not against all of them leaving the action to proceed against the others. This kind of
judgment may be rendered only when the interests of the parties to a case have separate
interests as when several defendants are jointly and severally liable on a promissory note. In
joint obligation, the credit or debt is divided into as many equal shares as there are creditors or
debtors, the credits or debts being considered distinct from one another (Art. 1208, Civil Code
of the Philippines).

A several judgment is proper only when the liability of each party is clearly separable
and distinct from that of his co- parties, such that the claims against each of them will not
necessarily affect the other.

Example 1

If A and B promise jointly and severally to pay P100, 000. 00 to C, then they are together
under an obligation to pay P100, 000. 00 to C, but they are also individually under an obligation
to pay the money to C. Performance by A or B to pay C the entire amount of P100, 000. 00,
discharges the obligation.

Example 2

Two drunk drivers are racing down the road and one of the drivers hit a pedestrian. The
two drunk drivers would most likely be held liable for hurting the pedestrian because both of
their actions caused the accident. Joint and several liability makes every defendant liable for
the entirety of the plaintiff’s loss, regardless of each defendant’s degree of fault.

Section 5. Separate judgments. — When more than one claim for relief is presented in an
action, the court, at any stage, upon a determination of the issues material to a particular

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claim and all counterclaims arising out of the transaction or occurrence which is the subject
matter of the claim, may render a separate judgment disposing of such claim. The judgment
shall terminate the action with respect to the claim so disposed of and the action shall
proceed as to the remaining claims. In case a separate judgment is rendered the court by
order may stay its enforcement until the rendition of a subsequent judgment or judgments
and may prescribe such conditions as may be necessary to secure the benefit thereof to the
party in whose favor the judgment is rendered.

Separate judgments.

A separate judgment – is one rendered disposing of a claim among several others

presented in a case after a determination of the issues material to a particular claim and all
counterclaims arising out of the transactions or occurrence, which is the subject matter of said
claim.

When more than one claim for relief is presented in an action, the court, at any stage,
upon a determination of the issues material to a particular claim and all counterclaims arising
out of the transaction or occurrence which is the subject matter of the claim, may render a
separate judgment disposing of such claim. The judgment shall terminate the action with
respect to the claim so disposed of and the action shall proceed as to the remaining claims. In
case a separate judgment is rendered the court by order may stay its enforcement until the
rendition of a subsequent judgment or judgments and may prescribe such conditions as may be
necessary to secure the benefit thereof to the party in whose favor the judgment is rendered.
(Dean Riano)

A separate judgment is one rendered disposing of a claim among several others

presented in a case after a determination of the issues material to a particular claim and all
counterclaims arising out of the transactions or occurrence, which is the subject matter of said
claim.

This kind of judgment presupposes that there are several claims for relief presented in
an action, as when aside from the original claim of the original defendant, there is a
counterclaim, a cross-claim or some other claims by the various parties to the case. The court is
authorized under the circumstances to render a separate judgment disposing of a claim, or
counterclaim, or a cross claim. The court however, may stay the execution of a separate
judgment rendered until judgment is rendered on all the claims (Sec. 5, Rule 36, Rules of Court).

For instance, in the case for sum of money, the defendant in his answer, claimed that it
was the plaintiff who actually owed him money and at the same time asked for counterclaim.
Based on the foregoing provision, the court may render separate judgment on the claim of the
defendant that it was the plaintiff who owed him money, and trial should proceed on the
defendant’s counterclaim.

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Section 6. Judgment against entity without juridical personality. — When judgment is
rendered against two or more persons sued as an entity without juridical personality, the
judgment shall set out their individual or proper names, if known.

Judgment against entity without juridical personality.

When judgment is rendered against two or more persons sued as an entity without
juridical personality, the judgment shall set out their individual or proper names, if known.

Sec. of Rule 36 has reference to Sec. 15 of Rule 3. Under the latter provision, when two
or more persons who are not organized as an entity with a juridical personality, and they enter
into a transaction under the name for which they are commonly known, they may be sued
under the said name. In the answer, the names and addresses of the persons composing said
entity must all be revealed.

Thus if Mr A, Mr B and Mr C transact business under the name Queen Quest, they may
be sued under said name even if the entity under which they conduct business has no juridical
personality. The rule does not however, authorize them to sue under the name Ocean Quest. In
their answer, they must reveal their names and addresses. If judgment is rendered against Mr.
A, Mr. B and Mr. C, the judgment shall set out their individual names because they are the ones
actually liable to the plaintiff since Ocean Quest does not have a personality of its own separate
and distinct from the personalities of the persons transacting business under said common
name. (Dean Riano)

Conflict between the dispositive portion and body of the decision

A judgment has two (2) parts, namely, (a) the body of the judgment or the ratio
decidendi, and (b) the dispositive portion of the judgment or the fallo. The body of the decision
called the ratio decidendi is not the part of the judgment that is subject to execution but the
fallo because it is the latter which is the judgment of the court.
The general rule is that where there is a conflict between the dispositive portion or the
fallo of the decision and the body of the decision, the fallo controls. This rule rests on the
theory that the fallo is the final order while the opinion in the body is merely a statement
ordering nothing. However, where the inevitable conclusion from the body of the decision is so
clear that there was a mere mistake in the dispositive portion, the body of the decision will
prevail. (So vs. Food Fest Lan Inc., 642 SCRA 592, February 9, 2011)

Ambiguity in the judgment; clarificatory judgment

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 Where the judgment is difficult to execute because of ambiguity in its terms, it is
suggested that the remedy to avail of is to have the court remove the ambiguity by the filing of
a motion for a clarificatory judgment and not to assail the judgment as void.
Interlocutory Orders
The word interlocutory refers to something intervening between the commencement
and the end of the suit which decides some point or matter but is not a final decision of whole
controversy. Interlocutory orders are those that determine incidental matters that do not
touch on the merits of the case or put an end to the proceedings.
Examples: An order denying a motion to dismiss, and order granting an extension of
time to file a pleading, or one authorizing an amendment thereof, or granting or denying
applications for postponement or inspection of documents, are interlocutory orders.
Questioning Interlocutory Orders
The proper remedy to question an improvident interlocutory order is a petition for
certiorari under Rule 65, not Rule 45. A petition for review under Rule 45 is the proper mode of
redress to question only final judgments. One cannot appeal from an interlocutory order.
Permitting appeals on such an order may result in multiplicity of appeals in a single action, thus,
prolonging the action.
Period within which to render a decision
All cases filed must be decided or resolved by the Supreme Court within twenty four
(24) months from the date of their submission for decision, and unless reduced by the Supreme
Court, within twelve (12) months for all lower collegiate courts and three (3) months for all
other lower courts. A case is deemed submitted for resolution upon the filing of the last
pleading, brief, or memorandum required by the Rules of Court or by the court.
The ninety (90) day period for deciding the case commences from the submission of the
case for decision without memoranda. In case the court requires or allows its filing, the case
shall be considered submitted for decision upon the filing of the last memorandum, or the
expiration of the period to do so, whichever is earlier. An extension of the period may be
set by the Supreme Court within which to decide a case upon request by the judge concerned
on account of heavy caseload or by other reasonable excuse. Without an extension granted by
the court, a delay in the disposition of cases is tantamount to gross inefficiency on the part of
the judge. (Arap vs. Mustafa, 379 SCRA 1)
Judgment penned by a judge who did not hear the evidence.
It is not necessary that the judge who heard the evidence be the same judge who shall
pen the decision. The judge trying the case may die, resign, be disabled or transferred to
another court. In such an eventuality, another judge has to continue and finish the trial. The

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succeeding judge can examine and evaluate the evidence already presented by the simple
expedient of going over the transcript s of the testimony of the witnesses in the same manner
as appellate courts review the evidence or record.
Judgment penned by a judge who had ceased to be a judge.
A decision penned by a judge after his retirement cannot be validly promulgated and
cannot acquire a binding effect. In like manner, a decision penned by a judge during his
incumbency cannot be validly promulgated after his retirement. When a judge retires, all his
authority to decide any case i.e., to write, to sign and promulgate the decision has also
“retired.”
Judgment of the Supreme Court
The decision of the Supreme Court form part of the legal system. Hence, every court
must take cognizance of the decisions of the Supreme Court. Said decisions are proper subjects
of mandatory judicial notice. Members of the bench have a responsibility to know and to apply
the latest holdings of the Supreme Court.
Rule of stare decisis
The principle of stare decisis et non quieta movere holds that a point of law, once
established by the court, will generally be followed by the same court and by all courts of lower
rank in subsequent cases involving a similar legal issue. This proceeds from the legal principle
that, in the absence of powerful countervailing considerations, like cases ought to be decided
alike.
What is an Obiter dictum
An obiter dictum is an opinion expressed by a court, which is not necessary to the
decision of the case before it. It is neither enforceable as a relief nor a source of a judicially
actionable claim. It is a remark made, or opinion expressed by a judge in his decision upon a
case, that is, incidentally or collaterally, and not directly upon the question before him, or upon
a point not necessarily involved in the determination of the cause, or introduced by way of
illustration, or analogy or argument.
When a judgment becomes final
The term “final” when used to describe a judgment may be used in two senses. In the
first, it refers to a judgment that disposes of a case in a manner that leaves nothing more to be
done by the court in respect thereto. In this sense, a final judgment is distinguished from an
interlocutory order which does not finally terminate or dispose of the case.
By implication from Sec. 1 of Rule 39, the word “final” may refer to a judgment that is
no longer appealable and is already capable of being executed because the period for appeal
has elapsed without a party having perfected an appeal or if there has been no appeal, it has

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already been resolved by a highest tribunal. In this sense, the judgment is commonly referred
to as one that is “final and executor.”
Conclusiveness of judgments (immutability of judgments)
Under the doctrine of conclusiveness of judgment or immutability of judgments, a
judgment that has attained finality can no longer be disturbed.
As a rule, a final judgment may no longer be altered, amended, or modified, even if the
alteration, amendment or modification is meant to correct what is perceived to be an
erroneous conclusion of fact or law and regardless of what court, be it the highest court of the
land, rendered it. Litigation must end and terminate sometime and somewhere, and it is
essential to an effective administration of justice that once a judgment has become final, the
issue or cause involved therein should be laid to rest. The basic rule of finality of judgment is
grounded on the fundamental principle of public policy and sound practice that at the risk of
occasional error, the judgment of courts and the award of quasi-judicial agencies must become
final at dome definite date fixed by law.

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 RULE 39

EXECUTION, SATISFACTION AND EFFECTS OF JUDGMENTS

Section 1. Execution upon judgments or final orders. — Execution shall issue as a matter of
right, on motion, upon a judgment or order that disposes of the action or proceeding upon
the expiration of the period to appeal therefrom if no appeal has been duly perfected.

If the appeal has been duly perfected and finally resolved, the execution may forthwith be
applied for in the court of origin, on motion of the judgment obligee, submitting therewith
certified true copies of the judgment or judgments or final order or orders sought to be
enforced and of the entry thereof, with notice to the adverse party.

The appellate court may, on motion in the same case, when the interest of justice so requires,
direct the court of origin to issue the writ of execution.

Meaning of Execution
Execution is the remedy afforded for the satisfaction of a judgment. Its object being to
obtain satisfaction of the judgment on which the writs is issued. It is the fruit and end of the
suit and is the life of the law. Execution is the fruit and end of the suit and is the life of law. A
judgment left unexecuted is nothing but an empty victory for the prevailing party.
KINDS OF EXECUTION:
Execution may be classified into the following:
1. Execution as a MATTER OF RIGHT or MINISTERIAL execution (Sec. 1, Rule 39, Rules of
Court); and
2. DISCRETIONARY execution or execution pending appeal (Sec. 2, Rule 39)
Part of the judgment to be executed
The dispositive portion (also called “fallo”) of the judgment is that part which is subject
to execution under Rule 39 of the Rules of Court.
When execution shall issue:
Execution is a MATTER OF RIGHT upon the expiration of the period to appeal and no
appeal was perfected from a judgment or order that disposes of the action or proceeding. Once
a judgment becomes final and executory, the prevailing party can have it executed as a matter
of right, and the issuance of a writ of execution becomes the MINISTERIAL DUTY of the court.
Sec. 1, rule 39 of the 1997 Rules of Civil Procedure provides for the rule on execution as
a matter of right of judgments or final orders. It states that:

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 “Sec. 1. Execution upon judgments or final orders. – Execution shall issue as a matter of
right, on motion, upon a judgment or order that disposes of the action or proceeding upon the
expiration of the period to appeal therefrom if no appeal has been duly perfected.
If the appeal has been duly perfected and finally resolved, the execution may forthwith
be applied for in the court of origin, on motion of the judgment obligee, submitting therewith
certified true copies of the judgment or judgments or final order or orders sought to be
enforced and of the entry thereof, with notice to the adverse party.
The appellate court may, on motion in the same case, when the interest of justice so
requires, direct the court of origin to issue the writ of execution.”
How execution shall issue:
“Execution shall issue . . . on motion” as clearly set forth under Sec. 1 of Rule 39. There is
therefore, a need to file a motion before the issuance of a writ of execution.
In Lou v. Siapno, 335 SCRA 181, the Court declared that even in judgments which are
immediately executory, “there must be a motion to that effect and a hearing called for the
purpose.” Also, “under Supreme Court Administrative Matter, must contain a notice to the
adverse party”
Although execution is a matter of right when the judgment becomes final and
executory, a motion for execution is still required. In other words, the prevailing party is
required to invoke the right to execute the judgment in his favour. There is nothing in the rule,
which authorizes the court to motu proprio order or issue a writ of execution without the
requisite motion. A motion for the issuance of a writ of execution shall contain a notice to
the adverse party. And a motion which does not contain a notice of hearing of the time and
place for the hearing of the motion as required by Secs. 4 and 5 of Rule 15 of the Rules of Court,
is a worthless piece of paper which the court has no authority to act upon (Pallada v. RTC of
Kalibo, Aklan, 304 SCRA 440).
Take Note
It appears that the aforecited provision and jurisprudence have ben modified by Section
4, Rule 15 of the 2019 Rules of Civil Procedure, which provides that:
“Section 4. Non-Litigious Motions – Motions which the court may act upon without
prejudicing the rights of adverse parties are non- litigious motions. These motions include:
a. Xxxxxxx
b. Xxxxxxxx
c. Xxxxxxxx
d. Motion for the issuance of a writ of execution;
e. Motion for the issuance of an alias wriy of execution:”

