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SPECIAL CIVIL ACTIONS Ordinary Civil Actions A party sues another for the enforcement or protection of a right or the prevention or redress of a wrong Governed by the rules for ordinary civil actions Involves two or more parties Initiated by complaint !ased on "OA Special Civil Actions A civil action subject specific/special rules Special Proceedings It is a remedy by which a party seeks to establish a status, a right or a particular fact Governed by special rules and ordinary rules apply suppletorily May involve only one party Initiated by petition #ot based on "OA $e%cept habeas corpus& BY

to

Ordinary rules apply primarily but subject to specific rules Involves two or more parties ome are initiated by complaint some by petition ome special civil actions have no "OA BY

SPECIAL CIVIL ACTIONS INITIATED COMPLAINTS PIE!"#$ '( )artition *( Interpleader +( ,%propriation -( .oreclosure of /,M 0( .orcible ,ntry and 1nlawful 2etainer 3.,124

SPECIAL CIVIL ACTIONS INITIATED PETITIONS D%& CPM& 'C$ '( 2eclaratory /elief *( /eview of Adjudication of "OM,5,"/"OA +( "ertiorari -( )rohibition 0( Mandamus 6( 7uo 8arranto 9( "ontempt

SPECIAL CIVIL ACTION '( )artition

*( Interpleader

VEN(E 5ocation of /eal )roperty or a portion thereof: If )ersonal )roperty; )laintiff<s or 2efendant<s residence )laintiff<s or 2efendant<s residence

)(%ISDICTION /="; incapable of pecuniary estimation M="; value of claim or personal property does #O= e%ceed )+>>? or )->>? in Metro Manila ; /eal )roperty@ does not e%ceed )*>? or )0>? in Metro Manila /="; if value e%ceeds the amounts above or if e%clusively within /="<s jurisdiction i.e. incapable of pecuniary estimation such as specific performance or recovery of title /="; incapable of pecuniary estimation /="; incapable estimation M=" of pecuniary

+( ,%propriation

-( .oreclosure of /,M 0( .,12 6( 2eclaratory /elief 9( "ertiorari, )rohibition, Mandamus

5ocation of /eal )roperty or a portion thereof: If )ersonal )roperty; )laintiff<s or 2efendant<s residence 5ocation of /eal )roperty or a portion thereof: 5ocation of )roperty )etitioner//espondent<s residence /=" of the place where /, )O#2,#= is situated A If petition is filed with "A, " or andiganbayan; location of respondent is immaterial /=" of the place where /, )O#2,#= is situated • If petition is filed with "A,

/=" /=", "A, ", andiganbayan in aid of its appellate jurisdiction

B( 7uo 8arranto

/=", "A,

"

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D( "ontempt

" or andiganbayan; location of respondent is immaterial • I. olGen commenced the action, should be in /="; Manila, or "A, or " • andiganbayan has e%clusive original jurisdiction on Cuo warranto in cases filed by )"GG 8here court involved is sitting

M=", /=", "A,

"

I& T*E DI""E%ENT SPECIAL CIVIL ACTIONS A& Interpleader %+le ,#$ ,"=IO# '( 8hen interpleader proper( E 8henever conflicting claims upon the same subject matter are or may be made against a person who claims no interest whatever in the subject matter, or an interest which in whole or in part is not disputed by the claimants, he may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves( ,"=IO# *( Order( E 1pon the filing of the complaint, the court shall issue an order reCuiring the conflicting claimants to interplead with one another( If the interests of justice so reCuire, the court may direct in such order that the subject matter be paid or delivered to the court( ,"=IO# +( ummons( E complaint and order( ummons shall be served upon the conflicting claimants, together with a copy of the

,"=IO# -( Motion to dismiss( E 8ithin the time for filing an answer, each claimant may file a motion to dismiss on the ground of impropriety of the interpleader action or on other appropriate grounds specified in /ule '6( =he period to file the answer shall be tolled and if the motion is denied, the movant may file his answer within the remaining period, but which shall not be less than five $0& days in any event, reckoned from notice of denial( ,"=IO# 0( Answer and other pleadings( E,ach claimant shall file his answer setting forth his claim within fifteen $'0& days from service of the summons upon him, serving copy thereof upon each of the other conflicting claimants who may file their reply thereto as provided by these /ules( If any claimant fails to plead within the time herein fi%ed, the court may, on motion, declare him in default and thereafter render judgment barring him from any claim in respect to the subject matter( =he parties in an interpleader action may file counterclaims, cross;claims, third;party complaints and responsive pleadings thereto, as provided by these /ules( ,"=IO# 6( 2etermination( E After the pleadings of the conflicting claimants have been filed, and pre;trial has been conducted in accordance with the /ules, the court shall proceed to determine their respective rights and adjudicate their several claims( ,"=IO# 9( 2ocket and other lawful fees, costs and litigation e%penses as liens( E =he docket and other lawful fees paid by the party who filed a complaint under this /ule, as well as the costs and litigation e%penses, shall constitute a lien or charge upon the subject matter of the action, unless the court shall order otherwise( -& $'& $*& $+& $-& %e.+isites =he plaintiff claims no interest in the subject matter or his claim is not disputed: =here must at least be two $*& or more conflicting claimants: =he parties to be interpleaded must make effective claims: and =he subject matter must be one and the same(

#& Decisional r+les Interpleader was found to be a proper action in an action of a lessee who does not know to whom to pay rentals due to conflicting claims on the property: $ Pagkalinawan v. Rodas, 1948 and in an action by a bank where the purchaser of a cashierFs check claims it was lost and another has presented it for payment( !"esina v. #$%, 198&&( It was however found to be improper in an action where defendants have conflicting claims against the plaintiff: $'eltran v. P((%, 19&9 and an action where one of the defendants had earlier sued the plaintiff and

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secured a judgment against him which has already become final( =he action is barred by laches or unreasonable delay( !)ack )ack *olf and %ountry %lub, #nc. v. )on, 19+& /& Proced+ral pec+liarities  1pon the filing of the complaint, the court shall issue an order reCuiring the conflicting claimants to interplead with one another( $/ules of "ourt, /ule 6*, ec( *&  =he court may direct in the same order mentioned in the preceding paragraph that the subject matter of the suit be paid or delivered to the court( $Ibid&  =he summons shall be accompanied by copies of the complaint and order mentioned in #o( '( =he defendants may file a motion to dismiss on the ground of the impropriety of the interpleader action or on other appropriate grounds specified in /ule '6(  =he defendants shall serve a copy of the answer not only to the plaintiff but also to their co;defendants who may file their reply thereto(  =he effect of a failure to plead within the prescribed period is that, upon motion, the defendant will be declared in default and thereafter renders judgment barring him from any claim in respect to the subject matter( ,or e-ample. =here is a deposit of goods with a depository$warehouseman& and while in custody, "5AIMA#= G appears and claims the goods as his own( "laimant H also claims the goods( /he )arehouse Receipts 0aw allows the warehouseman if he doesn1t want to decide for himself who is the proper claimant, to file a complaint for interpleader. 8hat happens if one of the defendants, say "5AIMA#= H did not file an answerI %laimant 2 will be declared in default, and chances are the answering defendant !3 , will be awarded the possession or ownership of the property. 4/his is different in ordinary civil actions, under Rule 9 on partial default, the non5answering defendant will be declared in default, while the answering defendant will go to trial and if 6udgment is rendered in favor of the answering defendant, it will benefit the non5answering defendant.  =here is an additional ground for motion to dismiss founded on IM)/O)/I,=H O. =J, .I5I#G O. =J, "OM)5AI#= "ontinuing with the e%ample above, what if the warehouseman after denying the claim of G, the latter filed a complaint for replevin against the warehouseman( "an the warehouseman still file a complaint for interpleader against all the complaintsI #O( =hat will be splitting the "OA( =he complaint for interpleader should be set up as a counterclaim in the answer( %CBC v& Metro Container Corp0 1% No& -#23-/0 Sept& -/0 #44-! If a property was mortgaged and right has been consolidated after failure to redeem, interpleader may no longer be filed by the lessee who pretends not to know to whom payment should be made, because the Cuestion in the unlawful detainer suit is limited to the Cuestion of physical or material possession of the premises( =he issue of ownership is immaterial and the outcome of the case cannot in any way affect conflicting claims of ownership the filing of the interpleader suit is founded on the fact that the lessee did not know to whom payment should be made but due to the judgment ordering it to pay to the lessor, the reason for the interpleader action ceased( 8hen the judgment became final and e%ecutory, the lessee has no more alternative left but to pay the rentals to the lessor( !( Declaratory %elie5 and Si6ilar %e6edies %+le ,/$ ,"=IO# '( 8ho may file petition( E Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, e%ecutive order or regulation, ordinance, or any other governmental regulation may, before breach or violation thereof, bring an action in the appropriate /egional =rial "ourt to determine any Cuestion of construction or validity arising, and for a declaration of his rights or duties thereunder( An action for the reformation of an instrument, to Cuiet title to real property or remove clouds therefrom, or to consolidate ownership under Article '6>9 of the "ivil "ode, may be brought under this /ule( ,"=IO# *( )arties( E All persons who have or claim any interest which would be affected by the declaration shall be made parties: and no declaration shall, e%cept as otherwise provided in these /ules, prejudice in the rights of persons not parties to the action( ,"=IO# +( #otice on olicitor General( E In any action which involves the validity of a statute, e%ecutive order or regulation, or any other governmental regulation, the olicitor General shall be notified by the party assailing the same and shall be entitled to be heard upon such Cuestion(

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,"=IO# -( 5ocal government ordinances( E In any action involving the validity of a local ordinance, the corresponding prosecutor or attorney of the local governmental unit involved shall be similarly notified and entitled to be heard( If such ordinance is alleged to be unconstitutional, the olicitor General shall be notified and entitled to be heard( ,"=IO# 0( "ourt action discretionary( E ,%cept in actions falling under the second paragraph of section ' of this /ule, the court, motu proprio or upon motion, may refuse to e%ercise the power to declare rights and to construe instruments in any case where a decision would not terminate the uncertainty or controversy which gave rise to the action, or in any case where the declaration or construction is not necessary and proper under the circumstances( ,"=IO# 6( "onversion into ordinary action( E If before the final termination of the case, a breach or violation of an instrument, or a statute, e%ecutive order or regulation, ordinance, or any other governmental regulation should take place, the action may thereupon be converted into an ordinary action, and parties allowed to file such pleadings as may be necessary or proper( -&%e.+isites $'& =here must be a justiciable controversy: !7biles v. Republic 41989: $*& =he controversy must be between persons whose interest is adverse: $+& =he parties must have legal interest in the controversy: $-& =he controversy must be ripe for judicial determination: !'oard of 7ptometry v. %olet, 199& and $0& =he petition must be filed before there is a breach or violation( $/ules of "ourt, /ule 6+, ec( '& #& Proced+ral pec+liarities  =he petition must be filed before there is a breach of contract or violation of the statute or ordinance( $ibid&  =hird;party complainant is not allowed( !%ommissioner of %ustoms v. %loribel, 19++  ,%cept in actions for Cuieting of title, reformation of instrument, and consolidation of ownership in case of sales, the court action on an action for declaratory relief is discretionary( =hus, the court motu proprio or upon motion may refuse to e%ercise the power to declare rights and to construe instruments in any case where a decision would not terminate the uncertainty or controversy which gave rise to the action or in any case where the declaration or construction is not necessary under the circumstances( $/ules of "ourt, /ule 6+, ec( 0&( 3Ordinary procedures apply to these three actions, including jurisdiction4  8hen a statute, e%ecutive order or any government regulation or ordinance is alleged to be unconstitutional, the olicitor;General should be notified by the party assailing the same( $Ibid(, ec( +&  If the validity of a local government ordinance is in Cuestion, the prosecutor or attorney of the local government should be notified( $Ibid(, ec( -&  #o summons is issued upon filing of the petition( =he court is given the discretion to dismiss outright the petition(  5ike interpleader, there is no "OA here  /ule +D does not apply because what the court does is only to declare the rights and duties of the parties( =here is no award( /& Declaratory relie5 i6proper in t7e 5ollo8ing cases $'& to obtain judicial declaration of citiKenship: $;ingson v. Republic, 19&8& $*& to seek relief on moot Cuestions or to resolve hypothetical, abstract or theoretical Cuestions, or to decide claims which are uncertain: !0im v. Republic, 19+1 $+& to resolve political issues or Cuestions: !<ela 0lana v. %7"=0=%, 19++ $-& to test the correctness or validity of a court decision: !/anda v. $ldaya, 198& $0& to determine hereditary rights: !=dades v. =dades, 198& $6& when the petition is based upon the happening of a contingent event: $9& when the petitioner is not the real party in interest: !;antos v. $>uino, 41989: and $B& when administrative remedies have not yet been e%hausted( $ 7llada v. %entral 'ank, 19&? C& Certiorari0 Pro7i9ition and Manda6+s %+le ,:$ %(LE ,: pecial "ivil Action $Original Action& ubject is interlocutory order 7uestion of Lurisdiction .iled w/in 6> days after notice of judgment %(LE ;: Mode of Appeal ubject is .inal Ludgment 7uestion of 5aw .iled within '0 days after notice of judgment