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Where application for execution made:
1. Execution shall be applied for in the COURT OF ORIGIN. If an appeal has been duly
perfected and finally resolved, the execution may be applied for also in the court of
origin on motion of the judgment obligee.
2. In filing a motion for execution of an appealed decision, there is no need to wait for
the records of the case to be remanded to the court of origin. All that is required is
for the appeal to have been duly perfected and finally resolved before execution
may be applied. This is because when the judgment obligee files a motion for
execution in the court of origin, all he has to do is to attach the certified true copies
of (a) judgment of the appellate court, and (b) the entry of the said judgment with
notice to the adverse party, even if the records have not as yet been remanded to
the court of origin.
3. If for whatever reason, execution cannot be had with dispatch in the court of origin,
the new rules likewise afford the judgment obligee a remedy. He may file a motion
with the appellate court to direct the court of origin, in the interest of justice, to
issue the writ of execution (Sec. 1, Rule 39)
No appeal from an order of execution:
NO APPEAL may be taken from an order of execution (Sec.1, Rule 41). The aggrieved
party may instead file an appropriate special civil action under Rule 65 of the Rules of Court
(Sec. 1, Rule 41).
Mandamus is available in case of execution of final and executory judgment.
A writ of mandamus lies to compel judge to issue a writ of execution when the
judgment had already become final and executory and the prevailing party is entitled to the
same as a matter of right. (FGU Insurance Corporation vs. RTC of Makati City, Branch 66, G.R.
No. 161282, February 23, 2011). Where a judgment or final order has become final and
executory, notwithstanding which the trial court refuses to issue a writ of execution by denying
the motion for execution without justifiable reason, the aggrieved party’s remedy is to file a
PETITTION FOR MANDAMUS.
Who may order execution after the trial court lost jurisdiction?
After the trial court has lost jurisdiction, the motion for execution pending appeal may
be filed in the APPELLATE COURT.
When execution will be denied
After a judgment has become final and executory, the rule is that execution becomes
the ministerial duty of the court (Fideldia v. Songcuan, 465 SCRA 218)

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 The rule, however, is far from absolute. The trial court may refuse to have the judgment
executed in certain cases, as:
1. When the judgment has already been executed by the voluntary compliance thereof
by the parties (Cunanan v. Court of Appeals, 25 SCRA 263)
2. When the judgment has been novated by the parties (Dormitorio v. Fernandez, 72
SCRA 366)
3. When a petition for relief is filed and a preliminary injunction is granted in
accordance with Sec. 5 of Rule 38. Also, when execution of the judgment is enjoined
by a higher court.
4. When the judgment sought to be executed is conditional or when the judgment
sought to be executed is incomplete.
5. When facts and circumstances transpire which would render execution inequitable
or unjust (Bachrach Corporation v. Court of Appeals, 296 SCRA 487)
6. When execution is sought is more than five (5) years from its entry without the
judgment having been revived.
7. When execution is sought against property exempt from execution under Sec. 13 of
Rule 39; or
8. When refusal to execute the judgment has become imperative in the higher interest
of justice.
Quashal of a writ of execution (BAR 2009)
It is a well-entrenched rule that the execution of final and executory judgments may no
longer be contested and prevented, and no appeal should lie therefrom. Otherwise, cases
would be interminable, and there would be negation of the overmastering need to end
litigations.
There may be instances, however, when errors may be committed prejudicial to the
rights of a party and do call for correction by a superior court. In these exceptional
circumstances, considerations of justice and equity dictate that there be some mode available
to the party aggrieved of elevating the question to a higher court. That mode of elevation may
be either by appeal (writ of error or certiorari) or by a special civil action of certiorari,
prohibition, or mandamus.
These exceptional circumstances may prevent the execution of a judgment or allow the
QUASHAL OF A WRIT OF EXECUTION already issued. Examples of these grounds are:
1. When the writ of execution varies the judgment;
2. When there has been a change in the situation of the parties making execution
inequitable or unjust;
3. When execution is sought to be enforced against property exempt from execution;

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 4. When it appears that the controversy has never been submitted to the judgment of
the court;
5. When the terms of the judgment are not clear enough and there remains room for
interpretation thereof;
6. When it appears that the writ of execution has been improvidently issued;
7. When it appears that the writ of execution is defective in substance, or is issued
against the wrong party, or that the judgment debt has been paid or otherwise
satisfied, or the writ was issued without authority.
BAR 2015
Aldrin entered into a contract to sell with Neil over a parcel of land. The contract
stipulated a P500,000.00 down payment upon signing and the balance payable in twelve (12)
monthly installments of P100,000.00. Aldrin paid the down payment and had paid three (3)
monthly installments when he found out that Neil had sold the same property to Yuri for P1.5
million paid in cash. Aldrin sued Neil for specific performance with damages with the RTC. Yuri,
with leave of court, filed an answer-in-intervention as he had already obtained a TCT in his
name. After trial, the court rendered judgment ordering Aldrin to pay all the installments due,
the cancellation of Yuri's title, and Neil to execute a deed of sale in favor of Aldrin. When the
judgment became final and executory, Aldrin paid Neil all the installments but the latter
refused to execute the deed of sale in favor of the former. Aldrin filed a "Petition for the
Issuance of a Writ of Execution" with proper notice of hearing. The petition alleged, among
others, that the decision had become final and executory and he is entitled to the issuance of
the writ of execution as a matter of right. Neil filed a motion to dismiss the petition on the
ground that it lacked the required certification against forum shopping.
a.) Should the court grant Neil's Motion to Dismiss?
Despite the issuance of the writ of execution directing Neil to execute the deed of sale
in favor of Aldrin, the former obstinately refused to execute the deed.

b.) What is Aldrin's remedy?

Suggested answers

a) No, the court should not grant Neil’s Motion to Dismiss. Under Section 5 of Rule 7, a
certification against forum shopping is required only for initiatory pleadings or petitions.

Here the “Petition for the Issuance of a Writ of Execution,” although erroneously
denominated as a petition is actually a motion for issuance of a writ of execution under Rule 39.

Hence the motion to dismiss on the ground of lack of a certification against forum
shopping should be denied.

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 b) Aldrin’s remedy is to file a motion for judgment for specific act under Section 10(a) of
Rule 39.

Under Section 10(a) of Rule 39, if a judgment directs a party to execute a conveyance of
land and the party fails to comply, the court may direct the act to be done at the disobedient
party’s cost by some other person appointed by the court or the court may by an order divest
the title of the party and vest it in the movant or other person.

Sample Form of Motion for Execution

MOTION FOR EXECUTION

COMES NOW, the plaintiff, through the undersigned counsel and unto this Honorable
Court, most avers:
1. That the Honorable Court rendered a Decision relative to the above-entitled case in
favor of the plaintiff, and received by the defendant on September 12, 2012;
2. That defendant did not appeal the said Decision, and it became final and executory;
3. That the said Decision being final and executory, it is now proper and imperative
that a writ of execution be issued to implement the said Decision.
WHEREFORE, premises considered, it is most respectfully prayed that a writ of decision be
issued to implement the said decision based on the above reasons.
MOTION TO QUASH WRIT OF EXECUTION
COMES NOW, the defendant, through the undersigned counsel and unto this Honorable
Court, most avers:
1. That the Honorable Court rendered a Decision relative to the above-entitled case in
favour of the plaintiff, and received by the defendant on February 1, 2012;
2. That the Honorable Court issued a writ of execution upon motion of the plaintiff;
3. That defendant through counsel most respectfully move that the said writ of
execution be quashed for the reason that the above-mentioned decision has already
been novated as the parties arrived at an agreement as regards the said liability of
the defendant.
WHEREFORE, premises considered, it is most respectfully prayed that a writ of
execution issued in the above-entitled case be ordered quashed.
Other relief and remedies as may be deemed just and equitable under the premises are
likewise prayed for.

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Duty of Sheriff
Well settled is the rule that a sheriff’s duty in the execution of the writ is PURELY
MINISTERIAL; he is to execute the order of the court strictly to the letter. He has no discretion
whether to execute the judgment or not. When a writ is placed in the hands of the sheriff, it is
his duty, in the absence of any instructions to the contrary, to proceed with reasonable celerity
and promptness to implement it in accordance with its mandate.

Section 2. Discretionary execution. —

(a) Execution of a judgment or final order pending appeal. — On motion of the prevailing
party with notice to the adverse party 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 such motion, said court may, in its discretion, order execution
of a judgment or final order even before the expiration of the period to appeal.

After the trial court has lost jurisdiction the motion for execution pending appeal may be filed
in the appellate court.

Discretionary execution may only issue upon good reasons to be stated in a special order
after due hearing.

(b) Execution of several, separate or partial judgments. — A several, separate or partial

judgment may be executed under the same terms and conditions as execution of a judgment
or final order pending appeal.

Discretionary Execution (BAR 1991; 1995)

1. The concept of discretionary execution constitutes an exception to the general rule
that a judgment cannot be executed before the lapse of the period for appeal or
during the pendency of an appeal. Under Sec. 1 of Rule 39, execution shall issue only
as matter of right upon a judgment or final order that finally disposes of the action
or proceeding upon the expiration of the period to appeal therefrom if no appeal
has been duly perfected.
2. A discretionary execution is called “discretionary” precisely because it is not a
matter of right. The execution of a judgment under this concept is addressed to the
discretionary power of the court. Unlike judgments that are final and executory, a
judgment subject to discretionary execution cannot be insisted upon but simply
prayed and hoped for because a discretionary execution is not a matter of right.

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REQUISITES FOR DISCRETIONARY EXECUTION
Under Sec. 2 of Rule 39, for the trial court to allow an execution even before the
expiration of the period for appeal or pending appeal, there must be compliance of the
following requisites:
(a) There must be a motion filed by the prevailing party with notice to the adverse party;
(b) There must be a hearing of the motion for discretionary execution;
(c) The motion must be 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;
(d) There must be good reasons to justify the discretionary execution; and
(e) The good reason must be stated in a special order.(Bangkok Bank v. Lee, G.R. No.
159806, January 20, 2006)
Discretionary execution is to be strictly construed:
A discretionary execution like an execution pending appeal must be strictly construed
because it is an exception to the general rule. It is not meant to be availed of routinely because
it applies only in extraordinary circumstances.
GOOD REASONS;
The existence of good reasons as justifications for discretionary execution is essential.
The good reasons are what confer discretionary power upon the court to issue a writ of
execution pending appeal.
Certiorari will lie against an order granting execution pending appeal where the same is
not founded upon good reasons.
The following, among others, have been given by jurisprudence as GOOD REASONS:
1. The insolvency of the debtors;
2. The purpose of preventing irreparable injury to the consumers of an electric cooperative
3. The fact that the good subject of the judgment will perish or deteriorate during the
pendency of the appeal;
4. The failure in an unlawful detainer case to make the required periodic deposits to cover
the amount of rentals due.
Posting of bond as reason for discretionary
The rule is now settled that the mere filing of a bond by the successful party is NOT in
itself a good reason for ordering execution pending appeal, because it is the combination of
circumstances which is the dominating reason that would justify immediate execution, the
bond being only an additional factor.

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Where to file an application for discretionary execution:
The motion for discretionary execution shall be filed with the trial court while (a) it has
jurisdiction over the case and while (b) it is in possession of either the original record or the
record on appeal. After the trial court has lost jurisdiction, the motion for execution pending
appeal may be filed in the APPELLATE COURT (Sec. 2. Rule 39)

Example 1

Section 9, Rule 41 of the Revised Rules on Civil Procedure, laying down the procedure
for appeal from the judgment or final order of the Regonal Trial Court to the Court of Appeals,
provides in substance:

“In either case, prior to the transmittal of the original record or the record on appeal,
the court may issue orders for the protection and preservation of the rights of the parties which
do not involve any matter litigated by the appeal, approve compromises, permit appeals of
indigent litigants, order execution pending appeal in accordance with 2 of Rule 39, and allow
withdrawal of the appeal.”

Example 2

Sections 19 and 21, Rule 70 of the Revised Rules of Court states:

“Section 19. Immediate execution of judgment; how to stay same. — If judgment is

rendered against the defendant, execution shall issue immediately upon motion unless an
appeal has been perfected and the defendant to stay execution files a sufficient supersedeas
bond, approved by the Municipal Trial Court and executed in favor of the plaintiff to pay the
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
rent due from time to time under the contract, if any, as determined by the judgment of the
Municipal Trial Court. In the absence of a contract, he shall deposit with the Regional Trial Court
the reasonable value of the use and occupation of the premises for the preceding month or
period at the rate determined by the judgment of the lower court on or before the tenth day of
each succeeding month or period. The supersedeas bond shall be transmitted by the Municipal
Trial Court, with the papers, to the clerk of the Regional Trial Court to which the action is
appealed.”

“Sec. 21. Immediate execution on appeal to Court of Appeals or Supreme Court. — The
judgment of the Regional Trial Court against the defendant shall be immediately executory,
without prejudice to a further appeal that may be taken therefrom.”

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Notes
1. A closer examination of the above-quoted provision reveals that said provision applies
to decision of the RTC rendered in its appellate jurisdiction, affirming the decision of the
MeTC, resolving substantive matters delving on the merits of the parties’ claim in the
ejectment case. It finds no application when RTC order dismissing respondent’s appeal
based on tec technicality like the failure of the appellant to file the required
memorandum within the period provided by law, andnot on the merits of the ejectment
case.

2. The Supreme Court holds that discretionary execution does not apply to eminent
domain proceedings. In Spouses Curata v. Philippine Ports Authority, where movants
alleged advance age as ground for their motion for discretionary execution, the Court
found the trial court to have committed grave abuse of discretion in issuing the order
granting execution pending appeal. The Court held that discretionary execution is not
applicable to expropriation proceedings.
Remedy when court issued an Order Granting Discretionary Execution
A petition for review on certiorari under Rule 45 is the proper remedy to question final
judgments, not interlocutory orders, of the Court of Appeals. We agree with the respondent
that the assailed Resolutions granting a stay of execution are interlocutory orders, therefore
Rule 45 is not the proper remedy to assail them before this Court. The proper remedy,
therefore, is by filing a Petition for Certiorari under Rule 65 of the Revised Rules of Court.
Remedy where the judgment subject of discretionary execution is reversed or annulled:
Where the executed judgment is reversed totally or partially, or annulled, on appeal or
otherwise, the trial court may, on motion, issue such orders of restitution or reparation of
damages as equity and justice may warrant under the circumstances (Sec. 5, Rule 39). There is
no need of specifying in the judgment that there should be restitution because restitution is
expressly provided for in the Rules. Said rule should apply in the absence of a disposition to the
contrary in the judgment of the appellate court.
Rule is Applicable only in Ordinary Civil Actions
It ought to be mentioned that Section 2, Rule 39 of the Rules of Court, applies to
execution pending appeal in ordinary civil actions. Simply put, it finds no application to special
civil action or special proceedings, except by analogy or in suppletory character as far as
practicable and convenient.
Section 3. Stay of discretionary execution. — Discretionary execution issued under the
preceding section may be STAYED upon approval by the proper court of a sufficient
SUPERSEDEAS BOND filed by the party against whom it is directed, conditioned upon the

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performance of the judgment or order allowed to be executed in case it shall be finally
sustained in whole or in part. The bond thus given may be proceeded against on motion with
notice to the surety.

Basic Concepts of Stay of Execution

The foregoing sections (Secton 2 and 3) mean that after the perfection of the appeal
and the transmittal of the records, the trial court loses jurisdiction over the case. Henceforth, it
may no longer grants a motion for, or issue a writ of immediate execution, to do so would be an
of abuse discretion. Section 2, Rule 39 mandates that “After the trial court has lost jurisdiction
the motion for execution pending appeal may be filed in the appellate court.” In the other
words, the appellate court is authorized by the Rules to order or to stay execution pending
appeal upon good reason. (Diesel Construction Company, Inc., vs. Jollibee Foods Corporation,
G.R. No. 136805, January 28, 2000)

Stay of discretionary execution.

Discretionary execution issued under the preceding section may be stayed upon
approval by the proper court of a sufficient supersedeas bond filed by the party against whom
it is directed, conditioned upon the performance of the judgment or order allowed to be
executed in case it shall be finally sustained in whole or in part. The bond thus given may be
proceeded against on motion with notice to the surety. )

STAY OF DISCRETIONARY EXECUTION:

Discretionary execution may be stayed by: (a) the filing of a sufficient supersedeas bond
by the party against whom the execution is directed; and (b) the approval of the supersedeas
bond by the proper court (Sec.3)

Section 4. Judgments not stayed by appeal. — Judgments in actions for INJUNCTION,

RECEIVERSHIP, ACCOUNTING and SUPPORT, and such other judgments as are now or may
hereafter be declared to be immediately executory, shall be enforceable after their rendition
and shall not, be stayed by an appeal taken therefrom, unless otherwise ordered by the trial
court. On appeal therefrom, the appellate court in its discretion may make an order
suspending, modifying, restoring or granting the injunction, receivership, accounting, or
award of support.

The stay of execution shall be upon such terms as to bond or otherwise as may be considered
proper for the security or protection of the rights of the adverse party. (4a)

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Stay of execution of a judgment; exception
1. As a rule, an appeal perfected in due time stays the execution of a judgment. There are
however, judgments, the execution of which is not stayed by a pending appeal. These
judgments may be classified into two general categories, namely:

(a) Those judgments which by express provisions of the rules are immediately executory
and are not stayed by an appeal (Sec. 4, Rule 39);
(b) Those judgments that have become the object of discretionary execution (Sec. 2,
Rule 39)
Judgments not stayed by appeal
1. The following judgments by express provisions of the Rules are immediately executory,
enforceable upon their rendition and shall not be stayed by an appeal taken therefrom:

(a) Judgment for injunction;

(b) Judgment for receivership;
(c) Judgment for accounting; and
(d) Judgment for support (Sec. 4, Rule 39)
The rule, however, that the above judgments are immediately executory and not stayed
by an appeal, is not absolute because the court is authorized to order otherwise. Also on appeal
therefrom, the appellate courts in its discretion may make an order, suspending, modifying,
restoring or granting the injunction, receivership, accounting or award of support (Sec. 4, Rule
39).
2. Under Rule 70, a judgment rendered against the defendant in an action for forcible
entry and unlawful detainer is likewise immediately executory upon motion (Sec. 19,
Rule 70)
Even if the above judgment is immediately executory, there must be a motion to that
effect and a hearing called for that purpose. In an ejectment case, the adverse paryt is entitled
to notice before execution (Lou v. siapno, 335 SCRA 181).

Section 5. Effect of reversal of executed judgment. — Where the executed judgment is

reversed totally or partially, or annulled, on appeal or otherwise, the trial court may, on
motion, issue such orders of restitution or reparation of damages as equity and justice may
warrant under the circumstances.

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Effect of reversal of executed judgment.

Where the executed judgment is reversed totally or partially, or annulled, on appeal or

otherwise, the trial court may, on motion, issue such orders of restitution or reparation of
damages as equity and justice may warrant under the circumstances.

Section 6. Execution by motion or by independent action. — A final and executory judgment

or order may be executed on MOTION within five (5) years from the date of its entry. After
the lapse of such time, and before it is barred by the statute of limitations, a judgment may
be enforced by ACTION. The revived judgment may also be enforced by motion within five (5)
years from the date of its entry and thereafter by action before it is barred by the statute of
limitations.

Modes of execution of a Final and Executory judgment (BAR 1982; 1987; 1997)
1. There are two modes of executing a final and executory judgment, to wit:

(a) Execution by motion if the enforcement of the judgment is sought within five (5)
years from the date of its entry or date of finality of the judgment; and
(b) Execution by independent action if the five-year period has elapsed and before it is
barred by the statute of limitations (Sec. 6. Rule 39)
The rule is that the court could issue a writ of execution by motion within five (5) years
from finality of the decision. A writ of execution issued after the expiration of that period is
NULL and VOID. There is a need for the interested party to file an independent civil action for
revival of judgment. The judgment may be enforced after the lapsed of this period and before
the same is barred by the statute of limitations, by instituting an ordinary civil action. The
reason is that after the lapse of the five-year period, the judgment is reduced to a mere right of
action, which judgment must be enforced, as all other ordinary actions, by the institution of a
complaint in the regular form. Such action must be filed within ten (10) years from the date
the judgment became final. (Terry vs. People, 314 SCRA 669; BAR 2007) which is no the date of
its entry.

BAR 2019

Mrs. E filed a complaint for sum of money against Mr. F in the amount of ₱1,000,000.00
before the Regional Trial Court (RTC). After due proceedings, the RTC ruled in favor of Mrs. E,
and since no appeal was interposed thereto, the ruling became final and executory as evinced
by an Entry of Judgment dated July 2, 2012. However, Mrs. E was unable to immediately move
for the execution of said judgment because she had a work engagement overseas.

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 On June 29, 2017, Mrs. E returned to the country and, on the same day, filed a motion
for the issuance of a writ of execution before the RTC. On July 7, 2017, the RTC granted the
motion, and consequently, issued a writ of execution in Mrs. E's favor.

Was the RTC's issuance of the writ of execution procedurally infirm? Explain.

Revival of judgment (BAR 1997)

An action for revival of judgment is no more than a procedural means of securing the
execution of a previous judgment which has become dormant after the passage of five years
without it being executed upon motion of the prevailing party. It is not intended to re-open any
issue affecting the merits of the judgment debtor’s case nor the propriety or correctness of the
first judgment. An action for revival of judgment is a NEW and INDEPENDENT, different and
distinct from, either the recovery of property case or the reconstitution case, wherein the cause
of action is the decision itself, and not the merits of the action upon which the judgment sought
to be enforced is rendered. Revival of judgment is premised on the assumption that the
decision to be revived is already final and executory (Saligumba vs. Palanog, 573 SCRA 8).
The action to revive a judgment must be filed within ten (10) years from the date the
judgment became final because an action to enforce a judgment prescribes in ten (10) years
from the finality of the judgment. Since the date of the finality of the judgment or final order
shall be deemed to be the date of its entry, the prescriptive period is supposed to run from the
date of entry of the judgment.
When a judgment is revived under Sec. 6 of Rule 39, such revived judgment may also be
enforced by motion within five (5) years from the date of its entry and thereafter by action also
before it is barred by the statute of limitations (Sec. 6, Rule 39).
A revived judgment is deemed a new judgment separate and distinct from the original
judgment. It is not a continuation of the original judgment. The action to revive the judgment is
a new action and results in a new judgment constituting a new cause of action with a new
period of limitations. Hence, the ten (10) year period to revive the revived judgment shall
commence to run from the date of the finality of the revived judgment and not from the date
of finality of the old, original judgment.
BAR 1987
“A” obtained a judgment against “B” for the payment of money. For failure to appeal,
the judgment became final on July 5, 1975. The writ of execution was returned unsatisfied, for
the sheriff was unable to find property of “B” subject to execution. On June 30, 1984, “A”
located some property of “B.” Whereupon, “A” immediately filed in July 1984 a motion for the
issuance of an alias writ of execution. If you were the judge, would you grant the writ? Why?

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Suggested answer
If I were the judge I would not grant the writ. The Rules of Court allow the execution of a
final and executory judgment only within five (5) years from the date of its entry (Sec. 6). Since
the date of the finality of a judgment is deemed to be the date of its entry (Sec. 2, Rule 36), the
motion for the issuance of a writ of execution filed in July 1984 is well beyond the five-year
period allowed by the Rules. The judgment may be enforced only by filing an action for the
revival of the judgment.
Venue of an action to revive a judgment:
What is the proper VENUE of an action for revival of judgments? This question was
answered in the case of Infante v. Aran Builders, Inc., 531 SCRA 123)
The court explained, thus:
“. . . the proper venue depends on the determination of whether the present action for
revival of judgment is a real action or a personal action. If the action for revival of judgment
affects title to or possession of real property, or interest therein, then it is a real action that
must be filed with the court of the place where the real property is located. If such action does
not fall under the category of real actions, it is then a personal action that may be filed with the
court of the place where the plaintiff or defendant resides . . .”
BAR 1997
A, a resident of Dagupan City, secured a favourable judgment in an ejectment case
against X, a resident of Quezon City, from the Metropolitan Trial Court of Manila. The judgment
entered on June 15, 1991, had not as yet been executed.
(a) In July 1996, A decided to enforce the judgment of the Metropolitan Trial Court of
Manila. What is the procedure to be followed by A in enforcing the judgment?
Suggested answer:
A can enforce the judgment by filing an action for the revival of the judgment. Under the
Rules, a final and executory judgment may be executed by mere motion within five (5) years
from the date of its entry. After the lapse of such time, a judgment may be enforced by action
before it is barred by the statute of limitations. The facts in the herein case disclose that more
than five (5) years have elapsed from the date of the entry of the judgment.
(b) With what court should A institute the proceedings?
Suggested answer:
A should institute the proceedings with the Regional Trial Court. Under the law, action
incapable of pecuniary estimation is within the jurisdiction of the RTC. An action for the revival
of a judgment is incapable of pecuniary estimation.

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When the five-year period is interrupted (BAR 1993)
1. While the rule is that the execution of a judgment can no longer be effected by mere
motion after five (5) years from the date of entry of the judgment, the Court in certain
instances, allowed execution of the judgment by mere motion despite the lapse of the
five –year time line. In many instances, the delays in the execution of the judgment
were through causes clearly attributable to the judgment debtor as when he employs
legal manuevers to block the enforcement of the judgment. Delays attributable to the
defendant have the effect of suspending the running of the prescriptive period for the
enforcement of the judgment.

2. The period may also be interrupted by the agreement of the parties to suspend the
enforcement of the judgment.
When the five and ten years periods do not apply:
The periods do not apply to (a) special proceedings, such as land registration and
cadastral cases, wherein the right to ask for a writ of possession does not prescribe; (b)
judgments for support which do not become dormant and which can always be executed by
motion despite lapse of the five-year period because the obligation is a continuing one and the
court never loses jurisdiction to enforce the same.

Section 7. Execution in case of death of party. — In case of the death of a party, execution
may issue or be enforced in the following manner:

(a) In case of the death of the judgment OBLIGEE, upon the application of his executor
or administrator, or successor in interest;

(b) In case of the death of the judgment OBLIGOR, against his executor or
administrator or successor in interest, if the judgment be for the recovery of real or
personal property, or the enforcement of a lien thereon;

(c) In case of the death of the 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 making the sale shall account to the corresponding
executor or administrator for any surplus in his hands.

Execution in case the judgment obligee dies:

The death of the judgment obligee will not prevent the execution of the judgment. In
case the judgment obligee dies, execution may issue upon the application of his executor,
administrator or successor in interest (Sec. 7[a], Rule 39).

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BAR 1995
In an illegal detainer case, the Municipal Trial Court ruled in favour of the plaintiff-lessor
who, not being satisfied with the increase of rentals granted him by the court, appealed praying
for further increase thereof. Defendant lessee did not appeal.
(a) Can plaintiff-lessor, as appellant, move for execution pending appeal?
Suggested answer
The plaintiff-lessor, may move for execution pending appeal. With notice to the adverse
party, the prevailing party, may move for execution pending appeal by filing the motion with
the trial court while it has jurisdiction over the case and in possession of the original record or
the record on appeal. This kind of execution, may however, issue upon good reasons. A good
reason, which the plaintiff-lessor may avail of, is the failure of the defendant-lessee to
periodically pay or deposit the amount of rentals as determined by the MTC.
(b) Can defendant-lessee, as appellee, validly resist the immediate execution of the
judgment? Explain.
Suggested answer
The defendant-lessee may validly resist the execution of the judgment by paying or
depositing the amount. This should be done to remove the justification for the execution. The
defendant-lessee should likewise file a supersedeas bond conditioned upon the performance of
the judgement (Sec. 3)
Execution in case the judgment obligor dies:
The death of the judgment obligor will not likewise prevent execution of the judgment.
In case the judgment obligor dies, execution shall still go on because under the Rules, execution
shall issue against his executor or administrator or successor in interest, if the judgment be for
the recovery of real or personal property, or the enforcement of a lien thereon (sec. 7[b], rule
39). If the death occurs after execution is actually levied upon any of his property, the same
may be sold for the satisfaction of the judgment obligations. If there be any surplus after the
sale, the officer making the sale shall account to the corresponding executor or administrator
(Sec. 7 [c], Rule 39).