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Motion for reconsideration reCuired 2oes not stay judgment )arty is the court or tribunal, or officer May be filed in /="

#o M/ is reCuired tays judgment Original parties .iled in "

,"=IO# '( )etition for certiorari( E 8hen any tribunal, board or officer e%ercising judicial or Cuasi;judicial functions has acted without or in e%cess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or e%cess of jurisdiction, and there is no appeal, or any plain, speedy, and adeCuate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may reCuire( =he petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non;forum shopping as provided in the paragraph of section +, /ule -6( ,"=IO# *( )etition for prohibition( E 8hen the proceedings of any tribunal, corporation, board, officer or person, whether e%ercising judicial, Cuasi;judicial or ministerial functions, are without or in e%cess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or e%cess of jurisdiction, and there is no appeal or any other plain, speedy, and adeCuate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may reCuire( =he petition shall likewise be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non; forum shopping as provided in the third paragraph of section +, /ule -6( ,"=IO# +( )etition for mandamus( E 8hen any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully e%cludes another from the use and enjoyment of a right or office to which such other is entitled, and there in no other plain, speedy and adeCuate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other specified by the court, to do the act reCuired to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent( =he petition shall also contain a sworn certification of non;forum shopping as provided in the third paragraph of section +, /ule -6( ec( -( 8hen and where to file the petition( =he petition shall be filed not later than si%ty $6>& days from notice of the judgment, order or resolution( In case a motion for reconsideration or new trial is timely filed, whether such motion is reCuired or not, the petition shall be filed not later than si%ty $6>& days counted from the notice of the denial of the motion( If the petition relates to an act or an omission of a municipal trial court or of a corporation, a board, an officer or a person, it shall be filed with the /egional =rial "ourt e%ercising jurisdiction over the territorial area as defined by the upreme "ourt( It may also be filed with the "ourt of Appeals or with the andiganbayan, whether or not the same is in aid of the courts appellate jurisdiction( If the petition involves an act or an omission of a Cuasi;judicial agency, unless otherwise provided by law or these rules, the petition shall be filed with and be cogniKable only by the "ourt of Appeals( In election cases involving an act or an omission of a municipal or a regional trial court, the petition shall be filed e%clusively with the "ommission on ,lections, in aid of its appellate jurisdiction( ,"=IO# 0( /espondents and costs in certain cases( E 8hen the petition filed relates to the acts or omissions of a judge, court, Cuasi;judicial agency, tribunal, corporation, board, officer or person, the petitioner shall join, as private respondent or respondents with such public respondent or respondents, the person or persons interested in sustaining the proceedings in the court: and it shall be the duty of such private respondents to appear and defend, both in his or their own behalf and in behalf of the public respondent or respondents affected by the proceedings,

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and the costs awarded in such proceedings in favor of the petitioner shall be against the private respondents only, and not against the judge, court, Cuasi;judicial agency, tribunal, corporation, board, officer or person impleaded as public respondent or respondents( 1nless otherwise specifically directed by the court where the petition is pending, the public respondents shall not appear in or file an answer or comment to the petition or any pleading therein( If the case is elevated to a higher court by either party, the public respondents shall be included therein as nominal parties( Jowever, unless otherwise specifically directed by the court, they shall not appear or participate in the proceedings therein( ,"=IO# 6( Order to comment( E If the petition is sufficient in form and substance to justify such process, the court shall issue an order reCuiring the respondent or respondents to comment on the petition within ten $'>& days from the receipt of a copy thereof( uch order shall be served on the respondents in such manner as the court may direct, together with a copy of the petition and any anne%es thereto( In petitions for certiorari before the upreme "ourt and the "ourt of Appeals, the provisions if section *, /ule 06, shall be observed( !efore giving due course thereto, the court may reCuire the respondents to file their comment to, and not a motion to dismiss, the petition( =hereafter, the court may reCuire the filing of a reply and such other responsive or other pleadings as it may deem necessary and proper( ec( 9( ,%pediting proceedings: injunctive relief( =he court in which the petition is filed may issue orders e%pediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings( =he petition shall not interrupt the course of the principal case, unless a temporary restraining order or a writ of preliminary injunction has been issued, enjoining the public respondent from further proceeding with the case( =he public respondent shall proceed with the principal case within ten $'>& days from the filing of a petition for certiorari with a higher court or tribunal, absent a temporary restraining order or a preliminary injunction, or upon its e%piration( .ailure of the public respondent to proceed with the principal case may be a ground for an administrative charge( ec( B( )roceedings after comment is filed( After the comment or other pleadings reCuired by the court are filed, or the time for the filing thereof has e%pired, the court may hear the case or reCuire the parties to submit memoranda( If, after such hearing or filing of memoranda or upon the e%piration of the period for filing, the court finds that the allegations of the petition are true, it shall render judgment for such relief to which the petitioner is entitled( Jowever, the court may dismiss the petition if it finds the same patently without merit or prosecuted manifestly for delay, or if the Cuestions raised therein are too unsubstantial to reCuire consideration( In such event, the court may award in favor of the respondent treble costs solidarily against the petitioner and counsel, in addition to subjecting counsel to administrative sanctions under /ules '+D and '+D;! of the /ules of "ourt( =he "ourt may impose motu proprio, based on res ipsa lo>uitur, other disciplinary sanctions or measures on erring lawyers for patently dilatory and unmeritorious Petitions for %ertiorari( ,"=IO# D( ervice and enforcement of order or judgment( E A certified copy of the judgment rendered in accordance with the last preceding section shall be served upon the court, Cuasi;judicial agency, tribunal, corporation, board, officer or person concerned in such manner as the court may direct, and disobedience thereto shall be punished as contempt( An e%ecution may issue for any damages or costs awarded in accordance with section ' of /ule +D( CE%TIO%A%I %e.+isites A tribunal, board or officer e%ercises judicial or Cuasi;judicial function: a( It or s/he acts without or in e%cess of jurisdiction or with grave abuse of discretion: and b( =here is no appeal nor plain, speedy and adeCuate remedy in the ordinary cause of law( '( 8ithout jurisdiction M absence of a legal power to determine a case( *( ,%cess of jurisdiction M the court has jurisdiction but fails to comply with the conditions prescribed for its e%ercise( !0eung 'en v. 71'rien, 41918:@ /engco v. Aocson, 419??: +( Grave abuse of discretion M judicial power is e%ercised capriciously, arbitrarily or despotically due to passion or personal hostility( !,ilinvest %redit %orporation v. #$%, 1988

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<7en not proper %ertiorari is not a proper remedy if appeal is available or it is lost through the fault of the petitioner, !<illena v. %$, 1988@ Belasco Bda. <e %aldito v. ;egundo, 198? e%cept@ $'& appeal is not a speedy and adeCuate remedy: !;aludes v. Pa6arillo, 4194+: $*& order is issued without or in e%cess of jurisdiction: !PC' v. ,lorendo, 199? $+& in consideration of public welfare and for the advancement of public policy: !Aose v. Dulueta, 19&1 $-& order is a patent nullity: !"arcelo v. <e *uEman, 198?& $0& to avoid future litigation: !;t. Peter "emorial Park, #nc. v. %ampos, Ar., 19+8 $6& to avoid a miscarriage of justice:$=scudero v. <ulay, 1988& $9& in furtherance of the broader interest of justice and eCuities( !"arahay v. "elicor, 199F E=ceptions to re.+ire6ents 9e5ore certiorari can 9e availed o5 !efore certiorari can be availed of, petitioner should first file a motion for reconsideration of the challenged order, resolution or decision, !'utuan 'ay )ood =-port %orporation v. %$, 198F& e%cept in the following cases@ $'& in the interest of justice and public welfare and advancement of public policy: !Aose v. Dulueta $*& order was issued without or in e%cess of jurisdiction: !Philippine %onsumers ,oundation, #nc. v. Cational /elecommunications %ommission, 1989 $+& order is a patent nullity !$>uino v. C0R%, 1999 as when petitionerFs right to due process was denied in the lower court $'ache and %o. !Phil. , #nc. v. RuiE, 19+1 or petitioner has been unlawfully deprived of his right to appeal: !C=$ v. %$ 1989 $-& when relief is e%tremely urgent, there is no more need to wait for the resolution of a motion for reconsideration: !Bda. de ;ayman v. %$, 1989 $0& when the Cuestions raised and passed upon in the lower court are the same as those to be passed upon in the certiorari case: !Pero-ide Philippines %orporation v. %$, 1991 and $6& Cuestion is purely of law( !%entral 'ank v. %loribel, 19+? %e.+ire6ents regarding t7e e=trinsic s+55iciency o5 t7e petition $'& it must be verified: $/ules of "ourt, /ule 60, ec( '& $*& accompanied by a certificate of non;forum shopping: $Ibid(& $+& accompanied with certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto: $Ibid& $-& proof of service pursuant to /ule '+, ection ': and $0& if not filed and served personally, then, it should be accompanied by a written e%planation why personal service was not resorted to( $/ules of "ourt, /ule '+, ec( ''& Decisions As a general rule, certiorari is not a proper remedy to assail the order of the trial court denying a demurrer to evidence in a civil case( $$sian /rading %orporation v. %$, 1999 Motion for reconsideration and, in case of denial, appeal, are the proper remedy( Pro7i9ition %e.+isites '( =here is a controversy *( respondent is e%ercising judicial, Cuasi;judicial or ministerial functions +( respondent acted without or in e%cess of jurisdiction or acted with grave abuse of discretion amounting to lack of jurisdiction -( =here must be no appeal or other plain, speedy and adeCuate remedy Manda6+s %e.+isites $'& a tribunal, corporation, board, officers or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty arising from an office, trust, or station or unlawfully e%cludes another from the use or enjoyment of a right or office to which the plaintiff is entitled: and $*& there is no other plain, speedy and adeCuate remedy in the ordinary course of law(

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Decisional r+les  "andamus is an appropriate remedy to compel a corporation to grant its monthly salaried employees holiday pay( !"antradeG,""% <ivision =mployees and )orkers Hnion v. 'acungan, 198&  "andamus is not proper to compel a school to enroll a student for academic deficiencies because this involves the e%ercise by the school of discretion under academic freedom( $ HP v. $yson, 1989  "andamus will not lie against the )resident or "ongress because of the principle that the judiciary is a co; eCual department of the latter( !;uanes v. %hief $ccountant of the ;enate, 1948, Resolution on the "R  .ailure to e%haust administrative remedies is generally fatal to an action for mandamus( $$>uino v. "ariano, 1984 =he e%ception is when the Cuestion is purely of law( !7ne (eart ;porting %lub, #nc. v. %$, 1981  $lthough the rules say that its only in mandamus that there could be an award of damages, there can also be an award in prohibition and certiorari Pec+liarity in Proced+re CPM$  "ourt can dismiss outright if not sufficient in form and substance  #o summons is issued to respondents, instead the receipt of order to comment by the respondent is the time when the court acCuires jurisdiction over his/her/its person(  =he respondent must comment within the period fi%ed in the order, unlike in ordinary rules where it is provided, $'0 days to answer&(  =here is no such thing as default when respondent failed to comment( =he court will continue to hear the petition and render judgment thereon despite the absence of comment( =his is possible because usually there are no factual issues involved( =he issues delve only on jurisdiction(  ")M is not limited to interlocutory orders, under /ule -', there are instances when an order even if final is not subject to appeal, hence the remedy is /ule 60( /15, -'( ection '( %%% #o appeal may be taken from@ '( An order denying a petition for relief or any similar motion seeking relief from judgment: *( An interlocutory order: +( An order disallowing or dismissing an appeal: -( An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent 0( An order of e%ecution 6( A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross;claims and third;party complaints, while the main case is pending, unless the court allows an appeal therefrom: and 9( An order dismissing an action without prejudice( In any of the foregoing circumstances, the aggrieved party may file an appropriate special civil action as provided in /ule 60( =here is always a public and private respondent( i.e. when the issue is the award of damages. )ublic respondent is not allowed to defend himself openly( o if the public respondent is the court, the judge could not file separately his own pleadings, he could not even appeal before the court to defend the validity of the ordewr/judgment( ,verything is left to the private respondent and it is the duty of the private respondent to defend the validity, propriety of the order or judgment that has been assailed( P%O*IBITION 2irected vs( an entity or person e%ercising L12I"IA5/71A I; L12I"IA5/MI#I =,/IA5 function Allegation that respondent acted 8/O or in e%cess of jurisdiction O/ G/AN, A!1 , of discretion amounting to lack or e%cess of jurisdiction .or respondent to desist from further proceeding )reventive and negative remedy 2iscretionary and ministerial acts MANDAM(S 2irected vs( an entity or person e%ercising MI#I =,/IA5 function Allegation that respondent unlawfully neglected a ministerial duty O/ e%cluded another from a right or office .or respondent to 2O the act reCuired and )ay damages Affirmative or )ositive remedy Ministerial acts