Section 8. Issuance, form and contents of a writ of execution. — The writ of execution shall:
(1) issue in the name of the Republic of the Philippines from the court which granted the
motion; (2) state the name of the court, the case number and title, the dispositive part of the
subject judgment or order; and (3) require the sheriff or other proper officer to whom it is
directed to enforce the writ according to its terms, in the manner hereinafter provided:

441
 (a) If the execution be against the property of the judgment obligor, to satisfy the
judgment, with interest, out of the real or personal property of such judgment obligor;

(b) If it be against real or personal property in the hands of personal representatives,

heirs, devisees, legatees, tenants, or trustees of the judgment obligor, to satisfy the
judgment, with interest, out of such property;

(c) If it be for the sale of real or personal property to sell such property describing it,
and apply the proceeds in conformity with the judgment, the material parts of which
shall be recited in the writ of execution;

(d) If it be for the delivery of the possession of real or personal property, to deliver the
possession of the same, describing it, to the party entitled thereto, and to satisfy any
costs, damages, rents, or profits covered by the judgment out of the personal property
of the person against whom it was rendered, and if sufficient personal property
cannot be found, then out of the real property; and

(e) In all cases, the writ of execution shall specifically state the amount of the interest,
costs, damages, rents, or profits due as of the date of the issuance of the writ, aside
from the principal obligation under the judgment. For this purpose, the motion for
execution shall specify the amounts of the foregoing reliefs sought by the movant.

Form and contents of writ of execution

The writ of execution is issued in the name of the Republic of the Philippines and shall
state (a) the name of the court which granted the motion, (b) the case number and title, (c) the
dispositive portion of the the judgment or order subject of the execution, and (d) shall require
the sheriff or other proper officer to whom it is directed to enforce the writ according to its
terms.

Writ of execution should conform to the dispositive portion of the judgment

The writ of execution should conform to the dispositive portion of the decision to be
executed and the execution is void if it is in excess of and beyond the original judgment or
award for it is a settled general principle that a writ of execution must conform strictly to every
essential particulars of the judgment promulgated (Ex-Bataan Veterans Sec urity Agency Inc. v.
NLRC, 250 SCRA 418)

Section 9. Execution of judgments for money, how enforced. —

(a) Immediate payment on demand. — The officer shall enforce an execution of a

judgment for money by demanding from the judgment obligor the immediate
payment of the full amount stated in the writ of execution and all lawful fees. The
judgment obligor shall pay in CASH, CERTIFIED BANK CHECK payable to the judgment

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obligee, or any other form of payment acceptable to the latter, the amount of the
judgment debt under proper receipt directly to the judgment obligee or his authorized
representative if present at the time of payment. The lawful fees shall be handed
under proper receipt to the executing sheriff who shall turn over the said amount
within the same day to the clerk of court of the court that issued the writ.

If the judgment obligee or his authorized representative is not present to receive

payment, the judgment obligor shall deliver the aforesaid payment to the executing
sheriff. The latter shall turn over all the amounts coming into his possession within the
same day to the clerk of court of the court that issued the writ, or if the same is not
practicable, deposit said amounts to a fiduciary account in the nearest government
depository bank of the Regional Trial Court of the locality.

The clerk of said court shall thereafter arrange for the remittance of the deposit to the
account of the court that issued the writ whose clerk of court shall then deliver said
payment to the judgment obligee in satisfaction of the judgment. The excess, if any,
shall be delivered to the judgment obligor while the lawful fees shall be retained by
the clerk of court for disposition as provided by law. In no case shall the executing
sheriff demand that any payment by check be made payable to him.

(b) Satisfaction by levy. — If the judgment obligor cannot pay all or part of the
obligation in cash, certified bank check or other mode of payment acceptable to the
judgment obligee, the officer shall levy upon the properties of the judgment obligor of
every kind and nature whatsoever which may be disposed, of for value and not
otherwise exempt from execution giving the latter the option to immediately choose
which property or part thereof may be levied upon, sufficient to satisfy the judgment.
If the judgment obligor does not exercise the option, the officer shall first levy on the
personal properties, if any, and then on the real properties if the personal properties
are insufficient to answer for the judgment.

The sheriff shall sell only a sufficient portion of the personal or real property of the
judgment obligor which has been levied upon.

When there is more property of the judgment obligor than is sufficient to satisfy the
judgment and lawful fees, he must sell only so much of the personal or real property
as is sufficient to satisfy the judgment and lawful fees.

Real property, stocks, shares, debts, credits, and other personal property, or any
interest in either real or personal property, may be levied upon in like manner and
with like effect as under a writ of attachment.

(c) Garnishment of debts and credits. — The officer may levy on debts due the
judgment obligor and other credits, including bank deposits, financial interests,
royalties, commissions and other personal property not capable of manual delivery in

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 the possession or control of third parties. Levy shall be made by serving notice upon
the person owing such debts or having in his possession or control such credits to
which the judgment obligor is entitled. The garnishment shall cover only such amount
as will satisfy the judgment and all lawful fees.

The garnishee shall make a written report to the court within five (5) days from
service of the notice of garnishment stating whether or not the judgment obligor has
sufficient funds or credits to satisfy the amount of the judgment. If not, the report
shall state how much funds or credits the garnishee holds for the judgment obligor.
The garnished amount in cash, or certified bank check issued in the name of the
judgment obligee, shall be delivered directly to the judgment obligee within ten (10)
working days from service of notice on said garnishee requiring such delivery, except
the lawful fees which shall be paid directly to the court.

In the event there are two or more garnishees holding deposits or credits sufficient to
satisfy the judgment, the judgment obligor, if available, shall have the right to indicate
the garnishee or garnishees who shall be required to deliver the amount due,
otherwise, the choice shall be made by the judgment obligee.

The executing sheriff shall observe the same procedure under paragraph (a) with
respect to delivery of payment to the judgment obligee. (8a, 15a)

Execution of judgment for money

When the judgment is for money, the executing sheriff or officer shall demand from the
judgment obligor the immediate payment of the full amount in the writ of execution. Amount
to be demanded and paid shall also include all lawful fees (Sec. 9)

The payment shall be in CASH, CERTIFIED CHECK or ANY FORM OF PAYMENT acceptable
to the judgment oblige. The amount shall be paid to the judgment obligee or his authorized
representative if present at the time of payment. If neither is present, delivery of the payment
shall be made to the executing sheriff who within the same day, shall turn over the same to the
clerk of court of the court that issued the writ. If delivery to the clerk of court is not practicable,
then the executing sheriff shall deposit the payment to the fiduciary account in the nearest
depository bank of the RTC. The clerk of court shall then arrange for the delivery of the
payment to the judgment obligee. The lawful fees shall be retained by the clerk of court for
disposition as provided by law. Any excess shall be returned to the judgment obligor. Checks
issued for the satisfaction of the judgment shall be payable to the judgment obligee. In no case
shall the executing sheriff demand that any payment by check be made to him
Based on the foregoing rules, the sheriff is required first to demand from the judgment
obligor the immediate payment of the full amount stated in the writ of execution before a levy
can be made. The sheriff shall demand such payment either in cash, certified bank check or any
mode of payment that is acceptable to the judgment obligee. If the judgment obligor cannot

444
pay by these methods immediately or at once, he can exercise his option to choose which
among his personal properties can be levied upon. If he does not exercise this option, he waives
such right and the sheriff can now first levy his personal properties, if any, and then the real
properties if the personal properties are insufficient to satisfy the judgment (Villarin v.
Munasque, 568 SCRA 483)
It is evident that from the current rules that the levy by the sheriff may be done only if
the judgment obligor cannot pay all or part of the obligation in cash, certified check or through
other modes acceptable to the prevailing party. If payment can be done, a levy is unnecessary.
On the other hand, if the judgment obligor makes a prior admission that he cannot pay the
amount stated in the writ of execution and that he agrees to the levy of his properties so long
as the auction sale would not be set earlier than a certain set by the judgment obligor, such
admission provides a reasonable basis for the sheriff to forego a prior demand to pay and to
levy on the properties right away (Villarin v. Munasque)
The rule that it is not proper for a sheriff to immediately levy upon the property of the
judgment debtor was recently affirmed. In Leachon v. Pascua, A.M. No. P-11-2972, September
28, 2011, it was ruled that the levy upon the properties of the judgment obligor may be had by
the executing sheriff only if the judgment obligor cannot pay all or part of the full amount
stated in the writ of execution. If the judgment obligor cannot pay all or part of the obligation in
cash, certified check or other mode acceptable to the judgment obligee, the judgment obligor is
given the option to immediately choose which of his property or part thereof, not otherwise
exempt from execution, may be levied upon sufficient to satisfy the judgment. If the judgment
obligor does not exercise the option immediately, or when he is absent or cannot be located,
he waives such right, and the sheriff can now first levy his personal properties, if any, and then
the real properties if the personal properties are insufficient to answer for the judgment.
Therefore, the sheriff cannot and should not be the one to determine which property to levy if
the judgment debtor cannot immediately pay because it is the judgment obligor who is given
the option to choose which property or part thereof may be levied upon to satisfy the
judgment.
Satisfaction of a money judgment by garnishment
Garnishment is designed to reach credits belonging to the judgment debtor owing to
him from a stranger to the litigation or to reach property belonging to the judgment debtor but
held by a third person.
Garnishment is a species of attachment for reaching any property or credits pertaining
to a judgment debtor. In legal contemplation, it is a forced novation by the substitution of
creditors. It is also a warning to a person having in his possession property or credits belonging
to the judgment debtor, not to pay the money or deliver the property to the latter, but rather
to appear and answer the plaintiff’s suit.

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Garnishment of debts and credits
Garnishment shall be made by (a) serving notice upon the third person having in
possession or control of the credits in favour of the judgment obligor, (b) the third person or
garnishee shall make a written report to the court within five (5) days from service of the notice
of garnishment stating whether or not the judgment obligor has sufficient funds to satisfy the
judgment. If sufficient, the garnishee shall deliver the amount in cash or certified check directly
to the judgment obligee within ten (10) working days from service of notice on said garnishee.
The lawful fees shall be directy paid to the court. If the amount is insufficient, the garnishee
shall make a report as to the amount he holds for the judgment obligor.
A bank deposit may be garnished without violating R.A. No. 1405 or The Secrecy of Bank
Deposits Law. In garnishing a deposit, a court does not order an examination of or inquiry into
the deposit but merely requires the cashier or officer of a bank to inform the court whether or
not a deposit exists so that the bank would hold the same intact and not allow any withdrawal
until further orders (China Bank Corporation vs. Ortega, 49 SCRA 355)
Manner of Garnishment
The sheriff may garnish debts and other credits due the judgment obligor owing to him
by a third person, bank deposits, financial interests, royalties, commissions, and other personal
property not capable of manual delivery in the possession or control of third person. The
garnishment shall cover only such amount as will satisfy the judgment and all lawful fees (Sec. 9
[c]) Notice of the garnishment shall be served upon the person (garnishee) owing such debts
or having in his possession or control the credits or property of the judgment obligor. The
garnishee shall make a written report to the court within five (5) days from receipt of the notice
of garnishment stating whether or not the judgment obligor has sufficient funds or credits to
satisfy the amount of the judgment. If not sufficient, the report shall state how much funds or
credits the garnishee holds for the judgment obligor.
The garnished amount in cash, or certified bank check issued in the name of the
judgment obligee, shall be delivered directly to the judgment obligee within ten (10) working
days from service of notice on said garnishee requiring such delivery, except the lawful fees
which shall be paid to the court directly. In the event there are two or more garnishees
holding deposits or credits sufficient to satisfy the judgment, the judgment obligor if available,
shall have the right to indicate the garnishee or garnishees who shall be required to deliver the
amount due; otherwise the choice shall be made by the judgment obligee.
Money judgments are enforceable only against property of the judgment debtor
In a case where the judgment obligor is not the owner of the subject vehicle that the
sheriff levied on, it was improper for him to have enforced the writ of execution on a property
that did not belong to the judgment debtor/obligor. Respondent sheriff evidently failed to
perform his duty with utmost diligence (Sarmiento v. Mendiola, 638 SCRA 345)

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Section 10. Execution of judgments for specific act. —

(a) Conveyance, delivery of deeds, or other specific acts; vesting title. — If a judgment
directs a party to execute a conveyance of land or personal property, or to deliver
deeds or other documents, or to perform, any other specific act in connection
therewith, and the party fails to comply within the time specified, the court may direct
the act to be done at the cost of the disobedient party by some other person
appointed by the court and the act when so done shall have like effect as if done by
the party. If real or personal property is situated within the Philippines, the court in
lieu of directing a conveyance thereof may by an order divest the title of any party and
vest it in others, which shall have the force and effect of a conveyance executed in due
form of law.

(b) Sale of real or personal property. — If the judgment be for the sale of real or
personal property, to sell such property, describing it, and apply the proceeds in
conformity with the judgment.

(c) Delivery or restitution of real property. — The officer shall demand of the person
against whom the judgment for the delivery or restitution of real property is rendered
and all persons claiming rights under him to peaceably vacate the property within
three (3) working days, and restore possession thereof to the judgment obligee,
otherwise, the officer shall oust all such persons therefrom with the assistance, if
necessary, of appropriate peace officers, and employing such means as may be
reasonably necessary to retake possession, and place the judgment obligee in
possession of such property. Any costs, damages, rents or profits awarded by the
judgment shall be satisfied in the same manner as a judgment for money.

(d) Removal of improvements on property subject of execution. — When the property

subject of the execution contains improvements constructed or planted by the
judgment obligor or his agent, the officer shall NOT destroy, demolish or remove said
improvements except upon special order of the court, issued upon motion of the
judgment obligee after the hearing and after the former has failed to remove the
same within a reasonable time fixed by the court.

(e) Delivery of personal property. — In judgment for the delivery of personal property,
the officer shall take possession of the same and forthwith deliver it to the party
entitled thereto and satisfy any judgment for money as therein provided.

Execution of a judgment directing the conveyance of property or delivery of deeds

If a judgment directs a party to execute a conveyance of land or personal property, or to
deliver deeds or other documents, or to perform any other specific act in connection therewith,
the specific act required to be done must be complied with.

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 If the party fails to comply with what he has been directed to perform, the court may
direct the act to be done at the cost of the disobedient party by some other person appointed
by the court and the act when so done shall have the like effect as if done by the party. If real or
personal property is situated in the Philippines, the court in lieu of directing a conveyance
thereof may by an order divest title of any party and vest it in others, which shall have the force
and effect of a conveyance executed in due form of law. (Sec. 10 [a])
Execution of a judgment directing the sale of real or personal property
If the judgment be for the sale of real or personal property, then the property shall be
sold, describing it, and the proceeds shall be applied in conformity with the judgment (Sec. 10
[b])
Execution of a judgment for the delivery or restitution of real property
The officer shall demand of the person against whom the judgment for the delivery or
restitution of real property is rendered and all persons claiming rights under to peaceably
vacate the property within three (3) working days, and restore possession thereof to the
judgment obligee; otherwise, the officer shall oust all such persons therefrom with the
assistance, if necessary, of appropriate peace officers, and employing such means as may be
reasonably necessary to retake possession, and place the judgment obligee in possession of
such property. Any cost, damages, rents or profits awarded by the judgment shall be satisfied in
the same manner as a judgment for money.
Classic example -- Ejectment
An example of this kind of judgment is one rendered in an action for ejectment. In such
a case, the officer shall demand from the judgment obligor to vacate peaceably within three (3)
working days, and restore possession of the property to the judgment obligee.
The enforcement of the writ of execution in ejectment cases is carried out by giving the
defendant notice of such writ, and making a demand that defendant comply therewith within a
reasonable period, normally from three (3) to five (5) days, and it is only after such period that
the sheriff is to enforce the writ by the bodily removal of the defendant and his belongings.
Note that in both the Rules and jurisprudence, the writ of execution in ejectment cases cannot
be enforced on the same date the sheriff receives the writ. The three (3) day notice is required.
In one case, there was no notice given. Respondents only learned of the issuance of the writ of
execution at the time it was being enforced by petitioner (Manuel v. Escanlante, G.R. No.
134141, August 13, 2002)
The requirement of a notice to vacate is based on the rudiments of justice and fair play. The
rule requires that notice be served on the “person against whom the judgment for the delivery
or restitution of real property is rendered and all persons claiming rights under him.” (Calaunan
v. Madolaria, 642 SCRA 1).

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 After the lapse of the period given and the judgment obligor refuses to vacate, then the
sheriff may enforce the writ by ousting the judgment obligor and all the persons claiming a right
under him, with the assistance, if necessary, of appropriate peace officers, and employing such
means as may be reasonably necessary to retake possession and place the judgment obligee in
possession of such property. This provision authorizes the bodily removal of the defendant and
his belongings (Mendoza v. Doroni, 481 SCRA 41).
BAR 1995 (Contempt is not a remedy)
A writ of execution was served by a sheriff upon defendant so that plaintiff may be
placed in possession of the property held by the former. The defendant refused to vacate and
surrender the premises to plaintiff. Can defendant be held for indirect contempt for
disobedience of, or resistance to a lawful writ issued by the court?
Suggested answer
Defendant cannot be cited in contempt. The mere refusal or unwillingness on the part
of the judgment debtor to relinquish the properties would not constitute contempt. The writ of
possession was directed to the sheriff and not the judgment debtors. Under the writ, the sheriff
was directed to deliver the properties to the prevailing parties. As the writ did not command
the judgments debtors to do anything, they cannot be held guilty of the acts described in Rule
71 as ground for contempt to wit: disobedience or resistance to a lawful writ, process, order,
judgment or command of a court.” The proper procedure is not for the court to cite them in
contempt. The sheriff should dispossess them of the properties and deliver the possession
thereof to the judgment creditors. If after the dispossession, the judgment debtors execute acts
of ownership or possession over the said properties or in any manner disturb the possession of
the judgment creditors, then and only then may they be punished for contempt. (Pascua vs.
Heirs of Segundo Semieon, 161 SCRA 1)
Execution of a judgment for the delivery of personal property
In judgments for the delivery of personal property, the officer shall take possession of
the same and forthwith deliver it to the party entitled thereto and satisfy any judgment for
money as therein provided (Sec. 10 [e])
Execution when there are improvements on property subject of execution
When the property subject of execution contains improvements constructed or planted
by the judgment obligor or his agent, the officer shall not destroy, demolish or remove said
improvements except upon a special order by the court, issued upon motion of the judgment
obligee after due hearing and after the former has failed to remove the same within a
reasonable time fixed by the court.

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Section 11. Execution of special judgments. — When a judgment requires the performance of
any act other than those mentioned in the two preceding sections, a certified copy of the
judgment shall be attached to the writ of execution and shall be served by the officer upon
the party against whom the same is rendered, or upon any other person required thereby, or
by law, to obey the same, and such party or person may be punished for contempt if he
disobeys such judgment.

Execution of a special judgment

A judgment is special when it requires the performance of an act other than the
payment of money as provided in Sec. 9, Rule 39 of the Rules of Court, the conveyance or
delivery of deeds, sale or real or personal property or delivery or restitution of real or personal
property as mentioned in Sec. 10 of Rule 39)
Example:
In a case wherein the court granted the Petition for Mandamus filed by the petitioner,
requiring the respondent to perform a particular act, is an example of special judgment.

Section 12. Effect of levy on execution as to third person. — The levy on execution 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 the levy, subject to liens and encumbrances then
existing. (16a)

Effect of levy on execution as to third person.

The levy on execution 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 the levy, subject to
liens and encumbrances then existing.

Section 13. Property exempt from execution. — 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;

(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;

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 (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 or family use sufficient for four months;

(g) The professional libraries and equipment of judges, lawyers, physicians,

pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other
professionals, not exceeding three hundred thousand pesos in value;

(h) 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;

(i) 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;

(j) Lettered gravestones;

(k) Monies, benefits, privileges, or annuities accruing or in any manner growing out of
any life insurance;

(l) The right to receive legal support, or money or property obtained as such support,
or any pension or gratuity from the Government;

(m) Properties specially exempted by law.

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.

Property exempt from execution

BAR 1981
In a judgment rendered by the Municipal Trial Court of Iloilo City, “X” was ordered to
pay “BB” the sum of Php200, 000. 00. A writ of execution was issued but was not fully satisfied.
In order to fully satisfy the judgment, the sheriff now seeks to levy on certain household
furniture worth Php100, 000. 00.
“X” moves for exemption from execution, which the MTC denies. “X” moves for
reconsideration, which was also denied. The sheriff threatens to carry out the execution and
sale right away.

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 “X” institutes a petition for certiorari. Will this petition for certiorar, prosper? Explain
briefly.
Suggested answer
The petition will prosper. The court committed a grave abuse of discretion amounting to
lack of jurisdiction when it denied the motion for reconsideration thereby allowing the sheriff
to levy and sell the subject property in a manner contrary to the Rules of Court. Under the
Rules, the household furniture necessary for housekeeping and used for that purpose by the
judgment obligor and his family is exempt from execution.

Section 14. Return of writ of execution. — The writ of execution shall be returnable to the
court issuing it immediately after the judgment has been satisfied in part or in full. If the
judgment cannot be satisfied in full within thirty (30) days after his receipt of the writ, the
officer shall report to the court and state the reason therefor. Such writ shall continue in
effect during the period within which the judgment may be enforced by motion. The officer
shall make a report to the court every thirty (30) days on the proceedings taken thereon until
the judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall
set forth the whole of the proceedings taken, and shall be filed with the court and copies
thereof promptly furnished the parties.

What will happen to the writ of execution after is satisfaction?

The writ of execution shall be returnable to the court issuing it immediately after the
judgment has been satisfied in part or in full.

What is the duty of the officer if the writ was not satisfied or in full?

If the judgment cannot be satisfied in full within thirty (30) days after his receipt of the
writ, the officer shall report to the court and state the reason therefor. The Rules clearly
provide that it is mandatory for sheriffs to execute and make a return on the writ of execution
within 30 days from receipt of the writ and every 30 days thereafter until it is satisfied in full or
its effectivity expires. Even if the writs are unsatisfied or partially satisfied, sheriffs must still file
the reports so that the court, as well as litigants, may be informed of the proceedings
undertaken to implement the writ.

What is the lifetime of the writ?

Such writ shall continue in effect during the period within which the judgment may be
enforced by motion, meaning within five (5) years from the date of the ENTRY of the judgment
which is the finality of the judgment.

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What are the other duties of the officer after execution?

The officer shall make a report to the court every thirty (30) days on the proceedings
taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or
periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the
court and copies thereof promptly furnished the parties.

Section 15. Notice of sale of property on execution. — Before the sale of property on
execution, NOTICE thereof must be given as follows:

(a) In case of perishable property, by posting written notice of the time and place of
the sale in three (3) public places, preferably in conspicuous areas of the municipal or
city hall, post office and public market in the municipality or city where the sale is to
take place, for such time as may be reasonable, considering the character and
condition of the property;

(b) In case of other personal property, by posting a similar notice in the three (3)
public places above-mentioned for not less than five (5) days;

(c) In case of real property, by posting for twenty (20) days in the three (3) public
places abovementioned a similar notice particularly describing the property and
stating where the property is to be sold, and if the assessed value of the property
exceeds fifty thousand (P50,000.00) pesos, by publishing a copy of the notice once a
week for two (2) consecutive weeks in one newspaper selected by raffle, whether in
English, Filipino, or any major regional language published, edited and circulated or, in
the absence thereof, having general circulation in the province or city;

(d) In all cases, written notice of the sale shall be given to the judgment obligor, at
least three (3) days before the sale, except as provided in paragraph (a) hereof where
notice shall be given the same manner as personal service of pleadings and other
papers as provided by section 6 of Rule 13.

The notice shall specify the place, date and exact time of the sale which should not be earlier
than nine o'clock in the morning and not later than two o'clock in the afternoon. The place of
the sale may be agreed upon by the parties. In the absence of such agreement, the sale of the
property or personal property not capable of manual delivery shall be held in the office of the
clerk of court of the Regional Trial Court or the Municipal Trial Court which issued the writ of
or which was designated by the appellate court. In the case of personal property capable of
manual delivery, the sale shall be held in the place where the property is located.

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Notice of sale of property on execution.

Before the sale of property on execution, notice thereof must be given as follows:

(a) In case of perishable property, by posting written notice of the time and place of the
sale in three (3) public places, preferably in conspicuous areas of the municipal or city
hall, post office and public market in the municipality or city where the sale is to take
place, for such time as may be reasonable, considering the character and condition of
the property;

(b) In case of other personal property, by posting a similar notice in the three (3) public
places above-mentioned for not less than five (5) days;

(c) In case of real property, by posting for twenty (20) days in the three (3) public places
abovementioned a similar notice particularly describing the property and stating where
the property is to be sold, and if the assessed value of the property exceeds fifty
thousand (P50,000.00) pesos, by publishing a copy of the notice once a week for two (2)
consecutive weeks in one newspaper selected by raffle, whether in English, Filipino, or
any major regional language published, edited and circulated or, in the absence thereof,
having general circulation in the province or city;

(d) In all cases, written notice of the sale shall be given to the judgment obligor, at least
three (3) days before the sale, except as provided in paragraph (a) hereof where notice
shall be given the same manner as personal service of pleadings and other papers as
provided by section 6 of Rule 13.

The notice shall specify the place, date and exact time of the sale which should not be
earlier than nine o'clock in the morning and not later than two o'clock in the afternoon. The
place of the sale may be agreed upon by the parties. In the absence of such agreement, the sale
of the property or personal property not capable of manual delivery shall be held in the office
of the clerk of court of the Regional Trial Court or the Municipal Trial Court which issued the
writ of or which was designated by the appellate court. In the case of personal property capable
of manual delivery, the sale shall be held in the place where the property is located. (18a)

Section 16. Proceedings where property claimed by third person. — If the property levied on
is claimed by any person other than the judgment obligor or his agent, and such person
MAKES AN AFFIDAVIT OF HIS TITLE thereto or right to the possession thereof, stating the
grounds of such right or title, and SERVES the same upon the officer making the levy and copy
thereof, stating the grounds of such right or tittle, and a serves the same upon the officer
making the levy and a copy thereof upon the judgment obligee, the officer shall not be bound
to keep the property, unless such judgment obligee, on demand of the officer, files a BOND
approved by the court to indemnity the third-party claimant in a sum not less than the value
of the property levied on. In case of disagreement as to such value, the same shall be
determined by the court issuing the writ of execution. No claim for damages for the taking or

454
keeping of the property may be enforced against the bond unless the action therefor is filed
within one hundred twenty (120) days from the date of the filing of the bond.

The officer shall not be liable for damages for the taking or keeping of the property, to any
third-party claimant if such bond is filed. Nothing herein contained shall prevent such
claimant or any third person from vindicating his claim to the property in a separate action,
or prevent the judgment obligee from claiming damages in the same or a separate action
against a third-party claimant who filed a frivolous or plainly spurious claim.

When the writ of execution is issued in favor of the Republic of the Philippines, or any officer
duly representing it, the filing of such bond shall not be required, and in case the sheriff or
levying officer is sued for damages as a result of the levy, he shall be represented by the
Solicitor General and if held liable therefor, the actual damages adjudged by the court shall
be paid by the National Treasurer out of such funds as may be appropriated for the purpose.

PROCEEDINGS WHEN PROPERTY LEVIED UPON IS CLAIMED BY THIRD PERSONS (BAR 1982;
1984; 1993; 2011)
A person, not a party to the action, claiming a property levied upon may execute an
affidavit of his title or right of possession over the property. Such affidavit must state the
grounds of such right or title. The affidavit shall be served upon the officer making a levy and a
copy thereof must be served upon the judgment oblige (Sec. 16, Rule 39). This remedy of the
claiming party is also called “TERCERIA.”
A “stranger” or a third person is any person other than the judgment debtor or his
agent. A party to the auction sale has no business filing a third party claim over property
involved in the action and which he himself claims to belong to him. (Tilson vs. Court of
Appeals, 197 SCRA 587). The officer served with the affidavit of the claiming person shall
not be bound to keep the property subject of the claim, unless the judgment obligee, on
demand of the officer, files a bond approved by the court to indemnify the claimant in a sum
not less than the value of the property levied upon. No claim for damages for the taking or
keeping of the property may be enforced against the bond unless the action therefor is filed
within one hundred twenty (120) days from the date of the filing of the bond. The officer shall
not be liable to any third-party claimant for damages for the taking or keeping of the property,
if such bond is filed.
REMEDIES AVAILABLE TO THE THIRD PARTY CLAIMANT:
1. Upon application of the third person, the court shall order a summary hearing for the
purpose of determining whether the sheriff has acted rightly or wrongly in the
performance of his duties in the execution of the writ of attachment, more specifically if
he has indeed levied on attachment and taken hold of property not belonging to the
plaintiff;

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 2. The aggrieved party may also avail himself of the remedy of “terceria” by executing an
affidavit of his title or right of possession over the property levied on attachment and
serving the same to the officer making the levy and the adverse party;

3. Such party may also file an action to nullify the levy with damages resulting from the
unlawful levy and seizure, which should be a totally separate and distinct action from
the former case.
BAR 1984
A’s property was levied upon on execution to satisfy a judgment obtained by B against
C.Instead of seeking relief in the case in which the judgment being executed was obtained, A
filed a new action against the sheriff for recovery of the property, with a prayer for a writ of
preliminary injunction to restrain him (sheriff) from selling the property, during the pendency of
the suit. Was the new action proper?
Suggested answer
The action was proper. The right to file such action is authorized by the Rules of Court.
Section 16 of Rule 39 provides that nothing in Sec. 16 shall prevent such claimant or any third
person from vindicating his claim to the property in a separate action.
The court issuing the writ of execution may enforce its authority only over the
properties of the judgment debtor. The sheriff therefore, must only subject to execution
property belonging to the judgment debtor. If he levies upon the assets of the third persons in
which the judgment debtor has no interest, he is acting beyond the limits of his authority.