 

CE%TIO%A%I 2irected vs( an entity or person e%ercising L12I"IA5/71A I; L12I"IA5 function Allegation that respondent acted 8/O or in e%cess of jurisdiction O/ G/AN, A!1 , of discretion amounting to lack or e%cess of jurisdiction )urpose@ Annul a proceeding "orrective remedy 2iscretionary acts

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E&'+o <arranto %+le ,,$ ,"=IO# '( Action by Government against individuals( E An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the /epublic of the )hilippines against@ $a& A person who usurps, intrudes into, or unlawfully holds or e%ercises a public office, position or franchise: $b& A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office: or $c& An association which acts as a corporation within the )hilippines without being legally incorporated or without lawful authority so to act( ,"=IO# *( 8hen olicitor General or public prosecutor must commence action( E =he olicitor General or a public prosecutor, when directed by the )resident of the )hilippines, or when upon complaint or otherwise he has good reason to believe that any case specified in the preceding sections can be established by proof, must commence such action( ,"=IO# +( 8hen olicitor General or public prosecutor may commence action with permission of court( E =he olicitor General or a public prosecutor may, with the permission of the court in which the action is to be commenced, bring such an action at the reCuest and upon the relation of another person: but in such case the officer bringing it may first reCuire an indemnity for the e%penses and cost of the action in an amount approved by and to be deposited in the court by the person at whose reCuest and upon whose relation the same is brought( ,"=IO# -( 8hen hearing had on application for permission to commence action( E 1pon application for permission to commence such action in accordance with the ne%t preceding section, the court shall direct that notice be given to the respondent so that he may be heard in opposition thereto: and if permission is granted, the court shall issue an order to that effect, copies of which shall be served on all interested parties, and the petition shall then be filed within the period ordered by the court( ,"=IO# 0( 8hen an individual may commence such an action( E A person claiming to be entitled to a public office or position usurped or unlawfully held or e%ercised by the another may bring an action therefor in his own name( ,"=IO# 6( )arties and contents of petition against usurpation( E 8hen the action is against a person for usurping a public office, position or franchise, the petition shall set forth the name of the person who claims to be entitled thereto, if any, with an averment of his right to the same and that the respondent is unlawfully in possession thereof( All persons who claim to be entitled to the public office, position or franchise may be made parties, and their respective rights to such public office, position or franchise determined, in the same action( ,"=IO# 9( Nenue E An action under the preceding si% sections can be brought only in the upreme "ourt, the "ourt of Appeals, or in the /egional =rial "ourt e%ercising jurisdiction over the territorial area where the respondent or any of the respondents resides, but when the olicitor General commences the action, it may be brought in a /egional =rial "ourt in the "ity of Manila, in the "ourt of Appeals, or in the upreme "ourt( ,"=IO# B( )eriod for pleadings and proceedings may be reduced: action given precedence( E =he court may reduce the period provided by these /ules for filing pleadings and for all other proceedings in the action in order to secure the most e%peditious determination of the matters involved therein consistent with the rights of the parties( uch action may be given precedence over any other civil matter pending in the court( ,"=IO# D( Ludgment where usurpation found( E 8hen the respondent is found guilty of usurping, intruding into, or unlawfully holding or e%ercising a public office, position or franchise, judgment shall be rendered that such respondent be ousted and altogether e%cluded therefrom, and that the petitioner or relator, as the case may be, recover his costs( uch further judgment may be rendered determining the respective rights in and to the public office, position or franchise of all the parties to the action as justice reCuires( ,"=IO# '>( /ights of persons adjudged entitled to public office: delivery of books and papers: damages( E If judgment be rendered in favor of the person averred in the complaint to be entitled to the office he may, after taking the oath of office and e%ecuting any official bond reCuired by law, take upon himself the e%ecution of the office, and may immediately thereafter demand of the respondent all the books and papers in the respondentFs custody or control appertaining to the office to which the judgment relates( If the respondent refuses or neglects to deliver any book or paper pursuant to such demand, he may be punished for contempt as having disobeyed a

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lawful order of the court( =he person adjudged entitled to the office may also bring action against the respondent to recover the damages sustained by such person by reason of the usurpation( ,"=IO# ''( 5imitations( E #othing contained in this /ule shall be construed to authoriKe an action against a public officer or employee for his ouster from office unless the same be commenced within one $'& year after the cause of such ouster, or the right of the petitioner to hold such office or position, arose: nor to authoriKe an action for damages in accordance with the provisions of the ne%t preceding section unless the same be commenced within one $'& year after the entry of the judgment establishing the petitionerFs right to the office in Cuestion( ,"=IO# '*( Ludgment for costs( E In an action brought in accordance with the provisions of this /ule, the court may render judgment for costs against either the petitioner, the relator, or the respondent, or the person or persons claiming to be a corporation, or may apportion the costs, as justice reCuires( De5inition A >uo warranto is a prerogative writ by which the Government can call upon any person to show by what warrant he holds a public office or e%ercises a public franchise( $9 "oran ?F8 419+F: '+o <arranto as disting+is7ed 5ro6 election contest If the dispute is as to the counting of votes or on matters connected with the conduct of the election, >uo warranto is not the proper remedy but an election protest( !%aesar v. *arrido, 419?9: 8hen the dispute is on the ineligibility of a person sought to be ousted, >uo warranto is the proper action( !,ortuno v. Palma, 198+ Pec+liarities o5 proceedings  8hen the olicitor General or a public prosecutor commences the action at the instance of another person, leave of court must first be secured(  =he motion for leave must be set for hearing with notice to the respondent so that he may be heard: and  =he court issues the order allowing the filing of the action within the period fi%ed therein( $ o the court here is given the prerogative to reduce the filing of pleading&  =his is one proceeding which violates the rule on splitting the "OA( =he petition for Cuo warranto is designed for the purpose of determining who between the contestants is entitled to hold an office, either a corporate office or a public office( Once the court has decide this issue, the law authoriKes the winning party to file a subseCuent complaint for recovery of damages arising from the usurpation of office(  Although no made mention regarding observation of hierarchy of courts unlike in /ule 60, this has to be applied, according to " decisions( "E%DINAND TOPACIO vs& ASSOCIATE )(STICE 1%E1O%Y ON1 and O""ICE O" SOLICITO% 1ENE%AL 1r& No& -23>3: Dece69er ->0 #44> "acts? Ong filed a petititon for correction of an entry in his certificate of birth before the /=" in compliance with the " decision in ?ilosbayan .oundation v( ,rmita on Luly +, *>>9 enjoining him from accepting appointment to the position of Associate Lustice of upreme "ourt until have shown through adversarial proceedings that he is a natural born citiKen( In the present case, )etitioner =opacio filed a petition for certiorari and prohibition to prevent Ong from e%ercising powers, duties and responsibilities as a andiganbayan Associate Lustice( On eptember 0, =opacio filed a letter;complaint praying that the olicitor General to bring in a Cuo warranto proceeding against Ong in the latter<s capacity as an incumbent andiganbayan member( )etitioner invoked par( ', ec( 9, Art( NIII of the "onstitution and the decision in ?ilosbayan .oundation v( ,rmita( Ong<s birth certificate and bar records evidenced his "hinese citiKenship( )etitioner avers that Ong should immediately vacate his post bearing out his status as a naturaliKed .ilipino citiKen( =he olicitor General informed the petitioner that it cannot act favorably on the latter<s reCuest for filing the Cuo warranto suit until the resolution of the /=" case is decided by final judgment( In his answer, Ong contends that in ?ilosbayan .oundation v( ,rmita, he voluntarily refused to accept the appointment in the upreme "ourt and said decision does not annul his appointment but merely enjoined him from accepting the post, there being no definite pronouncement that he is not a natural born citiKen( Ong then filed his manifestation and motion to dismiss before the /=" alleging that he was already recogniKed as a natural born citiKen by a court decision( Je attached the said decision in his birth certificate( Ong further claims that the present petition is devoid of merit, or at the very least, it must await the final disposition of the /=" case which to him involves a prejudicial issue( Meanwhile, the solicitor general alleges that the present petition is defectively verified( Iss+es? '& 8O# the olGen committed grave abuse of discretion in refusing the filing of Cuo warranto suit

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*& 8O# the initiation by the petition for certiorari and prohibition is proper to challenge the title to public office of Lustice Ong *eld? '& #o( =here was no grave abuse of discretion in deferring an action on the filing of a Cuo warranto suit until after the /=" case has been decided with finality( /ule 66 provides that Oan action for usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of /epublic of the )hilippines against a public officer who does or suffers an act which by the provision of law, constitutes a ground for forfeiture of his office( =he olgen when upon complaint or otherwise he has good reason to believe that any case specified in the preceding section can be established by proof must commence such action( Jowever, the olgen may suspend or struck down the institution of action for Cuo warranto where there are just and valid reasons( Je may start the prosecution of the case by filing the appropriate action in court or he may opt not to file the suit at all( Je may do everything within his legal authority but always conformably with the national interest and the policy of the government on the matter at hand( =he olgen noticed the folly of re;litigation on the issue of Ong<s citiKenship in the Cuo warranto case simultaneously with the /=" case( =he olgen merely advised the petitioner to await the outcome of the /=" case( *& #o( " declared that the proper petition is a Cuo warranto proceeding, not petition for certiorari and prohibition for the former action seeks to declare null and void( )etitioner claims that Ong<s appointment as an Associate Lustice of andiganbayan is being unconstitutional( =he petition professes to be for certiorari and prohibition but it shows a OCuo warrantoP aspect of the petition( As a collateral attack on a public officer<s title, the present petition for certiorari and prohibition must be dismissed( =he title of a public office may be contested directly by no less a Cuo warranto suit( It cannot be invoked collaterally even by mandamus or motion to annul the order( A Cuo warranto proceeding is the proper legal remedy to determine the title to a contested public office( It is brought against the person who is alleged to have usurped, intruded into or unlawfully held or e%ercised the public office and may be commenced by the olicitor General as the case may be, or by any person claiming to be entitled to public office or position usurped or unlawfully held or e%ercised by another( =here must be a clear right to the contested office( =here was no sufficient proof of a clear franchise to the Office of Associate Lustice of andiganbayan( =he petitioner conceded to that he was neither entitled to the contested office which warrants the termination of the suit( It is the same with rightful authority of a judge in the full e%ercise of his public function which can not be Cuestioned by merely private suitor or by any other e%cept in the form especially provided by law( =o uphold such action would encourage every disgruntled citiKen to resort to courts causing inculpable mischief and hindrance to the efficient operation of the governmental machine( =he "ourt declares that Ong may either be a dejure officer who is deemed legally appointed and whose term of office has not e%pired or a de facto officer who enjoys certain rights among which is his title to said office may not be contested e%cept directly by a Cuo warranto( E=propriation %+le ,2$ ,"=IO# '( =he complaint( E =he right of eminent domain shall be e%ercised by the filing of a verified complaint which shall state with certainty the right and purpose of e%propriation, describe the real or personal property sought to be e%propriated, and join as defendants all persons owning or claiming to own, or occupying, any part thereof or interest therein, showing, so far as practicable, the separate interest of each defendant( If the title to any property sought to be e%propriated appears to be in the /epublic of the )hilippines, although occupied by private individuals, or if the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners, averment to that effect may be made in the complaint( ,"=IO# *( ,ntry of plaintiff upon depositing value with authoriKed government depositary( E 1pon the filing of the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shall have the right to take or enter upon the possession of the real property involved if he deposits with the authoriKed government depositary an amount eCuivalent to the assessed value of the property for purposes of ta%ation to be held by such bank subject to the orders of the court( uch deposit shall be in money, unless in lieu thereof the court authoriKes the deposit of a certificate of deposit of a government bank of the /epublic of the )hilippines payable on demand to the authoriKed government depositary( If personal property is involved, its value shall be provisionally ascertained and the amount to be deposited shall be promptly fi%ed by the court(

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After such deposit is made the court shall order the sheriff or other proper officer to forthwith place the plaintiff in possession of the property involved and promptly submit a report thereof to the court with service of copies to the parties( ,"=IO# +( 2efenses and objections( E If a defendant has no objection or defense to the action or the taking of his property, he may file and serve a notice of appearance and a manifestation to that effect, especially designating or identifying the property in which he claims to be interested, within the time stated in the summons( =hereafter, he shall be entitled to notice of all proceedings affecting the same( If a defendant has any objection to the filing of or the allegations in the complaint, or any objection or defense to the taking of his property, he shall serve his answer within the time stated in the summons( =he answer shall specifically designate or identify the property in which he claims to have an interest, state the nature and e%tent of the interest claimed, and adduce all his objections and defenses to the taking of his property( #o counterclaim: cross;claim or third;party complaint shall be alleged or allowed in the answer or any subseCuent pleading( A defendant waives all defenses and objections not so alleged but the court, in the interest of justice, may permit amendments to the answer to be made not later than ten $'>& days from the filing thereof( Jowever, at the trial of the issue of just compensation, whether or not a defendant has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award( ,"=IO# -( Order of e%propriation( E If the objections to and the defenses against the right of the plaintiff to e%propriate the property are overruled, or when no party appears to defend as reCuired by this /ule, the court may issue an order of e%propriation declaring that the plaintiff has a lawful right to take the property sought to be e%propriated, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first( A final order sustaining the right to e%propriate the property may be appealed by any party aggrieved thereby( uch appeal, however, shall not prevent the court from determining the just compensation to be paid( After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue the proceeding e%cept on such terms as the court deems just and eCuitable( ,"=IO# 0( Ascertainment of compensation( E 1pon the rendition of the order of e%propriation, the court shall appoint not more than three $+& competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken( =he 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( "opies of the order shall be served on the parties( Objections to the appointment of any of the commissioners shall be filed with the court within ten $'>& days from service, and shall be resolved within thirty $+>& days after all the commissioners shall have received copies of the objections( ,"=IO# 6( )roceedings by commissioners( E !efore entering upon the performance of their duties, the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case( ,vidence may be introduced by either party before the commissioners who are authoriKed to administer oaths on hearings before them, and the commissioners shall, unless the parties consent to the contrary, after due notice to the parties to attend, view and e%amine the property sought to be e%propriated and its surroundings, and may measure the same, after which either party may, by himself or counsel, argue the case( =he commissioners shall assess the conseCuential damages to the property not taken and deduct from such conseCuential damages the conseCuential benefits to be derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation, or the carrying on of the business of the corporation or person taking the property( !ut in no case shall the conseCuential benefits assessed e%ceed the conseCuential damages assessed, or the owner be deprived of the actual value of his property so taken( ,"=IO# 9( /eport by commissioners and judgment thereupon( E =he court may order the commissioners to report when any particular portion of the real estate shall have been passed upon by them, and may render judgment upon such partial report, and direct the commissioners to proceed with their work as to subseCuent portions of the property sought to be e%propriated, and may from time to time so deal with such property( =he commissioners shall make a full and accurate report to the court of all their proceedings, and such proceedings shall not be effectual until the court shall have accepted their report and rendered judgment in accordance with

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their recommendations( ,%cept as otherwise e%pressly ordered by the court, such report shall be filed within si%ty $6>& days from the date the commissioners were notified of their appointment, which time may be e%tended in the discretion of the court( 1pon the filing of such report, the clerk of the court shall serve copies thereof on all interested parties, with notice that they are allowed ten $'>& days within which to file objections to the findings of the report, if they so desire( $9a& ,"=IO# B( Action upon commissionersF report( E 1pon the e%piration of the period of ten $'>& days referred to in the preceding section, or even before the e%piration of such period but after all the interested parties have filed their objections to the report or their statement of agreement therewith, the court may, after hearing, accept the report and render judgment in accordance therewith: or, for cause shown, it may recommit the same to the commissioners for further report of facts: or it may set aside the report and appoint new commissioners, or it may accept the report in part and reject it in part: and it may make such order or render such judgment as shall secure to the plaintiff of the property essential to the e%ercise of his right of e%propriation, and to the defendant just compensation for the property so taken( ,"=IO# D( 1ncertain ownership: conflicting claims( E If the ownership of the property taken is uncertain, or there are conflicting claims to any part thereof, the court may order any sum or sums awarded as compensation for the property to be paid to the court for the benefit of the person adjudged in the same proceeding to be entitled thereto( !ut the judgment shall reCuire the payment of the sum or sums awarded to either the defendant or the court before the plaintiff can enter upon the property, or retain it for the public use or purpose if entry has already been made( ,"=IO# '>( /ights of plaintiff after judgment and payment( E 1pon payment by the plaintiff to the defendant of compensation fi%ed by the judgment, with legal interest thereon from the taking of the possession of the property, or after tender to him of the amount so fi%ed and payment of the costs, the plaintiff shall have the right to enter upon the property e%propriated and to appropriate it for the public use or purpose defined in the judgment, or to retain it should he have taken immediate possession thereof under the provisions of section * hereof( If the defendant and his counsel absent themselves from the court, or decline to receive the amount tendered, the same shall be ordered to be deposited in court and such deposit shall have the same effect as actual payment thereof to the defendant or the person ultimately adjudged entitled thereto( ,"=IO# ''( ,ntry not delayed by appeal: effect of reversal( E =he right of the plaintiff to enter upon the property of the defendant and appropriate the same for public use or purpose shall not be delayed by an appeal from the judgment( !ut if the appellate court determines that plaintiff has no right of e%propriation, judgment shall be rendered ordering the /egional =rial "ourt to forthwith enforce the restoration to the defendant of the possession of the property, and to determine the damages which the defendant sustained and may recover by reason of the possession taken by the plaintiff( ,"=IO# '*( "osts, by whom paid( E =he fees of the commissioners shall be ta%ed as a part of the costs of the proceedings( All costs, e%cept those of rival claimants litigating their claims, shall be paid by the plaintiff, unless an appeal is taken by the owner of the property and the judgment is affirmed, in which event the costs of the appeal shall be paid by the owner( ,"=IO# '+( /ecording judgment, and its effect( E =he judgment entered in e%propriation proceedings shall state definitely, by an adeCuate description, the particular property or interest therein e%propriated, and the nature of the public use or purpose for which it is e%propriated( 8hen real estate is e%propriated, a certified copy of such judgment shall be recorded in the registry of deeds of the place in which the property is situated, and its effect shall be to vest in the plaintiff the title to the real estate so described for such public use or purpose( ,"=IO# '-( )ower of guardian in such proceedings( E =he guardian or guardian ad litem of a minor or person judicially declared to be incompetent may, with the approval of the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the e%propriation for public use or purpose of property belonging to such minor or person judicially declared to be incompetent, which such minor or person judicially declared to be incompetent could do in such proceedings if he were of age or competent( E=propriation is a special civil action 87ic7 i6ple6ents t7e rig7t o5 e6inent do6ain

%e.+isites 5or e=ercise o5 rig7t $'& due process of law M compliance with the rules set down $/ule 69&: $*& payment of just compensation: and

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$+& taking must be for public use( $A" /uaEon and %o., #nc. v. 0and /enure $dministration, 19+F T8o stages in e=propriation proceedings  2etermination of the authority of the plaintiff to e%ercise the power of eminent domain and the propriety of its e%ercise in the conte%t of the facts( =his stage is terminated by either an order of dismissal of the action or order of the condemnation declaring that e%propriation is proper and legal( =hese orders are final and therefore appealable( $"unicipality of 'iIan v. *arcia, 1989  2etermination of just compensation =his is done with the assistance of not more than three $+& commissioners( =he order fi%ing just compensation is also final and appealable( $Ibid&( Lust compensation is to be determined as of the date of the taking of the propriety or the filing of the complaint, whichever comes first( Pec+liarity in Proceedings  Multiple appeals and the period to appeal is +> days unlike in ordinary civil actions $'0 days&( .urthermore, no record on appeal is reCuired(  Although the procedure is not summary there are prohibited pleadings( $counter;claim, cross;claim and third party complaint&  ,ven if defendant here is declared in default he can still participate in proceedings  =rial by commissioner is mandatory unlike in ordinary civil actions where it is discretionary  ,ven if the defendant accepts money as just compensation from plaintiff, he can still assail the judgment of court on the propriety of the e%propriation( Moday v& CA0 #,> SC%A :>,, Inherently possessed by the national legislature the power of eminent domain may be validly delegated to local governments, other public utilities and public entities "oreclos+re o5 %eal Estate Mortgage %+le ,>$ ,"=IO# '( "omplaint in action for foreclosure( E In an action for the foreclosure of a mortgage or other encumbrance upon real estate, the complaint shall set forth the date and due e%ecution of the mortgage: its assignments, if any: the names and residences of the mortgagor and the mortgagee: a description of the mortgaged property: a statement of the date of the note or other documentary evidence of the obligation secured by the mortgage, the amount claimed to be unpaid thereon: and the names and residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants in the action( ,"=IO# *( Ludgment on foreclosure for payment or sale( E If upon the trial in such action the court shall find the facts set forth in the complaint to be true, it shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, and costs, and shall render judgment for the sum so found due and order that the same be paid to the court or to the judgment obligee within a period of not less than ninety $D>& days nor more than one hundred twenty $'*>& days from the entry of judgment, and that in default of such payment the property shall be sold at public auction to satisfy the judgment( ,"=IO# +( ale of mortgage property: effect( E 8hen the defendant, after being directed to do so as provided in the ne%t preceding section, fails to pay the amount of the judgment within the period specified therein, the court, upon motion, shall order the property to be sold in the manner and under the provisions of /ule +D and other regulations governing sales of real estate under e%ecution( uch sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof, and when confirmed by an order of the court, also upon motion, it shall operate to divest the rights in the property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law( 1pon the finality of the order of confirmation or upon the e%piration of the period of redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property unless a third party is actually holding the same adversely to the judgment obligor( =he said purchaser or last redemptioner may secure a writ of possession, upon motion, from the court which ordered the foreclosure( ,"=IO# -( 2isposition of proceeds of sale( E =he amount realiKed from the foreclosure sale of the mortgaged property shall, after deducting the costs of the sale, be paid to the person foreclosing the mortgage, and when there shall be any balance or residue, after paying off the mortgage debt due, the same shall be paid to junior encumbrancers in the order of their priority, to be ascertained by the court, or if there be no such encumbrancers or there be a balance or residue after payment to them, then to the mortgagor or his duly authoriKed agent, or to person entitled to it(