Section 17. Penalty for selling without notice, or removing or defacing notice. — An officer
selling without the notice prescribed by section 15 of this Rule shall be liable to pay punitive
damages in the amount of five thousand (P5,000.00) pesos to any person injured thereby, in
addition to his actual damages, both to be recovered by motion in the same action; and a
person willfully removing or defacing the notice posted, if done before the sale, or before the
satisfaction of the judgment if it be satisfied before the sale, shall be liable to pay five
thousand (P5,000.00) pesos to any person injured by reason thereof, in addition to his actual
damages, to be recovered by motion in the same action.

Penalty for selling without notice, or removing or defacing notice

1.An officer selling without the notice prescribed by section 15 of this Rule shall be liable to pay
punitive damages in the amount of five thousand (P5,000.00) pesos to any person injured
thereby, in addition to his actual damages, both to be recovered by motion in the same action;
and

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2.A person willfully removing or defacing the notice posted, if done before the sale, or before
the satisfaction of the judgment if it be satisfied before the sale, shall be liable to pay five
thousand (P5,000.00) pesos to any person injured by reason thereof, in addition to his actual
damages, to be recovered by motion in the same action.

Section 18. No sale if judgment and costs paid. — At any time before the sale of property on
execution, the judgment obligor may prevent the sale by paying the amount required by the
execution and the costs that have been incurred therein.

No sale if judgment and costs paid

At any time before the sale of property on execution, the judgment obligor may prevent
the sale by paying the amount required by the execution and the costs that have been incurred
therein.

Section 19. How property sold on execution; who may direct manner and order of sale. — All
sales of property under execution must be made at PUBLIC AUCTION, to the highest bidder,
to start at the exact time fixed in the notice. After sufficient property has been sold to satisfy
the execution, no more shall be sold and any excess property or proceeds of the sale shall be
promptly delivered to the judgment obligor or his authorized representative, unless
otherwise directed by the judgment or order of the court. When the sale is of real property,
consisting of several known lots, they must be sold separately; or, when a portion of such real
property is claimed by a third person, he may require it to be sold separately. When the sale
is of personal property capable of manual delivery, it must be sold within view of those
attending the same and in such parcels as are likely to bring the highest price. The judgment
obligor, if present at the sale, may direct the order in which property, real or personal shall be
sold, when such property consists of several known lots or parcels which can be sold to
advantage separately. Neither the officer conducting the execution sale, nor his deputies, can
become a purchaser, nor be interested directly or indirectly in any purchase at such sale.

How property sold on execution; who may direct manner and order of sale

All sales of property under execution must be made at public auction, to the highest
bidder, to start at the exact time fixed in the notice. After sufficient property has been sold to
satisfy the execution, no more shall be sold and any excess property or proceeds of the sale
shall be promptly delivered to the judgment obligor or his authorized representative, unless
otherwise directed by the judgment or order of the court.

1. When the sale is of real property, consisting of several known lots, they must be sold
separately; or, when a portion of such real property is claimed by a third person, he
may require it to be sold separately.

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 2. When the sale is of personal property capable of manual delivery, it must be sold
within view of those attending the same and in such parcels as are likely to bring the
highest price.

The judgment obligor, if present at the sale, may direct the order in which property, real
or personal shall be sold, when such property consists of several known lots or parcels which
can be sold to advantage separately.

Prohibition on the Officer Conducting the Sale

Neither the officer conducting the execution sale, nor his deputies, can become a
purchaser, nor be interested directly or indirectly in any purchase at such sale.

Section 20. Refusal of purchaser to pay. — If a purchaser refuses to pay the amount bid by
him for property struck off to him at a sale under execution, the officer may again sell the
property to the highest bidder and shall not be responsible for any loss occasioned thereby;
but the court may order the refusing purchaser to pay into the court the amount of such loss,
with costs, and may punish him for contempt if he disobeys the order. The amount of such
payment shall be for the benefit of the person entitled to the proceeds of the execution,
unless the execution has been fully satisfied, in which event such proceeds shall be for the
benefit of the judgment obligor. The officer may thereafter reject any subsequent bid of such
purchaser who refuses to pay.

What are the effects if the purchaser failed to pay the amount of bid?

If a purchaser refuses to pay the amount bid by him for property struck off to him at a
sale under execution:

1. The officer may again sell the property to the highest bidder;
2. He shall not be responsible for any loss occasioned thereby;
3. The court may order the refusing purchaser to pay into the court the amount of such
loss, with costs;
4. May punish him for contempt if he disobeys the order.

In whose benefits will the proceeds be given?

The proceeds of the sale shall be given as follows:

1. The amount of such payment shall be for the benefit of the person entitled to the
proceeds of the execution;

2. Unless the execution has been fully satisfied, in which event such proceeds shall be
for the benefit of the judgment obligor.

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What is the remedy of the officer against the person who failed to pay the bid?

The officer may thereafter reject any subsequent bid of such purchaser who refuses to
pay.

Section 21. Judgment obligee as purchaser. — When the purchaser is the judgment obligee,
and no third-party claim has been filed, he need not pay the amount of the bid if it does not
exceed the amount of his judgment. If it does, he shall pay only the excess.

Judgment obligee as purchaser

When the purchaser is the judgment obligee, and no third-party claim has been filed, he
need not pay the amount of the bid if it does not exceed the amount of his judgment. If it does,
he shall pay only the excess.

Section 22. Adjournment of sale. — By written consent of the judgment obligor and obligee,
or their duly authorized representatives, the officer may adjourn the sale to any date and
time agreed upon by them. Without such agreement, he may adjourn the sale from day to
day if it becomes necessary to do so for lack of time to complete the sale on the day fixed in
the notice or the day to which it was adjourned.

Adjournment of sale

By written consent of the judgment obligor and obligee, or their duly authorized
representatives, the officer may adjourn the sale to any date and time agreed upon by them.
Without such agreement, he may adjourn the sale from day to day if it becomes necessary to
do so for lack of time to complete the sale on the day fixed in the notice or the day to which it
was adjourned.

Section 23. Conveyance to purchaser of personal property capable of manual delivery. —

When the purchaser of any personal property, capable of manual delivery, pays the purchase
price, the officer making the sale must deliver the property to the purchaser and, if desired,
execute and deliver to him a CERTIFICATE OF SALE. The sale conveys to the purchaser all the
rights which the judgment obligor had in such property as of the date of the levy on
execution or preliminary attachment.

Conveyance to purchaser of personal property capable of manual delivery

When the purchaser of any personal property, capable of manual delivery, pays the
purchase price, the officer making the sale must deliver the property to the purchaser and, if
desired, execute and deliver to him a certificate of sale. The sale conveys to the purchaser all
the rights which the judgment obligor had in such property as of the date of the levy on
execution or preliminary attachment.

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 Take note that when the subject of writ of Execution is a personal property capable of
manual delivery, like appliances, the execution and delivery of Certificate of Sale to the
purchaser is only directory.

Section 24. Conveyance to purchaser of personal property not capable of manual delivery. —
When the purchaser of any personal property, not capable of manual delivery, pays the
purchase price, the officer making the sale MUST execute and deliver to the purchaser a
CERTIFICATE OF SALE. Such certificate conveys to the purchaser all the rights which the
judgment obligor had in such property as of the date of the levy on execution or preliminary
attachment.

Conveyance to purchaser of personal property not capable of manual delivery

When the purchaser of any personal property, not capable of manual delivery, pays the
purchase price, the officer making the sale must execute and deliver to the purchaser a
certificate of sale. Such certificate conveys to the purchaser all the rights which the judgment
obligor had in such property as of the date of the levy on execution or preliminary attachment.

It is clear under the above provision that when the subject of the Writ of Execution is
personal property not capable of manual delivery, like heavy equipment, the execution and
delivery of Certificate of Sale to the purchaser shall be mandatory.

Section 25. Conveyance of real property; certificate thereof given to purchaser and filed with
registry of deeds. — Upon a sale of real property, the officer must give to the purchaser a
certificate of sale containing:

(a) A particular description of the real property sold;

(b) The price paid for each distinct lot or parcel;

(c) The whole price paid by him;

(d) A statement that the right of redemption expires one (1) year from the date of the
registration of the certificate of sale.

Such certificate must be registered in the registry of deeds of the place where the property is
situated.

Conveyance of real property; certificate thereof given to purchaser and filed with registry of
deeds

Upon a sale of real property, the officer must give to the purchaser a certificate of sale
containing:

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 (a) A particular description of the real property sold;

(b) The price paid for each distinct lot or parcel;

(c) The whole price paid by him;

(d) A statement that the right of redemption expires one (1) year from the date of the
registration of the certificate of sale.

Such certificate must be registered in the registry of deeds of the place where the property is
situated.

Section 26. Certificate of sale where property claimed by third person. — When a property
sold by virtue of a writ of execution has been claimed by a third person, the certificate of sale
to be issued by the sheriff pursuant to sections 23, 24 and 25 of this Rule shall make express
mention of the existence of such third-party claim.

Certificate of sale where property claimed by third person

When a property sold by virtue of a writ of execution has been claimed by a third
person, the certificate of sale to be issued by the sheriff pursuant to sections 23, 24 and 25 of
this Rule shall make express mention of the existence of such third-party claim.

Whether the subject of Writ of Execution is personal property capable of manual

delivery, or personal property not capable of manual delivery or real property, the Certificate of
Sale shall expressly state the existence of the third party claim. This is important in the aspect
of redemption especially involving real property, as this will serve as to notice the purchaser or
redemptioner.

Section 27. Who may redeem real property so sold. — Real property sold as provided in the
last preceding section, or any part thereof sold separately, may be redeemed in the manner
hereinafter provided, by the following persons:

(a) The judgment obligor; or his successor in interest in the whole or any part of the
property;

(b) A creditor having a lien by virtue of an attachment, judgment or mortgage on the

property sold, or on some part thereof, subsequent to the lien under which the
property was sold. Such redeeming creditor is termed a redemptioner.

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SALE AND REDEMPTION OF REAL PROPERTY (BAR 2009)
1. Upon a sale of real property, the officer must give to the purchaser a CERTIFICATE OF
SALE. Such certificate of sale must be registered in the registry of deeds of the place
where the property is situated.

2. The real property sold may be redeemed from the purchaser, at any time within one (1)
year from the date of the registration of the certificate of sale. If there are other
creditors having a lien on the property, the property so redeemed may again be
redeemed within sixty (60) days from the last redemption. The property may again, and
as often as a redemption is so disposed, be redeemed from any previous redemptioner
within sixty (60) days after the last redemption.

3. Note that the right of redemption under referred to above has reference only to real,
not personal property. Simpy put, the right of redemption mentioned above applies
only when the subject of Writ of Execution is a real property.

Section 28. Time and manner of, and amounts payable on, successive redemptions; notice to
be given and filed. — The judgment obligor, or redemptioner, may redeem the property from
the purchaser, at any time within one (1) year from the date of the registration of the
certificate of sale, by paying the purchaser the amount of his purchase, with the per
centum per month interest thereon in addition, up to the time of redemption, together with
the amount of any assessments or taxes which the purchaser may have paid thereon after
purchase, and interest on such last named amount 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 under
which such purchase was made, the amount of such other lien, with interest.

Property so redeemed may again be redeemed within sixty (60) days after the last
redemption upon payment of the sum paid on the last redemption, with two per
centum thereon in addition and the amount of any assessments or taxes which the last
redemptioner may have paid thereon after redemption by him, with interest on such last
named amount, and in addition, the amount of any liens held by said last redemptioner prior
to his own, with interest. The property may be again, and as often as a redemptioner is so
disposed, redeemed from any previous redemptioner within sixty (60) days after the last
redemption, on paying the sum paid on the last previous redemption, with two per
centum thereon in addition, and the amounts of any assessments or taxes which the last
previous redemptioner paid after the redemption thereon, with interest thereon, and the
amount of any liens held by the last redemptioner prior to his own, with interest.

Written notice of any redemption must be given to the officer who made the sale and a
duplicate filed with the registry of deeds of the place, and if any assessments or taxes are
paid by the redemptioner or if he has or acquires any lien other than that upon which the
redemption was made, notice thereof must in like manner be given to the officer and filed

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with the registry of deeds; if such notice be not filed, the property may be redeemed without
paying such assessments, taxes, or liens.

Time and manner of, and amounts payable on, successive redemptions; notice to be given and
filed

The judgment obligor, or redemptioner, may redeem the property from the purchaser,
at any time within one (1) year from the date of the registration of the certificate of sale,

1. By paying the purchaser the amount of his purchase,

2. With the per centum per month interest thereon in addition, up to the time of
redemption,
3. Together with the amount of any assessments or taxes which the purchaser may
have paid thereon after purchase, and interest on such last named amount 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 under which such purchase was made, the
amount of such other lien, with interest.