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,"=IO# 0( Jow sale to proceed in case the debt is not all due( E If the debt for which the mortgage or encumbrance was held is not all due as provided in the judgment, as soon as a sufficient portion of the property has been sold to pay the total amount and the costs due, the sale shall terminate: and afterwards, as often as more becomes due for principal or interest and other valid charges, the court may, on motion, order more to be sold( !ut if the property cannot be sold in portions without prejudice to the parties, the whole shall be ordered to be sold in the first instance, and the entire debt and costs shall be paid, if the proceeds of the sale be sufficient therefor, there being a rebate of interest where such rebate is proper( ,"=IO# 6( 2eficiency judgment( E If upon the sale of any real property as provided in the ne%t preceding section there be a balance due to the plaintiff after applying the proceeds of the sale, the court, upon motion, shall render judgment against the defendant for any such balance for which, by the record of the case, he may be personally liable to the plaintiff, upon which e%ecution may issue immediately if the balance is all due at the time of the rendition of the judgment: otherwise, the plaintiff shall be entitled to e%ecution at such time as the balance remaining becomes due under the terms of the original contract, which time shall be stated in the judgment( ,"=IO# 9( /egistration( E A certified copy of the final order of the court confirming the sale shall be registered in the registry of deeds( If no right of redemption e%ists, the certificate of title in the name of the mortgagor shall be cancelled, and a new one issued in the name of the purchaser( 8here a right of redemption e%ists, the certificate of title in the name of the mortgagor shall not be cancelled, but the certificate of sale and the order confirming the sale shall be registered and a brief memorandum thereof made by the registrar of deeds upon the certificate of title( In the event the property is redeemed, the deed of redemption shall be registered with the registry of deeds, and a brief memorandum thereof shall be made by the registrar of deeds on said certificate of title( If the property is not redeemed, the final deed of sale e%ecuted by the sheriff in favor of the purchaser at the foreclosure sale shall be registered with the registry of deeds: whereupon the certificate of title in the name of the mortgagor shall be cancelled and a new one issued in the name of the purchaser( ,"=IO# B( Applicability of other provisions( E =he provisions of sections +', +* and +- of /ule +D shall be applicable to the judicial foreclosure of real estate mortgages under this /ule insofar as the former are not inconsistent with or may serve to supplement the provisions of the latter( )+dg6ent in a 5oreclos+re proceeding /he 6udgment in a 6udicial foreclosure proceeding should. $'& make a finding of the amount due the plaintiff including interest, cost and other charges approved by the court: $*& order defendant to pay said amount within a period of not less than ninety $D>& days nor more than one hundred twenty $'*>& days from entry of judgment: and $+& if the defendant defaults, the court should order the sale at public auction of the mortgaged property( )+dicial "oreclos+re vs& E=tra!)+dicial "oreclos+re ,irst has court intervention and there is only e>uity of redemption and is governed by the Rules of %ourt, while second is that there is no court intervention, right of redemption e-ists and is governed by $ct 9198. Note? ,ven if there is no court intervention in e%tra;judicial foreclosure at the outset, the court will intervene when it comes to recovery of the possession of property foreclosed, i(e( when he purchased it in public auction, he needs to file a motion for the issuance of writ of possession( Distinction 9et8een rig7t o5 rede6ption and e.+ity o5 rede6ption ,Cuity of /edemption is the right of the defendant mortgagor to e%tinguish the mortgage and retain ownership of the property by paying the amount fi%ed in the decision of the court within ninety $D>& to one hundred twenty $'*>& days after entry of judgment or even after the foreclosure sale but prior to its confirmation( $ Rules of %ourt, Rule &8, ;ec. 8?@ 0impin v. #ntermediate $ppellate %ourt, Co. 05+F98+, ;eptember ?9, 1988 On the other hand, right of redemption is the right granted to the debtor;mortgagor, his successor;in;interest or any judicial creditor of said debtor;mortgagor or any person having a lien in the property subseCuent to its mortgage or deed of trust under which the property is sold to redeem the property within one $'& year from the registration of the sheriff<s

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certificate of foreclosure sale( $Rules of %ourt, Rule 99, ;ec. ?9@ <e %astro v. #ntermediate $ppellate %ourt, Co. 05 +9889, ;eptember ?&, 1988 <rit o5 possession in @+dicial 5oreclos+re After the foreclosure sale is confirmed, the court, upon motion, may issue a writ of possession to install the buyer at auction into possession of the property sold( De5iciency @+dg6ent ome rules on deficiency judgment are@ $'& A motion for deficiency judgment may be made only after the sale and after it becomes known that a deficiency e%ists( !*overnor of the Philippine #slands v. /orralba Biuda de ;antos, 41998: $*& 2eficiency judgment cannot be rendered against a non;resident defendant( !=l 'anco =spaIol5,ilipino v. Palanca, 41918: $+& #o deficiency judgment may be rendered against the owner who is not a mortgagor and has not assumed personal liability for the debt( =he remedy is an ordinary action against the debtor( !Philippine /rust %o. v. =chaus /an ;iua, 419?9: $-& If the debtor dies, the deficiency may be filed as a claim against his estate( $/ules of "ourt, /ule B6, ec( 9( $0& #o deficiency judgment allowed under /ecto 5aw Article '-B- #""( 1nder Article '-B- of the #ew "ivil "ode, in a contract of sale of personal property the price of which is payable in installments, the vendor may e%ercise any of the following /,M,2I, @ '( ,%act fulfillment of the obligation, should the buyer fail to pay any installment: *( "ancel the sale, should the buyer<s failure to pay cover two or more installments +( .oreclose the chattel mortgage on the thing sold, if one has been constituted, should the buyer<s failure to pay cover two or more installments( Q =he remedies have been recogniKed as alternative, not cumulative, in that the e%ercise of one would also bar the e%ercise of the others( =hey cannot also be pursued simultaneously( If the seller should foreclose on the mortgage constituted on the thing sold, he shall have no further action against the purchaser to recover any unpaid balance of the price( Any agreement to the contrary shall be void( Pec+liarity in Proceedings  8e do not follow !) '*D( Lust like e%propriation the first issue that the court needs to resolve is whether or not there is a right to foreclose( Jence this is incapable of pecuniary estimation cogniKable by /="(  =here are three stages@ a& 2etermination of right to foreclose: b& foreclosure itself: c& /ecovery of deficiency(  Javing three stages, there may be multiple appeals because there can be three judgments( 3It appears that judicial foreclosure is disadvantageous to the mortgagee, because the period of eCuity of redemption is increased because of the pendency of the appeals, hence he has to wait for the entry of final judgment4  =here is a need for a record on appeal here  =he rules themselves tell the petitioner who should be sued in court $those who will be impleaded as indispensable parties, i(e( debtor, mortgagor(  In order for the junior encumbrancers or subseCuent mortgagees< right of redemption be lost they should be impleaded  In judicial foreclosure it is not enough for the court to say that the debtor is directed to pay his unsettled account( In addition, the court must give a period of time within which the debtor has to pay the account( $D>;'*> days from entry of final judgment&  1nlike in /ule +D, there is a need to confirm the sale Partition %+le ,3$ ,"=IO# '( "omplaint in action for partition of real estate( E A person having the right to compel the partition of real estate may do so as in this /ule, setting forth in his complaint the nature and e%tent of his title and an adeCuate description of the real estate of which partition is demanded and joining as defendants all the other persons interested in the property( ,"=IO# *( Order for partition, and partition by agreement thereunder( E If after the trial the court finds that the plaintiff has the right thereto, it shall order the partition of the real estate among all the parties in interest( =hereupon the parties may, if they are able to agree, make the partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon by all the parties, and such partition,

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together with the order of the court confirming the same, shall be recorded in the registry of deeds of the place in which the property is situated( A final order decreeing petition and accounting may be appealed by any party aggrieved thereby( ,"=IO# +( "ommissioners to make partition when parties fail to agree( E If the parties are unable to agree upon the partition, the court shall appoint not more than three $+& competent and disinterested persons as commissioners to make the partition, commanding them to set off to the plaintiff and to each party in interest such part and proportion of the property as the court shall direct( ,"=IO# -( Oath and duties of commissioners( E !efore making such partition, the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case( In making the partition, the commissioners shall view and e%amine the real estate, after due notice to the parties to attend at such view and e%amination, and shall hear the parties as to their preference in the portion of the property to be set apart to them and the comparative value thereof, and shall set apart the same to the parties in lots or parcels as will be most advantageous and eCuitable, having due regard to the improvements, situation and Cuality of the different parts thereof( ,"=IO# 0( Assignment or sale of real estate by commissioners( E 8hen it is made to appear to the commissioners that the real estate, or a portion thereof, cannot be divided without prejudice to the interests of the parties, the court may order it assigned to one of the parties willing to take the same, provided he pays to the other parties such amounts of the commissioners deem eCuitable, unless one of the interested parties asks that the property be sold instead of being so assigned, in which case the court shall order the commissioners to sell the real estate at public sale under such conditions and within such time as the court may determine( ,"=IO# 6( /eport of commissioners: proceedings not binding until confirmed( E =he commissioners shall make a full and accurate report to the court of all their proceedings as to the partition, or the assignment of real estate to one of the parties, or the sale of the same( 1pon the filing of such report, the clerk of court shall serve copies thereof on all the interested parties with notice that they are allowed ten $'>& days within which to file objections to the findings of the report, if they so desire( #o proceeding had before or conducted by the commissioners shall pass the title to the property or bind the parties until the court shall have accepted the report of the commissioners and rendered judgment thereon( ,"=IO# 9( Action of the court upon commissionersF report( E 1pon the e%piration of the period of ten $'>& days referred to in the preceding section, or even before the e%piration of such period but after the interested parties have filed their objections to the report or their statement of agreement therewith, the court may, upon hearing, accept the report and render judgment in accordance therewith: or, for cause shown, recommit the same to the commissioners for further report of facts: or set aside the report and appoint new commissioners: or accept the report in part and reject it in part: and may make such order and render such judgment as shall effectuate a fair and just partition of the real estate, or of its value, if assigned or sold as above provided, between the several owners thereof( ,"=IO# B( Accounting for rent and profits in action for partition( E In an action for partition in accordance with this /ule, a party shall recover from another his just share of rents and profits received by such other party from the real estate in Cuestion, and the judgment shall include an allowance for such rents and profits( ,"=IO# D( )ower of guardian in such proceedings( E =he guardian or guardian ad litem of a minor or person judicially to be incompetent may, with the approval of the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the partition of real estate, which the minor or person judicially declared to be incompetent could do in partition proceedings if he were of age or competent( ,"=IO# '>( "osts and e%penses to be ta%ed and collected( E =he court shall eCuitably ta% and apportion between or among the parties the costs and e%penses which accrue in the action, including the compensation of the commissioners, having regard to the interests of the parties and e%ecution may issue therefor as in other cases( ,"=IO# ''( =he judgment and its effect: copy to be recorded in registry of deeds( E If actual partition of property is made, the judgment shall state definitely, by metes and bounds and adeCuate description, the particular portion of the real estate assigned to each party, and the effect of the judgment shall be to vest in each party to the action in severalty the portion of the real estate assigned to him( If the whole property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the court, the judgment shall state

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the fact of such payment and of the assignment of the real estate to the party making the payment, and the effect of the judgment shall be to vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties to the action( If the property is sold and the sale confirmed by the court, the judgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser, and the effect of the judgment shall be to vest the real estate in the purchaser or purchasers making the payment or payments, free from the claims of any of the parties to the action( A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated, and the e%penses of such recording shall be ta%ed as part of the costs of the action( ,"=IO# '*( #either paramount rights nor amicable partition affected by this /ule( E #othing in this /ule contained shall be construed so as to prejudice, defeat, or destroy the right or title of any person claiming the real estate involved by title under any other person, or by title paramount to the title of the parties among whom the partition may have been made: nor so as to restrict or prevent persons holding real estate jointly or in common from making an amicable partition thereof by agreement and suitable instruments of conveyance without recourse to an action( ,"=IO# '+( )artition of personal property( E =he provisions of this /ule shall apply to partitions of estates composed of personal property, or of both real and personal property, in so far as the same may be applicable( T8o stages o5 t7e action 1. <etermination of the propriety of partition ( =his involves a determination of whether the subject property is owned in common and whether all the co;owners are made parties in the case( =he order may also reCuire an accounting of rents and profits recovered by the defendant( =his order of partition is appealable( !"iranda v. %ourt of $ppeals, Co. 0599FF+, Aune 18, 19+& If not appealed, then the parties may partition the common property in the way they want( If they cannot agree, then the case goes into the second stage( Jowever, the order of accounting may in the meantime be e%ecuted( !<e "esa v. %$, 1994 *( /he actual partitioning of the sub6ect property ( =his is also a complete proceeding and the order or decision is appealable( Prescription o5 action Action for partition is unprescriptible for as long as the co;owners e%pressly or impliedly recogniKe the co; ownership( !%ivil %ode, $rt. 494 Jowever, if a co;owner repudiates the co;ownership and makes known such repudiation to the other co;owners, then partition is no longer a proper remedy of the aggrieved co;owner( /he should file an accion reivindicatoria which is prescriptible( !Ro>ue v. #$%, 1988 So6e decisions  8hen there was a prior partition, the fact that the share of each co;heir has not been technically described and the title over the whole lot remains uncancelled does not negate such partition( =here can be no partition again because there is no more common property( !Coceda v. %$, 1999  Oral partition of land when the same is fully consummated is valid and binding upon the parties thereto( $%rucillo v. #$%, 1999 Pec+liarity in Proceedings  All co;owners must be impleaded, they are indispensable parties, hence when one is left out the judgment of the court will not become final( Once left out, a co;owner may intervene whether or not there is a judgment rendered( $1nlike in ordinary civil actions where intervention is allowed only when there is no judgment yet&  Admits multiple appeals  Appointment of commissioners is mandatory "orci9le Entry and (nla85+l Detainer %+le 24$ ,"=IO# '( 8ho may institute proceedings, and when( E ubject to the provisions of the ne%t succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the e%piration or termination of the right to hold possession, by virtue of any contract, e%press or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, at any time within one $'& year after such unlawful deprivation or withholding of possession, bring an action in the proper Municipal =rial "ourt against the person or person unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs(

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,"=IO# *( 5essor to proceed against lessee only after demand( E 1nless otherwise stipulated, such action by the lessor shall be commenced only after demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee, or by serving written notice of such demand upon the person found on the premises, or by posting such notice on the premises if no person be found thereon, and the lessee fails to comply therewith after fifteen $'0& days in the case of land or five $0& days in the case of buildings( ,"=IO# +( ummary procedure( E ,%cept in cases covered by the agricultural tenancy laws or when the law otherwise e%pressly provides, all actions for forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered, shall be governed by the summary procedure hereunder provided( ,"=IO# -( )leadings allowed( E =he only pleadings allowed to be filed are the complaint, compulsory counterclaim and cross;claim pleaded in the answer, and the answers thereto( All pleadings shall be verified( ,"=IO# 0( Action on complaint( E =he court may, from an e%amination of the allegations in the complaint and such evidence as may be attached thereto, dismiss the case outright on any of the grounds for the dismissal of a civil action which are apparent therein( If no ground for dismissal is found, it shall forthwith issue summons( ,"=IO# 6( Answer( E 8ithin ten $'>& days from service of summons, the defendant shall file his answer to the complaint and serve a copy thereof on the plaintiff( Affirmative and negative defenses not pleaded therein shall be deemed waived, e%cept lack of jurisdiction over the subject matter( "ross;claims and compulsory counterclaims not asserted in the answer shall be considered barred( =he answer to counterclaims or cross;claims shall be served and filed within ten $'>& days from service of the answer in which they are pleaded( ,"=IO# 9( ,ffect of failure on answer( E hould the defendant fail to answer the complaint within the period above provided, the court motu proprio or on motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein( =he court may in its discretion reduce the amount of damages and attorneyFs fees claimed for being e%cessive or otherwise unconscionable, without prejudice to the applicability of section + $c&, /ule D if there are two or more defendants( ,"=IO# B( )reliminary conference: appearance of parties( E #ot later than thirty $+>& days after the last answer is filed, a preliminary conference shall be held( =he provisions of /ule 'B on pre;trial shall be applicable to the preliminary conference unless inconsistent with the provisions of this /ule( =he failure of the plaintiff to appear in the preliminary conference shall be cause for the dismissal of his complaint( =he defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with the ne%t preceding section( All cross;claims shall be dismissed( $9, / )& If a sole defendant shall fail to appear, the plaintiff shall likewise be entitled to judgment in accordance with the ne%t preceding section( =his procedure shall not apply where one of two or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary conference( #o postponement of the preliminary conference shall be granted e%cept for highly meritorious grounds and without prejudice to such sanctions as the court in the e%ercise of sound discretion may impose on the movant( ,"=IO# D( /ecord of preliminary conference( E 8ithin five $0& days after the termination of the preliminary conference, the court shall issue an order stating the matters taken up therein, including but not limited to@ '( 8hether the parties have arrived at an amicable settlement, and if so, the terms thereof: *( =he stipulations or admissions entered into by the parties: +( 8hether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which event the judgment shall be rendered within thirty $+>& days from issuance of the order: -( A clear specification of material facts which remain controverted: and 0( uch other matters intended to e%pedite the disposition of the case( ,"=IO# '>( ubmission of affidavits and position papers( E 8ithin ten $'>& days from receipt of the order mentioned in the ne%t preceding section, the parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers setting forth the law and the facts relied upon by them(

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,"=IO# ''( )eriod for rendition of judgment( E 8ithin thirty $+>& days after receipt of the affidavits and position papers, or the e%piration of the period for filing the same, the court shall render judgment( Jowever, should the court find it necessary to clarify certain material facts, it may, during the said period, issue an order specifying the matters to be clarified, and reCuire the parties to submit affidavits or other evidence on the said matters within ten $'>& days from receipt of said order( Ludgment shall be rendered within fifteen $'0& days after the receipt of the last affidavit or the e%piration of the period for filing the same( =he court shall not resort to the foregoing procedure just to gain time for the rendition of the judgment( ,"=IO# '*( /eferral for conciliation( E "ases reCuiring referral for conciliation, where there is no showing of compliance with such reCuirement, shall be dismissed without prejudice, and may be revived only after that reCuirement shall have been complied with( ,"=IO# '+( allowed@ )rohibited pleadings and motions( E =he following petitions, motions, or pleadings shall not be

'( Motion to dismiss the complaint e%cept on the ground of lack of jurisdiction over the subject matter, or failure to comply with section '*: $#ote@ /emedy of defendant is to file an answer alleging the ground as affirmative defense& *( Motion for a bill particulars: +( Motion for new trial, or for reconsideration of a judgment, or for reopening of trial: -( )etition for relief from judgment: 0( Motion for e%tension of time to file pleadings, affidavits or any other paper: 6( Memoranda: 9( )etition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court: B( Motion to declare the defendant in default: D( 2ilatory motions for postponement: '>( /eply: ''( =hird;party complaints: '*( Interventions( ,"=IO# '-( Affidavits( E =he affidavits reCuired to be submitted under this /ule shall state only facts of direct personal knowledge of the affiants which are admissible in evidence, and shall show their competence to testify to the matters stated therein( A violation of this reCuirement may subject the party or the counsel who submits the same to disciplinary action, and shall be cause to e%punge the inadmissible affidavit or portion thereof from the record( ,"=IO# '0( )reliminary injunction( E =he court may grant preliminary injunction, in accordance with the provisions of /ule 0B hereof, to prevent the defendant from committing further acts of dispossession against the plaintiff( A possessor deprived of his possession through forcible entry or unlawful detainer may, within five $0& days from the filing of the complaint, present a motion in the action for forcible entry or unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore him in his possession( =he court shall decide the motion within thirty $+>& days from the filing thereof( ,"=IO# '6( /esolving defense of ownership( E 8hen the defendant raises the defense of ownership in his pleadings and the Cuestion of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession( ,"=IO# '9( Ludgment( E If after trial the court finds that the allegations of the complaint are true, it shall render judgment in favor of the plaintiff for the restitution of the premises, the sum justly due as arrears of rent or as reasonable compensation for the use and occupation of the premises, attorneyFs fees and costs( If it finds that said allegations are not true, it shall render judgment for the defendant to recover his costs( If a counterclaim is established, the court shall render judgment for the sum found in arrears from either party and award costs as justice reCuires(

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,"=IO# 'B( Ludgment conclusive only on possession: not conclusive in actions involving title or ownership( E =he judgment rendered in an action for forcible entry or detainer shall be conclusive with respect to the possession only and in no wise bind the title or affect the ownership of the land or building( uch judgment shall not bar an action between the same parties respecting title to the land or building( =he judgment or final order shall be appealable to the appropriate /egional =rial "ourt which shall decide the same on the basis of the entire record of the proceedings had in the court of origin and such memoranda and/or briefs may be submitted by the parties or reCuired by the /egional =rial "ourt( ,"=IO# 'D( Immediate e%ecution of judgment: how to stay same( E If judgment is rendered against the defendant, e%ecution shall issue immediately upon motion, unless an appeal has been perfected and the defendant to stay e%ecution files a sufficient supersedeas bond, approved by the Municipal =rial "ourt and e%ecuted in favor of the plaintiff to pay the rents, damages, and 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 =rial "ourt( In the absence of a contract, he shall deposit with the /egional =rial "ourt 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( =he supersedeas bond shall be transmitted by the Municipal =rial "ourt, with the other papers, to the clerk of the /egional =rial "ourt to which the action is appealed( All amounts so paid to the appellate court shall be deposited with said court or authoriKed government depositary bank, and and shall be held there until the final disposition of the appeal, unless the court, by agreement of the interested parties, or in the absence of reasonable grounds of opposition to a motion to withdraw, or for justifiable reasons, shall decree otherwise( hould the defendant fail to make the payments above prescribed from time to time during the pendency of the appeal, the appellate court, upon motion of the plaintiff, and upon proof of such failure, shall order the e%ecution of the judgment appealed from with respect to the restoration of possession, but such e%ecution shall not be a bar to the appeal taking its course until the final disposition thereof on the merits( After the case is decided by the /egional =rial "ourt, any money paid to the court by the defendant for purposes of the stay of e%ecution shall be disposed of in accordance with the provisions of the judgment of the /egional =rial "ourt( In any case wherein it appears that the defendant has been deprived of the lawful possession of land or building pending the appeal by virtue of the e%ecution of the judgment of the Municipal =rial "ourt damages for such deprivation of possession and restoration of possession may be allowed the defendant in the judgment of the /egional =rial "ourt disposing of the appeal( ,"=IO# *>( )reliminary mandatory injunction in case of appeal( E 1pon motion of the plaintiff, within ten $'>& days from the perfection of the appeal to the /egional =rial "ourt, the latter may issue a writ of preliminary mandatory injunction to restore the plaintiff in possession if the court is satisfied that the defendantFs appeal is frivolous or dilatory, or that the appeal of the plaintiff is prima facie meritorious( ,"=IO# *'( Immediate e%ecution on appeal to "ourt of Appeals or upreme "ourt( E =he judgment of the /egional =rial "ourt against the defendant shall be immediately e%ecutory, without prejudice to a further appeal that may be taken therefrom( Accion Interdictal ummary Action for recovery of physical possession where the dispossession has not lasted for more than ' year Lurisdiction@ M=" regardless of value of property Accion P+9liciana )lenary Action for the recovery of real right of possession when the dispossession has lasted for more than ' year /="@ Nalue e%ceeds )*>? or )0>? in Metro Manila M="@ if does not e%ceed the above amounts Accion %einvindicatoria Action for recovery of ownership )51 possession /="@ Nalue e%ceeds )*>? or )0>? in Metro Manila M="@ if does not e%ceed the above amounts

Nat+re o5 accion interdictal It is@ $'& a special civil action involving a realty: $*& subject to the /ules on ummary )rocedure: $+& under the original e%clusive jurisdiction of first level courts:

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$-& nature of the action is determined by the allegation of the complaint and the character of the relief sought: $$brin v. %ampos, 1991 and $0& one co;owner may institute the action( I66ediate e=ec+tion and 7o8 to stay it A decision ejecting the defendant in a forcible entry or unlawful detainer case is immediately e%ecutory( !ut the judge should not order immediate e%ecution in his decision( !0u v. ;iapno, ?FFF =here must be notice of the judgment $<y v. %$, 1991 and a motion with notice to the adverse party( !Jaw v. $nunciacion =o stay e%ecution, the defendant should@ $'& perfect his appeal in due time: $*& files a sufficient supersedeas bond, approved by the Municipal =rial "ourt: and $+& during the pendency of the appeal, s/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 =rial "ourt on or before the tenth $'>th& day of each succeeding month( $/ules of "ourt, /ule 9>, ec( 'D& !ut upon motion of the plaintiff within ten $'>& days from the perfection of the appeal to the /egional =rial "ourt, the court may still issue a preliminary mandatory injunction to restore the plaintiff in possession if the court is satisfied that the defendant<s appeal is frivolous or dilatory, or that the appeal of the plaintiff is prima facie meritorious( $Ibid(, ec( *>& #ote@ .iling of supersedeas bond is only when there is a judgment on payment of back rentals( =he supersedeas bond does not cover attorney<s fees( It only covers as have said back rentals and damages( =he rules states that the damages should represent only the reasonable use and occupation of the property but this could also include liCuidated damages if agreed upon by the parties( "O%CIBLE ENT%Y )ossession by defendant is unlawful from the beginning as he acCuires possession by force, intimidation, threat, strategy or stealth #o prior demand is necessary )laintiff must prove that he was in prior possession ' year period reckoned from date of actual entry (NLA<"(L DETAINE% )ossession is inceptively lawful but it becomes illegal by reason of the termination of his right 2emand is jurisdictional if the ground is non;payment of rentals or failure to comply with lease contract #o need of prior possession ' year period reckoned from date of last demand