Property so redeemed may again be redeemed within sixty (60) days after the last redemption
upon payment of the sum paid on the last redemption, with two per centum thereon in
addition and the amount of any assessments or taxes which the last redemptioner may have
paid thereon after redemption by him, with interest on such last named amount, and in
addition, the amount of any liens held by said last redemptioner prior to his own, with interest.
The property may be again, and as often as a redemptioner is so disposed, redeemed from any
previous redemptioner within sixty (60) days after the last redemption, on paying the sum paid
on the last previous redemption, with two per centum thereon in addition, and the amounts of
any assessments or taxes which the last previous redemptioner paid after the redemption
thereon, with interest thereon, and the amount of any liens held by the last redemptioner prior
to his own, with interest.

Written notice of any redemption must be given to the officer who made the sale and a
duplicate filed with the registry of deeds of the place, and if any assessments or taxes are paid
by the redemptioner or if he has or acquires any lien other than that upon which the
redemption was made, notice thereof must in like manner be given to the officer and filed with
the registry of deeds; if such notice be not filed, the property may be redeemed without paying
such assessments, taxes, or liens.

Section 29. Effect of redemption by judgment obligor, and a certificate to be delivered and
recorded thereupon; to whom payments on redemption made. — If the judgment obligor
redeems he must make the same payments as are required to effect a redemption by a
redemptioner, whereupon, no further redemption shall be allowed and he is restored to his
estate. The person to whom the redemption payment is made must execute and deliver to
him a CERTIFICATE OF REDEMPTION acknowledged before a notary public or other officer
authorized to take acknowledgments of conveyances of real property. Such certificate must

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be filed and recorded in the registry of deeds of the place in which the property is situated
and the registrar of deeds must note the record thereof on the margin of the record of the
certificate of sale. The payments mentioned in this and the last preceding sections may be
made to the purchaser or redemptioner, or for him to the officer who made the sale.

Effect of redemption by judgment obligor, and a certificate to be delivered and recorded

thereupon; to whom payments on redemption made.

If the judgment obligor redeems he must make the same payments as are required to
effect a redemption by a redemptioner, whereupon, no further redemption shall be allowed
and he is restored to his estate. The person to whom the redemption payment is made must
execute and deliver to him a CERTFICATE OF REDEMPTION acknowledged before a notary
public or other officer authorized to take acknowledgments of conveyances of real property.
Such certificate must be filed and recorded in the registry of deeds of the place in which the
property is situated and the registrar of deeds must note the record thereof on the margin of
the record of the certificate of sale. The payments mentioned in this and the last preceding
sections may be made to the purchaser or redemptioner, or for him to the officer who made
the sale.

Section 30. Proof required of redemptioner. — A redemptioner must produce to the officer, or
person from whom he seeks to redeem, and serve with his notice to the officer a copy of the
judgment or final order under which he claims the right to redeem, certified by the clerk of
the court wherein the judgment or final order is entered, or, if he redeems upon a mortgage
or other lien, a memorandum of the record thereof, certified by the registrar of deeds, or an
original or certified copy of any assignment necessary to establish his claim; and an affidavit
executed by him or his agent, showing the amount then actually due on the lien.

Proof required of redemptioner.

A redemptioner must produce to the officer, or person from whom he seeks to redeem,
and serve with his notice to the officer a copy of the judgment or final order under which he
claims the right to redeem, certified by the clerk of the court wherein the judgment or final
order is entered, or, if he redeems upon a mortgage or other lien, a memorandum of the record
thereof, certified by the registrar of deeds, or an original or certified copy of any assignment
necessary to establish his claim; and an affidavit executed by him or his agent, showing the
amount then actually due on the lien.

Section 31. Manner of using premises pending redemption; waste restrained. — Until the
expiration of the time allowed for redemption, the court may, as in other proper cases,
restrain the commission of waste on the property by injunction, on the application of the
purchaser or the judgment obligee, with or without notice; but it is not waste for a person in
possession of the property at the time of the sale, or entitled to possession afterwards,
during the period allowed for redemption, to continue to use it in the same manner in which

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it was previously used, or to use it in the ordinary course of husbandry; or to make the
necessary repairs to buildings thereon while he occupies the property. (33a)

Manner of using premises pending redemption; waste restrained.

Until the expiration of the time allowed for redemption, the court may, as in other
proper cases, restrain the commission of waste on the property by injunction, on the
application of the purchaser or the judgment obligee, with or without notice; but it is not waste
for a person in possession of the property at the time of the sale, or entitled to possession
afterwards, during the period allowed for redemption, to continue to use it in the same manner
in which it was previously used, or to use it in the ordinary course of husbandry; or to make the
necessary repairs to buildings thereon while he occupies the property.

Section 32. Rents, earnings and income of property pending redemption. — The purchaser or
a redemptioner shall not be entitled to receive the rents, earnings and income of the
property sold on execution, or the value of the use and occupation thereof when such
property is in the possession of a tenant. All rents, earnings and income derived from the
property pending redemption shall belong to the judgment obligor until the expiration of his
period of redemption. (34a)

RENTS, INCOME AND EARNINGS OF THE PROPERTY PENDING THE REDEMPTION:

The purchaser or redemptioner shall not be entitled to receive the rent such property is
in the possession of a tenant. All rents, earnings and income derived from the property pending
redemption shall belong to the judgment obligor until the expiration of his period of
redemption

Section 33. Deed and possession to be given at expiration of redemption period; by whom
executed or given. — If no redemption be made within one (1) year from the date of the
registration of the certificate of sale, the purchaser is entitled to a conveyance and possession
of the property; or, if so redeemed whenever sixty (60) days have elapsed and no other
redemption has been made, and notice thereof given, and the time for redemption has
expired, the last redemptioner is entitled to the conveyance and possession; but in all cases
the judgment obligor shall have the entire period of one (1) year from the date of the
registration of the sale to redeem the property. The deed shall be executed by the officer
making the sale or by his successor in office, and in the latter case shall have the same validity
as though the officer making the sale had continued in office and executed it.

Upon the expiration of the right of redemption, the purchaser or redemptioner shall be
substituted to and acquire all the rights, title, interest and claim of the judgment obligor to
the property as of the time of the levy. The possession of the property shall be given to the
purchaser or last redemptioner by the same officer unless a third party adversely to the
judgment obligor. (35a)

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EFFECT IF NO REDEMPTION IS MADE:
1. If no redemption is made within one (1) year from the date of the registration of the
certificate of sale, the purchaser is entitled to a conveyance and possession of the
property; or if so redeemed whenever sixty (60) days have elapsed and no other
redemption has been made, and notice thereof given, the last redemptioner is
entitled to the conveyance and possession of the property (Sec. 33).
2. Upon the expiration of the right of redemption, the purchaser or redemptioner shall
be substituted to and acquire all the rights, title, interest and claim of the judgment
obligor to the property as of the time of the levy (Sec. 33)

Section 34. Recovery of price if sale not effective; revival of judgment. — If the purchaser of
real property sold on execution, or his successor in interest, fails to recover the possession
thereof, or is evicted therefrom, in consequence of irregularities in the proceedings
concerning the sale, or because the judgment has been reversed or set aside, or because the
property sold was exempt from execution, or because a third person has vindicated his claim
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 original judgment revived
in his name for the whole price with interest, or so much thereof as has been delivered to the
judgment obligor. The judgment so revived shall have the same force and effect as an original
judgment would have as of the date of the revival and no more. (36a)

Recovery of price if sale not effective; revival of judgment.

If the purchaser of real property sold on execution, or his successor in interest, fails to
recover the possession thereof, or is evicted therefrom, in consequence of irregularities in the
proceedings concerning the sale, or because the judgment has been reversed or set aside, or
because the property sold was exempt from execution, or because a third person has
vindicated his claim 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 original
judgment revived in his name for the whole price with interest, or so much thereof as has been
delivered to the judgment obligor. The judgment so revived shall have the same force and
effect as an original judgment would have as of the date of the revival and no more. (36a)

Section 35. Right to contribution or reimbursement. — When property liable to an execution

against several persons is sold thereon, and more than a due proportion of the judgment is
satisfied out of the proceeds of the sale of the property of one of them, or one of them pays,
without a sale, more than his proportion, he may compel a contribution from the others; and
when a 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 his property or before sale, he may
compel repayment from the principal. (37a)

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Right to contribution or reimbursement

When property liable to an execution against several persons is sold thereon, and more
than a due proportion of the judgment is satisfied out of the proceeds of the sale of the
property of one of them, or one of them pays, without a sale, more than his proportion, he may
compel a contribution from the others; and when a 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 his property or before sale, he may compel repayment from the principal. (37a)

Section 36. Examination of judgment obligor when judgment unsatisfied. — When the return
of a writ of execution issued against property of a judgment obligor, or any one of several
obligors in the same judgment, shows that the judgment remains unsatisfied, in whole or in
part, the judgment obligee, at any time after such return is made, shall be entitled to an order
from the court which rendered the said judgment, requiring such judgment obligor to appear
and be examined concerning his property and income before such court or before a
commissioner appointed by it at a specified time and place; and proceedings may thereupon
be had for the application of the property and income of the judgment obligor towards the
satisfaction of the judgment. But no judgment obligor shall be so required to appear before a
court or commissioner outside the province or city in which such obligor resides or is found.
(38a)

REMEDY WHEN THE JUDGMENT IS UNSATISFIED (BAR 1983; 2002; 2008)

When the return of the writ of execution shows that the judgment is unsatisfied, the
judgment obligee is entitled to an order from the court which rendered the judgment, requiring
the judgment obligor to appear and be examined concerning his property and income before
the court or a commissioner appointed by the court. This remedy has a limitation because the
judgment obligor cannot be required to appear before a court or commissioner outside the
province or city in which such obligor resides or is found (Sec. 36). Thus, if the court is RTC
Bulacan and the obligor is a resident of Quezon City, he cannot be required to appear and be
examined.

Section 37. Examination of obligor of judgment obligor. — When the return of a writ of
execution against the property of a judgment obligor shows that the judgment remain
unsatisfied, in whole or in part, and upon proof to the satisfaction of the court which issued
the writ, that a person, corporation, or other juridical entity has property of such judgment
obligor or is indebted to him, the court may, by an order, require such person, corporation, or
other juridical entity, or any officer, or member thereof, to appear before the court or a
commissioner appointed by it, at a time and place within the province or city where such
debtor resides or is found, and be examined concerning the same. The service of the order
shall bind all credits due the judgment obligor and all money and property of the judgment
obligor in the possession or in the control of such person corporation, or juridical entity from

467
the time of service; and the court may also require notice of such proceedings to be given to
any party to the action in such manner as it may deem proper. (39a)

Examination of obligor of judgment obligor

When the return of a writ of execution against the property of a judgment obligor shows
that the judgment remain unsatisfied, in whole or in part, and upon proof to the satisfaction of
the court which issued the writ, that a person, corporation, or other juridical entity has
property of such judgment obligor or is indebted to him, the court may, by an order, require
such person, corporation, or other juridical entity, or any officer, or member thereof, to appear
before the court or a commissioner appointed by it, at a time and place within the province or
city where such debtor resides or is found, and be examined concerning the same. The service
of the order shall bind all credits due the judgment obligor and all money and property of the
judgment obligor in the possession or in the control of such person corporation, or juridical
entity from the time of service; and the court may also require notice of such proceedings to be
given to any party to the action in such manner as it may deem proper.

Section 38. Enforcement of attendance and conduct of examination. — A party or other

person may be compelled, by an order or subpoena, to attend before the court or
commissioner to testify as provided in the two preceding sections, and upon failure to obey
such order or subpoena or to be sworn, or to answer as a witness or to subscribe his
deposition, may be punished for contempt as in other cases. Examinations shall not be
unduly prolonged, but the proceedings may be adjourned from time to time, until they are
completed. If the examination is before a commissioner, he must take it in writing and certify
it to the court. All examinations and answers before a court commissioner must be under
oath, and when a corporation or other juridical entity answers, it must be on the oath of an
authorized officer or agent thereof. (40a)

Remedy when judgment is unsatisfied

When the return of the writ of execution issued against the property of the judgment
obligor shows that the judgment remains unsatisfied, the judgment oblige, is entitled to an
order from the court which rendered the judgment requiring the judgment obligor to appear
and be examined concerning his property and income before such court or before a
commissioner appointed by it.
Aside from the examination of the judgment obligor, a person, corporation, or other
juridical entity indebted to the judgment debtor or has property of such debtor, may also be
examined by the court. For the purpose of the examination under the immediately preceding
numbers, a party or other person may be compelled by an order or subpoena, to attend before
the court or commissioner to testify

468
Section 39. Obligor may pay execution against obligee. — After a writ of execution against
property has been issued, a person indebted to the judgment obligor may pay to the sheriff
holding the writ of execution the amount of his debt or so much thereof as may be necessary
to satisfy the judgment, in the manner prescribed in section 9 of this Rule, and the sheriff's
receipt shall be a sufficient discharge for the amount so paid or directed to be credited by the
judgment obligee on the execution.

Obligor may pay execution against obligee.

After a writ of execution against property has been issued, a person indebted to the
judgment obligor may pay to the sheriff holding the writ of execution the amount of his debt or
so much thereof as may be necessary to satisfy the judgment, in the manner prescribed in
section 9 of this Rule, and the sheriff's receipt shall be a sufficient discharge for the amount so
paid or directed to be credited by the judgment obligee on the execution.

Section 40. Order for application of property and income to satisfaction of judgment. — The
court may order any property of the judgment obligor, or money due him, not exempt from
execution, in the hands of either himself or another person, or of a corporation or other
juridical entity, to be applied to the satisfaction of the judgment, subject to any prior rights
over such property.

If, upon investigation of his current income and expenses, it appears that the earnings of the
judgment obligor for his personal services are more than necessary for the support of his
family, the court may order that he pay the judgment in fixed monthly installments, and upon
his failure to pay any such installment when due without good excuse, may punish him for
indirect contempt.

Order for application of property and income to satisfaction of judgment

The court may order any property of the judgment obligor, or money due him, not
exempt from execution, in the hands of either himself or another person, or of a corporation or
other juridical entity, to be applied to the satisfaction of the judgment, subject to any prior
rights over such property.

If, upon investigation of his current income and expenses, it appears that the earnings of the
judgment obligor for his personal services are more than necessary for the support of his
family, the court may order that he pay the judgment in fixed monthly installments, and upon
his failure to pay any such installment when due without good excuse, may punish him for
indirect contempt.

Section 41. Appointment of receiver. — The court may appoint a receiver of the property of
the judgment obligor; and it may also forbid a transfer or other disposition of, or any
interference with, the property of the judgment obligor not exempt from execution.

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Appointment of receiver

The court may appoint a receiver of the property of the judgment obligor; and it may
also forbid a transfer or other disposition of, or any interference with, the property of the
judgment obligor not exempt from execution.

Section 42. Sale of ascertainable interest of judgment obligor in real estate. — If it appears
that the judgment obligor has an interest in real estate in the place in which proceedings are
had, as mortgagor or mortgagee or other- wise, and his interest therein can be ascertained
without controversy the receiver may be ordered to sell and convey such real estate or the
interest of the obligor therein; and such sale shall be conducted in all respects in the same
manner as is provided for the sale of real state upon execution, and the proceedings thereon
shall be approved by the court before the execution of the deed. (34a)

Sale of ascertainable interest of judgment obligor in real estate

If it appears that the judgment obligor has an interest in real estate in the place in which
proceedings are had, as mortgagor or mortgagee or other- wise, and his interest therein can be
ascertained without controversy the receiver may be ordered to sell and convey such real
estate or the interest of the obligor therein; and such sale shall be conducted in all respects in
the same manner as is provided for the sale of real state upon execution, and the proceedings
thereon shall be approved by the court before the execution of the deed.

Section 43. Proceedings when indebtedness denied or another person claims the property. —
If it appears that a person or corporation, alleged to have property of the judgment obligor or
to be indebted to him, claims an interest in the property adverse to him or denied the debt,
the court may authorize, by an order made to that effect, the judgment obligee to institute an
action against such person or corporation for the recovery of such interest or debt, forbid a
transfer or other disposition of such interest or debt within one hundred twenty (120) days
from notice of the order, and may punish disobedience of such order as for contempt. Such
order may be modified or vacated at any time by the court which issued it, or by the court in
which the action is brought, upon such terms as may be just.

Proceedings when indebtedness denied or another person claims the property

If it appears that a person or corporation, alleged to have property of the judgment

obligor or to be indebted to him, claims an interest in the property adverse to him or denied
the debt, the court may authorize, by an order made to that effect, the judgment obligee to
institute an action against such person or corporation for the recovery of such interest or debt,
forbid a transfer or other disposition of such interest or debt within one hundred twenty (120)
days from notice of the order, and may punish disobedience of such order as for contempt.
Such order may be modified or vacated at any time by the court which issued it, or by the court
in which the action is brought, upon such terms as may be just.

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Section 44. Entry of satisfaction of judgment by clerk of court. — Satisfaction of a judgment
shall be entered by the clerk of court in the court docket, and in the execution book, upon the
return of a writ of execution showing the full satisfaction of the judgment, or upon the filing
of an admission to the satisfaction of the judgment executed and acknowledged in the same
manner as a conveyance of real property by the judgment obligee or by his counsel unless a
revocation of his authority is filed, or upon the endorsement of such admission by the
judgment obligee or his counsel, on the face of the record of the judgment.

Entry of satisfaction of judgment by clerk of court

Satisfaction of a judgment shall be entered by the clerk of court in the court docket, and
in the execution book, upon the return of a writ of execution showing the full satisfaction of the
judgment, or upon the filing of an admission to the satisfaction of the judgment executed and
acknowledged in the same manner as a conveyance of real property by the judgment obligee or
by his counsel unless a revocation of his authority is filed, or upon the endorsement of such
admission by the judgment obligee or his counsel, on the face of the record of the judgment.

Section 45. Entry of satisfaction with or without admission. — Whenever a judgment is

satisfied in fact, or otherwise than upon an execution on demand of the judgment obligor,
the judgment obligee or his counsel must execute and acknowledge, or indorse an admission
of the satisfaction as provided in the last preceding section, and after notice and upon motion
the court may order either the judgment obligee or his counsel to do so, or may order the
entry of satisfaction to be made without such admission.

Entry of satisfaction with or without admission.

Whenever a judgment is satisfied in fact, or otherwise than upon an execution on

demand of the judgment obligor, the judgment obligee or his counsel must execute and
acknowledge, or indorse an admission of the satisfaction as provided in the last preceding
section, and after notice and upon motion the court may order either the judgment obligee or
his counsel to do so, or may order the entry of satisfaction to be made without such admission.

Section 46. When principal bound by judgment against surety. — When a judgment is
rendered against a party who stands as surety for another, the latter is also bound from the
time that he has notice of the action or proceeding, and an opportunity at the surety's
request to join in the defense.

When principal bound by judgment against surety

When a judgment is rendered against a party who stands as surety for another, the
latter is also bound from the time that he has notice of the action or proceeding, and an
opportunity at the surety's request to join in the defense.

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Section 47. Effect of judgments or final orders. — The effect of a judgment or final order
rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final
order, may be as follows:

(a) In case of a judgment or final order against a specific thing, or in respect to the
probate of a will, or the administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or 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 or administration or the condition, status or relationship of the
person, however, the probate of a will or granting of letters of administration shall
only be prima facie evidence of the death of the testator or intestate;

(b) In other cases, the judgment or final order is, with respect to the matter directly
adjudged or as to any other matter that could have been missed in relation thereto,
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
and under the same title and in the same capacity; and

(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 or final order which
appears upon its face to have been so adjudged, or which was actually and necessarily
included therein or necessary thereto.

Effect of judgments or final orders.

The effect of a judgment or final order rendered by a court of the Philippines, having
jurisdiction to pronounce the judgment or final order, may be as follows:

(a) In case of a judgment or final order against a specific thing, or in respect to the
probate of a will, or the administration of the estate of a deceased person, or in respect
to the personal, political, or legal condition or 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 or administration or the condition, status or relationship of the person,
however, the probate of a will or granting of letters of administration shall only
be prima facie evidence of the death of the testator or intestate;

(b) In other cases, the judgment or final order is, with respect to the matter directly
adjudged or as to any other matter that could have been missed in relation thereto,
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 and
under the same title and in the same capacity; and

(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 or final order which

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 appears upon its face to have been so adjudged, or which was actually and necessarily
included therein or necessary thereto.

Section 48. Effect of foreign judgments or final orders. — The effect of a judgment or final
order of a tribunal of a foreign country, having jurisdiction to render the judgment or final
order is as follows:

(a) In case of a judgment or final order upon a specific thing, the judgment or final
order, is conclusive upon the title to the thing, and

(b) In case of a judgment or final order against a person, the judgment or final order is
presumptive evidence of a right as between the parties and their successors in interest
by a subsequent title.

In either case, the judgment or final order may be repelled by evidence of a want of
jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.

Effect of foreign judgments or final orders

The effect of a judgment or final order of a tribunal of a foreign country, having

jurisdiction to render the judgment or final order is as follows:

(a) In case of a judgment or final order upon a specific thing, the judgment or final order,
is conclusive upon the title to the thing, and

(b) In case of a judgment or final order against a person, the judgment or final order is
presumptive evidence of a right as between the parties and their successors in interest
by a subsequent title.

In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction,
want of notice to the party, collusion, fraud, or clear mistake of law or fact.

Miscellaneous principles to be remembered in execution sales:

1. A notice of sale is required before the property levied upon is sold on execution (sec. 15,
Rule 39). All sales of property under execution must be made at public auction to the
highest bidder (Sec. 19) but the execution sale must be preceded by a valid levy which is
indispensable for a valid execution sale.
2. A levy is the act whereby the sheriff sets apart or appropriates a part of the whole of the
properties of the judgment obligor to satisfy the command of the writ (Fiestan v. CA,
185 SCRA 751).
3. A levy upon real property is made by the officer by performing two specific acts: (a)
filing with the Register of Deeds a copy of the order, description of the attached

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 property and notice of attachment; and (b) leaving with the occupant of the property a
copy of the same order, description and notice.
SUMMARY OF MANNER OF SALE ON EXECUTION
1. All sales of property shall be made at public auction, to the highest bidder, to start at
the exact time fixed in the notice. In the public auction, the officer conducting the
execution sale, nor his deputies, can become a purchaser, nor be interested directly
or indirectly in any purchase at such sale (Sec. 19, Rule 39). The judgment obligee,
however, may be a purchaser in the auction sale. When the purchaser is the
judgment obligee, and no third party claim is filed, he need not pay the amount of
the bid if it does not exceed the amount of the judgment. If it does, he shall only pay
the excess. (Sec. 21). It is worth remembering that in execution sales, the sheriff
does not warrant the title to the property sold by him. The rule of caveat emptor
applies to execution sales (Allure Manufacturing, Inc. vs. CA, 199 SCRA 285)
2. The judgment obligor, if present at the sale, may direct the order in which the
property, real or personal shall be sold, when such property consists of several lots
or parcels, which can be sold to advantage separately
3. After sufficient property has been sold to satisfy the execution, no more shall be
sold. Any excess property or proceeds of the sale shall be promptly delivered to the
judgment obligor or his authorized representative unless otherwise directed by the
court
4. If the property sold to a purchaser is a personal property capable of manual delivery,
and the purchaser pays the price, the officer making the sale must deliver the
property to the purchaser and, if desired, execute and deliver to him a certificate of
sale. The purchaser then acquires all the rights, which the judgment obligor had in
such property as of the date of the levy on execution or preliminary attachment.
5. If the property purchased is one not capable of manual delivery, and the purchaser
pays the price, the officer making the sale must execute and deliver to the purchaser
a certificate of sale. The purchaser then acquires all the rights, which the judgment
obligor had in such property as of the date of the levy on execution or preliminary
attachment (Sec. 24). The certificate of sale shall contain: (a) a particular description
of the real property sold; (b) the price paid for each distinct lot or parcel; (c) the
whole price paid by him; (d) a statement that a right of redemption expires one (1)
year from the date of the registration of the certificate of sale. Such certificate of
sale must be registered in the registry of deeds where the property is situated.
6. Where a property sold by virtue of execution has been claimed by a third person,
the certificate of sale to be issued by the sheriff shall make express mention of the
existence of such third-party claim.
7. If the purchaser refuses to pay the amount bid by him, the officer may sell the
property again. The officer may reject the subsequent bid of the purchaser who

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 refuses to pay. The court may likewise order the refusing purchaser to pay into the
court the amount of any loss occasioned by his refusal to pay, with costs. He may
even be punished for contempt if he disobeys the order for him to pay. The amount
paid shall be applied for the benefit of the person entitled to the proceeds of the
execution, except if the execution has already been fully satisfied.
8. Upon the sale of real property, the officer must give to the purchaser a certificate of
sale containing: (a) a particular description of the real property sold; (b) the price
paid for each distinct lot or parcel; (c) the whole price paid by the purchaser; (d) and
a statement that the right of redemption expires one (1) year from the date of the
registration of the certificate of sale. The certificate of sale shall be registered in the
registry of deeds of the place where the property is situated. The purchaser shall not
be entitled to receive the rents, earnings and income derived from the property sold
on execution, or the value and the use and occupation thereof when such property
is in the possession of a tenant. All rents, earnings and income derived from the
property pending redemption shall belong to the judgment debtor until the
expiration of the period of redemption.
9. The purchaser of land sold at public auction under a writ of execution only has an
inchoate right in the property, subject to be defeated and terminated within the
period of redemption. Hence, the judgment debtor who is in possession of the
property is entitled to remain therein during the period allowed for redemption
(Dizon vs. Gaborro, 83 SCRA 688)
BASIC RULES ON THE REDEMPTION OF REAL PROPERTY SOLD:
1. The real property sold may be redeemed by the judgment obligor or redemptioner
within one (1) year not from the date of sale, but from the date of registration of
the certificate of sale (Sec. 28). The judgment obligor or redemptioner may redeem
the property from the purchaser by paying the purchaser the amount of the
purchase, with one per centum interest per month up to the time of redemption.
The redemptioner shall also pay any assessments or taxes, which the purchaser may
have paid after the purchase together with interest of one per centum per month on
the payment, made for said taxes or assessments.
2. In all cases the judgment obligor shall have the entire period of one (1) year to
redeem the property (Sec. 33). Any other redemptioner has also one (1) year to
redeem the property if he is the first redemptioner. If he is a subsequent
redemptioner other than the judgment obligor, he has only a period of sixty (60)
days from the last redemption. The property so redeemed may again be redeemed
within sixty (60) days after the last redemption upon the payment of the sum paid
on the last redemption with two per centum interest and also the taxes and
assessments which may have paid by the last redemptioner.

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 3. Written notice of redemption must be given to the officer who made the sale and a
duplicate filed with the Registry of Deeds.
4. The property sold may be redeemed by the judgment obligor himself or his
successor in interest (Sec. 27 [a]). The term “successor” in interest includes one to
whom the debtor has conveyed his interest includes one to whom the debtor has
conveyed his interest in the property for purposes of redemption. A judgment
debtor whose property is levied on execution may transfer his right of redemption
to any one whom he may desire because the right to redeem is a property right and
may be sold voluntarily by its owner (Dizon vs. Gaborro, 83 SCRA 688).
5. It also may be redeemed by a creditor having a lien by virtue of an attachment,
judgment or mortgage on the property sold, or on some part thereof subsequent to
the lien under which the property was sold. Such redeeming creditor is called a
redemptioner. A redemptioner must produce to the officer, or person from whom
he seeks to redeem, a duly certified copy of the judgment or final order under which
he claims the right to redeem. If he redeems upon a mortgage or other lien, he must
produce a duly certified memorandum of the record thereof.
6. If no redemption is made within one (1) year from the registration of the certificate
of sale, the purchaser is entitled to a conveyance and possession of the property. If
the property was previously redeemed and no other redemption has been made
after sixty (60) days have elapsed, the last redemptioner is entitled to the
conveyance and possession of the property. The deed shall be executed by the
officer making the sale or by his successor to the office.
7. Upon the expiration of the right of redemption, the purchaser or redemptioner shall
be substituted to and acquire all rights, title, interest and claim of the judgment
obligor to the property at the time as of the time of the levy (Sec. 33). The failure of
the judgment debtor to redeem the property after the expiration of the redemption
period vests title over the property to the purchaser and there is no need for the
confirmation of the sale, unlike a foreclosure sale (Palma vs. CA, 232 SCRA 714).

References:

1. Civil Procedure – A Guide for the Bench and the Bar—by Ferdinand Tan
2. Civil Procedure – The Bar Lecture Series Vol. 1 – by Willard B. Riano
3. Answer to Bar Examination Questions in Remedial Law
4. 2019 Revised Rules on Civil Procedure

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