I6portant decisional r+les on +nla85+l detainer  A covenant to renew a lease contract which makes no provision as to the renewal or e%tension implies an e%tension or renewal upon the same terms as provided in the original lease contract( $ 0edesma v. Aavellana, 1989  An action for ejectment is not abated by the death of the defendant( $ Bda. de ;alaEar v. %ourt of $ppeals, *. R. Co. 1?181F, Covember ?9, 1998 =he heirs become the substitute defendants( $%aIiEa v. %$ 199+  8here there is a defense of tenancy, there must be a preliminary hearing on the Cuestion of tenancy relations( $'ayog v. Catino, 199& If there is a prima facie showing of tenancy, the court should dismiss the case for lack of jurisdiction $jurisdiction belongs to the 2A/A!&( $ 'aranda v. Padios, 198+  =he lessee is not permitted to deny the lessorFs title( $/ules of "ourt, /ule '+', ec( + $b& @ Reyes v. Billaflor, 19&1  A person who occupies the land of another at the latterFs tolerance or permission, without any contract between them is necessarily bound by an implied promise that he will vacate upon demand, failing which an action for unlawful detainer may be instituted against him( $ <akudao v. %onsolacion, 1989  =his rule as to tolerance does not hold true in a case where there was forcible entry at the start, but the lawful possessor did not attempt to oust the intruder for over one $'& year, and only thereafter filed forcible entry suit following demand to vacate( $"uIoE v. %$, 199?  ,lsewise stated, the tolerance must be presented right from the start of possession sought to be recovered to categoriKe a cause of action as one of unlawful detainer( $ Refugia v. %$, 199&  2emand upon a tenant may be oral( !Aakihaca v. $>uino, 199F& If demand is made upon the person found on the premises, it must be done by serving upon him notice of such demand or by posting such notice on the premises if no person be found thereon( $/ules of "ourt, /ule 9>, ec( *&  8hen failure to pay rent or comply with the condition of lease is the ground for ejectment, plaintiff should give two $*& demands@ $'& demand to pay rental or comply with conditions of the lease and if this is not complied with, $*& demand to vacate within fifteen $'0& days in case of land or five $0& days in case of buildings from notice thereof( =he two $*& demands may be embodied in one $'& letter( !Dobel v. $breu, 198& 2emand to pay or

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comply makes lessee a deforciant while demand to pay and vacate is a reCuirement for filing the action for unlawful detainer( R 8hen the lease has e%pired, there is no need of prior demand to vacate( =he lessor can immediately file an action for ejectment( 2emand is necessary only when the ground for ejectment is failure to pay rent or comply with the conditions of the lease( !%o /iamco v. <iaE, 4194& & R #otice and demand to vacate is, however, reCuired on a lease on a month;to;month period to render effective the termination of the lease upon the e%piration of the month, and prevent an implied renewal of the lease( $Rivera v. ,lorendo@ 2ap v. %ruE, 199? R =he notice provision is the one given after the e%piration of the lease period for the purpose of aborting an implied renewal of the lease( $*amboa1s #ncorporated v. %$, 19+&  An alternative demand to either renew the e%pired lease contract at a higher rental rate or vacate is not a definite demand to vacate and therefore, insufficient basis for the filing of an action for unlawful detainer( $Penas, Ar. v. %$, 1994  8hen there is no definite period for a lease but rental is paid from month to month, then under Article '6B9 $"ivil "ode&, the period is fi%ed which is from month to month( 8hen the lessor gave the lessee a demand to vacate at the end of the month and he fails to do so, an action for unlawful detainer may be filed against him( $%risostomo v. %$, 198?  /efusal to collect or accept rentals is not a defense( =here must be consignation( $ Hy v. %$, 1989 Acceptance of back rentals after demand to vacate does not legitimiKe possession( $ %ursino v. 'autista, 1989 "onsignation must be where ec( 0$b& provides either in court or in bank, in the name of and with notice to the lessor and not elsewhere( !"edina v. %$, 1999 )JA/MA I#21 =/I, , I#"( v( )ajarillaga, '>> "/A ++D; A deed of sale with right to repurchase was e%ecuted over a parcel of land( 8hen the vendor failed to repurchase the same, title was consolidated in favor of )harma Industries( =he "ourt ruled that )harma Industries acCuired possession of the property upon failure of the vendor a retro to repurchase the same and conseCuently, the vendor<s right to possess the property had ceased( In ejectment cases, therefore possession of land does not only mean actual or physical possession or occupation but also includes the subjection of the thing to the action of one<s will or by the proper acts and legal formalities established for acCuiring such right, such as the e%ecution of a deed of sale over a property( I I2/O v( "A, *B0 "/A +-; If a person possesses a parcel of land or building by tolerance of the owner, he is bound by an implied promise to vacate upon demand: failure of the defendant to vacate, a suit for ejectment is the proper remedy( Jis status is analogous to that of a tenant whose contract of lease has already e%pired( =he unlawful deprivation is counted from the date of the demand to vacate( ./A#",5 /,A5=H "O/)( vs( "A, *0* "/A '*9; 8here the ground for ejectment by the subdivision owner is the alleged non;payment of a buyer on installment of a subdivision lot, the case is covered by )(2( #o(D09 and the determination of the Cuestion of the rights of the installment buyer is e%clusively cogniKable by the J51/!( an Andres v( "A, *60 "/A +6B; In a contract of lease over a parcel of land which was intended to be the place where a building would be constructed as in fact, the lessee constructed a building, the Ono subleaseP provision refers to the land( It does not apply to the building which the lessee constructed on the land( =his is because the term of the lease is for +> years( =he purpose of the lease is for the lessee to have a place on which to construct a building or a factory( =he building could be a tenement house or a factory, either of which could be for commercial purposes such as for lease( A stipulation that upon the e%piration of the contract of lease, the building constructed by the lessee will become the property of the owner of the land is usual with respect to commercial buildings, the lessee calculating that the building will bring him income sufficient to cover his investment besides a fair return( It is thus, unlikely that in entering into the +>;year lease contract, the parties contemplated imposing restrictions on the lessee<s right of ownership of the building, by prohibiting even the lease of the building constructed by the lessee( =he most natural and the most logical construction of the Ono subleaseP provision is that it refers only to the land leased but not to the building or factory which the lessee is authoriKed to construct on the land( .eliKardo vs( "A, *++ "/A **>; 1nlike ec(* /ule +D, ec( 'D /ule 9> does not reCuire that good reasons for the immediate e%ecution of judgment be shown( =he judgment is immediately e%ecuted as a matter of right to prevent further damage arising from the loss of possession(

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2e 5aureano v( Adil, 9* "/A '-B; If the unlawful detainer judgment does not award rentals, there is no need to post a supersedeas bond as it is reCuired only when there are rentals in arrears awarded( =he attorney<s fees need not be covered by the superdeas bond( .elisilda v( Nillanueva; =he M=" may award moral and e%emplary damages to the defendant in an unlawful detainer case( Jowever, this isn<t true with the plaintiff, since the only damages that can be recovered by him are the fair rental value or the reasonable compensation for the use and occupation of the real property( Other damages can be claimed in an ordinary action( Along the same line, the court cannot render judgment forfeiting the improvements made by the lessee over the premises in favor of the plaintiff( "astro, Lr( v( "A, *0> "/A 66', 1y v( 5and !ank of the )hilippines, ++6 "/A -'D ; =he buyer at the foreclosure sale merely succeeds to the rights and obligations of the pledgor;mortgagor subject to the provisions of Article '696 #""( =his article provides that Othe purchaser of a piece of land which is under a lease that is not recorded in the /egistry of )roperty may terminate the lease, save when there is a stipulation to the contrary in the contract of sale, or when the purchaser knows the e%istence of the lease(P In short, the buyer at the foreclosure sale, as a rule, may terminate an unregistered lease e%cept when it knows of the e%istence of the lease( Notes? '( 1nder the /ules on ummary )rocedure, when defendant is in default the options given to the court when a defendant is declared in default, $i(e( render judgment right away or reCuire plaintiff to submit evidence& are not available( In summary procedure, court can render judgment without conducting a trial, based on the N,/I.I,2 complaint *( =he only rules on evidence not applicable to summary procedure is the rules on e%amination of witnesses, since they are only reCuired to submit affidavits, but they are reCuired to state only those within their personal knowledge( +( 8hen the case is on appeal to /=", ordinary rules apply, hence the prohibited pleadings are now allowed -( According to an " decision, if the plaintiff files a complaint for unlawful detainer against the defendant and the defendant files another complaint with /=" for reconveyance of property or for annulment of same or form Cuieting title, the /=" cannot stop the inferior court from deciding the case of unlawful detainer, because the unlawful detainer involves physical possession of property( 0( A decision of /=" as an appellate court in a complaint for unlawful detainer is immediately e%ecutory and this cannot be stopped by appealing to "A or by posting a supersedeas bond or by depositing regularly the monthly rental with "A( =he only way to avoid the immediate e%ecution is to seek from "A a writ of preliminary injunction( 6( 1nlawful detainer is a real action in personam( =his is an e%ception to the rule that a decision in an action personam is enforceable only against the parties to the case( Conte6pt %+le 2-$ ,"=IO# '( 2irect contempt punished summarily( E A person guilty of misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, offensive personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully reCuired to do so, may be summarily adjudged in contempt by such court and punished by a fine not e%ceeding two thousand pesos or imprisonment not e%ceeding ten $'>& days, or both, if it be a /egional =rial "ourt or a court of eCuivalent or higher rank, or by a fine not e%ceeding two hundred pesos or imprisonment not e%ceeding one $'& day, or both, if it be a lower court(

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,"=IO# *( /emedy therefrom( E =he person adjudged in direct contempt by any court may not appeal therefrom, but may avail himself of the remedies of certiorari or prohibition( =he e%ecution of the judgment shall be suspended pending resolution of such petition, provided such person files a bond fi%ed by the court which rendered the judgment and conditioned that he will abide by and perform the judgment should the petition be decided against him( ,"=IO# +( Indirect contempt to be punished after charge and hearing( E After charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fi%ed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt@ $a& Misbehavior of an officer of a court in the performance of his official duties or in his official transactions: $b& 2isobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of e%ecuting acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto: $c& Any abuse of or any unlawful interference with the process or proceedings of a court not constituting direct contempt under section ' of this /ule: $d& Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice: $e& Assuming to be an attorney or an officer of a court, and acting as such without authority: $f& .ailure to obey a subpoena duly served: $g& =he rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him( !ut nothing in this section shall be so construed as to prevent the court from issuing process to bring the respondent into court, or from holding him in custody pending such proceedings( ,"=IO# -( Jow proceedings commenced( E )roceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed by an order or any other formal charge reCuiring the respondent to show cause why he should not be punished for contempt( In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the reCuirements for filing initiatory pleadings for civil actions in the court concerned( If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision( ,"=IO# 0( 8here charge to be filed( E 8here the charge for indirect contempt has been committed against a /egional =rial "ourt or a court of eCuivalent or higher rank, or against an officer appointed by it, the charge may be filed with such court( 8here such contempt has been committed against a lower court, the charge may be filed with the /egional =rial "ourt of the place in which the lower court is sitting: but the proceedings may also be instituted in such lower court subject to appeal to the /egional =rial "ourt of such place in the same manner as provided in section '' of this /ule( ,"=IO# 6( Jearing: release on bail( E If the hearing is not ordered to be had forthwith, the respondent may be released from custody upon filing a bond, in an amount fi%ed by the court, for his appearance at the hearing of the charge( On the day set therefor, the court shall proceed to investigate the charge and consider such comment, testimony or defense as the respondent may make or offer( ,"=IO# 9( )unishment for indirect contempt( E If the respondent is adjudged guilty of indirect contempt committed against a /egional =rial "ourt or a court of eCuivalent or higher rank, he may be punished by a fine not e%ceeding thirty thousand pesos or imprisonment not e%ceeding si% $6& months, or both( If he is adjudged guilty of contempt committed against a lower court, he may be punished by a fine not e%ceeding five thousand pesos or imprisonment not e%ceeding one $'& month, or both( If the contempt consists in the violation of a writ of injunction, temporary restraining order or status Cuo order, he may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved(

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=he writ of e%ecution, as in ordinary civil actions, shall issue for the enforcement of a judgment imposing a fine unless the court otherwise provides( ,"=IO# B( Imprisonment until order obeyed( E 8hen the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it( ,"=IO# D( )roceeding when party released on bail fails to answer( E 8hen a respondent released on bail fails to appear upon the day fi%ed for the hearing, the court may issue another order of arrest or may order the bond for his appearance to be forfeited and confiscated, or both: and, if the bond be proceeded against, the measure of damages shall be the e%tent of the loss or injury sustained by the aggrieved party by reason of the misconduct for which the contempt charge was prosecuted with the costs of the proceedings, and such recovery shall be for the benefit of the party injured( !ut if there is no aggrieved party, the bond shall be liable and disposed of as in criminal cases( ,"=IO# '>( "ourt may release respondent( E =he court which issued the order imprisoning a person for contempt may discharge him from imprisonment when it appears that public interest will not be prejudiced by his release( ,"=IO# ''( /eview of judgment or final order: bond for stay( E =he judgment or final order of a court in a case of indirect contempt may be appealed to the proper court in criminal cases( !ut e%ecution of the judgment or final order shall not be suspended until a bond is filed by the person adjudged in contempt, in an amount fi%ed by the court from which the appeal is taken, conditioned that if the appeal be decided against him he will abide by and perform the judgment or final order( ,"=IO# '*( "ontempt against Cuasi;judicial entities( E 1nless otherwise provided by law, this /ule shall apply to contempt committed against persons, entities, bodies or agencies e%ercising Cuasi;judicial functions, or shall have suppletory effect to such rules as they may have adopted pursuant to authority granted to them by law to punish for contempt( =he /egional =rial "ourt of the place wherein the contempt has been committed shall have jurisdiction over such charges as may be filed therefor( Concept? "ontempt of court is a defiance of the authority, justice or dignity of the court, such conduct as tends to bring the authority and administration of the law into disrespect of, to interfere with, or prejudice parties litigant or their witnesses during litigation( It is defined as a disobedience to the court by setting up an opposition to its authority, justice and dignity( It signifies not only a willful disregard or disobedience to the court<s order but such conduct as tends to bring the authority of the court and the administration of law into disrepute or in some manner to impede the due administration of justice( !(alili v. %ourt of #ndustrial Relations, 1988 -& T8o Ainds o5 conte6pt Direct and Indirect$ EBAMPLE O" DI%ECT CONTEMPT "alling the judge $or justice& a frigginF a;hole, improper attire, loud ringtones/message tones during hearing, challenging adverse counsel to a fight in the courtFs presence, cursing, etc( may be considered direct contempt is done in the presence of or so near the court( EBAMPLE O" INDI%ECT CONTEMPT '( Overly provocative or fighting words used in filed pleadings *( /efusal to vacate premises despite a valid and final court order to do the same +( Making bomb threats so that court proceedings do not continue -( 5aying land mines around the courthouse to prevent the judges and their staff from doing their jobs 0( Illegally representing oneself as an attorney in court proceedings 6( #ot showing up in court despite a duly served subpoena ad testificandum 9( Illegally taking seCuestered property subject of a case and in court custody(

<7at is t7e di55erence 9et8een direct and indirect conte6ptC

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2irect "ontempt is committed in the courtFs presence or so near the court while Indirect "ontempt is not committed within or near the courtFs presence( It may be done through pleadings, though( 2irect "ontempt is punished summarily( =his means a judge $or justice& can immediately cite an offending person in direct contempt and mete out the punishment for it( An offender has to go through due process before being cited for indirect contempt( !ecause it is summary, it cannot be appealed, unlike indirect contempt( <7at is t7e penalty 5or Direct Conte6ptC '( If done before a /egional =rial "ourt, its eCuivalent or a higher court $"ourt of Appeals or upreme "ourt&, a ma%imum fine of )*,>>>(>> or a ma%imum prison term of ten days, or a combination of both fine and imprisonment( *( If done before courts lower than a /egional =rial "ourt, a ma%imum fine of )*>>(>> or a ma%imum prison sentence of ' day, or again, a combination of both fine and imprisonment( <7at is t7e penalty 5or Indirect Conte6ptC '( If done before a /egional =rial "ourt, its eCuivalent or a higher court $"ourt of Appeals or upreme "ourt&, a ma%imum fine of )+>,>>>(>> or a ma%imum prison term of si% months, or a combination of both fine and imprisonment( *( If done before courts lower than a /egional =rial "ourt, a ma%imum fine of )0,>>>(>> or a ma%imum prison sentence of one month, or again, a combination of both fine and imprisonment( If there is disobedience to a temporary restraining order or a writ of preliminary injunction, the penalty also includes restitution for the damage caused or done( *o8 a9o+t conte6pt o5 CongressC Is t7ere s+c7 a t7ingC Hes( Article '0> of the /evised )enal "ode, a person becomes criminally liable for disobeying, without legal e%cuse, summons issued by the #ational Assembly or any of its committees: or refusing, when present $'& to be sworn or placed under affirmation, or $*& to answer any legal inCuiry, or $+& to produce any books, papers, documents, or records in his possession when reCuired to do so by said bodies in the e%ercise of their functions( Accordingly, any of those acts may also constitute contempt of "ongress and could be punished as such independent of criminal prosecution( *o8 a9o+t ot7er agencies liAe t7e SECC Hes( !ut charges of indirect contempt must be filed with the regular courts((( #&T8o aspects o5 conte6pt $'& "ivil "ontempt is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein( !People v. *odoy, 1998 Cote. /he incarceration here is indefinite, because it is remedial, preservative or coercive in nature. /he punishment is imposed for the benefit of the complainant or a party to a suit who has been in6ured. #ts ob6ect is to compel the performance of the orders or decrees of the court, which the contemnor refuses to obey although able to do so. /hus, the contemnor carries the key of his prison in his pocket. $*& "riminal "ontempt is conduct directed against the authority and dignity of a court or of a judge, as in unlawfully assailing or discrediting the authority and dignity of a court or a judge or in doing a forbidden act( !#bid & #ote@ A criminal contempt proceeding is in the nature of a criminal or Cuasi;criminal action and, therefore, punitive in nature( A civil contempt proceeding is remedial and civil in nature(

/& Decisions

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=he violation of a =/O issued by the ," or any Cuasi;judicial tribunal is criminal contempt so that acCuittal of the respondents is unappealable( $2asay v. Recto, 1999  A writ of e%ecution issued by a court after five $0& years from entry of final judgment is void and disobedience thereto does not constitute indirect contempt( $ %rucillo v. #$% Lipata v& T+taan0 -#; SC%A >22; If the defendant does not comply with a judgment ordering him to vacate and deliver a property, he cannot be cited for contempt( =his is so because the writ of e%ecution being for the delivery of real property is addressed to the sheriff and not to the defendant(

"lores v& %+iD0 34 SC%A ;#>; If the defendant has already been evicted but re;entered the premises, the act is contemptuous( =he mere refusal to vacate is not contemptuous( 1atc7alian v& Arleg+i0 2: SC%A #/;; If there is a suit to recover a parcel of land but the defendant refused to reconvey, he cannot be cited for contempt despite the issuance of a writ of possession and the effort of the sheriff to physically remove him( .or the plaintiff to recover the land, he has to file another action( NaDareno v& Barnes0 Canas v& Castigador0 /;> SC%A ;#:! O8ritten "hargeP necessary for commencing indirect contempt proceedings means either '&An order reCuiring the persons to be charged with contempt to show cause why he should not be punished for contempt, be issued by the court, or *& A petition for contempt by way of special civil action under /ule 9' be initiated( =he first procedure applies only where the indirect contempt is committed against a court or judge possessed and clothed with contempt powers( =he second, if the contemptuous act was committed not against a court nor a judicial officer with authority to punish for contemptuous acts( San L+is v& CA0 1% No& -;#,;30 Sept& -/0 #44- ; Only the court which rendered the order commanding the doing of a certain act is vested with the right to determine whether or not the order has been complied with, or whether a sufficient reason has been given for non;compliance, and therefore, whether a contempt has been committed( It is a well;established rule that the power to determine the e%istence of contempt of court rests e%clusively with the court contemned( #o court is authoriKed to punish a contempt against another( ;& Necessity o5 7earing )revious hearing is reCuired under /ule 9', ection + of the /evised /ules of "ourt, where an arrest and the subseCuent detention of petitioner for her failure to appear at a hearing set by the trial judge is based on the commission of an indirect contempt( 8ithout that hearing, the order violated the rules and deprived the petitioner of her liberty without due process( $'ulado v. Cavarro, 1988, =n 'anc, "inute Resolution 8here a lawyer fails to obey a subpoena and likewise committed direct contempt for having disturbed the preliminary e%amination being conducted by the judge by repeatedly driving his jeep and honking its horn in the vicinity of the court session hall for which the lawyer was ordered arrested and confined in jail, the judge should issue a separate order for such direct contempt, and another order reCuiring the lawyer to show cause why he should not be punished for disobedience to its process, to give the lawyer a chance to e%plain his failure to appear as a witness( $*ardones v. <elgado, 19+4 :& Conte6pt 9y non!party Generally, no contempt is committed by one not a party to the case( =he remedy against such person is either a civil or criminal action( $$yog v. %usi, Ar., 198? Jowever, persons who are not parties in a proceeding may be declared guilty of contempt for willful violation of an order issued in a case if said persons are guilty of conspiracy with any one of the parties in violating the "ourt<s order( $ <esa =nterprises, #nc. v. ;ecurities and =-change %ommission, 198? ,&Po8er to p+nis7 5or conte6pt to 9e e=ercised in preservative not vindictive principleE 87at constit+tes diso9edience Only in cases of clear and contumacious refusal to obey should the power be e%ercised( A bona fide misunderstanding of the terms of the order or of the procedural rules should not immediately cause the institution of contempt proceedings( F=he power to punish for contempt of court should be e%ercised on the preservative and not on the vindictive principle( Only occasionally should the court invoke its inherent power in order to retain the respect without which the administration of justice must falter or fail( uch power being drastic and e%traordinary in its nature %%% should not be resorted to %%% unless necessary in the interest of justice( $ 0ipata v. /utaan, 1989 Pec+larities in Proceedings  )enalty of imprisonment( .urthermore, it may be indefinite unlike in criminal cases  )laintiff or prosecutor of the court are one and the same person $2irect "ontempt&

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  

Absence of pleadings In indirect contempt, there is an initiatory pleading( =here is an order to comment, unlike in ordinary procedure wherein there is summons /emedy for direct contempt is certiorari( " decisions allows habeas corpus( $ " has ruled that a petition for certiorari and prayer for writ of habeas corpus may be joined( 8hen it comes to indirect contempt the only remedy is plain appeal( 8hen absolved with contempt, it is eCuivalent to acCuittal, so he cannot be placed in double jeopardy

Notes? '( "ontempt is not a means to enforce judgment in a civil case as a general rule( An e%ception is, when judgment directs the performance of an act that is purely personal to the defendant( *( In an unlawful detainer case, if defendant is ordered to vacate the premises but he refuses to do so, that is not a ground for citation for contempt( =he remedy of the plaintiff is to seek help from the sheriff and the police in order to throw out physically the defendant from the place( 'ut when the defendant returns despite the successful eviction and return of property to plaintiff, that is now a ground for citation for contempt. )hat is contemptuous is the defendant1s return to the premises after he has been successfully evicted. /here is no longer need for another eviction. )hat is needed only is an order citing defendant for contempt of court.

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